Exhibit 4
U.S.$5,000,000,000
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 24, 2001
Among
XXXXXX XXXXXX COMPANIES INC.
and
THE INITIAL LENDERS NAMED HEREIN
and
THE CHASE MANHATTAN BANK
and
CITIBANK, N.A.
as Administrative Agents
and
CREDIT SUISSE FIRST BOSTON
and
DEUTSCHE BANK AG
NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
as Syndication Agents
and
ABN AMRO BANK N.V.
and
BNP PARIBAS
and
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
and
HSBC BANK USA
as Arrangers and Documentation Agents
* * * * * * * * * *
X.X. XXXXXX SECURITIES INC., XXXXXXX XXXXX BARNEY INC.,
CREDIT SUISSE FIRST BOSTON and DEUTSCHE BANC ALEX. XXXXX INC.
as Joint Lead Arrangers and Bookrunners
Table of Contents
Page
----
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS..............................1
Section 1.01. Certain Defined Terms.........................................1
Section 1.02. Computation of Time Periods..................................12
Section 1.03. Accounting Terms.............................................12
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES............................12
Section 2.01. The Pro Rata Advances........................................12
Section 2.02. Making the Pro Rata Advances.................................12
Section 2.03. Repayment of Pro Rata Advances...............................14
Section 2.04. Interest on Pro Rata Advances................................14
Section 2.05. Additional Interest on LIBO Rate Advances....................15
Section 2.06. Conversion of Pro Rata Advances..............................15
Section 2.07. The Competitive Bid Advances.................................16
Section 2.08. LIBO Rate Determination......................................20
Section 2.09. Fees.........................................................21
Section 2.10. Termination or Reduction of the Commitments..................21
Section 2.11. Prepayments of Advances......................................22
Section 2.12. Increased Costs..............................................23
Section 2.13. Illegality...................................................24
Section 2.14. Payments and Computations....................................25
Section 2.15. Taxes........................................................26
Section 2.16. Sharing of Payments, Etc.....................................28
Section 2.17. Evidence of Debt.............................................28
Section 2.18. Use of Proceeds..............................................29
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING......................29
Section 3.01. Conditions Precedent to Effectiveness........................29
Section 3.02. Initial Advance to Each Designated Subsidiary................31
Section 3.03. Conditions Precedent to Each Pro Rata Borrowing..............32
Section 3.04. Conditions Precedent to Each Competitive Bid Borrowing.......32
i
Table of Contents
(continued)
Page
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ARTICLE IV REPRESENTATIONS AND WARRANTIES...............................33
Section 4.01. Representations and Warranties of PM Companies...............33
ARTICLE V COVENANTS OF PM COMPANIES....................................34
Section 5.01. Affirmative Covenants........................................34
Section 5.02. Negative Covenants...........................................36
ARTICLE VI EVENTS OF DEFAULT............................................37
Section 6.01. Events of Default............................................37
Section 6.02. Lenders' Rights upon Event of Default........................39
ARTICLE VII THE ADMINISTRATIVE AGENTS....................................39
Section 7.01. Authorization and Action.....................................39
Section 7.02. Administrative Agents' Reliance, Etc.........................40
Section 7.03. Chase, Citibank and Affiliates...............................40
Section 7.04. Lender Credit Decision.......................................41
Section 7.05. Indemnification..............................................41
Section 7.06. Successor Administrative Agents..............................41
Section 7.07. Syndication Agents and Arrangers and Documentation Agents....42
ARTICLE VIII GUARANTY.....................................................42
Section 8.01. Guaranty.....................................................42
Section 8.02. Guaranty Absolute............................................42
Section 8.03. Waivers......................................................43
Section 8.04. Continuing Guaranty..........................................43
ARTICLE IX MISCELLANEOUS................................................44
Section 9.01. Amendments, Etc..............................................44
Section 9.02. Notices, Etc.................................................44
Section 9.03. No Waiver; Remedies..........................................45
Section 9.04. Costs and Expenses...........................................46
Section 9.05. Right of Set-Off.............................................47
ii
Table of Contents
(continued)
Page
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Section 9.06. Binding Effect...............................................47
Section 9.07. Assignments and Participations...............................47
Section 9.08. Designated Subsidiaries......................................50
Section 9.09. Governing Law................................................51
Section 9.10. Execution in Counterparts....................................51
Section 9.11. Jurisdiction, Etc............................................51
Section 9.12. Confidentiality..............................................52
Section 9.13. Integration..................................................52
SCHEDULE
Schedule I - List of Applicable Lending Offices
EXHIBITS
Exhibit A-1 - Form of Pro Rata Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Pro Rata Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E-1 - Form of Opinion of Counsel for PM Companies
Exhibit E-2 - Form of Opinion of Counsel for PM Companies
Exhibit F - Form of Opinion of Counsel for Designated Subsidiary
Exhibit G - Form of Opinion of Counsel for Chase, as Adminstrative Agent
iii
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 24, 2001
XXXXXX XXXXXX COMPANIES INC., a Virginia corporation ("PM Companies"),
the banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof, and THE CHASE MANHATTAN BANK
("Chase") and CITIBANK, N.A. ("Citibank"), as administrative agents (each, in
such capacity, an "Administrative Agent"), CREDIT SUISSE FIRST BOSTON and
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH ("Deutsche Bank
AG"), as syndication agents (each, in such capacity, a "Syndication Agent") and
ABN AMRO BANK N.V., BNP PARIBAS, DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES and HSBC BANK USA, as arrangers and documentation agents (each, in such
capacity, an "Arranger and Documentation Agent") for the Lenders (as hereinafter
defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means a Pro Rata Advance or a Competitive Bid Advance.
"Agents" means each Administrative Agent, each Syndication Agent and
each Arranger and Documentation Agent.
"Applicable Facility Fee Rate" means, for any period, a percentage per
annum equal to the percentage set forth below determined by reference to
the higher of (i) the rating of PM Companies' long-term senior unsecured
Debt from Standard & Poor's and (ii) the rating of PM Companies' long-term
senior unsecured Debt from Xxxxx'x, in each case in effect from time to
time during such period:
Long-Term Applicable
Senior Unsecured Facility
Debt Rating Fee Rate
---------------- ----------
AA- and Aa3 or higher 0.0600%
A- and A3 or higher, but lower than AA- and 0.0800%
Aa3
BBB and Baa2 or higher, but lower than A- 0.1250%
and A3
Lower than BBB and Baa2 0.1750%;
provided that if no rating is available on any date of determination from
Xxxxx'x and Standard & Poor's or any other nationally recognized
statistical rating organization designated by PM Companies and approved in
writing by the Required Lenders, the Applicable Facility Fee Rate shall be
0.1750%.
"Applicable Interest Rate Margin" means for any Interest Period a
percentage per annum equal to the percentage set forth below determined by
reference to the higher of (i) the rating of PM Companies' long-term senior
unsecured Debt from Standard & Poor's and (ii) the rating of PM Companies'
long-term senior unsecured Debt from Xxxxx'x, in each case from time to
time during such Interest Period:
Long-Term Applicable
Senior Unsecured Interest Rate
Debt Rating Margin
---------------- -------------
AA- and Aa3 or higher 0.1400%
A- and A3 or higher, but lower than AA- and 0.1700%
Aa3
BBB and Baa2 or higher, but lower than A- 0.3250%
and A3
Lower than BBB and Baa2 0.4500%;
provided that if no rating is available on any date of determination from
Xxxxx'x and Standard & Poor's or any other nationally recognized
statistical rating organization designated by PM Companies and approved in
writing by the Required Lenders, the Applicable Interest Rate Margin shall
be 0.4500%; and provided, further, that for any day during any Interest
Period that the aggregate amount of Advances outstanding under this
Agreement and the 364-Day Facility exceeds one-third of the aggregate
amount of Commitments under this Agreement and commitments under the
364-Day Facility, the Applicable Interest Rate Margin shall be increased by
0.1000% per annum.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Pro Rata Advance and, in
the case of a Competitive Bid Advance, the office of such Lender notified
by such Lender to Chase, as Administrative Agent, as its Applicable Lending
Office with respect to such Competitive Bid Advance.
"Asset Disposition" means (i) any sale, lease, transfer, spin-off or
other disposition ("Disposition") to any Person, voluntarily or
involuntarily, of any of the Tobacco Assets (whether now owned or hereafter
acquired) of PM Companies and its Subsidiaries, and (ii) any Disposition to
any Person of shares of the common stock of any
2
Subsidiary of PM Companies that owns Tobacco Assets at the time of such
Disposition ("Stock Sale"); provided that "Asset Disposition" shall not
mean (A) any Disposition of Tobacco Assets or Stock Sale to PM Companies or
any Subsidiary directly or indirectly wholly owned by PM Companies, (B) any
sale and lease-back of Tobacco Assets, unless the aggregate of all such
sale and lease-back transactions occurring from and after June 30, 2001,
exceeds an amount equal to U.S.$500,000,000 (in which case only such excess
shall be deemed to be an Asset Disposition), provided that the lease term
related to such sale and lease-back transaction has a duration
approximately equal to the useful life of such Tobacco Assets, (C) any
Disposition of Tobacco Assets in the ordinary course of business, and (D)
any Disposition of Tobacco Assets or Stock Sale, unless the aggregate of
all such Dispositions of Tobacco Assets and Stock Sales (excluding all
Dispositions of Tobacco Assets and Stock Sales described in clauses (A),
(B) and (C) of this definition) occurring from and after June 30, 2001,
exceeds an aggregate amount equal to U.S.$3,000,000,000 of net after-tax
proceeds calculated in accordance with the provisions of Section 2.10(b)
(in which case only such excess shall be deemed to be an Asset
Disposition); and provided, further, that no particular Tobacco Asset shall
be deemed to be included in more than one Asset Disposition.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by Chase, as
Administrative Agent, in substantially the form of Exhibit C hereto.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
(i) the rate of interest announced publicly by Chase in New York,
New York, from time to time, as Chase's prime rate; and
(ii) 1/2 of one percent per annum above the Federal Funds
Effective Rate.
"Base Rate Advance" means a Pro Rata Advance that bears interest as
provided in Section 2.04(a)(i).
"Board" means the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"Borrowers" means, collectively, PM Companies and each Designated
Subsidiary that shall become a party to this Agreement pursuant to Section
9.08.
"Borrowing" means a Pro Rata Borrowing or a Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any LIBO Rate Advances or Floating Rate Bid
Advances, on which dealings are carried on in the London interbank market
and banks are open for business in London.
3
"Chase's Administrative Agent Account" means (a) the account of Chase,
as Administrative Agent, maintained by Chase, as Administrative Agent, at
its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
323151124, Attention: Xxxxxxxx Xxxxxx, or (b) such other account of Chase,
as Administrative Agent, as is designated in writing from time to time by
Chase, as Administrative Agent, to PM Companies and the Lenders for such
purpose.
"Commitment" means as to any Lender (i) the Dollar amount set forth
opposite such Lender's name on the signature pages hereof or (ii) if such
Lender has entered into an Assignment and Acceptance, the Dollar amount set
forth for such Lender in the Register maintained by Chase, as
Administrative Agent, pursuant to Section 9.07(d), as such amount may be
reduced pursuant to Section 2.10.
"Competitive Bid Advance" means an advance by a Lender to any Borrower
as part of a Competitive Bid Borrowing resulting from the competitive
bidding procedure described in Section 2.07 and refers to a Fixed Rate Bid
Advance or a Floating Rate Bid Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of such borrowing has
been accepted under the competitive bidding procedure described in Section
2.07.
"Competitive Bid Note" means a promissory note of any Borrower payable
to the order of any Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of such Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender to such
Borrower.
"Competitive Bid Reduction" has the meaning specified in Section 2.01.
"Consolidated Tangible Assets" means the total assets appearing on a
consolidated balance sheet of PM Companies and its Subsidiaries (as reduced
by the total assets appearing on the consolidated balance sheet of Kraft
Foods Inc. and its Subsidiaries), less goodwill and other intangible assets
and the minority interests of other Persons in such Subsidiaries (as
reduced by the goodwill and other intangible assets of Kraft Foods Inc. and
its Subsidiaries and the minority interests of other Persons in such
Subsidiaries), all as determined in accordance with accounting principles
generally accepted in the United States, except that if there has been a
material change in an accounting principle as compared to that applied in
the preparation of the financial statements of PM Companies and its
Subsidiaries as at and for the three months ended March 31, 2001, then such
new accounting principle shall not be used in the determination of
Consolidated Tangible Assets. A material change in an accounting principle
is one that, in the year of its adoption, changes Consolidated Tangible
Assets at any quarter in such year by more than 10%.
4
"Convert", "Conversion" and "Converted" each refers to a conversion of
Pro Rata Advances of one Type into Pro Rata Advances of the other Type
pursuant to Section 2.06, 2.08 or 2.13.
"Debt" means (i) indebtedness for borrowed money or for the deferred
purchase price of property or services, whether or not evidenced by bonds,
debentures, notes or similar instruments, (ii) obligations as lessee under
leases that, in accordance with accounting principles generally accepted in
the United States, are recorded as capital leases, and (iii) obligations
under direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness or obligations
of any other Person of the kinds referred to in clause (i) or (ii) above.
"Default" means any event specified in Section 6.01 that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Designated Subsidiary" means any wholly-owned Subsidiary of PM
Companies designated for borrowing privileges under this Agreement pursuant
to Section 9.08.
"Designation Agreement" means, with respect to any Designated
Subsidiary, an agreement in the form of Exhibit D hereto signed by such
Designated Subsidiary and PM Companies.
"Dollars" and the "$" sign each means lawful currency of the United
States of America.
"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 PM Companies and Chase, as
Administrative Agent.
"Earnings Before Income Taxes" means, for any accounting period,
income or loss from continuing operations for such period, as determined in
accordance with generally accepted accounting principles, plus total
federal, state and foreign income taxes which have been included in the
determination of earnings or losses from continuing operations for such
period in accordance with accounting principles generally accepted in the
United States and amounts which, in the determination of earnings or losses
from continuing operations for such period, have been deducted for the
items referred to in the definition of the term "Fixed Charges", except
that if there has been a material change in an accounting principle as
compared to that applied in the preparation of the financial statements of
PM Companies and its Subsidiaries as at and for the three months ended
March 31, 2001, then such new accounting principle shall not be used in the
determination of Earnings Before Income Taxes. A material change in an
accounting
5
principle is one that, in the year of its adoption, changes Earnings Before
Income Taxes or Fixed Charges for any quarter in such year by more than
10%.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) 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; (ii) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (or any successor) ("OECD"), or a political
subdivision of any such country, and having total assets in excess of
$5,000,000,000, provided that such bank is acting through a branch or
agency located in the country in which it is organized or another country
which is also a member of the OECD or the Cayman Islands; (iii) the central
bank of any country which is a member of the OECD; (iv) a commercial
finance company or finance Subsidiary of a corporation organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $3,000,000,000; (v) an insurance company organized under the laws
of the United States, or any State thereof, and having total assets in
excess of $5,000,000,000; (vi) any Lender; (vii) an affiliate of any
Lender; and (viii) any other bank, commercial finance company, insurance
company or other Person approved in writing by PM Companies, which approval
shall be notified to Chase, as Administrative Agent.
"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 any Borrower's controlled group, or under common
control with any Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence with respect to a Plan of a
reportable event, within the meaning of Section 4043 of ERISA, unless the
30-day notice requirement with respect thereto has been waived by the
Pension Benefit Guaranty Corporation (or any successor) ("PBGC"), or (ii)
the requirements of subsection (1) of Section 4043(b) of ERISA (without
regard to subsection (2) of such section) are met with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a
Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with respect to
such Plan within the following 30 days; (b) the application for a minimum
funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan,
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA); (d)
the cessation of operations at a facility of any Borrower or PM Companies
or any of their ERISA Affiliates in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by any Borrower or PM Companies or any
of their ERISA Affiliates from a Multiple Employer
6
Plan during a plan year for which it was a substantial employer, as defined
in Section 4001(a)(2) of ERISA; (f) the conditions set forth in Section
302(f)(1)(A) and (B) of ERISA to the creation of a lien upon property or
rights to property of any Borrower or PM Companies or any of their ERISA
Affiliates for failure to make a required payment to a Plan are satisfied;
(g) the adoption of an amendment to a Plan requiring the provision of
security to such Plan, pursuant to Section 307 of ERISA; or (h) the
institution by the PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board, as in effect from time to time.
"Eurocurrency Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurocurrency 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 PM Companies and Chase, as
Administrative Agent.
"Eurocurrency Rate Reserve Percentage" for any Interest Period, for
all LIBO Rate Advances or Floating Rate Bid 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 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 LIBO Rate Advances or Floating Rate Bid Advances is
determined) having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 6.01.
"Existing Loan Agreements" means PM Companies' existing
U.S.$8,000,000,000 5-Year Revolving Credit Agreement dated as of October
14, 1997 and U.S.$9,000,000,000 364-Day Revolving Credit Agreement dated as
of October 30, 2000.
"Federal Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended from time to time.
"Federal Funds Effective 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) on Telerate Page 120 (or any
7
successor page), 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 Chase, as Administrative Agent, from three Federal
funds brokers of recognized standing selected by it.
