AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 24, 1998
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
(AMENDMENT NO. 9)
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D/A
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 14)
DEKALB GENETICS CORPORATION
(NAME OF SUBJECT COMPANY)
---------------------------------------
CORN ACQUISITION CORPORATION
MONSANTO COMPANY
(BIDDERS)
CLASS A COMMON STOCK, WITHOUT PAR VALUE
CLASS B COMMON STOCK, WITHOUT PAR VALUE
(TITLE OF CLASS OF SECURITIES)
244878104
244878203
(CUSIP NUMBER OF CLASS OF SECURITIES)
BARBARA L. BLACKFORD, ESQ.
CORN ACQUISITION CORPORATION
C/O MONSANTO COMPANY
800 N. LINDBERGH BLVD.
ST. LOUIS, MISSOURI 63167
(314) 694-1000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS
ON BEHALF OF BIDDER)
COPIES TO:
RICHARD D. KATCHER, ESQ.
DAVID M. SILK, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ
51 WEST 52ND STREET
NEW YORK, NEW YORK 10019
(212) 403-1000
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<PAGE>
This Amendment No. 9 (this "Amendment") amends and supplements
the Tender Offer Statement on Schedule 14D-1 filed with the Securities and
Exchange Commission on May 15, 1998 (as amended from time to time, the "Schedule
14D-1") by Monsanto Company, a Delaware corporation ("Parent"), and by Corn
Acquisition Corporation (the "Purchaser"), a Delaware corporation and a
wholly-owned subsidiary of Parent. The Schedule 14D-1 and this Amendment relate
to a tender offer by the Purchaser to purchase all outstanding shares of (i)
Class A Common Stock, without par value (the "Class A Shares") and (ii) Class B
Common Stock, without par value (the "Class B Shares" and, collectively with the
Class A Shares, the "Shares"), of DEKALB Genetics Corporation, a Delaware
corporation (the "Company"), at a purchase price of $100.00 per Share, net to
the seller in cash, without interest thereon, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated May 15, 1998 and in the
related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the "Offer"), copies of which are
filed with the Schedule 14D-1 as Exhibits (a)(1) and (a)(2), respectively. This
Amendment is also Amendment No. 14 to the Schedule 13D filed by Parent with
respect to the Class A Shares. Capitalized terms used but not defined herein
have the meanings ascribed to them in the Offer to Purchase or the Schedule
14D-1 as previously amended.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 4(b) is hereby amended and supplemented as follows:
Parent previously disclosed that it, Citibank and SSB had
entered into a Committment with respect to a $2 billion senior debt facility,
consisting of an unsecured, revolving 364-day commercial paper backstop
facility. On November 18, 1998, Parent executed a credit agreement (the "Credit
Facility") with Citibank, N.A., as administrative agent for the lenders listed
on the signature pages thereto (the "Lenders"), Salomon Smith Barney Inc., as
arranger, and Bank of America NT&SA and Commerzbank AG, as co-syndication
agents. The Credit Facility provides for an unsecured revolving credit facility,
which will allow Parent to borrow up to $2 billion through the incurrence of
Base Rate Advances (as defined in the Credit Facility) and Eurodollar Rate
Advances (as defined in the Credit Agreement). The Credit Facility also provides
for borrowings at rates and on repayment terms based on competitive bids
solicited by Citibank from the Lenders for maturities of thirty days or more.
The proceeds of borrowings under the Credit Facility will be available for
general corporate purposes, including the acquisition of the Company and
commercial paper backstop. Unless terminated earlier by Parent, commitments
under the Credit Facility will terminate on November 17, 1999.
The Credit Facility provides for borrowings which bear
interest at one of the following rates per annum, as selected by Parent from
time to time: (A) in the case of a Base Rate Advance, the highest of (1) the
Citibank publicly announced base rate, (2) a rate of 1/2% plus a three-week
moving average rate for certain certificates of deposit (as determined by
Citibank and adjusted based on a reserve requirement) plus the average during
such three-week period of certain annual assessment rates estimated by Citibank
for determining certain assessments payable to the Federal Deposit Insurance
Corporation by Citibank in connection with insuring its U.S. dollar deposits in
the United States, or (3) the Federal Funds Rate (as defined in the Credit
Facility) plus 1/2%; and (B) in the case of a Eurodollar Rate Advance, the sum
of (1) the Eurodollar Rate (as defined in the Credit Facility) (as adjusted for
maximum reserves) as determined by Citibank for the respective interest period,
plus (2) the Applicable Margin (as defined in the Credit Facility), plus (3) the
Applicable Utilization Fee (as defined in the Credit
1
<PAGE>
Facility), if any. The Applicable Margin ranges from 18.5 to 62.5 basis points
based on Parent's long-term senior unsecured non-credit enhanced debt rating.
The Applicable Utilization Fee ranges from 5 to 15 basis points if Utilization
(as defined in the Credit Facility) is at least 33 1/3% but less than 66 2/3%
and from 10 to 37.5 basis points if Utilization is 66 2/3% or more, in each case
based on Parent's same such debt rating. Eurodollar Rate Advances may have
maturities of a period of one, two, three or six (or nine if available by all
Lenders) months.
The Credit Facility contains certain customary representations
and warranties regarding, among other things, corporate existence, power and
authority, enforceability of the loan documents related to the Credit Facility,
no contravention of Parent's charter, bylaws or any contractual restriction
binding on or affecting Parent, financial statements, absence of material
adverse change, absence of certain litigation, certain matters related to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
certain environmental matters. The covenants in the Credit Facility require
Parent to, among other things, maintain its corporate existence, maintain
insurance, duly pay certain taxes, comply with law, maintain proper books of
record and account, provide certain periodic financial and audit reports to the
Lenders and notify the Lenders of certain events such as events of default and
certain events relating to ERISA. The Credit Facility also contains customary
covenants that restrict Parent from, among other things, incurring certain
liens, merging or consolidating with or into another entity other than pursuant
to the Credit Facility, selling, leasing, transferring or otherwise disposing of
all or substantially all of its assets or property, and making certain changes
in accounting policies or reporting practices.
In addition, the Credit Facility requires Parent to maintain a
Leverage Ratio (as defined in the Credit Facility) of no more than 60%, except
following an Acquisition Event (as defined in the Credit Facility), in which
case the Leverage Ratio must be no more than 75% until 181 days following the
closing of the Acquisition Event, 65% from 181 days until 361 days following
such closing, and 60% thereafter. Consummation of the Offer would constitute the
closing of an Acquisition Event.
Events of default under the Credit Facility include, subject
in certain instances to customary notice and cure periods, material breaches of
representations or warranties, failure to pay principal or interest, breach of
covenants, cross-default to certain other debt of Parent, bankruptcy, and
certain events relating to ERISA.
The Credit Facility provides for customary administrative and
facility fees to be paid by Parent to Citibank. In addition, pursuant to the
Credit Facility, Parent has agreed to reimburse Citibank for reasonable
out-of-pocket costs and expenses incurred by it in connection with the Credit
Facility. Parent has also agreed to indemnify Citibank, the Lenders and certain
related persons against claims, damages, losses, liabilities and expenses
arising in connection with the actual or proposed use of the proceeds of the
borrowings under the Credit Facility.
The foregoing description of the Credit Facility is qualified
in its entirety by reference to the Credit Facility, a copy of which has been
included as an exhibit hereto and is incorporated herein by reference.
No final decisions have been made concerning the method Parent
will employ to refinance or repay the indebtedness incurred by Parent under the
Credit Facility, if any. Such
-2-
<PAGE>
decisions will be based on Parent's review from time to time of the advisability
of particular actions, including the availability of cash flow generated by
Parent, prevailing interest rates, market conditions and other financial and
economic conditions.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) -- Offer to Purchase, dated May 15, 1998.*
(a)(2) -- Letter of Transmittal.*
(a)(3) -- Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.*
(a)(4) -- Letter to Clients for Use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.*
(a)(5) -- Notice of Guaranteed Delivery.*
(a)(6) -- Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
(a)(7) -- Text of press release issued by Parent and the Company on
May 11, 1998.*
(a)(7)(i) -- Text of press release issued by Parent on June 1, 1998.*
(a)(7)(ii) -- Text of press release issued by Parent on June 3, 1998*
(a)(7)(iii) -- Text of press release issued by Parent on June 15, 1998*
(a)(7)(iv) -- Text of press release issued by Parent on July 10, 1998*
(a)(7)(v) -- Text of press release issued by Parent on August 7, 1998*
(a)(7)(vi) -- Text of press release issued by Parent on September 14, 1998*
(a)(8) -- Form of Summary Advertisement, dated May 15, 1998.*
(b)(1) -- 364-Day Credit Agreement, dated as of November 18, 1998,
among Parent, the Lenders named therein, Citibank, N.A., as
administrative agent, Salomon Smith Barney Inc., as arranger,
and Bank of America NT & SA and Commerzbank AG as
co-syndication agents.
(c)(1) -- Agreement and Plan of Merger, dated as of May 8, 1998, by and
among the Company, the Purchaser and Parent.*
(c)(2) -- Stockholders Agreement, dated May 8, 1998, among Parent, the
Voting Trustees and the Registered Holders.*
(c)(3) -- Investment Agreement, dated as of January 31, 1996, between
the Company and Parent.*
(c)(4) -- Stockholders' Agreement, dated as of January 31, 1996,
between Parent and the other holders of Class A Shares of the
Company.*
(c)(5) -- Registration Rights Agreement, dated as of January 31, 1996,
between the Company and Parent.*
(c)(6) -- Collaboration Agreement and License, dated as of January 31,
1996, between the Company and Parent.**
(c)(7) -- Corn Borer-Protected Corn License Agreement, dated as of
January 31, 1996, between the Company and Parent.**
-3-
<PAGE>
(c)(8) -- Glyphosate-Protected Corn License Agreement, dated as of
January 31, 1996, between the Company and Parent.**
(c)(9) -- CaMV Promoter License Agreement (Glufosinate-Protected Corn),
dated as of January 31, 1996, between the Company and
Parent.*
(d) -- Not applicable.
(e) -- Not applicable.
(f) -- Not applicable.
* Previously filed.
** Incorporated by reference to the Schedule 13D filed by Parent with
respect to the Class A Shares.
-4-
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: November 23, 1998
MONSANTO COMPANY
By: /s/ Derek K. Rapp
------------------------------------------
Name: Derek K. Rapp
Title: Director, Mergers & Acquisitions
(Authorized Officer)
CORN ACQUISITION CORPORATION
By: /s/ Barbara L. Blackford
------------------------------------------
Name: Barbara L. Blackford
Title: President, Secretary & Treasurer
-5-
<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
- ------- -----------
(a)(1) -- Offer to Purchase, dated May 15, 1998.*
(a)(2) -- Letter of Transmittal.*
(a)(3) -- Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(4) -- Letter to Clients for Use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.*
(a)(5) -- Notice of Guaranteed Delivery.*
(a)(6) -- Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
(a)(7) -- Text of press release issued by Parent and the Company on
May 11, 1998.*
(a)(7)(i) -- Text of press release issued by Parent on June 1, 1998.*
(a)(7)(ii) -- Text of press release issued by Parent on June 3, 1998.*
(a)(7)(iii) -- Text of press release issued by Parent on June 15, 1998*
(a)(7)(iv) -- Text of press release issued by Parent on July 10, 1998*
(a)(7)(v) -- Text of press release issued by Parent on August 7, 1998*
(a)(7)(vi) -- Text of press release issued by Parent on September 14,
1998*
(a)(8) -- Form of Summary Advertisement, dated May 15, 1998.*
(b)(1) -- 364-Day Credit Agreement, dated as of November 18, 1998,
among Parent, the Lenders named therein, Citibank, N.A., as
administrative agent, Salomon Smith Barney Inc., as
arranger, and Bank of America NT & SA and Commerzbank AG as
co-syndication agents.
