UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 15, 1995
HERSHEY FOODS CORPORATION
(Exact Name of registrant as specified in its charter)
Delaware I-183 23-0691590
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation) Identification No.)
100 Crystal A Drive, Hershey, Pennsylvania 17033
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (717) 534-6799
<PAGE>
Item 5. Other Events
On December 15, 1995, Hershey Foods Corporation (the "Corporation")
entered into a 364-Day Credit Agreement (the "364-Day Credit Agreement") and a
Five-Year Credit Agreement (the "Five-Year Credit Agreement," and together with
the 364-Day Credit Agreement, the "Agreements"), each dated as of December 15,
1995, with the banks, financial institutions and other institutional lenders
listed on the respective signature pages thereof, Citibank, N.A. ("Citibank"),
as administrative agent for the Lenders (as defined therein), and BA
Securities, Inc. ("BA Securities") and Citicorp Securities, Inc. ("Citicorp
Securities"), as co-syndication agents.
The Agreements establish two credit facilities under which the
Corporation may borrow up to $600 Million, with options to increase borrowings
under the 364-Day Credit Agreement by an additional $250 Million and to
increase borrowings under the Five-Year Credit Agreement by an additional $750
Million.
Item 7. Financial Statements, Pro Forma Financial Statements and Exhibits
Exhibits
10.1 364-Day Credit Agreement, dated as of December 15, 1995, among
the Corporation, the banks, financial institutions and other
institutional lenders listed on the respective signature pages
thereof, Citibank, as administrative agent for the Lenders,
and BA Securities and Citicorp Securities, as co-syndication
agents.
10.2 Five-Year Credit Agreement, dated as of December 15, 1995,
among the Corporation, the banks, financial institutions and
other institutional lenders listed on the respective signature
pages thereof, Citibank, as administrative agent for the
Lenders, and BA Securities and Citibank Securities, as co-
syndication agents.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HERSHEY FOODS CORPORATION
(Registrant)
By: /s/ William F. Christ
Name: William F. Christ
Title: Senior Vice President
and Chief Financial Officer
Date: January 29, 1996
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit
10.1 364-Day Credit Agreement, dated as of December 15, 1995 among the
Corporation, the banks, financial institutions and other
institutional lenders listed on the respective signature pages
thereof, Citibank, as administrative agent for the Lenders, and BA
Securities and Citicorp Securities, as co-syndication agents.
10.2 Five-Year Credit Agreement, dated as of December 15, 1995, among
the Corporation, the banks, financial institutions and other
institutional lenders listed on the respective signature pages
thereof, Citibank, as administrative agent for the Lenders, and
BA Securities and Citibank Securities, as co-syndication agents.
364-DAY CREDIT AGREEMENT
Dated as of December 15, 1995
HERSHEY FOODS CORPORATION, a Delaware corporation (the "Company"),
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),
and BA SECURITIES, INC. and CITICORP SECURITIES, INC., as co-syndication
agents, 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 399 Park Avenue, New York,
New York 10043, Account No. 36852248, Attention: Bank Loan Syndications.
"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.
"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" means an Eligible Assignee not previously a Lender
that becomes a Lender hereunder pursuant to Section 2.05(c).
"Assumption Agreement" means an agreement in substantially the form
of Exhibit D hereto by which an Eligible Assignee agrees to become a
Lender hereunder pursuant to Section 2.05(c), agreeing to be bound by all
obligations of a Lender hereunder.
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"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(i).
"Borrower" means the Company or any Designated Subsidiary, as the
context requires.
"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 Advance or LIBO
Rate Advance, on which dealings are carried on in the London interbank
market.
"Change of Control" means a change in the voting power of Hershey
Trust Company, as trustee for the Milton Hershey School (the "Hershey
Trust"), such that either (A) (i) it no longer controls a majority of the
voting power of the Company's Voting Stock and (ii) at the same time,
another Person or group of Persons within the meaning of Section 13 or 14
of the Securities Exchange Act of 1934, as amended, controls a percentage
of the voting power of the Company's Voting Stock in excess of the
percentage controlled by the Hershey Trust or (B) it no longer controls at
least 30% of the voting power of the Company's Voting Stock.
"Commitment" has the meaning specified in Section 2.01.
"Commitment Increase" has the meaning specified in Section
2.05(c)(i).
"Commitment Increase Date" has the meaning specified in Section
2.05(c)(i).
"Competitive Bid Advance" means an advance by a Lender to any
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 under the competitive bidding procedure described in
Section 2.03.
"Competitive Bid Note" means a promissory note of any Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of such Borrower to such
<PAGE>
Lender resulting from a Competitive Bid Advance made by such Lender to
such Borrower.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means any non-public or proprietary
information disclosed by any Borrower to the Agent or any Lender that such
Borrower indicates is to be treated confidentially, but does not include
any such information that is or becomes generally available to the public
or that is or becomes available to the Agent or such Lender on a non-
confidential basis from a source other than such Borrower, which source is
not, to the best knowledge of the Agent or such Lender, subject to a
confidentiality agreement with such Borrower.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated Interest Expense" means, for any period with respect to
the Company and its Subsidiaries, net interest expense plus capitalized
interest for such period, in each case determined on a Consolidated basis
in accordance with GAAP.
"Consolidated Net Interest Expense" means, for any period with
respect to the Company and its Subsidiaries, interest expense minus
capitalized interest and interest income for such period, in each
case determined on a Consolidated basis in accordance with GAAP.
"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.
"Declining Lender" has the meaning specified in Section
2.18(a)(ii).
"Debt" means, with respect to any Person: (a) indebtedness for
borrowed money, (b) obligations evidenced by bonds, debentures, notes
or other similar instruments, (c) obligations to pay the deferred
purchase price of property or services (other than trade payables
incurred in the ordinary course of business), (d) obligations as
lessee under leases which shall have been or should be, in accordance
with GAAP, recorded as capital leases, (e) all obligations,
contingent or otherwise, of such Person in respect of acceptances,
letters of credit (other than trade letters of credit) or similar
extensions of credit and (f) obligations under direct or indirect
guaranties in respect of, and obligations, contingent or otherwise,
to purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of any other
Person of the kinds referred to in clauses (a) through (d) above.
"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.
"Designated Subsidiary" means any corporate Subsidiary of the Company
designated for borrowing privileges under this Agreement pursuant to
Section 9.08.
<PAGE>
"Designation Letter" means, with respect to any Designated
Subsidiary, a letter in the form of Exhibit F hereto signed by such
Designated Subsidiary and the Company.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Domestic Lending Office" means, with respect to any Initial Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or, with respect to any other
Lender, the office of such Lender specified as its "Domestic Lending
Office" in the Assumption Agreement or in the Assignment and Acceptance
pursuant to which it became a Lender, or such other office of such Lender
as such Lender may from time to time specify to the Company and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) a Lender or any Affiliate of a Lender
which is principally engaged in the commercial banking business, and (b)
any bank or other financial institution, or any other Person, that has
been approved in writing by the Company and the Agent as an Eligible
Assignee for purposes of this Agreement; provided, however, that neither
the Company's nor the Agent's approval shall be unreasonably withheld; and
provided, further, however, that the Company may withhold its approval if
the Company reasonably believes that an assignment to such Eligible
Assignee pursuant to Section 9.07 will result in the incurrence of
increased costs payable by any Borrower pursuant to Section 2.11 or 2.14.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice,
investigation, proceeding, consent order or consent agreement
relating to any Environmental Law, Environmental Permit or Hazardous
Materials or arising from alleged injury to health, safety or the
environment.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, 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 Company's controlled group, or under common
control with the Company, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
<PAGE>
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (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(a)(2) 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 Company or any ERISA affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by the Company 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, such 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 Initial
Lender, the office of such Lender specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or, with respect to any
other Lender, the office of such Lender specified as its "Eurodollar
Lending Office" in the Assumption Agreement or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the Company and the
Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Revolving Credit Borrowing, an
interest rate per annum equal to the average (rounded to the nearest whole
multiple of 1/16 of 1% per annum, or if there is no nearest whole multiple
of 1/16 of 1% per annum, then 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 Eurodollar Rate Advance
comprising part of such Revolving Credit Borrowing to be outstanding
during such Interest Period and for a period equal to such Interest
Period. The Eurodollar Rate for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Revolving Credit Borrowing shall
be determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two Business Days
<PAGE>
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" with respect to any Lender for
any Interest Period for all Eurodollar Rate Advances or LIBO Rate Advances
comprising part of the same Borrowing means the reserve percentage
applicable during such Interest Period (or, if more than one such
percentage shall be so applicable, the daily average of such percentages
for those days in such Interest Period during which any such percentage
shall be so applicable) under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) actually
imposed on such Lender 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.
"Excluded Taxes" has the meaning specified in Section 2.14(a).
"Existing Credit Agreements" means the credit agreements and
confirmed lines of credit listed on Schedule II hereto.
"Extending Lender" has the meaning specified in Section 2.18(a)(i).
"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.
"Final Maturity Date" means (a) the Termination Date or (b) if the
Final Maturity Date is extended pursuant to Section 2.18(b), the date
requested as the Final Maturity Date by the Company pursuant to Section
2.18(b).
"Fixed Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Guaranty" means the guaranty made by the Company to the Lenders and
the Agent pursuant to Article VII.
"Guaranteed Obligations" has the meaning specified in Section
7.01(a).
<PAGE>
"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.
"Increasing Extending Lender" has the meaning specified in Section
2.18(a)(ii)(A).
"Increasing Lender" has the meaning specified in Section 2.05(c)(i).
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"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 that requested such Borrowing 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 such
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, as the applicable
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:
(i) such Borrower may not select any Interest Period that ends
after the Final Maturity Date then in effect;
(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 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.
<PAGE>
"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 2.05(c) and each Eligible
Assignee that shall become a party hereto pursuant to Section 9.07.
"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 average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, or if there is no nearest whole multiple
of 1/16 of 1% per annum, then 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 such Reference Bank's
respective ratable share 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. 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 Advances" has the meaning specified in Section 2.03(a)(i).
"Lien" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
charge or encumbrance.
"Majority Lenders" means at any time Lenders owed at least 51% 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 at least 51% of the Commitments.
"Material Adverse Change" means any material adverse change in the
business, financial condition, operations, performance or principal
manufacturing properties of the Company and its Subsidiaries taken as a
whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, financial condition, operations, performance or principal
manufacturing properties of the Company and its Subsidiaries taken as a
whole, (b) the rights and remedies of the Agent or the Lenders under this
Agreement or any Note or (c) the ability of any Borrower to perform its
obligations (other than payment obligations) under this Agreement or any
Note.
"Material Subsidiary" means, at any date of determination, a
Subsidiary of the Company that, either individually or together with
its Subsidiaries, taken as a whole, has total assets exceeding
$300,000,000 on such date.
<PAGE>
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company 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
Company or any ERISA Affiliate and at least one Person other than the
Company and the ERISA Affiliates or (b) was so maintained and in respect
of which the Company 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.
"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).
"Other Taxes" has the meaning specified in Section 2.14(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under
Section 5.01(b) hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other similar
Liens arising in the ordinary course of business; (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; (e)
Liens arising under leases or subleases granted to others that would not
be reasonably likely to have a Material Adverse Effect on the Company and
its Subsidiaries taken as a whole; (f) Liens granted in connection with
any interest rate or foreign currency options, commodity contracts,
futures or similar agreements entered into by the Company or any of its
Subsidiaries in the ordinary course of business; and (g) Liens granted in
connection with corporate-owned life insurance programs of the Company or
any of its Subsidiaries.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
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.
"Pre-Tax Income from Continuing Operations" means, for any period
with respect to the Company and its Subsidiaries, net income (or net loss)
<PAGE>
from operations (determined without giving effect to extraordinary or non-
recurring gains or losses) plus the sum of (a) Consolidated Net Interest
Expense, (b) income tax expense and (c) non-recurring non-cash charges
(including the cumulative effect of accounting changes, restructuring
charges and gains or losses from the sale of businesses), in each case
determined on a Consolidated basis in accordance with GAAP; provided,
however, that the LIFO adjustment to the determination of Pre-Tax Income
from Continuing Operations for purposes of the quarterly financial
statements and the compliance certificate delivered pursuant to Section
5.01(h)(i) shall be made in accordance with the Company's best estimation.
"Process Agent" has the meaning specified in Section 9.12(a).
"Reference Banks" means Citibank, Bank of America National Trust &
Savings Association and Deutsche Bank AG New York and/or Cayman Islands
Branches, or, in the event that less than two of such Lenders remain
Lenders hereunder at any time, any other commercial bank designated by the
Company and approved by the Majority Lenders as constituting a "Reference
Bank" hereunder.
"Register" has the meaning specified in Section 9.07(d).
"Replacement Lender" has the meaning specified in Section
2.18(a)(ii)(A).
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing by such Borrower 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 any Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of such Borrower
to such Lender resulting from the Revolving Credit Advances made by such
Lender to such Borrower.
"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
Company or any ERISA Affiliate and no Person other than the Company and
the ERISA Affiliates or (b) was so maintained and in respect of which the
Company 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,
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 or partnership
(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
<PAGE>
and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"Taxes" has the meaning specified in Section 2.14(a).
"Termination Date" means the earlier of (a) December 13, 1996 or, if
the Termination Date is extended pursuant to Section 2.18(a), the date to
which the Termination Date is extended pursuant to Section 2.18(a), and
(b) the date of termination in whole of the Commitments pursuant to
Section 2.05(a), 2.05(b) or 6.01.
"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.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
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 any Borrower from time to time on any Business Day during
the period from the Effective Date until the Termination Date in an aggregate
amount for all Borrowers not to exceed at any time outstanding (a) the amount
set forth opposite such Lender's name on the signature pages hereof or (b) if
such Lender has become a Lender hereunder pursuant to an Assumption Agreement
or has increased its Commitment pursuant to Section 2.05(c), or 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 9.07(d), in
each case as such amount may be reduced pursuant to Section 2.05(a) or (b)
(such Lender's "Commitment"), provided that the aggregate amount of the
Commitments of the Lenders shall be deemed used from time to time to the extent
of the aggregate amount of the Competitive Bid Advances then outstanding and
such deemed use of the aggregate amount of the Commitments shall be allocated
among the Lenders ratably according to their respective Commitments (such
deemed use of the aggregate amount of the Commitments being a "Competitive Bid
Reduction"). Each Revolving Credit Borrowing shall be in an aggregate amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if
less, an aggregate amount equal to the amount by which the aggregate amount of
a proposed Competitive Bid Borrowing requested by any Borrower exceeds the
<PAGE>
aggregate amount of Competitive Bid Advances offered to be made by the Lenders
and accepted by such Borrower in respect of such Competitive Bid Borrowing, if
such Competitive Bid Borrowing is made on the same date and by the same
Borrower as such Revolving Credit Borrowing) 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, any 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
(i) 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 (ii) 11:00 A.M. (New York
City time) on the day of the proposed Revolving Credit Borrowing in the case of
a Revolving Credit Borrowing consisting of Base Rate Advances, by any 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 (w) date of such Revolving
Credit Borrowing, (x) Type of Advances comprising such Revolving Credit
Borrowing, (y) aggregate amount of such Revolving Credit Borrowing, and (z) in
the case of a Revolving Credit Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Revolving Credit Advance. Each
Lender shall, before (i) in the case of a Eurodollar Rate Advance, 11:00 A.M.
(New York City time) or (ii) in the case of a Base Rate Advance, 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 conditions set forth in Article III, the Agent will make such
funds available to the Borrower requesting the Revolving Credit Borrowing at
the Agent's address referred to in Section 9.02.
(b) Anything herein to the contrary notwithstanding, a Borrower may
not select Eurodollar Rate Advances for any Revolving Credit Borrowing if the
obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12.
(c) Each Notice of Revolving Credit Borrowing of any Borrower shall
be irrevocable and binding on such Borrower. In the case of any Revolving
Credit Borrowing that the related Notice of Revolving Credit Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower
requesting such Revolving Credit Borrowing shall indemnify each Lender, after
receipt of a written request by such Lender setting forth in reasonable detail
the basis for such request, against any loss, cost or expense actually incurred
by such Lender as a result of any failure by such Borrower 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 (other than loss of anticipated
profits), cost or expense actually 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.
<PAGE>
(d) Unless the Agent shall have received notice from a Lender prior
to the date of any Revolving Credit Borrowing comprised of Eurodollar Rate
Advances or prior to the time of the proposed disbursement of any Revolving
Credit Borrowing comprised of Base Rate Advances 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 requesting such
Revolving Credit Borrowing on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available
to the Agent, such Lender and such Borrower severally agree to repay to the
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to such
Borrower until the date such amount is repaid to the Agent, at (i) in the case
of such 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 Revolving Credit 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 Revolving Credit Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Revolving
Credit Advance to be made by such other Lender on the date of any Revolving
Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that any 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) A 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 (u) date of such proposed Competitive Bid Borrowing,
(v) aggregate amount of such proposed Competitive Bid Borrowing, (w)
interest rate basis (LIBO Rate or fixed rate) to be offered by the
Lenders, (x) in the case of a Competitive Bid Borrowing consisting of LIBO
Rate Advances, Interest Period of each Competitive Bid Advance to be made
as part of such Competitive Bid Borrowing, 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 7 days after the date of such Competitive Bid Borrowing or
later than the earlier of (I) 180 days after the date of such Competitive
Bid Borrowing and (II) 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 A.M. (New York City
<PAGE>
time) (A) at least one Business Day prior to the date of the proposed
Competitive Bid Borrowing, if such 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 four Business Days prior to the date of the
proposed Competitive Bid Borrowing, if such Borrower shall instead specify
in the Notice of Competitive Bid Borrowing that the rates of interest to
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 of a
Borrower shall be irrevocable and binding on such Borrower. Any Notice of
Competitive Bid Borrowing by a Designated Subsidiary shall be given to the
Agent in accordance with the preceding sentence through the Company on
behalf of such Designated Subsidiary. The Agent shall in turn promptly
notify each Lender of each request for a Competitive Bid Borrowing
received by it from a 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 proposing the 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 such 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 such 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 proposing the 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:
<PAGE>
(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
such 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; provided, however, that
such Borrower shall not accept any offer in excess of the requested
bid amount for any maturity. Such 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.
(iv) If the Borrower proposing the Competitive Bid Advance 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 proposing the Competitive Bid Advance 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 such 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 such Borrower at the Agent's address referred to in
Section 9.02. 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.
<PAGE>
(vi) If the Borrower proposing the Competitive Bid Advance 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 such Borrower. Such Borrower shall
indemnify each Lender, after receipt of a written request by such Lender
setting forth in reasonable detail the basis for such request, against any
loss, cost or expense actually incurred by such Lender as a result of any
failure by such Borrower 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 (other than loss of anticipated profits),
cost or expense actually 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 that has
borrowed through such Competitive Bid Borrowing 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, each 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.
(d) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall repay to the Agent for the account of each Lender that has made
a Competitive Bid Advance, on the maturity date of such Competitive Bid Advance
(such maturity date being that specified by such 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. A Borrower shall have no right to
prepay any principal amount of any Competitive Bid Advance without the consent
of the Lender that has made such Competitive Bid Advance or as is specified in
the Notice of Competitive Bid Borrowing.
(e) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall pay interest on the unpaid principal amount of each Competitive
Bid Advance from the date of such Competitive Bid Advance comprising such
Competitive Bid Borrowing 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 such 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 under Section 6.01(a), each
Borrower that has borrowed though a Competitive Bid Borrowing shall pay
interest on the amount of unpaid principal of and interest on each Competitive
Bid Advance comprising such Competitive Bid Borrowing that is owing to a
Lender, payable in arrears on the date or dates interest is payable thereon, at
<PAGE>
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 any Borrower resulting from each Competitive
Bid Advance made to such Borrower as part of a Competitive Bid Borrowing shall
be evidenced by a separate Competitive Bid Note of such Borrower payable to the
order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Company agrees to pay
to the Agent for the account of each Lender a facility fee (i) on the aggregate
amount of such Lender's Commitment from the date hereof in the case of each
Initial Lender and from the effective date specified in the Assumption
Agreement or the Assignment and Acceptance, as the case may be, pursuant to
which it became a Lender in the case of each other Lender until the Termination
Date and (ii) if the Company has extended the Final Maturity Date pursuant to
Section 2.18(b), on the aggregate principal amount of the Revolving Credit
Advances payable to such Lender from the Termination Date until such Final
Maturity Date, in each case of clauses (i) and (ii) at a rate per annum equal
to .05%, payable in arrears quarterly on the last day of each February, May,
August and November, commencing February 29, 1996, and on the Termination Date
and on any extended Final Maturity Date.
(b) Agent's Fees. The Company shall pay to the Agent for its own
account such fees as may from time to time be agreed in writing between the
Company and the Agent.
SECTION 2.05. Termination, Reduction or Increase of the Commitments.
(a) Termination or Ratable Reduction by the Company. The Company shall have
the right, upon at least three Business Days' notice to the Agent, to terminate
in whole or reduce ratably in part the unused portions of the respective
Commitments of the Lenders, provided that each partial reduction shall be in
the aggregate amount of $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. The aggregate amount of the Commitments, once reduced or
terminated as provided in this Section 2.05(a), may not be reinstated, except
as provided in Section 2.05(c) below.
(b) Termination by the Majority Lenders upon Change of Control. In
the event that a Change of Control occurs, (i) the Agent shall at the request,
or may with the consent, of the Majority Lenders, by notice to the Company
given not later than 10 Business Days after receipt by the Lenders and the
Agent of notice from the Company of such Change of Control pursuant to Section
5.01(h)(iv), declare the Commitments (determined without giving effect to any
Competitive Bid Reduction) to be terminated in whole, effective as of the date
set forth in such notice, provided, however, that such date shall be no earlier
than 10 Business Days after the Company's receipt of such notice of termination
and (ii) each Borrower's right to make a Borrowing under this Agreement shall
thereupon be suspended and shall remain suspended until 10 Business Days after
receipt by the Lenders and the Agent of notice from the Company of such Change
of Control pursuant to Section 5.01(h)(iv) unless the Majority Lenders shall
have exercised their right to terminate the Commitments as provided in clause
(i) of this Section 2.05(b), in which case each Borrower's right to make a
Borrowing under this Agreement shall remain suspended until the effective date
<PAGE>
of such termination. A notice of termination pursuant to this Section 2.05(b)
shall have the effect of accelerating the outstanding Advances of the Lenders
and the Notes of the Lenders and each Borrower shall, on or prior to the
effective date of the termination of the Commitments, prepay or cause to be
prepaid the outstanding principal amount of all Advances owing by any such
Borrower to the Lenders, together with accrued interest thereon to the date of
such payment, any facility fees or other fees payable to the Lenders pursuant
to the provisions of Section 2.04, and all other amounts payable to the Lenders
under this Agreement (including, but not limited to, any increased costs or
other amounts owing under Section 2.11 and any indemnification for Taxes under
Section 2.14). Upon such prepayment and the termination of the Commitments in
accordance with this Section 2.05(b), the obligations of the Lenders under this
Agreement shall, by the provisions hereof, be released and discharged.
(c) Increase by the Company. (i) The Company may at any time, by
notice to the Agent, propose that the aggregate amount of the Commitments be
increased (each such proposed increase being a "Commitment Increase") by up to
$250,000,000 in excess of the aggregate of the Commitments as of the Effective
Date, effective as at a date (the "Commitment Increase Date") that shall be
specified in such notice and that shall be (A) prior to the Termination Date
and (B) at least 15 Business Days after the date of such notice; provided,
however, that (w) the Company may not propose more than two Commitment
Increases during any calendar year, (x) the minimum proposed Commitment
Increase for each Commitment Increase Date shall be $50,000,000, (y) in no
event shall the aggregate amount of the Commitments at any time exceed
$450,000,000 and (z) no Default shall have occurred and be continuing on such
Commitment Increase Date or shall result from such Commitment Increase. The
Agent shall notify the Lenders and any Eligible Assignees requested by the
Company and acceptable to the Agent as potential Assuming Lenders hereunder of
the proposed Commitment Increase promptly upon the Agent's receipt of any such
notice. It shall be in each Lender's sole discretion whether to increase its
Commitment hereunder in connection with the proposed Commitment Increase. No
later than 10 Business Days after its receipt of the Company's notice, each
Lender that is willing to increase its Commitment hereunder (each such Lender
being an "Increasing Lender") shall deliver to the Agent a notice in which such
Lender shall set forth the maximum increase in its Commitment to which such
Lender is willing to agree, and the Agent shall promptly provide to the Company
a copy of such Increasing Lender's notice. The Agent shall cooperate with the
Company in discussions with the Lenders and Eligible Assignees with a view to
arranging the proposed Commitment Increase through the increase of the
Commitments of one or more of the Lenders and/or the addition of one or more
Eligible Assignees acceptable to the Company and the Agent as Assuming Lenders
and as parties to this Agreement; provided, however, that the minimum
Commitment of each such Assuming Lender that becomes a party to this Agreement
pursuant to this Section 2.05(c) shall be $10,000,000; and provided, further,
that any allocations of Commitments shall be determined by the Company.
(ii) If agreement is reached prior to the relevant Commitment
Increase Date with any Increasing Lenders and Assuming Lenders as to a
Commitment Increase (the amount of which may be less than (subject to the
limitation set forth in clause (i)(x) of this Section 2.05(c)) but not greater
than that amount specified in the applicable notice from the Company), the
Company shall deliver, no later than one Business Day prior to the Commitment
Increase Date, a notice thereof in reasonable detail to the Agent (and the
Agent shall give notice thereof to the Lenders, including any Assuming
Lenders). The Assuming Lenders, if any, shall become Lenders hereunder as of
the Commitment Increase Date and the Commitments of any Increasing Lenders and
<PAGE>
such Assuming Lenders shall become or be, as the case may be, as of the
Commitment Increase Date, the amounts specified in the notice delivered by the
Company to the Agent; provided, however, that:
(x) the Agent shall have received on or prior to 9:00 A.M. (New York
City time) on the Commitment Increase Date (A) a duly executed Revolving
Credit Note from each Borrower, dated as of the Commitment Increase Date
and in substantially the form of Exhibit A-1 hereto for each Assuming
Lender, and dated the date to which interest on the existing Revolving
Credit Note of such Borrower shall have been paid and in substantially the
form of Exhibit A-1 hereto for each Increasing Lender, in each case in an
amount equal to the Commitment of each such Assuming Lender and each such
Increasing Lender after giving effect to such Commitment Increase, (B) a
certificate of a duly authorized officer of the Company stating that no
event has occurred and is continuing, or would result from such Commitment
Increase, that constitutes a Default, and that each of the other
applicable conditions to such Commitment Increase set forth in this
Section 2.05(c) to be fulfilled by the Company has been satisfied and (C)
an opinion of counsel for the Company in substantially the form of Exhibit
H-1 hereto, dated the Commitment Increase Date (with copies for each
Lender, including each Assuming Lender);
(y) with respect to each Assuming Lender, the Agent shall have
received, on or prior to 9:00 A.M. (New York City time) on the Commitment
Increase Date, an appropriate Assumption Agreement in substantially the
form of Exhibit D hereto, duly executed by such Assuming Lender and the
Company, and acknowledged by the Agent; and
(z) each Increasing Lender shall have delivered to the Agent, on or
prior to 9:00 A.M. (New York City time) on the Commitment Increase Date,
(A) its existing Revolving Credit Note or Notes and (B) confirmation in
writing satisfactory to the Agent as to its increased Commitment, with a
copy of such confirmation to the Company.
(iii) Upon its receipt of confirmation from a Lender that it is
increasing its Commitment hereunder, together with the appropriate Revolving
Credit Note or Notes, certificate and opinion referred to in clause (ii)(x)
above, the Agent shall (A) record the information contained therein in the
Register and (B) give prompt notice thereof to the Company. Upon its receipt
of an Assumption Agreement executed by an Assuming Lender representing that it
is an Eligible Assignee, together with the appropriate Revolving Credit Note or
Notes, certificate and opinion referred to in clause (ii)(x) above, the Agent
shall, if such Assumption Agreement has been completed and is in substantially
the form of Exhibit D hereto, (x) accept such Assumption Agreement, (y) record
the information contained therein in the Register and (z) give prompt notice
thereof to the Company.
(iv) In the event that the Agent shall not have received notice from
the Company as to such agreement on or prior to the Commitment Increase Date or
the Company shall, by notice to the Agent prior to the Commitment Increase
Date, withdraw its proposal for a Commitment Increase or any of the actions
provided for above in clauses (ii)(x) through (ii)(z) shall not have occurred
by 9:00 A.M. (New York City time) on the Commitment Increase Date, such
proposal by the Company shall be deemed not to have been made. In such event,
any actions theretofore taken under clauses (ii)(x) through (ii)(z) above shall
be deemed to be of no effect and all the rights and obligations of the parties
shall continue as if no such proposal had been made.
<PAGE>
(v) In the event that the Agent shall have received notice from the
Company as to such agreement on or prior to the Commitment Increase Date and
each of the actions provided for in clauses (ii)(x) through (ii)(z) above shall
have occurred by 9:00 A.M. (New York City time) on the Commitment Increase
Date, the Agent shall notify the Lenders (including any Assuming Lenders) of
the occurrence of the Commitment Increase Date promptly and in any event by
10:00 A.M. (New York City time) on such date by telecopier, telex or cable.
Each Increasing Lender and each Assuming Lender shall, before 11:00 A.M. (New
York City time) on the Commitment Increase Date, make available for the account
of its Applicable Lending Office to the Agent at the Agent's Account, in same
day funds, in the case of such Assuming Lender, an amount equal to such
Assuming Lender's ratable portion of the Revolving Credit Borrowings then
outstanding (calculated based on its Commitment as a percentage of the
aggregate Commitments outstanding after giving effect to the relevant
Commitment Increase) and, in the case of such Increasing Lender, an amount
equal to the excess of (i) such Increasing Lender's ratable portion of the
Revolving Credit Borrowings then outstanding (calculated based on its
Commitment as a percentage of the aggregate Commitments outstanding after
giving effect to the relevant Commitment Increase) over (ii) such Increasing
Lender's ratable portion of the Revolving Credit Borrowings then outstanding
(calculated based on its Commitment (without giving effect to the relevant
Commitment Increase) as a percentage of the aggregate Commitments without
giving effect to the relevant Commitment Increase). After the Agent's receipt
of such funds from each such Increasing Lender and each such Assuming Lender,
the Agent will promptly thereafter cause to be distributed like funds to the
other Lenders for the account of their respective Applicable Lending Offices in
an amount to each other Lender such that the aggregate amount of the
outstanding Revolving Credit Advances owing to each Lender after giving effect
to such distribution equals such Lender's ratable portion of the Revolving
Credit Borrowings then outstanding (calculated based on such Lender's
Commitment as a percentage of the aggregate Commitments outstanding after
giving effect to the relevant Commitment Increase). If the Commitment Increase
Date shall occur on a date that is not the last day of the Interest Period for
all Eurodollar Rate Advances then outstanding, (a) the Company shall pay any
amounts owing pursuant to Section 9.04(d) as a result of the distributions to
Lenders under this Section 2.05(c)(v) and (b) for each Revolving Credit
Borrowing comprised of Eurodollar Rate Advances, the respective Revolving
Credit Advances made by the Increasing Lenders and the Assuming Lenders
pursuant to this Section 2.05(c)(v) shall be Base Rate Advances until the last
day of the then existing Interest Period for such Revolving Credit Borrowing.