"Fixed Charges" means, for any accounting period, the sum of (a)
interest, whether expensed or capitalized, in respect of any Debt
outstanding during such period, plus (b) amortization of debt expense and
discount or premium relating to any Debt outstanding during such period,
whether expensed or capitalized, plus (c) such portion of rental expense as
can be demonstrated to be representative of the interest factor in the
particular case, all as to be applicable to continuing operations and
determined in accordance with accounting principles generally accepted in
the United States, except that if there has been a material change in an
accounting principle as compared to that applied in the preparation of the
financial statements of PM Companies as at and for the three months ended
March 31, 2001, then such new accounting principle shall not be used in the
determination of Fixed Charges. A material change in an accounting
principle is one that, in the year of its adoption, changes Earnings Before
Income Taxes or Fixed Charges for any quarter in such year by more than
10%.
"Fixed Rate Bid Advance" means a Competitive Bid Advance bearing
interest based on a fixed rate per annum as specified in the relevant
Notice of Competitive Bid Borrowing.
"Floating Rate Bid Advance" means a Competitive Bid Advance bearing
interest at a rate of interest quoted as a margin over the LIBO Rate as
specified in the relevant Notice of Competitive Bid Borrowing.
"Home Jurisdiction Withholding Taxes" means (a) in the case of PM
Companies, withholding for United States income taxes, United States
back-up withholding taxes and United States withholding taxes and (b) in
the case of a Designated Subsidiary, withholding taxes imposed by the
jurisdiction under the laws of which such Designated Subsidiary is
organized or any political subdivision thereof.
"Interest Period" means, for each LIBO Rate Advance comprising part of
the same Pro Rata Borrowing and each Floating Rate Bid Advance comprising
part of the same Competitive Bid Borrowing, the period commencing on the
date of such LIBO Rate Advance or Floating Rate Bid Advance or the date of
Conversion of any Base Rate Advance into such LIBO Rate Advance and ending
on the last day of the period selected by the Borrower requesting such
Borrowing pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, or, if available to
all Lenders, nine or twelve months, as such Borrower may select upon notice
received by Chase, as 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; provided, however, that:
8
(a) such Borrower may not select any Interest Period that ends after
the Termination Date;
(b) 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
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 immediately preceding Business Day; and
(c) 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 the rulings
issued thereunder.
"Lenders" means the Initial Lenders and their successors and
assignees.
"LIBO Rate" means an interest rate per annum equal to either:
(a) the offered rate per annum at which deposits in Dollars appears on
Telerate Page 3750 (or any successor page) as of 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period, or
(b) if the LIBO Rate does not appear on Telerate Page 3750 (or any
successor page), then the LIBO Rate will be determined by taking 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 rates per annum at
which deposits in 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 for an amount substantially equal to the
amount that would be the Reference Banks' respective ratable shares of such
Borrowing outstanding during such Interest Period and for a period equal to
such Interest Period, as determined by Chase, as Administrative Agent,
subject, however, to the provisions of Section 2.08.
"LIBO Rate Advance" means a Pro Rata Advance that bears interest as
provided in Section 2.04(a)(ii).
"Lien" has the meaning specified in Section 5.02(a).
"Major Subsidiary" means any Subsidiary (except Kraft Foods Inc. and
any of its Subsidiaries) (a) more than 50% of the voting securities of
which is owned directly or indirectly by PM Companies, (b) which is
organized and existing under, or has its principal place of business in,
the United States or any political subdivision thereof,
9
Canada or any political subdivision thereof, any country which is a member
of the European Union on the date hereof (other than Greece, Portugal or
Spain) or any political subdivision thereof, or Switzerland, Norway or
Australia or any of their respective political subdivisions, and (c) which
has at any time total assets (after intercompany eliminations) exceeding
$1,000,000,000.
"Margin Stock" means margin stock, as such term is defined in
Regulation U of the Board.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Borrower or any ERISA Affiliate is making
or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions, such plan being maintained pursuant to one or more
collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Borrower or any ERISA Affiliate and at least one Person other than such
Borrower and the ERISA Affiliates or (b) was so maintained and in respect
of which such Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Note" means a Pro Rata Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.07(b).
"Notice of Pro Rata Borrowing" has the meaning specified in Section
2.02(a).
"Obligations" has the meaning specified in Section 8.01.
"Other Taxes" has the meaning specified in Section 2.15(b).
"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.
"Pro Rata Advance" means an advance by a Lender to any Borrower as
part of a Pro Rata Borrowing and refers to a Base Rate Advance or a LIBO
Rate Advance (each of which shall be a "Type" of Pro Rata Advance).
"Pro Rata Borrowing" means a borrowing consisting of simultaneous Pro
Rata Advances of the same Type made by each of the Lenders pursuant to
Section 2.01.
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"Pro Rata Note" means a promissory note of any Borrower payable to the
order of any Lender, delivered pursuant to a request made under Section
2.17 in substantially the form of Exhibit A-1 hereto, evidencing the
aggregate indebtedness of such Borrower to such Lender resulting from the
Pro Rata Advances made by such Lender to such Borrower.
"Reference Banks" means Chase, Citibank, Credit Suisse First Boston
and Deutsche Bank AG.
"Register" has the meaning specified in Section 9.07(d).
"Regulation U" means Regulation U of the Board, as in effect from time
to time.
"Required Lenders" means at any time Lenders owed at least 50.1% of
the then aggregate unpaid principal amount of the Pro Rata Advances owing
to Lenders, or, if no such principal amount is then outstanding, Lenders
having at least 50.1% of the Commitments.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Borrower or any ERISA Affiliate and no Person other than such Borrower and
the ERISA Affiliates or (b) was so maintained and in respect of which such
Borrower or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation of which (or in
which) more than 50% of the outstanding capital stock having 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) 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 July 24, 2006 and the date of
termination in whole of the Commitments pursuant to Section 2.10 or 6.02.
"364-Day Facility" means the U.S.$3,000,000,000 364-Day Revolving
Credit Agreement dated as of the date hereof among PM Companies and the
agents and lenders party thereto.
"Tobacco Assets" means all assets consisting of tobacco and tobacco
related assets, including, without limitation, all tobacco inventory, aging
warehouses, cigarette manufacturing facilities, distribution warehouses,
trademarks, tradenames and know-how and which relate to the domestic and
United States export business of PM Companies and its Subsidiaries.
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Section 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
Section 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with accounting principles
generally accepted in the United States, except that if there has been a
material change in an accounting principle affecting the definition of an
accounting term as compared to that applied in the preparation of the financial
statements of PM Companies as of and for the three months ended March 31, 2001,
then such new accounting principle shall not be used in the determination of the
amount associated with that accounting term. A material change in an accounting
principle is one that, in the year of its adoption, changes the amount
associated with the relevant accounting term for any quarter in such year by
more than 10%.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. The Pro Rata Advances. (a) Obligation to Make Pro Rata
Advances. Each Lender severally agrees, on the terms and conditions hereinafter
set forth, to make Pro Rata Advances to any Borrower from time to time on any
Business Day during the period from the Effective Date until the Termination
Date in an aggregate amount not to exceed at any time outstanding such Lender's
Commitment; provided, however, that the aggregate amount of the Commitments of
the Lenders shall be deemed used from time to time to the extent of the
aggregate amount of the Competitive Bid Advances then outstanding and such
deemed use of the aggregate amount of the Commitments shall be allocated among
the Lenders ratably according to their respective Commitments (such deemed use
of the aggregate amount of the Commitments being a "Competitive Bid Reduction").
(b) Amount of Pro Rata Borrowings. Each Pro Rata Borrowing shall be in an
aggregate amount of no less than $50,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(c) Type of Pro Rata Advances. Each Pro Rata Borrowing shall consist of Pro
Rata Advances of the same Type made on the same day by the Lenders ratably
according to their respective Commitments. Within the limits of each Lender's
Commitment and subject to this Section 2.01, any Borrower may borrow under this
Section 2.01, prepay pursuant to Section 2.11 or repay pursuant to Section 2.03
and reborrow under this Section 2.01.
Section 2.02. Making the Pro Rata Advances. (a) Notice of Pro Rata
Borrowing. Each Pro Rata Borrowing shall be made on notice, given not later than
(x) 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Pro Rata Borrowing in the case of a Pro Rata Borrowing
consisting of LIBO Rate Advances, or (y) 9:00 A.M. (New York City time) on the
date of the proposed Pro Rata Borrowing in the case of a Pro Rata Borrowing
consisting of Base Rate Advances, by the Borrower to Chase, as Administrative
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Agent, which shall give to each Lender prompt notice thereof by telecopier. Each
such notice of a Pro Rata Borrowing (a "Notice of Pro Rata Borrowing") shall be
by telephone, confirmed immediately in writing, by registered mail or telecopier
in substantially the form of Exhibit B-1 hereto, specifying therein the
requested:
(i) date of such Pro Rata Borrowing,
(ii) Type of Advances comprising such Pro Rata Borrowing,
(iii) aggregate amount of such Pro Rata Borrowing, and
(iv) in the case of a Pro Rata Borrowing consisting of LIBO Rate
Advances, the initial Interest Period for each such Pro Rata Advance.
Notwithstanding anything herein to the contrary, no Borrower may select
LIBO Rate Advances for any Pro Rata Borrowing if the obligation of the
Lenders to make LIBO Rate Advances shall then be suspended pursuant to
Section 2.08(c) or 2.13.
(b) Funding Pro Rata Advances. Each Lender shall, before 11:00 A.M. (New
York City time) on the date of such Pro Rata Borrowing, make available for the
account of its Applicable Lending Office to Chase, as Administrative Agent, at
Chase's Administrative Agent Account, in same day funds, such Lender's ratable
portion of such Pro Rata Borrowing. After receipt of such funds by Chase, as
Administrative Agent, and upon fulfillment of the applicable conditions set
forth in Article III, Chase, as Administrative Agent, will make such funds
available to the relevant Borrower at the address of Chase, as Administrative
Agent, referred to in Section 9.02.
(c) Irrevocable Notice. Each Notice of Pro Rata Borrowing of any Borrower
shall be irrevocable and binding on such Borrower. In the case of any Pro Rata
Borrowing that the related Notice of Pro Rata Borrowing specifies is to be
comprised of LIBO Rate Advances, the Borrower requesting such Pro Rata Borrowing
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Pro Rata Borrowing for such Pro Rata Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Pro Rata Advance to be made by such Lender as part of such
Pro Rata Borrowing when such Pro Rata Advance, as a result of such failure, is
not made on such date.
(d) Lender's Ratable Portion. Unless Chase, as Administrative Agent, shall
have received notice from a Lender prior to 11:00 A.M. (New York City time) on
the day of any Pro Rata Borrowing that such Lender will not make available to
Chase, as Administrative Agent, such Lender's ratable portion of such Pro Rata
Borrowing, Chase, as Administrative Agent, may assume that such Lender has made
such portion available to Chase, as Administrative Agent, on the date of such
Pro Rata Borrowing in accordance with Section 2.02(b) and Chase, as
Administrative Agent, may, in reliance upon such assumption, make available to
the Borrower
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proposing such Pro Rata Borrowing on such date a corresponding amount. If and to
the extent that such Lender shall not have so made such ratable portion
available to Chase, as Administrative Agent, such Lender and such Borrower
severally agree to repay to Chase, as Administrative Agent, forthwith on demand
such corresponding amount together with interest thereon, for each day from the
date such amount is made available to such Borrower until the date such amount
is repaid to Chase, as Administrative Agent, at:
(i) in the case of such Borrower, the higher of (A) the interest
rate applicable at the time to Pro Rata Advances comprising such Pro Rata
Borrowing and (B) the cost of funds incurred by Chase, as Administrative
Agent, in respect of such amount, and
(ii) in the case of such Lender, the Federal Funds Effective
Rate.
If such Lender shall repay to Chase, as Administrative Agent, such corresponding
amount, such amount so repaid shall constitute such Lender's Pro Rata Advance as
part of such Pro Rata Borrowing for purposes of this Agreement.
(e) Independent Lender Obligations. The failure of any Lender to make the
Pro Rata Advance to be made by it as part of any Pro Rata Borrowing shall not
relieve any other Lender of its obligation, if any, hereunder to make its Pro
Rata Advance on the date of such Pro Rata Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Pro Rata Advance to
be made by such other Lender on the date of any Pro Rata Borrowing.
Section 2.03. Repayment of Pro Rata Advances. Each Borrower shall
repay to Chase, as Administrative Agent, for the ratable account of the Lenders
on the Termination Date the unpaid principal amount of the Pro Rata Advances
then outstanding.
Section 2.04. Interest on Pro Rata Advances. (a) Scheduled Interest.
Each Borrower shall pay interest on the unpaid principal amount of each Pro Rata
Advance owing by such Borrower to each Lender from the date of such Pro Rata
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 Pro Rata
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 monthly on the
20th day of each month and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) LIBO Rate Advances. During such periods as such Pro Rata
Advance is a LIBO Rate Advance, a rate per annum equal at all times during
each Interest Period for such Pro Rata Advance to the sum of (x) the LIBO
Rate for such Interest Period for such Pro Rata Advance plus (y) the
Applicable Interest Rate Margin in effect from time to time, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that occurs
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during such Interest Period every three months from the first day of such
Interest Period and on the date such LIBO Rate Advance shall be Converted
or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of an
Event of Default, each Borrower shall pay interest on the unpaid principal
amount of each Pro Rata Advance owing to each Lender, payable in arrears on the
dates referred to in Section 2.04(a)(i) or Section 2.04(a)(ii), at a rate per
annum equal at all times to 1% per annum above the rate per annum required to be
paid on such Pro Rata Advance.
Section 2.05. Additional Interest on LIBO Rate Advances. Each Borrower
shall pay to each Lender, so long as such Lender shall be required under
regulations of the Board to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities, additional interest
on the unpaid principal amount of each LIBO Rate Advance of such Lender to such
Borrower, from the date of such Advance until such principal amount is paid in
full, at an interest rate per annum equal at all times to the remainder obtained
by subtracting (i) the LIBO Rate for the Interest Period for such Advance from
(ii) the rate obtained by dividing such LIBO Rate by a percentage equal to 100%
minus the Eurocurrency Rate Reserve Percentage of such Lender for such Interest
Period, payable on each date on which interest is payable on such Advance. Such
additional interest shall be determined by such Lender and notified to PM
Companies through Chase, as Administrative Agent.
Section 2.06. Conversion of Pro Rata Advances. (a) Conversion Upon
Absence of Interest Period. If any Borrower shall fail to select the duration of
any Interest Period for any LIBO Rate Advances in accordance with the provisions
contained in the definition of the term "Interest Period", Chase, as
Administrative Agent, will forthwith so notify such Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(b) Conversion Upon Event of Default. Upon the occurrence and during the
continuance of any Event of Default under Section 6.01(a), Chase, as
Administrative Agent, or the Required Lenders may elect that (i) each LIBO Rate
Advance be, on the last day of the then existing Interest Period therefor,
Converted into Base Rate Advances and (ii) the obligation of the Lenders to
make, or to Convert Advances into, LIBO Rate Advances be suspended.
(c) Voluntary Conversion. Subject to the provisions of Sections 2.08(c) and
2.13, any Borrower may convert all such Borrower's Pro Rata Advances of one Type
constituting the same Pro Rata Borrowing into Advances of the other Type on any
Business Day, upon notice given to Chase, as 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; provided, however, that the Conversion of a LIBO
Rate Advance into a Base Rate Advance may be made on, and only on, the last day
of an Interest Period for such LIBO Rate Advance. Each such notice of a
Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion;
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(ii) the Pro Rata Advances to be Converted; and
(iii) if such Conversion is into LIBO Rate Advances, the duration
of the Interest Period for each such Pro Rata Advance.
Section 2.07. The Competitive Bid Advances. (a) Competitive Bid
Advances' Impact on Commitments. Each Lender severally agrees that any Borrower
may make Competitive Bid Borrowings under this Section 2.07 from time to time on
any Business Day during the period from the Effective Date until the Termination
Date in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, the aggregate amount of the Advances then outstanding
shall not exceed the aggregate amount of the Commitments of the Lenders. As
provided in Section 2.01, the aggregate amount of the Commitments of the Lenders
shall be deemed used from time to time to the extent of the aggregate amount of
the Competitive Bid Advances then outstanding, and such deemed use of the
aggregate amount of the Commitments shall be applied to the Lenders ratably
according to their respective Commitments; provided, however, that any Lender's
Competitive Bid Advances shall not otherwise reduce that Lender's obligation to
lend its pro rata share of the remaining available Commitments.
(b) Notice of Competitive Bid Borrowing. Any Borrower may request a
Competitive Bid Borrowing under this Section 2.07 by delivering to Chase, as
Administrative Agent, by telecopier, a notice of a Competitive Bid Borrowing (a
"Notice of Competitive Bid Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein the following:
(i) date of such proposed Competitive Bid Borrowing;
(ii) aggregate amount of such proposed Competitive Bid Borrowing;
(iii) interest rate basis and day count convention to be offered
by the Lenders;
(iv) in the case of a Competitive Bid Borrowing consisting of
Floating Rate Bid Advances, Interest Period, or in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Bid Advances, maturity
date for repayment of each Fixed Rate Bid Advance to be made as part of
such Competitive Bid Borrowing (which maturity date may not be earlier than
the date occurring seven days after the date of such Competitive Bid
Borrowing or later than the earlier of (A) 360 days after the date of such
Competitive Bid Borrowing and (B) the Termination Date);
(v) interest payment date or dates relating thereto;
(vi) location of such Borrower's account to which funds are to be
advanced; and
(vii) other terms (if any) to be applicable to such Competitive
Bid Borrowing.
