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EXHIBIT 4.4
U.S. $1,500,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of November 4, 1996
Among
COCA-COLA ENTERPRISES INC.
BOTTLING HOLDINGS (GREAT BRITAIN) LTD.
as Initial Borrowers,
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK INTERNATIONAL plc
as Agent
and
BANK OF AMERICA NT&SA
DEUTSCHE BANK AG, NEW YORK BRANCH
NATIONSBANK, N.A.
UNION BANK OF SWITZERLAND
as Co-Agents
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms ...................................... 1
SECTION 1.02. Computation of Time Periods ................................ 14
SECTION 1.03. Accounting Terms and Determinations ........................ 14
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
SECTION 2.01. The Syndicated Loans ...................................... 15
SECTION 2.02. Making the Syndicated Loans ................................ 15
SECTION 2.03. The Competitive Bid Loans .................................. 17
SECTION 2.04. Fees ...................................................... 22
SECTION 2.05. Termination or Reduction of the Commitments ................ 23
SECTION 2.06. Repayment of Syndicated Loans .............................. 24
SECTION 2.07. Interest on Syndicated Loans .............................. 24
SECTION 2.08. Interest Rate Determination ................................ 24
SECTION 2.09. Prepayments of Syndicated Loans ............................ 27
SECTION 2.10. Increased Costs ............................................ 28
SECTION 2.11. Illegality ................................................ 29
SECTION 2.12. Payments and Computations .................................. 29
SECTION 2.13. Taxes ...................................................... 31
SECTION 2.14. Regulation D Compensation .................................. 34
SECTION 2.15. Use of Proceeds ............................................ 35
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03 .................................... 35
SECTION 3.02. Initial Loan to Each Designated Subsidiary ................ 37
SECTION 3.03. Conditions Precedent to Each Syndicated
Borrowing .................................................. 38
SECTION 3.04. Conditions Precedent to Each Competitive Bid
Borrowing .................................................. 38
SECTION 3.05. Determinations Under Section 3.01 .......................... 39
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrowers .................................................. 40
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ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. Affirmative Covenants ...................................... 42
SECTION 5.02. Negative Covenants ........................................ 45
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default .......................................... 48
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee .................................... 51
SECTION 7.02. Guarantee Absolute ........................................ 52
SECTION 7.03. Waivers .................................................... 53
SECTION 7.04. Subrogation ................................................ 53
SECTION 7.05. Survival .................................................. 54
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action .................................. 54
SECTION 8.02. Agent's Reliance, Etc. .................................... 55
SECTION 8.03. Citibank International and Affiliates ...................... 56
SECTION 8.04. Lender Credit Decision .................................... 56
SECTION 8.05. Indemnification ............................................ 56
SECTION 8.06. Successor Agent ............................................ 57
SECTION 8.07. Co-Agents .................................................. 57
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. .......................................... 57
SECTION 9.02. Notices, Etc................................................ 58
SECTION 9.03. No Waiver; Remedies ........................................ 59
SECTION 9.04. Costs and Expenses ........................................ 59
SECTION 9.05. Right of Set-off; Sharing of Payments ...................... 61
SECTION 9.06. Binding Effect ............................................ 62
SECTION 9.07. Assignments and Participations ............................ 62
SECTION 9.08. Designated Subsidiaries .................................... 65
SECTION 9.09. Commitment Extension ...................................... 66
SECTION 9.10. Confidentiality ............................................ 66
SECTION 9.11. Governing Law .............................................. 67
SECTION 9.12. Execution in Counterparts .................................. 67
SECTION 9.13. Judgment .................................................. 67
SECTION 9.14. Jurisdiction, Etc. ........................................ 67
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FIVE YEAR CREDIT AGREEMENT
Dated as of November 4, 1996
COCA-COLA ENTERPRISES INC., a Delaware corporation (the
"Company") Bottling Holdings (Great Britain) Ltd., a corporation organized under
the laws of England ("UK Holdings" and, together with the Company, the "Initial
Borrowers"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") listed on the signature pages hereof, CITIBANK
INTERNATIONAL PLC ("Citibank International"), as agent (the "Agent") for the
Lenders (as hereinafter defined) and BANK OF AMERICA NT&SA, DEUTSCHE BANK AG,
NEW YORK BRANCH, NATIONSBANK, N.A. and UNION BANK OF SWITZERLAND, as co-agents
(the "Co-Agents") for the Lenders, 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):
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means (a) in the case of Base Rate Loans,
the account of the US Sub-Agent maintained by the US Sub-Agent at
Citibank at its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Account No. 00000000, Attention: Mr. Xxxxxxx Xxxxxx, (b) in the case of
Loans denominated in Dollars other than Base Rate Advances, the account
of the Agent maintained by the Agent at Citibank at its office at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Favor - Citibank International
plc, London, Account No. 00000000, Attention: Loans Agency Department,
(c) in the case of Loans denominated in Eurocurrencies other than
Dollars, the account of the Agent designated in writing from time to
time by the Agent to the Company and the Lenders for such purpose and
(d) in any such case, such other account of the Agent as is designated
in writing from time to time by the Agent to the Company and the
Lenders for such purpose.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a
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Base Rate Loan and such Lender's Eurocurrency Lending Office in the
case of a Eurocurrency Rate Loan and, in the case of a Competitive Bid
Loan, the office of such Lender notified by such Lender to the Agent as
its Applicable Lending Office with respect to such Competitive Bid
Loan.