SECTION 2.06. Repayment of Revolving Credit Advances. Each Borrower
shall repay to the Agent for the ratable account of the Lenders on the Final
Maturity Date the aggregate principal amount of the Revolving Credit Advances
then outstanding in respect of such Borrower.
SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
Interest. Each Borrower shall pay interest on the unpaid principal amount of
each Revolving Credit Advance owing by such Borrower 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 Base Rate in effect from time to time, payable in arrears quarterly
on the last day of each February, May, August and November during such
<PAGE>
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) .15% per annum, 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), each Borrower shall
pay interest on (i) the unpaid principal amount of each Revolving Credit
Advance owing by such Borrower to each Lender, payable in arrears on the dates
referred to in clause (a)(i) or (a)(ii) 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)(i) or (a)(ii) above and (ii) to
the fullest extent permitted by law, the amount of any interest, fee or other
amount payable hereunder by such Borrower 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) Additional Interest on Eurodollar Rate Advances. The applicable
Borrower shall pay to each Lender, so long as such Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal
amount of each Eurodollar Rate Advance of such Lender to such Borrower, from
the date of such Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder obtained by
subtracting (i) the Eurodollar Rate for the applicable Interest Period for such
Advance from (ii) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such
Lender for such Interest Period, payable on each date on which interest is
payable on such Advance. Such additional interest shall be determined by such
Lender and notified in reasonable detail to such Borrower through the Agent.
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 relevant Borrowers
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 Majority
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
<PAGE>
such Advances will not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period (which cost each such Lender reasonably determines in good
faith is material), the Agent shall forthwith so notify each 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 Credit Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify each Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(c) If any Borrower, in requesting a Revolving Credit Borrowing
comprised of Eurodollar Rate Advances, shall fail to select the duration of the
Interest Period for such 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 such 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 $5,000,000, such Advances shall
automatically, on the last day of the then existing Interest Period therefor,
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 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, such Eurodollar Rate
or LIBO Rate shall be the interest rate per annum determined by the Agent to be
the offered rate per annum at which deposits in U.S. dollars for a maturity
comparable to the Interest Period for such Eurodollar Rate Advances or LIBO
Rate Advances, as the case may be, appears on the Telerate Page 3750 (or any
successor page) as of 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period (the "Telerate"); provided that if the
Telerate is not then available:
(i) the Agent shall forthwith notify the relevant Borrower and the
Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances or LIBO Rate Advances, as the case may be;
(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 each Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
<PAGE>
SECTION 2.09. Optional Conversion of Revolving Credit Advances. Any
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. 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 relevant Borrower.
SECTION 2.10. Optional Prepayments of Revolving Credit Advances.
Any Borrower may, upon notice to the Agent stating the proposed date and
aggregate principal amount of the prepayment, given not later than 11:00 A.M.
(New York City time) on the second Business Day prior to the date of such
proposed prepayment, in the case of Eurodollar Rate Advances, and not later
than 11:00 A.M. (New York City time) on the day of such proposed prepayment, in
the case of Base Rate Advances, and, if such notice is given such 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
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, such Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 9.04(d). Each
notice of prepayment by a Designated Subsidiary shall be given to the Agent
through the Company.
SECTION 2.11. Increased Costs. (a) If, after the date hereof, due
to either (i) the introduction of or any change (other than any change by way
of imposition or increase of reserve requirements included in the Eurodollar
Rate Reserve Percentage) 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 having jurisdiction over any Lender (whether or
not having the force of law), there shall be any increase in the cost to any
Lender (which cost such Lender reasonably determines in good faith is material)
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) Excluded Taxes), then the Borrower of such Advances
shall from time to time, upon demand by such Lender made not later than 60 days
after such Lender obtains knowledge of such increased costs (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased
cost. Each Lender agrees that if such Lender requests compensation for any
amounts owing from a Borrower for such increased cost under this Section
2.11(a), such Lender shall, prior to a Borrower being required to pay such
increased costs, furnish to such Borrower a certificate of a senior financial
officer of such Lender verifying that such increased cost was actually incurred
by such Lender and the amount of such increased cost and setting forth in
reasonable detail the basis therefore (with a copy of such certificate to the
<PAGE>
Agent); provided, however, that such certificate shall be conclusive and
binding for all purposes, absent manifest error.
(b) If, after the date hereof, any Lender determines that compliance
with any law or regulation or any guideline or request from any central bank or
other governmental authority having jurisdiction over any Lender (whether or
not having the force of law) 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, upon demand by such Lender made not later
than 60 days after such Lender obtains knowledge of such increase in capital
(with a copy of such demand to the Agent), the Company shall pay to the Agent
for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder. Each Lender agrees that if such Lender
requests compensation for any amounts owing from the Company for such increase
in capital under this Section 2.11(b), such Lender shall, prior to a Borrower
being required to compensate such Lender for such increase in capital, furnish
to the Company a certificate of a senior financial officer of such Lender
verifying that such increase in capital was actually required by such Lender
and the amount of such increase in capital and setting forth in reasonable
detail the basis therefore (with a copy of such certificate to the Agent);
provided, however, that such certificate shall be conclusive and binding for
all purposes, absent manifest error.
(c) No Borrower shall be obligated to pay under this Section 2.11
any amounts which relate to costs or increases of capital incurred prior to the
12 months immediately preceding the date of demand for payment of such amounts,
unless the applicable law, regulation, guideline or request resulting in such
costs or increases of capital is imposed retroactively. In the case of any
law, regulation, guideline or request which is imposed retroactively, the
Lender making demand for payment of any amount under this Section 2.11 shall
notify the related Borrower not later than 12 months from the date that such
Lender should reasonably have known (but promptly upon gaining knowledge of
such increase) of such law, regulation, guideline or request and such
Borrower's obligation to compensate such Lender for such amount is contingent
upon such Lender's so notifying such Borrower; provided, however, that any
failure by such Lender to provide such notice shall not affect such Borrower's
obligations under this Section 2.11 with respect to amounts resulting from
costs or increases of capital incurred after the date which occurs 12 months
immediately preceding the date on which such Lender notified such Borrower of
such law, regulation, guideline or request.
(d) If any Lender shall subsequently recoup any costs (other than
from a Borrower) for which such Lender has theretofore been compensated by a
Borrower under this Section 2.11, such Lender shall remit to such Borrower an
amount equal to the amount of such recoupment as reasonably determined by such
Lender.
SECTION 2.12. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall after the date hereof, 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 having jurisdiction over any Lender asserts that it is unlawful, for
<PAGE>
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, (i) each
Eurodollar Rate Advance or LIBO Rate Advance, as the case may be, will
automatically, upon such demand, Convert into a Base Rate Advance or an Advance
that bears interest at the rate set forth in Section 2.07(a)(i), as the case
may be, and (ii) 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 each Borrower and
the Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) Each Borrower shall
make each payment hereunder and under the Notes not later than 1:00 P.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,
2.05(c), 2.07(c), 2.11, 2.14, 2.18(a) or 9.04(cd) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 9.07(c), 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. Upon any Assuming
Lender becoming a Lender hereunder as a result of the effectiveness of a
Commitment Increase pursuant to Section 2.05(c), and upon the Agent's receipt
of such Lender's Assumption Agreement and recording the information contained
therein in the Register, from and after the relevant Increase Date, the Agent
shall make all payments hereunder and under the Notes in respect of the
interest assumed thereby to such Assuming Lender.
(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
Federal Funds Rate 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 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 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 a Borrower
prior to the date on which any payment is due to the Lenders from such Borrower
<PAGE>
hereunder that such Borrower will not make such payment in full, the Agent may
assume that such Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent such Borrower shall not have so made
such payment in full to the Agent, each Lender shall repay to the Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Agent, at the
Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by each 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 or by any jurisdiction in which such Lender or the Agent
(as the case may be) is doing business that is unrelated to this Agreement and
such net income taxes or franchise taxes that would not have been imposed if
such Lender or the Agent (as the case may be) had not been conducting such
unrelated business 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 excluded taxes being hereinafter
referred to as "Excluded Taxes" and 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 any 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 for Taxes (including deductions for Taxes
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) such Borrower shall make
such deductions and (iii) such Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, each Borrower agrees to 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) Each Borrower shall indemnify each Lender and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any taxes
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
for penalties, interest and reasonable 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; provided that such Lender shall, prior to a Borrower being required
to indemnify such Lender pursuant to this Section 2.14(c), furnish to such
<PAGE>
Borrower a certificate of a senior financial officer of such Lender verifying
that such Taxes or Other Taxes were actually incurred by such Lender and the
amount of such Taxes or Other Taxes and setting forth in reasonable detail the
basis therefor (with a copy of such certificate to the Agent), provided,
however, that such certificate shall be conclusive and binding for all
purposes, absent manifest error.
(d) Within 30 days after the date of any payment of Taxes, each
Borrower shall furnish to the Agent, at its address referred to in
Section 9.02, the original or a certified copy of a receipt evidencing payment
thereof. In the case of any payment hereunder or under the Notes by or on
behalf of any Borrower through an account or branch outside the United States
or by or on behalf of any Borrower by a payor that is not a United States
person, if such Borrower determines that no Taxes are payable in respect
thereof, such 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
Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it becomes a Lender in the case of each other Lender, and
from time to time thereafter as requested in writing by any Borrower (but only
so long as such Lender remains lawfully able to do so), shall provide the Agent
and each Borrower with two original Internal Revenue Service forms 1001 or
4224, 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 forms 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 or the Assumption Agreement, as the case
may be, 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.
(f) For any period with respect to which a Lender has failed to
provide each 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 the first sentence of 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, each
<PAGE>
Borrower agrees to take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
(g) If any Lender determines, in its sole discretion, that it has
actually and finally realized, by reason of a refund, deduction or credit of
any Taxes or Other Taxes paid or reimbursed by a Borrower pursuant to
subjection (a) or (c) above in respect of payments under the Credit Agreement
or the Notes, a current monetary benefit that it would otherwise not have
obtained, and that would result in the total payments under this Section 2.14
exceeding the amount needed to make such Lender whole, such Lender shall pay to
such Borrower, with reasonable promptness following the date on which it
actually realizes such benefit, an amount equal to the lesser of the amount of
such benefit or the amount of such excess, in each case net of all reasonable
out-of-pocket expenses in securing such refund, deduction or credit.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Revolving Credit Advances owing to
it (other than pursuant to Section 2.05(c), 2.07(c), 2.11, 2.14, 2.18(a) or
9.04(d)) in excess of its ratable share of payments on account of the Revolving
Credit Advances obtained by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participations in the Revolving Credit
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of such Borrower in the amount of such
participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall
be available (and each Borrower agrees that it shall use such proceeds) solely
(i) for general corporate purposes of such Borrower and its Subsidiaries and
(ii) for acquisitions by such Borrower that have been approved by the Board of
Directors of the corporation that is to be acquired by such Borrower.
SECTION 2.17. Mandatory Assignment by a Lender; Mitigation. If any
Lender requests from a Borrower either payment of additional interest on
Eurodollar Rate Advances pursuant to Section 2.07(c), or reimbursement for
increased costs pursuant to Section 2.11, or payment of or reimbursement for
Taxes pursuant to Section 2.14, or if any Lender notifies the Agent that it is
unlawful for such Lender or its Eurodollar Lending Office to perform its
obligations hereunder pursuant to Section 2.12, (i) such Lender will, upon
three Business Days' notice by such Borrower to such Lender and the Agent, to
the extent not inconsistent with such Lender's internal policies and applicable
legal and regulatory restrictions, use reasonable efforts to make, fund or
maintain its Eurodollar Rate Advances through another Eurodollar Lending Office
of such Lender if (A) as a result thereof the additional amounts required to be
paid pursuant to Section 2.07(c), 2.11 or 2.14, as applicable, in respect of
<PAGE>
such Eurodollar Rate Advances would be materially reduced or the provisions of
Section 2.12 would not apply to such Lender, as applicable, and (B) as
determined by such Lender in good faith but in its sole discretion, the making
or maintaining of such Eurodollar Rate Advances through such other Eurodollar
Lending Office would not otherwise materially and adversely affect such
Eurodollar Rate Advances or such Lender and (ii) unless such Lender has
therefore taken steps to remove or cure, and has removed or cured (to the
extent not inconsistent with internal policies and applicable legal and
regulatory restrictions), the conditions creating such obligation to pay such
additional amounts or the circumstances described in Section 2.12, such Lender
will, upon at least five Business Days' notice from the Company to such Lender
and the Agent, assign, pursuant to and in accordance with the provisions of
Section 9.07, to one or more Eligible Assignees designated by the Company all,
but not less than all, of the Revolving Credit Advances then owing to such
Lender and all, but not less than all, of such Lender's rights and obligations
hereunder (other than rights in respect of such Lender's outstanding
Competitive Bid Advance), without recourse to or warranty by, or expense to,
such Lender, for a purchase price equal to the outstanding principal amount of
each such Advance then owing to such Lender plus any accrued but unpaid
interest thereon and any accrued but unpaid facility fees owing thereto and, in
addition, all additional costs reimbursements, expense reimbursements and
indemnities, if any, owing in respect of such Lender's Commitment hereunder at
such time shall be paid to such Lender.
SECTION 2.18. Extension of the Termination Date and the Final
Maturity Date.. (a) Extension of the Termination Date. (i) The Company may,
at its option, by written notice to the Agent in substantially the form of
Exhibit E-1 hereto, no earlier than 60 days and no later that 30 days prior to
the Termination Date then in effect, request that the Lenders extend such
Termination Date for an additional period of 364 days. Such request shall be
irrevocable and binding upon the Company. The Agent shall promptly notify each
Lender of such request. If a Lender agrees, in its individual and sole
discretion, to so extend its Commitment (each such Lender being an "Extending
Lender"), it shall deliver to the Agent a written notice in substantially the
form of Exhibit E-2 hereto of its agreement to do so no earlier than 30 days
and no later than 25 days prior to such Termination Date and the Agent shall
notify the Company in writing of such Extending Lender's agreement to extend
its Commitment no later than 20 days prior to such Termination Date.
(ii) If any Lender does not consent, or fails to respond within the
time period set forth in clause (i) of this Section 2.18(a), to a request by
the Company for an extension of the Termination Date then in effect (each such
Lender being a "Declining Lender"), the Company shall have the right to:
(A) require any Declining Lender to assign in full its rights and
obligations under this Agreement (I) to an Extending Lender designated by
the Company that has offered to increase its Commitment in an amount at
least equal to the amount of such Declining Lender's Commitment in its
notice delivered to the Agent under subsection (a) of this Section 2.18
(each such Extending Lender being an "Increasing Extending Lender") and
(II) to the extent of any shortfall in the aggregate amount of extended
Commitments, to any other Person designated by the Company and acceptable
to the Agent (which acceptance shall not be unreasonably withheld) that
agrees to accept all of such rights and obligations (each such other
Person being a "Replacement Lender"), provided, that (w) such assignment
is otherwise in compliance with Section 9.07, (x) such Declining Lender
receives payment in full of the aggregate principal amount of all Advances
<PAGE>
owing to such Declining Lender, together with all accrued and unpaid
interest thereon to the effective date of such assignment and all fees and
other accrued and unpaid amounts owing to such Declining Lender under any
provision of this Agreement (including, but not limited to, any increased
costs or other additional amounts owing under Section 2.11, and any Taxes
or Other Taxes owing under Section 2.14) as of the effective date of such
assignment, (y) with respect to any Replacement Lender, such Replacement
Lender shall have paid the applicable processing and recordation fee
required under Section 9.07(a) for such assignment and (z) such assignment
shall be effective on or prior to such Termination Date; or
(B) subject to the giving of notice to such Declining Lender at
least five days prior to such Termination Date, pay, prepay or cause to be
prepaid, on and effective as of such Termination Date, the aggregate
principal amount of all Advances owing to such Declining Lender, together
with all accrued and unpaid interest thereon to the date of such payment,
and all fees and other accrued and unpaid amounts owing to such Declining
Lender under any provision of this Agreement (including, but not limited
to, any increased costs or other additional amounts owing under Section
2.11, and any Taxes or Other Taxes owing under Section 2.14) as of the
date of such payment or prepayment, and terminate in whole such Declining
Lender's Commitment, notwithstanding the provisions of Section 2.05(a).
(iii) The Company shall, no later than one day before the
Termination Date then in effect, deliver to the Agent a notice setting forth
the Commitments of the Extending Lenders and the Replacement Lenders, if any,
which are to become or be, as the case may be, effective as of such Termination
Date. If Extending Lenders and/or Replacement Lenders provide Commitments in
an aggregate amount at least equal to 51% of the aggregate amount of the
Commitments outstanding immediately prior to such Termination Date, the Agent
shall give prompt notice thereof to the Lenders and, effective as of such
Termination Date, (A) the Termination Date shall be extended by 364 days for
such Extending Lenders and such Replacement Lenders, subject, however, to the
provisions of subsection (b) of this Section 2.18, (B) each Declining Lender
shall have no further Commitment hereunder and (C) the Commitments of such
Extending Lenders and such Replacement Lenders shall become or be, as the case
may be the amounts specified in the notice delivered by the Company to the
Agent.
(b) Extension of the Final Maturity Date. On the Termination Date
in effect at any time, if no Default shall have occurred and be continuing, the
Company may, by written notice to the Agent, request that the Final Maturity
Date be a date occurring up to the first anniversary of such Termination Date.
Such request shall be irrevocable and binding upon the Company. The Agent
shall promptly notify each Lender of such request. Subject to the satisfaction
of the applicable conditions set forth in Section 3.05 as of such Termination
Date, the Final Maturity Date shall be, effective as of such Termination Date,
such date as the Company shall request pursuant to this subsection (b) of this
Section 2.18. In the event that the Company shall request that the Final
Maturity Date be a date occurring up to the first anniversary of the then
scheduled Termination Date, and the Final Maturity Date shall be so extended as
provided in this subsection (b) of this Section 2.18, the right of the Company
to request an extension of the Termination Date pursuant to subsection (a) of
this Section 2.18 shall automatically terminate and any extension of the
Termination Date in effect at the time such request is made that would
otherwise occur as provided in subsection (a) of this Section 2.18 shall
automatically be cancelled. The Agent shall promptly notify each Lender of any
<PAGE>
such extension of the Final Maturity Date and any such cancellation of an
extension of the Termination Date.
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) There shall have occurred no Material Adverse Change since
December 31, 1994 except as disclosed by the Company in writing to the
Lenders prior to the date of execution of this Agreement.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Company or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that
(i) would be reasonably likely to have a Material Adverse Effect other
than the matters described on Schedule 3.01(b) hereto (the "Disclosed
Litigation") or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby, and there shall have been no material
adverse change in the status, or financial effect on the Company and its
Subsidiaries taken as a whole, of the Disclosed Litigation from that
described on Schedule 3.01(b) hereto.
(c) 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.
(d) The Company shall have notified the Agent in writing as to the
proposed Effective Date.
(e) The Company shall have paid all accrued fees and expenses of the
Agent and the Lenders that shall have been invoiced as of the Effective
Date (including the accrued fees and expenses of counsel to the Agent), in
each case solely to the extent such fees and expenses are required by
other provisions of this Agreement to be so paid.
(f) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Company, dated the
Effective Date, stating that:
(i) The representations and warranties of the Company 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.
<PAGE>
(g) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance reasonably
satisfactory to the Agent and (except for the Revolving Credit Notes) in
sufficient copies for each Lender:
(i) The Revolving Credit Notes of the Company to the order of
the Lenders, respectively.
(ii) Certified copies of the resolutions of the Board of
Directors of the Company approving this Agreement (including the
Commitment Increase contemplated by Section 2.05(c)) and the Notes of
the Company, 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 Company certifying the names and true signatures of
the officers of the Company authorized to sign this Agreement and the
Notes of the Company and the other documents to be delivered
hereunder.
(iv) A favorable opinion of Robert M. Reese, Vice President and
General Counsel of the Company, substantially in the form of
Exhibit H-1 hereto and as to such other matters as any Lender through
the Agent may reasonably request.
(v) A favorable opinion of Simpson Thacher & Bartlett, special
New York counsel to the Company, substantially in the form of Exhibit
H-2 hereto.
(vi) A favorable opinion of Shearman & Sterling, counsel for the
Agent, in form and substance satisfactory to the Agent.
(vii) Such other approvals, opinions or documents as any
Lender, through the Agent, may reasonably request prior to the
Effective Date.
SECTION 3.02. Initial Borrowing of Each Designated Subsidiary. The
obligation of each Lender to make an initial Advance to each Designated
Subsidiary following any designation of such Designated Subsidiary as a
Borrower hereunder pursuant to Section 9.08 is subject to the Agent's receipt
on or before the date of such Initial Advance of each of the following, in form
and substance satisfactory to the Agent and dated such date, and (except for
the Revolving Credit Notes) in sufficient copies for each Lender:
(a) The Revolving Credit Notes of such Borrower to the order of the
Lenders, respectively.
(b) Certified copies of the resolutions of the Board of Directors of
such Borrower approving this Agreement and the Notes of such Borrower, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and such
Notes.
(c) A certificate of the Secretary or an Assistant Secretary of such
Borrower certifying the names and true signatures of the officers of such
<PAGE>
Borrower authorized to sign this Agreement and the Notes of such Borrower
and the other documents to be delivered hereunder.
(d) A certificate signed by a duly authorized officer of the
Company, dated as of the date of such initial Advance, certifying that
such Borrower shall have obtained all governmental and third party
authorizations, consents, approvals (including exchange control approvals)
and licenses required under applicable laws and regulations necessary for
such Borrower to execute and deliver this Agreement and the Notes of such
Borrower and to perform its obligations thereunder.
(e) The Designation Letter of such Designated Subsidiary,
substantially in the form of Exhibit F hereto.
(f) With respect to each Designated Subsidiary that has its
principal place of business outside of the United States of America,
evidence of the Process Agent's acceptance of its appointment pursuant to
Section 9.12(a) as the agent of such Borrower, substantially in the form
of Exhibit G hereto.
(g) A favorable opinion of counsel to such Designated Subsidiary,
dated the date of such Initial Advance, substantially in the form of
Exhibit I hereto.
(h) Such other approvals, opinions or documents as any Lender,
through the Agent, may reasonably request.
SECTION 3.03. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance on
the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the
date of such Revolving Credit Borrowing the following statements shall be true
(and each of the giving of the applicable Notice of Revolving Credit Borrowing
and the acceptance by the Borrower requesting such Revolving Credit Borrowing
of the proceeds of such Revolving Credit Borrowing shall constitute a
representation and warranty by such Borrower that on the date of such Borrowing
such statements are true):
(i) the representations and warranties of the Company contained in
Section 4.01(except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f) thereof (other than
clause (i)(B) thereof)) are correct on and as of the date of such
Revolving Credit Borrowing, before and after giving effect to such
Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and, if such Borrower is
a Designated Subsidiary, the representations and warranties of such
Borrower contained in its Designation Letter are correct on and as of the
date of such Revolving Credit Borrowing, before and after giving effect to
such Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
<PAGE>
SECTION 3.04. 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 (a) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (b) 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 (c) 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 requesting such Competitive Bid
Borrowing of the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by such Borrower that on the date of such
Competitive Bid Borrowing such statements are true):
(i) the representations and warranties of the Company contained in
Section 4.01 (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f) thereof (other than
clause (i)(B) 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, if such Borrower is
a Designated Subsidiary, the representations and warranties of such
Borrower contained in its Designation Letter 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,
(ii) 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, and
(iii) no event has occurred and no circumstance exists as a
result of which the information concerning such Borrower that has been
provided to the Agent and each Lender by such Borrower in connection
herewith 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.
SECTION 3.05. Conditions Precedent to Extension of the Final
Maturity Date. The obligation of each Lender to extend the Final Maturity Date
pursuant to Section 2.18(b) shall be subject to the conditions precedent that
the Effective Date shall have occurred and on the Termination Date the
following statements shall be true (and the giving by the Company of the notice
of extension of the Final Maturity Date shall constitute a representation and
warranty by the Company and each Designated Subsidiary that on the date of such
extension such statements relating to such Borrower are true):
(i) the representations and warranties of the Company contained in
Section 4.01 (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f) thereof (other than
<PAGE>
clause (i)(B) thereof)) are correct on and as of the date of such
extension, before and after giving effect to such extension, as though
made on and as of such date, and, the representations and warranties of
such Designated Subsidiary contained in its Designation Letter are correct
on and as of the date of such extension, before and after giving effect to
such extension, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result from
such extension, that constitutes a Default.
SECTION 3.06. 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 Company, 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 Company. The
Company represents and warrants as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Company of this
Agreement and the Notes of the Company, and the consummation of the
transactions contemplated hereby, are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, and
do not contravene (i) the Company's charter or by-laws or (ii) any law or
any contractual restriction binding on or affecting the Company, except
where such contravention would not be reasonably likely to have a Material
Adverse Effect.
(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 Company of this Agreement or the Notes of the Company,
except for those authorizations, approvals, actions, notices and filings
(i) listed on Schedule 4.01(c) hereto, all of which have been duly
obtained, taken, given or made and are in full force and effect and (ii)
where the Company's failure to receive, take or make such authorization,
approval, action, notice or filing would not have a Material Adverse
Effect.
(d) This Agreement has been, and each of the Notes of the Company
when delivered hereunder will have been, duly executed and delivered by
the Company. This Agreement is, and each of the Notes of the Company when
delivered hereunder will be, the legal, valid and binding obligation of
the Company enforceable against the Company in accordance with their
<PAGE>
respective terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors' rights
generally and general principles of equity.
(e) The Consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 1994, and the related Consolidated
statements of income and cash flows of the Company and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Arthur
Andersen LLP, independent public accountants, and the Consolidated
condensed balance sheet of the Company and its Subsidiaries as at October
1, 1995, and the related Consolidated statements of income and condensed
cash flows of the Company and its Subsidiaries for the nine months then
ended, duly certified by the chief financial officer of the Company,
copies of which have been furnished to each Lender, fairly present,
subject, in the case of said balance sheet as at October 1, 1995, and said
statements of income and cash flows for the nine months then ended, to
audit adjustments, the Consolidated financial condition of the Company and
its Subsidiaries as at such dates and the Consolidated results of the
operations of the Company and its Subsidiaries for the periods ended on
such dates, all in accordance with generally accepted accounting
principles consistently applied; provided, however, that said balance
sheet and statements of income and cash flows for the nine months ended as
at October 1, 1995 are instead prepared in accordance with applicable
rules and regulations of the Securities and Exchange Commission. Since
December 31, 1994, there has been no Material Adverse Change.
(f) (i) There is no pending or, to the Company's knowledge,
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Company or any of its Subsidiaries before any court, governmental agency
or arbitrator that (A) would be reasonably likely to have a Material
Adverse Effect (other than the Disclosed Litigation) or (B) purports to
affect the legality, validity or enforceability of this Agreement or any
Note or the consummation of the transactions contemplated hereby, and (ii)
there has been no adverse change in the status, or financial effect on the
Company and its Subsidiaries taken as a whole, of the Disclosed Litigation
from that described on Schedule 3.01(b) hereto.
(g) No proceeds of any Advance will be applied in any manner that
will violate or cause any Lender to violate Regulation U or Regulation G
issued by the Board of Governors of the Federal Reserve System.
(h) The Company is not, and immediately after the application by the
Company of the proceeds of each Advance will not be, an "investment
company", or a company "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended.
(i) The Company and each of its Subsidiaries are in compliance with
all applicable laws, rules, regulations and orders, including, without
limitation, ERISA and Environmental Laws and Environmental Permits, except
where the failure to so comply would not be reasonably likely to have a
Material Adverse Effect.
(j) To the Company's knowledge, (i) all past non-compliance with any
Environmental Laws and Environmental Permits has been resolved without
ongoing obligations or costs except where the failure to so comply would
not be reasonably likely to have a Material Adverse Effect and (ii) no
<PAGE>
circumstances exist that would be reasonably likely to (A) form the basis
of an Environmental Action against the Company or any of its Subsidiaries
or any of their properties that would be reasonably likely to have a
Material Adverse Effect or (B) cause any such property to be subject to
any restrictions on ownership, occupancy, use or transferability under any
Environmental Law that would be reasonably likely to have a Material
Adverse Effect.
(k) No ERISA Event that would be reasonably likely to have a
Material Adverse Effect has occurred or is reasonably expected to occur
with respect to any Plan.
(l) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan whose "funded current liability
percentage" is less than 90% and whose "unfunded current liability"
exceeds $5,000,000 (as such terms are defined in Section 302(d)(8) of
ERISA), copies of which have been filed with the Internal Revenue Service
and furnished to the Lenders, is complete and accurate and fairly presents
in all material respects the funding status of such Plan.
(m) Neither the Company nor any ERISA Affiliate has outstanding
liability with respect to, or is reasonably expected to incur any
Withdrawal Liability to, any Multiemployer Plan that would be reasonably
likely to have a Material Adverse Effect.
(n) Neither the Company nor any ERISA Affiliate has been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of
ERISA, and no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA, where such reorganization or termination would be reasonably likely
to have a Material Adverse Effect.
(o) Except as set forth in the financial statements referred to in
Section 4.01(e) and in Section 5.01(h), the Company and its Subsidiaries
taken as a whole have no material liability with respect to "expected post
retirement benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will:
(a) Compliance with Laws, Obligations, Etc. Comply, and cause each
of its Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and Environmental Laws
as provided in Section 5.01(i), except where the failure to so comply
would not be reasonably likely to have a Material Adverse Effect.
<PAGE>
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent
if the failure to so pay and discharge would be reasonably likely to have
a Material Adverse Effect, (i) all taxes, assessments and governmental
charges or levies imposed upon it or upon its property and (ii) all lawful
claims that, if unpaid, will by law become a Lien upon its property;
provided, however, that neither the Company nor any of its 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 and
as to which appropriate reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause each of its
Material Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations (or continue to maintain
self-insurance) in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Company or such
Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Company and its Subsidiaries may consummate
any merger or consolidation permitted under Section 5.02(b) and provided
further that neither the Company nor any of its Subsidiaries shall be
required to preserve any right or franchise if the Board of Directors of
the Company or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Company or such Subsidiary, as the case may be, and that the loss thereof
would not be reasonably likely to have a Material Adverse Effect.
(e) Authorizations. Obtain, and cause each Designated Subsidiary
with a principal place of business outside the United States to obtain, at
any time and from time to time all authorizations, licenses, consents or
approvals (including exchange control approvals) as shall now or hereafter
be necessary or desirable under applicable law or regulations in
connection with such Designated Subsidiary's making and performance of
this Agreement and, upon the request of any Lender, promptly furnish to
such Lender copies thereof.