(c)(1) -- Agreement and Plan of Merger, dated as of May 8, 1998, by
and among the Company, the Purchaser and Parent.*
(c)(2) -- Stockholders Agreement, dated May 8, 1998, among Parent,
the Voting Trustees and the Registered Holders.*
(c)(3) -- Investment Agreement, dated as of January 31, 1996, between
the Company and Parent.*
(c)(4) -- Stockholders' Agreement, dated as of January 31, 1996,
between Parent and the other holders of Class A Shares of
the Company.*
(c)(5) -- Registration Rights Agreement, dated as of January 31,
1996, between the Company and Parent.*
(c)(6) -- Collaboration Agreement and License, dated as of January
31, 1996, between the Company and Parent.**
(c)(7) -- Corn Borer-Protected Corn License Agreement, dated as of
January 31, 1996, between the Company and Parent.**
(c)(8) -- Glyphosate-Protected Corn License Agreement, dated as of
January 31, 1996, between the Company and Parent.**
(c)(9) -- CaMV Promoter License Agreement (Glufosinate-Protected
Corn), dated as of
<PAGE>
January 31, 1996, between the Company and Parent.*
(d) -- Not applicable.
(e) -- Not applicable.
(f) -- Not applicable.
* Previously filed.
** Incorporated by reference to the Schedule 13D filed by Parent with respect
to the Class A Shares.
EXHIBIT (b)(1)
EXECUTION COPY
U.S. $2,000,000,000
364-DAY CREDIT AGREEMENT
Dated as of November 18, 1998
Among
MONSANTO COMPANY,
AS BORROWER
and
THE INITIAL LENDERS NAMED HEREIN,
AS INITIAL LENDERS
and
CITIBANK, N.A.,
AS ADMINISTRATIVE AGENT
and
SALOMON SMITH BARNEY INC.,
AS ARRANGER
and
BANK OF AMERICA NT&SA
and
COMMERZBANK AG
AS CO-SYNDICATION AGENTS
<PAGE>
T A B L E O F C O N T E N T S
- - - - - - - - - - - - - - -
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms ................................. 1
SECTION 1.02. Computation of Time Periods ........................... 14
SECTION 1.03. Accounting Terms ...................................... 14
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances ........................................ 14
SECTION 2.02. Making the A Advances ................................. 15
SECTION 2.03. The B Advances ........................................ 17
SECTION 2.04. Fees .................................................. 20
SECTION 2.05. Termination or Reduction of the Commitments ........... 21
SECTION 2.06. Repayment of A Advances ............................... 22
SECTION 2.07. Interest on A Advances ................................ 22
SECTION 2.08. Interest Rate Determination ........................... 23
SECTION 2.09. Optional Conversion of A Advances ..................... 24
SECTION 2.10. Optional Prepayments of A Advances .................... 25
SECTION 2.11. Increased Costs ....................................... 25
SECTION 2.12. Illegality ............................................ 28
SECTION 2.13. Payments and Computations ............................. 29
SECTION 2.14. Notations on the A Notes .............................. 30
SECTION 2.15. Taxes ................................................. 30
SECTION 2.16. Sharing of Payments, Etc. ............................. 32
SECTION 2.17. Use of Proceeds.........................................33
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03 ............................. 33
SECTION 3.02. Conditions Precedent to Each A Borrowing ............. 34
SECTION 3.03. Conditions Precedent to Each B Borrowing .............. 35
SECTION 3.04. Determinations Under Section 3.01 ..................... 35
ARTICLE IV
<PAGE>
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower ........ 36
SECTION 4.02. Representation and Warranty of the Lenders ............ 37
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants ................................. 38
SECTION 5.02. Negative Covenants .................................... 40
SECTION 5.03. Financial Covenant .................................... 42
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default ..................................... 42
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action .............................. 44
SECTION 7.02. Administrative Agent's Reliance, Etc. ................. 45
SECTION 7.03. Citibank and Affiliates ............................... 45
SECTION 7.04. Lender Credit Decision ................................ 46
SECTION 7.05. Indemnification ....................................... 46
SECTION 7.06. Successor Administrative Agent ........................ 46
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. ...................................... 47
SECTION 8.02. Notices, Etc. ......................................... 48
SECTION 8.03. No Waiver; Remedies ................................... 48
SECTION 8.04. Costs and Expenses .................................... 48
SECTION 8.05. Right of Set-off ...................................... 49
SECTION 8.06. Binding Effect ........................................ 49
SECTION 8.07. Assignments and Participations; Register .............. 50
<PAGE>
SECTION 8.08. Governing Law ......................................... 53
SECTION 8.09. Execution in Counterparts ............................. 53
SECTION 8.10. Jurisdiction, Etc. .................................... 53
SCHEDULE
Schedule I - List of Applicable Lending Offices
EXHIBITS
Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit B-1 - Form of Notice of A Borrowing
Exhibit B-2 - Form of Notice of B Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Associate General Counsel for the Borrower
<PAGE>
364-DAY CREDIT AGREEMENT
Dated as of November 18, 1998
Monsanto Company, a Delaware corporation (the "BORROWER"), the banks
(the "INITIAL LENDERS") listed on the signature pages hereof and Citibank, N.A.
("CITIBANK"), as administrative agent (the "ADMINISTRATIVE AGENT") for the
Lenders (as hereinafter defined), Salomon Smith Barney Inc., as arranger, and
Bank of America NT&SA and Commerzbank AG, 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):
"A ADVANCE" means an advance by a Lender to the Borrower as part of an
A Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance,
each of which shall be a "TYPE" of A Advance.
"A BORROWING" means a borrowing consisting of simultaneous A Advances
of the same Type made by each of the Lenders pursuant to Section 2.01.
"A NOTE" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-1 hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from
the A Advances made by such Lender.
"ACQUISITION EVENT" means the purchase or other acquisition by the
Borrower or any of its Subsidiaries in one transaction or in a series of
related transactions of all or part of the assets or stock of another
Person for an aggregate purchase price paid by or on behalf of the Borrower
or any of its Subsidiaries to or for the account of such other Person or
its shareholders (whether as initial consideration or through payment of
deferred consideration) exceeding $2 billion.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative
<PAGE>
2
Agent maintained by the Administrative Agent with Citibank at its office at
399 Park Avenue, New York, New York 10043, Account No. 36852248, Attention:
Jim Simpson.
"ADVANCE" means an A Advance or a B Advance.
"AFFECTED LENDER" has the meaning specified in Section 2.12.
"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.
"APPLICABLE FACILITY FEE" means, as of any date, the rate per annum
(expressed in basis points, i.e., 1/100 of 1%) set forth below opposite the
category below which best describes the Public Debt Ratings in effect on
such date as set forth below:
=============================================================================
Borrower's Public Debt Rating Applicable
S&P/MOODY'S FACILITY FEE
=============================================================================
LEVEL 1
Rated A/A2 or above 6.5
-----------------------------------------------------------------------------
LEVEL 2
Rated less than Level 1 but at least A-/A3 8.0
-----------------------------------------------------------------------------
LEVEL 3
Rated less than Level 2 but at least
BBB+/Baa1 10.0
------------------------------------------------------------------------------
LEVEL 4
Rated less than Level 3 but at least BBB/Baa2 12.5
------------------------------------------------------------------------------
LEVEL 5
Rated BBB-and Baa3; or one rating is at Level 6 17.5
and one rating is at or above Level 4
<PAGE>
3
------------------------------------------------------------------------------
LEVEL 6
Rated less than BBB- or Baa3 or unrated 25.0
------------------------------------------------------------------------------
"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 B Advance, the office of such Lender notified
by such Lender to the Administrative Agent as its Applicable Lending Office
with respect to such B Advance.
"APPLICABLE MARGIN" means, as of any date, for each Eurodollar Rate
Advance, the rate per annum (expressed in basis points, i.e., 1/100 of 1%)
set forth below opposite the category below which best describes the Public
Debt Ratings in effect on such date as set forth below:
================================================================================
Borrower's Public Debt Rating Applicable Margin for
S&P/MOODY'S Eurodollar Rate
ADVANCES
================================================================================
LEVEL 1
Rated A/A2 or above 18.5
- --------------------------------------------------------------------------------
LEVEL 2
Rated less than Level 1 but at least A-/A3 22.0
- --------------------------------------------------------------------------------
LEVEL 3
Rated less than Level 2 but at least 30.0
BBB+/Baa1
- --------------------------------------------------------------------------------
LEVEL 4
Rated less than Level 3 but at least BBB/Baa2 37.5
- --------------------------------------------------------------------------------
LEVEL 5
Rated BBB-and Baa3; or one rating is at Level 45.0
6 and one rating is at or above Level 4
- --------------------------------------------------------------------------------
LEVEL 6
Rated less than BBB- or Baa3 or unrated 62.5
- --------------------------------------------------------------------------------
<PAGE>
4
"APPLICABLE UTILIZATION FEE" means, as of any date on which the
Utilization in effect is greater than or equal to 33 1/3%, the rate per
annum (expressed in basis points, i.e., 1/100 of 1%) determined by
reference to the Public Debt Ratings and the Utilization in effect on such
date as set forth below:
===========================================================================
Borrower's Public Utilization Utilization
Debt Rating S&P/Moody's (greater than sign)33 1/3% and (greater than
(lesser than sign)66 2/3% sign)66 2/3%
===========================================================================
LEVEL 1 5.0 10.0
Rated A/A2 or above
- ---------------------------------------------------------------------------
LEVEL 2 5.0 15.0
Rated less than Level 1 but at
least A-/A3
- ---------------------------------------------------------------------------
LEVEL 3 5.0 15.0
Rated less than Level 2 but at
least BBB+/Baa1
- ---------------------------------------------------------------------------
LEVEL 4 10.0 25.0
Rated less than Level 3 but at
least BBB/Baa2
- ---------------------------------------------------------------------------
LEVEL 5 10.0 25.0
Rated BBB- and Baa3; or one rating is
rating is at Level 6 and one
rating is at or above Level 4
- ---------------------------------------------------------------------------
LEVEL 6 15.0 37.5
Rated less than BBB- or Baa3
or unrated
- ---------------------------------------------------------------------------
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
<PAGE>
5
"B ADVANCE" means an advance by a Lender to the Borrower as part of a
B Borrowing resulting from the auction bidding procedure described in
Section 2.03.
"B BORROWING" means a borrowing consisting of simultaneous B Advances
from each of the Lenders whose offer to make one or more B Advances as part
of such borrowing has been accepted by the Borrower under the auction
bidding procedure described in Section 2.03.
"B NOTE" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-2 hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from a B Advance
made by such Lender.
"B REDUCTION" has the meaning specified in Section 2.01.
"BASE RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or, if there is
no nearest 1/16 of 1%, to the next higher 1/16 of 1%) of (i) 1/2 of 1%
per annum, PLUS (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in
<PAGE>
6
the United States, PLUS (iii) the average during such three-week
period of the annual assessment rates estimated by Citibank for
determining the then current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means an A Advance that bears interest as provided
in Section 2.07(a)(i).
"BORROWING" means an A Borrowing or a B Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"COMMITMENT" has the meaning specified in Section 2.01.
"CONSOLIDATED" refers to the consolidation of the accounts of the
Borrower and its Subsidiaries in accordance with generally accepted
accounting principles, including principles of consolidation, consistent
with those applied in the preparation of the financial statements referred
to in Section 4.01(e).
"CONSOLIDATED NET WORTH" means the sum of the capital stock (excluding
treasury stock and capital stock subscribed for and unissued) and surplus
(including earned surplus, capital surplus and the balance of the current
profit and loss account not transferred to surplus) accounts of the
Borrower and its Subsidiaries appearing on a consolidated balance sheet of
the Borrower and its Subsidiaries prepared as of the date of determination
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).
"CONSOLIDATED SUBSIDIARY" means a Subsidiary, the accounts of which in
accordance with generally accepted accounting principles are consolidated
with those of the Borrower.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion of
A Advances of one Type into A Advances of the other Type pursuant to
Section 2.08 or
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7
2.09.