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A Borrower requesting a Competitive Bid Borrowing shall deliver a Notice of
Competitive Bid Borrowing to Chase, as Administrative Agent, not later than
10:00 A.M. (New York City time) (x) at least two Business Days prior to the date
of the proposed Competitive Bid Borrowing, if such Borrower shall specify in the
Notice of Competitive Bid Borrowing that the Competitive Bid Borrowing shall be
Fixed Rate Bid Advances, or (y) at least four Business Days prior to the date of
the proposed Competitive Bid Borrowing, if such Borrower shall specify in the
Notice of Competitive Bid Borrowing that the Competitive Bid Borrowing shall be
Floating Rate Bid Advances. Each Notice of Competitive Bid Borrowing shall be
irrevocable and binding on such Borrower. Chase, as Administrative Agent, shall
in turn promptly notify each Lender of each request for a Competitive Bid
Borrowing received by it from such Borrower by sending such Lender a copy of the
related Notice of Competitive Bid Borrowing.
(c) Discretion as to Competitive Bid Advances. Each Lender may, in its sole
discretion, elect to irrevocably offer to make one or more Competitive Bid
Advances to the applicable Borrower as part of such proposed Competitive Bid
Borrowing at a rate or rates of interest specified by such Lender in its sole
discretion, by notifying Chase, as Administrative Agent (which shall give prompt
notice thereof to such Borrower), before 9:30 A.M. (New York City time) (A) on
the Business Day prior to the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of Fixed Rate Bid
Advances, and (B) on the third Business Day prior to the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting
of Floating Rate Bid Advances; provided that, if Chase in its capacity as a
Lender shall, in its sole discretion, elect to make any such offer, it shall
notify such Borrower of such offer at least 30 minutes before the time and on
the date on which notice of such election is to be given by any other Lender to
Chase, as Administrative Agent. In such notice, the Lender shall specify the
following:
(i) the minimum amount and maximum amount of each Competitive Bid
Advance which such Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts may, subject to the proviso to the
first sentence of Section 2.07(a), exceed such Lender's Commitment);
(ii) the rate or rates of interest therefor; and
(iii) such Lender's Applicable Lending Office with respect to
such Competitive Bid Advance.
If any Lender shall elect not to make such an offer, such Lender shall so notify
Chase, as Administrative Agent, before 9:30 A.M. (New York City time) on the
date on which notice of such election is to be given to Chase, as Administrative
Agent, by the other Lenders, and such Lender shall not be obligated to, and
shall not, make any Competitive Bid Advance as part of such Competitive Bid
Borrowing; provided further that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any Competitive Bid Advance
as part of such proposed Competitive Bid Borrowing.
17
(d) Borrower Selection of Lender Bids. The Borrower proposing the
Competitive Bid Borrowing shall, in turn, (A) before 12:00 noon (New York City
time) on the Business Day prior to the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Bid Advances and (B) before 12:00 noon (New York City time) on the third
Business Day prior to the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Floating Rate Bid
Advances, either:
(i) cancel such Competitive Bid Borrowing by giving Chase, as
Administrative Agent, notice to that effect, or
(ii) accept, in its sole discretion, one or more of the offers
made by any Lender or Lenders pursuant to Section 2.07(c), by giving notice
to Chase, as Administrative Agent, of the amount of each Competitive Bid
Advance (which amount shall be equal to or greater than the minimum amount,
and equal to or less than the maximum amount, notified to such Borrower by
Chase, as Administrative Agent on behalf of such Lender, for such
Competitive Bid Advance pursuant to Section 2.07(c) to be made by each
Lender as part of such Competitive Bid Borrowing, and reject any remaining
offers made by Lenders pursuant to Section 2.07(c) by giving Chase, as
Administrative Agent, notice to that effect. Such Borrower shall accept the
offers made by any Lender or Lenders to make Competitive Bid Advances in
order of the lowest to the highest rates of interest offered by such
Lenders. If two or more Lenders have offered the same interest rate, the
amount to be borrowed at such interest rate will be allocated among such
Lenders in proportion to the maximum amount that each such Lender offered
at such interest rate.
If the Borrower proposing the Competitive Bid Borrowing notifies Chase, as
Administrative Agent, that such Competitive Bid Borrowing is canceled pursuant
to Section 2.07(d)(i), or if such Borrower fails to give timely notice in
accordance with Section 2.07(d), Chase, as Administrative Agent, shall give
prompt notice thereof to the Lenders and such Competitive Bid Borrowing shall
not be made.
(e) Competitive Bid Borrowing. If the Borrower proposing the Competitive
Bid Borrowing accepts one or more of the offers made by any Lender or Lenders
pursuant to Section 2.07(d)(ii), Chase, as Administrative Agent, shall in turn
promptly notify:
(i) each Lender that has made an offer as described in Section
2.07(c), whether or not any offer or offers made by such Lender pursuant to
Section 2.07(c) have been accepted by such Borrower;
(ii) each Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing, of the date and amount of each
Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing; and
(iii) each Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing, upon receipt, that Chase, as
Administrative Agent, has
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received forms of documents appearing to fulfill the applicable conditions
set forth in Article III.
When each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing has received notice pursuant to Section 2.07(e)(iii),
such Lender shall, before 11:00 A.M. (New York City time), on the date of such
Competitive Bid Borrowing specified in the notice received from Chase, as
Administrative Agent, pursuant to Section 2.07(e)(i), make available for the
account of its Applicable Lending Office to Chase, as Administrative Agent, at
its address referred to in Section 9.02, in same day funds, such Lender's
portion of such Competitive Bid Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by Chase, as
Administrative Agent, of such funds, Chase, as Administrative Agent, will make
such funds available to such Borrower at the location specified by such Borrower
in its Notice of Competitive Bid Borrowing. Promptly after each Competitive Bid
Borrowing, Chase, as Administrative Agent, will notify each Lender of the amount
of the Competitive Bid Borrowing, the consequent Competitive Bid Reduction and
the dates upon which such Competitive Bid Reduction commenced and will
terminate.
(f) Irrevocable Notice. If the Borrower proposing the Competitive Bid
Borrowing notifies Chase, as Administrative Agent, that it accepts one or more
of the offers made by any Lender or Lenders pursuant to Section 2.07(c), such
notice of acceptance shall be irrevocable and binding on such Borrower. Such
Borrower shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the date
specified in the related Notice of Competitive Bid Borrowing for such
Competitive Bid Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid Borrowing when
such Competitive Bid Advance, as a result of such failure, is not made on such
date.
(g) Amount of Competitive Bid Borrowings; Competitive Bid Notes. Each
Competitive Bid Borrowing shall be in an aggregate amount of $50,000,000 or an
integral multiple of $1,000,000 in excess thereof and, following the making of
each Competitive Bid Borrowing, the aggregate amount of Advances then
outstanding shall not exceed the aggregate amount of the Commitments of the
Lenders. Within the limits and on the conditions set forth in this Section 2.07,
any Borrower may from time to time borrow under this Section 2.07, prepay
pursuant to Section 2.11 or repay pursuant to Section 2.07(h), and reborrow
under this Section 2.07; provided that a Competitive Bid Borrowing shall not be
made within two Business Days of the date of any other Competitive Bid
Borrowing. The indebtedness of any Borrower resulting from each Competitive Bid
Advance made to such Borrower as part of a Competitive Bid Borrowing shall be
evidenced by a separate Competitive Bid Note of such Borrower payable to the
order of the Lender making such Competitive Bid Advance.
(h) Repayment of Competitive Bid Advances. On the maturity date of each
Competitive Bid Advance provided in the Competitive Bid Note evidencing such
Competitive Bid Advance, the Borrower shall repay to Chase, as Administrative
Agent, for the account of
19
each Lender that has made a Competitive Bid Advance the then unpaid principal
amount of such Competitive Bid Advance. Except as required by Section 2.11(b),
no Borrower shall have any right to prepay any principal amount of any
Competitive Bid Advance unless, and then only on the terms set forth in the
Competitive Bid Note evidencing such Competitive Bid Advance.
(i) Interest on Competitive Bid Advances. Each Borrower that has borrowed
through a Competitive Bid Borrowing shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance and on
the interest payment date or dates set forth in the Competitive Bid Note
evidencing such Competitive Bid Advance. Upon the occurrence and during the
continuance of an Event of Default, such Borrower shall pay interest on the
amount of unpaid principal of each Competitive Bid Advance owing to a Lender,
payable in arrears on the date or dates interest is payable thereon, at a rate
per annum equal at all times to 1% per annum above the rate per annum required
to be paid on such Competitive Bid Advance under the terms of the Competitive
Bid Note evidencing such Competitive Bid Advance unless otherwise agreed in such
Competitive Bid Note.
Section 2.08. LIBO Rate Determination. (a) Methods to Determine LIBO
Rate. Chase, as Administrative Agent, shall determine the LIBO Rate by using the
methods described in the definition of the term "LIBO Rate", and shall give
prompt notice to the Borrower and Lenders of each such LIBO Rate.
(b) Role of Reference Banks. In the event that the LIBO Rate cannot be
determined by the method described in clause (a) of the definition of "LIBO
Rate", each Reference Bank agrees to furnish to Chase, as Administrative Agent,
timely information for the purpose of determining the LIBO Rate in accordance
with the method described in clause (b) of the definition thereof. If any one or
more of the Reference Banks shall not furnish such timely information to Chase,
as Administrative Agent, for the purpose of determining a LIBO Rate, Chase, as
Administrative Agent, shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks. If fewer than two
Reference Banks furnish timely information to Chase, as Administrative Agent,
for determining the LIBO Rate for any LIBO Rate Advances or Floating Rate Bid
Advances, as the case may be, then:
(i) Chase, as Administrative Agent, shall forthwith notify PM
Companies and the Lenders that the interest rate cannot be determined for
such LIBO Rate Advance or Floating Rate Bid Advances, as the case may be;
(ii) with respect to each LIBO Rate Advance, such Advance will,
on the last day of the then existing Interest Period therefor, be prepaid
by the Borrower or be automatically Converted into a Base Rate Advance; and
(iii) the obligation of the Lenders to make LIBO Rate Advances or
Floating Rate Bid Advances or to Convert Base Rate Advances into LIBO Rate
Advances shall be suspended until Chase, as Administrative Agent, shall
notify PM
20
Companies and the Lenders that the circumstances causing such suspension no
longer exist.
Chase, as Administrative Agent, shall give prompt notice to PM Companies and the
Lenders of the applicable interest rate determined by Chase, as Administrative
Agent, for purposes of Section 2.04(a)(i) or (ii), and the rate, if any,
furnished by each Reference Bank for the purpose of determining the interest
rate under Section 2.04(a)(ii) or the applicable LIBO Rate.
(c) Inadequate LIBO Rate. If, with respect to any LIBO Rate Advances, the
Required Lenders notify Chase, as Administrative Agent, that (i) they are unable
to obtain matching deposits in the London interbank market at or about 11:00
A.M. (London time) on the second Business Day before the making of a Borrowing
in sufficient amounts to fund their respective LIBO Rate Advances as a part of
such Borrowing during the Interest Period therefor or (ii) the LIBO Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Required Lenders of making, funding or maintaining their respective LIBO Rate
Advances for such Interest Period, Chase, as Administrative Agent, shall
forthwith so notify PM Companies and the Lenders, whereupon (A) the Borrower of
such LIBO Rate Advances will, on the last day of the then existing Interest
Period therefor, either (x) prepay such Advances or (y) Convert such Advances
into Base Rate Advances and (B) the obligation of the Lenders to make, or to
Convert Base Rate Advances into, LIBO Rate Advances shall be suspended until
Chase, as Administrative Agent, shall notify PM Companies and the Lenders that
the circumstances causing such suspension no longer exist. In the case of clause
(ii) above, each Lender shall certify its cost of funds for each Interest Period
to Chase, as Administrative Agent, and PM Companies as soon as practicable (but
in any event not later than 10 Business Days after the last day of such Interest
Period).
Section 2.09. Fees. (a) Facility Fee. PM Companies agrees to pay to
Chase, as Administrative Agent, for the account of each Lender a facility fee on
the aggregate amount of such Lender's Commitment (whether or not used and
without giving effect to any Competitive Bid Reduction) from the date hereof 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 the Applicable Facility Fee
Rate, in each case payable on the last day of each March, June, September and
December until the Termination Date and on the Termination Date.
(b) Agent's Fees. PM Companies shall pay to Chase, as Administrative Agent,
for its own account such fees as may from time to time be agreed between PM
Companies and such Agent.
Section 2.10. Termination or Reduction of the Commitments. (a)
Optional. PM Companies shall have the right, upon at least three Business Days'
notice to Chase, as Administrative Agent, to terminate in whole or reduce
ratably in part the unused portions of the respective Commitments of the
Lenders; provided that each partial reduction shall be in the aggregate amount
of no less than $50,000,000; and provided further that the aggregate amount of
21
the Commitments of the Lenders shall not be reduced to an amount that is less
than the aggregate principal amount of the Competitive Bid Advances then
outstanding.
(b) Mandatory. In the event that there shall be an Asset Disposition, the
respective Commitments of the Lenders shall be reduced ratably by an aggregate
amount equal to 100% of the greater of (x) the book value and (y) the fair
market value of the Tobacco Assets subject to such Asset Disposition as of the
date of such Asset Disposition, in each case reduced by any income taxes
attributable thereto, subject to the following:
(i) in the event of a Stock Sale, the amount of Tobacco Assets
subject to such Asset Disposition shall be determined by multiplying (x)
the percentage of the outstanding shares of the relevant Subsidiary's
common stock sold or otherwise transferred, directly or indirectly, by PM
Companies by (y) the greater of (A) the book value and (B) the fair market
value of such Subsidiary's Tobacco Assets as of the date of such Stock
Sale;
(ii) in the event of a Disposition of Tobacco Assets by a
Subsidiary of PM Companies that is less than wholly owned, directly or
indirectly, by PM Companies, the amount of Tobacco Assets subject to such
Asset Disposition shall be determined by multiplying (x) the percentage of
the outstanding shares of the relevant Subsidiary's common stock owned,
directly or indirectly, by PM Companies by (y) the greater of (A) the book
value and (B) the fair market value of such Subsidiary's Tobacco Assets
subject to such Asset Disposition as of the date thereof;
(iii) any reduction pursuant to this Section 2.10(b) shall be
effective on a date selected by the relevant Board of Directors but in any
event no later than the last day of the calendar quarter during which the
Asset Disposition occurs;
(iv) any reduction which would be in an amount less than
$50,000,000 shall not be made but shall be included in the calculation of
the subsequent reduction or reductions provided for in this Section 2.10(b)
until the aggregate amount of any such subsequent reduction shall be at
least equal to $50,000,000, and such reduction shall then be made as above
provided in this Section 2.10(b); and
(v) all calculations required by this Section 2.10(b) shall be
determined in good faith by the Board of Directors of Xxxxxx Xxxxxx
Incorporated in the case of a Disposition of Tobacco Assets by it or one of
its Subsidiaries or a Stock Sale involving the stock of one of its
Subsidiaries, or otherwise by the Board of Directors of PM Companies.
Section 2.11. Prepayments of Advances. (a) Optional Prepayments of Pro
Rata Advances. Each Borrower may, in the case of any LIBO Rate Advance, upon at
least three Business Days' notice to Chase, as Administrative Agent, or, in the
case of any Base Rate Advance, upon notice given to Chase, as Administrative
Agent, not later than 9:00 A.M. (New York City time) on the date of the proposed
prepayment, in each case stating the proposed date
22
and aggregate principal amount of the prepayment, and if such notice is given
such Borrower shall, prepay the outstanding principal amount of the Pro Rata
Advances comprising part of the same Pro Rata 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 no less than $50,000,000 and (y) in
the event of any such prepayment of a LIBO Rate Advance, such Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section
9.04(b).
(b) Mandatory Prepayments. The Borrower shall, on each Business Day, prepay
an aggregate principal amount of the Advances equal to the amount by which (A)
the aggregate principal amount of the Advances then outstanding exceeds (B) the
aggregate of the Commitments (after giving effect to the Competitive Bid
Reduction and Section 2.10(b)) on such Business Day. Prepayments under this
Section 2.11(b), shall be allocated first to Base Rate Advances, ratably; any
excess amount shall then be allocated to LIBO Rate Advances, in such manner as
the Borrower shall determine; and any remaining amount shall be allocated to
Competitive Bid Advances, in such manner as the Borrower shall determine.
Each prepayment made pursuant to this Section 2.11(b) shall be made
together with any interest accrued to the date of such prepayment on the
principal amounts prepaid and, in the case of any prepayment of a LIBO Rate
Advance or a Floating Rate Bid Advance on a date other than the last day of an
Interest Period or at its maturity, any additional amounts which such Borrower
shall be obligated to reimburse to the Lenders in respect thereof pursuant to
Section 9.04(b). Chase, as Administrative Agent, shall give prompt notice of any
prepayment required under this Section 2.11(b) to the Borrowers and the Lenders.