(f) Keeping of Books. Keep, and cause each of its Material
Subsidiaries with a principal place of business in the United States to
keep, proper books of record and account, in which full and correct
entries in all material respects shall be made of all financial
transactions and the assets and business of the Company and each such
Subsidiary in accordance with generally accepted accounting principles in
effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used in the conduct of its business in good working
order and condition, ordinary wear and tear excepted, except where the
failure to do so would not be reasonably likely to have a Material Adverse
Effect.
<PAGE>
(h) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of
the Company, Consolidated condensed balance sheet of the Company and
its Subsidiaries as of the end of such quarter and Consolidated
statements of income and Consolidated condensed statements of cash
flows of the Company and its Subsidiaries for the period commencing
at the end of the previous fiscal year and ending with the end of
such quarter, duly certified (subject to audit adjustments) by the
chief financial officer of the Company as having been prepared in
accordance with applicable rules and regulations of the Securities
and Exchange Commission and certificates of the chief financial
officer of the Company as to compliance with the terms of this
Agreement;
(ii) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, a copy of the annual
report for such year for the Company and its Subsidiaries, containing
Consolidated balance sheet of the Company and its Subsidiaries as of
the end of such fiscal year and Consolidated statements of income and
cash flows of the Company and its Subsidiaries for such fiscal year,
in each case accompanied by an opinion of Arthur Andersen LLP or
other nationally recognized independent public accountants;
(iii) as soon as possible and in any event within five days
after the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the Company
setting forth the details of such Default and the action that the
Company has taken and proposes to take with respect thereto;
(iv) as soon as possible and in any event within three days
after the occurrence of a Change of Control, notice of such Change of
Control setting forth the details of such Change of Control;
(v) promptly after the sending or filing thereof, copies of all
reports that the Company sends to any of its public securityholders,
and copies of all reports and registration statements that the
Company or any Subsidiary files with the Securities and Exchange
Commission or any national securities exchange;
(vi) (a) promptly and in any event within 20 days after the
Company or any ERISA Affiliate has actual knowledge that an event
that is an ERISA Event that has resulted or that would be reasonably
likely to result in a liability of the Company or any ERISA Affiliate
in an amount in excess of $25,000,000 has occurred, a statement of
the chief financial officer or other authorized officer of the
Company describing such ERISA Event and the action, if any, that the
Company or such ERISA Affiliate has taken and proposes to take with
respect thereto and (b) on the date any records, documents or other
information must be furnished to the PBGC with respect to any Plan
pursuant to Section 4010 of ERISA, a copy of such records, documents
and information;
(vii) promptly and in any event within three Business Days
after receipt thereof by the Company or any ERISA Affiliate, copies
of each notice from the PBGC stating its intention to terminate any
<PAGE>
Plan or to have a trustee appointed to administer any Plan, where
such notice, termination or appointment has resulted or would be
reasonably likely to result in a liability of the Company or any
ERISA Affiliate in an amount in excess of $25,000,000;
(viii) promptly and in any event within 30 days after filing
thereof with the Internal Revenue Services, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan whose "funded current liability percentage" is
less than 90% and whose "unfunded current liability" exceeds
$5,000,000 (as such terms are defined in Section 302(d)(8) of ERISA);
(ix) promptly and in any event within five Business Days after
receipt thereof by the Company or any ERISA Affiliate from the
sponsor of a Multiemployer Plan, copies of each notice concerning
(A) the imposition of Withdrawal Liability by any such Multiemployer
Plan, (B) the reorganization or termination, within the meaning of
Title IV of ERISA, of any such Multiemployer Plan or (C) the amount
of liability incurred, or that may be incurred, by the Company or any
ERISA Affiliate in connection with any event described in clause (A)
or (B), where such imposition, reorganization or termination has
resulted or would be reasonably likely to result in a liability of
the Company or any ERISA Affiliate in an amount exceeding
$25,000,000;
(x) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Company or any of its Subsidiaries of the
type described in Section 4.01(f); and
(xi) such other information respecting the Company or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
(i) Compliance with Environmental Laws. Comply, and cause each of
its Subsidiaries and all lessees and other Persons operating or occupying
its properties, to comply with all applicable Environmental Laws and
Environmental Permits except where the failure to so comply would not be
reasonably likely to have a Material Adverse Effect.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
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 Subsidiaries to assign, any right to receive income,
other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Company or any Subsidiary of the
Company in the ordinary course of business to secure the purchase
price of such property or equipment or to secure Debt incurred solely
for the purpose of financing the acquisition of such property or
<PAGE>
equipment, or Liens existing on such property or equipment at the
time of its acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to finance
the acquisition of such property) 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
properties of any character other than the real property or equipment
being acquired, and no such extension, renewal or replacement shall
extend to or cover any properties not theretofore subject to the Lien
being extended, renewed or replaced,
(iii) any assignment of any right to receive income existing
on the Effective Date and any Liens existing on the Effective Date,
(iv) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or any
Subsidiary of the Company or becomes a Subsidiary of the Company;
provided that such Liens do not extend to any assets other than those
of the Person so merged into or consolidated with the Company or such
Subsidiary or acquired by the Company or such Subsidiary,
(v) other Liens or any other assignment of any right to receive
income (in addition to the Liens and assignments permitted under
clauses (i), (ii), (iii), (iv) or (vi)) securing Debt in an aggregate
principal amount not to exceed $450,000,000, and
(vi) the replacement, extension or renewal of any Lien or any
assignment of any right to receive income permitted by clause (iii)
or (iv) 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 Debt
secured thereby.
(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
Subsidiaries to do so, except that any Subsidiary of the Borrower may
merge or consolidate with or into, or dispose of assets to, any other
Subsidiary of the Company, and except that any Subsidiary of the Company
may merge into or dispose of assets to the Company and the Company may
merge with any other Person so long as the Company is the surviving
corporation, 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 as
carried on at the date hereof.
<PAGE>
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Advance
within one Business Day after the same becomes due and payable; or any
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 three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Company herein or, if
such Borrower is a Designated Subsidiary, in such Borrower's Designation
Letter, or by any Borrower in connection with this Agreement shall prove
to have been incorrect in any material respect when made; or
(c) (i) The Company shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d) or (h)(iii), (iv) or
(vi)-(ix) or 5.02, or (ii) the Company or any other Borrower shall fail to
perform or observe any term, covenant or agreement contained in Section
5.01(h)(i), (ii), (v), (x) or (xi) if such failure shall remain unremedied
for 10 days after written notice thereof shall have been given to the
relevant Borrower by the Agent or any Lender, or (iii) the Company or any
other 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 relevant Borrower by the Agent
or any Lender; or
(d) Any Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal or notional amount of at least $75,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of such Borrower or such Subsidiary
(as the case may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate the
maturity of such Debt; or 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, unless the
event giving rise to such prepayment, redemption, purchase or defeasance
is not related directly to any action taken by, or the condition
(financial or otherwise) or operations of, the Company, any of its
Subsidiaries, or any of their respective properties; or
(e) Any 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
<PAGE>
against any 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 60 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 any 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
$50,000,000 shall be rendered against any Borrower or any of its
Subsidiaries and there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(g) The Company or any ERISA Affiliate shall incur, or, in the
reasonable opinion of the Majority 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;
(ii) the partial or complete withdrawal of the Company or any of its ERISA
Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan; or
(h) Any ERISA Event shall have occurred with respect to a Plan and
the sum (determined as of the date of occurrence of such ERISA Event) of
the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then
exist (or the liability of the Company and the ERISA Affiliates related to
such ERISA Event) exceeds $75,000,000; or
(i) The Company or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Company and the ERISA Affiliates as Withdrawal Liability (determined as of
the date of such notification), exceeds $75,000,000; or
(j) The Company or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Company and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $75,000,000 in the aggregate;
<PAGE>
then, and in any such event, the Agent (i) shall at the request, or may with
the consent, of the Majority Lenders, by notice to the Company and each other
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 Majority Lenders, by notice to the
Company and each other Borrower, declare the Notes, all interest thereon and
all other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Notes, 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 Borrowers;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to any Borrower under the Federal Bankruptcy Code,
(A) the obligation of each Lender to make Advances to such Borrower (or, if
such event has occurred in respect of the Company, to make Advances to any
Borrower) shall automatically be terminated and (B) the Notes, all such
interest and all such amounts owing by such Borrower (or, if such event has
occurred in respect of the Company, owing by all of the Borrowers) 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 Borrowers.
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty. For valuable consideration, receipt whereof
is hereby acknowledged, and to induce each Lender to make Advances to the
Designated Subsidiaries and to induce the Agent to act hereunder, the Company
hereby unconditionally and irrevocably guarantees to each Lender and the Agent
the punctual payment when due, whether at stated maturity, by acceleration or
otherwise, of all obligations of the Designated Subsidiaries now or hereafter
existing under this Agreement or the Notes, whether for principal, interest,
fees, indemnities, expenses or otherwise (such obligations being the
"Guaranteed Obligations"), and agrees to pay any and all reasonable and
documented expenses (including reasonable counsel fees and expenses) incurred
by the Agent or any Lender in enforcing any rights under this Guaranty.
Without limiting the generality of the foregoing, the Company's liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
that would be owed by any Designated Subsidiary to the Agent or any Lender
under this Agreement and the Notes but for the fact that such Guaranteed
Obligations are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving such Designated
Subsidiary.
SECTION 7.02. Guaranty Absolute. The Company guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Lender with respect thereto. The obligations of the Company under
this Guaranty are independent of the Guaranteed Obligations or any other
obligations of any Designated Subsidiary under this Agreement and the Notes,
and a separate action or actions may be brought and prosecuted against the
Company to enforce the obligations of the Company under this Guaranty,
irrespective of whether any action is brought against any Borrower or whether
any Borrower is joined in any such action or actions. The liability of the
Company under this Guaranty shall be irrevocable, absolute and unconditional
<PAGE>
irrespective of, and the Company hereby irrevocably waives any defenses it may
now or hereafter have in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement or the
Notes, or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
obligations of any Designated Subsidiary under this Agreement or the
Notes, or any other amendment or waiver of or any consent to departure
from this Agreement or any Note, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Designated Subsidiary or any of its Subsidiaries
or otherwise;
(c) any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any change, restructuring or termination of the corporate
structure or existence of any Designated Subsidiary or any of its
Subsidiaries;
(e) any failure of the Agent or any Lender to disclose to the
Company or any Designated Subsidiary any information relating to the
financial condition, operations, properties or prospects of any Designated
Subsidiary now or in the future known to the Agent or such Lender, as the
case may be (the Company waiving any duty on the part of the Agent or the
Lenders to disclose such information); or
(f) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Agent or any Lender that might otherwise constitute
a defense available to, or a discharge of, any Designated Subsidiary or
the Company or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the Agent or any Lender upon the
insolvency, bankruptcy or reorganization of any Designated Subsidiary or
otherwise, all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) The Company hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that the Agent or any Lender exhaust any right or take any action
against any Designated Subsidiary or any other Person, and all other notices
and demands whatsoever.
(b) The Company hereby waives any right to revoke this Guaranty, and
acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
(c) The Company acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by
this Agreement and the Notes and that the waivers set forth in this Section
7.03 are knowingly made in contemplation of such benefits.
<PAGE>
SECTION 7.04. Subrogation. The Company will not exercise any rights
that it may now or hereafter acquire against any Designated Subsidiary or any
other insider guarantor that arise from the existence, payment, performance or
enforcement of the Company's obligations under this Guaranty or any provision
of this Agreement or the Notes, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of the Agent or any Lender
against such Designated Subsidiary or any other insider guarantor or any
collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the right
to take or receive from such Designated Subsidiary or any other insider
guarantor, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim, remedy or
right, unless and until all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been paid in full in cash and the
Commitments shall have expired or terminated. If any amount shall be paid to
the Company in violation of the preceding sentence at any time prior to the
later of the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty and the Final Maturity Date, such
amount shall be held in trust for the benefit of the Agent and Lenders and
shall forthwith be paid to the Agent to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of this Agreement
and the Notes, or to be held as collateral for any Guaranteed Obligations or
other amounts payable under this Guaranty thereafter arising. If (i) the
Company shall make payment to the Agent or any Lender of all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall be paid in full in cash and (iii) the
Final Maturity Date shall have occurred, the Agent and the Lenders will, at the
Company's request and expense, execute and deliver to the Company appropriate
documents, without recourse and without representation or warranty, necessary
to evidence the transfer by subrogation to the Company of an interest in the
Guaranteed Obligations resulting from such payment by the Company.
SECTION 7.05. Continuing Guaranty; Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Agreement and
the Final Maturity Date, (b) be binding upon the Company, its successors and
assigns and (c) inure to the benefit of and be enforceable by the Agent and the
Lenders and their respective successors, transferees and assigns. Without
limiting the generality of the foregoing clause (c), any Lender may assign or
otherwise transfer all or any portion of its rights and obligations under this
Agreement (including, without limitation, all or any portion of its Commitment,
the Advances owing to it and the Note or Notes held by it) to any other Person,
and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to such Lender herein or otherwise, in each case as and
to the extent provided in Section 9.07 of this Agreement.
SECTION 7.06. No Stay. The Company agrees that, as between (a) the
Company and (b) the Lenders and the Agent, the Guaranteed Obligations of any
Designated Subsidiary guaranteed by the Company hereunder may be declared to be
forthwith due and payable as provided in Article VI hereof for purposes of this
Guaranty by declaration to the Company as guarantor notwithstanding any stay,
injunction or other prohibition preventing such declaration as against such
Designated Subsidiary and that, in the event of such declaration to the Company
as guarantor, such Guaranteed Obligations (whether or not due and payable by
<PAGE>
such Designated Subsidiary), shall forthwith become due and payable by the
Company for purposes of this Guaranty.
ARTICLE VIII
THE AGENT
SECTION 8.01. 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 Majority 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 any Borrower
pursuant to the terms of this Agreement.
SECTION 8.02. 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: (a) may
treat the payee of any Note as the holder thereof until the Agent receives and
accepts an Assignment and Acceptance entered into by the Lender that is the
payee of such Note, as assignor, and an Eligible Assignee, as assignee, as
provided in Section 9.07; (b) may consult with legal counsel (including counsel
for any 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; (c) 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;
(d) 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 any Borrower or to inspect the property (including the books and
records) of any Borrower; (e) 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 (f) 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 8.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the 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
<PAGE>
engagements from and generally engage in any kind of business with, the
Company, any of its Subsidiaries and any Person who may do business with or own
securities of the Company or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders.
SECTION 8.04. 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 8.05. Indemnification. The Lenders agree to indemnify the
Agent (to the extent not reimbursed by a Borrower), ratably according to the
respective principal amounts of the Revolving Credit Notes then held by each of
them (or if no Revolving Credit Notes are at the time outstanding or if any
Revolving Credit Notes are held by Persons that are not Lenders, 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, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
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 a Borrower.
SECTION 8.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and each Borrower and may be
removed at any time with or without cause by the Majority Lenders and such
resignation or removal shall be effective upon the appointment of a successor
Agent. Upon any such resignation or removal, the Majority Lenders shall have
the right to appoint a successor Agent, subject to the Company's approval
(which shall not be unreasonably withheld). If no successor Agent shall have
been so appointed by the Majority Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Majority 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 $250,000,000, subject to the Company's approval (which shall not be
unreasonably withheld). 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 VIII
<PAGE>
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Majority 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) increase the Commitment of any Lender (other than as
provided for in Section 2.05(c) or Section 2.18(a)) or subject any Lender to
any additional monetary obligations, (b) reduce the principal of, or interest
on, the Revolving Credit Notes or any fees or other amounts payable hereunder,
(c) postpone any date fixed for any payment of principal of, or interest on,
the Revolving Credit Notes or any fees or other amounts payable hereunder
(other than as provided for under Section 2.18), (d) release the Company from
any of its obligations under Article VII or limit the liability of the Company
thereunder or (e) amend or waive this Section 9.01 or the definition of
"Majority Lenders"; and provided further that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the Agent
under this Agreement or any Note.
SECTION 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic
or telex communication) and mailed, telecopied, telegraphed, telexed or
delivered, if to the Company or to any Designated Subsidiary, at the Company's
address at Corporate Headquarters, 100 Crystal A Drive, Hershey, Pennsylvania
17033-0810, Attention: Treasury Department, Fax No. (717) 534-6724; 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, as the
case may be, pursuant to which it became a Lender; and if to the Agent, at its
address at One Court Square, Seventh Floor, Long Island City, New York 11120,
Attention: Bank Loan Syndications, Fax No. (718) 248-4844; or, as to any
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 Company and the Agent. All such notices and communications shall, when
mailed, telecopied, telegraphed or telexed, be effective when deposited in the
mails, telecopied, delivered to the telegraph company or confirmed by telex
answerback, respectively, except that notices and communications to the Agent
pursuant to Article II, III or VIII shall not be effective until received by
the Agent. 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 9.03. 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
<PAGE>
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 9.04. Costs and Expenses. (a) The Company agrees to pay or
cause to be paid on demand all reasonable and documented costs and expenses of
the Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of 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, and messenger costs and
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 Company further agrees to pay or
cause to be paid on demand all reasonable and documented 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 9.04(a).
(b) The Company agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of, or in connection with the
preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances whether or not such investigation, litigation or
proceeding is brought by any Borrower or the directors, shareholders or
creditors of any Borrower or an Indemnified Party or any other Person or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense results from such Indemnified Party's
gross negligence or willful misconduct.
(c) Promptly after receipt by an Indemnified Party of notice of the
commencement of any action or proceeding involving any claim, damage, loss or
liability referred to in paragraph (b) above, such Indemnified Party will, if a
claim in respect thereof is to be made against any Borrower, give written
notice to such Borrower of the commencement of such action; provided that the
failure of any Indemnified Party to give notice as provided in this Section
9.04(c) shall not relieve such Borrower of its obligations under paragraph (b)
above, except only to the extent that such Borrower actually suffers damage
solely as a result of such failure to give notice. In the event that any such
action or proceeding is brought against an Indemnified Party, unless in such
Indemnified Party's sole judgment (based on advise of counsel) a conflict of
interest between such Indemnified Party and a Borrower may exist in respect
thereof, such Borrower shall be entitled to participate in and to assume the
defense thereof with counsel reasonably satisfactory to such Indemnified Party.
After notice from such Borrower to such Indemnified Party of its election to
assume the defense thereof, such Borrower shall not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by such
<PAGE>
Indemnified Party in connection with the defense thereof (other than reasonable
costs of investigation). No Borrower shall consent to the entry of any
dismissal or judgment, or enter into any settlement of any pending or
threatened action or proceeding against any Indemnified Party that is or could
have been a party and for whom indemnity could have been sought under paragraph
(b) above without the consent of such Indemnified Party unless such judgment,
dismissal or settlement includes as an unconditional term thereof the giving
of a release from all liability in respect of such action or proceeding to such
Indemnified Party; provided that each Indemnified Party agrees that, if a
Borrower reconfirms to such Indemnified Party that it is indemnified from all
liability in respect of any such action or proceeding referred to in the
preceding sentence, such Indemnified Party will not enter into any settlement
of any such action or proceeding without the consent of such Borrower (which
consent shall not be unreasonably withheld). In addition to the foregoing,
each Borrower shall not, in assuming the defense of any Indemnified Party,
agree to any dismissal or settlement without the prior written consent of such
Indemnified Party if such dismissal or settlement (A) would require any
admission or acknowledgement of culpability or wrongdoing by such Indemnified
Party or (B) would provide for any nonmonetary relief to any Persons to be
performed by such Indemnified Party.
(d) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance or LIBO Rate Advance is made by any Borrower to or for the account
of a Lender other than on the last day of the Interest Period for such Advance,
as a result of (i) a payment or Conversion pursuant to Section 2.03(d), 2.10,
2.12 or 2.18(a), (ii) a Commitment Increase pursuant to Section 2.05(c),
(iii) acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, or (iv) 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 9.07(a) as a result of
a demand by the Company pursuant to Section 2.17, such 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 and
actually incur as a result of such payment or Conversion, including, without
limitation, any loss (other than 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.
(e) Without prejudice to the survival of any other agreement of any
Borrower hereunder, the agreements and obligations of such Borrower contained
in Sections 2.11, 2.14 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final but excluding trust
accounts) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of any Borrower against any and all
of the obligations of such Borrower now or hereafter existing under this
Agreement and the Note of such Borrower held by such Lender, whether or not
such Lender shall have made any demand under this Agreement or such Note. Each
Lender agrees promptly to notify the relevant Borrower after any such set-off
<PAGE>
and application, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Lender under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender may have.
SECTION 9.06. Binding Effect; Termination of Existing Credit
Agreements. (a) This Agreement shall become effective (other than
Sections 2.01 and 2.03, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Company 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 each Borrower, the
Agent and each Lender and their respective successors and assigns, except that
no Borrower shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
(b) The Company and each Lender agrees that, upon the Effective
Date, each of the Existing Credit Agreements shall be terminated and the
Company shall, on or before the Effective Date, pay in full all amounts payable
under and with respect thereto and, following such payments and the occurrence
of the Effective Date, neither the Company nor the Lenders party thereto shall
have any further obligations thereunder (except for any provisions or
obligations thereunder which expressly survive the termination of such Existing
Credit Agreements or the repayment of all amounts payable thereunder).
SECTION 9.07. Assignments, Designations and Participations. (a)
Each Lender may at any time, and if demanded by the Company pursuant to Section
2.17, shall 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 the
Revolving Credit Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a constant, and not a varying, percentage of all
rights and obligations under this Agreement (other than any right to make
Competitive Bid Advances, Competitive Bid Advances owing to it and Competitive
Bid Notes), (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000,
(iii) each such assignment shall be to an Eligible Assignee, (iv) each such
assignment made as a result of a demand by the Company pursuant to Section 2.17
shall be arranged by the Company after consultation with the Agent and shall be
either an assignment of all of the rights and obligations of the assigning
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Company pursuant to
Section 2.17 (A) so long as a Default shall have occurred and be continuing,
(B) unless and until such Lender shall have received one or more payments from
either the Company, any other 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 (including, but not limited to, any amounts
owing under Section 2.11 and Section 2.14), and the Company shall have
<PAGE>
satisfied all of its other obligations under this Agreement as of the effective
date of the assignment and (C) if any such Eligible Assignee is not an existing
Lender, the Company shall have paid to the Agent a processing and recordation
fee of $1,000, (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, if such assignment does not occur as a result of a demand
by the Company pursuant to Section 2.17 (in which case the Company shall pay
the fee required by clause (v)(C) of this Section 9.07(a)), a processing and
recordation fee of $3,000, and (vii) in the case of an assignment to any
Affiliate of such Lender that is engaged in the business of commercial banking,
notice thereof shall have been given to the Company and the Agent. Upon such
execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder and (y) the Lender
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of any Borrower or the performance or observance by any Borrower of
any of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01(e), the most recent financial statements referred
to in Section 5.01(h) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement as are delegated to the Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment,
<PAGE>
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 each Borrower. Within five Business Days
after its receipt of such notice, each Borrower, at its own expense, shall
execute and deliver to the Agent in exchange for the surrendered Revolving
Credit Note of such Borrower a new Revolving Credit Note to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by such Eligible
Assignee pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Commitment hereunder, a new Revolving Credit Note to the
order of the assigning Lender in an amount equal to the Commitment retained by
it hereunder. Such new Revolving Credit Note or Notes of any Borrower shall be
in an aggregate principal amount equal to the aggregate principal amount of the
surrendered Revolving Credit Note or Notes of such Borrower, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 hereto.
(d) The Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and
each Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by any Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than any 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 the Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
to any 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) each 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 any
consent to any departure by any Borrower therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest
on, the Notes 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 Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation.
Each Lender agrees that, promptly upon selling any such participation in
accordance with this Section 9.07(e), such Lender shall deliver written notice
thereof to the Company.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 9.07, disclose to the assignee, or participant or proposed assignee, or
participant, any information relating to the Company or any other Borrower
<PAGE>
furnished to such Lender by or on behalf of such 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 such Borrower received by it from such Lender.
(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 the Note or Notes 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.
SECTION 9.08. Designated Subsidiaries. (a) Designation. The
Company may at any time, and from time to time, by delivery to the Agent of a
Designation Letter duly executed by the Company and the respective Subsidiary
and substantially in the form of Exhibit F hereto, designate such Subsidiary as
a "Designated Subsidiary" for purposes of this Agreement and such Subsidiary
shall thereupon become a "Designated Subsidiary" for purposes of this Agreement
and, as such, shall have all of the rights and obligations of a Borrower
hereunder. The Agent shall promptly notify each Lender of each such
designation by the Company and the identity of the respective Subsidiary.
(b) Termination. Upon the payment and performance in full of all of
the indebtedness, liabilities and obligations under this Agreement and the
Notes of any Designated Subsidiary then, so long as at the time no Notice of
Revolving Credit Borrowing or Notice of Competitive Bid Borrowing in respect of
such Designated Subsidiary is outstanding, such Subsidiary's status as a
"Designated Subsidiary" shall terminate upon notice to such effect from the
Agent to the Lenders (which notice the Agent shall give promptly upon its
receipt of a request therefor from the Company). Thereafter, the Lenders shall
be under no further obligation to make any Advance hereunder to such Designated
Subsidiary.
SECTION 9.09. Confidentiality. Neither the Agent nor any Lender
shall disclose any Confidential Information to any other Person without the
consent of the relevant Borrower, other than (a) to the Agent's or such
Lender's officers, directors, employees, agents and advisors and, as
contemplated by Section 9.07(f), to actual or prospective assignees and
participants, and then only on a need-to-know and confidential basis in
connection with the transactions contemplated by this Agreement, (b) pursuant
to subpoena or other legal process or as otherwise required by law (provided
that the Person making such disclosure shall, to the extent permitted by law,
provide the Company with notice thereof), and (c) as requested or required by
any state, federal or foreign authority or examiner regulating banks or banking
having jurisdiction over any Lender.
SECTION 9.10. 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 9.11. 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.
<PAGE>
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits to the exclusive jurisdiction
only 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 only in
any such New York State court or, to the extent permitted by law, in such
federal court. Notwithstanding the foregoing sentence, 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. Each Designated Subsidiary that has
its principal place of business outside of the United States of America hereby
agrees that service of process in any such action or proceeding may be made
upon the Company at its offices specified in Section 9.02 (the "Process Agent")
and each such Designated Subsidiary hereby irrevocably appoints the Process
Agent its authorized agent to accept such service of process, and agrees that
the failure of the Process Agent to give any notice of any such service shall
not impair or affect the validity of such service or of any judgment rendered
in any action or proceeding based thereon. Each Borrower hereby further
irrevocably consents to the service of process in any action or proceeding in
such courts by the mailing thereof by any parties hereto by registered or
certified mail, postage prepaid, to such Borrower at its address set forth in
Section 9.02. Nothing in this Agreement shall affect any right that any party
may otherwise have to serve legal process in any other manner permitted by law.
To the extent that any Designated Subsidiary has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, such
Designated Subsidiary hereby irrevocably waives such immunity in respect of its
obligations under this Agreement.
(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 of the United States of America sitting
in New York City. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
<PAGE>
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.
HERSHEY FOODS CORPORATION
By
Title:
CITIBANK, N.A.,
as Administrative Agent
By
Title:
BA SECURITIES, INC.,
as Co-Syndication Agent
By
Title:
CITICORP SECURITIES, INC.,
as Co-Syndication Agent
By
Title:
<PAGE>
Commitment Initial Lenders
$30,000,000 BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
By
Title:
$10,000,000 CIBC, INC.
By
Title:
$30,000,000 CITIBANK, N.A.
By
Title:
$10,000,000 CREDIT SUISSE
By
Title:
$25,000,000 DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
By
Title:
By
Title:
<PAGE>
$10,000,000 ISTITUTO BANCARIO SAN PAOLO
DI TORINO SPA
By
Title:
$25,000,000 NATIONSBANK, N.A.
By
Title:
$25,000,000 PNC BANK,
NATIONAL ASSOCIATION
By
Title:
$25,000,000 THE FIRST NATIONAL BANK
OF CHICAGO
By
Title:
<PAGE>
$10,000,000 THE FUJI BANK, LIMITED,
NEW YORK BRANCH
By
Title:
$200,000,000 Total of the Commitments
<PAGE>
SCHEDULE I
APPLICABLE LENDING OFFICES
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
- ---------------------- ----------------------- -------------------------
BANK OF AMERICA Bank of America Bank of America
NATIONAL TRUST & National Trust & National Trust &
SAVINGS ASSOCIATION Savings Association Savings Association
1850 Gateway Blvd. 1850 Gateway Blvd.
Concord, CA 94520 Concord, CA 94520
Attn: Lori Bahr Attn: Lori Bahr
Phone: 510-675-7212 Phone: 510-675-7212
Fax: 510-675-7531 Fax: 510-675-7531
CIBC, INC. CIBC, Inc. CIBC, Inc.
2 Paces West 2 Paces West
2727 Paces Ferry Road 2727 Paces Ferry Road
Suite 1200 Suite 1200
Atlanta, GA 30439 Atlanta, GA 30439
Attn: Mary Fann Attn: Mary Fann
Phone: 770-319-4849 Phone: 770-319-4849
Fax: 770-319-4950 Fax: 770-319-4950
CITIBANK, N.A. Citibank, N.A. Citibank, N.A.
One Court Square One Court Square
Seventh Floor Seventh Floor
Long Island City, NY Long Island City, NY
11120 11120
Attn: John Makrinos Attn: John Makrinos
Phone: 718-248-4531 Phone: 718-248-4531
Fax: 718-248-4844 Fax: 718-248-4844
CREDIT SUISSE Credit Suisse Credit Suisse
12 East 49th Street 12 East 49th Street
New York, NY 10017 New York, NY 10017
Attn: Adrian Germann Attn: Adrian Germann
Phone: 212-238-5343 Phone: 212-238-5343
Fax: 212-238-5389 Fax: 212-238-5389
DEUTSCHE BANK AG Deutsche Bank AG Deutsche Bank AG
NEW YORK AND/OR New York and/or New York and/or Cayman
CAYMAN ISLANDS Cayman Islands Islands Branches
BRANCHES Branches 31 West 52nd Street
31 West 52nd Street New York, NY 10019
New York, NY 10019 Attn: Belinda Wheeler
Attn: Belinda Wheeler Phone: 212-474-8372
Phone: 212-474-8372 Fax: 212-474-8212
Fax: 212-474-8212
<PAGE>
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
- ---------------------- ----------------------- -------------------------
ISTITUTO BANCARIO SAN Istituto Bancario San Istituto Bancario San
PAOLO Paolo Paolo
DI TORINO SPA di Torino SpA di Torino SpA
245 Park Avenue 245 Park Avenue
35th Floor 35th Floor
New York, NY 10167 New York, NY 10167
Attn: Luca Sacchi Attn: Luca Sacchi
Phone: 212-692-3130 Phone: 212-692-3130
Fax: 212-599-5303 Fax: 212-599-5303
NATIONSBANK, N.A. NationsBank, N.A. NationsBank, N.A.