"DEBT" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (c)
all obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases and (d)
all Debt of others referred to in clauses (a) through (c) above
guaranteed directly or indirectly in any manner by such Person.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Administrative
Agent.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (i) a Lender; (ii) an Affiliate of a Lender;
(iii) a commercial bank organized under the laws of the United States, or
any State thereof, and having total assets in excess of $5,000,000,000;
(iv) a savings and loan association or savings bank organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $3,000,000,000; (v) a commercial bank organized under the laws of
any other country that is a member of the Organization for Economic
Cooperation and Development or has concluded special lending arrangements
with the International Monetary Fund associated with its General
Arrangements to Borrow or of the Cayman Islands, or a political subdivision
of any such country, and having total assets in excess of $5,000,000,000,
so long as such bank is acting through a branch or agency located in the
country in which it is organized or another country that is described in
this clause (v); (vi) a finance company, insurance company or other
financial institution or fund (whether a corporation, partnership, trust or
other entity) that is engaged in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business and having total
assets in excess of $3,000,000,000; and (vii) any other Person approved by
the Administrative Agent and the Borrower, such approval not to be
unreasonably withheld or delayed; PROVIDED, HOWEVER, that neither the
Borrower nor an Affiliate of the Borrower shall qualify as an Eligible
Assignee.
"ENVIRONMENTAL LAWS" means any and all applicable laws and regulations
relating to the protection of the environment, including laws relating to
emissions, discharges,
<PAGE>
8
releases, spills and disposal of material into the environment (e.g., air,
surface water, groundwater and the land).
"ENVIRONMENTAL PERMIT" means any permit, license or other governmental
approval required under any Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA EVENT" means (a) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, that would have a Material Adverse
Effect with respect to any Plan unless the 30-day notice requirement with
respect to such event has been waived by the PBGC; (b) the application for
a minimum funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan
pursuant to Section 4041(c) of ERISA; (d) the cessation of operations at a
facility of the Borrower or any of its ERISA Affiliates in the
circumstances described in Section 4062(e) of ERISA; (e) the failure by the
Borrower or any of its ERISA Affiliates to make a payment to a Plan if the
conditions for the imposition of a lien under Section 302(f)(1) of ERISA
are satisfied; (f) the adoption of an amendment to a Plan requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA; or
(g) 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 could constitute grounds
for the termination of, or the appointment of a trustee to administer, a
Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Administrative
Agent.
<PAGE>
9
"EURODOLLAR RATE" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the rate per annum at which
deposits in U.S. dollars are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first day
of such Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period. The Eurodollar Rate for any
Interest Period for each Eurodollar Rate Advance comprising part of the
same Borrowing shall be determined by the Administrative Agent on the basis
of applicable rates furnished to and received by the Administrative Agent
from the Reference Banks two Business Days before the first day of such
Interest Period, SUBJECT, HOWEVER, to the provisions of Section 2.08.
"EURODOLLAR RATE ADVANCE" means an A Advance that bears interest as
provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate
Advances is determined) having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"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
<PAGE>
10
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 Administrative 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).
"FLOATING RATE ADVANCES" has the meaning specified in Section
2.03(a)(i).
"FUNDED DEBT" means Debt in respect of the Advances, in the case of
the Borrower, and all other Debt of any Person that by its terms matures
more than one year after the date of its creation or matures within one
year from such date but is renewable or extendible, at the option of such
Person, to a date more than one year after such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders
to extend credit during a period of more than one year after such date.
"GAAP" has the meaning specified in Section 1.03.
"INDEMNIFIED PARTY" has the meaning specified in Section 8.04(b).
"INTEREST PERIOD" means, for each Eurodollar Rate Advance comprising
part of the same A Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three, six months
or, if nine month Eurodollar Rate interest periods are available to all
Lenders, nine months, as the Borrower may, upon notice received by the
Administrative 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) the 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 A Borrowing shall be of the
same duration;
<PAGE>
11
(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 listed on the signature pages
hereof and each institution that shall become a party hereto pursuant to
clause (b) of Section 2.05 or clauses (a), (b) and (d) of Section 8.07.
"LEVERAGE RATIO" means the ratio of Consolidated Funded Debt of the
Borrower and its Subsidiaries to the sum of Consolidated Funded Debt of the
Borrower and its Subsidiaries PLUS Consolidated Net Worth.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"MAJORITY LENDERS" means at any time Lenders owed at least 66-2/3% of
the then aggregate unpaid principal amount of the A Advances owing to
Lenders, or, if no such principal amount is then outstanding, Lenders
having at least 66-2/3% of the Commitments.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
financial condition or results of operations of the Borrower and its
Consolidated Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
financial condition or results of operations of the Borrower and its
Consolidated Subsidiaries
<PAGE>
12
taken as a whole.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any of its ERISA Affiliates
is making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to make
contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any of its ERISA Affiliates and at least one Person other than
the Borrower and its ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any of its ERISA Affiliates could have
liability under Section 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.
"NOTE" means an A Note or a B Note.
"NOTICE OF A BORROWING" has the meaning specified in Section 2.02(a).
"NOTICE OF B BORROWING" has the meaning specified in Section
2.03(a)(i).
"PBGC" means the Pension Benefit Guaranty Corporation.
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PRINCIPAL SUBSIDIARY" means, at any time, a domestic Consolidated
Subsidiary of the Borrower having (i) at least 10% of the total
Consolidated assets of the Borrower and its Subsidiaries (determined as of
the last day of the most recent fiscal quarter of the Borrower) or (ii) at
least 10% of the Consolidated net sales of the Borrower and its
Subsidiaries for the twelve month period ending on the last day of the most
recent fiscal quarter of the Borrower.
"PUBLIC DEBT RATING" means, as of any date, the rating that has been
most recently announced by either S&P or Moody's, as the case may be, for
any class of
<PAGE>
13
long-term senior unsecured debt issued by the Borrower. For purposes of the
foregoing, (a) if only one of S&P or Moody's shall have in effect a Public
Debt Rating, the Applicable Margin, the Applicable Facility Fee and the
Applicable Utilization Fee shall be determined by reference to the
available rating; (b) if neither of S&P or Moody's shall have in effect a
Public Debt Rating, the Applicable Margin, the Applicable Facility Fee and
the Applicable Utilization Fee will be set in accordance with Level 6 under
the definition of "APPLICABLE MARGIN", "APPLICABLE FACILITY FEE" or
"APPLICABLE UTILIZATION FEE", as the case may be; (c) 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; (d) 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; and (e)
in the case of ratings above BBB- by S&P or above Baa3 by Moody's, if the
ratings established by S&P or Moody's shall fall within different levels,
the Applicable Margin, the Applicable Facility Fee and the Applicable
Utilization Fee shall be based upon the higher rating, PROVIDED that if the
lower of such ratings is more than one level below the higher of such
ratings then the Applicable Margin, the Applicable Facility Fee and the
Applicable Utilization Fee shall be based upon the rating that is the level
above the lower of such ratings.
"REFERENCE BANKS" means The Northern Trust Company, Societe Generale
and Citibank, PROVIDED that the Borrower may at any time substitute another
Lender as one of the Reference Banks, but such substitution shall terminate
after 30 days if within such period the Majority Lenders shall have
notified the Administrative Agent of their objection to such substitution.
"REGISTER" has the meaning specified in Section 8.07(c).
"S&P" means Standard & Poor's, a division of The Mc-Graw-Hill
Companies, Inc.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any of its ERISA Affiliates and no Person other than the
Borrower and its ERISA Affiliates or (b) was so maintained and in respect
of which the Borrower or any of its ERISA Affiliates could have liability
under Section 4069 of ERISA in the event such plan has been or were to be
terminated.
"SUBSIDIARY" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or in
which) more than 50% of (a) the
<PAGE>
14
issued and outstanding capital stock having ordinary voting power to elect
a majority of the Board of Directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such
partnership or joint venture or (c) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one
or more of such Person's other Subsidiaries.
"TERMINATION DATE" means the earlier of (a) November 17, 1999 and (b)
the date of termination in whole of the Commitments pursuant to Section
2.05 or 6.01.
"UTILIZATION" means the decimal fraction, expressed as a percentage,
equal to the aggregate principal amount of the Advances then outstanding
DIVIDED BY the aggregate amount of the Lenders' Commitments at such time.
"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. 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. 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"). In the event that, after the date of
this Agreement, there are any changes in GAAP, the Lenders will consider a
request by the Borrower to amend this Agreement to take account of such changes.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE A ADVANCES. Each Lender severally agrees, on the
terms
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15
and conditions hereinafter set forth, to make A Advances to the Borrower from
time to time on any Business Day during the period from the Effective Date until
the Termination Date in an aggregate amount not to exceed at any time
outstanding (a) the amount set forth opposite such Lender's name on the
signature pages hereof or (b) if such Lender has had its Commitment reduced
pursuant to Section 2.05(b) or has entered into any Assignment and Acceptance,
the amount set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(c), in each case as such amount
may be reduced pursuant to Section 2.05 (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 B 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 "B
REDUCTION"). Each A Borrowing shall be in an aggregate amount of $10,000,000 or
an integral multiple of $1,000,000 in excess thereof, or the aggregate amount of
the unused portion of the Lenders' Commitments; PROVIDED, HOWEVER, that any A
Borrowing in an aggregate amount less than $10,000,000 shall consist solely of
Base Rate Advances. In addition, each A Borrowing shall consist of A Advances of
the same Type and having the same Interest Period made on the same day by the
Lenders ratably according to their respective Commitments. Within the limits of
each Lender's Commitment, the Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. MAKING THE A ADVANCES. (a) Each A Borrowing shall be
made on notice, given not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed A Borrowing (in the case of
an A Borrowing to be comprised of Eurodollar Rate Advances), or by 11:00 A.M.
(New York City time) on the day of the proposed A Borrowing (in the case of an A
Borrowing to be comprised of Base Rate Advances), by the Borrower to the
Administrative Agent, which shall give to each Lender prompt notice thereof by
telecopier or by telex. Each such notice of an A Borrowing (a "NOTICE OF A
BORROWING") shall be by telecopier or by telex, confirmed immediately in
writing, in substantially the form of Exhibit B-1 hereto, specifying therein the
requested (i) date of such A Borrowing, (ii) Type of A Advances comprising such
A Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of
an A Borrowing consisting of Eurodollar Rate Advances, the initial Interest
Period for each such A Advance. Each Lender shall on the date of such A
Borrowing, before 11:00 A.M. (New York City time), in the case of an A Borrowing
to be comprised of Eurodollar Rate Advances, and before 1:00 P.M. (New York City
time), in the case of an A Borrowing to be comprised of Base Rate Advances, make
available for the account of its Applicable Lending Office to the Administrative
Agent at its address referred to in Section 8.02, in same day funds, such
Lender's ratable portion of such A Borrowing. After the Administrative Agent's
receipt of
<PAGE>
16
such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
the Borrower may not select Eurodollar Rate Advances for any A Borrowing if the
obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12 (except as otherwise provided in
Section 2.12(b)(ii)).
(c) Each Notice of A Borrowing shall be binding on the Borrower. In
the case of any A Borrowing that the related Notice of A Borrowing specifies is
to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a result of
any revocation of such Notice of A Borrowing by the Borrower or any failure to
fulfill on or before the date specified in such Notice of A Borrowing for such A
Borrowing the applicable conditions set forth in Article III, including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the A
Advance to be made by such Lender as part of such A Borrowing when such A
Advance, as a result of such revocation or failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any A Borrowing (in the case of an A Borrowing to be
comprised of Eurodollar Rate Advances) and not later than 12:00 Noon (New York
City time) on the Business Day of the proposed A Borrowing (in the case of an A
Borrowing to be comprised of Base Rate Advances) that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such A
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such A Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount; PROVIDED, HOWEVER, that nothing in this subsection
(d) shall be construed to relieve any Lender from any obligation hereunder to
make available to the Administrative Agent its ratable portion of such A
Borrowing in accordance with subsection (a) of this Section 2.02. If and to the
extent that such Lender shall not have so made such ratable portion available to
the Administrative Agent, such Lender and the Borrower severally agree to repay
to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time to the A Advances comprising such A Borrowing and (ii)
in the case of such Lender, the Federal Funds Rate. If such Lender shall repay
to the Administrative Agent such corresponding amount, such amount so repaid
shall
<PAGE>
17
constitute such Lender's A Advance as part of such A Borrowing for purposes of
this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it
as part of any A Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its A Advance on the date of such A Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the A
Advance to be made by such other Lender on the date of any A Borrowing.