"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Level in effect on such date as
set forth below:
----------------------------
Level Applicable Margin
------- ------------------
Xxxxx 0 0.090%
Xxxxx 0 0.090%
Xxxxx 0 0.100%
Xxxxx 0 0.125%
Xxxxx 0 0.250%
----------------------------
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Level in effect on such date
as set forth below:
---------------------------------
Level Applicable Percentage
------- ----------------------
Xxxxx 0 0.050%
Xxxxx 0 0.060%
Xxxxx 0 0.100%
Xxxxx 0 0.125%
Xxxxx 0 0.150%
---------------------------------
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or,
if there is no nearest 1/16 of 1%, to the next higher 1/16 of
1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next
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succeeding Business Day) for the three-week period ending on
the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month Dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any successor) for
insuring Dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Loan" means a Syndicated Loan denominated in
Dollars that bears interest as provided in Section 2.07(a)(i).
"Beverages France" means Coca-Cola Beverages, S.A., a
corporation organized under the laws of the Republic of France.
"Beverages Netherlands" means Coca-Cola Beverages Nederland
B.V., a corporation organized under the laws of the Kingdom of The
Netherlands.
"Borrowers" means, collectively, each Initial Borrower and
each Designated Subsidiary that shall become a party to this Agreement
pursuant to Section 9.08.
"Borrowing" means a Syndicated 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 Eurocurrency Rate Loan or LIBO
Rate Loan, on which dealings are carried on in the London interbank
market and banks are
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open for business in London and in the country of issue of the currency
of such Eurocurrency Rate Loan or LIBO Rate Loan.
"Citibank" means Citibank, N.A., a national banking
association organized under the laws of the United States.
"Commitment" means as to any Lender the Dollar amount set
forth opposite its name on the signature pages hereof or, if such
Lender has entered into any Assignment and Acceptance, set forth for
such Lender in the Register maintained by the Agent pursuant to Section
9.07(d), as such amount may be reduced pursuant to Section 2.05.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Loans from each of the Lenders whose offer
to make one or more Competitive Bid Loans as part of such borrowing has
been accepted under the competitive bidding procedure described in
Section 2.03.
"Competitive Bid Loan" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Loan or a LIBO Rate Loan (each of which shall be a "Type" of
Competitive Bid Loan).
"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 Loan made by such Lender
to such Borrower.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means information that any Borrower
furnishes to the Agent or any Lender in a writing designated as
confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes
available to the Agent or such Lender from a source other than a
Borrower.
"Consolidated" refers to the consolidation of the financial
statements of the Company and its Subsidiaries in accordance with
generally accepted accounting principles, including principles of
consolidation.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Syndicated Loans of one Type into Syndicated Loans of the
other Type pursuant to Section 2.08.
"Debt" means (i) indebtedness for borrowed money or for the
deferred purchase price of property or services, other
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than (x) trade accounts payable on customary terms in the ordinary
course of business and (y) financial obligations under management
consulting contracts or noncompete agreements with unaffiliated Persons
entered into in connection with the acquisition of the bottling
businesses of such Persons, (ii) financial obligations evidenced by
bonds, debentures, notes or other similar instruments, (iii) financial
obligations as lessee under leases which shall have been or should be,
in accordance with generally accepted accounting principles, recorded
as capital leases and (iv) 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 financial obligations of
others of the kinds referred to in clauses (i) through (iii) above.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or
both would, unless cured or waived, become an Event of Default.