100 North Tryon Street 100 North Tryon Street
Eighth Floor Eighth Floor
Charlotte, NC 28255 Charlotte, NC 28255
Attn: Corporate Bank Attn: Corporate Bank
Phone: 704-386-8843 Phone: 704-386-8843
Fax: 704-386-3271 Fax: 704-386-3271
PNC BANK, NATIONAL PNC Bank, National PNC Bank, National
ASSOCIATION Association Association
4242 Carlisle Pike 4242 Carlisle Pike
Camp Hill, PA 17011 Camp Hill, PA 17011
Attn: Robin Zacheri Attn: Robin Zacheri
Phone: 717-730-2368 Phone: 717-730-2368
Fax: 717-730-2387 Fax: 717-730-2387
THE FIRST NATIONAL The First National Bank The First National Bank
BANK OF CHICAGO of Chicago of Chicago
One First National Plaza One First National Plaza
Chicago, IL 60670 Chicago, IL 60670
Attn: Al Mora/Mattie Attn: Mattie Reed
Reed Phone: 312-732-5219
Phone: 312-732- Fax: 312-732-4840
3681/5219
Fax: 312-732-5296/4840
THE FUJI BANK, LIMITED, The Fuji Bank, Limited, The Fuji Bank, Limited,
NEW YORK BRANCH New York Branch New York Branch
2 World Trade Center 2 World Trade Center
New York, NY 10048 New York, NY 10048
Attn: Walter Duffy Attn: Walter Duffy
Phone: 212-898-2099 Phone: 212-898-2099
Fax: 212-488-8216 Fax: 212-488-8216
<PAGE>
SCHEDULE II
EXISTING CREDIT AGREEMENTS
United States Credit Agreements, each dated as of November 13, 1995 and
expiring January 23, 1996, between Hershey Foods Corporation and:
Bank Name
Bank of America National
Trust & Savings Association
Canadian Imperial Bank of Commerce
Citibank, N.A.
Credit Suisse
Deutsche Bank AG New York
and/or Cayman Islands Branches
NationsBank, N.A.
PNC Bank, National Association
The First National Bank of Chicago
The Fuji Bank, Limited, New York Branch
<PAGE>
SCHEDULE 3.01(b)
DISCLOSED LITIGATION
NONE
<PAGE>
SCHEDULE 4.01(c)
REQUIRED AUTHORIZATIONS AND APPROVALS
NONE
<PAGE>
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: December 15, 1995
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Final Maturity Date (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 (as defined in the Credit Agreement referred to
below) made by the Lender to the Borrower pursuant to the 364-Day Credit
Agreement dated as of December 15, 1995 among Hershey Foods Corporation, the
Lender and certain other lenders party thereto, Citibank, N.A., as
administrative agent (the "Agent") for the Lender and such other lenders, and
BA Securities, Inc. and Citicorp Securities, Inc., as co-syndication agents (as
amended or modified from time to time, the "Credit Agreement"; the terms
defined therein being used herein as therein defined) outstanding on the Final
Maturity 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 the Agent's Account 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 and each other "Borrower" thereunder
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 in Sections 6.01 and 2.10,
respectively, 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.
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.
<PAGE>
[NAME OF BORROWER]
By
Title:
<PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount Amount of
of Interest Interest Principal Paid Unpaid Principal Notation
Date Advance Rate Period or Prepaid Balance Made By
- ------------ ------------ ------------- ------------ -------------- ---------------------- --------------------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: _______________
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ 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 December 15, 1995 among Hershey Foods Corporation, the Lender and certain
other lenders party thereto, Citibank, N.A., as administrative agent (the
"Agent") for the Lender and such other lenders, and BA Securities, Inc. and
Citicorp Securities, Inc., as co-syndication agents (as amended or modified
from time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined)), on _______________, 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. for the account of the Lender at the
Agent's Account 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 in Section 6.01 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.
<PAGE>
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
[NAME OF BORROWER]
By
Title:
<PAGE>
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders party
to the Credit Agreement
referred to below
One Court Square
Seventh Floor
Long Island City, New York 11120 [Date]
Attention: Bank Loan Syndications
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the 364-Day Credit
Agreement, dated as of December 15, 1995 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among Hershey Foods Corporation, certain Lenders party
thereto, Citibank, N.A., as administrative agent (the "Agent") for said
Lenders, and BA Securities, Inc. and Citicorp Securities, Inc., as co-
syndication 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
_______________.
(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 Revolving
Credit Borrowing:
(A) the representations and warranties of the Company contained in
Section 4.01 of the Credit Agreement (except the representations set forth
in the last sentence of subsection (e) thereof and in subsection (f)
thereof (other than clause (i)(B) 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<F1> [and the representations and warranties contained in the
Designation Letter of the undersigned is 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
<PAGE>
(B) no event has occurred and is continuing, or would result from
such Proposed Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
Very truly yours,
[NAME OF BORROWER]
By
Title:
<PAGE>
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders party
to the Credit Agreement
referred to below
One Court Square
Seventh Floor
Long Island City, New York 11120 [Date]
Attention: Bank Loan Syndications
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the 364-Day Credit
Agreement, dated as of December 15, 1995 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among Hershey Foods Corporation, certain Lenders party
thereto, Citibank, N.A., as administrative agent (the "Agent") for said
Lenders, and BA Securities, Inc. and Citicorp Securities, Inc., as co-
syndication 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) Principal Amount of Competitive Bid
Borrowing _____________________________
(C) [Maturity Date] [Interest
Period]<F2> _____________________________
(D) Interest Rate Basis (LIBO Rate or
Fixed Rate) _____________________________
(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 of the Company contained in
Section 4.01 (except the representations set forth in the last sentence
of subsection (e) thereof and in subsection (f) thereof (other than clause
<PAGE>
(i)(B) 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<F3> [and the
representations and warranties contained in the Designation Letter of the
undersigned is 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,
[NAME OF BORROWER]
By
Title:
<PAGE>
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
[Date]
Reference is made to the 364-Day Credit Agreement dated as of
December 15, 1995 (as amended or modified from time to time, the "Credit
Agreement") among Hershey Foods Corporation, a Delaware corporation (the
"Company"), the Lenders (as defined in the Credit Agreement), Citibank, N.A.,
as administrative agent for the Lenders (the "Agent"), and BA Securities, Inc.
and Citicorp Securities, Inc., as co-syndication 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, 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 Revolving Credit Advances owing to the Assignee will be as set forth on
Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower or the performance or observance by any
Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iv) attaches each
Revolving Credit Note of a Borrower held by the Assignor and requests that the
Agent exchange each Revolving Credit Note for a new Revolving Credit Note of
such Borrower payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto or new Revolving Credit
Notes of such Borrower payable to the order of the Assignee in an amount equal
to the Commitment assumed by the Assignee pursuant hereto and the Assignor in
an amount equal to the Commitment retained by the Assignor under the Credit
Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.01(e) thereof, the most recent
financial statements referred to in Section 5.01(h) 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;
(iii) agrees that it will, independently and without reliance upon the Agent,
<PAGE>
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;
(iv) confirms that it is an Eligible Assignee; (v) 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; (vi) agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender; and (vii) attaches any U.S.
Internal Revenue Service forms required under Section 2.14 of the Credit
Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance and recording by the Agent
pursuant to Section 9.07 of the Credit Agreement. 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, from and after
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.
<PAGE>
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _______%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of Revolving
Credit Advances assigned: $__________
Principal amount of Revolving Credit Note payable to
Assignee: $__________
Principal amount of Revolving Credit Note payable to
Assignor: $__________
Effective Date<F4>: _______________
[NAME OF ASSIGNOR], as Assignor
By
Title:
Dated: _______________
[NAME OF ASSIGNEE], as Assignee
By
Title:
Dated: _______________
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
<PAGE>
Accepted and Approved this
__________ day of _______________
CITIBANK, N.A., as Agent
By
Title:
Approved this __________ day
of _______________
HERSHEY FOODS CORPORATION
By
Title:
<PAGE>
EXHIBIT D - FORM OF
ASSUMPTION AGREEMENT
Dated: ________
Hershey Foods Corporation
Corporate Headquarters
Hershey, Pennsylvania 17033-0810
Attention: Treasury Department
Citibank, N. A.
as Agent
One Court Square
Seventh Floor
Long Island City, New York 11120
Attention: Bank Loan Syndications
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement, dated as of
December 15, 1995 (as amended or modified from time to time, the "Credit
Agreement"), among Hershey Foods Corporation, a Delaware corporation (the
"Company"), the Lenders (as defined in the Credit Agreement) party thereto,
Citibank, N.A., as administrative agent for such Lenders (the "Agent"), and BA
Securities, Inc. and Citicorp Securities, Inc., as co-syndication agents.
Terms defined in the Credit Agreement are used herein with the same meaning.
The undersigned (the "Assuming Lender") proposes to become an
Assuming Lender pursuant to Section 2.05(c) of the Credit Agreement and, in
that connection, hereby agrees that it shall become a Lender for purposes of
the Credit Agreement on [applicable Commitment Increase Date] and that its
Commitment shall as of such date be $__________.
The undersigned (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(e) thereof, the most recent financial statements referred to in
Section 5.01(h) 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 which 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; (vi) specifies as its Applicable Lending Offices (and address for
notices) the offices set forth beneath its name on the signature pages hereof;
and (vii) attaches the forms prescribed by the Internal Revenue Service of the
United States required under Section 2.14 of the Credit Agreement.
<PAGE>
The effective date for this Assumption Agreement shall be [applicable
Commitment Increase Date.] Upon delivery of this Assumption Agreement to the
Company and the Agent, and satisfaction of all conditions imposed under Section
2.05(c) as of [date specified above], the undersigned shall be a party to the
Credit Agreement and shall have all of 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 assigned hereby
(including, without limitation, all payments of principal, interest and
facility fees) to the Assuming Lender.
This Assumption Agreement may be executed in 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 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 LENDER]
By________________________
Name:
Title:
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office
[Address]
<PAGE>
Acknowledged and Agreed to:
HERSHEY FOODS CORPORATION
By______________________
Name:
Title:
CITIBANK, N.A.,
As Agent
By______________________
Name:
Title:
<PAGE>
EXHIBIT E-1 -
FORM OF EXTENSION REQUEST
[Date]
To the Lenders party to the
Credit Agreement referred
to below
Re: Request for Extension of Termination Date
Ladies and Gentlemen:
Pursuant to that certain 364-Day Credit Agreement, dated as of
December 15, 1995 (as amended or modified from time to time, the "Credit
Agreement," terms defined therein and not otherwise defined herein being used
herein as defined therein), among Hershey Foods Corporation, a Delaware
corporation (the "Company"), the Lenders (as defined in the Credit Agreement)
party thereto, Citibank, N.A., as administrative agent for the Lenders (the
"Agent"), and BA Securities, Inc. and Citicorp Securities, Inc., as co-
syndication agents, the Company hereby requests that the Termination Date be
extended for a period of 364 days from the Termination Date now in effect, as
provided in Section 2.18(a) of the Credit Agreement.
The Company hereby certifies that the following statements are true
on the date hereof, and will be true on the Termination Date now in effect:
(1) the representations and warranties of the Company contained in
Section 4.01 (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f) thereof (other than clause
(i)(B) thereof)) are correct in all material respects on and as of such
Termination Date, before and after giving effect to the requested
extension, as though made on and as of such date;
(2) no event has occurred and is continuing, or would result from
the requested extension that constitutes a Default; and
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 [______________].<F5>
HERSHEY FOODS CORPORATION
By
Title
<PAGE>
EXHIBIT E-2 - FORM OF NOTICE OF EXTENSION
OF TERMINATION DATE
[Date]
Citibank, N.A.,
as Agent
One Court Square
Long Island City, New York 11120
Attention: Bank Loan Syndications
Hershey Foods Corporation
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of
December 15, 1995 (as amended or modified from time to time, the "Credit
Agreement") among Hershey Foods Corporation, a Delaware corporation, the
Lenders (as defined in the Credit Agreement), Citibank, N.A., as administrative
agent for the Lenders (the "Agent"), and BA Securities, Inc. and Citicorp
Securities, Inc., as co-syndication agents. Terms defined in the Credit
Agreement are used herein with the same meaning unless otherwise defined
herein.
Pursuant to Section 2.18(a) 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 its Commitment for a period of 364 days.]
[The Lender named below desires to extend the Termination Date with
respect to its Commitment for a period of 364 days and offers to
increase its Commitment to a maximum aggregate amount of
$__________.]
[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.]
<PAGE>
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 [______________].<F6>
Very truly yours,
[NAME OF LENDER]
By:
Name:
Title:
<PAGE>
EXHIBIT F - FORM OF
DESIGNATION LETTER
[DATE]
To Citibank, N.A.,
as Agent for the Lenders
party to the Credit Agreement
referred to below
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of
December 15, 1995 among Hershey Foods Corporation (the "Company"), the Lenders
named therein, Citibank, N.A., as administrative agent (the"Agent") for said
Lenders, and BA Securities, Inc. and Citicorp Securities, Inc., as co-
syndication agents (the "Credit Agreement"). For convenience of reference,
terms used herein and defined in the Credit Agreement shall have the respective
meanings ascribed to such terms in the Credit Agreement.
Please be advised that the Company hereby designates its undersigned
Subsidiary, ____________ (the "Designated Subsidiary"), as a "Designated
Subsidiary" under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's
agreement to extend credit to it under and on the terms and conditions set
forth in the Credit Agreement, does hereby assume each of the obligations
imposed upon a "Designated Subsidiary" and a "Borrower" under the Credit
Agreement and agrees to be bound by the terms and conditions of the Credit
Agreement. In furtherance of the foregoing, the Designated Subsidiary hereby
represents and warrants to each Lenders as follows:
1. The Designated Subsidiary is a corporation duly incorporated,
validly existing and in good standing under the laws of __________________
and is duly qualified to transact business in all jurisdictions in which
such qualification is required.
2. The execution, delivery and performance by the Designated
Subsidiary of this Designation Letter, the Credit Agreement and the Notes
of such Designated Subsidiary, and the consummation of the transactions
contemplated thereby, are within the Designated Subsidiary's corporate
powers, have been duly authorized by all necessary corporate action, and
do not and will not contravene (i) the charter or by-laws of the
Designated Subsidiary or (ii) law or any contractual restriction binding
on or affecting the Designated Subsidiary.
3. This Designation Agreement and each of the Notes of the
Designated Subsidiary, when delivered, will have been duly executed and
delivered, and this Designation Letter, the Credit Agreement and each of
the Notes of the Designated Subsidiary, when delivered, will constitute
the legal, valid and binding obligations of the Designated Subsidiary
enforceable against the Designated Subsidiary in accordance with their
respective terms except to the extent that such enforcement may be limited
by applicable bankruptcy, insolvency and other similar laws affecting
creditors' rights generally.
<PAGE>
4. There is no pending or threatened action, suit, investigation,
litigation or proceeding including, without limitation, any Environmental
Action, affecting the Designated Subsidiary or any of its Subsidiaries
before any court, governmental agency or arbitrator that (i) could be
reasonably likely to have a Material Adverse Effect, or (ii) purports to
effect the legality, validity or enforceability of this Designation
Letter, the Credit Agreement, any Note of the Designated Subsidiary or the
consummation of the transactions contemplated thereby.
5. No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or administrative or
regulatory body or any other third party are required in connection with
the execution, delivery or performance by the Designated Subsidiary of
this Designation Letter, the Credit Agreement or the Notes of the
Designated Subsidiary except for such authorizations, consents, approvals,
licenses, filings or registrations as have heretofore been made, obtained
or effected and are in full force and effect.
6. The Designated Subsidiary is not, and immediately after the
application by the Designated Subsidiary of the proceeds of each Advance
will not be, an "investment company", or an "affiliated person" of, or
"promotor" or "principal underwriter" for, an "investment company", as
such terms are defined in the Investment Company Act of 1940, as amended.
Very truly yours,
HERSHEY FOODS COMPANY
By_________________________
Title:
<PAGE>
[THE DESIGNATED SUBSIDIARY]
By__________________________
Title:
<PAGE>
EXHIBIT G - FORM OF
ACCEPTANCE BY PROCESS AGENT
[Letterhead of Process Agent]
[Date]
To each of the Lenders party
to the Credit Agreement (as defined
below) and to Citibank, N.A.,
as Agent for said Lenders
[Name of Designated Subsidiary]
Ladies and Gentlemen:
Reference is made to (i) that certain 364-Day Credit Agreement, dated
as of December 15, 1995, among Hershey Foods Corporation (the "Company"), the
Lenders named therein, Citibank, N.A., as administrative agent (the "Agent")
for said Lenders, and BA Securities, Inc. and Citicorp Securities, Inc., as co-
syndication agents (as hereafter amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined), and (ii) to the Designation Letter, dated
_________, pursuant to which __________ has become a Borrower under the Credit
Agreement.
Pursuant to Section 9.12(a) of the Credit Agreement, __________ has
appointed the Company (with an office on the date hereof at Corporate
Headquarters, 100 Crystal A Drive, Hershey, Pennsylvania 17033-0810, United
States) as Process Agent to receive on behalf of ______________ service of
copies of the summons and complaint and any other process which may be served
in any action or proceeding in any New York State or Federal court of the
United States of America sitting in New York City arising out of or relating to
the Credit Agreement.
The Company hereby accepts such appointment as Process Agent and
agrees with each of you that (i) the undersigned will not terminate or abandon
the undersigned agency as such Process Agent without at least six months' prior
notice to the Agent (and hereby acknowledges that the undersigned has been
retained for its services as Process Agent through __________), (ii) the
undersigned will maintain an office in the United States through such date and
will give the Agent prompt notice of any change of address of the undersigned,
(iii) the undersigned will perform its duties as Process Agent to receive on
behalf of ______________ service of copies of the summons and complaint and any
other process which may be served in any action or proceeding in any New York
State or Federal court of the United States of America sitting in New York City
arising out of or relating to the Credit Agreement and (iv) the undersigned
will forward forthwith to ______________ at its address at ________________ or,
if different, its then current address, copies of any summons, complaint and
other process which the undersigned receives in connection with its appointment
as Process Agent.
<PAGE>
This acceptance and agreement shall be binding upon the undersigned
and all successors of the undersigned.
Very truly yours,
[PROCESS AGENT]
By_______________________
<PAGE>
EXHIBIT H-1 - FORM OF
OPINION OF ROBERT M. REESE,
VICE PRESIDENT AND GENERAL COUNSEL
OF THE COMPANY
[Effective Date]
To each of the Lenders party
to the Credit Agreement referred
to below and to Citibank, N.A., as
Agent for such Lenders
Hershey Foods Corporation
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(g)(iv) of
the 364-Day Credit Agreement, dated as of December 15, 1995 (the "Credit
Agreement"), among Hershey Foods Corporation (the "Company"), the Lenders party
thereto, Citibank, N.A., as administrative agent (the "Agent") for said
Lenders, and BA Securities, Inc. and Citicorp Securities, Inc., as co-
syndication agents. Terms defined in the Credit Agreement are used herein as
therein defined.
I am the Vice President and General Counsel of the Company, and I
have acted as counsel for the Company in connection with the preparation,
execution and delivery of the Credit Agreement.
In that connection, I have examined:
(1) the Credit Agreement and the Revolving Credit Notes of the
Company;
(2) the documents furnished by the Company pursuant to Article III
of the Credit Agreement;
(3) the Amended and Restated Certificate of Incorporation of the
Company and all amendments thereto (the "Charter"); and
(4) The by-laws of the Company and all amendments thereto (the
"By-laws").
I have also examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Company, certificates of
public officials and of officers of the Company, and agreements, instruments
and other documents, as I have deemed necessary as a basis for the opinions
expressed below. In making such examinations, I have assumed the genuineness
of all signatures (other than those on behalf of the Company), the authenticity
of all documents submitted to me as originals and the conformity to authentic
original documents of all documents submitted to me as certified, conformed or
photographic copies. As to questions of fact material to such opinions, I
<PAGE>
have, when relevant facts were not independently established by me, relied upon
certificates of the Company or its officers or of public officials and as to
questions of fact and law, on opinions or statements by other lawyers reporting
to me. I have assumed the due execution and delivery, pursuant to due
authorization, of the Credit Agreement by the Initial Lenders and the Agent.
My opinions expressed below are limited to the law of the
Commonwealth of Pennsylvania, and, where applicable, the General Corporation
Law of the State of Delaware and the Federal law of the United States.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, and do not contravene
(i) the Charter or the By-laws or (ii) any law, rule or regulation
applicable to the Company (including, without limitation, Regulation X of
the Board of Governors of the Federal Reserve System) or (iii) any
contractual or legal restriction binding on or affecting the Company or,
to the best of my knowledge, contained in any other similar document,
except where such contravention would not be reasonably likely to have a
Material Adverse Effect. The Credit Agreement and the Revolving Credit
Notes of the Company have been duly executed and delivered on behalf of
the Company.
3. No authorization, 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 Company of the Credit Agreement and the Notes, or for the consummation
of the transactions contemplated thereby, except for the authorizations,
approvals, actions, notices and filings (i) listed on Schedule 4.01(c) to
the Credit Agreement, all of which have been duly obtained, taken, given
or made and are in full force and effect and (ii) where the Company's
failure to receive, take or make such authorization, approval, action,
notice or filing would not have a Material Adverse Effect.
4. There (i) are no pending or, to the best of my knowledge,
threatened actions, investigations, litigations or proceedings against the
Company or any of its Subsidiaries before any court, governmental agency
or arbitrator that (a) would be reasonably likely to have a Material
Adverse Effect (other than the Disclosed Litigation) or (b) purport to
affect the legality, validity, binding effect or enforceability of the
Credit Agreement or any of the Notes or the consummation of the
transactions contemplated thereby, and (ii) there has been no adverse
change in the status, or financial effect on the Company and its
Subsidiaries taken as a whole, of the Disclosed Litigation from that
described on Schedule 3.01(b) thereto.
<PAGE>
This opinion letter may be relied upon by you only in connection with
the transaction being consummated pursuant to the Credit Agreement and may not
be used or relied upon by any other person for any other purpose.
Very truly yours,
<PAGE>
EXHIBIT H-2 - FORM OF OPINION
OF SIMPSON, THACHER & BARTLETT,
SPECIAL NEW YORK COUNSEL
TO THE COMPANY
[Letterhead of Simpson, Thacher & Bartlett]
To each of the Lenders listed on
Schedule I hereto and to Citibank,
N.A., as Agent for such Lenders
Ladies and Gentlemen:
We have acted as special New York counsel to Hershey Foods
Corporation (the "Company") in connection with the preparation, execution and
delivery of the 364-Day Credit Agreement, dated as of December 15, 1995 (the
"Credit Agreement"), among the Company, the Lenders party thereto, Citibank,
N.A., as administrative agent (the "Agent") for said Lenders, and BA
Securities, Inc. and Citicorp Securities, Inc., as co-syndication agents.
This opinion is being delivered pursuant to Section 3.01(g)(v) of the
Five-Year Credit Agreement. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of the Credit
Agreement and the Revolving Credit Notes and the opinion of Robert M. Reese,
Vice President and General Counsel of the Company (the "Company Opinion"). In
addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records of the Company,
certificates of public officials and of officers of the Company and agreements,
instruments and other documents, and have made such other investigations, as we
have deemed relevant and necessary as a basis for the opinions hereinafter set
forth.
For the purposes hereof, we have assumed, with your permission, the
genuineness of all signatures, the legal capacity of natural persons and the
authenticity and regularity of all documents examined by us. As to questions
of fact relevant to this opinion, we have relied upon, and assume the accuracy
of, certificates and oral or written statements and other information of the
Company or of its officers or of public officials and representations and
warranties of the Company set forth in the Credit Agreement and assume
compliance on the part of all parties to the Credit Agreement with their
covenants and agreements contained therein. We have assumed the due execution
and delivery, pursuant to due authorization, of each of the documents referred
to above by all parties thereto.
Based on and subject to the foregoing, and subject to the
qualifications and exceptions set forth herein, we are of the opinion that:
1. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes, and the borrowings by the Company thereunder,
do not violate any present Federal or New York law, rule or regulation known by
us to be applicable to the Company (including, without limitation, Regulation X
of the Board of Governors of the Federal Reserve System).
<PAGE>
2. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body pursuant to any
present Federal or New York law or regulation known by us to be applicable to
the Company is required for the due execution, delivery and performance by the
Company of the Credit Agreement and the Notes, or for the borrowings of the
Company thereunder.
3. The Credit Agreement and the Revolving Credit Notes dated and
delivered as of the date hereof are, and the other Notes when executed and
delivered under the Credit Agreement will be, legal, valid and binding
obligations of the Company enforceable against the Company in accordance with
their respective terms.
Our opinions set forth in paragraph 3 above are subject to the
effects of bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and general principles of
equity (whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
With your permission, we do not express any opinion as to:
(a) the effect of the law of any jurisdiction other than the State
of New York wherein any Lender may be located or wherein enforcement of
the Credit Agreement or the Notes may be sought that limits the rates of
interest legally chargeable or enforceable.
(b) any indemnification obligations of the Company under the Credit
Agreement to the extent such obligations might be deemed to be
inconsistent with public policy.
(c) any provision of the Credit Agreement that purports to establish
an evidentiary standard for determinations by the Lenders or the Agent.
We are members of the Bar of the State of New York and do not purport
to be experts on, or to express any opinions herein concerning, any law other
than the laws of the State of New York, the federal laws of the United States
of America and the General Corporation Law of the State of Delaware. To the
extent that our opinions expressed herein involve conclusions as to matters set
forth in the Company Opinion, we have assumed without independent investigation
the correctness of the matters set forth in the Company Opinion, our opinions
being subject to the assumptions, qualifications and limitations set forth in
the Company Opinion with respect thereto.
This opinion is rendered only to you and is solely for your benefit
in connection with the execution and delivery of the Credit Agreement. This
opinion may not be relied upon by you for any other purpose, or relied upon by
or furnished to any other person, firm, or corporation for any purpose, without
our prior written consent, except that a copy may be furnished to, but not
relied upon by, an Eligible Assignee which is a prospective assignee under the
Credit Agreement.
Very truly yours,
<PAGE>
EXHIBIT I - FORM OF OPINION OF COUNSEL
TO A DESIGNATED SUBSIDIARY
[Date]
To each of the Lenders party
to the Credit Agreement
referred to below,
and to Citibank, N.A., as Agent
for said Lenders
Ladies and Gentlemen:
In my capacity as counsel to _____________________ ("Designated
Subsidiary"), I have reviewed that certain 364-Day Credit Agreement, dated as
of December 15, 1995 (the "Credit Agreement"), among Hershey Foods Corporation
(the "Company"), the Lenders party thereto, Citibank, N.A., as administrative
agent (the "Agent") for said Lenders, and BA Securities, Inc. and Citicorp
Securities, Inc., as co-syndication agents. Terms defined in the Credit
Agreement are used herein as therein defined. In connection therewith, I have
also examined the following documents:
(i) The Designation Letter (as defined in the Credit Agreement)
executed by the Designated Subsidiary.
[such other documents as counsel may wish to refer to]
I have also reviewed such matters of law and examined the original,
certified, conformed or photographic copies of such other documents, records,
agreements and certificates as I have considered relevant hereto. As to
questions of fact material to such opinions, we have, when relevant facts were
not independently established by us, relied upon certificates of the Designated
Subsidiary or of its officers or of public officials and as to questions of
fact and law, on opinions or statements by other lawyers reporting to me. I
have assumed (i) the due execution and delivery, pursuant to due authorization,
of each of the documents referred to above by all parties thereto other than
the Designated Subsidiary, (ii) the authenticity of all such documents
submitted to us as originals and (iii) the conformity to originals of all such
documents submitted to me as certified, conformed or photographic copies.
My opinions expressed below are limited to ________________ and the
State of New York.
Based upon the foregoing, and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Designated Subsidiary (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of
_________________________, (b) is duly qualified in each other
jurisdiction in which it owns or leases property or in which the conduct
of its business requires it to so qualify or be licensed and (c) has all
requisite corporate power and authority to own or lease and operate its
properties and to carry on its business as now conducted and as proposed
to be conducted.
<PAGE>
2. The execution, delivery and performance by the Designated
Subsidiary of its Designation Letter, the Credit Agreement and its
Revolving Credit Notes, and the consummation of the transactions
contemplated thereby, are within the Designated Subsidiary's corporate
powers, have been duly authorized by all necessary corporate action, and
do not contravene (i) any provision of the charter or by-laws or other
constituent documents of the Designated Subsidiary, (ii) any law, rule or
regulation applicable to the Designated Subsidiary or (iii) any
contractual or legal obligation or restriction binding on or affecting the
Designated Subsidiary, except where such contravention would not be
reasonably likely to have a Material Adverse Effect. The Designation
Letter and each Revolving Credit Note of the Designated Subsidiary has
been duly executed and delivered on behalf of the Designated Subsidiary.
3. The Designation Letter of the Designated Subsidiary, the Credit
Agreement and the Revolving Credit Notes of the Designated Subsidiary are,
and each other Note of the Designated Subsidiary when executed and
delivered under the Credit Agreement will be, legal, valid and binding
obligations of the Designated Subsidiary enforceable in accordance with
their respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or moratorium or other
similar laws relating to the enforcement of creditors' rights generally or
by the application of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
and except that I express no opinion as to (i) the subject matter
jurisdiction of the District Courts of the United States of America to
adjudicate any controversy relating to the Credit Agreement, the
Designation Letter of the Designated Subsidiary or the Notes of the
Designated Subsidiary or (ii) the effect of the law of any jurisdiction
(other than the State of New York) wherein any Lender or Applicable
Lending Office may be located or wherein enforcement of the Credit
Agreement, the Designation Letter of the Designated Subsidiary or the
Notes of the Designated Subsidiary may be sought which limits rates of
interest which may be charged or collected by such Lender.
4. There is no pending, or to the best of my knowledge, threatened
action, investigation, litigation or proceeding at law or in equity
against the Designated Subsidiary before any court, governmental agency or
arbitrator that would be reasonably likely to have a Material Adverse
Effect or that purports to affect the legality, validity, binding effect
or enforceability of the Designation Letter of the Designated Subsidiary,
the Credit Agreement or any Revolving Credit Note of the Designated
Subsidiary, or the consummation of the transactions contemplated thereby.
5. No authorization, 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 Designated Subsidiary of its Designation Letter, the Credit Agreement
or the Notes of the Designated Subsidiary except for such authorizations,
consents, approvals, actions, notices or filings as have heretofore been
made, obtained or affected and are in full force and effect.
<PAGE>
This opinion letter may be relied upon by you only in connection with
the transaction being consummated pursuant to the Credit Agreement and may not
be used or relied upon by any other person for any other purpose.