SECTION 2.03. THE B ADVANCES. (a) Each Lender severally agrees that
the Borrower may make B Borrowings under this Section 2.03 from time to time on
any Business Day during the period from the Effective Date until the date
occurring seven days prior to the Termination Date in the manner set forth
below; PROVIDED that, following the making of each B Borrowing, (X) the
aggregate amount of the B Advances of all Lenders then outstanding shall not
exceed the aggregate amount of the Commitments of the Lenders, and (Y) the
aggregate amount of all Advances then outstanding shall not exceed the aggregate
amount of the Commitments of the Lenders.
(i) The Borrower may request a B Borrowing under this Section 2.03 by
delivering to the Administrative Agent, by telecopier or telex, confirmed
immediately in writing, a notice of a B Borrowing (a "NOTICE OF B
BORROWING"), in substantially the form of Exhibit B-2 hereto, specifying
therein (v) the date of such proposed B Borrowing, (w) the aggregate amount
of such proposed B Borrowing, (x) the maturity date for repayment of each B
Advance to be made as part of such B Borrowing (which maturity date may not
be earlier than the date occurring thirty days after the date of such B
Borrowing or later than the Termination Date), (y) the interest payment
date or dates relating thereto, and (z) any other terms to be applicable to
such B 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 B Borrowing, if
the Borrower shall specify in the Notice of B Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates per annum (the B
Advances comprising any such B Borrowing being referred to herein as "FIXED
RATE ADVANCES") and (B) at least four Business Days prior to the date of
the proposed B Borrowing, if the Borrower shall instead specify in the
Notice of B Borrowing the basis to be used by the Lenders in determining
the rates of interest to be offered by them (the B Advances comprising such
B Borrowing being referred to herein as "FLOATING RATE ADVANCES"). The
Administrative Agent shall in turn promptly notify each Lender of each
request for a B Borrowing received by it from the Borrower by sending such
Lender a copy of the related Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably
<PAGE>
18
offer to make one or more B Advances to the Borrower as part of such
proposed B Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Administrative Agent (which
shall give prompt notice thereof to the Borrower), before 10:00 A.M. (New
York City time) on the date of such proposed B Borrowing, in the case of a
B Borrowing consisting of Fixed Rate Advances and three Business Days
before the date of such proposed B Borrowing, in the case of a B Borrowing
consisting of Floating Rate Advances, of the minimum amount and maximum
amount of each B Advance which such Lender would be willing to make as part
of such proposed B 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 B Advance; PROVIDED
that if the Administrative Agent in its capacity as a Lender shall, in its
sole discretion, elect to make any such offer, it shall notify the Borrower
of such offer before 9:00 A.M. (New York City time) on the date on which
notice of such election is to be given to the Administrative Agent by the
other Lenders. If any Lender shall elect not to make such an offer, such
Lender shall so notify the Administrative 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 Administrative Agent by the other Lenders, and such Lender shall not
be obligated to, and shall not, make any B Advance as part of such B
Borrowing; PROVIDED that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any B Advance as part
of such proposed B Borrowing.
(iii) The Borrower shall, in turn, before 12:00 Noon (New York City
time) on the date of such proposed B Borrowing, in the case of a B
Borrowing consisting of Fixed Rate Advances, and before 1:00 P.M. (New York
City time) three Business Days before the date of such proposed B
Borrowing, in the case of a B Borrowing consisting of Floating Rate
Advances, either:
(x) cancel such B Borrowing by giving the Administrative 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 order of the lowest to
highest rates of interest or margins (or, if two or more Lenders bid
at the same rate of interest, and the amount of accepted offers is
less than the aggregate amount of such offers, the amount to be
borrowed from such Lenders as part of such B Borrowing shall be
allocated among such Lenders PRO RATA on the basis of the maximum
amount offered by such Lenders at such rates or margin in connection
with such B Borrowing), by giving notice to the Administrative Agent
of the
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19
amount of each B Advance (which amount shall be equal to or greater
than the minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by the Administrative Agent on behalf of such
Lender for such B Advance pursuant to paragraph (ii) above) to be made
by each Lender as part of such B Borrowing, and reject any remaining
offers made by Lenders pursuant to paragraph (ii) above by giving the
Administrative Agent notice to that effect.
(iv) If the Borrower notifies the Administrative Agent that such B
Borrowing is cancelled pursuant to paragraph (iii)(x) above, the
Administrative Agent shall give prompt notice thereof to the Lenders and
such B Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the Administrative
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 B Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the Borrower, (B)
each Lender that is to make a B Advance as part of such B Borrowing, of the
amount of each B Advance to be made by such Lender as part of such B
Borrowing, and (C) each Lender that is to make a B Advance as part of such
B Borrowing, upon receipt, that the Administrative Agent has received forms
of documents appearing to fulfill the applicable conditions set forth in
Article III. Each Lender that is to make a B Advance as part of such B
Borrowing shall, before 1:00 P.M. (New York City time) on the date of such
B Borrowing specified in the notice received from the Administrative Agent
pursuant to clause (A) of the preceding sentence or any later time when
such Lender shall have received notice from the Administrative Agent
pursuant to clause (C) of the preceding sentence, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's portion of
such B Borrowing. Upon fulfillment of the applicable conditions set forth
in Article III and after receipt by the Administrative Agent of such funds,
the Administrative Agent will make such funds available to the Borrower at
the Administrative Agent's address referred to in Section 8.02. Promptly
after each B Borrowing the Administrative Agent will notify each Lender of
the amount of the B Borrowing, the consequent B Reduction and the dates
upon which such B Reduction commenced and will terminate.
(b) Each B Borrowing shall be in an aggregate amount of $10,000,000 or
an integral multiple of $1,000,000 in excess thereof, or the aggregate amount of
the unused portion of the Lenders' Commitments and, following the making of each
B Borrowing, the Borrower shall be in compliance with the limitations set forth
in the proviso to the first
<PAGE>
20
sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section
2.03, the Borrower may from time to time borrow under this Section 2.03, repay
pursuant to subsection (d) below, and reborrow under this Section 2.03; PROVIDED
that a B Borrowing shall not be made within three Business Days of the date of
any other B Borrowing.
(d) The Borrower shall repay to the Administrative Agent for the
account of each Lender that has made a B Advance, on the maturity date of each B
Advance (such maturity date being that specified by the Borrower for repayment
of such B Advance in the related Notice of B Borrowing delivered pursuant to
subsection (a)(i) above and provided in the B Note evidencing such B Advance),
the then unpaid principal amount of such B Advance. The Borrower shall not have
the right to prepay any B Advance.
(e) The Borrower shall pay interest on the unpaid principal amount of
each B Advance from the date of such B Advance to the date the principal amount
of such B Advance is paid in full, at the rate of interest for such B Advance
specified by the Lender making such B Advance in its notice with respect thereto
delivered pursuant to subsection (a)(ii) above, payable on the interest payment
date or dates specified by the Borrower for such B Advance in the related Notice
of B Borrowing delivered pursuant to subsection (a)(i) above, as provided in the
B Note evidencing such B Advance. Upon the occurrence and during the continuance
of an Event of Default, the Borrower shall pay interest on the amount of unpaid
principal of each B Advance owing to a Lender, payable in arrears on the date or
dates interest is payable thereon, at a rate per annum equal at all times to 2%
per annum above the rate per annum required to be paid on such B Advance under
the terms of the B Note evidencing such B Advance unless otherwise agreed in
such B Note.
(f) The indebtedness of the Borrower resulting from each B Advance
made to the Borrower as part of a B Borrowing shall be evidenced by a separate B
Note of the Borrower payable to the order of the Lender making such B Advance.
(g) The Borrower shall pay to the Administrative Agent for its own
account the competitive bid administrative fee described in Section 2.04(b) with
each request for a B Borrowing whether or not any B Borrowing is in fact made.
SECTION 2.04. FEES. (a) FACILITY FEE. The Borrower agrees to pay to
the Administrative Agent for the account of each Lender a facility fee on the
aggregate amount of such Lender's Commitment from the Effective Date in the case
of each Initial Lender, and from the effective date specified in the Assignment
and Acceptance pursuant to which it became a Lender in the case of each other
Lender until the Termination Date, at a rate per
<PAGE>
21
annum equal to the Applicable Facility Fee in effect from time to time, payable
in arrears quarterly on the last day of each March, June, September and
December, commencing December 31, 1998, and on the Termination Date.
(b) COMPETITIVE BID ADMINISTRATIVE FEE. The Borrower shall pay to the
Administrative Agent for its own account $2,500 with each request for a B
Borrowing whether or not any B Borrowing is in fact made.
SECTION 2.05. TERMINATION OR REDUCTION OF THE COMMITMENTS. (a) RATABLE
TERMINATION OR REDUCTION. The Borrower shall have the right, upon at least four
Business Days' notice to the Administrative Agent, to terminate in whole or
reduce ratably in part the unused portions of the respective Commitments of the
Lenders, PROVIDED that the aggregate amount of the Commitments of the Lenders
shall not be reduced to an amount that is less than the sum of the aggregate
principal amount of the B Advances then outstanding, and PROVIDED FURTHER that
each partial reduction shall be in the aggregate amount of $25,000,000 or an
integral multiple of $1,000,000 in excess thereof. Once terminated, a Commitment
cannot be reinstated.
(b) NON-RATABLE TERMINATION, REDUCTION OR ASSIGNMENT. So long as no
Default shall have occurred and be continuing, the Borrower shall have the
right, upon at least four Business Days' written notice to the Administrative
Agent (which shall give prompt notice thereof to each Lender), to:
(i) terminate in whole or reduce non-ratably any Lender's Commitment
on a date specified in such notice, and such Lender's Commitment shall
terminate or be reduced on such date; or
(ii) require any Lender to assign to the Borrower's designated
assignee or assignees, in accordance with the terms of Section 8.07, all or
a portion of the Advances then owing to such Lender and the rights and
obligations of such Lender hereunder;
PROVIDED, HOWEVER, that the aggregate amount of the Commitments of the Lenders
shall not be reduced, as a result of any such termination or reduction, to an
amount that is less than the sum of the aggregate principal amount of the B
Advances then outstanding; PROVIDED, FURTHER, that no such termination,
reduction or assignment shall be effective if, after giving effect thereto, the
aggregate amount of the Commitments so terminated, reduced or assigned under
this Section 2.05(b) during the term of this Agreement would exceed 25% of the
aggregate amount of the Commitments as of the Effective Date; and PROVIDED,
FURTHER, that the Borrower shall on the date a termination, reduction or
assignment under this Section 2.05(b) becomes
<PAGE>
22
effective pay, prepay or cause to be prepaid (A) in the case of a termination or
complete assignment, the aggregate principal amount of the A Advances then owing
to such Lender and (B) in the case of a non-ratable reduction or partial
assignment, an amount of the A Advances owing to such Lender such that the
aggregate amount of the outstanding A Advances owing to such Lender after giving
effect to such distribution equals such Lender's ratable portion of the A
Borrowings then outstanding (calculated based on its Commitment as a percentage
of the aggregate Commitments outstanding after giving effect to the relevant
Commitment reduction or the relevant assignment, as the case may be), in each
case together with accrued interest thereon to the date of payment of such
principal amount, all facility fees and other fees payable to such Lender and
all other amounts payable to such Lender under this Agreement (including, but
not limited to, any increased costs or other additional amounts (computed in
accordance with Section 2.11), any Taxes incurred by such Lender prior to the
effective date of such termination, reduction or assignment and amounts payable
under Section 8.04(a)). In the case of a termination or complete assignment,
upon such payments and prepayments, the obligations of such Lender hereunder, by
the provisions hereof, shall be released and discharged, PROVIDED, HOWEVER, that
such Lender's rights under Sections 2.11, 2.15 and 8.04(b), and its obligations
under Section 7.05, shall survive such release and discharge as to matters
occurring prior to date of such termination or complete assignment. If any
non-ratable reduction or partial assignment shall become effective on a date
that is not the last day of the Interest Period for all Eurodollar Rate Advances
then outstanding, (A) the Borrower shall pay any amounts owing pursuant to
Section 8.04(c) as a result of the distributions to the relevant Lender under
this Section 2.05(b) and (B) for each A Borrowing comprised of Eurodollar Rate
Advances, the respective Advances assumed by any assignee(s) pursuant to this
Section 2.05(b) shall be Base Rate Advances until the last day of the then
existing Interest Period for such A Borrowing.