"Designated Subsidiary" means any wholly-owned Subsidiary of
the Company designated for borrowing privileges under this Agreement
pursuant to Section 9.08.
"Designation Letter" means, with respect to any Designated
Subsidiary, a letter in the form of Exhibit E hereto signed by such
Designated Subsidiary and the Company.
"Dollars" and the "$" sign each means lawful money of the
United States of America.
"Domestic Lending Office" means, with respect to any Initial
Lender, the office of such Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto and, with respect to any
other Lender, the office of such Lender specified as its "Domestic
Lending Office" in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may
from time to time specify to the Company and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$500,000,000; (iv) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof,
and having total assets in excess of $500,000,000; (v) a commercial
bank organized under the laws of any other country that is a member of
the Organization for Economic Cooperation and Development or has
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concluded special lending arrangements with the International Monetary
Fund associated with its General Arrangements to Borrow or of the
Cayman Islands, or a political subdivision of any such country, and
having total assets in excess of $500,000,000, so long as such bank is
acting through a branch or agency located in the United States or in
the country in which it is organized or another country that is
described in this clause (v); (vi) the central bank of any country that
is a member of the Organization for Economic Cooperation and
Development; or (vii) any other Person approved by the Agent and the
Company, such approval not to be unreasonably withheld or delayed;
provided, however, that neither the Company nor an Affiliate of the
Company shall qualify as an Eligible Assignee.
"Equivalent" in Dollars of any Primary Currency on any date
means the equivalent in Dollars of such Primary Currency determined by
using the quoted spot rate at which Citibank International's principal
office in London offers to exchange Dollars for such Primary Currency
in London prior to 4:00 P.M. (London time) on such date as is required
pursuant to the terms of this Agreement, and the "Equivalent" in any
Primary Currency of Dollars means the equivalent in such Primary
Currency of Dollars determined by using the quoted spot rate at which
Citibank International's principal office in London offers to exchange
such Foreign Currency for Dollars in London prior to 4:00 P.M. (London
time) on such date as is required pursuant to the terms of this
Agreement.
"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, as of any date, any trade or business
(whether or not incorporated) which (as of such date) is a member of a
group of which the Company is a member and which, as of such date, is
under common control within the meaning of either Section 414(b) or
Section 414(c) of the Code, and the regulations promulgated and rulings
issued thereunder.
"Eurocurrency Lending Office" means, with respect to any
Initial Lender, the office of such Lender specified as its
"Eurocurrency Lending Office" opposite its name on Schedule I hereto
and, with respect to any other Lender, the office of such Lender
specified as its "Eurocurrency Lending Office" in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the Company
and the Agent.
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"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Loan comprising part of the same Syndicated
Borrowing, the average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in Dollars or in the applicable
Primary Currency, as the case may be, are offered by the principal
office of each of the Reference Banks in London, England to prime banks
in the London interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurocurrency Rate Loan
comprising part of such Syndicated Borrowing to be outstanding during
such Interest Period and for a period equal to such Interest Period.
The Eurocurrency Rate for any Interest Period for each Eurocurrency
Rate Loan comprising part of the same Syndicated Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
"Eurocurrency Rate Loan" means a Syndicated Loan denominated
in Dollars or in a Primary Currency that bears interest as provided in
Section 2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period
for all Eurocurrency Rate Loans or LIBO Rate Loans comprising part of
the same Borrowing means the reserve percentage applicable two Business
Days before the first day of such Interest Period under regulations
issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal
Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference
to which the interest rate on Eurocurrency Rate Loans or LIBO Rate
Loans is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal
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funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"Fitch" means Fitch Investors Service, Inc.
"Fixed Rate Loan" has the meaning specified in Section
2.03(a)(i), which Loan shall be denominated in Dollars or in any
Primary Currency.
"France Holdings" means Bottling Holdings (France) S.A., a
corporation organized under the laws of the Republic of France.