Very truly yours,
<PAGE>
COPY AS EXECUTED
U.S. $200,000,000
364-DAY CREDIT AGREEMENT
Dated as of December 15, 1995
Among
HERSHEY FOODS CORPORATION,
as Borrower,
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
CITIBANK, N.A.,
as Administrative Agent,
and
BA SECURITIES, INC. and
CITICORP SECURITIES, INC.,
as Co-Syndication Agents
<PAGE>
TABLE OF CONTENTS
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 . . . . . . . . 12
SECTION 2.03. The Competitive Bid Advances . . . . . . . . . . . . 13
SECTION 2.04. Fees . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.05. Termination, Reduction or Increase of the
Commitments . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.06. Repayment of Revolving Credit Advances . . . . . . . 20
SECTION 2.07. Interest on Revolving Credit Advances . . . . . . . 20
SECTION 2.08. Interest Rate Determination . . . . . . . . . . . . 21
SECTION 2.09. Optional Conversion of Revolving Credit Advances . . 23
SECTION 2.10. Optional Prepayments of Revolving Credit Advances . 23
SECTION 2.11. Increased Costs . . . . . . . . . . . . . . . . . . 23
SECTION 2.12. Illegality . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.13. Payments and Computations . . . . . . . . . . . . . 25
SECTION 2.14. Taxes . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.15. Sharing of Payments, Etc. . . . . . . . . . . . . . 28
SECTION 2.16. Use of Proceeds . . . . . . . . . . . . . . . . . . 28
SECTION 2.17. Mandatory Assignment by a Lender; Mitigation . . . . 28
SECTION 2.18. Extension of the Termination Date and the Final
Maturity Date . . . . . . . . . . . . . . . . . . . 29
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections
2.01 and 2.03 . . . . . . . . . . . . . . . . . . . 31
SECTION 3.02. Initial Borrowing of Each Designated Subsidiary . . 32
SECTION 3.03. Conditions Precedent to Each Revolving Credit
Borrowing . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.04. Conditions Precedent to Each Competitive Bid
Borrowing . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.05. Conditions Precedent to Extension of the Final
Maturity Date . . . . . . . . . . . . . . . . . . . 34
SECTION 3.06. Determinations Under Section 3.01 . . . . . . . . . 35
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company . . . 35
<PAGE>
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. Affirmative Covenants . . . . . . . . . . . . . . . 37
SECTION 5.02. Negative Covenants . . . . . . . . . . . . . . . . . 40
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . 42
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.02. Guaranty Absolute . . . . . . . . . . . . . . . . . 44
SECTION 7.03. Waivers and Acknowledgments . . . . . . . . . . . . 45
SECTION 7.04. Subrogation . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.05. Continuing Guaranty; Assignments under the Credit
Agreement . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.06. No Stay . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action . . . . . . . . . . . . . . 47
SECTION 8.02. Agent's Reliance, Etc. . . . . . . . . . . . . . . 47
SECTION 8.03. Citibank and Affiliates . . . . . . . . . . . . . . 47
SECTION 8.04. Lender Credit Decision . . . . . . . . . . . . . . . 48
SECTION 8.05. Indemnification . . . . . . . . . . . . . . . . . . 48
SECTION 8.06. Successor Agent . . . . . . . . . . . . . . . . . . 48
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. . . . . . . . . . . . . . . . . . 49
SECTION 9.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . 49
SECTION 9.03. No Waiver; Remedies . . . . . . . . . . . . . . . . 49
SECTION 9.04. Costs and Expenses . . . . . . . . . . . . . . . . . 50
SECTION 9.05. Right of Set-off . . . . . . . . . . . . . . . . . . 51
SECTION 9.06. Binding Effect; Termination of Existing Credit
Agreements . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.07. Assignments, Designations and Participations . . . . 52
SECTION 9.08. Designated Subsidiaries . . . . . . . . . . . . . . 55
SECTION 9.09. Confidentiality . . . . . . . . . . . . . . . . . . 55
SECTION 9.10. Governing Law . . . . . . . . . . . . . . . . . . . 55
SECTION 9.11. Execution in Counterparts . . . . . . . . . . . . . 55
SECTION 9.12. Jurisdiction, Etc. . . . . . . . . . . . . . . . . 56
<PAGE>
SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule II - Existing Credit Agreements
Schedule 3.01(b) - Disclosed Litigation
Schedule 4.01(c) - Required Authorizations and Approvals
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-1 - Form of Extension Request
Exhibit E-2 - Form of Notice of Extension of the Commitment
Exhibit F - Form of Designation Letter
Exhibit G - Form of Acceptance by Process Agent
Exhibit H-1 - Form of Opinion of Robert M. Reese, Vice President and
General Counsel of the Company
Exhibit H-2 - Form of Opinion of Simpson, Thacher & Bartlett, Special
New York Counsel to the Company
Exhibit I - Form of Opinion of Counsel to a Designated Subsidiary
<PAGE>
____________________
[FN]
<F1> This language should be added only if the Borrower is a Designated
Subsidiary.
<F2> Which shall be subject to the definition of "Interest Period" and end on
or before the Final Maturity Date.
<F3> This language should be added only if the Borrower is a Designated
Subsidiary.
<F4> This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
<F5> This date shall be no later than 30 days prior to the Termination Date
then in effect.
<F6> This date shall be no later than 25 days prior to the Termination Date
then in effect.
FIVE-YEAR CREDIT AGREEMENT
Dated as of December 15, 1995
HERSHEY FOODS CORPORATION, a Delaware corporation (the "Company"),
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),
and BA SECURITIES, INC. and CITICORP SECURITIES, INC., as co-syndication
agents, 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 399 Park Avenue, New York,
New York 10043, Account No. 36852248, Attention: Bank Loan Syndications.
"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, 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:
<PAGE>
Public Debt Rating Applicable
S&P/Moody's Margin
------------------- --------------
Level 1 .14%
A+/A1 or above
Level 2
Lower than A+/A1 but at least .17%
A-/A3
Level 3
Lower than A-/A3 but at least .20%
BBB/Baa2
Level 4
Lower than BBB/Baa2 but at .25%
least BBB-/Baa3
Level 5
Lower than BBB-/Baa3 .30%
"Applicable Percentage" means, 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
S&P/Moody's Percentage
-------------------------------- ---------------
Level 1
A+/A1 or above .06%
Level 2
Lower than A+/A1 but at least .08%
A-/A3
Level 3
Lower than A-/A3 .10%
but at least BBB/Baa2
Level 4
Lower than BBB/Baa2 but at .125%
least BBB-/Baa3
Level 5
Lower than BBB-/Baa3 .20%
"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" means an Eligible Assignee not previously a Lender
that becomes a Lender hereunder pursuant to Section 2.05(c).
"Assumption Agreement" means an agreement in substantially the form
of Exhibit D hereto by which an Eligible Assignee agrees to become a
<PAGE>
Lender hereunder pursuant to Section 2.05(c), agreeing to be bound by all
obligations of a Lender hereunder.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(i).
"Borrower" means the Company or any Designated Subsidiary, as the
context requires.
"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 Advance or LIBO
Rate Advance, on which dealings are carried on in the London interbank
market.
"Change of Control" means a change in the voting power of Hershey
Trust Company, as trustee for the Milton Hershey School (the "Hershey
Trust"), such that either (A) (i) it no longer controls a majority of the
voting power of the Company's Voting Stock and (ii) at the same time,
another Person or group of Persons within the meaning of Section 13 or 14
of the Securities Exchange Act of 1934, as amended, controls a percentage
of the voting power of the Company's Voting Stock in excess of the
percentage controlled by the Hershey Trust or (B) it no longer controls at
least 30% of the voting power of the Company's Voting Stock.
"Commitment" has the meaning specified in Section 2.01.
"Commitment Increase" has the meaning specified in Section
2.05(c)(i).
"Commitment Increase Date" has the meaning specified in Section
2.05(c)(i).
"Competitive Bid Advance" means an advance by a Lender to any
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 under the competitive bidding procedure described in
Section 2.03.
<PAGE>
"Competitive Bid Note" means a promissory note of any Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of such Borrower to such
Lender resulting from a Competitive Bid Advance made by such Lender to
such Borrower.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means any non-public or proprietary
information disclosed by any Borrower to the Agent or any Lender that such
Borrower indicates is to be treated confidentially, but does not include
any such information that is or becomes generally available to the public
or that is or becomes available to the Agent or such Lender on a non-
confidential basis from a source other than such Borrower, which source is
not, to the best knowledge of the Agent or such Lender, subject to a
confidentiality agreement with such Borrower.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated Interest Expense" means, for any period with respect to
the Company and its Subsidiaries, net interest expense plus capitalized
interest for such period, in each case determined on a Consolidated basis
in accordance with GAAP.
"Consolidated Net Interest Expense" means, for any period with
respect to the Company and its Subsidiaries, interest expense minus
capitalized interest and interest income for such period, in each
case determined on a Consolidated basis in accordance with GAAP.
"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" means, with respect to any Person: (a) indebtedness for
borrowed money, (b) obligations evidenced by bonds, debentures, notes
or other similar instruments, (c) obligations to pay the deferred
purchase price of property or services (other than trade payables
incurred in the ordinary course of business), (d) obligations as
lessee under leases which shall have been or should be, in accordance
with GAAP, recorded as capital leases, (e) all obligations,
contingent or otherwise, of such Person in respect of acceptances,
letters of credit (other than trade letters of credit) or similar
extensions of credit and (f) obligations under direct or indirect
guaranties in respect of, and obligations, contingent or otherwise,
to purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of any other
Person of the kinds referred to in clauses (a) through (d) above.
"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.
"Designated Subsidiary" means any corporate Subsidiary of the Company
designated for borrowing privileges under this Agreement pursuant to
Section 9.08.
<PAGE>
"Designation Letter" means, with respect to any Designated
Subsidiary, a letter in the form of Exhibit E hereto signed by such
Designated Subsidiary and the Company.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Domestic Lending Office" means, with respect to any Initial Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or, with respect to any other
Lender, the office of such Lender specified as its "Domestic Lending
Office" in the Assumption Agreement or in the Assignment and Acceptance
pursuant to which it became a Lender, or such other office of such Lender
as such Lender may from time to time specify to the Company and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) a Lender or any Affiliate of a Lender
which is principally engaged in the commercial banking business, and (b)
any bank or other financial institution, or any other Person, that has
been approved in writing by the Company and the Agent as an Eligible
Assignee for purposes of this Agreement; provided, however, that neither
the Company's nor the Agent's approval shall be unreasonably withheld; and
provided, further, however, that the Company may withhold its approval if
the Company reasonably believes that an assignment to such Eligible
Assignee pursuant to Section 9.07 will result in the incurrence of
increased costs payable by any Borrower pursuant to Section 2.11 or 2.14.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice,
investigation, proceeding, consent order or consent agreement
relating to any Environmental Law, Environmental Permit or Hazardous
Materials or arising from alleged injury to health, safety or the
environment.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, 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 Company's controlled group, or under common
control with the Company, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
<PAGE>
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (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(a)(2) 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 Company or any ERISA affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by the Company 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, such 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 Initial
Lender, the office of such Lender specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or, with respect to any
other Lender, the office of such Lender specified as its "Eurodollar
Lending Office" in the Assumption Agreement or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the Company and the
Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Revolving Credit Borrowing, an
interest rate per annum equal to the average (rounded to the nearest whole
multiple of 1/16 of 1% per annum, or if there is no nearest whole multiple
of 1/16 of 1% per annum, then 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 Eurodollar Rate Advance
comprising part of such Revolving Credit Borrowing to be outstanding
during such Interest Period and for a period equal to such Interest
Period. The Eurodollar Rate for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Revolving Credit Borrowing shall
be determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two Business Days
<PAGE>
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" with respect to any Lender for
any Interest Period for all Eurodollar Rate Advances or LIBO Rate Advances
comprising part of the same Borrowing means the reserve percentage
applicable during such Interest Period (or, if more than one such
percentage shall be so applicable, the daily average of such percentages
for those days in such Interest Period during which any such percentage
shall be so applicable) under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) actually
imposed on such Lender 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.
"Excluded Taxes" has the meaning specified in Section 2.14(a).
"Existing Credit Agreements" means the credit agreements and
confirmed lines of credit listed on Schedule II hereto.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing selected
by it.
"Fixed Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Guaranty" means the guaranty made by the Company to the Lenders and
the Agent pursuant to Article VII.
"Guaranteed Obligations" has the meaning specified in Section
7.01(a).
"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.
<PAGE>
"Increasing Lender" has the meaning specified in Section 2.05(c)(i).
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"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 that requested such Borrowing 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 such
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, as the applicable
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:
(i) such Borrower may not select any Interest Period that ends
after the Termination 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 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 2.05(c) and each Eligible
Assignee that shall become a party hereto pursuant to Section 9.07.
"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 average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, or if there is no nearest whole multiple
<PAGE>
of 1/16 of 1% per annum, then 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 such Reference Bank's
respective ratable share 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. 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 Advances" has the meaning specified in Section 2.03(a)(i).
"Lien" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
charge or encumbrance.
"Majority Lenders" means at any time Lenders owed at least 51% 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 at least 51% of the Commitments.
"Material Adverse Change" means any material adverse change in the
business, financial condition, operations, performance or principal
manufacturing properties of the Company and its Subsidiaries taken as a
whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, financial condition, operations, performance or principal
manufacturing properties of the Company and its Subsidiaries taken as a
whole, (b) the rights and remedies of the Agent or the Lenders under this
Agreement or any Note or (c) the ability of any Borrower to perform its
obligations (other than payment obligations) under this Agreement or any
Note.
"Material Subsidiary" means, at any date of determination, a
Subsidiary of the Company that, either individually or together with
its Subsidiaries, taken as a whole, has total assets exceeding
$300,000,000 on such date.
"Moody's" means Moody's Investors Service, Inc. or its successor.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company 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
Company or any ERISA Affiliate and at least one Person other than the
Company and the ERISA Affiliates or (b) was so maintained and in respect
<PAGE>
of which the Company 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.
"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).
"Other Taxes" has the meaning specified in Section 2.14(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under
Section 5.01(b) hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other similar
Liens arising in the ordinary course of business; (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; (e)
Liens arising under leases or subleases granted to others that would not
be reasonably likely to have a Material Adverse Effect on the Company and
its Subsidiaries taken as a whole; (f) Liens granted in connection with
any interest rate or foreign currency options, commodity contracts,
futures or similar agreements entered into by the Company or any of its
Subsidiaries in the ordinary course of business; and (g) Liens granted in
connection with corporate-owned life insurance programs of the Company or
any of its Subsidiaries.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
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.
"Pre-Tax Income from Continuing Operations" means, for any period
with respect to the Company and its Subsidiaries, net income (or net loss)
from operations (determined without giving effect to extraordinary or non-
recurring gains or losses) plus the sum of (a) Consolidated Net Interest
Expense, (b) income tax expense and (c) non-recurring non-cash charges
(including the cumulative effect of accounting changes, restructuring
charges and gains or losses from the sale of businesses), in each case
determined on a Consolidated basis in accordance with GAAP; provided,
however, that the LIFO adjustment to the determination of Pre-Tax Income
from Continuing Operations for purposes of the quarterly financial
statements and the compliance certificate delivered pursuant to Section
5.01(h)(i) shall be made in accordance with the Company's best estimation.
<PAGE>
"Process Agent" has the meaning specified in Section 9.12(a).
"Public Debt Rating" means, as of any date, the lowest rating that
has been most recently and officially 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 Company. 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 and the Applicable Percentage shall be
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
and the Applicable Percentage will be set in accordance with Level 5 under
the definition of "Applicable Margin" or "Applicable Percentage", as the
case may be; (c) if the ratings established by S&P and Moody's shall fall
within different levels, the Applicable Margin and the Applicable
Percentage shall be based upon the lower rating; (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 (regardless of the effective date
thereof); 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.
"Reference Banks" means Citibank, Bank of America National Trust &
Savings Association and Deutsche Bank AG New York and/or Cayman Islands
Branches, or, in the event that less than two of such Lenders remain
Lenders hereunder at any time, any other commercial bank designated by the
Company and approved by the Majority Lenders as constituting a "Reference
Bank" hereunder.
"Register" has the meaning specified in Section 9.07(d).
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing by such Borrower 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 any Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of such Borrower
to such Lender resulting from the Revolving Credit Advances made by such
Lender to such Borrower.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw-
Hill, Inc., or its successor.
"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
Company or any ERISA Affiliate and no Person other than the Company and
the ERISA Affiliates or (b) was so maintained and in respect of which the
Company or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
<PAGE>
"Subsidiary" of any Person means any corporation, partnership,
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 or partnership
(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.
"Taxes" has the meaning specified in Section 2.14(a).
"Termination Date" means the earlier of December 15, 2000 and the
date of termination in whole of the Commitments pursuant to
Section 2.05(a), 2.05(b) or 6.01.
"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.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
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 any Borrower from time to time on any Business Day during
the period from the Effective Date until the Termination Date in an aggregate
amount for all Borrowers not to exceed at any time outstanding (a) the amount
set forth opposite such Lender's name on the signature pages hereof or (b) if
such Lender has become a Lender hereunder pursuant to an Assumption Agreement
or has increased its Commitment pursuant to Section 2.05(c), or 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 9.07(d), in
each case as such amount may be reduced pursuant to Section 2.05(a) or (b)
(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
<PAGE>
of the aggregate amount of the Competitive Bid Advances then outstanding and
such deemed use of the aggregate amount of the Commitments shall be allocated
among the Lenders ratably according to their respective Commitments (such
deemed use of the aggregate amount of the Commitments being a "Competitive Bid
Reduction"). Each Revolving Credit Borrowing shall be in an aggregate amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if
less, an aggregate amount equal to the amount by which the aggregate amount of
a proposed Competitive Bid Borrowing requested by any Borrower exceeds the
aggregate amount of Competitive Bid Advances offered to be made by the Lenders
and accepted by such Borrower in respect of such Competitive Bid Borrowing, if
such Competitive Bid Borrowing is made on the same date and by the same
Borrower as such Revolving Credit Borrowing) 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, any 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
(i) 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 (ii) 11:00 A.M. (New York
City time) on the day of the proposed Revolving Credit Borrowing in the case of
a Revolving Credit Borrowing consisting of Base Rate Advances, by any 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 (w) date of such Revolving
Credit Borrowing, (x) Type of Advances comprising such Revolving Credit
Borrowing, (y) aggregate amount of such Revolving Credit Borrowing, and (z) in
the case of a Revolving Credit Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Revolving Credit Advance. Each
Lender shall, before (i) in the case of a Eurodollar Rate Advance, 11:00 A.M.
(New York City time) or (ii) in the case of a Base Rate Advance, 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 conditions set forth in Article III, the Agent will make such
funds available to the Borrower requesting the Revolving Credit Borrowing at
the Agent's address referred to in Section 9.02.
(b) Anything herein to the contrary notwithstanding, a Borrower may
not select Eurodollar Rate Advances for any Revolving Credit Borrowing if the
obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12.
(c) Each Notice of Revolving Credit Borrowing of any Borrower shall
be irrevocable and binding on such Borrower. In the case of any Revolving
Credit Borrowing that the related Notice of Revolving Credit Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower
requesting such Revolving Credit Borrowing shall indemnify each Lender, after
receipt of a written request by such Lender setting forth in reasonable detail
the basis for such request, against any loss, cost or expense actually incurred
by such Lender as a result of any failure by such Borrower to fulfill on or
before the date specified in such Notice of Revolving Credit Borrowing for such
<PAGE>
Revolving Credit Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (other than loss of anticipated
profits), cost or expense actually 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 comprised of Eurodollar Rate
Advances or prior to the time of the proposed disbursement of any Revolving
Credit Borrowing comprised of Base Rate Advances 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 requesting such
Revolving Credit Borrowing on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available
to the Agent, such Lender and such Borrower severally agree to repay to the
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to such
Borrower until the date such amount is repaid to the Agent, at (i) in the case
of such 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 Revolving Credit 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 Revolving Credit Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Revolving
Credit Advance to be made by such other Lender on the date of any Revolving
Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that any 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) A 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 (u) date of such proposed Competitive Bid Borrowing,
(v) aggregate amount of such proposed Competitive Bid Borrowing, (w)
interest rate basis (LIBO Rate or fixed rate) to be offered by the
Lenders, (x) in the case of a Competitive Bid Borrowing consisting of LIBO
Rate Advances, Interest Period of each Competitive Bid Advance to be made
as part of such Competitive Bid Borrowing, or in the case of a Competitive
<PAGE>
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 7 days after the date of such Competitive Bid Borrowing or
later than the earlier of (I) 180 days after the date of such Competitive
Bid Borrowing and (II) 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 A.M. (New York City
time) (A) at least one Business Day prior to the date of the proposed
Competitive Bid Borrowing, if such 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 four Business Days prior to the date of the
proposed Competitive Bid Borrowing, if such Borrower shall instead specify
in the Notice of Competitive Bid Borrowing that the rates of interest to
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 of a
Borrower shall be irrevocable and binding on such Borrower. Any Notice of
Competitive Bid Borrowing by a Designated Subsidiary shall be given to the
Agent in accordance with the preceding sentence through the Company on
behalf of such Designated Subsidiary. The Agent shall in turn promptly
notify each Lender of each request for a Competitive Bid Borrowing
received by it from a 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 proposing the 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 such 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 such 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.
<PAGE>
(iii) The Borrower proposing the 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
such 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; provided, however, that
such Borrower shall not accept any offer in excess of the requested
bid amount for any maturity. Such 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.
(iv) If the Borrower proposing the Competitive Bid Advance 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 proposing the Competitive Bid Advance 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 such 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
<PAGE>
after receipt by the Agent of such funds, the Agent will make such funds
available to such Borrower at the Agent's address referred to in
Section 9.02. 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 proposing the Competitive Bid Advance 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 such Borrower. Such Borrower shall
indemnify each Lender, after receipt of a written request by such Lender
setting forth in reasonable detail the basis for such request, against any
loss, cost or expense actually incurred by such Lender as a result of any
failure by such Borrower 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 (other than loss of anticipated profits),
cost or expense actually 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 that has
borrowed through such Competitive Bid Borrowing 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, each 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.
(d) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall repay to the Agent for the account of each Lender that has made
a Competitive Bid Advance, on the maturity date of such Competitive Bid Advance
(such maturity date being that specified by such 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. A Borrower shall have no right to
prepay any principal amount of any Competitive Bid Advance without the consent
of the Lender that has made such Competitive Bid Advance or as is specified in
the Notice of Competitive Bid Borrowing.
(e) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall pay interest on the unpaid principal amount of each Competitive
Bid Advance from the date of such Competitive Bid Advance comprising such
Competitive Bid Borrowing 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 such Borrower for
such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
<PAGE>
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 under Section 6.01(a), each
Borrower that has borrowed though a Competitive Bid Borrowing shall pay
interest on the amount of unpaid principal of and interest on each Competitive
Bid Advance comprising such Competitive Bid Borrowing that is 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 any Borrower resulting from each Competitive
Bid Advance made to such Borrower as part of a Competitive Bid Borrowing shall
be evidenced by a separate Competitive Bid Note of such Borrower payable to the
order of the Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Company agrees to pay
to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment from the date hereof in the case of each
Initial Lender and from the effective date specified in the Assumption
Agreement or the Assignment and Acceptance, as the case may be, 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 February, May,
August and November, commencing February 29, 1996, and on the Termination Date.
(b) Agent's Fees. The Company shall pay to the Agent for its own
account such fees as may from time to time be agreed in writing between the
Company and the Agent.
SECTION 2.05. Termination, Reduction or Increase of the Commitments.
(a) Termination or Ratable Reduction by the Company. The Company shall have
the right, upon at least three Business Days' notice to the Agent, to terminate
in whole or reduce ratably in part the unused portions of the respective
Commitments of the Lenders, provided that each partial reduction shall be in
the aggregate amount of $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. The aggregate amount of the Commitments, once reduced or
terminated as provided in this Section 2.05(a), may not be reinstated, except
as provided in Section 2.05(c) below.
(b) Termination by the Majority Lenders upon Change of Control. In
the event that a Change of Control occurs, (i) the Agent shall at the request,
or may with the consent, of the Majority Lenders, by notice to the Company
given not later than 10 Business Days after receipt by the Lenders and the
Agent of notice from the Company of such Change of Control pursuant to Section
5.01(h)(iv), declare the Commitments (determined without giving effect to any
Competitive Bid Reduction) to be terminated in whole, effective as of the date
set forth in such notice, provided, however, that such date shall be no earlier
than 10 Business Days after the Company's receipt of such notice of termination
and (ii) each Borrower's right to make a Borrowing under this Agreement shall
thereupon be suspended and shall remain suspended until 10 Business Days after
receipt by the Lenders and the Agent of notice from the Company of such Change
of Control pursuant to Section 5.01(h)(iv) unless the Majority Lenders shall
<PAGE>
have exercised their right to terminate the Commitments as provided in clause
(i) of this Section 2.05(b), in which case each Borrower's right to make a
Borrowing under this Agreement shall remain suspended until the effective date
of such termination. A notice of termination pursuant to this Section 2.05(b)
shall have the effect of accelerating the outstanding Advances of the Lenders
and the Notes of the Lenders and each Borrower shall, on or prior to the
effective date of the termination of the Commitments, prepay or cause to be
prepaid the outstanding principal amount of all Advances owing by any such
Borrower to the Lenders, together with accrued interest thereon to the date of
such payment, any facility fees or other fees payable to the Lenders pursuant
to the provisions of Section 2.04, and all other amounts payable to the Lenders
under this Agreement (including, but not limited to, any increased costs or
other amounts owing under Section 2.11 and any indemnification for Taxes under
Section 2.14). Upon such prepayment and the termination of the Commitments in
accordance with this Section 2.05(b), the obligations of the Lenders under this
Agreement shall, by the provisions hereof, be released and discharged.
(c) Increase by the Company. (i) The Company may at any time, by
notice to the Agent, propose that the aggregate amount of the Commitments be
increased (each such proposed increase being a "Commitment Increase") by up to
$750,000,000 in excess of the aggregate of the Commitments as of the Effective
Date, effective as at a date (the "Commitment Increase Date") that shall be
specified in such notice and that shall be (A) prior to the Termination Date
and (B) at least 15 Business Days after the date of such notice; provided,
however, that (w) the Company may not propose more than two Commitment
Increases during any calendar year, (x) the minimum proposed Commitment
Increase for each Commitment Increase Date shall be $50,000,000, (y) in no
event shall the aggregate amount of the Commitments at any time exceed
$1,150,000,000 and (z) no Default shall have occurred and be continuing on such
Commitment Increase Date or shall result from such Commitment Increase. The
Agent shall notify the Lenders and any Eligible Assignees requested by the
Company and acceptable to the Agent as potential Assuming Lenders hereunder of
the proposed Commitment Increase promptly upon the Agent's receipt of any such
notice. It shall be in each Lender's sole discretion whether to increase its
Commitment hereunder in connection with the proposed Commitment Increase. No
later than 10 Business Days after its receipt of the Company's notice, each
Lender that is willing to increase its Commitment hereunder (each such Lender
being an "Increasing Lender") shall deliver to the Agent a notice in which such
Lender shall set forth the maximum increase in its Commitment to which such
Lender is willing to agree, and the Agent shall promptly provide to the Company
a copy of such Increasing Lender's notice. The Agent shall cooperate with the
Company in discussions with the Lenders and Eligible Assignees with a view to
arranging the proposed Commitment Increase through the increase of the
Commitments of one or more of the Lenders and/or the addition of one or more
Eligible Assignees acceptable to the Company and the Agent as Assuming Lenders
and as parties to this Agreement; provided, however, that the minimum
Commitment of each such Assuming Lender that becomes a party to this Agreement
pursuant to this Section 2.05(c) shall be $10,000,000; and provided, further,
that any allocations of Commitments shall be determined by the Company.
(ii) If agreement is reached prior to the relevant Commitment
Increase Date with any Increasing Lenders and Assuming Lenders as to a
Commitment Increase (the amount of which may be less than (subject to the
limitation set forth in clause (i)(x) of this Section 2.05(c)) but not greater
than that amount specified in the applicable notice from the Company), the
Company shall deliver, no later than one Business Day prior to the Commitment
Increase Date, a notice thereof in reasonable detail to the Agent (and the
<PAGE>
Agent shall give notice thereof to the Lenders, including any Assuming
Lenders). The Assuming Lenders, if any, shall become Lenders hereunder as of
the Commitment Increase Date and the Commitments of any Increasing Lenders and
such Assuming Lenders shall become or be, as the case may be, as of the
Commitment Increase Date, the amounts specified in the notice delivered by the
Company to the Agent; provided, however, that:
(x) the Agent shall have received on or prior to 9:00 A.M. (New York
City time) on the Commitment Increase Date (A) a duly executed Revolving
Credit Note from each Borrower, dated as of the Commitment Increase Date
and in substantially the form of Exhibit A-1 hereto for each Assuming
Lender, and dated the date to which interest on the existing Revolving
Credit Note of such Borrower shall have been paid and in substantially the
form of Exhibit A-1 hereto for each Increasing Lender, in each case in an
amount equal to the Commitment of each such Assuming Lender and each such
Increasing Lender after giving effect to such Commitment Increase, (B) a
certificate of a duly authorized officer of the Company stating that no
event has occurred and is continuing, or would result from such Commitment
Increase, that constitutes a Default, and that each of the other
applicable conditions to such Commitment Increase set forth in this
Section 2.05(c) to be fulfilled by the Company has been satisfied and (C)
an opinion of counsel for the Company in substantially the form of Exhibit
G-1 hereto, dated the Commitment Increase Date (with copies for each
Lender, including each Assuming Lender);
(y) with respect to each Assuming Lender, the Agent shall have
received, on or prior to 9:00 A.M. (New York City time) on the Commitment
Increase Date, an appropriate Assumption Agreement in substantially the
form of Exhibit D hereto, duly executed by such Assuming Lender and the
Company, and acknowledged by the Agent; and
(z) each Increasing Lender shall have delivered to the Agent, on or
prior to 9:00 A.M. (New York City time) on the Commitment Increase Date,
(A) its existing Revolving Credit Note or Notes and (B) confirmation in
writing satisfactory to the Agent as to its increased Commitment, with a
copy of such confirmation to the Company.
(iii) Upon its receipt of confirmation from a Lender that it is
increasing its Commitment hereunder, together with the appropriate Revolving
Credit Note or Notes, certificate and opinion referred to in clause (ii)(x)
above, the Agent shall (A) record the information contained therein in the
Register and (B) give prompt notice thereof to the Company. Upon its receipt
of an Assumption Agreement executed by an Assuming Lender representing that it
is an Eligible Assignee, together with the appropriate Revolving Credit Note or
Notes, certificate and opinion referred to in clause (ii)(x) above, the Agent
shall, if such Assumption Agreement has been completed and is in substantially
the form of Exhibit D hereto, (x) accept such Assumption Agreement, (y) record
the information contained therein in the Register and (z) give prompt notice
thereof to the Company.