SECTION 2.06. REPAYMENT OF A ADVANCES. The Borrower shall repay to the
Administrative Agent for the ratable account of the Lenders on the Termination
Date the principal amount of the A Advances then outstanding.
SECTION 2.07. INTEREST ON A ADVANCES. (a) SCHEDULED INTEREST. The
Borrower shall pay interest on the unpaid principal amount of each A Advance
owing to each Lender from the date of such A 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 A Advance is a
Base Rate Advance, a rate per annum equal at all times to the Base Rate in
effect from time to time, payable in arrears quarterly on the last day of
each March, June, September and December during such periods and on the
date such Base Rate Advance shall be Converted or paid in full.
<PAGE>
23
(ii) EURODOLLAR RATE ADVANCES. During such periods as such A Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such A Advance to the sum of (x) the Eurodollar
Rate for such Interest Period for such Advance PLUS (y) the Applicable
Margin in effect from time to time, PLUS (z) the Applicable Utilization
Fee, if any, in effect from time to time, payable in arrears on the last
day of such Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on the
date such Eurodollar Rate Advance shall be Converted or paid in full.
(b) DEFAULT INTEREST. Upon the occurrence and during the continuance
of an Event of Default, the Borrower shall pay interest on the unpaid principal
amount of each A Advance owing 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 A
Advance pursuant to clause (a)(i) or (a)(ii) above.
SECTION 2.08. INTEREST RATE DETERMINATION. (a) Each Reference Bank
agrees to furnish to the Administrative Agent timely information for the purpose
of determining each Eurodollar Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Administrative Agent for the
purpose of determining any such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Administrative Agent shall give prompt notice to
the Borrower and the Lenders of the applicable interest rate determined by the
Administrative 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 Administrative 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, the Administrative Agent shall forthwith
so notify the Borrower and the Lenders, whereupon (i) each Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance, and (ii) the obligation of the
Lenders to make, or to Convert A Advances into, Eurodollar Rate Advances shall
be suspended until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of
<PAGE>
24
"Interest Period" in Section 1.01, the Administrative Agent will forthwith so
notify the Borrower and the Lenders and such Advances will automatically, on the
last day of the then existing Interest Period therefor, Convert into Base Rate
Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances and on and after such date the
right of the Borrower to Convert such A Advances shall terminate.
(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 A Advances into,
Eurodollar Rate Advances shall be suspended.
(f) If fewer than two Reference Banks furnish timely information to
the Administrative Agent for determining the Eurodollar Rate for any Eurodollar
Rate Advances,
(i) the Administrative Agent shall forthwith notify the Borrower and
the Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances,
(ii) each such A Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert A Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative
Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 2.09. OPTIONAL CONVERSION OF A ADVANCES. The Borrower may on
any Business Day, upon notice given to the Administrative 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 A Advances of one Type comprising the same Borrowing into A 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 A Advances to be Converted, and (iii) if such
Conversion is into
<PAGE>
25
Eurodollar Rate Advances, the duration of the initial Interest Period for each
such A Advance. Each notice of Conversion shall be irrevocable and binding on
the Borrower.
SECTION 2.10. OPTIONAL PREPAYMENTS OF A ADVANCES. The Borrower may,
upon notice to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, given to the Administrative Agent at least
one Business Day prior to the proposed date in the case of Base Rate Advances
and at least three Business Days prior to the proposed date in the case of
Eurodollar Rate Advances, and if such notice is given the Borrower shall, prepay
the outstanding principal amount of the A Advances comprising part of the same
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, the Borrower
shall be obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.04(c).
SECTION 2.11. INCREASED COSTS. (a) If due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
in each case, after the date hereof, there shall be any increase in the cost to
any Lender of agreeing to make or making, funding or maintaining Eurodollar Rate
Advances or Floating Rate Advances, then such Lender may from time to time give
notice of such circumstances to the Borrower (with a copy to the Administrative
Agent); PROVIDED that each Lender agrees, before giving any such notice, to use
its best efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased costs and would not be disadvantageous to such Lender. The amount
sufficient to compensate such Lender in light of such increase in costs to such
Lender or any corporation controlling such Lender shall be determined by such
Lender in good faith on a basis that allocates the amounts sufficient to
compensate such Lender in light of such increase ratably among all applicable
Advances. A certificate specifying the event referred to in this Section
2.11(a), the amount sufficient to compensate such Lender and the basis of its
computation (which shall be reasonable), submitted in good faith to the Borrower
and the Administrative Agent by such Lender, shall be conclusive and binding for
all purposes absent manifest error. Each Lender agrees to provide reasonably
prompt notice to the Borrower of the occurrence of any event referred to in the
first sentence of this Section 2.11(a).
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) after the date
hereof affects or would affect the amount of capital
<PAGE>
26
required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by or
based upon the existence of such Lender's commitment to lend hereunder and other
commitments of this type, then, such Lender may from time to time give notice of
such circumstances to the Borrower (with a copy to the Administrative Agent);
PROVIDED that each Lender agrees, before giving any such notice, to use its best
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, the
cost to the Lender of such increase in the amount of capital maintained by such
Lender and would not be disadvantageous to such Lender. The amount sufficient to
compensate such Lender in light of such increase in the amount of capital
maintained by such Lender or any corporation controlling such Lender shall be
determined by such Lender in good faith to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder. A certificate specifying the
event referred to in this Section 2.11(b), the amount sufficient to compensate
such Lender and the basis of its computation (which shall be reasonable),
submitted in good faith to the Borrower and the Administrative Agent by such
Lender, shall be conclusive and binding for all purposes absent manifest error.
Each Lender agrees to provide reasonably prompt notice to the Borrower of the
occurrence of any event referred to in the first sentence of this Section
2.11(b).
(c) The Borrower shall, within five days of receiving a notice from
any Lender pursuant to clause (a) or (b) of this Section 2.11, elect (and shall
notify such Lender and the Administrative Agent of such election) to:
(i) pay to the Administrative Agent for the account of such Lender,
from time to time commencing on the date of notice by such Lender and as
specified by such Lender, (A) the amount such Lender has set forth in the
certificate which such Lender has delivered to the Borrower pursuant to
clause (a) of this Section 2.11 or (B) the amount such Lender has set forth
in the certificate which such Lender has delivered to the Borrower pursuant
to clause (b) of this Section 2.11; or
(ii) terminate such Lender's Commitment on a date which shall be
specified in the notice sent by the Borrower, and such Lender's Commitment
shall terminate on such date; PROVIDED, HOWEVER, that the aggregate amount
of the Commitments of the Lenders shall not be reduced, as a result of any
such termination, to an amount that is less than the sum of the aggregate
principal amount of the B Advances then outstanding; PROVIDED, FURTHER,
that such termination shall not be effective if, after giving effect to
such termination, the aggregate amount of the Commitments so terminated or
assigned under this Section 2.11 and Section 2.12(b) during the term of
this Agreement would exceed 25% of the aggregate amount of the Commitments
as of the Effective Date; and PROVIDED
<PAGE>
27
FURTHER, that upon termination of a Lender's Commitment under this Section
2.11(c)(ii), the Borrower shall on the date such termination becomes
effective pay, prepay or cause to be prepaid the aggregate principal amount
of the A Advances owing to such Lender, together with accrued interest
thereon to the date of payment of such principal amount, all facility fees
and other fees payable to such Lender and all other amounts payable to such
Lender under this Agreement (including, but not limited to, any increased
costs or other additional amounts (computed in accordance with this Section
2.11), and any Taxes, incurred by such Lender prior to the effective date
of such termination and amounts payable under Section 8.04(a)). Upon such
payments and prepayments, the obligations of such Lender hereunder, by the
provisions hereof, shall be released and discharged. Such Lender's rights
under Sections 2.11, 2.15 and 8.04(b), and its obligations under Section
7.05, shall survive such release and discharge as to matters occurring
prior to date of such termination; or
(iii) require that such Lender assign to the Borrower's designated
assignee or assignees, in accordance with the terms of Section 8.07, all
Advances then owing to such Lender and all rights and obligations of such
Lender hereunder; PROVIDED that (A) each such assignment shall be either an
assignment of all of the rights and obligations of the assigning Lender
under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or assignments
which together cover all of the rights and obligations of the assigning
Lender under this Agreement, (B) no Lender shall be obligated to make any
such assignment as a result of a demand by the Borrower pursuant to this
Section 2.11(c) unless and until such Lender shall have received one or
more payments from either the Borrower or one or more assignees in an
aggregate amount at least equal to the aggregate outstanding principal
amount of the A Advances owing to such Lender, together with accrued
interest thereon to the date of payment of such principal amount, all
facility fees and other fees payable to such Lender and all other amounts
payable to such Lender under this Agreement (including, but not limited to,
any increased costs or other additional amounts (computed in accordance
with this Section 2.11), and any Taxes, incurred by such Lender prior to
the effective date of such assignment and amounts payable under Section
8.04(a)) and (C) each such assignment shall be made pursuant to an
Assignment and Acceptance; PROVIDED, HOWEVER, that such assignment shall
not be effective if, after giving effect to such assignment, the aggregate
amount of the Commitments so assigned or terminated under this Section 2.11
and Section 2.12(b) during the term of this Agreement would exceed 25% of
the aggregate amount of the Commitments as of the Effective Date. Upon such
payments and prepayments, the obligations of such Lender hereunder, by the
provisions hereof, shall be released and discharged; PROVIDED, however,
that such Lender's rights under Sections 2.11, 2.15 and 8.04(b), and its
obligations under Section 7.05, shall survive such release and discharge as
to matters occurring prior to the date of
<PAGE>
28
termination of such Lender's Commitment.
SECTION 2.12. ILLEGALITY. (a) Notwithstanding any other provision of
this Agreement, if any Lender (any such Lender being referred to herein as an
"AFFECTED LENDER") shall notify the Administrative Agent that the introduction
of or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or Floating Rate Advances
or to fund or maintain Eurodollar Rate Advances or Floating Rate Advances
hereunder, the obligation of the Lenders to make, or to Convert A Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist; PROVIDED that such suspension shall not become
effective in the event the Borrower requires the assignment of the Affected
Lender's Advances owing to it and its other rights and obligations hereunder
pursuant to clause (b)(ii) below. The Borrower's right to require an assignment
in accordance with clause (b)(ii) below shall not be effective to the extent
that Lenders representing a majority of the Commitments then outstanding shall
be "Affected Lenders".