Section 2.12. Increased Costs. (a) Costs from Change in Law or
Authorities. If, due to either (i) the introduction of or any change (other than
any change by way of imposition or increase of reserve requirements to the
extent such change is included in the Eurocurrency Rate Reserve Percentage) in
or in the interpretation of any law or regulation or (ii) the compliance with
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining LIBO
Rate Advances or Floating Rate Bid Advances (excluding for purposes of this
Section 2.12 any such increased costs resulting from (i) Taxes or Other Taxes
(as to which Section 2.15 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower of the affected Advances shall from time to time,
upon demand by such Lender (with a copy of such demand to Chase, as
Administrative Agent), pay to Chase, as Administrative Agent, for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost; provided, however, that before making any such demand, each
Lender agrees to use reasonable 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 cost and would not, in the reasonable judgment of
such Lender, be otherwise disadvantageous to such Lender. A certificate as to
the amount of such increased cost,
23
submitted to PM Companies, such Borrower and Chase, as Administrative Agent, by
such Lender, shall be conclusive and binding for all purposes, absent manifest
error.
(b) Reduction in Lender's Rate of Return. In the event that, after the date
hereof, the implementation of or any change in any law or regulation, or any
guideline or directive (whether or not having the force of law) or the
interpretation or administration thereof by any central bank or other authority
charged with the administration thereof, imposes, modifies or deems applicable
any capital adequacy or similar requirement (including, without limitation, a
request or requirement which affects the manner in which any Lender allocates
capital resources to its commitments, including its obligations hereunder) and
as a result thereof, in the sole opinion of such Lender, the rate of return on
such Lender's capital as a consequence of its obligations hereunder is reduced
to a level below that which such Lender could have achieved but for such
circumstances, but reduced to the extent that Borrowings are outstanding from
time to time, then in each such case, upon demand from time to time PM Companies
shall pay to such Lender such additional amount or amounts as shall compensate
such Lender for such reduction in rate of return; provided that, in the case of
each Lender, such additional amount or amounts shall not exceed 0.15 of 1% per
annum of such Lender's Commitment. A certificate of such Lender as to any such
additional amount or amounts shall be conclusive and binding for all purposes,
absent manifest error. Except as provided below, in determining any such amount
or amounts each Lender may use any reasonable averaging and attribution methods.
Notwithstanding the foregoing, each Lender shall take all reasonable actions to
avoid the imposition of, or reduce the amounts of, such increased costs,
provided that such actions, in the reasonable judgment of such Lender, will not
be otherwise disadvantageous to such Lender, and, to the extent possible, each
Lender will calculate such increased costs based upon the capital requirements
for its commitment hereunder and not upon the average or general capital
requirements imposed upon such Lender.
Section 2.13. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify Chase, as 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 Eurocurrency
Lending Office to perform its obligations hereunder to make LIBO Rate Advances
or Floating Rate Bid Advances or to fund or maintain LIBO Rate Advances or
Floating Rate Bid Advances, (a) each LIBO Rate Advance or Floating Rate Bid
Advances, as the case may be, will automatically, upon such demand, be Converted
into a Base Rate Advance or an Advance that bears interest at the rate set forth
in Section 2.04(a)(i), as the case may be, and (b) the obligation of the Lenders
to make LIBO Rate Advances or Floating Rate Bid Advances or to Convert Base Rate
Advances into LIBO Rate Advances shall be suspended until Chase, as
Administrative Agent, shall notify PM Companies and the Lenders that the
circumstances causing such suspension no longer exist; provided, however, that
before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Eurocurrency Lending Office if the making of such a
designation would allow such Lender or its Eurocurrency Lending Office to
continue to perform its obligations to make LIBO Rate Advances or Floating Rate
Bid Advances or to continue to fund or maintain LIBO Rate
24
Advances or Floating Rate Bid Advances, as the case may be, and would not, in
the judgment of such Lender, be otherwise disadvantageous to such Lender.
Section 2.14. Payments and Computations. (a) Time and Distribution of
Payments. PM Companies and each Borrower shall make each payment hereunder, not
later than 11:00 A.M. (New York City time) on the day when due to Chase, as
Administrative Agent, at Chase's Administrative Agent Account in same day funds.
Chase, as Administrative Agent, will promptly thereafter cause to be distributed
like funds relating to the payment of principal or interest or facility fees
ratably (other than amounts payable pursuant to Section 2.07, 2.12, 2.15 or
9.04(b)) 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. From and
after the effective date of an Assignment and Acceptance pursuant to Section
9.07, Chase, as Administrative Agent, shall make all payments hereunder in
respect of the interest assigned thereby to the Lender assignee thereunder, and
the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) Computation of Interest and Fees. All computations of interest based on
Chase's prime rate shall be made by Chase, as Administrative Agent, on the basis
of a year of 365 or 366 days, as the case may be. All computations of interest
based on the LIBO Rate or the Federal Funds Effective Rate and of facility fees
shall be made by Chase, as Administrative Agent and all computations of interest
pursuant to Section 2.05 shall be made by a Lender, on the basis of a year of
360 days, and all computations of interest in respect of Competitive Bid
Advances shall be made by Chase, as Administrative Agent, as specified in the
applicable Notice of Competitive Bid Notice, in each case for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest or facility fees are payable. Each determination
by Chase, as Administrative Agent (or, in the case of Section 2.05 by a Lender),
of an interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(c) Payment Due Dates. Whenever any payment hereunder shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility fee, as the case
may be; provided, however, that if such extension would cause payment of
interest on or principal of LIBO Rate Advances or Floating Rate Bid Advances to
be made in the next following calendar month, such payment shall be made on the
immediately preceding Business Day.
(d) Presumption of Borrower Payment. Unless Chase, as Administrative Agent,
receives notice from any Borrower prior to the date on which any payment is due
to the Lenders hereunder that such Borrower will not make such payment in full,
Chase, as Administrative Agent, may assume that such Borrower has made such
payment in full to Chase, as Administrative Agent, on such date and Chase, as
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 such Borrower has not made such payment in
25
full to Chase, as Administrative Agent, each Lender shall repay to Chase, as
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
Chase, as Administrative Agent, at the Federal Funds Effective Rate.
Section 2.15. Taxes. (a) Any and all payments by each Borrower and PM
Companies hereunder shall be made, in accordance with Section 2.14, 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, (i) in the case of each Lender and Chase, as Administrative
Agent, taxes imposed on its net income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Lender or Chase, as Administrative
Agent (as the case may be), is organized or any political subdivision thereof,
(ii) in the case of each Lender, taxes imposed on its net income, and franchise
taxes imposed on it, by the jurisdiction of such Lender's Applicable Lending
Office or any political subdivision thereof, (iii) in the case of each Lender
and Chase, as Administrative Agent, taxes imposed on its net income, franchise
taxes imposed on it, and any tax imposed by means of withholding to the extent
such tax is imposed solely as a result of a present or former connection (other
than the execution, delivery and performance of this Agreement or a Note)
between the Lender or Chase, as Administrative Agent, as the case may be, and
the taxing jurisdiction, and (iv) in the case of each Lender and Chase, as
Administrative Agent, taxes imposed by the United States by means of withholding
tax if and to the extent that such taxes shall be in effect and shall be
applicable on the date hereof to payments to be made to such Lender's Applicable
Lending Office or to Chase, as Administrative Agent (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder being hereinafter referred to as "Taxes"). If any
Borrower or PM Companies shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender or Chase, as 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 Chase, as 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) such Borrower or PM Companies
shall make such deductions and (iii) such Borrower or PM Companies shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower or PM Companies shall pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement (hereinafter referred to as "Other Taxes").
(c) Each Borrower and PM Companies shall indemnify each Lender and Chase,
as Administrative Agent, for and hold it harmless against the full amount of
Taxes or Other Taxes (including, without limitation, Taxes and Other Taxes
imposed by any jurisdiction on amounts payable under this Section 2.15) paid by
such Lender or Chase, as Administrative Agent (as the case may be), and any
liability (including penalties, interest and expenses) arising therefrom or
26
with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 30 days from the
date such Lender or Chase, as Administrative Agent (as the case may be), makes
written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, each Borrower
and PM Companies shall furnish to Chase, as Administrative Agent, at its address
referred to in Section 9.02, the original or a certified copy of a receipt
evidencing such payment. If any Borrower or PM Companies determines that no
Taxes are payable in respect thereof, such Borrower or PM Companies shall, at
the request of Chase, as Administrative Agent, furnish or cause the payor to
furnish, Chase, as Administrative Agent, and each Lender an opinion of counsel
reasonably acceptable to Chase, as Administrative Agent, stating that such
payment is exempt from Taxes.
(e) Each Lender, 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, shall provide each of Chase, as Administrative Agent, PM
Companies and such Borrower with any form or certificate that is required by any
taxing authority (including, if applicable, two original Internal Revenue
Service Forms W-9, W-8BEN or W-8ECI, as appropriate, or any successor or other
form prescribed by the Internal Revenue Service), certifying that such Lender is
exempt from or entitled to a reduced rate of Home Jurisdiction Withholding Taxes
on payments pursuant to this Agreement. Thereafter, each such Lender shall
provide additional forms or certificates (i) to the extent a form or certificate
previously provided has become inaccurate, invalid or otherwise ceases to be
effective or (ii) as requested in writing by any Borrower, PM Companies or
Chase, as Administrative Agent. Unless the Borrowers, PM Companies and Chase, as
Administrative Agent, have received forms or other documents satisfactory to
them indicating that payments hereunder are not subject to Home Jurisdiction
Withholding Taxes or are subject to such tax at a rate reduced by an applicable
tax treaty, such Borrower, PM Companies or Chase, as Administrative Agent, shall
withhold taxes from such payments at the applicable statutory rate in the case
of payments to or for any Lender.
(f) Any Lender claiming any additional amounts payable pursuant to this
Section 2.15 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to select or change the
jurisdiction of its Applicable Lending Office if the making of such a selection
or change would avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the reasonable judgment of
such Lender, be otherwise economically disadvantageous to such Lender.
(g) No additional amounts will be payable pursuant to this Section 2.15
with respect to (i) any Home Jurisdiction Withholding Taxes that would not have
been payable had the Lender provided the relevant forms or other documents
pursuant to paragraph (e) of this section; or (ii) in the case of an Assignment
and Acceptance by a Lender to an Eligible Assignee, any Home Jurisdiction
Withholding Taxes that exceed the amount of such Home Jurisdiction Withholding
Taxes that are imposed prior to such Assignment and Acceptance, unless such
Assignment and Acceptance resulted from the demand of PM Companies.
27
(h) If any Lender or Chase, as Administrative Agent, as the case may be,
obtains a refund of any Tax for which payment has been made pursuant to this
Section 2.15, which refund in the good faith judgment of such Lender or Chase,
as Administrative Agent, as the case may be, (and without any obligation to
disclose its tax records) is allocable to such payment made under this Section
2.15, the amount of such refund (together with any interest received thereon and
reduced by reasonable costs incurred in obtaining such refund) promptly shall be
paid to the Borrower to the extent payment has been made in full by the Borrower
pursuant to this Section 2.15.
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 Pro Rata Advances owing to it (other
than pursuant to Section 2.12, 2.15 or 9.04(b)) in excess of its ratable share
of payments on account of the Pro Rata Advances obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such participations
in the Pro Rata Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. Each Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.16 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
such Borrower in the amount of such participation.
Section 2.17. Evidence of Debt. (a) Lender Records; Pro Rata Notes.
Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of each Borrower to such Lender resulting
from each Pro Rata Advance owing to such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder in respect of Pro Rata Advances. Each Borrower shall, upon notice
by any Lender to such Borrower (with a copy of such notice to Chase, as
Administrative Agent) to the effect that a Pro Rata Note is required or
appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) the Pro Rata Advances owing to, or to be made
by, such Lender, such Borrower shall promptly execute and deliver to such Lender
a Pro Rata Note payable to the order of such Lender in a principal amount up to
the Commitment of such Lender.
(b) Record of Borrowings, Payables and Payments. The Register maintained by
Chase, as Administrative Agent, pursuant to Section 9.07(d) shall include a
control account, and a subsidiary account for each Lender, in which accounts
(taken together) shall be recorded as follows:
28
(i) the date and amount of each Borrowing made hereunder, the
Type of Advances comprising such Borrowing and, if appropriate, the
Interest Period applicable thereto;
(ii) the terms of each Assignment and Acceptance delivered to and
accepted by it;
(iii) the amount of any principal or interest due and payable or
to become due and payable from each Borrower to each Lender hereunder; and
(iv) the amount of any sum received by Chase, as Administrative
Agent, from the Borrowers hereunder and each Lender's share thereof.
(c) Evidence of Payment Obligations. Entries made in good faith by Chase,
as Administrative Agent, in the Register pursuant to Section 2.17(b), and by
each Lender in its account or accounts pursuant to Section 2.17(a), shall be
prima facie evidence of the amount of principal and interest due and payable or
to become due and payable from each Borrower to, in the case of the Register,
each Lender and, in the case of such account or accounts, such Lender, under
this Agreement, absent manifest error; provided, however, that the failure of
Chase, as Administrative Agent, or such Lender to make an entry, or any finding
that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of any Borrower under this
Agreement.
Section 2.18. Use of Proceeds. The proceeds of the Advances shall be
available (and each Borrower agrees that it shall use such proceeds) for general
corporate purposes of PM Companies and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
Section 3.01. Conditions Precedent to Effectiveness. 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) PM Companies shall have notified each Lender and Chase, as
Administrative Agent, in writing as to the proposed Effective Date.
(b) On the Effective Date, the following statements shall be true and
Chase, as Administrative Agent, shall have received for the account of each
Lender a certificate signed by a duly authorized officer of PM Companies, 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
29
(ii) No event has occurred and is continuing that constitutes a
Default or Event of Default.
(c) Chase, as Administrative Agent, shall have received on or before the
Effective Date copies of the letters from PM Companies dated on or before such
day, terminating in whole the commitments of the banks party to the Existing
Loan Agreements and each of the Initial Lenders that is a party to an Existing
Loan Agreement hereby waives, upon execution of this Agreement, the notice of
termination required by such Existing Loan Agreement.
(d) PM Companies and its Subsidiaries shall have satisfied all of their
respective obligations under the Existing Loan Agreements including, without
limitation, the payment of all fees under such agreements.
(e) Chase, as Administrative Agent, shall have received on or before the
Effective Date the following, each dated such day, in form and substance
satisfactory to Chase, as Administrative Agent:
(i) Certified copies of the resolutions of the Board of Directors
of PM Companies approving this Agreement, and of all documents evidencing
other necessary corporate action and governmental approvals, if any, with
respect to this Agreement.
(ii) A certificate of the Secretary or an Assistant Secretary of
PM Companies certifying the names and true signatures of the officers of PM
Companies authorized to sign this Agreement and the other documents to be
delivered hereunder.
(iii) Favorable opinions of counsel (which may be in-house
counsel) for PM Companies, substantially in the form of Exhibits E-1 and
E-2 hereto.
(iv) A favorable opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel
for Chase, as Administrative Agent, substantially in the form of Exhibit G
hereto.
(v) A certificate of the chief financial officer or treasurer of
PM Companies certifying that as of June 30, 2001 (A) the aggregate amount
of Debt (excluding all Debt incurred in connection with leasing, sale and
leaseback and structured finance transactions conducted in the ordinary
course of business of Xxxxxx Xxxxxx Capital Corporation that is without
recourse to the general credit or assets of PM Companies and its Major
Subsidiaries), payment of which is secured by any Lien referred to in
clause (iii) of Section 5.02(a), does not exceed $400,000,000, and (B) the
aggregate amount of Debt included in clause (A) of this subsection (v),
payment of which is secured by any Lien referred to in clause (iv) of
Section 5.02(a), does not exceed $200,000,000.
(f) This Agreement shall have been executed by PM Companies, Chase and
Citibank, as Administrative Agents, Credit Suisse First Boston and Deutsche Bank
AG, as Syndication Agents, and ABN AMRO Bank N.V., BNP Paribas, Dresdner Bank
AG, New York and Grand Cayman Branches and HSBC Bank USA, as Arrangers and
Documentation Agents, and Chase,
30
as Administrative Agent, shall have been notified by each Initial Lender that
such Initial Lender has executed this Agreement.
Chase, as Administrative Agent, shall notify PM Companies and the Initial
Lenders of the date which is the Effective Date upon satisfaction of all of the
conditions precedent set forth in this Section 3.01. For purposes of determining
compliance with the conditions specified in this 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 Chase, as
Administrative Agent, responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that PM
Companies, by notice to the Lenders, designates as the proposed Effective Date,
specifying its objection thereto.
Section 3.02. Initial Advance to Each Designated Subsidiary. The
obligation of each Lender to make an initial Advance to each Designated
Subsidiary following any designation of such Designated Subsidiary as a Borrower
hereunder pursuant to Section 9.08 is subject to the receipt by Chase, as
Administrative Agent, on or before the date of such initial Advance of each of
the following, in form and substance satisfactory to Chase, as Administrative
Agent, and dated such date, and in sufficient copies for each Lender:
(a) Certified copies of the resolutions of the Board of Directors of such
Designated Subsidiary (with a certified English translation if the original
thereof is not in English) approving this Agreement, and of all documents
evidencing other necessary corporate action and governmental approvals, if any,
with respect to this Agreement.