(iv) In the event that the Agent shall not have received notice from
the Company as to such agreement on or prior to the Commitment Increase Date or
the Company shall, by notice to the Agent prior to the Commitment Increase
Date, withdraw its proposal for a Commitment Increase or any of the actions
provided for above in clauses (ii)(x) through (ii)(z) shall not have occurred
by 9:00 A.M. (New York City time) on the Commitment Increase Date, such
proposal by the Company shall be deemed not to have been made. In such event,
<PAGE>
any actions theretofore taken under clauses (ii)(x) through (ii)(z) above shall
be deemed to be of no effect and all the rights and obligations of the parties
shall continue as if no such proposal had been made.
(v) In the event that the Agent shall have received notice from the
Company as to such agreement on or prior to the Commitment Increase Date and
each of the actions provided for in clauses (ii)(x) through (ii)(z) above shall
have occurred by 9:00 A.M. (New York City time) on the Commitment Increase
Date, the Agent shall notify the Lenders (including any Assuming Lenders) of
the occurrence of the Commitment Increase Date promptly and in any event by
10:00 A.M. (New York City time) on such date by telecopier, telex or cable.
Each Increasing Lender and each Assuming Lender shall, before 11:00 A.M. (New
York City time) on the Commitment Increase Date, make available for the account
of its Applicable Lending Office to the Agent at the Agent's Account, in same
day funds, in the case of such Assuming Lender, an amount equal to such
Assuming Lender's ratable portion of the Revolving Credit Borrowings then
outstanding (calculated based on its Commitment as a percentage of the
aggregate Commitments outstanding after giving effect to the relevant
Commitment Increase) and, in the case of such Increasing Lender, an amount
equal to the excess of (i) such Increasing Lender's ratable portion of the
Revolving Credit Borrowings then outstanding (calculated based on its
Commitment as a percentage of the aggregate Commitments outstanding after
giving effect to the relevant Commitment Increase) over (ii) such Increasing
Lender's ratable portion of the Revolving Credit Borrowings then outstanding
(calculated based on its Commitment (without giving effect to the relevant
Commitment Increase) as a percentage of the aggregate Commitments without
giving effect to the relevant Commitment Increase). After the Agent's receipt
of such funds from each such Increasing Lender and each such Assuming Lender,
the Agent will promptly thereafter cause to be distributed like funds to the
other Lenders for the account of their respective Applicable Lending Offices in
an amount to each other Lender such that the aggregate amount of the
outstanding Revolving Credit Advances owing to each Lender after giving effect
to such distribution equals such Lender's ratable portion of the Revolving
Credit Borrowings then outstanding (calculated based on such Lender's
Commitment as a percentage of the aggregate Commitments outstanding after
giving effect to the relevant Commitment Increase). If the Commitment Increase
Date shall occur on a date that is not the last day of the Interest Period for
all Eurodollar Rate Advances then outstanding, (a) the Company shall pay any
amounts owing pursuant to Section 9.04(d) as a result of the distributions to
Lenders under this Section 2.05(c)(v) and (b) for each Revolving Credit
Borrowing comprised of Eurodollar Rate Advances, the respective Revolving
Credit Advances made by the Increasing Lenders and the Assuming Lenders
pursuant to this Section 2.05(c)(v) shall be Base Rate Advances until the last
day of the then existing Interest Period for such Revolving Credit Borrowing.
SECTION 2.06. Repayment of Revolving Credit Advances. Each Borrower
shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Revolving Credit
Advances then outstanding in respect of such Borrower.
SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
Interest. Each Borrower shall pay interest on the unpaid principal amount of
each Revolving Credit Advance owing by such Borrower 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:
<PAGE>
(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 Base Rate in effect from time to time, payable in arrears quarterly
on the last day of each February, May, August and November 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,
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), each Borrower shall
pay interest on (i) the unpaid principal amount of each Revolving Credit
Advance owing by such Borrower to each Lender, payable in arrears on the dates
referred to in clause (a)(i) or (a)(ii) 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)(i) or (a)(ii) above and (ii) to
the fullest extent permitted by law, the amount of any interest, fee or other
amount payable hereunder by such Borrower 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) Additional Interest on Eurodollar Rate Advances. The applicable
Borrower shall pay to each Lender, so long as such Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal
amount of each Eurodollar Rate Advance of such Lender to such Borrower, from
the date of such Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder obtained by
subtracting (i) the Eurodollar Rate for the applicable Interest Period for such
Advance from (ii) the rate obtained by dividing such Eurodollar Rate by a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage of such
Lender for such Interest Period, payable on each date on which interest is
payable on such Advance. Such additional interest shall be determined by such
Lender and notified in reasonable detail to such Borrower through the Agent.
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 relevant Borrowers
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
<PAGE>
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 Majority
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period (which cost each such Lender reasonably determines in good
faith is material), the Agent shall forthwith so notify each 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 Credit Advances into, Eurodollar Rate Advances shall be suspended
until the Agent shall notify each Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(c) If any Borrower, in requesting a Revolving Credit Borrowing
comprised of Eurodollar Rate Advances, shall fail to select the duration of the
Interest Period for such 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 such 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 $5,000,000, such Advances shall
automatically, on the last day of the then existing Interest Period therefor,
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 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, such Eurodollar Rate
or LIBO Rate shall be the interest rate per annum determined by the Agent to be
the offered rate per annum at which deposits in U.S. dollars for a maturity
comparable to the Interest Period for such Eurodollar Rate Advances or LIBO
Rate Advances, as the case may be, appears on the Telerate Page 3750 (or any
successor page) as of 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period (the "Telerate"); provided that if the
Telerate is not then available:
(i) the Agent shall forthwith notify the relevant Borrower and the
Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances or LIBO Rate Advances, as the case may be;
(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
<PAGE>
(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 each Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. Any
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. 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 relevant Borrower.
SECTION 2.10. Optional Prepayments of Revolving Credit Advances.
Any Borrower may, upon notice to the Agent stating the proposed date and
aggregate principal amount of the prepayment, given not later than 11:00 A.M.
(New York City time) on the second Business Day prior to the date of such
proposed prepayment, in the case of Eurodollar Rate Advances, and not later
than 11:00 A.M. (New York City time) on the day of such proposed prepayment, in
the case of Base Rate Advances, and, if such notice is given such 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
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, such Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 9.04(d). Each
notice of prepayment by a Designated Subsidiary shall be given to the Agent
through the Company.
SECTION 2.11. Increased Costs. (a) If, after the date hereof, due
to either (i) the introduction of or any change (other than any change by way
of imposition or increase of reserve requirements included in the Eurodollar
Rate Reserve Percentage) 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 having jurisdiction over any Lender (whether or
not having the force of law), there shall be any increase in the cost to any
Lender (which cost such Lender reasonably determines in good faith is material)
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) Excluded Taxes), then the Borrower of such Advances
shall from time to time, upon demand by such Lender made not later than 60 days
after such Lender obtains knowledge of such increased costs (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased
cost. Each Lender agrees that if such Lender requests compensation for any
amounts owing from a Borrower for such increased cost under this Section
<PAGE>
2.11(a), such Lender shall, prior to a Borrower being required to pay such
increased costs, furnish to such Borrower a certificate of a senior financial
officer of such Lender verifying that such increased cost was actually incurred
by such Lender and the amount of such increased cost and setting forth in
reasonable detail the basis therefore (with a copy of such certificate to the
Agent); provided, however, that such certificate shall be conclusive and
binding for all purposes, absent manifest error.
(b) If, after the date hereof, any Lender determines that compliance
with any law or regulation or any guideline or request from any central bank or
other governmental authority having jurisdiction over any Lender (whether or
not having the force of law) 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, upon demand by such Lender made not later
than 60 days after such Lender obtains knowledge of such increase in capital
(with a copy of such demand to the Agent), the Company shall pay to the Agent
for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder. Each Lender agrees that if such Lender
requests compensation for any amounts owing from the Company for such increase
in capital under this Section 2.11(b), such Lender shall, prior to a Borrower
being required to compensate such Lender for such increase in capital, furnish
to the Company a certificate of a senior financial officer of such Lender
verifying that such increase in capital was actually required by such Lender
and the amount of such increase in capital and setting forth in reasonable
detail the basis therefore (with a copy of such certificate to the Agent);
provided, however, that such certificate shall be conclusive and binding for
all purposes, absent manifest error.
(c) No Borrower shall be obligated to pay under this Section 2.11
any amounts which relate to costs or increases of capital incurred prior to the
12 months immediately preceding the date of demand for payment of such amounts,
unless the applicable law, regulation, guideline or request resulting in such
costs or increases of capital is imposed retroactively. In the case of any
law, regulation, guideline or request which is imposed retroactively, the
Lender making demand for payment of any amount under this Section 2.11 shall
notify the related Borrower not later than 12 months from the date that such
Lender should reasonably have known (but promptly upon gaining knowledge of
such increase) of such law, regulation, guideline or request and such
Borrower's obligation to compensate such Lender for such amount is contingent
upon such Lender's so notifying such Borrower; provided, however, that any
failure by such Lender to provide such notice shall not affect such Borrower's
obligations under this Section 2.11 with respect to amounts resulting from
costs or increases of capital incurred after the date which occurs 12 months
immediately preceding the date on which such Lender notified such Borrower of
such law, regulation, guideline or request.
(d) If any Lender shall subsequently recoup any costs (other than
from a Borrower) for which such Lender has theretofore been compensated by a
Borrower under this Section 2.11, such Lender shall remit to such Borrower an
amount equal to the amount of such recoupment as reasonably determined by such
Lender.
<PAGE>
SECTION 2.12. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall after the date hereof, 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 having jurisdiction over any Lender 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, (i) each
Eurodollar Rate Advance or LIBO Rate Advance, as the case may be, will
automatically, upon such demand, Convert into a Base Rate Advance or an Advance
that bears interest at the rate set forth in Section 2.07(a)(i), as the case
may be, and (ii) 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 each Borrower and
the Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) Each Borrower shall
make each payment hereunder and under the Notes not later than 1:00 P.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,
2.05(c), 2.07(c), 2.11, 2.14 or 9.04(d)) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 9.07(c), 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. Upon any Assuming
Lender becoming a Lender hereunder as a result of the effectiveness of a
Commitment Increase pursuant to Section 2.05(c), and upon the Agent's receipt
of such Lender's Assumption Agreement and recording the information contained
therein in the Register, from and after the relevant Increase Date, the Agent
shall make all payments hereunder and under the Notes in respect of the
interest assumed thereby to such Assuming Lender.
(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
Federal Funds Rate 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 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 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
<PAGE>
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 a Borrower
prior to the date on which any payment is due to the Lenders from such Borrower
hereunder that such Borrower will not make such payment in full, the Agent may
assume that such Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent such Borrower shall not have so made
such payment in full to the Agent, each Lender shall repay to the Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Agent, at the
Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by each 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 or by any jurisdiction in which such Lender or the Agent
(as the case may be) is doing business that is unrelated to this Agreement and
such net income taxes or franchise taxes that would not have been imposed if
such Lender or the Agent (as the case may be) had not been conducting such
unrelated business 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 excluded taxes being hereinafter
referred to as "Excluded Taxes" and 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 any 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 for Taxes (including deductions for Taxes
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) such Borrower shall make
such deductions and (iii) such Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, each Borrower agrees to 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) Each Borrower shall indemnify each Lender and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any taxes
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
<PAGE>
for penalties, interest and reasonable 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; provided that such Lender shall, prior to a Borrower being required
to indemnify such Lender pursuant to this Section 2.14(c), furnish to such
Borrower a certificate of a senior financial officer of such Lender verifying
that such Taxes or Other Taxes were actually incurred by such Lender and the
amount of such Taxes or Other Taxes and setting forth in reasonable detail the
basis therefor (with a copy of such certificate to the Agent), provided,
however, that such certificate shall be conclusive and binding for all
purposes, absent manifest error.
(d) Within 30 days after the date of any payment of Taxes, each
Borrower shall furnish to the Agent, at its address referred to in
Section 9.02, the original or a certified copy of a receipt evidencing payment
thereof. In the case of any payment hereunder or under the Notes by or on
behalf of any Borrower through an account or branch outside the United States
or by or on behalf of any Borrower by a payor that is not a United States
person, if such Borrower determines that no Taxes are payable in respect
thereof, such 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
Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it becomes a Lender in the case of each other Lender, and
from time to time thereafter as requested in writing by any Borrower (but only
so long as such Lender remains lawfully able to do so), shall provide the Agent
and each Borrower with two original Internal Revenue Service forms 1001 or
4224, 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 forms 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 or the Assumption Agreement, as the case
may be, 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.
(f) For any period with respect to which a Lender has failed to
provide each 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
<PAGE>
form otherwise is not required under the first sentence of 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, each
Borrower agrees to take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
(g) If any Lender determines, in its sole discretion, that it has
actually and finally realized, by reason of a refund, deduction or credit of
any Taxes or Other Taxes paid or reimbursed by a Borrower pursuant to
subjection (a) or (c) above in respect of payments under the Credit Agreement
or the Notes, a current monetary benefit that it would otherwise not have
obtained, and that would result in the total payments under this Section 2.14
exceeding the amount needed to make such Lender whole, such Lender shall pay to
such Borrower, with reasonable promptness following the date on which it
actually realizes such benefit, an amount equal to the lesser of the amount of
such benefit or the amount of such excess, in each case net of all reasonable
out-of-pocket expenses in securing such refund, deduction or credit.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Revolving Credit Advances owing to
it (other than pursuant to Section 2.05(c), 2.07(c), 2.11, 2.14 or 9.04(d)) in
excess of its ratable share of payments on account of the Revolving Credit
Advances obtained by all the Lenders, such Lender shall forthwith purchase from
the other Lenders such participations in the Revolving Credit Advances owing to
them as shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of such Borrower in the amount of such
participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall
be available (and each Borrower agrees that it shall use such proceeds) solely
(i) for general corporate purposes of such Borrower and its Subsidiaries and
(ii) for acquisitions by such Borrower that have been approved by the Board of
Directors of the corporation that is to be acquired by such Borrower.
SECTION 2.17. Mandatory Assignment by a Lender; Mitigation. If any
Lender requests from a Borrower either payment of additional interest on
Eurodollar Rate Advances pursuant to Section 2.07(c), or reimbursement for
increased costs pursuant to Section 2.11, or payment of or reimbursement for
Taxes pursuant to Section 2.14, or if any Lender notifies the Agent that it is
unlawful for such Lender or its Eurodollar Lending Office to perform its
obligations hereunder pursuant to Section 2.12, (i) such Lender will, upon
three Business Days' notice by such Borrower to such Lender and the Agent, to
<PAGE>
the extent not inconsistent with such Lender's internal policies and applicable
legal and regulatory restrictions, use reasonable efforts to make, fund or
maintain its Eurodollar Rate Advances through another Eurodollar Lending Office
of such Lender if (A) as a result thereof the additional amounts required to be
paid pursuant to Section 2.07(c), 2.11 or 2.14, as applicable, in respect of
such Eurodollar Rate Advances would be materially reduced or the provisions of
Section 2.12 would not apply to such Lender, as applicable, and (B) as
determined by such Lender in good faith but in its sole discretion, the making
or maintaining of such Eurodollar Rate Advances through such other Eurodollar
Lending Office would not otherwise materially and adversely affect such
Eurodollar Rate Advances or such Lender and (ii) unless such Lender has
therefore taken steps to remove or cure, and has removed or cured (to the
extent not inconsistent with internal policies and applicable legal and
regulatory restrictions), the conditions creating such obligation to pay such
additional amounts or the circumstances described in Section 2.12, such Lender
will, upon at least five Business Days' notice from the Company to such Lender
and the Agent, assign, pursuant to and in accordance with the provisions of
Section 9.07, to one or more Eligible Assignees designated by the Company all,
but not less than all, of the Revolving Credit Advances then owing to such
Lender and all, but not less than all, of such Lender's rights and obligations
hereunder (other than rights in respect of such Lender's outstanding
Competitive Bid Advance), without recourse to or warranty by, or expense to,
such Lender, for a purchase price equal to the outstanding principal amount of
each such Advance then owing to such Lender plus any accrued but unpaid
interest thereon and any accrued but unpaid facility fees owing thereto and, in
addition, all additional costs reimbursements, expense reimbursements and
indemnities, if any, owing in respect of such Lender's Commitment hereunder at
such time shall be paid to such Lender.
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) There shall have occurred no Material Adverse Change since
December 31, 1994 except as disclosed by the Company in writing to the
Lenders prior to the date of execution of this Agreement.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Company or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that
(i) would be reasonably likely to have a Material Adverse Effect other
than the matters described on Schedule 3.01(b) hereto (the "Disclosed
Litigation") or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby, and there shall have been no material
adverse change in the status, or financial effect on the Company and its
Subsidiaries taken as a whole, of the Disclosed Litigation from that
described on Schedule 3.01(b) hereto.
(c) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
<PAGE>
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.
(d) The Company shall have notified the Agent in writing as to the
proposed Effective Date.
(e) The Company shall have paid all accrued fees and expenses of the
Agent and the Lenders that shall have been invoiced as of the Effective
Date (including the accrued fees and expenses of counsel to the Agent), in
each case solely to the extent such fees and expenses are required by
other provisions of this Agreement to be so paid.
(f) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Company, dated the
Effective Date, stating that:
(i) The representations and warranties of the Company 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.
(g) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance reasonably
satisfactory to the Agent and (except for the Revolving Credit Notes) in
sufficient copies for each Lender:
(i) The Revolving Credit Notes of the Company to the order of
the Lenders, respectively.
(ii) Certified copies of the resolutions of the Board of
Directors of the Company approving this Agreement (including the
Commitment Increase contemplated by Section 2.05(c)) and the Notes of
the Company, 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 Company certifying the names and true signatures of
the officers of the Company authorized to sign this Agreement and the
Notes of the Company and the other documents to be delivered
hereunder.
(iv) A favorable opinion of Robert M. Reese, Vice President and
General Counsel of the Company, substantially in the form of
Exhibit G-1 hereto and as to such other matters as any Lender through
the Agent may reasonably request.
(v) A favorable opinion of Simpson Thacher & Bartlett, special
New York counsel to the Company, substantially in the form of Exhibit
G-2 hereto.
<PAGE>
(vi) A favorable opinion of Shearman & Sterling, counsel for the
Agent, in form and substance satisfactory to the Agent.
(vii) Such other approvals, opinions or documents as any
Lender, through the Agent, may reasonably request prior to the
Effective Date.
SECTION 3.02. Initial Borrowing of Each Designated Subsidiary. The
obligation of each Lender to make an initial Advance to each Designated
Subsidiary following any designation of such Designated Subsidiary as a
Borrower hereunder pursuant to Section 9.08 is subject to the Agent's receipt
on or before the date of such Initial Advance of each of the following, in form
and substance satisfactory to the Agent and dated such date, and (except for
the Revolving Credit Notes) in sufficient copies for each Lender:
(a) The Revolving Credit Notes of such Borrower to the order of the
Lenders, respectively.
(b) Certified copies of the resolutions of the Board of Directors of
such Borrower approving this Agreement and the Notes of such Borrower, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and such
Notes.
(c) A certificate of the Secretary or an Assistant Secretary of such
Borrower certifying the names and true signatures of the officers of such
Borrower authorized to sign this Agreement and the Notes of such Borrower
and the other documents to be delivered hereunder.
(d) A certificate signed by a duly authorized officer of the
Company, dated as of the date of such initial Advance, certifying that
such Borrower shall have obtained all governmental and third party
authorizations, consents, approvals (including exchange control approvals)
and licenses required under applicable laws and regulations necessary for
such Borrower to execute and deliver this Agreement and the Notes of such
Borrower and to perform its obligations thereunder.
(e) The Designation Letter of such Designated Subsidiary,
substantially in the form of Exhibit E hereto.
(f) With respect to each Designated Subsidiary that has its
principal place of business outside of the United States of America,
evidence of the Process Agent's acceptance of its appointment pursuant to
Section 9.12(a) as the agent of such Borrower, substantially in the form
of Exhibit F hereto.
(g) A favorable opinion of counsel to such Designated Subsidiary,
dated the date of such Initial Advance, substantially in the form of
Exhibit H hereto.
(h) Such other approvals, opinions or documents as any Lender,
through the Agent, may reasonably request.
SECTION 3.03. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance on
the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the
<PAGE>
date of such Revolving Credit Borrowing the following statements shall be true
(and each of the giving of the applicable Notice of Revolving Credit Borrowing
and the acceptance by the Borrower requesting such Revolving Credit Borrowing
of the proceeds of such Revolving Credit Borrowing shall constitute a
representation and warranty by such Borrower that on the date of such Borrowing
such statements are true):
(i) the representations and warranties of the Company contained in
Section 4.01 (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f) thereof (other than
clause (i)(B) thereof)) are correct on and as of the date of such
Revolving Credit Borrowing, before and after giving effect to such
Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and, if such Borrower is
a Designated Subsidiary, the representations and warranties of such
Borrower contained in its Designation Letter are correct on and as of the
date of such Revolving Credit Borrowing, before and after giving effect to
such Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.04. 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 (a) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (b) 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 (c) 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 requesting such Competitive Bid
Borrowing of the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by such Borrower that on the date of such
Competitive Bid Borrowing such statements are true):
(i) the representations and warranties of the Company contained in
Section 4.01 (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f) thereof (other than
clause (i)(B) 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, if such Borrower is
a Designated Subsidiary, the representations and warranties of such
Borrower contained in its Designation Letter 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,
<PAGE>
(ii) 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, and
(iii) no event has occurred and no circumstance exists as a
result of which the information concerning such Borrower that has been
provided to the Agent and each Lender by such Borrower in connection
herewith 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.
SECTION 3.05. 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 Company, 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 Company. The
Company represents and warrants as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Company of this
Agreement and the Notes of the Company, and the consummation of the
transactions contemplated hereby, are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, and
do not contravene (i) the Company's charter or by-laws or (ii) any law or
any contractual restriction binding on or affecting the Company, except
where such contravention would not be reasonably likely to have a Material
Adverse Effect.
(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 Company of this Agreement or the Notes of the Company,
except for those authorizations, approvals, actions, notices and filings
(i) listed on Schedule 4.01(c) hereto, all of which have been duly
obtained, taken, given or made and are in full force and effect and (ii)
where the Company's failure to receive, take or make such authorization,
approval, action, notice or filing would not have a Material Adverse
Effect.
(d) This Agreement has been, and each of the Notes of the Company
when delivered hereunder will have been, duly executed and delivered by
the Company. This Agreement is, and each of the Notes of the Company when
<PAGE>
delivered hereunder will be, the legal, valid and binding obligation of
the Company enforceable against the Company in accordance with their
respective terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors' rights
generally and general principles of equity.
(e) The Consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 1994, and the related Consolidated
statements of income and cash flows of the Company and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Arthur
Andersen LLP, independent public accountants, and the Consolidated
condensed balance sheet of the Company and its Subsidiaries as at
October 1, 1995, and the related Consolidated statements of income and
condensed cash flows of the Company and its Subsidiaries for the nine
months then ended, duly certified by the chief financial officer of the
Company, copies of which have been furnished to each Lender, fairly
present, subject, in the case of said balance sheet as at October 1, 1995,
and said statements of income and cash flows for the nine months then
ended, to audit adjustments, the Consolidated financial condition of the
Company and its Subsidiaries as at such dates and the Consolidated results
of the operations of the Company and its Subsidiaries for the periods
ended on such dates, all in accordance with generally accepted accounting
principles consistently applied; provided, however, that said balance
sheet and statements of income and cash flows for the nine months ended as
at October 1, 1995 are instead prepared in accordance with applicable
rules and regulations of the Securities and Exchange Commission. Since
December 31, 1994, there has been no Material Adverse Change.
(f) (i) There is no pending or, to the Company's knowledge,
threatened action, suit, investigation, litigation or proceeding,
including, without limitation, any Environmental Action, affecting the
Company or any of its Subsidiaries before any court, governmental agency
or arbitrator that (A) would be reasonably likely to have a Material
Adverse Effect (other than the Disclosed Litigation) or (B) purports to
affect the legality, validity or enforceability of this Agreement or any
Note or the consummation of the transactions contemplated hereby, and (ii)
there has been no adverse change in the status, or financial effect on the
Company and its Subsidiaries taken as a whole, of the Disclosed Litigation
from that described on Schedule 3.01(b) hereto.
(g) No proceeds of any Advance will be applied in any manner that
will violate or cause any Lender to violate Regulation U or Regulation G
issued by the Board of Governors of the Federal Reserve System.
(h) The Company is not, and immediately after the application by the
Company of the proceeds of each Advance will not be, an "investment
company", or a company "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended.
(i) The Company and each of its Subsidiaries are in compliance with
all applicable laws, rules, regulations and orders, including, without
limitation, ERISA and Environmental Laws and Environmental Permits, except
where the failure to so comply would not be reasonably likely to have a
Material Adverse Effect.
(j) To the Company's knowledge, (i) all past non-compliance with any
Environmental Laws and Environmental Permits has been resolved without
<PAGE>
ongoing obligations or costs except where the failure to so comply would
not be reasonably likely to have a Material Adverse Effect and (ii) no
circumstances exist that would be reasonably likely to (A) form the basis
of an Environmental Action against the Company or any of its Subsidiaries
or any of their properties that would be reasonably likely to have a
Material Adverse Effect or (B) cause any such property to be subject to
any restrictions on ownership, occupancy, use or transferability under any
Environmental Law that would be reasonably likely to have a Material
Adverse Effect.
(k) No ERISA Event that would be reasonably likely to have a
Material Adverse Effect has occurred or is reasonably expected to occur
with respect to any Plan.
(l) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan whose "funded current liability
percentage" is less than 90% and whose "unfunded current liability"
exceeds $5,000,000 (as such terms are defined in Section 302(d)(8) of
ERISA), copies of which have been filed with the Internal Revenue Service
and furnished to the Lenders, is complete and accurate and fairly presents
in all material respects the funding status of such Plan.
(m) Neither the Company nor any ERISA Affiliate has outstanding
liability with respect to, or is reasonably expected to incur any
Withdrawal Liability to, any Multiemployer Plan that would be reasonably
likely to have a Material Adverse Effect.
(n) Neither the Company nor any ERISA Affiliate has been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of
ERISA, and no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA, where such reorganization or termination would be reasonably likely
to have a Material Adverse Effect.
(o) Except as set forth in the financial statements referred to in
Section 4.01(e) and in Section 5.01(h), the Company and its Subsidiaries
taken as a whole have no material liability with respect to "expected post
retirement benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will:
(a) Compliance with Laws, Obligations, Etc. Comply, and cause each
of its Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and Environmental Laws
as provided in Section 5.01(i), except where the failure to so comply
would not be reasonably likely to have a Material Adverse Effect.
<PAGE>
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent
if the failure to so pay and discharge would be reasonably likely to have
a Material Adverse Effect, (i) all taxes, assessments and governmental
charges or levies imposed upon it or upon its property and (ii) all lawful
claims that, if unpaid, will by law become a Lien upon its property;
provided, however, that neither the Company nor any of its 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 and
as to which appropriate reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause each of its
Material Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations (or continue to maintain
self-insurance) in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Company or such
Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Company and its Subsidiaries may consummate
any merger or consolidation permitted under Section 5.02(b) and provided
further that neither the Company nor any of its Subsidiaries shall be
required to preserve any right or franchise if the Board of Directors of
the Company or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Company or such Subsidiary, as the case may be, and that the loss thereof
would not be reasonably likely to have a Material Adverse Effect.
(e) Authorizations. Obtain, and cause each Designated Subsidiary
with a principal place of business outside the United States to obtain, at
any time and from time to time all authorizations, licenses, consents or
approvals (including exchange control approvals) as shall now or hereafter
be necessary or desirable under applicable law or regulations in
connection with such Designated Subsidiary's making and performance of
this Agreement and, upon the request of any Lender, promptly furnish to
such Lender copies thereof.
(f) Keeping of Books. Keep, and cause each of its Material
Subsidiaries with a principal place of business in the United States to
keep, proper books of record and account, in which full and correct
entries in all material respects shall be made of all financial
transactions and the assets and business of the Company and each such
Subsidiary in accordance with generally accepted accounting principles in
effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used in the conduct of its business in good working
order and condition, ordinary wear and tear excepted, except where the
failure to do so would not be reasonably likely to have a Material Adverse
Effect.
<PAGE>
(h) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of
the Company, Consolidated condensed balance sheet of the Company and
its Subsidiaries as of the end of such quarter and Consolidated
statements of income and Consolidated condensed statements of cash
flows of the Company and its Subsidiaries for the period commencing
at the end of the previous fiscal year and ending with the end of
such quarter, duly certified (subject to audit adjustments) by the
chief financial officer of the Company as having been prepared in
accordance with applicable rules and regulations of the Securities
and Exchange Commission and certificates of the chief financial
officer of the Company as to compliance with the terms of this
Agreement and setting forth in reasonable detail the calculations
necessary to demonstrate compliance with Section 5.03, provided that
in the event of any change in GAAP used in the preparation of such
financial statements, the Company shall also provide, if necessary
for the determination of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to GAAP;
(ii) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, a copy of the annual
report for such year for the Company and its Subsidiaries, containing
Consolidated balance sheet of the Company and its Subsidiaries as of
the end of such fiscal year and Consolidated statements of income and
cash flows of the Company and its Subsidiaries for such fiscal year,
in each case accompanied by an opinion of Arthur Andersen LLP or
other nationally recognized independent public accountants, provided
that in the event of any change in GAAP used in the preparation of
such financial statements, the Company shall also provide, if
necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements to
GAAP;
(iii) as soon as possible and in any event within five days
after the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the Company
setting forth the details of such Default and the action that the
Company has taken and proposes to take with respect thereto;
(iv) as soon as possible and in any event within three days
after the occurrence of a Change of Control, notice of such Change of
Control setting forth the details of such Change of Control;
(v) promptly after the sending or filing thereof, copies of all
reports that the Company sends to any of its public securityholders,
and copies of all reports and registration statements that the
Company or any Subsidiary files with the Securities and Exchange
Commission or any national securities exchange;
(vi) (a) promptly and in any event within 20 days after the
Company or any ERISA Affiliate has actual knowledge that an event
that is an ERISA Event that has resulted or that would be reasonably
likely to result in a liability of the Company or any ERISA Affiliate
in an amount in excess of $25,000,000 has occurred, a statement of
the chief financial officer or other authorized officer of the
<PAGE>
Company describing such ERISA Event and the action, if any, that the
Company or such ERISA Affiliate has taken and proposes to take with
respect thereto and (b) on the date any records, documents or other
information must be furnished to the PBGC with respect to any Plan
pursuant to Section 4010 of ERISA, a copy of such records, documents
and information;
(vii) promptly and in any event within three Business Days
after receipt thereof by the Company or any ERISA Affiliate, copies
of each notice from the PBGC stating its intention to terminate any
Plan or to have a trustee appointed to administer any Plan, where
such notice, termination or appointment has resulted or would be
reasonably likely to result in a liability of the Company or any
ERISA Affiliate in an amount in excess of $25,000,000;
(viii) promptly and in any event within 30 days after filing
thereof with the Internal Revenue Services, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan whose "funded current liability percentage" is
less than 90% and whose "unfunded current liability" exceeds
$5,000,000 (as such terms are defined in Section 302(d)(8) of ERISA);
(ix) promptly and in any event within five Business Days after
receipt thereof by the Company or any ERISA Affiliate from the
sponsor of a Multiemployer Plan, copies of each notice concerning
(A) the imposition of Withdrawal Liability by any such Multiemployer
Plan, (B) the reorganization or termination, within the meaning of
Title IV of ERISA, of any such Multiemployer Plan or (C) the amount
of liability incurred, or that may be incurred, by the Company or any
ERISA Affiliate in connection with any event described in clause (A)
or (B), where such imposition, reorganization or termination has
resulted or would be reasonably likely to result in a liability of
the Company or any ERISA Affiliate in an amount exceeding
$25,000,000;
(x) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Company or any of its Subsidiaries of the
type described in Section 4.01(f); and
(xi) such other information respecting the Company or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
(i) Compliance with Environmental Laws. Comply, and cause each of
its Subsidiaries and all lessees and other Persons operating or occupying
its properties, to comply with all applicable Environmental Laws and
Environmental Permits except where the failure to so comply would not be
reasonably likely to have a Material Adverse Effect.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
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,
<PAGE>
or permit any of its Subsidiaries to assign, any right to receive income,
other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Company or any Subsidiary of the
Company in the ordinary course of business to secure the purchase
price of such property or equipment or to secure Debt incurred solely
for the purpose of financing the acquisition of such property or
equipment, or Liens existing on such property or equipment at the
time of its acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to finance
the acquisition of such property) 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
properties of any character other than the real property or equipment
being acquired, and no such extension, renewal or replacement shall
extend to or cover any properties not theretofore subject to the Lien
being extended, renewed or replaced,
(iii) any assignment of any right to receive income existing
on the Effective Date and any Liens existing on the Effective Date,
(iv) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or any
Subsidiary of the Company or becomes a Subsidiary of the Company;
provided that such Liens do not extend to any assets other than those
of the Person so merged into or consolidated with the Company or such
Subsidiary or acquired by the Company or such Subsidiary,
(v) other Liens or any other assignment of any right to receive
income (in addition to the Liens and assignments permitted under
clauses (i), (ii), (iii), (iv) or (vi)) securing Debt in an aggregate
principal amount not to exceed $450,000,000, and
(vi) the replacement, extension or renewal of any Lien or any
assignment of any right to receive income permitted by clause (iii)
or (iv) 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 Debt
secured thereby.