(b) The Borrower shall, within five days of receiving a notice from
any Affected Lender pursuant to clause (a) of this Section 2.12, elect (and
shall notify such Affected Lender and the Administrative Agent of such election)
to:
(i) prepay in full all Eurodollar Rate Advances or Floating Rate
Advances then outstanding, together with interest thereon, unless the
Borrower, within five Business Days of notice from the Administrative Agent
Converts all Eurodollar Rate Advances or Floating Rate Advances of all
Lenders then outstanding into Base Rate Advances in accordance with Section
2.09; or
(ii) require that such Affected Lender assign to the Borrower's
designated assignee or assignees, in accordance with the terms of Section
8.07, all Advances then owing to such Affected Lender and all rights and
obligations of such Affected Lender hereunder; PROVIDED that (A) each such
assignment shall be either an assignment of all of the rights and
obligations of the assigning Affected Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently
with another such assignment or assignments which together cover all of the
rights and obligations of the assigning Affected Lender under this
Agreement, (B) no Affected Lender shall be obligated to make any such
assignment as a result of a demand by the Borrower pursuant to this Section
2.12(b) unless and until such Affected Lender shall have received one or
more payments from either the Borrower or one or more assignees in an
aggregate amount at least equal to the aggregate outstanding principal
amount of the A Advances
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29
owing to such Affected Lender, together with accrued interest thereon to
the date of payment of such principal amount, all facility fees and other
fees payable to such Affected Lender and all other amounts payable to such
Affected Lender under this Agreement (including, but not limited to, any
increased costs or other additional amounts (computed in accordance with
Section 2.11), and any Taxes, incurred by such Affected Lender prior to the
effective date of such assignment and amounts payable under Section
8.04(a)) and (C) each such assignment shall be made pursuant to an
Assignment and Acceptance; PROVIDED, HOWEVER, that such assignment shall
not be effective if, after giving effect to such assignment, the aggregate
amount of the Commitments so assigned or terminated under this Section
2.12(b) and Section 2.11 during the term of this Agreement would exceed 25%
of the aggregate amount of the Commitments as of the Effective Date. Upon
such payments and prepayments, the obligations of such Affected Lender
hereunder, by the provisions hereof, shall be released and discharged;
PROVIDED, HOWEVER, that such Affected Lender's rights under Sections 2.11,
2.15 and 8.04(b), and its obligations under Section 7.05, shall survive
such release and discharge as to matters occurring prior to the date of
termination of such Affected Lender's Commitment.
SECTION 2.13. PAYMENTS AND COMPUTATIONS. (a) The Borrower shall make
each payment hereunder and under the Notes not later than 12:00 noon (New York
City time) on the day when due in U.S. dollars to the Administrative Agent at
the Administrative Agent's Account in same day funds. The Administrative Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest or fees ratably (other than amounts payable
pursuant to Sections 2.03, 2.04(b), 2.05(b), 2.11, 2.15 or 8.04(c)) to the
Lenders for the account of their respective Applicable Lending Offices, and like
funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 8.07(c), as the case may be, from and after
the effective date specified in such Assignment and Acceptance the
Administrative Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee thereunder, and
the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) All computations of interest based on the Base Rate shall be made
by the Administrative 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 and utilization fees shall be made
by the Administrative 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
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30
determination by the Administrative 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 Floating 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 Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative 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 Administrative
Agent, at the Federal Funds Rate.
SECTION 2.14. NOTATIONS ON THE A NOTES. All A Advances made by each
Lender to the Borrower pursuant to this Agreement and all payments made on
account of principal thereof shall be recorded by such Lender and, prior to any
assignment by such Lender of the A Note issued to it, all unpaid A Advances
shall be endorsed on the grid attached to such A Note, PROVIDED, HOWEVER, that
any failure of a Lender so to record or endorse shall not affect the Borrower's
obligations hereunder or under such Note. Upon the payment in full of the A
Advances then outstanding on the Termination Date as required by Section 2.06,
the Lender holding such A Note shall cancel and return it to the Borrower and be
fully responsible for any claims or liabilities arising in connection with or
resulting from any sale of participations therein.
SECTION 2.15. TAXES. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, EXCLUDING, in the case of each Lender and the Administrative
Agent, taxes imposed on its income, and franchise taxes imposed on it in lieu of
income taxes, by the jurisdiction under the laws of which such Lender or the
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31
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
income, and franchise taxes imposed on it in lieu of income taxes, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "TAXES").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.15) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrower 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, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "OTHER TAXES").
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.15) paid by such Lender or the Administrative Agent
(as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender or the Administrative Agent (as
the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred to in
Section 8.02, 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 the Borrower through an account or branch outside the United States or on
behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
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.
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32
(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 pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower with Internal Revenue Service form 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 of interest pursuant to this Agreement
or the Notes. If the form provided by a Lender at the time such Lender first
becomes a party to this Agreement indicates a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from "Taxes" as defined in Section 2.15(a). If any form or document
referred to in this subsection (e) requires the disclosure of information, other
than information necessary to compute the tax payable and information required
on the date hereof by Internal Revenue Service form 1001 or 4224, that the
Lender reasonably considers to be confidential, the Lender shall give notice
thereof to the Borrower and shall not be obligated to include in such form or
document such confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.15(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 2.15(a) with
respect to Taxes imposed by the United States; PROVIDED, HOWEVER, that should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
SECTION 2.16. 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 A Advances owing to it (other than
pursuant to Sections 2.05(b), 2.11, 2.15 or 8.04(c)) in excess of its ratable
share of payments on account of the A Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participation in the
A 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 each
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)
<PAGE>
33
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.16
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.17. USE OF PROCEEDS. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) for general
corporate purposes of the Borrower, including the acquisition of DEKALB Genetics
Corporation and commercial paper backstop.
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) 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.
(b) The Borrower shall have notified the Administrative Agent as to
the proposed Effective Date.
(c) On the Effective Date, the following statements shall be
true and the Administrative Agent shall have received for the account of
each Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01
are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
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34
(d) The Administrative Agent shall have received on or before the
Effective Date the following, each dated such day, in form and substance
satisfactory to the Administrative Agent and (except for the A Notes) in
sufficient copies for each Lender:
(i) The A Notes to the order of the Lenders, respectively.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes, the
Borrower's bylaws and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to
this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying the names and true signatures of the officers
of the Borrower authorized to sign this Agreement and the Notes and
the other documents to be delivered hereunder.
(iv) A favorable opinion of an Associate General Counsel of the
Borrower, substantially in the form of Exhibit D hereto and as to such
other matters as any Lender through the Administrative Agent may
reasonably request.
(v) A favorable opinion of Shearman & Sterling, counsel for the
Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH A BORROWING. The obligation
of each Lender to make an A Advance on the occasion of each A Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and on the date of such A Borrowing (a) the following statements shall be true
(and each of the giving of the applicable Notice of A Borrowing and the
acceptance by the Borrower of the proceeds of such A Borrowing shall constitute
a representation and warranty by the Borrower that on the date of such A
Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) and subsection (f)(i) thereof) are correct on and as of the date of
such A Borrowing, before and after giving effect to such A 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 A
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35
Borrowing or from the application of the proceeds therefrom, that
constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
SECTION 3.03. CONDITIONS PRECEDENT TO EACH B BORROWING. The obligation
of each Lender that is to make a B Advance on the occasion of each B Borrowing
to make such B Advance as part of such B Borrowing is subject to the conditions
precedent that the Effective Date shall have occurred and (a) the Administrative
Agent shall have received the Notice of B Borrowing with respect thereto, (b) on
or before the date of such B Borrowing, but prior to such B Borrowing, the
Administrative Agent shall have received a B Note payable to the order of such
Lender for each of the one or more B Advances to be made by such Lender as part
of such B Borrowing, in a principal amount equal to the principal amount of the
B Advance to be evidenced thereby and otherwise on such terms as were agreed to
for such B Advance in accordance with Section 2.03, and (c) on the date of such
B Borrowing the following statements shall be true (and each of the giving of
the applicable Notice of B Borrowing and the acceptance by the Borrower of the
proceeds of such B Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such B Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection
(e) and subsection (f)(i) thereof) are correct on and as of the date of
such B Borrowing, before and after giving effect to such B 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 B Borrowing or from the application of the proceeds therefrom, that
constitutes a Default.
SECTION 3.04. DETERMINATIONS UNDER SECTION 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the proposed
Effective Date, as notified by the Borrower to the Lenders, specifying its
objection thereto. The Administrative Agent shall promptly notify the Lenders of
the occurrence of the Effective Date.
ARTICLE IV
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36
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes, and the consummation of the transactions contemplated
hereby, are within the Borrower's corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene (i) the Borrower's charter
or bylaws or (ii) law or any contractual restriction binding on or affecting the
Borrower.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other third
party is required for the due execution, delivery and performance by the
Borrower of this Agreement or the Notes, other than those authorizations,
approvals, notices, filings and actions that have been obtained, filed or taken
on or before the Effective Date by the Borrower.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the Borrower. This
Agreement is, and each of the Notes when delivered hereunder will be, the legal,
valid and binding obligation of the Borrower enforceable against the Borrower in
accordance with their respective terms.
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1997, and the related Consolidated statements of
income and cash flows of the Borrower and its Subsidiaries for the fiscal year
then ended, accompanied by an opinion of Deloitte & Touche LLP, independent
public accountants, and the Consolidated balance sheet of the Borrower and its
Subsidiaries as at September 30, 1998, and the related Consolidated statements
of income and cash flows of the Borrower and its Subsidiaries for the nine
months then ended, copies of which have been furnished to each Lender, fairly
present, subject, in the case of said balance sheet as at September 30, 1998,
and said statements of income and cash flows for the nine months then ended, to
year-end audit adjustments, the Consolidated financial condition of the Borrower
and its Subsidiaries as at such dates and the Consolidated results of the
operations of the Borrower and its Subsidiaries for the periods ended on such
dates, all in accordance with generally accepted accounting principles
consistently applied. Except
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37
as set forth in the Borrower's filings with the Securities and Exchange
Commission prior to the Effective Date (including, without limitation, the
Borrower's Form 10-Q for each of the fiscal quarters ended on March 31, 1998,
June 30, 1998 and September 30, 1998), since December 31, 1997, there has been
no Material Adverse Change.
(f) There is no pending or, to the best of the Borrower's knowledge,
threatened action or proceeding affecting the Borrower or any of its
Consolidated Subsidiaries before any court, or governmental agency or arbitrator
which (i) except as set forth in the Borrower's filings with the Securities and
Exchange Commission prior to the Effective Date (including, without limitation,
the Borrower's Form 10-K for the fiscal year ended December 31, 1997 and the
Borrower's Form 10-Q for each of the fiscal quarters ended on March 31, 1998,
June 30, 1998 and September 30, 1998), is reasonably likely to have a Material
Adverse Effect or (ii) is reasonably likely to affect the legality, validity or
enforceability of this Agreement, any Note or the transactions contemplated
hereby.
(g) No ERISA Event that would have a Material Adverse Effect has
occurred or is reasonably expected to occur with respect to any Plan.
(h) As of the Effective Date, neither the Borrower nor any ERISA
Affiliate participates in any Multiple Employer Plan or in any Multiemployer
Plan with respect to which the Borrower or any ERISA Affiliate has any
Withdrawal Liability or other liability that, in either case, would have a
Material Adverse Effect.
(i) The Borrower (i) is in substantial compliance with any and all
applicable Environmental Laws, (ii) has received to the best of its knowledge
all required Environmental Permits and (iii) is in substantial compliance with
all terms and conditions of any such Environmental Permits, except where any
such noncompliance with Environmental Laws, failure to receive an Environmental
Permit, or failure to comply with the terms and conditions of an Environmental
Permit, would not have a Material Adverse Effect.
SECTION 4.02. REPRESENTATION AND WARRANTY OF THE LENDERS. Each Lender
represents and warrants that in good faith it has not and will not rely upon any
margin stock (as such term is defined in Regulation U of the Board of Governors
of the Federal Reserve System) as collateral in the making and maintaining of
its Advances hereunder.
ARTICLE V
COVENANTS OF THE BORROWER
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38
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Consolidated Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA, except such noncompliance as
would not have a Material Adverse Effect.
(b) PAYMENT OF TAXES. Duly pay and discharge, and cause each of its
Consolidated Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges whatsoever and by whomsoever imposed upon it or
against its properties prior to the date on which penalties are attached
thereto, unless and to the extent only that the same (i) shall be contested
in good faith and by appropriate proceedings by the Borrower or (ii) are
not of material importance to the business, financial condition or
operating results of the Borrower and its Consolidated Subsidiaries.
(c) MAINTENANCE OF INSURANCE. Maintain insurance, and cause each of
its Consolidated Subsidiaries to maintain insurance, with financially sound
and reputable insurers, with respect to such of its properties, against
such risks, casualties and contingencies and in such types and amounts as
are consistent with sound business practice. This section shall not prevent
the use of deductible or excess loss insurance and shall not prevent the
Borrower or a Consolidated Subsidiary from acting as a self-insurer or
maintaining insurance with a Subsidiary or Subsidiaries so long as such
action is consistent with sound business practice.