(b) A certificate of a proper officer of such Designated Subsidiary
certifying the names and true signatures of the officers of such Designated
Subsidiary authorized to sign this Agreement and the other documents to be
delivered hereunder.
(c) A certificate signed by a duly authorized officer of the Designated
Subsidiary, dated as of the date of such initial Advance, certifying that such
Designated Subsidiary shall have obtained all governmental and third party
authorizations, consents, approvals (including exchange control approvals) and
licenses required under applicable laws and regulations necessary for such
Designated Subsidiary to execute and deliver this Agreement and to perform its
obligations thereunder.
(d) The Designation Agreement of such Designated Subsidiary, substantially
in the form of Exhibit D hereto.
(e) A favorable opinion of counsel (which may be in-house counsel) to such
Designated Subsidiary, dated the date of such initial Advance, covering, to the
extent customary and appropriate for the relevant jurisdiction, the opinions
outlined on Exhibit F hereto.
(f) Such other approvals, opinions or documents as any Lender, through
Chase, as Administrative Agent, may reasonably request.
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Section 3.03. Conditions Precedent to Each Pro Rata Borrowing. The
obligation of each Lender to make a Pro Rata Advance on the occasion of each Pro
Rata Borrowing is subject to the conditions precedent that the Effective Date
shall have occurred and on the date of such Pro Rata Borrowing the following
statements shall be true, and the acceptance by the Borrower of the proceeds of
such Pro Rata Borrowing shall be a representation by such Borrower or by PM
Companies, as the case may be, that:
(a) the representations and warranties contained in Section 4.01 (except
the representations set forth in the last sentence of subsection (e) and in
subsection (f) thereof (other than clause (i) thereof)) are correct on and as of
the date of such Pro Rata Borrowing, before and after giving effect to such Pro
Rata Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date, and, if such Pro Rata Borrowing shall have been
requested by a Designated Subsidiary, the representations and warranties of such
Designated Subsidiary contained in its Designation Agreement are correct on and
as of the date of such Pro Rata Borrowing, before and after giving effect to
such Pro Rata Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date;
(b) after giving effect to the application of the proceeds of all
Borrowings on such date (together with any other resources of the Borrower
applied together therewith) no event has occurred and is continuing, or would
result from such Pro Rata Borrowing, that constitutes a Default or Event of
Default; and
(c) if such Pro Rata Borrowing is in an aggregate principal amount equal to
or greater than $500,000,000 and is being made in connection with any purchase
of shares of such Borrower's or PM Companies' capital stock or the capital stock
of any other Person, or any purchase of all or substantially all of the assets
of any Person (whether in one transaction or a series of transactions) or any
transaction of the type referred to in Section 5.02(b), the statement in (b)
above shall also be true on a pro forma basis as if such transaction or purchase
shall have been completed.
Section 3.04. Conditions Precedent to Each Competitive Bid Borrowing.
The obligation of each Lender that is to make a Competitive Bid Advance on the
occasion of a Competitive Bid Borrowing is subject to the conditions precedent
that (i) Chase, as Administrative Agent, shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, Chase, as Administrative Agent, shall have received a
Competitive Bid Note payable to the order of such Lender for each of the one or
more Competitive Bid Advances to be made by such Lender as part of such
Competitive Bid Borrowing, in a principal amount equal to the principal amount
of the Competitive Bid Advance to be evidenced thereby and otherwise on such
terms as were agreed to for such Competitive Bid Advance in accordance with
Section 2.07, and (iii) on the date of such Competitive Bid Borrowing the
following statements shall be true, and the acceptance by the Borrower of the
proceeds of such Competitive Bid Borrowing shall be a representation by such
Borrower or PM Companies, as the case may be, that:
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(a) the representations and warranties contained in Section 4.01 are
correct on and as of the date of such Competitive Bid Borrowing, before and
after giving effect to such Competitive Bid Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date, and, if such
Competitive Bid Borrowing shall have been requested by a Designated Subsidiary,
the representations and warranties of such Designated Subsidiary contained in
its Designation Agreement are correct on and as of the date of such Competitive
Bid Borrowing, before and after giving effect to such Competitive Bid Borrowing
and to the application of the proceeds therefrom, as though made on and as of
such date, and
(b) after giving effect to the application of the proceeds of all
Borrowings on such date (together with any other resources of the Borrower
applied together therewith), no event has occurred and is continuing, or would
result from such Competitive Bid Borrowing that constitutes a Default or Event
of Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of PM Companies. PM
Companies represents and warrants as follows:
(a) It is a corporation duly organized, validly existing and in good
standing under the laws of Virginia.
(b) The execution, delivery and performance of this Agreement and the Notes
to be delivered by it are within its corporate powers, have been duly authorized
by all necessary corporate action, and do not contravene (i) its charter or
by-laws or (ii) in any material respect, any law, rule, regulation or order of
any court or governmental agency or any contractual restriction binding on or
affecting it.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by it of this Agreement or the Notes to
be delivered by it.
(d) This Agreement is, and each of the Notes to be delivered by it when
delivered hereunder will be, a legal, valid and binding obligation of PM
Companies enforceable against PM Companies in accordance with its terms, subject
to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally and to the
effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and an implied
covenant of fair dealing.
(e) As reported in PM Companies' Quarterly Report on Form 10-Q for the
quarter ended March 31, 2001, the unaudited condensed consolidated balance
sheets of PM Companies and its Subsidiaries as of March 31, 2001 and the
unaudited condensed consolidated statements of earnings of PM Companies and its
Subsidiaries for the three months then ended fairly present,
33
in all material respects and subject to year-end audit adjustments, the
consolidated financial position of PM Companies and its Subsidiaries as at such
date and the consolidated results of the operations of PM Companies and its
Subsidiaries for the three-month period ended on such date, all in accordance
with accounting principles generally accepted in the United States. Except as
disclosed in PM Companies' Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001, and in any Current Report on Form 8-K filed subsequent to March
31, 2001 but prior to July 24, 2001, since March 31, 2001 there has been no
material adverse change in such condition or operations.
(f) There is no pending or threatened action or proceeding affecting it or
any of its Subsidiaries before any court, governmental agency or arbitrator (a
"Proceeding"), (i) that purports to affect the legality, validity or
enforceability of this Agreement or (ii) except for Proceedings disclosed in PM
Companies' Quarterly Report on Form 10-Q for the quarter ended March 31, 2001,
its Annual Report on Form 10-K for the year ended December 31, 2000, any Current
Report on Form 8-K filed subsequent to March 31, 2001 but prior to July 24, 2001
and, with respect to Proceedings commenced after the date of the most recent
such document but prior to July 24, 2001, a certificate delivered to the
Lenders, that may materially adversely affect the financial position or results
of operations of PM Companies and its Subsidiaries taken as a whole.
(g) It owns directly or indirectly 100% of the capital stock of each other
Borrower.
(h) None of the proceeds of any Advance will be used, directly or
indirectly, for the purpose of purchasing or carrying any Margin Stock or for
the purpose of reducing or retiring any indebtedness which was originally
incurred to purchase or carry any Margin Stock or for any other purpose that
would constitute the Advances as a "purpose credit" within the meaning of
Regulation U and, in each case, would constitute a violation of Regulation U.
ARTICLE V
COVENANTS OF PM COMPANIES
Section 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, PM Companies
will:
(a) Compliance with Laws, Etc. Comply, and cause each Major Subsidiary to
comply, in all material respects, with all applicable laws, rules, regulations
and orders (such compliance to include, without limitation, complying with ERISA
and paying before the same become delinquent all taxes, assessments and
governmental charges imposed upon it or upon its property except to the extent
contested in good faith), noncompliance with which would materially adversely
affect the financial condition or operations of PM Companies and its
Subsidiaries taken as a whole.
(b) Maintenance of Ratio of Earnings Before Income Taxes to Fixed Charges.
Maintain a ratio of aggregate consolidated Earnings Before Income Taxes for the
four most
34
recent fiscal quarters for which consolidated statements of earnings have been
delivered pursuant to Section 5.01(c)(i) or (ii) hereof to consolidated Fixed
Charges for such four most recent fiscal quarters of not less than 2.5 to 1.0;
provided that an amount or amounts up to an aggregate of $5,000,000,000 expensed
by PM Companies (or any Subsidiary thereof) in connection with the settlement of
tobacco-related litigation or for bonding or other similar expenses incurred in
order to obtain a stay of execution, during the applicable four-quarter period,
will not be included in such calculation.
(c) Reporting Requirements. Furnish to the Lenders:
(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 PM
Companies, an unaudited interim condensed consolidated balance sheet of PM
Companies and its Subsidiaries as of the end of such quarter and unaudited
interim condensed consolidated statements of earnings of PM Companies and
its Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, certified by the chief
financial officer of PM Companies;
(ii) as soon as available and in any event within 100 days after
the end of each fiscal year of PM Companies, a copy of the consolidated
financial statements for such year for PM Companies and its Subsidiaries,
audited by PricewaterhouseCoopers LLP (or other independent accountants
which, as of the date of this Agreement, are one of the "big five"
accounting firms);
(iii) all reports which PM Companies sends to any of its
shareholders, and copies of all reports on Form 8-K (or any successor forms
adopted by the Securities and Exchange Commission) which PM Companies files
with the Securities and Exchange Commission;
(iv) as soon as possible and in any event within five days after
the occurrence of each Event of Default and each event which, with the
giving of notice or lapse of time, or both, would constitute an Event of
Default, continuing on the date of such statement, a statement of the chief
financial officer or treasurer of PM Companies setting forth details of
such Event of Default or event and the action which PM Companies has taken
and proposes to take with respect thereto; and
(v) such other information respecting the condition or
operations, financial or otherwise, of PM Companies or any Major Subsidiary
as any Lender through Chase, as Administrative Agent, may from time to time
reasonably request.
In lieu of furnishing the Lenders the items referred to in clauses (i), (ii) and
(iii) above, PM Companies may make such items available on the internet at
xxx.xxxxxxxxxxxx.xxx/xxxxxxxxx/xxxxxxxxx_xxxx/xxxxxxxxx_xxxx.xxx (which website
includes an option to subscribe to a free service alerting subscribers by e-mail
of new financial releases), or by similar electronic means.
35
Section 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, PM Companies will not:
(a) Liens, Etc. Create or suffer to exist, or permit any Major Subsidiary
to create or suffer to exist, any lien, security interest or other charge or
encumbrance (other than operating leases and licensed intellectual property), or
any other type of preferential arrangement ("Liens"), upon or with respect to
any of its properties, whether now owned or hereafter acquired, or assign, or
permit any Major Subsidiary to assign, any right to receive income, in each case
to secure or provide for the payment of any Debt of any Person, other than:
(i) Liens upon or in property acquired or held by it or any Major
Subsidiary in the ordinary course of business to secure the purchase price
of such property or to secure indebtedness incurred solely for the purpose
of financing the acquisition of such property;
(ii) Liens existing on property at the time of its acquisition
(other than any such lien or security interest created in contemplation of
such acquisition);
(iii) Liens existing on the date hereof securing Debt;
(iv) Liens on property financed through the issuance of
industrial revenue bonds in favor of the holders of such bonds or any agent
or trustee therefor;
(v) Liens existing on property of any Person acquired by PM
Companies or any Major Subsidiary;
(vi) Liens securing Debt in an aggregate amount not in excess of
15% of Consolidated Tangible Assets;
(vii) Liens upon or with respect to "margin stock" as that term
is defined in Regulation U;
(viii) Liens in favor of PM Companies or any Major Subsidiary;
(ix) Liens in connection with leasing, sale and leaseback and
structured finance transactions conducted in the ordinary course of
business of Xxxxxx Xxxxxx Capital Corporation, provided that any such Liens
that secure the payment of Debt are without recourse to the general credit
or assets of PM Companies and its Major Subsidiaries;
(x) precautionary Liens provided by PM Companies or any Major
Subsidiary in connection with the sale, assignment, transfer or other
disposition of assets by PM Companies or such Major Subsidiary which
transaction is determined by the Board of Directors of PM Companies or such
Major Subsidiary to constitute a "sale" under accounting principles
generally accepted in the United States; or
36
(xi) any extension, renewal or replacement of the foregoing,
provided that (A) such Lien does not secure any additional assets (other
than a substitution of like assets), and (B) the amount of Debt secured by
any such Lien is not increased.
(b) Mergers, Etc. Consolidate with or merge into, or convey or transfer its
properties and assets substantially as an entirety to, any Person, or permit any
Subsidiary directly or indirectly owned by it to do so, unless, immediately
after giving effect thereto, no Default or Event of Default would exist and, in
the case of any merger or consolidation to which it is a party, it is the
surviving corporation and, in the case of any merger or consolidation to which a
Borrower other than PM Companies is a party, the corporation formed by such
consolidation or into which such Borrower shall be merged shall be a corporation
organized and existing under the laws of the United States of America or any
State thereof, or the District of Columbia, and shall assume such Borrower's
obligations under this Agreement by the execution and delivery of an instrument
in form and substance satisfactory to the Required Lenders.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. Each of the following events (each an
"Event of Default") shall constitute an Event of Default:
(a) Any Borrower or PM Companies shall fail to pay any principal of any
Advance when the same becomes due and payable; or any Borrower shall fail to pay
interest on any Advance, or PM Companies shall fail to pay any fees payable
under Section 2.09, within ten days after the same becomes due and payable; or
(b) Any representation or warranty made or deemed to have been made by any
Borrower or PM Companies herein or by any Borrower or PM Companies (or any of
their respective officers) in connection with this Agreement shall prove to have
been incorrect in any material respect when made or deemed to have been made; or
(c) Any Borrower or PM Companies shall fail to perform or observe (i) any
term, covenant or agreement contained in Section 5.01(b) or 5.02(b), (ii) any
term, covenant or agreement contained in Section 5.02(a) if such failure shall
remain unremedied for 15 days after written notice thereof shall have been given
to PM Companies by Chase, as Administrative Agent, or any Lender or (iii) 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 PM Companies by Chase, as
Administrative Agent, or any Lender; or
(d) Any Borrower or PM Companies or any Major Subsidiary shall fail to pay
any principal of or premium or interest on any Debt which is outstanding in a
principal amount of at least $100,000,000 in the aggregate (but excluding Debt
arising under this Agreement) of such Borrower or PM Companies or such Major
Subsidiary (as the case may be), when the same
37
becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt unless adequate provision for any such payment has been
made in form and substance satisfactory to the Required Lenders; or any Debt of
any Borrower or PM Companies or any Major Subsidiary which is outstanding in a
principal amount of at least $100,000,000 in the aggregate (but excluding Debt
arising under this Agreement) shall be declared to be due and payable, or
required to be prepaid (other than by a scheduled required prepayment),
redeemed, purchased or defeased, or an offer to prepay, redeem, purchase or
defease such Debt shall be required to be made, in each case prior to the stated
maturity thereof unless adequate provision for the payment of such Debt has been
made in form and substance satisfactory to the Required Lenders; or
(e) Any Borrower or PM Companies or any Major Subsidiary shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against any
Borrower or PM Companies or any Major Subsidiary 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, or other similar official for it or for any substantial part
of its property, and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 60 days or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against it or
the appointment of a receiver, trustee, custodian or other similar official for
it or for any of its property constituting a substantial part of the property of
PM Companies and its Subsidiaries taken as a whole) shall occur; or any Borrower
or PM Companies or any Major Subsidiary shall take any corporate action to
authorize any of the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$100,000,000 shall be rendered against any Borrower or PM Companies or any Major
Subsidiary and there shall be any period of 60 consecutive days during which a
stay of enforcement of such unsatisfied judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; provided that such 60-day
period shall be extended for a period not to exceed an additional 120 days if
(i) PM Companies, such Borrower or such Major Subsidiary is contesting such
judgment in good faith and (ii) no assets with a fair market value in excess of
$100,000,000 of PM Companies, such Borrower or such Major Subsidiary have been
levied upon or garnished to satisfy such judgment; or
(g) Any Borrower, PM Companies or any ERISA Affiliate shall incur, or shall
be reasonably likely to incur, liability in excess of $500,000,000 in the
aggregate as a result of one or more of the following: (i) the occurrence of any
ERISA Event; (ii) the partial or complete withdrawal of any Borrower, PM
Companies or any ERISA Affiliate from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan; provided, however, that
no Default or Event of Default under this clause (g) shall be deemed to have
occurred if the
38
Borrower, PM Companies or any ERISA Affiliate shall have made arrangements
satisfactory to the Required Lenders to discharge or otherwise satisfy such
liability (including the posting of a bond or other security); or
(h) So long as any Subsidiary of PM Companies is a Designated Subsidiary,
the guaranty provided by PM Companies under Article VIII hereof shall for any
reason cease to be valid and binding on PM Companies or PM Companies shall so
state in writing.
Section 6.02. Lenders' Rights upon Event of Default. If an Event of
Default occurs or is continuing, then Chase, as Administrative Agent, shall at
the request, or may with the consent, of the Required Lenders, by notice to PM
Companies and the Borrowers:
(a) declare the obligation of each Lender to make further Advances to be
terminated, whereupon the same shall forthwith terminate, and
(b) declare all the Advances then outstanding, all interest thereon and all
other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Advances then outstanding, all such interest and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrowers;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to any Borrower under the Federal Bankruptcy Code, (i)
the obligation of each Lender to make Advances shall automatically be terminated
and (ii) the Advances then outstanding, 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 Borrowers.