(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
Subsidiaries to do so, except that any Subsidiary of the Borrower may
merge or consolidate with or into, or dispose of assets to, any other
Subsidiary of the Company, and except that any Subsidiary of the Company
may merge into or dispose of assets to the Company and the Company may
merge with any other Person so long as the Company is the surviving
corporation, provided, in each case, that no Default shall have occurred
and be continuing at the time of such proposed transaction or would result
therefrom.
<PAGE>
(c) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business 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 Company
shall maintain, as of the end of each fiscal quarter, a ratio of (a) Pre-Tax
Income from Continuing Operations for the four fiscal quarters then ended to
(b) Consolidated Interest Expense for such four fiscal quarters of not less
than 2.0 to 1.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Advance
within one Business Day after the same becomes due and payable; or any
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 three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Company herein or, if
such Borrower is a Designated Subsidiary, in such Borrower's Designation
Letter, or by any Borrower in connection with this Agreement shall prove
to have been incorrect in any material respect when made; or
(c) (i) The Company shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d) or (h)(iii), (iv) or
(vi)-(ix), 5.02 or 5.03, or (ii) the Company or any other Borrower shall
fail to perform or observe any term, covenant or agreement contained in
Section 5.01(h)(i), (ii), (v), (x) or (xi) if such failure shall remain
unremedied for 10 days after written notice thereof shall have been given
to the relevant Borrower by the Agent or any Lender, or (iii) the Company
or any other 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 relevant
Borrower by the Agent or any Lender; or
(d) Any Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal or notional amount of at least $75,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of such Borrower or such Subsidiary
(as the case may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
<PAGE>
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, unless the
event giving rise to such prepayment, redemption, purchase or defeasance
is not related directly to any action taken by, or the condition
(financial or otherwise) or operations of, the Company, any of its
Subsidiaries, or any of their respective properties; or
(e) Any 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 any 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 60 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 any 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
$50,000,000 shall be rendered against any Borrower or any of its
Subsidiaries and there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(g) The Company or any ERISA Affiliate shall incur, or, in the
reasonable opinion of the Majority 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;
(ii) the partial or complete withdrawal of the Company or any of its ERISA
Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan; or
(h) Any ERISA Event shall have occurred with respect to a Plan and
the sum (determined as of the date of occurrence of such ERISA Event) of
the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then
exist (or the liability of the Company and the ERISA Affiliates related to
such ERISA Event) exceeds $75,000,000; or
(i) The Company or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Company and the ERISA Affiliates as Withdrawal Liability (determined as of
the date of such notification), exceeds $75,000,000; or
<PAGE>
(j) The Company or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Company and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $75,000,000 in the aggregate;
then, and in any such event, the Agent (i) shall at the request, or may with
the consent, of the Majority Lenders, by notice to the Company and each other
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 Majority Lenders, by notice to the
Company and each other Borrower, declare the Notes, all interest thereon and
all other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Notes, 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 Borrowers;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to any Borrower under the Federal Bankruptcy Code,
(A) the obligation of each Lender to make Advances to such Borrower (or, if
such event has occurred in respect of the Company, to make Advances to any
Borrower) shall automatically be terminated and (B) the Notes, all such
interest and all such amounts owing by such Borrower (or, if such event has
occurred in respect of the Company, owing by all of the Borrowers) 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 Borrowers.
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty. For valuable consideration, receipt whereof
is hereby acknowledged, and to induce each Lender to make Advances to the
Designated Subsidiaries and to induce the Agent to act hereunder, the Company
hereby unconditionally and irrevocably guarantees to each Lender and the Agent
the punctual payment when due, whether at stated maturity, by acceleration or
otherwise, of all obligations of the Designated Subsidiaries now or hereafter
existing under this Agreement or the Notes, whether for principal, interest,
fees, indemnities, expenses or otherwise (such obligations being the
"Guaranteed Obligations"), and agrees to pay any and all reasonable and
documented expenses (including reasonable counsel fees and expenses) incurred
by the Agent or any Lender in enforcing any rights under this Guaranty.
Without limiting the generality of the foregoing, the Company's liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
that would be owed by any Designated Subsidiary to the Agent or any Lender
under this Agreement and the Notes but for the fact that such Guaranteed
Obligations are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving such Designated
Subsidiary.
<PAGE>
SECTION 7.02. Guaranty Absolute. The Company guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Lender with respect thereto. The obligations of the Company under
this Guaranty are independent of the Guaranteed Obligations or any other
obligations of any Designated Subsidiary under this Agreement and the Notes,
and a separate action or actions may be brought and prosecuted against the
Company to enforce the obligations of the Company under this Guaranty,
irrespective of whether any action is brought against any Borrower or whether
any Borrower is joined in any such action or actions. The liability of the
Company under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and the Company hereby irrevocably waives any defenses it may
now or hereafter have in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement or the
Notes, or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
obligations of any Designated Subsidiary under this Agreement or the
Notes, or any other amendment or waiver of or any consent to departure
from this Agreement or any Note, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Designated Subsidiary or any of its Subsidiaries
or otherwise;
(c) any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any change, restructuring or termination of the corporate
structure or existence of any Designated Subsidiary or any of its
Subsidiaries;
(e) any failure of the Agent or any Lender to disclose to the
Company or any Designated Subsidiary any information relating to the
financial condition, operations, properties or prospects of any Designated
Subsidiary now or in the future known to the Agent or such Lender, as the
case may be (the Company waiving any duty on the part of the Agent or the
Lenders to disclose such information); or
(f) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Agent or any Lender that might otherwise constitute
a defense available to, or a discharge of, any Designated Subsidiary or
the Company or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the Agent or any Lender upon the
insolvency, bankruptcy or reorganization of any Designated Subsidiary or
otherwise, all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) The Company hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Guaranteed Obligations and this Guaranty and any
<PAGE>
requirement that the Agent or any Lender exhaust any right or take any action
against any Designated Subsidiary or any other Person, and all other notices
and demands whatsoever.
(b) The Company hereby waives any right to revoke this Guaranty, and
acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
(c) The Company acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by
this Agreement and the Notes and that the waivers set forth in this Section
7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. The Company will not exercise any rights
that it may now or hereafter acquire against any Designated Subsidiary or any
other insider guarantor that arise from the existence, payment, performance or
enforcement of the Company's obligations under this Guaranty or any provision
of this Agreement or the Notes, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of the Agent or any Lender
against such Designated Subsidiary or any other insider guarantor or any
collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the right
to take or receive from such Designated Subsidiary or any other insider
guarantor, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim, remedy or
right, unless and until all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been paid in full in cash and the
Commitments shall have expired or terminated. If any amount shall be paid to
the Company in violation of the preceding sentence at any time prior to the
later of the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty and the Termination Date, such amount
shall be held in trust for the benefit of the Agent and Lenders and shall
forthwith be paid to the Agent to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of this Agreement and the Notes, or
to be held as collateral for any Guaranteed Obligations or other amounts
payable under this Guaranty thereafter arising. If (i) the Company shall make
payment to the Agent or any Lender of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall be paid in full in cash and (iii) the
Termination Date shall have occurred, the Agent and the Lenders will, at the
Company's request and expense, execute and deliver to the Company appropriate
documents, without recourse and without representation or warranty, necessary
to evidence the transfer by subrogation to the Company of an interest in the
Guaranteed Obligations resulting from such payment by the Company.
SECTION 7.05. Continuing Guaranty; Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Agreement and
the Termination Date, (b) be binding upon the Company, its successors and
assigns and (c) inure to the benefit of and be enforceable by the Agent and the
Lenders and their respective successors, transferees and assigns. Without
limiting the generality of the foregoing clause (c), any Lender may assign or
otherwise transfer all or any portion of its rights and obligations under this
Agreement (including, without limitation, all or any portion of its Commitment,
<PAGE>
the Advances owing to it and the Note or Notes held by it) to any other Person,
and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to such Lender herein or otherwise, in each case as and
to the extent provided in Section 9.07 of this Agreement.
SECTION 7.06. No Stay. The Company agrees that, as between (a) the
Company and (b) the Lenders and the Agent, the Guaranteed Obligations of any
Designated Subsidiary guaranteed by the Company hereunder may be declared to be
forthwith due and payable as provided in Article VI hereof for purposes of this
Guaranty by declaration to the Company as guarantor notwithstanding any stay,
injunction or other prohibition preventing such declaration as against such
Designated Subsidiary and that, in the event of such declaration to the Company
as guarantor, such Guaranteed Obligations (whether or not due and payable by
such Designated Subsidiary), shall forthwith become due and payable by the
Company for purposes of this Guaranty.
ARTICLE VIII
THE AGENT
SECTION 8.01. 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 Majority 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 any Borrower
pursuant to the terms of this Agreement.
SECTION 8.02. 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: (a) may
treat the payee of any Note as the holder thereof until the Agent receives and
accepts an Assignment and Acceptance entered into by the Lender that is the
payee of such Note, as assignor, and an Eligible Assignee, as assignee, as
provided in Section 9.07; (b) may consult with legal counsel (including counsel
for any 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; (c) 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;
(d) 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 any Borrower or to inspect the property (including the books and
records) of any Borrower; (e) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
<PAGE>
value of this Agreement or any other instrument or document furnished pursuant
hereto; and (f) 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 8.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the 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
Company, any of its Subsidiaries and any Person who may do business with or own
securities of the Company or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders.
SECTION 8.04. 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 8.05. Indemnification. The Lenders agree to indemnify the
Agent (to the extent not reimbursed by a Borrower), ratably according to the
respective principal amounts of the Revolving Credit Notes then held by each of
them (or if no Revolving Credit Notes are at the time outstanding or if any
Revolving Credit Notes are held by Persons that are not Lenders, 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, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
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 a Borrower.
SECTION 8.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and each Borrower and may be
removed at any time with or without cause by the Majority Lenders and such
resignation or removal shall be effective upon the appointment of a successor
Agent. Upon any such resignation or removal, the Majority Lenders shall have
the right to appoint a successor Agent, subject to the Company's approval
(which shall not be unreasonably withheld). If no successor Agent shall have
<PAGE>
been so appointed by the Majority Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Majority 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 $250,000,000, subject to the Company's approval (which shall not be
unreasonably withheld). 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 VIII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Majority 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) increase the Commitment of any Lender (other than as
provided for in Section 2.05(c)) or subject any Lender to any additional
monetary obligations, (b) reduce the principal of, or interest on, the
Revolving Credit Notes or any fees or other amounts payable hereunder,
(c) postpone any date fixed for any payment of principal of, or interest on,
the Revolving Credit Notes or any fees or other amounts payable hereunder, (d)
release the Company from any of its obligations under Article VII or limit the
liability of the Company thereunder or (e) amend or waive this Section 9.01 or
the definition of "Majority Lenders"; and provided further that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Lenders required above to take such action, affect the rights or duties
of the Agent under this Agreement or any Note.
SECTION 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic
or telex communication) and mailed, telecopied, telegraphed, telexed or
delivered, if to the Company or to any Designated Subsidiary, at the Company's
address at Corporate Headquarters, 100 Crystal A Drive, Hershey, Pennsylvania
17033-0810, Attention: Treasury Department, Fax No. (717) 534-6724; 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, as the
case may be, pursuant to which it became a Lender; and if to the Agent, at its
address at One Court Square, Seventh Floor, Long Island City, New York 11120,
Attention: Bank Loan Syndications, Fax No. (718) 248-4844; or, as to any
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 Company and the Agent. All such notices and communications shall, when
<PAGE>
mailed, telecopied, telegraphed or telexed, be effective when deposited in the
mails, telecopied, delivered to the telegraph company or confirmed by telex
answerback, respectively, except that notices and communications to the Agent
pursuant to Article II, III or VIII shall not be effective until received by
the Agent. 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 9.03. 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 9.04. Costs and Expenses. (a) The Company agrees to pay or
cause to be paid on demand all reasonable and documented costs and expenses of
the Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of 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, and messenger costs and
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 Company further agrees to pay or
cause to be paid on demand all reasonable and documented 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 9.04(a).
(b) The Company agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of, or in connection with the
preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances whether or not such investigation, litigation or
proceeding is brought by any Borrower or the directors, shareholders or
creditors of any Borrower or an Indemnified Party or any other Person or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense results from such Indemnified Party's
gross negligence or willful misconduct.
(c) Promptly after receipt by an Indemnified Party of notice of the
commencement of any action or proceeding involving any claim, damage, loss or
liability referred to in paragraph (b) above, such Indemnified Party will, if a
claim in respect thereof is to be made against any Borrower, give written
notice to such Borrower of the commencement of such action; provided that the
<PAGE>
failure of any Indemnified Party to give notice as provided in this Section
9.04(c) shall not relieve such Borrower of its obligations under paragraph (b)
above, except only to the extent that such Borrower actually suffers damage
solely as a result of such failure to give notice. In the event that any such
action or proceeding is brought against an Indemnified Party, unless in such
Indemnified Party's sole judgment (based on advise of counsel) a conflict of
interest between such Indemnified Party and a Borrower may exist in respect
thereof, such Borrower shall be entitled to participate in and to assume the
defense thereof with counsel reasonably satisfactory to such Indemnified Party.
After notice from such Borrower to such Indemnified Party of its election to
assume the defense thereof, such Borrower shall not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof (other than reasonable
costs of investigation). No Borrower shall consent to the entry of any
dismissal or judgment, or enter into any settlement of any pending or
threatened action or proceeding against any Indemnified Party that is or could
have been a party and for whom indemnity could have been sought under paragraph
(b) above without the consent of such Indemnified Party unless such judgment,
dismissal or settlement includes as an unconditional term thereof the giving
of a release from all liability in respect of such action or proceeding to such
Indemnified Party; provided that each Indemnified Party agrees that, if a
Borrower reconfirms to such Indemnified Party that it is indemnified from all
liability in respect of any such action or proceeding referred to in the
preceding sentence, such Indemnified Party will not enter into any settlement
of any such action or proceeding without the consent of such Borrower (which
consent shall not be unreasonably withheld). In addition to the foregoing,
each Borrower shall not, in assuming the defense of any Indemnified Party,
agree to any dismissal or settlement without the prior written consent of such
Indemnified Party if such dismissal or settlement (A) would require any
admission or acknowledgement of culpability or wrongdoing by such Indemnified
Party or (B) would provide for any nonmonetary relief to any Persons to be
performed by such Indemnified Party.
(d) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance or LIBO Rate Advance is made by any Borrower to or for the account
of a Lender other than on the last day of the Interest Period for such Advance,
as a result of (i) a payment or Conversion pursuant to Section 2.03(d), 2.10 or
2.12, (ii) a Commitment Increase pursuant to Section 2.05(c),
(iii) acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, or (iv) 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 9.07(a) as a result of
a demand by the Company pursuant to Section 2.17, such 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 and
actually incur as a result of such payment or Conversion, including, without
limitation, any loss (other than 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.
(e) Without prejudice to the survival of any other agreement of any
Borrower hereunder, the agreements and obligations of such Borrower contained
in Sections 2.11, 2.14 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
<PAGE>
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final but excluding trust
accounts) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of any Borrower against any and all
of the obligations of such Borrower now or hereafter existing under this
Agreement and the Note of such Borrower held by such Lender, whether or not
such Lender shall have made any demand under this Agreement or such Note. Each
Lender agrees promptly to notify the relevant Borrower after any such set-off
and application, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Lender under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender may have.
SECTION 9.06. Binding Effect; Termination of Existing Credit
Agreements. (a) This Agreement shall become effective (other than
Sections 2.01 and 2.03, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Company 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 each Borrower, the
Agent and each Lender and their respective successors and assigns, except that
no Borrower shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
(b) The Company and each Lender agrees that, upon the Effective
Date, each of the Existing Credit Agreements shall be terminated and the
Company shall, on or before the Effective Date, pay in full all amounts payable
under and with respect thereto and, following such payments and the occurrence
of the Effective Date, neither the Company nor the Lenders party thereto shall
have any further obligations thereunder (except for any provisions or
obligations thereunder which expressly survive the termination of such Existing
Credit Agreements or the repayment of all amounts payable thereunder).
SECTION 9.07. Assignments, Designations and Participations. (a)
Each Lender may at any time, and if demanded by the Company pursuant to Section
2.17, shall 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 the
Revolving Credit Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a constant, and not a varying, percentage of all
rights and obligations under this Agreement (other than any right to make
Competitive Bid Advances, Competitive Bid Advances owing to it and Competitive
Bid Notes), (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000,
(iii) each such assignment shall be to an Eligible Assignee, (iv) each such
assignment made as a result of a demand by the Company pursuant to Section 2.17
shall be arranged by the Company after consultation with the Agent and shall be
either an assignment of all of the rights and obligations of the assigning
<PAGE>
Lender under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Company pursuant to
Section 2.17 (A) so long as a Default shall have occurred and be continuing,
(B) unless and until such Lender shall have received one or more payments from
either the Company, any other 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 (including, but not limited to, any amounts
owing under Section 2.11 and Section 2.14), and the Company shall have
satisfied all of its other obligations under this Agreement as of the effective
date of the assignment and (C) if any such Eligible Assignee is not an existing
Lender, the Company shall have paid to the Agent a processing and recordation
fee of $1,000, (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, if such assignment does not occur as a result of a demand
by the Company pursuant to Section 2.17 (in which case the Company shall pay
the fee required by clause (v)(C) of this Section 9.07(a)), a processing and
recordation fee of $3,000, and (vii) in the case of an assignment to any
Affiliate of such Lender that is engaged in the business of commercial banking,
notice thereof shall have been given to the Company and the Agent. Upon such
execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder and (y) the Lender
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of any Borrower or the performance or observance by any Borrower of
any of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01(e), the most recent financial statements referred
to in Section 5.01(h) 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,
<PAGE>
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement as are delegated to the Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
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 each Borrower. Within five Business Days
after its receipt of such notice, each Borrower, at its own expense, shall
execute and deliver to the Agent in exchange for the surrendered Revolving
Credit Note of such Borrower a new Revolving Credit Note to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by such Eligible
Assignee pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Commitment hereunder, a new Revolving Credit Note to the
order of the assigning Lender in an amount equal to the Commitment retained by
it hereunder. Such new Revolving Credit Note or Notes of any Borrower shall be
in an aggregate principal amount equal to the aggregate principal amount of the
surrendered Revolving Credit Note or Notes of such Borrower, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 hereto.
(d) The Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and
each Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by any Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than any 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 the Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
to any 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) each 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 any
consent to any departure by any Borrower therefrom, except to the extent that
<PAGE>
such amendment, waiver or consent would reduce the principal of, or interest
on, the Notes 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 Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation.
Each Lender agrees that, promptly upon selling any such participation in
accordance with this Section 9.07(e), such Lender shall deliver written notice
thereof to the Company.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 9.07, disclose to the assignee, or participant or proposed assignee, or
participant, any information relating to the Company or any other Borrower
furnished to such Lender by or on behalf of such 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 such Borrower received by it from such Lender.
(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 the Note or Notes 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.
SECTION 9.08. Designated Subsidiaries. (a) Designation. The
Company may at any time, and from time to time, by delivery to the Agent of a
Designation Letter duly executed by the Company and the respective Subsidiary
and substantially in the form of Exhibit E hereto, designate such Subsidiary as
a "Designated Subsidiary" for purposes of this Agreement and such Subsidiary
shall thereupon become a "Designated Subsidiary" for purposes of this Agreement
and, as such, shall have all of the rights and obligations of a Borrower
hereunder. The Agent shall promptly notify each Lender of each such
designation by the Company and the identity of the respective Subsidiary.
(b) Termination. Upon the payment and performance in full of all of
the indebtedness, liabilities and obligations under this Agreement and the
Notes of any Designated Subsidiary then, so long as at the time no Notice of
Revolving Credit Borrowing or Notice of Competitive Bid Borrowing in respect of
such Designated Subsidiary is outstanding, such Subsidiary's status as a
"Designated Subsidiary" shall terminate upon notice to such effect from the
Agent to the Lenders (which notice the Agent shall give promptly upon its
receipt of a request therefor from the Company). Thereafter, the Lenders shall
be under no further obligation to make any Advance hereunder to such Designated
Subsidiary.
SECTION 9.09. Confidentiality. Neither the Agent nor any Lender
shall disclose any Confidential Information to any other Person without the
consent of the relevant Borrower, other than (a) to the Agent's or such
Lender's officers, directors, employees, agents and advisors and, as
contemplated by Section 9.07(f), to actual or prospective assignees and
participants, and then only on a need-to-know and confidential basis in
connection with the transactions contemplated by this Agreement, (b) pursuant
to subpoena or other legal process or as otherwise required by law (provided
that the Person making such disclosure shall, to the extent permitted by law,
provide the Company with notice thereof), and (c) as requested or required by
<PAGE>
any state, federal or foreign authority or examiner regulating banks or banking
having jurisdiction over any Lender.
SECTION 9.10. 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 9.11. 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 9.12. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits to the exclusive jurisdiction
only 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 only in
any such New York State court or, to the extent permitted by law, in such
federal court. Notwithstanding the foregoing sentence, 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. Each Designated Subsidiary that has
its principal place of business outside of the United States of America hereby
agrees that service of process in any such action or proceeding may be made
upon the Company at its offices specified in Section 9.02 (the "Process Agent")
and each such Designated Subsidiary hereby irrevocably appoints the Process
Agent its authorized agent to accept such service of process, and agrees that
the failure of the Process Agent to give any notice of any such service shall
not impair or affect the validity of such service or of any judgment rendered
in any action or proceeding based thereon. Each Borrower hereby further
irrevocably consents to the service of process in any action or proceeding in
such courts by the mailing thereof by any parties hereto by registered or
certified mail, postage prepaid, to such Borrower at its address set forth in
Section 9.02. Nothing in this Agreement shall affect any right that any party
may otherwise have to serve legal process in any other manner permitted by law.
To the extent that any Designated Subsidiary has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, such
Designated Subsidiary hereby irrevocably waives such immunity in respect of its
obligations under this Agreement.
(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 of the United States of America sitting
in New York City. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
<PAGE>
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.
HERSHEY FOODS CORPORATION
By
Title:
CITIBANK, N.A.,
as Administrative Agent
By
Title:
BA SECURITIES, INC.,
as Co-Syndication Agent
By
Title:
CITICORP SECURITIES, INC.,
as Co-Syndication Agent
By
Title:
<PAGE>
Commitment Initial Lenders
$60,000,000 BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION
By
Title:
$20,000,000 CIBC, INC.
By
Title:
$60,000,000 CITIBANK, N.A.
By
Title:
$20,000,000 CREDIT SUISSE
By
Title:
$50,000,000 DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
By
Title:
By
Title:
<PAGE>
$20,000,000 ISTITUTO BANCARIO SAN PAOLO
DI TORINO SPA
By
Title:
$50,000,000 NATIONSBANK, N.A.
By
Title:
$50,000,000 PNC BANK,
NATIONAL ASSOCIATION
By
Title:
$50,000,000 THE FIRST NATIONAL BANK
OF CHICAGO
By
Title:
<PAGE>
$20,000,000 THE FUJI BANK, LIMITED,
NEW YORK BRANCH
By
Title:
$400,000,000 Total of the Commitments
<PAGE>
SCHEDULE I
APPLICABLE LENDING OFFICES
<TABLE>
<CAPTION>
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
- -------------------------- ----------------------------- ---------------------------
<S> <C> <C>
BANK OF AMERICA Bank of America Bank of America
NATIONAL TRUST & National Trust & National Trust &
SAVINGS ASSOCIATION Savings Association Savings Association
1850 Gateway Blvd. 1850 Gateway Blvd.
Concord, CA 94520 Concord, CA 94520
Attn: Lori Bahr Attn: Lori Bahr
Phone: 510-675-7212 Phone: 510-675-7212
Fax: 510-675-7531 Fax: 510-675-7531
CIBC, INC. CIBC, Inc. CIBC, Inc.
2 Paces West 2 Paces West
2727 Paces Ferry Road 2727 Paces Ferry Road
Suite 1200 Suite 1200
Atlanta, GA 30439 Atlanta, GA 30439
Attn: Mary Fann Attn: Mary Fann
Phone: 770-319-4849 Phone: 770-319-4849
Fax: 770-319-4950 Fax: 770-319-4950
CITIBANK, N.A. Citibank, N.A. Citibank, N.A.
One Court Square One Court Square
Seventh Floor Seventh Floor
Long Island City, NY 11120 Long Island City, NY 11120
Attn: John Makrinos Attn: John Makrinos
Phone: 718-248-4531 Phone: 718-248-4531
Fax: 718-248-4844 Fax: 718-248-4844
CREDIT SUISSE Credit Suisse Credit Suisse
12 East 49th Street 12 East 49th Street
New York, NY 10017 New York, NY 10017
Attn: Adrian Germann Attn: Adrian Germann
Phone: 212-238-5343 Phone: 212-238-5343
Fax: 212-238-5389 Fax: 212-238-5389
DEUTSCHE BANK AG Deutsche Bank AG Deutsche Bank AG
NEW YORK AND/OR CAYMAN New York and/or Cayman New York and/or Cayman
ISLANDS BRANCHES Islands Branches Islands Branch
31 West 52nd Street 31 West 52nd Street
New York, NY 10019 New York, NY 10019
Attn: Belinda Wheeler Attn: Belinda Wheeler
Phone: 212-474-8372 Phone: 212-474-8372
Fax: 212-474-8212 Fax: 212-474-8212
<PAGE>
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
- -------------------------- ----------------------------- ---------------------------
ISTITUTO BANCARIO SAN Istituto Bancario San Paolo Istituto Bancario San Paolo
PAOLO di Torino SpA di Torino SpA
DI TORINO SPA 245 Park Avenue 245 Park Avenue
35th Floor 35th Floor
New York, NY 10167 New York, NY 10167
Attn: Luca Sacchi Attn: Luca Sacchi
Phone: 212-692-3130 Phone: 212-692-3130
Fax: 212-599-5303 Fax: 212-599-5303
NATIONSBANK, N.A. NationsBank, N.A. NationsBank, N.A.
100 North Tryon Street 100 North Tryon Street
Eighth Floor Eighth Floor
Charlotte, NC 28255 Charlotte, NC 28255
Attn: Corporate Bank Attn: Corporate Bank
Phone: 704-386-8843 Phone: 704-386-8843
Fax: 704-386-3271 Fax: 704-386-3271
PNC BANK, NATIONAL PNC Bank, National PNC Bank, National
ASSOCIATION Association Association
4242 Carlisle Pike 4242 Carlisle Pike
Camp Hill, PA 17011 Camp Hill, PA 17011
Attn: Robin Zacheri Attn: Robin Zacheri
Phone: 717-730-2368 Phone: 717-730-2368
Fax: 717-730-2387 Fax: 717-730-2387
THE FIRST NATIONAL The First National Bank The First National Bank
BANK OF CHICAGO of Chicago of Chicago
One First National Plaza One First National Plaza
Chicago, IL 60670 Chicago, IL 60670
Attn: Al Mora/Mattie Reed Attn: Mattie Reed
Phone: 312-732-3681/5219 Phone: 312-732-5219
Fax: 312-732-5296/4840 Fax: 312-732-4840
THE FUJI BANK, LIMITED, The Fuji Bank, Limited, The Fuji Bank, Limited,
NEW YORK BRANCH New York Branch New York Branch
2 World Trade Center 2 World Trade Center
New York, NY 10048 New York, NY 10048
Attn: Walter Duffy Attn: Walter Duffy
Phone: 212-898-2099 Phone: 212-898-2099
Fax: 212-488-8216 Fax: 212-488-8216
</TABLE>
<PAGE>
SCHEDULE II
EXISTING CREDIT AGREEMENTS
United States Credit Agreements, each dated as of November 13, 1995 and
expiring January 23, 1996, between Hershey Foods Corporation and:
Bank Name
Bank of America National
Trust & Savings Association
Canadian Imperial Bank of Commerce
Citibank, N.A.
Credit Suisse
Deutsche Bank AG New York
and/or Cayman Islands Branches
NationsBank, N.A.
PNC Bank, National Association
The First National Bank of Chicago
The Fuji Bank, Limited, New York Branch
<PAGE>
SCHEDULE 3.01(b)
DISCLOSED LITIGATION
NONE
<PAGE>
SCHEDULE 4.01(c)
REQUIRED AUTHORIZATIONS AND APPROVALS
NONE
<PAGE>
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: December 15, 1995
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (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 (as defined in the Credit Agreement referred to
below) made by the Lender to the Borrower pursuant to the Five-Year Credit
Agreement dated as of December 15, 1995 among Hershey Foods Corporation, the
Lender and certain other lenders party thereto, Citibank, N.A., as
administrative agent (the "Agent") for the Lender and such other lenders, and
BA Securities, Inc. and Citicorp Securities, Inc., as co-syndication agents (as
amended or modified from time to time, the "Credit Agreement"; the terms
defined therein being used herein as therein defined) outstanding on the
Termination 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 the Agent's Account 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 and each other "Borrower" thereunder
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 in Sections 6.01 and 2.10,
respectively, 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.