(d) PRESERVATION OF CORPORATE EXISTENCE, ETC. The Borrower will do or
cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, rights (charter and statutory) and
franchises; PROVIDED, HOWEVER, that the Borrower shall not be required to
preserve any such right or franchise if the Borrower shall determine that
the preservation thereof is no longer desirable in the conduct of the
business of the Borrower.
(e) KEEPING OF BOOKS. Keep, and cause each of its Consolidated
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets
and business of the Borrower and each such Consolidated Subsidiary in
accordance with generally accepted accounting standards in effect from time
to time.
(f) REPORTING REQUIREMENTS. Furnish to the Lenders:
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39
(i) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, Consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated statements
of income and cash flows of the Borrower and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to year-end
audit adjustments) by the Controller, Assistant Controller or other
authorized financial officer of the Borrower as having been prepared
in accordance with GAAP, together with (A) a certificate of said
officer stating that no Default has occurred and is continuing or, if
a Default has occurred and is continuing, a statement as to the nature
thereof, and (B) a schedule in form and substance satisfactory to the
Administrative Agent of the computations used by the Borrower in
determining compliance with the covenant contained in Section 5.03;
(ii) as soon as available and in any event within 120 days after
the end of each fiscal year of the Borrower, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries,
containing Consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of such fiscal year and Consolidated
statements of income, shareowners' equity and cash flows of the
Borrower and its Subsidiaries for such fiscal year, in each case
accompanied by an opinion acceptable to the Majority Lenders by
Deloitte & Touche or other independent public accountants acceptable
to the Majority Lenders, together with (a) a certificate of the
Controller, Assistant Controller or other authorized financial officer
of the Borrower stating that no Default has occurred and is continuing
or, if a Default has occurred and is continuing, a statement as to the
nature thereof, and (B) a schedule in form and substance satisfactory
to the Administrative Agent of the computations used by the Borrower
in determining compliance with the covenant contained in Section 5.03;
(iii) as soon as possible and in any event within five days after
the determination by the Borrower that an Event of Default, or an
event which with the giving of notice or lapse of time, or both, would
constitute an Event of Default, has occurred and is continuing on the
date of such statement, a statement of either the Chief Financial
Officer, Treasurer, Controller, Assistant Controller or other
authorized financial officer of the Borrower setting forth details of
such Default and the action that the Borrower has taken and proposes
to take with respect thereto;
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40
(iv) promptly and in any event within 30 days after the Borrower
knows or has reason to know that any ERISA Event that would have a
Material Adverse Effect has occurred, a statement of an authorized
financial officer of the Borrower describing such ERISA Event and the
action, if any, that the Borrower or such ERISA Affiliate has taken
and proposes to take with respect thereto;
(v) promptly and in any event within ten Business Days after
receipt thereof by the Borrower or any of its ERISA Affiliates, copies
of each notice from the PBGC stating its intention to terminate any
Plan or to have a trustee appointed to administer any such Plan;
(vi) promptly and in any event within 45 days after the receipt
thereof by the Borrower or any of its ERISA Affiliates, a copy of the
latest annual actuarial report for each Plan if the ratio of the fair
market value of the assets of such Plan to its current liability (as
defined in Section 412 of the Internal Revenue Code) is less than 80%;
or
(vii) such other information (excluding trade secrets) respecting
the financial condition and operations of the Borrower and its
Subsidiaries as the Administrative Agent or any Lender may from time
to time reasonably request.
SECTION 5.02. NEGATIVE COVENANTS. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will not:
(a) LIENS, ETC. Create or suffer to exist, or permit any of its
Consolidated 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 Consolidated Subsidiaries to assign, any right to
receive income, other than:
(i) (A) Liens for taxes, assessments, governmental charges or levies
or other amounts owed to governmental entities other than for borrowed
money; (B) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising
in the ordinary course of business securing obligations that are not
overdue for a period of more than 30 days or that are being contested in
good faith; (C) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or statutory
obligations; (D) easements, rights of way and other encumbrances on title
to real property that do not render title to the property encumbered
thereby unmarketable or materially adversely affect the use of such
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41
property for its present purposes; and (E) Liens in favor of a landlord
arising in the ordinary course of business,
(ii) purchase money Liens upon or in any property, assets or stock
acquired or held by the Borrower or any Subsidiary in the ordinary course
of business to secure the purchase price or construction cost of such
property or to secure Debt incurred solely for the purpose of financing the
acquisition or construction of such property whether incurred prior or
subsequent to such acquisition or construction, or Liens existing on such
property at the time of its acquisition (other than any such Lien created
in contemplation of such acquisition) or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount,
PROVIDED, HOWEVER, that no such Lien shall extend to or cover any property
other than the property being acquired, and no such extension, renewal or
replacement shall extend to or cover any property not theretofore subject
to the Lien being extended, renewed or replaced,
(iii) Liens existing on the Effective Date,
(iv) other Liens in an aggregate principal amount not to exceed
$750,000,000 at any time outstanding,
(v) the replacement, extension or renewal of any Lien permitted by
clauses (ii) and (iii) above upon or in the same property theretofore
subject thereto or the replacement, extension or renewal (without increase
in the amount or change in any direct or contingent obligor) of the amount
secured thereby, and
(vi) intercompany Liens.
(b) MERGERS, ETC. Merge or consolidate with or into any Person except that
the Borrower may merge with any Person; PROVIDED that (A) immediately after
giving effect to such proposed transaction, no Event of Default or event which,
with the giving of notice or lapse of time, or both, would constitute an Event
of Default, would exist and (B) the Borrower is the surviving corporation.
(c) SALES, ETC. OF ASSETS. Sell, lease, transfer or otherwise dispose of
all or substantially all of its assets or property.
(d) ACCOUNTING CHANGES. Make or permit, or permit any of its Consolidated
Subsidiaries to make or permit, any change in accounting policies or reporting
practices, except as required or permitted by generally accepted accounting
principles.
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42
SECTION 5.03. FINANCIAL COVENANT. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower shall not
permit the Leverage Ratio to exceed 60% at any time; PROVIDED that the Leverage
Ratio may exceed 60% to the extent such excess shall result from an Acquisition
Event; PROVIDED further that (i) for the period from the date of the closing of
such Acquisition Event to the date occurring 181 days after the closing of such
Acquisition Event, the Leverage Ratio shall not exceed 75% at any time; (ii) for
the period from the date occurring 181 days after the closing of such
Acquisition Event to the date occurring 361 days after the closing of such
Acquisition Event, the Leverage Ratio shall not exceed 65% at any time; and
(iii) at any time from the date occurring 361 days after the closing of such
Acquisition Event, the Leverage Ratio shall not exceed 60%. Such Acquisition
Event shall be deemed to close on the date on which at least 51% of the
aggregate purchase price for such Acquisition Event has been paid by the
Borrower or any of its Subsidiaries.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance when
the same becomes due and payable or the Borrower shall fail to pay any
interest on any Advance or make any other payment under this Agreement or
any Note within ten Business Days after the same becomes due and payable;
or
(b) Any representation or warranty made or deemed to have been made by
the Borrower herein or by the Borrower in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Sections 5.01(d), 5.01(f)(iii), 5.02 or
5.03, or (ii) the Borrower shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender (other than any failure by the Borrower
to comply with the terms of Section 5.01(f)(iv), (v) or (vi)); or
(d) (i) The Borrower or any of its Principal Subsidiaries shall (a)
fail to pay
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43
any principal of or premium, interest or other amount payable with respect
to any Debt, when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) or (b)
fail in the performance or observance of any of the covenants, terms or
provisions of any instrument or agreement relating to any such Debt (other
than a default of the type described in subclause (a) above) that is, in
either case, outstanding in a principal amount of at least $100,000,000 (or
such lower amount as provided for in the provision set forth below in this
clause (d)) in the aggregate (but excluding Debt outstanding hereunder) of
the Borrower or such Principal Subsidiary (as the case may be) and such
failure shall, in either case, continue after the applicable grace period,
if any, specified in the agreement or instrument relating to such Debt; or
(ii) any event shall occur or condition shall exist (including, without
limitation, any event of the type described in clause (i) above) under any
agreement or instrument relating to any such Debt that is outstanding in a
principal amount of at least $50,000,000 (or such lower amount as provided
for in the provision set forth below in this clause (d)) in the aggregate
(but excluding Debt outstanding hereunder) of the Borrower or such
Principal Subsidiary (as the case may be), 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 as a result of such event or condition 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; PROVIDED, HOWEVER, that if the Borrower in any agreement
or instrument relating to any such Debt, shall have agreed to, or shall
agree to, a lesser threshold of the kind specified in clauses (i) or (ii)
above, with respect to itself or a Principal Subsidiary, then, in such
event, the amount provided for in either or both of clauses (i) or (ii)
above, as the case may be, shall be reduced to such lesser amount(s) with
respect to such entity; or
(e) The Borrower or any of its Principal Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Borrower or any of its Principal 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
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44
days, or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of
a receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any of
its Principal Subsidiaries shall take any corporate action to authorize any
of the actions set forth above in this subsection (e); or
(f) Any ERISA Event that would result in a Lien in an amount in excess
of $100,000,000 on the properties or assets of the Borrower or a Principal
Subsidiary shall have occurred and shall not have been remedied within 90
days;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Majority Lenders, by notice to the 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 Borrower; PROVIDED, HOWEVER, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. AUTHORIZATION AND ACTION. Each Lender hereby appoints
and authorizes the Administrative 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 Administrative 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 Administrative 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 Administrative Agent shall not be
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45
required to take any action that exposes the Administrative Agent to personal
liability or that is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Lender prompt notice of each notice
given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC. Neither the
Administrative 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 Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative 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 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or
to inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any other instrument
or document furnished pursuant hereto; and (vi) shall incur no liability under
or in respect of this Agreement by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. CITIBANK AND AFFILIATES. With respect to its Commitment,
the Advances made by it and the Notes 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 Administrative Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank were not
the Administrative Agent and without any duty to account therefor to the
Lenders.
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46
SECTION 7.04. LENDER CREDIT DECISION. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative 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
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Notes then held by each of
them (or if no Notes are at the time outstanding or if any 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 Administrative Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the
Administrative 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 Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Administrative 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 Administrative Agent is not reimbursed for such expenses
by the Borrower.
SECTION 7.06. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may resign at any time by giving five Business Days' written notice thereof to
the Lenders and the Borrower and may be removed at any time with or without
cause (i) by the Majority Lenders with the Borrower's approval, which approval
shall not unreasonably be withheld, or (ii) by the Borrower, subject to the
approval of the Majority Lenders, which approval shall not unreasonably be
withheld. Upon any such resignation or removal, the Borrower shall have the
right to appoint a successor Administrative Agent, subject to the Majority
Lenders' approval, which approval shall not be unreasonably withheld; PROVIDED,
HOWEVER, that upon and during the continuance of an Event of Default, the
Majority Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent's giving of notice of resignation or the
Majority
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47
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized or licensed
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement or the A Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the 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) waive any of
the conditions specified in Section 3.01 or Section 3.02, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations
(other than to the extent any Lender consents thereto), (c) reduce the principal
of, or interest on, the A Notes or any fees or other amounts payable hereunder,
(d) postpone any date fixed for any payment of principal of, or interest on, the
A Notes or any fees or other amounts payable hereunder (excluding any amounts
payable in connection with the B Notes), (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the A Notes, or the
number of Lenders, that shall be required for the Lenders or any of them to take
any action hereunder or (f) amend this Section 8.01; and PROVIDED FURTHER that
no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note; and PROVIDED FURTHER that this Section 8.01 shall not
apply to changes in Commitments pursuant to Section 2.05, 2.11 or any other
Section of this Agreement. No amendment or waiver of any provision of any B
Note, nor consent to any departure by the Borrower therefrom, shall be effective
unless the same shall be in writing and signed by the holder of such B Note.