"High Rating" means, with respect to any Rating Agency, that
such agency shall have rated the commercial paper of the Company, as
set forth below:
Rating Agency Rating
S&P A-1 or higher
Xxxxx'x P-1
Fitch F-1 or higher
Substitute Rating Agency equivalent to above
"Insufficiency" means, with respect to any Plan, the amount,
if any, by which the present value of the benefits under such Plan
exceeds the fair market value of the assets of such Plan allocable to
such benefits, as determined using such reasonable actuarial
assumptions and methods as are specified in the Schedule B (Actuarial
Information) to the most recent annual report (Form 5500 Series) filed
with respect to such Plan.
"Interest Period" means, for each Eurocurrency Rate Loan
comprising part of the same Syndicated Borrowing and each LIBO Rate
Loan comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such Eurocurrency Rate Loan or LIBO Rate Loan
or the date of the Conversion of any Base Rate Loan into such
Eurocurrency Rate Loan and ending on the last day of the period
selected by the Borrower requesting such Borrowing pursuant to the
provisions below and, thereafter, with respect to Eurocurrency Rate
Loans, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest
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Period shall be one, two, three or six months and, if acceptable to all
Lenders, nine or twelve months, as the Borrower requesting the
Borrowing may, upon notice received by the Agent not later than 11:00
A.M. (New York City time) on the third Business Day prior to the first
day of such Interest Period, select; provided, however, that:
(i) such Borrower may not select any Interest Period
that ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Loans comprising part of the same Syndicated
Borrowing or for LIBO Rate Loans comprising part of the same
Competitive Bid Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Lenders" means the Initial Lenders and each Eligible Assignee
that shall become a party hereto pursuant to Section 9.07.
"Level" means, as of any date, the lowest of Xxxxx 0, Xxxxx 0,
Xxxxx 0, Xxxxx 4 or Level 5 then applicable to the commercial paper of
the Company.
"Level 1" means that three Rating Agencies shall have assigned
a High Rating to the commercial paper of the Company.
"Level 2" means that either (a) two Rating Agencies shall have
assigned a High Rating and one Rating Agency shall have assigned a
Middle Rating or (b) one Rating Agency shall have
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assigned a High Rating and two Rating Agencies shall have assigned a
Middle Rating, in each case to the commercial paper of the Company.
"Level 3" means that three Rating Agencies shall have assigned
a Middle Rating to the commercial paper of the Company.
"Level 4" means that either one Rating Agency or two Rating
Agencies (but not more than two Rating Agencies) shall have assigned a
Low Rating to the commercial paper of the Company.
"Level 5" means that three Rating Agencies shall have assigned
a Low Rating to the commercial paper of the Company.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Loans comprising part of the same Competitive Bid Borrowing, the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the rate per annum at
which deposits in Dollars or in the applicable Primary Currency, as the
case may be, are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount substantially equal
to the amount that would be the Reference Banks' respective ratable
shares of such Borrowing if such Borrowing were to be a Syndicated
Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period. The LIBO Rate for any Interest
Period for each LIBO Rate Loan comprising part of the same Competitive
Bid Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the
Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"LIBO Rate Loan" means a Competitive Bid Loan denominated in
Dollars or in any Primary Currency and bearing interest based on the
LIBO Rate.
"Loan" means a Syndicated Loan or a Competitive Bid Loan.
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"Low Rating" means, with respect to any Rating Agency, that
such agency shall have rated the commercial paper of the Company, as
set forth below:
Rating Agency Rating
S&P A-3 or below
Moody's P-3 or below
Fitch F-3 or below
Substitute Rating Agency equivalent to above
"Majority Lenders" means at any time Lenders holding at least
66 2/3% of the then aggregate principal amount (based on the Equivalent
in Dollars at such time) of the Syndicated Loans, or, if no such
principal amount is then outstanding, Lenders having at least 66 2/3%
of the Commitments.