ARTICLE VII
THE ADMINISTRATIVE AGENTS
Section 7.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Administrative Agents 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 Agents 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 Agents shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that no Administrative Agent shall be required to take any
action that exposes such Administrative Agent to personal liability or that is
contrary to this Agreement or applicable law. Each of the Administrative Agents
agrees to give to each Lender prompt notice of each notice given to it by PM
Companies or any Borrower as required by the
39
terms of this Agreement or at the request of PM Companies or such Borrower, and
any notice provided pursuant to Section 5.01(c)(iv).
Section 7.02. Administrative Agents' Reliance, Etc. Neither the
Administrative Agents nor any of their 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 Agents:
(a) may treat the Lender that made any Advance as the holder of the Debt
resulting therefrom until Chase, as Administrative Agent, receives and accepts
an Assignment and Acceptance entered into by such Lender, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 9.07;
(b) may consult with legal counsel (including counsel for PM Companies or
any Borrower), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts;
(c) make no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement;
(d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of PM Companies or any Borrower or to inspect the property
(including the books and records) of PM Companies or such Borrower;
(e) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and
(f) shall incur no liability under or in respect of this Agreement by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
Section 7.03. Chase, Citibank and Affiliates. With respect to its
Commitment and the Advances made by it, each of Chase and 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 an Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include Chase
and Citibank in their individual capacities. Chase and Citibank and their
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, PM Companies, any Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of PM
Companies, any Borrower or any such Subsidiary, all as if Chase and
40
Citibank were not Administrative Agents and without any duty to account therefor
to the Lenders.
Section 7.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon either Administrative Agent, either
Syndication Agent, any Arranger and Documentation 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 any
Administrative Agent, Syndication Agent, Arranger and Documentation 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 each
Administrative Agent (to the extent not reimbursed by PM Companies or the
Borrowers), ratably according to the respective principal amounts of the Pro
Rata Advances then owing to each of them (or if no Pro Rata Advances are at the
time outstanding, ratably according to the respective amounts of their
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against such Administrative Agent in any way relating to or arising out
of this Agreement or any action taken or omitted by such Administrative Agent
under this Agreement (collectively, the "Indemnified Costs"), provided that no
Lender shall be liable for any portion of the Indemnified Costs resulting from
such Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse such Administrative
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by such 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 such Administrative Agent is not reimbursed
for such expenses by PM Companies or the Borrowers. In the case of any
investigation, litigation or proceeding giving rise to any Indemnified Costs,
this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by any Administrative Agent, any Lender or a third party.
Section 7.06. Successor Administrative Agents. An Administrative Agent
may resign at any time by giving written notice thereof to the Lenders and PM
Companies and may be removed at any time with or without cause by the Required
Lenders. Upon the resignation or removal of Chase, as Administrative Agent,
Citibank, as Administrative Agent, shall succeed to and become vested with all
the rights, powers, discretion, privileges and duties of Chase, as
Administrative Agent, and Chase, as Administrative Agent shall be discharged
from its duties and obligations under this Agreement. Upon any other such
resignation or removal which results in there being no Administrative Agent
hereunder, the Required Lenders shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Required Lenders'
41
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 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.
Section 7.07. Syndication Agents and Arrangers and Documentation
Agents. Credit Suisse First Boston and Deutsche Bank AG have been designated as
Syndication Agents, and ABN AMRO Bank N.V., BNP Paribas, Dresdner Bank AG, New
York and Grand Cayman Branches and HSBC Bank USA, have been designated as
Arrangers and Documentation Agents, under this Agreement, but the use of such
titles does not impose on any of them any duties or obligations greater than
those of any other Lender.
ARTICLE VIII
GUARANTY
Section 8.01. Guaranty. PM Companies hereby unconditionally and
irrevocably guarantees (the undertaking of PM Companies contained in this
Article VIII being the "Guaranty") the punctual payment when due, whether at
stated maturity, by acceleration or otherwise, of all obligations of each
Borrower now or hereafter existing under this Agreement, whether for principal,
interest, fees, expenses or otherwise (such obligations being the
"Obligations"), and any and all expenses (including counsel fees and expenses)
incurred by Chase, as Administrative Agent, or the Lenders in enforcing any
rights under the Guaranty.
Section 8.02. Guaranty Absolute. PM Companies guarantees that the
Obligations will be paid strictly in accordance with the terms of this
Agreement, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of Chase, as
Administrative Agent, or the Lenders with respect thereto. The liability of PM
Companies under this Guaranty shall be absolute and unconditional irrespective
of:
(i) any lack of validity, enforceability or genuineness of any
provision of this Agreement or any other agreement or instrument relating
thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to departure from this Agreement;
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(iii) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from any
other guaranty, for all or any of the Obligations; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, a Borrower or PM Companies.
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Obligations is rescinded
or must otherwise be returned by Chase, as Administrative Agent, or any Lender
upon the insolvency, bankruptcy or reorganization of a Borrower or otherwise,
all as though such payment had not been made.
Section 8.03. Waivers. (a) PM Companies hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Guaranty and any requirement that Chase, as Administrative
Agent, or any Lender protect, secure, perfect or insure any security interest or
lien or any property subject thereto or exhaust any right or take any action
against a Borrower or any other Person or any collateral.
(b) PM Companies hereby irrevocably waives any claims or other rights that
it may now or hereafter acquire against any Borrower that arise from the
existence, payment, performance or enforcement of PM Companies' obligations
under this Guaranty or this Agreement, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of Chase, as Administrative
Agent, or any Lender against such Borrower or any collateral, whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from
such Borrower, directly or indirectly, in cash or other property or by set-off
or in any other manner, payment or security on account of such claim, remedy or
right. If any amount shall be paid to PM Companies in violation of the preceding
sentence at any time prior to the later of the cash payment in full of the
Obligations and all other amounts payable under this Guaranty and the
Termination Date, such amount shall be held in trust for the benefit of Chase,
as Administrative Agent, and the Lenders and shall forthwith be paid to Chase,
as Administrative Agent, to be credited and applied to the Obligations and all
other amounts payable under this Guaranty, whether matured or unmatured, in
accordance with the terms of this Agreement and this Guaranty, or to be held as
collateral for any Obligations or other amounts payable under this Guaranty
thereafter arising. PM Companies acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Agreement
and this Guaranty and that the waiver set forth in this Section 8.03(b) is
knowingly made in contemplation of such benefits.
Section 8.04. Continuing Guaranty. This Guaranty is a continuing
guaranty and shall (a) remain in full force and effect until payment in full
(after the Termination Date) of the Obligations and all other amounts payable
under this Guaranty, (b) be binding upon PM Companies, its successors and
assigns, and (c) inure to the benefit of and be enforceable by the Lenders,
Chase, as Administrative Agent, and their respective successors, transferees and
assigns.
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ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement, nor consent to any departure by any Borrower or PM Companies
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Sections 3.01 and 3.02, (b) increase the Commitments
of the Lenders or subject the Lenders to any additional obligations, (c) reduce
the principal of, or interest on, the Pro Rata Advances or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Pro Rata Advances or any fees or other amounts
payable hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Pro Rata Advances, or the number of
Lenders, that shall be required for the Lenders or any of them to take any
action hereunder, (f) release PM Companies from any of its obligations under
Article VIII or (g) amend this Section 9.01; provided further that no waiver of
the conditions specified in Section 3.04 in connection with any Competitive Bid
Borrowing shall be effective unless consented to by all Lenders making
Competitive Bid Advances as part of such Competitive Bid Borrowing; and provided
further that no amendment, waiver or consent shall, unless in writing and signed
by Chase, as Administrative Agent, in addition to the Lenders required above to
take such action, affect the rights or duties of Chase, as Administrative Agent,
under this Agreement or any Pro Rata Advance.
Section 9.02. Notices, Etc. (a) Addresses. All notices and other
communications provided for hereunder shall be in writing (including telecopier
communication) and mailed, telecopied, or delivered, as follows:
if to any Borrower:
c/o Xxxxxx Xxxxxx Companies Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President Finance and Treasurer
Fax number: (000) 000-0000;
with a copy to:
Xxxxxx Xxxxxx Management Corp.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasury Department - Debt Administration
Fax number: (000) 000-0000;
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if to PM Companies, as guarantor:
Xxxxxx Xxxxxx Companies Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
Fax number: (000) 000-0000;
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;
if to Chase, as Administrative Agent:
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Fax number: (000) 000-0000;
with a copy to:
The Chase Manhattan Bank
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Fax number: (000) 000-0000; or
as to any Borrower, PM Companies or Chase, as 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 PM Companies and Chase, as
Administrative Agent.
(b) Effectiveness of Notices. All such notices and communications shall,
when mailed or telecopied, be effective when deposited in the mail or
telecopied, respectively, except that notices and communications to Chase, as
Administrative Agent, pursuant to Article II, III or VII shall not be effective
until received by Chase, as Administrative Agent. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or of any Exhibit hereto to be executed and delivered hereunder shall
be effective as delivery of a manually executed counterpart thereof.
Section 9.03. No Waiver; Remedies. No failure on the part of any
Lender or Chase, as 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
45
such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
Section 9.04. Costs and Expenses. (a) Administrative Agent;
Enforcement. PM Companies agrees to pay on demand all reasonable costs and
expenses in connection with the preparation, execution, delivery, administration
(excluding any cost or expenses for administration related to the overhead of
Chase, as Administrative Agent), modification and amendment of this Agreement
and the documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for Chase, as
Administrative Agent, with respect thereto and with respect to advising Chase,
as Administrative Agent, as to its rights and responsibilities under this
Agreement, and all costs and expenses of the Lenders and Chase, as
Administrative Agent, if any (including, without limitation, reasonable counsel
fees and expenses of the Lenders and Chase, as Administrative Agent), in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Agreement and the other documents to be delivered
hereunder.
(b) Prepayment of LIBO Rate Advances or Floating Rate Bid Advances. If any
payment of principal of LIBO Rate Advance or Floating Rate Bid Advance is made
other than on the last day of the Interest Period for such Advance or at its
maturity, as a result of a payment pursuant to Section 2.11, acceleration of the
maturity of the Advances pursuant to Section 6.02, an assignment made as a
result of a demand by PM Companies pursuant to Section 9.07(a) or for any other
reason, PM Companies shall, upon demand by any Lender (with a copy of such
demand to Chase, as Administrative Agent), pay to Chase, as Administrative
Agent, for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses which it may reasonably
incur as a result of such payment, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance. Without prejudice to the survival of
any other agreement of any Borrower or PM Companies hereunder, the agreements
and obligations of each Borrower and PM Companies contained in Section 2.02(c),
2.05, 2.12, 2.15 and this Section 9.04(b) shall survive the payment in full of
principal and interest hereunder.
(c) Indemnification. Each Borrower and PM Companies jointly and severally
agree to indemnify and hold harmless the Administrative Agents and each Lender
and each of their respective affiliates, control persons, directors, officers,
employees, attorneys and agents (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and disbursements of counsel) which may be
incurred by or asserted against any Indemnified Party, in each case in
connection with or arising out of, or in connection with the preparation for or
defense of, any investigation, litigation, or proceeding (i) related to any
transaction or proposed transaction (whether or not consummated) in which any
proceeds of any Borrowing are applied or proposed to be applied, directly or
indirectly, by any Borrower, whether or not such Indemnified Party is a party to
such transaction or (ii) related to any Borrower's or PM Companies' entering
into this Agreement, or to any actions or omissions of any Borrower or PM
Companies, any of their respective Subsidiaries or affiliates (other than Kraft
Foods Inc. and its Subsidiaries or affiliates) or any of
46
its or their respective officers, directors, employees or agents in connection
therewith, in each case whether or not an Indemnified Party is a party thereto
and whether or not such investigation, litigation or proceeding is brought by PM
Companies or any Borrower or any other Person; provided, however, that neither
any Borrower nor PM Companies shall be required to indemnify any such
Indemnified Party from or against any portion of such claims, damages, losses,
liabilities or expenses that is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnified Party.
Section 9.05. Right of Set-Off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.02 to authorize Chase, as
Administrative Agent, to declare the Advances due and payable pursuant to the
provisions of Section 6.02, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of PM Companies or any Borrower against any and
all of the obligations of any Borrower or PM Companies now or hereafter existing
under this Agreement, whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured. Each Lender
shall promptly notify the appropriate Borrower or PM Companies, as the case may
be, after any such set-off and application, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Lender and its Affiliates under this Section 9.05 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender and its Affiliates may have.
Section 9.06. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of PM Companies, Chase, as Administrative Agent, Chase, as
Administrative Agent, and each Lender and their respective successors and
assigns, except that neither any Borrower nor PM Companies shall have the right
to assign its rights hereunder or any interest herein without the prior written
consent of the Lenders.
Section 9.07. Assignments and Participations. (a) Assignment of Lender
Obligations. Each Lender may and, if demanded by PM Companies upon at least five
Business Days' notice to such Lender and Chase, as Administrative Agent, will
assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment and the Pro Rata Advances owing to it), subject to the following:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this Agreement
(other than, except in the case of an assignment made as a result of a
demand by PM Companies pursuant to this Section 9.07(a), any Competitive
Bid Advances owing to such Lender or any Competitive Bid Notes held by it);
47
(ii) 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 (subject to reduction at the sole discretion
of PM Companies) and shall be an integral multiple of $1,000,000;
(iii) each such assignment shall be to an Eligible Assignee;
(iv) each such assignment made as a result of a demand by PM
Companies pursuant to this Section 9.07(a) shall be arranged by PM
Companies after consultation with Chase, as Administrative Agent, and shall
be either an assignment of all of the rights and obligations of the
assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or
other such assignments which together cover all of the rights and
obligations of the assigning Lender under this Agreement;
(v) no Lender shall be obligated to make any such assignment as a
result of a demand by PM Companies pursuant to this Section 9.07(a) unless
and until such Lender shall have received one or more payments from either
the Borrowers to which it has outstanding Advances or one or more Eligible
Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together
with accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this Agreement;
and
(vi) the parties to each such assignment shall execute and
deliver to Chase, as Administrative Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, provided that, if such assignment is made as
a result of a demand by PM Companies under this Section 9.07(a), PM
Companies shall pay or cause to be paid such $3,500 fee.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than those provided under Section 9.04) 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) Assignment and Acceptance. 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
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Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any
Borrower or PM Companies or the performance or observance by any Borrower or PM
Companies 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 Chase, as 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 represents that (A)
the source of any funds it is using to acquire the Assignor's interest or to
make any Advance is not and will not be plan assets as defined under the
regulations of the Department of Labor of any Plan subject to Title I of ERISA
or Section 4975 of the Code or (B) the assignment or Advance is not and will not
be a non-exempt prohibited transaction as defined in Section 406 of ERISA; (vii)
such assignee appoints and authorizes Chase, as 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 Chase, as Administrative Agent, by the
terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (viii) 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) Agent's Acceptance. 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 Pro Rata Note or Notes subject to such
assignment, Chase, as 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 PM
Companies.
(d) Register. Chase, as Administrative Agent, shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and PM Companies, the Borrowers, Chase, as 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 PM Companies, any Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
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(e) Sale of Participation. 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 any Note or Notes held
by it), subject to the following:
(i) such Lender's obligations under this Agreement (including,
without limitation, its Commitment to PM Companies hereunder) shall remain
unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) PM Companies, the other Borrowers, Chase, as 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
(iv) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this
Agreement, or any consent to any departure by any Borrower or PM Companies
therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Advances or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of,
or interest on, the Advances or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation.
(f) Disclosure of Information. Any Lender may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.07, disclose to the assignee or participant or proposed assignee
or participant, any information relating to PM Companies or any Borrower
furnished to such Lender by or on behalf of PM Companies or any Borrower;
provided that, prior to any such disclosure, the assignee or participant or
proposed assignee or participant shall agree to preserve the confidentiality of
any confidential information relating to PM Companies received by it from such
Lender.
(g) Regulation A Security Interest. Notwithstanding any other provision set
forth in this Agreement, any Lender may at any time create a security interest
in all or any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and any Note or Notes held by it) in favor
of any Federal Reserve Bank in accordance with Regulation A of the Board.
Section 9.08. Designated Subsidiaries. (a) Designation. PM Companies
may at any time, and from time to time, by delivery to Chase, as Administrative
Agent, of a Designation Agreement duly executed by PM Companies and the
respective Subsidiary and substantially in the form of Exhibit D hereto,
designate such Subsidiary as a "Designated Subsidiary" for purposes of this
Agreement and such Subsidiary shall thereupon become a "Designated Subsidiary"
for purposes of this Agreement and, as such, shall have all of the rights and
50
obligations of a Borrower hereunder. Chase, as Administrative Agent, shall
promptly notify each Lender of each such designation by PM Companies and the
identity of the respective Subsidiary.
(b) Termination. Upon the payment and performance in full of all of the
indebtedness, liabilities and obligations under this Agreement of any Designated
Subsidiary then, so long as at the time no Notice of Pro Rata Borrowing or
Notice of Competitive Bid Borrowing in respect of such Designated Subsidiary is
outstanding, such Subsidiary's status as a "Designated Subsidiary" shall
terminate upon notice to such effect from Chase, as Administrative Agent, to the
Lenders (which notice Chase, as Administrative Agent, shall give promptly, and
only upon its receipt of a request therefor from PM Companies). Thereafter, the
Lenders shall be under no further obligation to make any Advance hereunder to
such former Designated Subsidiary until such time as it has been redesignated a
Designated Subsidiary by PM Companies pursuant to Section 9.08(a).