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48
SECTION 8.02. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication), confirmed immediately in writing, and mailed, telecopied,
telegraphed, telexed or delivered, if to the Borrower, at its address at 800
North Lindbergh Boulevard, St. Louis, Missouri 63167, Attention: Treasurer, with
an information copy to the Secretary of the Borrower; 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
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Administrative Agent, at its address at Two Penns Way, New Castle, Delaware
19720, Attention: Bank Loans Syndication Department; or, as to the Borrower or
the Administrative Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Borrower and the Administrative Agent. All such notices and communications,
whether mailed, telecopied, telegraphed or telexed, shall be effective when
received by the Administrative Agent, Initial Lender, other Lender or the
Borrower, as the case may be.
SECTION 8.03. NO WAIVER; REMEDIES. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. COSTS AND EXPENSES. (a) The Borrower agrees to pay on
demand all out-of-pocket costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery, modification and amendment
of this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and expenses of counsel for
the Administrative Agent with respect thereto and with respect to advising the
Administrative Agent as to its rights and responsibilities under this Agreement.
The Borrower further agrees to pay on demand all costs and expenses of the
Administrative 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
Administrative Agent and each Lender in connection with the enforcement of
rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative 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
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49
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 actual or
proposed use of the proceeds of the Advances, in each case whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense is found by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender other
than on the last day of the Interest Period for such Advance, as a result of a
prepayment or Conversion pursuant to Sections 2.05(b), 2.08(d) or (e), 2.10 or
2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, the Borrower shall, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender any amounts required to compensate such Lender for
any additional losses, costs or expenses that it may reasonably incur as a
result of such payment or Conversion, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.11, 2.15 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05 RIGHT OF SET-OFF. Nothing herein shall derogate any
Lender's right, if any, if and to the extent payment owed to such Lender is not
made when due hereunder or under any B Note held by such Lender, to set off from
time to time against any or all of the Borrower's deposit (general or special,
time or demand, provisional or final) accounts with such Lender any amount so
due. Each Lender agrees promptly to notify the Borrower after any such set-off
and application made by such Lender, PROVIDED that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Lender under this Section 8.05 are in addition to other rights and
remedies which such Lender may have.
SECTION 8.06. BINDING EFFECT. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Administrative Agent and when
the Administrative Agent shall have been
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50
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS; REGISTER. (a) Each
Lender may (and shall if requested to do so by the Borrower pursuant to Section
2.05(b), Section 2.11 or Section 2.12) 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 A Advances owing to it and
the A Note held by it; but, excluding the B Advances owing to it and the B Note
or B Notes held by it (other than with respect to an assignment pursuant to
Section 2.05(b), Section 2.11 or Section 2.12)); PROVIDED, HOWEVER, that (i)
other than in the case of an assignment to an affiliate of such Lender or
assignments of the type described in subsection (g) below, such Lender shall
have obtained the prior written consent of the Borrower, such consent not to be
unreasonably withheld, (ii) each such assignment shall be of a constant, and not
a varying, percentage of all rights and obligations under this Agreement, (iii)
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 or an integral multiple of $1,000,000 in
excess thereof, (iv) each such assignment shall be to an Eligible Assignee and
(v) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any A Note subject to such assignment
and a processing and recordation fee of $3,000. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five Business
Days after the execution and delivery thereof to the Administrative Agent, (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,
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51
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative 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
Administrative 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
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the A Advances owing
to each such Lender from time to time (the "REGISTER"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any A Note subject to such assignment, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
A Note a new A Note payable to the
<PAGE>
52
order of such Eligible Assignee in an amount equal to the Commitment assumed by
it pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder, a new A Note to the order of the assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such new A
Note shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered A Note, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A hereto.
(e) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
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 the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the holder
of any such Note for all purposes of this Agreement, (iv) the Borrower, the
Administrative 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 the
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. Upon the sale of a
participation pursuant to this Section 8.07(e), such Lender shall promptly
provide notice to the Borrower of the sale of a participation (other than a sale
of a participation pursuant to Section 2.16); PROVIDED, HOWEVER that the failure
by such Lender to provide such notice shall not invalidate the sale of such
participation.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower furnished to such Lender by or on behalf of
the Borrower; PROVIDED that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to the Borrower
received by it from such Lender; PROVIDED FURTHER that the Borrower shall have
consented in advance to the disclosure of any non-public information.
(g) Notwithstanding any other provision set forth in this
Agreement, any
<PAGE>
53
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 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.
(h) Each Lender agrees that it will not assign any Note or Notes or
sell any participation in any manner or under any circumstances that would
require registration, qualification or filings under the securities laws of the
United States of America, of any state or of any country.
SECTION 8.08. GOVERNING LAW. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.09. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.10. JURISDICTION, ETC. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State or, to the extent permitted by law, in
such federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or the Notes
in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
<PAGE>
54
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
MONSANTO COMPANY
By /s/ Juanita H. Hinshaw
--------------------------------------
Name: Juanita H. Hinshaw
Title: Vice President and Treasurer
CITIBANK, N.A.,
as Administrative Agent
By /s/ James N. Simpson
--------------------------------------
Name: James N. Simpson
Title: Citibank, N.A.
Attorney-In-Fact
<PAGE>
55
INITIAL LENDERS
COMMITMENT
$180,000,000 BANK OF AMERICA NT&SA
By /s/ G. Burton Queen
--------------------------------------
Name: G. Burton Queen
Title: Managing Director
$180,000,000 CITIBANK, N.A.
By /s/ James N. Simpson
--------------------------------------
Name: James N. Simpson
Title: Citibank, N.A.
Attorney-In-Fact
$180,000,000 COMMERZBANK AG, CHICAGO BRANCH
By /s/ Mark Monson
--------------------------------------
Name: Mark Monson
Title: Vice President
By /s/ Albert Morrow
--------------------------------------
Name: Albert Morrow
Title: Assistant Treasurer
$100,000,000 ABN AMRO BANK N.V.
By /s/ John L. Church
--------------------------------------
Name: John L. Church
Title: Group Vice President
By /s/ Angela Reitz
--------------------------------------
Name: Angela Reit
Title: Vice President
<PAGE>
56
$100,000,000 BANCA COMMERCIALE ITALIANA CHICAGO BRANCH
By /s/ Julian M. Teodori
--------------------------------------
Name: Julian M. Teodori
Title: Senior Vice President and Manager
By /s/ Matthew V. Trujillo
--------------------------------------
Name: Matthew V. Trujillo
Title: Vice President
$100,000,000 DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By /s/ Susan L. Pearson
--------------------------------------
Name: Susan L. Pearson
Title: Director
By /s/ Joel Makowsky
--------------------------------------
Name: Joel Makowsky
Title: Vice President
$100,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ William J. Oleferchik
--------------------------------------
Name: William J. Oleferchik
Title: Vice President
<PAGE>
57
$100,000,000 FIRST UNION NATIONAL BANK
By /s/ Kristen M. Denning
--------------------------------------
Name: Kristen M. Denning
Title: Assistant Vice President
$100,000,000 RABOBANK NEDERLAND, NEW YORK BRANCH
By /s/ Ian Reece
--------------------------------------
Name: Ian Reece
Title: Senior Credit Officer
By /s/ Kevin T. King
--------------------------------------
Name: Kevin T. King
Title: Vice President
$100,000,000 SOCIETE GENERALE
By /s/ Seth Asofsky
--------------------------------------
Name: Seth Asofsky
Title: Vice President
$100,000,000 WACHOVIA BANK, N.A.
By /s/ Walter R. Gillikin
--------------------------------------
Name: Walter R. Gillikin
Title: Senior Vice President
<PAGE>
58
$60,000,000 THE BANK OF NEW YORK
By /s/ David Shedd
--------------------------------------
Name: David Shedd
Title: Vice President
$60,000,000 BANKBOSTON, N.A.
By /s/ Grace A. Barnett
--------------------------------------
Name: Grace A. Barnett
Title: Vice President
$60,000,000 BANK OF MONTREAL
By /s/ Bruce A. Pietka
--------------------------------------
Name: Bruce A. Pietka
Title: Director
$60,000,000 BANQUE NATIONALE DE PARIS
By /s/ Jo Ellen Bender
--------------------------------------
Name: Jo Ellen Bender
Title: Senior Vice President
By /s/ Arnaud Collin du Bocage
--------------------------------------
Name: Arnaud Collin du Bocage
Title: Executive Vice President and Branch
Manager
<PAGE>
59
$60,000,000 CREDIT AGRICOLE INDOSUEZ
By /s/ Katherine L. Abbott
--------------------------------------
Name: Katherine L. Abbott
Title: First Vice President
By /s/ W. Leroy Startz
--------------------------------------
Name: W. Leroy Startz
Title: First Vice President
$60,000,000 KBC BANK, N.V.
By /s/ Robert Snauffer
--------------------------------------
Name: Robert Snauffer
Title: First Vice President
By /s/ John E. Thierfelder
--------------------------------------
Name: John E. Thierfelder
Title: Vice President
$60,000,000 MELLON BANK, N.A.
By /s/ Clifford A. Mull
--------------------------------------
Name: Clifford A. Mull
Title: Vice President
$60,000,000 ROYAL BANK OF CANADA
By /s/ Don S. Bryson
--------------------------------------
Name: Don S. Bryson
Title: Senior Manager
<PAGE>
60
$30,000,000 BANCA DI ROMA, CHICAGO BRANCH
By /s/ Joyce Montgomery
--------------------------------------
Name: Joyce Montgomery
Title: Assistant Vice President
By /s/ Claudio Perna
--------------------------------------
Name: Claudio Perna
Title: Senior Vice President and
Branch Manager
$30,000,000 BANCO CENTRAL HISPANOAMERICANO, S.A.
By /s/ Louis Ferroira
--------------------------------------
Name: Louis Ferroira
Title: Vice President
$30,000,000 BANCA NAZIONALE DEL LAVORO S.P.A.- NEW YORK
BRANCH
By /s/ Giulio Giovine
--------------------------------------
Name: Giulio Giovine
Title: Vice President
By /s/ Leonardo Valentini
--------------------------------------
Name: Leonardo Valentini
Title: First Vice Presidnet
$30,000,000 THE NORTHERN TRUST COMPANY
By /s/ Lisa M. Taylor
--------------------------------------
Name: Lisa M. Taylor
Title: Second Vice President
<PAGE>
61
$30,000,000 STANDARD CHARTERED BANK
By /s/ illegible
--------------------------------------
Name: illegible
Title: Senior Vice President
By /s/ Leslie S. Bright
--------------------------------------
Name: Leslie S. Bright
Title: Vice President
$30,000,000 SUNTRUST BANK, ATLANTA
By /s/ Linda L. Dash
--------------------------------------
Name: Linda L. Dash
Title: Vice President
By /s/ Philip Putter
--------------------------------------
Name: Philip Putter
Title: Banking Officer
$2,000,000,000 Total of the Commitments
<PAGE>
SCHEDULE I
LIST OF APPLICABLE LENDING OFFICES
MONSANTO COMPANY
U.S.$2,000,000,000 Credit Agreement
dated as of November 18, 1998
Domestic Eurodollar
Name of Bank Lending Office Lending Office
- ------------ -------------- --------------
Bank of America NT&SA 231 South LaSalle Street 231 South LaSalle Street
Chicago, IL 60697 Chicago, IL 60697
Attn: Michael G. Healy Attn: Michael G. Healy
Telecopier: (312) 765-2080 Telecopier: (312) 765-2080
Citibank, N.A. 399 Park Avenue 399 Park Avenue
8th Floor, Zone 5 8th Floor, Zone 5
New York, N.Y. 10043 New York, N.Y. 10043
Attn: Ed Vowinkel Attn: Ed Vowinkel
Telecopier: (718) 248-4844 Telecopier: (718) 248-4844
Commerzbank AG 311 S. Wacker Dr. 311 S. Wacker Dr.
Suite 5800 Suite 5800
Chicago, IL 60606 Chicago, IL 60606
Attn: Mark Monson Attn: Mark Monson
Telecopier: (312) 435-1486 Telecopier: (312) 435-1486