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.
<PAGE>
This promissory note shall be governed by, and construed in
accordance with the laws of the State of New York.
[NAME OF BORROWER]
By
Title:
<PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of
Amount Principal Paid Unpaid Principal
of Interest Interest or Prepaid Balance Notation
Date Advance Rate Period Made By
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: _______________
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ 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 Five-Year Credit Agreement dated
as of December 15, 1995 among Hershey Foods Corporation, the Lender and certain
other lenders party thereto, Citibank, N.A., as administrative agent (the
"Agent") for the Lender and such other lenders, and BA Securities, Inc. and
Citicorp Securities, Inc., as co-syndication agents (as amended or modified
from time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined)), on _______________, 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. for the account of the Lender at the
Agent's Account 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 in Section 6.01 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.
<PAGE>
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
[NAME OF BORROWER]
By
Title:
<PAGE>
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders party
to the Credit Agreement
referred to below
One Court Square
Seventh Floor
Long Island City, New York 11120 [Date]
Attention: Bank Loan Syndications
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five-Year Credit
Agreement, dated as of December 15, 1995 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among Hershey Foods Corporation, certain Lenders party
thereto, Citibank, N.A., as administrative agent (the "Agent"), and BA
Securities, Inc. and Citicorp Securities, Inc., as co-syndication 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
_______________.
(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 Revolving
Credit Borrowing:
(A) the representations and warranties of the Company contained in
Section 4.01 of the Credit Agreement (except the representations set forth
in the last sentence of subsection (e) thereof and in subsection (f)
thereof (other than clause (i)(B) 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<F1>[and the representations and warranties contained in the
Designation Letter of the undersigned is 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
<PAGE>
(B) no event has occurred and is continuing, or would result from
such Proposed Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
Very truly yours,
[NAME OF BORROWER]
By
Title:
<PAGE>
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders party
to the Credit Agreement
referred to below
One Court Square
Seventh Floor
Long Island City, New York 11120 [Date]
Attention: Bank Loan Syndications
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five-Year Credit
Agreement, dated as of December 15, 1995 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among Hershey Foods Corporation, certain Lenders party
thereto, Citibank, N.A., as administrative agent (the "Agent") for said
Lenders, and BA Securities, Inc. and Citicorp Securities, Inc., as co-
syndication 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) Principal Amount of Competitive Bid
Borrowing _____________________________
(C) [Maturity Date] [Interest Period]<F2> _____________________________
(D) Interest Rate Basis (LIBO Rate or Fixed
Rate) _____________________________
(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 of the Company contained in
Section 4.01 (except the representations set forth in the last sentence
of subsection (e) thereof and in subsection (f) thereof (other than clause
(i)(B) thereof)) are correct, before and after giving effect to the
<PAGE>
Proposed Competitive Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date<F3>[and the
representations and warranties contained in the Designation Letter of the
undersigned is 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.
<PAGE>
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,
[NAME OF BORROWER]
By
Title:
<PAGE>
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
[Date]
Reference is made to the Five-Year Credit Agreement dated as of
December 15, 1995 (as amended or modified from time to time, the "Credit
Agreement") among Hershey Foods Corporation, a Delaware corporation (the
"Company"), the Lenders (as defined in the Credit Agreement), Citibank, N.A.,
as administrative agent (the "Agent") for the Lenders (the "Agent"), and BA
Securities, Inc. and Citicorp Securities, Inc., as co-syndication 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, 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 Revolving Credit Advances owing to the Assignee will be as set forth on
Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower or the performance or observance by any
Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iv) attaches each
Revolving Credit Note of a Borrower held by the Assignor and requests that the
Agent exchange each Revolving Credit Note for a new Revolving Credit Note of
such Borrower payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto or new Revolving Credit
Notes of such Borrower payable to the order of the Assignee in an amount equal
to the Commitment assumed by the Assignee pursuant hereto and the Assignor in
an amount equal to the Commitment retained by the Assignor under the Credit
Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.01(e) thereof, the most recent
financial statements referred to in Section 5.01(h) 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;
(iii) agrees that it will, independently and without reliance upon the Agent,
<PAGE>
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;
(iv) confirms that it is an Eligible Assignee; (v) 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; (vi) agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender; and (vii) attaches any U.S.
Internal Revenue Service forms required under Section 2.14 of the Credit
Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance and recording by the Agent
pursuant to Section 9.07 of the Credit Agreement. 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, from and after
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.
<PAGE>
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _______%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of Revolving
Credit Advances assigned: $__________
Principal amount of Revolving Credit Note payable to
Assignee: $__________
Principal amount of Revolving Credit Note payable to
Assignor: $__________
Effective Date<F4>: _______________
[NAME OF ASSIGNOR], as Assignor
By
Title:
Dated: _______________
[NAME OF ASSIGNEE], as Assignee
By
Title:
Dated: _______________
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
<PAGE>
Accepted and Approved this
__________ day of _______________
CITIBANK, N.A., as Agent
By
Title:
Approved this __________ day
of _______________
HERSHEY FOODS CORPORATION
By
Title:
<PAGE>
EXHIBIT D - FORM OF
ASSUMPTION AGREEMENT
Dated: ________
Hershey Foods Corporation
Corporate Headquarters
Hershey, Pennsylvania 17033-0810
Attention: Treasury Department
Citibank, N. A.
as Agent
One Court Square
Seventh Floor
Long Island City, New York 11120
Attention: Bank Loan Syndications
Ladies and Gentlemen:
Reference is made to the Five-Year Credit Agreement, dated as of
December 15, 1995 (as amended or modified from time to time, the "Credit
Agreement"), among Hershey Foods Corporation, a Delaware corporation (the
"Company"), the Lenders (as defined in the Credit Agreement) party thereto,
Citibank, N.A., as administrative agent for such Lenders (the "Agent"), and BA
Securities, Inc. and Citicorp Securities, Inc., as co-syndication agents.
Terms defined in the Credit Agreement are used herein with the same meaning.
The undersigned (the "Assuming Lender") proposes to become an
Assuming Lender pursuant to Section 2.05(c) of the Credit Agreement and, in
that connection, hereby agrees that it shall become a Lender for purposes of
the Credit Agreement on [applicable Commitment Increase Date] and that its
Commitment shall as of such date be $__________.
The undersigned (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(e) thereof, the most recent financial statements referred to in
Section 5.01(h) 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 which 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; (vi) specifies as its Applicable Lending Offices (and address for
notices) the offices set forth beneath its name on the signature pages hereof;
and (vii) attaches the forms prescribed by the Internal Revenue Service of the
United States required under Section 2.14 of the Credit Agreement.
<PAGE>
The effective date for this Assumption Agreement shall be [applicable
Commitment Increase Date.] Upon delivery of this Assumption Agreement to the
Company and the Agent, and satisfaction of all conditions imposed under Section
2.05(c) as of [date specified above], the undersigned shall be a party to the
Credit Agreement and shall have all of 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 assigned hereby
(including, without limitation, all payments of principal, interest and
facility fees) to the Assuming Lender.
This Assumption Agreement may be executed in 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 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 LENDER]
By________________________
Name:
Title:
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office
[Address]
<PAGE>
Acknowledged and Agreed to:
HERSHEY FOODS CORPORATION
By______________________
Name:
Title:
CITIBANK, N.A.,
As Agent
By______________________
Name:
Title:
<PAGE>
EXHIBIT E - FORM OF
DESIGNATION LETTER
[DATE]
To Citibank, N.A.,
as Agent for the Lenders
party to the Credit Agreement
referred to below
Ladies and Gentlemen:
Reference is made to the Five-Year Credit Agreement dated as of
December 15, 1995 (the "Credit Agreement") among Hershey Foods Corporation
(the "Company"), the Lenders named therein, Citibank, N.A., as administrative
agent (the "Agent") for said Lenders, and BA Securities, Inc. and Citicorp
Securities, Inc., as co-syndication agents. For convenience of reference,
terms used herein and defined in the Credit Agreement shall have the respective
meanings ascribed to such terms in the Credit Agreement.
Please be advised that the Company hereby designates its undersigned
Subsidiary, ____________ (the "Designated Subsidiary"), as a "Designated
Subsidiary" under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's
agreement to extend credit to it under and on the terms and conditions set
forth in the Credit Agreement, does hereby assume each of the obligations
imposed upon a "Designated Subsidiary" and a "Borrower" under the Credit
Agreement and agrees to be bound by the terms and conditions of the Credit
Agreement. In furtherance of the foregoing, the Designated Subsidiary hereby
represents and warrants to each Lenders as follows:
1. The Designated Subsidiary is a corporation duly incorporated,
validly existing and in good standing under the laws of __________________
and is duly qualified to transact business in all jurisdictions in which
such qualification is required.
2. The execution, delivery and performance by the Designated
Subsidiary of this Designation Letter, the Credit Agreement and the Notes
of such Designated Subsidiary, and the consummation of the transactions
contemplated thereby, are within the Designated Subsidiary's corporate
powers, have been duly authorized by all necessary corporate action, and
do not and will not contravene (i) the charter or by-laws of the
Designated Subsidiary or (ii) law or any contractual restriction binding
on or affecting the Designated Subsidiary.
3. This Designation Agreement and each of the Notes of the
Designated Subsidiary, when delivered, will have been duly executed and
delivered, and this Designation Letter, the Credit Agreement and each of
the Notes of the Designated Subsidiary, when delivered, will constitute
the legal, valid and binding obligations of the Designated Subsidiary
enforceable against the Designated Subsidiary in accordance with their
respective terms except to the extent that such enforcement may be limited
by applicable bankruptcy, insolvency and other similar laws affecting
creditors' rights generally.
<PAGE>
4. There is no pending or threatened action, suit, investigation,
litigation or proceeding including, without limitation, any Environmental
Action, affecting the Designated Subsidiary or any of its Subsidiaries
before any court, governmental agency or arbitrator that (i) could be
reasonably likely to have a Material Adverse Effect, or (ii) purports to
effect the legality, validity or enforceability of this Designation
Letter, the Credit Agreement, any Note of the Designated Subsidiary or the
consummation of the transactions contemplated thereby.
5. No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or administrative or
regulatory body or any other third party are required in connection with
the execution, delivery or performance by the Designated Subsidiary of
this Designation Letter, the Credit Agreement or the Notes of the
Designated Subsidiary except for such authorizations, consents, approvals,
licenses, filings or registrations as have heretofore been made, obtained
or effected and are in full force and effect.
6. The Designated Subsidiary is not, and immediately after the
application by the Designated Subsidiary of the proceeds of each Advance
will not be, an "investment company", or an "affiliated person" of, or
"promotor" or "principal underwriter" for, an "investment company", as
such terms are defined in the Investment Company Act of 1940, as amended.
Very truly yours,
HERSHEY FOODS COMPANY
By_________________________
Title:
<PAGE>
[THE DESIGNATED SUBSIDIARY]
By__________________________
Title:
<PAGE>
EXHIBIT F - FORM OF
ACCEPTANCE BY PROCESS AGENT
[Letterhead of Process Agent]
[Date]
To each of the Lenders party
to the Credit Agreement (as defined
below) and to Citibank, N.A.,
as Agent for said Lenders
[Name of Designated Subsidiary]
Ladies and Gentlemen:
Reference is made to (i) that certain Five-Year Credit Agreement,
dated as of December 15, 1995, among Hershey Foods Corporation (the "Company"),
the Lenders named therein, Citibank, N.A., as administrative agent (the
"Agent") for said Lenders, and BA Securities, Inc. and Citicorp Securities,
Inc., as co-syndication agents (as hereafter amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined), and (ii) to the Designation Letter,
dated _________, pursuant to which __________ has become a Borrower under the
Credit Agreement.
Pursuant to Section 9.12(a) of the Credit Agreement, __________ has
appointed the Company (with an office on the date hereof at Corporate
Headquarters, 100 Crystal A Drive, Hershey, Pennsylvania 17033-0810, United
States) as Process Agent to receive on behalf of ______________ service of
copies of the summons and complaint and any other process which may be served
in any action or proceeding in any New York State or Federal court of the
United States of America sitting in New York City arising out of or relating to
the Credit Agreement.
The Company hereby accepts such appointment as Process Agent and
agrees with each of you that (i) the undersigned will not terminate or abandon
the undersigned agency as such Process Agent without at least six months' prior
notice to the Agent (and hereby acknowledges that the undersigned has been
retained for its services as Process Agent through __________), (ii) the
undersigned will maintain an office in the United States through such date and
will give the Agent prompt notice of any change of address of the undersigned,
(iii) the undersigned will perform its duties as Process Agent to receive on
behalf of ______________ service of copies of the summons and complaint and any
other process which may be served in any action or proceeding in any New York
State or Federal court of the United States of America sitting in New York City
arising out of or relating to the Credit Agreement and (iv) the undersigned
will forward forthwith to ______________ at its address at ________________ or,
if different, its then current address, copies of any summons, complaint and
other process which the undersigned receives in connection with its appointment
as Process Agent.
<PAGE>
This acceptance and agreement shall be binding upon the undersigned
and all successors of the undersigned.
Very truly yours,
[PROCESS AGENT]
By_______________________
<PAGE>
EXHIBIT G-1 - FORM OF
OPINION OF ROBERT M. REESE,
VICE PRESIDENT AND GENERAL COUNSEL
OF THE COMPANY
[Effective Date]
To each of the Lenders party
to the Credit Agreement referred
to below and to Citibank, N.A., as
Agent for such Lenders
Hershey Foods Corporation
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(g)(iv) of
the Five-Year Credit Agreement, dated as of December 15, 1995 (the "Credit
Agreement"), among Hershey Foods Corporation (the "Company"), the Lenders party
thereto, Citibank, N.A., as administrative agent (the "Agent") for said
Lenders, and BA Securities, Inc. and Citicorp Securities, Inc., as co-
syndication agents. Terms defined in the Credit Agreement are used herein as
therein defined.
I am the Vice President and General Counsel of the Company, and I
have acted as counsel for the Company in connection with the preparation,
execution and delivery of the Credit Agreement.
In that connection, I have examined:
(1) the Credit Agreement and the Revolving Credit Notes of the
Company;
(2) the documents furnished by the Company pursuant to Article III
of the Credit Agreement;
(3) the Amended and Restated Certificate of Incorporation of the
Company and all amendments thereto (the "Charter"); and
(4) The by-laws of the Company and all amendments thereto (the
"By-laws").
I have also examined the originals, or copies certified to my
satisfaction, of such other corporate records of the Company, certificates of
public officials and of officers of the Company, and agreements, instruments
and other documents, as I have deemed necessary as a basis for the opinions
expressed below. In making such examinations, I have assumed the genuineness
of all signatures (other than those on behalf of the Company), the authenticity
of all documents submitted to me as originals and the conformity to authentic
original documents of all documents submitted to me as certified, conformed or
photographic copies. As to questions of fact material to such opinions, I
have, when relevant facts were not independently established by me, relied upon
<PAGE>
certificates of the Company or its officers or of public officials and as to
questions of fact and law, on opinions or statements by other lawyers reporting
to me. I have assumed the due execution and delivery, pursuant to due
authorization, of the Credit Agreement by the Initial Lenders and the Agent.
My opinions expressed below are limited to the law of the
Commonwealth of Pennsylvania, and, where applicable, the General Corporation
Law of the State of Delaware and the Federal law of the United States.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, and do not contravene
(i) the Charter or the By-laws or (ii) any law, rule or regulation
applicable to the Company (including, without limitation, Regulation X of
the Board of Governors of the Federal Reserve System) or (iii) any
contractual or legal restriction binding on or affecting the Company or,
to the best of my knowledge, contained in any other similar document,
except where such contravention would not be reasonably likely to have a
Material Adverse Effect. The Credit Agreement and the Revolving Credit
Notes of the Company have been duly executed and delivered on behalf of
the Company.
3. No authorization, 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 Company of the Credit Agreement and the Notes, or for the consummation
of the transactions contemplated thereby, except for the authorizations,
approvals, actions, notices and filings (i) listed on Schedule 4.01(c) to
the Credit Agreement, all of which have been duly obtained, taken, given
or made and are in full force and effect and (ii) where the Company's
failure to receive, take or make such authorization, approval, action,
notice or filing would not have a Material Adverse Effect.
4. There (i) are no pending or, to the best of my knowledge,
threatened actions, investigations, litigations or proceedings against the
Company or any of its Subsidiaries before any court, governmental agency
or arbitrator that (a) would be reasonably likely to have a Material
Adverse Effect (other than the Disclosed Litigation) or (b) purport to
affect the legality, validity, binding effect or enforceability of the
Credit Agreement or any of the Notes or the consummation of the
transactions contemplated thereby, and (ii) there has been no adverse
change in the status, or financial effect on the Company and its
Subsidiaries taken as a whole, of the Disclosed Litigation from that
described on Schedule 3.01(b) thereto.
<PAGE>
This opinion letter may be relied upon by you only in connection with
the transaction being consummated pursuant to the Credit Agreement and may not
be used or relied upon by any other person for any other purpose.
Very truly yours,
<PAGE>
EXHIBIT G-2 - FORM OF OPINION
OF SIMPSON, THACHER & BARTLETT,
SPECIAL NEW YORK COUNSEL
TO THE COMPANY
December , 1995
To each of the Lenders listed on
Schedule I hereto and to Citibank,
N.A., as Agent for such Lenders
Ladies and Gentlemen:
We have acted as special New York counsel to Hershey Foods
Corporation (the "Company") in connection with the preparation, execution and
delivery of the Five-Year Credit Agreement, dated as of December 15, 1995 (the
"Credit Agreement"), among the Company, the Lenders party thereto, Citibank,
N.A., as administrative agent (the "Agent") for said Lenders, and BA
Securities, Inc. and Citicorp Securities, Inc., as co-syndication agents.
This opinion is being delivered pursuant to Section 3.01(g)(v) of the
Five-Year Credit Agreement. Terms defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of the Credit
Agreement and the Revolving Credit Notes and the opinion of Robert M. Reese,
Vice President and General Counsel of the Company (the "Company Opinion"). In
addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records of the Company,
certificates of public officials and of officers of the Company and agreements,
instruments and other documents, and have made such other investigations, as we
have deemed relevant and necessary as a basis for the opinions hereinafter set
forth.
For the purposes hereof, we have assumed, with your permission, the
genuineness of all signatures, the legal capacity of natural persons and the
authenticity and regularity of all documents examined by us. As to questions
of fact relevant to this opinion, we have relied upon, and assume the accuracy
of, certificates and oral or written statements and other information of the
Company or of its officers or of public officials and representations and
warranties of the Company set forth in the Credit Agreement and assume
compliance on the part of all parties to the Credit Agreement with their
covenants and agreements contained therein. We have assumed the due execution
and delivery, pursuant to due authorization, of each of the documents referred
to above by all parties thereto.
Based on and subject to the foregoing, and subject to the
qualifications and exceptions set forth herein, we are of the opinion that:
1. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes, and the borrowings by the Company thereunder,
do not violate any present Federal or New York law, rule or regulation known by
<PAGE>
us to be applicable to the Company (including, without limitation, Regulation X
of the Board of Governors of the Federal Reserve System).
2. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body pursuant to any
present Federal or New York law or regulation known by us to be applicable to
the Company is required for the due execution, delivery and performance by the
Company of the Credit Agreement and the Notes, or for the borrowings of the
Company thereunder.
3. The Credit Agreement and the Revolving Credit Notes dated and
delivered as of the date hereof are, and the other Notes when executed and
delivered under the Credit Agreement will be, legal, valid and binding
obligations of the Company enforceable against the Company in accordance with
their respective terms.
Our opinions set forth in paragraph 3 above are subject to the
effects of bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and general principles of
equity (whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
With your permission, we do not express any opinion as to:
(a) the effect of the law of any jurisdiction other than the State
of New York wherein any Lender may be located or wherein enforcement of
the Credit Agreement or the Notes may be sought that limits the rates of
interest legally chargeable or enforceable.
(b) any indemnification obligations of the Company under the Credit
Agreement to the extent such obligations might be deemed to be
inconsistent with public policy.
(c) any provision of the Credit Agreement that purports to establish
an evidentiary standard for determinations by the Lenders or the Agent.
We are members of the Bar of the State of New York and do not purport
to be experts on, or to express any opinions herein concerning, any law other
than the laws of the State of New York, the federal laws of the United States
of America and the General Corporation Law of the State of Delaware. To the
extent that our opinions expressed herein involve conclusions as to matters set
forth in the Company Opinion, we have assumed without independent investigation
the correctness of the matters set forth in the Company Opinion, our opinions
being subject to the assumptions, qualifications and limitations set forth in
the Company Opinion with respect thereto.
This opinion is rendered only to you and is solely for your benefit
in connection with the execution and delivery of the Credit Agreement. This
opinion may not be relied upon by you for any other purpose, or relied upon by
or furnished to any other person, firm, or corporation for any purpose, without
<PAGE>
our prior written consent, except that a copy may be furnished to, but not
relied upon by, an Eligible Assignee which is a prospective assignee under the
Credit Agreement.
Very truly yours,
<PAGE>
EXHIBIT H - FORM OF OPINION OF COUNSEL
TO A DESIGNATED SUBSIDIARY
[Date]
To each of the Lenders party
to the Credit Agreement
referred to below,
and to Citibank, N.A., as Agent
for said Lenders
Ladies and Gentlemen:
In my capacity as counsel to _____________________ ("Designated
Subsidiary"), I have reviewed that certain Five-Year Credit Agreement, dated as
of December 15, 1995 (the "Credit Agreement"), among Hershey Foods Corporation
(the "Company"), the Lenders party thereto, Citibank, N.A., as administrative
agent (the "Agent") for said Lenders, and BA Securities, Inc. and Citicorp
Securities, Inc., as co-syndication agents. Terms defined in the Credit
Agreement are used herein as therein defined. In connection therewith, I have
also examined the following documents:
(i) The Designation Letter (as defined in the Credit Agreement)
executed by the Designated Subsidiary.
[such other documents as counsel may wish to refer to]
I have also reviewed such matters of law and examined the original,
certified, conformed or photographic copies of such other documents, records,
agreements and certificates as I have considered relevant hereto. As to
questions of fact material to such opinions, we have, when relevant facts were
not independently established by us, relied upon certificates of the Designated
Subsidiary or of its officers or of public officials and as to questions of
fact and law, on opinions or statements by other lawyers reporting to me. I
have assumed (i) the due execution and delivery, pursuant to due authorization,
of each of the documents referred to above by all parties thereto other than
the Designated Subsidiary, (ii) the authenticity of all such documents
submitted to us as originals and (iii) the conformity to originals of all such
documents submitted to me as certified, conformed or photographic copies.
My opinions expressed below are limited to ________________ and the
State of New York.
Based upon the foregoing, and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Designated Subsidiary (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of
_________________________, (b) is duly qualified in each other
jurisdiction in which it owns or leases property or in which the conduct
of its business requires it to so qualify or be licensed and (c) has all
requisite corporate power and authority to own or lease and operate its
properties and to carry on its business as now conducted and as proposed
to be conducted.
<PAGE>
2. The execution, delivery and performance by the Designated
Subsidiary of its Designation Letter, the Credit Agreement and its
Revolving Credit Notes, and the consummation of the transactions
contemplated thereby, are within the Designated Subsidiary's corporate
powers, have been duly authorized by all necessary corporate action, and
do not contravene (i) any provision of the charter or by-laws or other
constituent documents of the Designated Subsidiary, (ii) any law, rule or
regulation applicable to the Designated Subsidiary or (iii) any
contractual or legal obligation or restriction binding on or affecting the
Designated Subsidiary, except where such contravention would not be
reasonably likely to have a Material Adverse Effect. The Designation
Letter and each Revolving Credit Note of the Designated Subsidiary has
been duly executed and delivered on behalf of the Designated Subsidiary.
3. The Designation Letter of the Designated Subsidiary, the Credit
Agreement and the Revolving Credit Notes of the Designated Subsidiary are,
and each other Note of the Designated Subsidiary when executed and
delivered under the Credit Agreement will be, legal, valid and binding
obligations of the Designated Subsidiary enforceable in accordance with
their respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or moratorium or other
similar laws relating to the enforcement of creditors' rights generally or
by the application of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
and except that I express no opinion as to (i) the subject matter
jurisdiction of the District Courts of the United States of America to
adjudicate any controversy relating to the Credit Agreement, the
Designation Letter of the Designated Subsidiary or the Notes of the
Designated Subsidiary or (ii) the effect of the law of any jurisdiction
(other than the State of New York) wherein any Lender or Applicable
Lending Office may be located or wherein enforcement of the Credit
Agreement, the Designation Letter of the Designated Subsidiary or the
Notes of the Designated Subsidiary may be sought which limits rates of
interest which may be charged or collected by such Lender.
4. There is no pending, or to the best of my knowledge, threatened
action, investigation, litigation or proceeding at law or in equity
against the Designated Subsidiary before any court, governmental agency or
arbitrator that would be reasonably likely to have a Material Adverse
Effect or that purports to affect the legality, validity, binding effect
or enforceability of the Designation Letter of the Designated Subsidiary,
the Credit Agreement or any Revolving Credit Note of the Designated
Subsidiary, or the consummation of the transactions contemplated thereby.
5. No authorization, 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 Designated Subsidiary of its Designation Letter, the Credit Agreement
or the Notes of the Designated Subsidiary except for such authorizations,
consents, approvals, actions, notices or filings as have heretofore been
made, obtained or affected and are in full force and effect.
<PAGE>
This opinion letter may be relied upon by you only in connection with
the transaction being consummated pursuant to the Credit Agreement and may not
be used or relied upon by any other person for any other purpose.
Very truly yours,
<PAGE>
COPY AS EXECUTED
U.S. $400,000,000
FIVE-YEAR CREDIT AGREEMENT
Dated as of December 15, 1995
Among
HERSHEY FOODS CORPORATION,
as Borrower,
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
CITIBANK, N.A.,
as Administrative Agent,
and
BA SECURITIES, INC. and
CITICORP SECURITIES, INC.,
as Co-Syndication Agents
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms . . . . . . . . . . . . . . . 1
SECTION 1.02. Computation of Time Periods . . . . . . . . . . . . 12
SECTION 1.03. Accounting Terms . . . . . . . . . . . . . . . . . . 12
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances . . . . . . . . . . . 12
SECTION 2.02. Making the Revolving Credit Advances . . . . . . . . 13
SECTION 2.03. The Competitive Bid Advances . . . . . . . . . . . . 14
SECTION 2.04. Fees . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.05. Termination, Reduction or Increase of the
Commitments . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.06. Repayment of Revolving Credit Advances . . . . . . . 21
SECTION 2.07. Interest on Revolving Credit Advances . . . . . . . 21
SECTION 2.08. Interest Rate Determination . . . . . . . . . . . . 22
SECTION 2.09. Optional Conversion of Revolving Credit Advances . . 24
SECTION 2.10. Optional Prepayments of Revolving Credit Advances . 24
SECTION 2.11. Increased Costs . . . . . . . . . . . . . . . . . . 24
SECTION 2.12. Illegality . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.13. Payments and Computations . . . . . . . . . . . . . 26
SECTION 2.14. Taxes . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.15. Sharing of Payments, Etc. . . . . . . . . . . . . . 29
SECTION 2.16. Use of Proceeds . . . . . . . . . . . . . . . . . . 29
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections
2.01 and 2.03 . . . . . . . . . . . . . . . . . . 30
SECTION 3.02. Initial Borrowing of Each Designated Subsidiary . . 32
SECTION 3.03. Conditions Precedent to Each Revolving Credit
Borrowing . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.04. Conditions Precedent to Each Competitive Bid
Borrowing . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.05. Determinations Under Section 3.01 . . . . . . . . . 34
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company . . . 34
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. Affirmative Covenants . . . . . . . . . . . . . . . 36
SECTION 5.02. Negative Covenants . . . . . . . . . . . . . . . . . 39
SECTION 5.03. Financial Covenant . . . . . . . . . . . . . . . . . 41
<PAGE>
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . 41
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.02. Guaranty Absolute . . . . . . . . . . . . . . . . . 44
SECTION 7.03. Waivers and Acknowledgments . . . . . . . . . . . . 44
SECTION 7.04. Subrogation . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.05. Continuing Guaranty; Assignments under the Credit
Agreement . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.06. No Stay . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action . . . . . . . . . . . . . . 46
SECTION 8.02. Agent's Reliance, Etc. . . . . . . . . . . . . . . 46
SECTION 8.03. Citibank and Affiliates . . . . . . . . . . . . . . 47
SECTION 8.04. Lender Credit Decision . . . . . . . . . . . . . . . 47
SECTION 8.05. Indemnification . . . . . . . . . . . . . . . . . . 47
SECTION 8.06. Successor Agent . . . . . . . . . . . . . . . . . . 47
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. . . . . . . . . . . . . . . . . . 48
SECTION 9.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . 48
SECTION 9.03. No Waiver; Remedies . . . . . . . . . . . . . . . . 49
SECTION 9.04. Costs and Expenses . . . . . . . . . . . . . . . . . 49
SECTION 9.05. Right of Set-off . . . . . . . . . . . . . . . . . . 51
SECTION 9.06. Binding Effect; Termination of Existing Credit
Agreements . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.07. Assignments, Designations and Participations . . . . 51
SECTION 9.08. Designated Subsidiaries . . . . . . . . . . . . . . 54
SECTION 9.09. Confidentiality . . . . . . . . . . . . . . . . . . 54
SECTION 9.10. Governing Law . . . . . . . . . . . . . . . . . . . 55
SECTION 9.11. Execution in Counterparts . . . . . . . . . . . . . 55
SECTION 9.12. Jurisdiction, Etc. . . . . . . . . . . . . . . . . 55
SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule II - Existing Credit Agreements
Schedule 3.01(b) - Disclosed Litigation
Schedule 4.01(c) - Required Authorizations and Approvals
<PAGE>
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 Designation Letter
Exhibit F - Form of Acceptance by Process Agent
Exhibit G-1 - Form of Opinion of Robert M. Reese, Vice President and
General Counsel of the Company
Exhibit G-2 - Form of Opinion of Simpson, Thacher & Bartlett,
Special New York Counsel to the Company
Exhibit H - Form of Opinion of Counsel to a Designated Subsidiary
<PAGE>
____________________
[FN]
<F1> This language should be added only if the Borrower is a Designated
Subsidiary.
<F2> Which shall be subject to the definition of "Interest Period" and end on
or before the Termination Date.
<F3> This language should be added only if the Borrower is a Designated
Subsidiary.
<F4> This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