Section 9.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Section 9.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 9.11. Jurisdiction, Etc. (a) Submission to Jurisdiction;
Service of Process. Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York state court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York state
court or, to the extent permitted by law, in such Federal court. Each Borrower
(other than PM Companies) hereby agrees that service of process in any such
action or proceeding brought in any such New York state court or in such Federal
court may be made upon PM Companies at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Secretary (the "Process Agent") and each Designated
Subsidiary hereby irrevocably appoints the Process Agent its authorized agent to
accept such service of process, and agrees that the failure of the Process Agent
to give any notice of any such service shall not impair or affect the validity
of such service or of any judgment rendered in any action or proceeding based
thereon. Each Borrower hereby further irrevocably consents to the service of
process in any action or proceeding in such courts by the mailing thereof by any
parties hereto by registered or certified mail, postage prepaid, to such
Borrower at its address specified pursuant to Section 9.02. 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
51
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to serve legal process in any
other manner permitted by law or to bring any action or proceeding relating to
this Agreement or the Notes in the courts of any jurisdiction.
(b) PM Companies as Process Agent. PM Companies hereby accepts its
appointment as Process Agent and agrees that (i) it will maintain an office in
New York, New York through the Termination Date and will give Chase, as
Administrative Agent, prompt notice of any change of its address, (ii) it will
perform its duties as Process Agent to receive on behalf of each Designated
Subsidiary and its property service of copies of the summons and complaint and
any other process which may be served in any action or proceeding in any New
York State or Federal court sitting in New York City arising out of or relating
to this Agreement and (iii) it will forward forthwith to each Designated
Subsidiary at its then current address copies of any summons, complaint and
other process which PM Companies receives in connection with its appointment as
Process Agent.
(c) Waivers. 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.
Section 9.12. Confidentiality. None of the Agents nor any Lender shall
disclose any confidential information relating to PM Companies or any Borrower
to any other Person without the consent of PM Companies, other than (a) to such
Agent's or such Lender's affiliates and their officers, directors, employees,
agents and advisors and, as contemplated by Section 9.07(f), to actual or
prospective assignees and participants, and then, in each such case, only on a
confidential basis; provided, however, that such actual or prospective assignee
or participant shall have been made aware of this Section 9.12 and shall have
agreed to be bound by its provisions as if it were a party to this Agreement,
(b) as required by any law, rule or regulation or judicial process, and (c) as
requested or required by any state, federal or foreign authority or examiner
regulating banks or banking.
Section 9.13. Integration. This Agreement and the Notes represent the
agreement of PM Companies, the other Borrowers, the Administrative Agents and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agents, PM Companies, the other Borrowers or any Lender relative to the subject
matter hereof not expressly set forth or referred to herein or in the Notes
other than the matters referred to in Section 2.09(b) and except for
Confidentiality Agreements entered into between PM Companies and each Lender in
connection with this Agreement.
52
[Signature pages omitted]
EXHIBIT A-1 - FORM OF
PRO RATA NOTE
Dated: , 200
--------------- --
U.S.$
-----------------
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
----------
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
----------
(the "Lender") for the account of its Applicable Lending Office on the
Termination Date (each as defined in the Credit Agreement referred to below) the
principal sum of U.S.$[amount of the Lender's Commitment in figures] or, if
less, the aggregate principal amount of the Pro Rata Advances outstanding on the
Termination Date made by the Lender to the Borrower pursuant to the 5-Year
Revolving Credit Agreement dated as of July 24, 2001 among Xxxxxx Xxxxxx
Companies Inc., the Lender and certain other lenders parties thereto, The Chase
Manhattan Bank, as Administrative Agent, Citibank, N.A., as Administrative
Agent, Credit Suisse First Boston and Deutsche Bank AG New York Branch and/or
Cayman Islands Branch, as Syndication Agents, and ABN AMRO Bank N.V., BNP
Paribas, Dresdner Bank AG, New York and Grand Cayman Branches and HSBC Bank USA,
as Arrangers and Documentation Agents for the Lender and such other lenders (as
amended or modified from time to time, the "Credit Agreement"; the terms defined
therein being used herein as therein defined).
The Borrower promises to pay interest on the unpaid principal amount of
each Pro Rata Advance from the date of such Pro Rata Advance until such
principal amount is paid in full, at such interest rate, and payable at such
times, as are specified in the Credit Agreement.
Both principal and interest in respect of each Pro Rata Advance are payable
in Dollars to The Chase Manhattan Bank, as Administrative Agent, for the account
of the Lender at the office of The Chase Manhattan Bank located at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 in same day funds. Each Pro Rata Advance owing
to the Lender by the Borrower pursuant to the Credit Agreement, and all payments
made on account of principal thereof, shall be recorded by the Lender and, prior
to any transfer hereof, endorsed on the grid attached hereto which is part of
this Promissory Note.
This Promissory Note is one of the Pro Rata Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of Pro Rata Advances by the Lender to
the Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the Dollar amount first above mentioned, the indebtedness of the
Borrower resulting from each such Pro Rata Advance being evidenced by this
Promissory Note, and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
[NAME OF BORROWER]
By
--------------------------------------
Name:
Title:
2
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Principal Unpaid
Type of Amount of Interest Paid Principal Notation
Date Advance Advance Rate or Prepaid Balance Made By
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3
EXHIBIT A-2 - FORM OF
COMPETITIVE BID NOTE
Dated: , 200
--------------- -
U.S. $
---------------
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
corporation (the "Borrower"), HEREBY PROMISES TO PAY
-------------------------
to the order of (the "Lender") for the account of its
-------------------------
Applicable Lending Office (as defined in the 5-Year Revolving Credit Agreement
dated as of July 24, 2001 among Xxxxxx Xxxxxx Companies Inc., the Lender and
certain other lenders parties thereto, The Chase Manhattan Bank, as
Administrative Agent, Citibank, N.A., as Administrative Agent, Credit Suisse
First Boston and Deutsche Bank AG New York Branch and/or Cayman Islands Branch,
as Syndication Agents, and ABN AMRO Bank N.V., BNP Paribas, Dresdner Bank AG,
New York and Grand Cayman Branches and HSBC Bank USA, as Arrangers and
Documentation Agents for the Lender and such other lenders (as amended or
modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined)), on , 200 , the principal
--------------- -
amount of U.S. $[_______________].
The Borrower promises to pay interest on the unpaid principal amount hereof
from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate Basis: .
-------------------
Day Count Convention: .
-------------------
Interest Payment Date(s): .
---------------
Both principal and interest are payable in Dollars to The Chase Manhattan
Bank, as Administrative Agent, for the account of the Lender at the office of
The Chase Manhattan Bank located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 in
same day funds.
This Promissory Note is one of the Competitive Bid Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of any
kind. No failure to exercise, and no delay in exercising, any rights hereunder
on the part of the holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
[NAME OF BORROWER]
By
--------------------------------
Name:
Title:
EXHIBIT B-1 - FORM OF NOTICE OF
PRO RATA BORROWING
[Date]
The Chase Manhattan Bank, as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
Attention:
---------------
Ladies and Gentlemen:
[NAME OF BORROWER], refers to the 5-Year Revolving Credit Agreement, dated
as of July 24, 2001 (as amended or modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among Xxxxxx Xxxxxx Companies Inc., the Lenders parties thereto and The Chase
Manhattan Bank, as Administrative Agent, Citibank, N.A., as Administrative
Agent, Credit Suisse First Boston and Deutsche Bank AG New York Branch and/or
Cayman Islands Branch, as Syndication Agents, and ABN AMRO Bank N.V., BNP
Paribas, Dresdner Bank AG, New York and Grand Cayman Branches and HSBC Bank USA,
as Arrangers and Documentation Agents for such Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Pro Rata Borrowing under the Credit Agreement, and
in that connection sets forth below the information relating to such Pro Rata
Borrowing (the "Proposed Pro Rata Borrowing") as required by Section 2.02(a) of
the Credit Agreement:
(i) The date of the Proposed Pro Rata Borrowing is ,
---------------
200 .
-
(ii) The Type of Advances comprising the Proposed Pro Rata Borrowing
is [Base Rate Advances] [LIBO Rate Advances].
(iii) The aggregate amount of the Proposed Pro Rata Borrowing is
U.S.$[_______________].
[(iv) The initial Interest Period for each LIBO Rate Advance made as
part of the Proposed Pro Rata Borrowing is month(s).]
------
The undersigned, as applicable, hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Pro Rata Borrowing:
(A) the representations and warranties contained in Section 4.01 of
the Credit Agreement (except the representations set forth in the last
sentence of subsection (e)
thereof and in subsection (f) thereof (other than clause (i) thereof)) and
are correct, before and after giving effect to the Proposed Pro Rata
Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date;
[if the Borrower is a Designated Subsidiary: the representations and
warranties of such Designated Subsidiary contained in its Designation
Agreement are correct, before and after giving effect to the Proposed Pro
Rata Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date;]
(B) after giving effect to the application of the proceeds of all
Borrowings on the date of such Pro Rata Borrowing (together with any other
resources of the Borrower applied together therewith) no event has occurred
and is continuing, or would result from such Pro Rata Borrowing, that
constitutes a Default or Event of Default;
(C) if such Proposed Pro Rata Borrowing is in an aggregate principal
amount equal to or greater than $500,000,000 and is being made in
connection with any purchase of shares of the Borrower's capital stock or
the capital stock of any other Person, or any purchase of all or
substantially all of the assets of any Person (whether in one transaction
or a series of transactions) or any transaction of the type referred to in
Section 5.02(b) of the Credit Agreement, the statement in clause (B) above
will be true on a pro forma basis as if such transaction or purchase shall
have been completed; and
(D) the aggregate principal amount of the Proposed Pro Rata Borrowing
and all other Borrowings to be made on the same day under the Credit
Agreement is within the aggregate unused Commitments of the Lenders.
Very truly yours,
XXXXXX XXXXXX COMPANIES INC.
By
--------------------------
Name:
Title:
[NAME OF BORROWER]
By
--------------------------
Name:
Title:
2
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
[Date]
The Chase Manhattan Bank, as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
Attention:
----------------
Ladies and Gentlemen:
[NAME OF BORROWER], refers to the 5-Year Revolving Credit Agreement, dated
as of July 24, 2001 (as amended or modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among Xxxxxx Xxxxxx Companies Inc., the Lenders parties thereto and The Chase
Manhattan Bank, as Administrative Agent, Citibank, N.A., as Administrative
Agent, Credit Suisse First Boston and Deutsche Bank AG New York Branch and/or
Cayman Islands Branch, as Syndication Agents, and ABN AMRO Bank N.V., BNP
Paribas, Dresdner Bank AG, New York and Grand Cayman Branches and HSBC Bank USA,
as Arrangers and Documentation Agents for such Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.07 of the Credit Agreement that the
undersigned hereby requests a Competitive Bid Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such Competitive
Bid Borrowing (the "Proposed Competitive Bid Borrowing") is requested to be
made:
(A) Date of Competitive Bid Borrowing
(B) Amount of Competitive Bid Borrowing
(C) Interest rate basis
(D) Day count convention
(E) [Interest Period] [Maturity date]
(F) Interest payment date(s)
(G) Borrower's account location
(H)
-------------------
The undersigned, as applicable, hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Competitive Bid Borrowing:
(a) the representations and warranties contained in Section 4.01 of
the Credit Agreement are correct, before and after giving effect to the
Proposed Competitive Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
[if the Borrower is a Designated Subsidiary: the representations and
warranties of such Designated Subsidiary contained in its Designation
Agreement are correct, before and after giving effect to the Proposed
Competitive Bid Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date;]
(b) after giving effect to the application of the proceeds of all
Borrowings on the date of such Competitive Bid Borrowing (together with any
other resources of the Borrower applied together therewith), no event has
occurred and is continuing, or would result from such Proposed Competitive
Bid Borrowing, that constitutes a Default or Event of Default; and
(c) the aggregate principal amount of the Proposed Competitive Bid
Borrowing and all other Borrowings to be made on the same day under the
Credit Agreement is within the aggregate unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed Competitive Bid Borrowing
is to be made available to it in accordance with Section 2.07(e) of the Credit
Agreement.
Very truly yours,
XXXXXX XXXXXX COMPANIES INC.
By
----------------------------------
Name:
Title:
[NAME OF BORROWER]
By
----------------------------------
Name:
Title:
2
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 5-Year Revolving Credit Agreement, dated as of
July 24, 2001 (as amended or modified from time to time, the "Credit Agreement",
the terms defined therein being used herein as therein defined), among Xxxxxx
Xxxxxx Companies Inc., a Virginia corporation, the Lenders parties thereto and
The Chase Manhattan Bank, as Administrative Agent, Citibank, N.A., as
Administrative Agent, Credit Suisse First Boston and Deutsche Bank AG New York
Branch and/or Cayman Islands Branch, as Syndication Agents, and ABN AMRO Bank
N.V., BNP Paribas, Dresdner Bank AG, New York and Grand Cayman Branches and HSBC
Bank USA, as Arrangers and Documentation Agents for such Lenders.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Advances and Competitive Bid
Notes) equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes). After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Pro Rata Advances owing to the Assignee will be as set forth on Schedule 1
hereto. Each of the Assignor and the Assignee represents and warrants that it is
authorized to execute and deliver this Assignment and Acceptance.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or PM
Companies or the performance or observance by any Borrower or PM Companies of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon Chase, as Administrative Agent, any other Agent, the Assignor or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is an
Eligible Assignee; (iv) represents that (A) the source of any funds it is using
to acquire the Assignor's interest or to make any Advance is not and will not be
plan assets as defined under the regulations of the Department of Labor of any
Plan subject to Title I of ERISA or Section 4975 of the Code or (B) the
assignment or Advance is
not and will be not be a non-exempt prohibited transaction as defined in Section
406 of ERISA; (v) appoints and authorizes Chase, as Administrative Agent, to
take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to Chase, as
Administrative Agent, by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; and (vi) agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender.
4. This Assignment and Acceptance will be delivered to Chase, as
Administrative Agent, for acceptance and recording by Chase, as Administrative
Agent following its execution. The effective date for this Assignment and
Acceptance (the "Effective Date") shall be the date of acceptance hereof by
Chase, as Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by Chase, as Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by Chase, as Administrative
Agent, from and after the Effective Date, Chase, as Administrative Agent, shall
make all payments under the Credit Agreement in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
facility fees with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
for periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: %
----------
Assignee's Commitment: U.S.$
-----------------
Aggregate outstanding principal amount of Pro Rata
Advances assigned: U.S.$
-----------------
Effective Date/1/: , 200
--------------- -
[NAME OF ASSIGNOR], as Assignor
By
---------------------------------
Title:
Dated: , 200
---------------- -
[NAME OF ASSIGNEE], as Assignee
By
---------------------------------
Title:
Dated: , 200
---------------- -
Domestic Lending Office:
[Address]
Accepted this
day of , 200
---------- --------------- -
THE CHASE MANHATTAN BANK, as Administrative Agent
By
--------------------------------
Title:
[Approved this day
----------
of , 200
--------------- -
[NAME OF BORROWER]/2/
By
--------------------------------
Title:
----------
/1/ This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to Chase, as Administrative Agent.
/2/ Required if the Assignee is an Eligible Assignee solely by reason of clause
(viii) of the definition of "Eligible Assignee."
EXHIBIT D - FORM OF
DESIGNATION AGREEMENT
[Date]
The Chase Manhattan Bank, as Administrative Agent
for the Lenders parties to the Credit Agreement
referred to below
Ladies and Gentlemen:
Reference is made to the 5-Year Revolving Credit Agreement, dated as of
July 24, 2001 (as amended or modified from time to time, the "Credit Agreement",
the terms defined therein being used herein as therein defined), among Xxxxxx
Xxxxxx Companies Inc., [certain other borrowers parties thereto], the Lenders
parties thereto and The Chase Manhattan Bank, as Administrative Agent, Citibank,
N.A., as Administrative Agent, Credit Suisse First Boston and Deutsche Bank AG
New York Branch and/or Cayman Islands Branch, as Syndication Agents, and ABN
AMRO Bank N.V., BNP Paribas, Dresdner Bank AG, New York and Grand Cayman
Branches and HSBC Bank USA, as Arrangers and Documentation Agents for such
Lenders.
Please be advised that PM Companies hereby designates its undersigned
wholly-owned Subsidiary, ("Designated Subsidiary"), as a
------------
"Designated Subsidiary" under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's agreement to
extend credit to it under and on the terms and conditions set forth in the
Credit Agreement, does hereby assume each of the obligations imposed upon a
"Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Lender as follows:
(a) The Designated Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of
----------------------.
(b) The execution, delivery and performance by the Designated
Subsidiary of this Designation Agreement, the Credit Agreement and the
Notes to be delivered by it are within the Designated Subsidiary's
corporate powers, have been duly authorized by all necessary corporate
action and do not contravene (i) the Designated Subsidiary's charter or
by-laws or (ii) in any material respect, any law, rule, regulation or order
of any court or governmental agency or contractual restriction binding on
or affecting it.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by the Designated
Subsidiary of this Designation Agreement, the Credit Agreement or the Notes
to be delivered by it.
(d) This Designation Agreement is, and the Notes to be delivered by
the Designated Subsidiary when delivered will be, legal, valid and binding
obligations of the Designated Subsidiary enforceable against the Designated
Subsidiary in accordance with their respective terms, subject to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and to the effect of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and an implied covenant of
fair dealing.
(e) There is no pending or threatened action or proceeding affecting
the Designated Subsidiary or any of its Subsidiaries before any court,
governmental agency or arbitrator that purports to affect the legality,
validity or enforceability of this Designation Agreement, the Credit
Agreement or any Note of the Designated Subsidiary.
Very truly yours,
XXXXXX XXXXXX COMPANIES INC.
By
-------------------------
Name:
Title:
[DESIGNATED SUBSIDIARY]
By
-------------------------
Name:
Title:
2
EXHIBIT E-1 - FORM OF
OPINION OF COUNSEL
FOR PM COMPANIES
[Letterhead of Hunton & Xxxxxxxx]
[Effective Date]
To each of the Lenders parties
to the 5-Year Revolving Credit Agreement dated
as of July 24, 2001
among Xxxxxx Xxxxxx Companies Inc.,
said Lenders and The Chase Manhattan Bank, as
Administrative Agent for said Lenders, and
to Citibank, N.A. as Administrative Agent
Xxxxxx Xxxxxx Companies Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(e)(iii) of the
5-Year Revolving Credit Agreement, dated as of July 24, 2001 (the "Credit
Agreement"), among Xxxxxx Xxxxxx Companies Inc., the Lenders parties thereto and
The Chase Manhattan Bank, as Administrative Agent, Citibank, N.A., as
Administrative Agent, Credit Suisse First Boston and Deutsche Bank AG New York
Branch and/or Cayman Islands Branch, as Syndication Agents, and ABN AMRO Bank
N.V., BNP Paribas, Dresdner Bank AG, New York and Grand Cayman Branches and HSBC
Bank USA, as Arrangers and Documentation Agents for such Lenders. Terms defined
in the Credit Agreement are used herein as therein defined.
We have acted as counsel for PM Companies in connection with the
preparation, execution and delivery of the Credit Agreement.
In that connection, we have examined:
(1) The Credit Agreement.
(2) The documents furnished by PM Companies pursuant to Article III of
the Credit Agreement.
(3) The Articles of Incorporation of PM Companies and all amendments
thereto (the "Charter").
(4) The by-laws of PM Companies and all amendments thereto (the
"By-laws").
We have also examined the originals, or copies certified to our satisfaction, of
such corporate records of PM Companies, certificates of public officials and of
officers of PM Companies, and agreements, instruments and other documents, as we
have deemed necessary as a basis for the
opinions expressed below. As to questions of fact material to such opinions, we
have, when relevant facts were not independently established by us, relied upon
certificates of PM Companies or its officers or of public officials. We have
assumed the due execution and delivery, pursuant to due authorization, of the
Credit Agreement by the Initial Lenders and Chase, as Administrative Agent.
Our opinions expressed below are limited to the law of the State of New
York, the Commonwealth of Virginia and the Federal law of the United States.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. PM Companies is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of Virginia.
2. The execution, delivery and performance by PM Companies of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, are within PM Companies's corporate powers, have been
duly authorized by all necessary corporate action, and do not contravene
(i) the Charter or the By-laws or (ii) any law, rule or regulation
applicable to PM Companies (including, without limitation, Regulation X of
the Board of Governors of the Federal Reserve System) or (iii) to our
knowledge, any contractual or legal restriction binding on or affecting PM
Companies. The Credit Agreement and any Notes delivered on the date hereof
have been duly executed and delivered on behalf of PM Companies.
3. No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
PM Companies of the Credit Agreement and the Notes.
4. The Credit Agreement is the legal, valid and binding obligation of
PM Companies enforceable against PM Companies in accordance with its terms.
The Notes issued on the date hereof, if any, are the legal, valid and
binding obligations of PM Companies, enforceable against PM Companies in
accordance with their respective terms.
The opinion set forth in paragraph 4 above as to enforceability is subject
to the effect of any applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar law affecting creditors' rights generally
and to the effect of general principles of equity and an implied covenant of
good faith and fair dealing.
We express no opinion with respect to:
(A) The effect of any provision of the Credit Agreement which is
intended to permit modification thereof only by means of an agreement in writing
by the parties thereto;
2
(B) The effect of any provision of the Credit Agreement insofar as it
provides that any Person purchasing a participation from a Lender or other
Person may exercise set-off or similar rights with respect to such participation
or that any Lender or other Person may exercise set-off or similar rights other
than in accordance with applicable law;
(C) The effect of any provision of the Credit Agreement imposing
penalties or forfeitures;
(D) The enforceability of any provision of the Credit Agreement to the
extent that such provision constitutes a waiver of illegality as a defense to
performance of contract obligations; or
(E) The effect of any provision of the Credit Agreement relating to
indemnification or exculpation in connection with violations of any securities
laws or relating to indemnification, contribution or exculpation in connection
with willful, reckless or criminal acts or gross negligence of the indemnified
or exculpated Person or the Person receiving contribution.
In connection with the provisions of the Credit Agreement which relate
to forum selection (including, without limitation, any wavier of any objection
to venue or any objection that a court is an inconvenient forum), we note that
under NYCPLR (S) 510 a New York State court may have discretion to transfer the
place of trial, and under 28 U.S.C. (S) 1404(a) a United States District Court
has discretion to transfer an action from one Federal court to another.
This opinion is being furnished to you pursuant to Section 3.01(e)(iii) of
the Credit Agreement, is solely for the benefit of you and your counsel, and is
not intended for, and may not be relied upon by, any other person or entity
without our prior written consent. We undertake no duty to inform you of events
occurring subsequent to the date hereof.
Very truly yours,
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EXHIBIT E-2 - FORM OF
OPINION OF COUNSEL
FOR PM COMPANIES
[Effective Date]
To each of the Lenders parties
to the 5-Year Revolving Credit Agreement dated
as of July 24, 2001
among Xxxxxx Xxxxxx Companies Inc.,
said Lenders and The Chase Manhattan Bank, as
Administrative Agent for said Lenders, and
to Citibank, N.A. as Administrative Agent
Xxxxxx Xxxxxx Companies Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(e)(iii) of the
5-Year Revolving Credit Agreement, dated as of July 24, 2001 (the "Credit
Agreement"), among Xxxxxx Xxxxxx Companies Inc. ("PM Companies"), the Lenders
parties thereto and The Chase Manhattan Bank, as Administrative Agent, Citibank,
N.A., as Administrative Agent, Credit Suisse First Boston and Deutsche Bank AG
New York Branch and/or Cayman Islands Branch, as Syndication Agents, and ABN
AMRO Bank N.V., BNP Paribas, Dresdner Bank AG, New York and Grand Cayman
Branches and HSBC Bank USA, as Arrangers and Documentation Agents for such
Lenders. Terms defined in the Credit Agreement are used herein as therein
defined.
I have acted as counsel for PM Companies in connection with the
preparation, execution and delivery of the Credit Agreement.
In that connection, I have examined originals, or copies certified to my
satisfaction, of such corporate records of PM Companies, certificates of public
officials and of officers of PM Companies, and agreements, instruments and other
documents, as I have deemed necessary as a basis for the opinions expressed
below. As to questions of fact material to such opinions, I have, when relevant
facts were not independently established by me, relied upon certificates of PM
Companies or its officers or of public officials.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the opinion that, to the best of my knowledge, (i) there is
no pending or threatened action or proceeding against PM Companies or its
Subsidiaries before any court, governmental agency or arbitrator (a
"Proceeding") that purports to affect the legality, validity, binding effect or
enforceability of the Credit Agreement or the Notes, if any, or the consummation
of the transactions contemplated thereby, and (ii) except for Proceedings
disclosed in the Annual Report on Form 10-K of PM Companies for the fiscal year
ended December 31, 2000, its Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001, any Current Reports on Form 8-K filed subsequent to March 31,
2001 but prior to July 24, 2001, or, with respect to Proceedings commenced after
the date of the most recent such document but prior to July 24,
2001, a certificate delivered to the Lenders and attached hereto, there are no
Proceedings that are likely to have a materially adverse effect upon the
financial position or results of operations of PM Companies and its Subsidiaries
taken as a whole.
Very truly yours,
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EXHIBIT F - FORM OF
OPINION OF COUNSEL
FOR DESIGNATED SUBSIDIARY
[Effective Date]
To each of the Lenders parties
to the 5-Year Revolving Credit Agreement dated
as of July 24, 2001
among Xxxxxx Xxxxxx Companies Inc.,
said Lenders and The Chase Manhattan Bank, as
Administrative Agent for said Lenders, and
to Citibank, N.A. as Administrative Agent
Xxxxxx Xxxxxx Companies Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.02(e) of the 5-Year
Revolving Credit Agreement, dated as of July 24, 2001 (the "Credit Agreement"),
among Xxxxxx Xxxxxx Companies Inc. ("PM Companies"), the Lenders parties thereto
and The Chase Manhattan Bank, as Administrative Agent, Citibank, N.A., as
Administrative Agent, Credit Suisse First Boston and Deutsche Bank AG New York
Branch and/or Cayman Islands Branch, as Syndication Agents, and ABN AMRO Bank
N.V., BNP Paribas, Dresdner Bank AG, New York and Grand Cayman Branches and HSBC
Bank USA, as Arrangers and Documentation Agents for such Lenders. Terms defined
in the Credit Agreement are used herein as therein defined.
We have acted as counsel for (the "Designated Subsidiary") in
-----------
connection with the preparation, execution and delivery of the Designation
Agreement.
In that connection, we have examined:
(1) The Designation Agreement.
(2) The Credit Agreement.
(3) The documents furnished by the Designated Subsidiary pursuant to
Article III of the Credit Agreement.
(4) The [Articles] [Certificate] of Incorporation of the Designated
Subsidiary and all amendments thereto (the "Charter").
(5) The by-laws of the Designated Subsidiary and all amendments
thereto (the "By-laws").
We have also examined the originals, or copies certified to our satisfaction, of
such corporate records of the Designated Subsidiary, certificates of public
officials and of officers of the Designated Subsidiary, and agreements,
instruments and other documents, as we have deemed
necessary as a basis for the opinions expressed below. As to questions of fact
material to such opinions, we have, when relevant facts were not independently
established by us, relied upon certificates of the Designated Subsidiary or its
officers or of public officials. We have assumed the due execution and delivery,
pursuant to due authorization, of the Credit Agreement by the Initial Lenders
and Chase, as Administrative Agent.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. The Designated Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of .
--------------
2. The execution, delivery and performance by the Designated
Subsidiary of the Designation Agreement, the Credit Agreement and the Notes
to be delivered by it, and the consummation of the transactions
contemplated thereby, are within the Designated Subsidiary's corporate
powers, have been duly authorized by all necessary corporate action, and do
not contravene (i) the Charter or the By-laws or (ii) any law, rule or
regulation applicable to the Designated Subsidiary (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System) or (iii) to our knowledge, any contractual or legal restriction
binding on or affecting the Designated Subsidiary. The Designation
Agreement, the Credit Agreement and the Notes delivered by the Designated
Subsidiary on the date hereof have been duly executed and delivered on
behalf of the Designated Subsidiary.
3. No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Designated Subsidiary of the Designation Agreement, the Credit
Agreement and the Notes delivered by the Designated Subsidiary.
4. The Designation Agreement and the Credit Agreement are the legal,
valid and binding obligations of the Designated Subsidiary enforceable
against the Designated Subsidiary in accordance with their respective
terms. The Notes issued on the date hereof, if any, by the Designated
Subsidiary are the legal, valid and binding obligations of the Designated
Subsidiary, enforceable against the Designated Subsidiary in accordance
with their respective terms.
5. There is, to the best of my knowledge, no pending or threatened
action or proceeding against the Designated Subsidiary or any of its
Subsidiaries before any court, governmental agency or arbitrator that
purport to affect the legality, validity, binding effect or enforceability
of the Designation Agreement, the Credit Agreement or any of the Notes
delivered by the Designated Subsidiary or the consummation of the
transactions contemplated thereby.
2
The opinion set forth in paragraph 4 above as to enforceability is subject
to the effect of any applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar law affecting creditors' rights generally
and to the effect of general principles of equity and an implied covenant of
good faith and fair dealing.
Very truly yours,
3
EXHIBIT G
FORM OF OPINION OF
COUNSEL FOR CHASE,
AS ADMINISTRATIVE AGENT
[Letterhead of Xxxxxxx Xxxxxxx & Xxxxxxxx]
July 24, 2001
The Chase Manhattan Bank and Citibank, N.A.,
as Adminstrative Agents
The Lenders listed on Schedule I hereto
which are parties to the Credit Agreement
on the date hereof
Re: 5-Year Revolving Credit Agreement dated as
of July 24, 2001 (the "Credit Agreement")
among Xxxxxx Xxxxxx Companies Inc. (the
"Company"), and Credit Suisse First Boston
and Deutsche Bank AG New York Branch
and/or Cayman Islands Branch, as Syndication
Agents, and ABN AMRO Bank N.V.,
BNP Paribas, Dresdner Bank AG, New York and
Grand Cayman Branches and HSBC Bank
USA, as Arrangers and Documentation Agents
Ladies and Gentlemen:
We have acted as counsel to The Chase Manhattan Bank, as Administrative
Agent, in connection with the preparation, execution and delivery of the Credit
Agreement.
This opinion is delivered to you pursuant to Section 3.01(e)(iv) of the
Credit Agreement. Terms used herein which are defined in the Credit Agreement
shall have the respective meanings set forth in the Credit Agreement, unless
otherwise defined herein.
In connection with this opinion, we have examined a copy of the Credit
Agreement signed by the Company and by the Administrative Agents and the
Lenders.
We also have examined the originals, or duplicates or certified or
conformed copies, of such records, agreements, instruments and other documents
and have made such other investigations as we have deemed relevant and necessary
in connection with the opinions
expressed herein. As to questions of fact material to this opinion, we have
relied upon certificates of public officials and of officers and representatives
of the Company. In addition, we have examined, and have relied as to matters of
fact upon, the representations made in the Credit Agreement.
In rendering the opinion set forth below, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as duplicates or certified or conformed copies,
and the authenticity of the originals of such latter documents.
In rendering the opinion set forth below we have assumed that (1) the
Credit Agreement is a valid and legally binding obligation of each of the
Lenders parties thereto, (2) the Company is duly organized and validly existing
and in good standing under the laws of the jurisdiction in which it is organized
and of each other jurisdiction in which the conduct of its business or ownership
of its property makes such qualification necessary, has the corporate power and
authority to execute, deliver and perform its obligations under the Credit
Agreement and has duly authorized, executed and delivered the Credit Agreement
in accordance with its Certificate of Incorporation and By-laws or other similar
organizational documents, and (3)(a) execution, delivery and performance by the
Company of the Credit Agreement do not contravene its Certificate of
Incorporation or By-laws or other similar organizational documents, (b)
execution, delivery and performance by the Company of the Credit Agreement do
not violate, or require any consent not obtained under, the laws of the
jurisdiction in which it is organized or any other applicable laws or
regulations or any order, writ, injunction or decree of any court or other
governmental authority binding on the Company, and (c) execution, delivery and
performance by the Company of the Credit Agreement do not constitute a breach or
violation of, or require any consent not obtained under, any agreement or
instrument which is binding upon the Company.
Based upon and subject to the foregoing, and subject to the qualifications
and limitations set forth herein, we are of the opinion that the Credit
Agreement constitutes the valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms.
Our opinion set forth above is subject to (i) the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, (ii) general
equitable principles (whether considered in a proceeding in equity or at law)
and (iii) an implied covenant of good faith and fair dealing.
We express no opinion with respect to:
(A) the effect of any provision of the Credit Agreement which is
intended to permit modification thereof only by means of an agreement in writing
by the parties thereto;
(B) the effect of any provision of the Credit Agreement insofar as it
provides that any Person purchasing a participation from a Lender or other
Person may exercise set-off or similar rights with respect to such participation
or that any Lender or other Person may exercise set-off or similar rights other
than in accordance with applicable law;
2
(C) the effect of any provision of the Credit Agreement imposing
penalties or forfeitures;
(D) the enforceability of any provision of the Credit Agreement to the
extent that such provision constitutes a waiver of illegality as a defense to
performance of contract obligations; or
(E) the effect of any provision of the Credit Agreement relating to
indemnification or exculpation in connection with violations of any securities
laws or relating to indemnification, contribution or exculpation in connection
with willful, reckless or criminal acts or gross negligence of the indemnified
or exculpated Person or the Person receiving contribution.
In connection with the provisions of the Credit Agreement which relate
to forum selection (including, without limitation, any wavier of any objection
to venue or any objection that a court is an inconvenient forum), we note that
under NYCPLR (S) 510 a New York State court may have discretion to transfer the
place of trial, and under 28 U.S.C. (S) 1404(a) a United States District Court
has discretion to transfer an action from one Federal court to another.
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the Federal law of the United States.
This opinion letter is rendered to you in connection with the above
described transaction. This opinion letter may not be relied upon by you for any
other purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior written consent. This opinion letter may be
furnished to, but may not be relied upon by, a regulatory authority entitled to
receive it.
Very truly yours,
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