"Middle Rating" means, with respect to any Rating Agency, that
such agency shall have rated the commercial paper of the Company, as
set forth below:
Rating Agency Rating
S&P A-2
Moody's P-2
Fitch F-2
Substitute Rating Agency equivalent to above
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means, as of any date, a "multiemployer
plan", as defined in Section 4001(a)(3) of ERISA, to which the Company
or any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within the current plan year or any of the
immediately preceding five plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" means, as of any date, an employee
benefit plan, other than a Multiemployer Plan, (i) which is subject to
Title IV of ERISA, (ii) to which the Company or an ERISA Affiliate, and
one or more employers other than the Company or an ERISA Affiliate, is
making or accruing an obligation to make contributions or, in the event
that any such plan has been terminated, to which the Company or any
ERISA Affiliate made or accrued an obligation to make contributions
during any of the five plan years preceding the date of termination of
such plan and (iii) either (A) whose assets have a market value as of
such date, as reasonably determined by the Company in good faith, in
excess of $100,000,000 or (B) under which an Insufficiency exists and
the amount of such Insufficiency which is allocable to the
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Company or any ERISA Affiliate as of such date, as reasonably
determined by the Company in good faith, exceeds $5,000,000.
"Netherlands Holdings" means Bottling Holdings (Netherlands)
B.V., a corporation organized under the laws of the Kingdom of The
Netherlands.
"Note" means a Syndicated Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Syndicated Borrowing" has the meaning specified in
Section 2.02(a).
"Obligations" has the meaning specified in Section 7.01.
"Payment Office" means, for any Primary Currency, such office
of Citibank as shall be from time to time selected by the Agent and
notified by the Agent to the Borrowers and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a limited liability company, a trust or any other entity
or organization, including a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Primary Currencies" means lawful currency of the United
Kingdom of Great Britain and Northern Ireland, lawful currency of
Canada, lawful currency of the Republic of France, the lawful currency
of the Kingdom of Belgium and the lawful currency of the Netherlands.
"Process Agent" has the meaning specified in Section 9.12(a).
"Rating Agency" means any of S&P, Xxxxx'x, Fitch or any
substitute rating agency designated by the Company and acceptable to
the Majority Lenders ( the latter sometimes referred to herein a
"Substitute Rating Agency"). When reference is made herein to "Rating
Agencies" it is to more than one Rating Agency.
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"Reference Banks" means Citibank, Union Bank of Switzerland,
New York Branch and Deutsche Bank AG.
"Register" has the meaning specified in Section 9.07(d).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"S&P" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies.
"Single Employer Plan" means, as of any date, an employee
benefit plan, other than a Multiemployer Plan or a Multiple Employer
Plan, (i) which is subject to Title IV of ERISA, (ii) which is (or, in
the event that any such plan has been terminated within five years
after a transaction described in Section 4069 of ERISA involving the
Company or any ERISA Affiliate, was) maintained for employees of the
Company or any ERISA Affiliate and (iii) whose assets have a market
value as of such date, as reasonably determined by the Company in good
faith, in excess of $100,000,000 or which has an Insufficiency as of
such date, as reasonably determined by the Company in good faith, in
excess of $5,000,000.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by the
Company.
"Substitute Rating Agency" has the meaning set forth in the
definition of "Rating Agency."
"Syndicated Borrowing" means a borrowing consisting of
simultaneous Syndicated Loans of the same Type made by each of the
Lenders pursuant to Section 2.01.
"Syndicated Loan" means an advance by a Lender to any Borrower
as part of a Syndicated Borrowing and refers to a Base Rate Loan or a
Eurocurrency Rate Loan (each of which shall be a "Type" of Syndicated
Loan).
"Syndicated Note" means a promissory note of any Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of such
Borrower to such Lender resulting from the Syndicated Loans made by
such Lender to such Borrower.
"Termination Date" means the earlier of (a) the fifth
anniversary of the Effective Date and (b) the date of
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termination in whole of the Commitments pursuant to Section 2.05(a) or
Section 6.01.
"Termination Event" means (i) a "reportable event", as such
term is described in Section 4043(c) of ERISA other than a "reportable
event" not subject to the provision for 30-day notice to the PBGC, with
respect to a Plan, or an event described in Section 4062(e) of ERISA
involving a Plan, or (ii) the withdrawal within the meaning of Section
4063(a) of ERISA) of the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a
"substantial employer", as such term is defined in Section 4001(a)(2)
of ERISA, or the incurrence of liability by the Borrower or any ERISA
Affiliate under Section 4064 of ERISA upon the termination of a
Multiple Employer Plan, or (iii) the distribution of a notice of intent
to terminate a Plan pursuant to Section 4041(a)(2) of ERISA or the
treatment of a Plan amendment as a termination under Section 4041(e) of
ERISA, or (iv) the institution of proceedings to terminate a Plan by
the PBGC under Section 4042 of ERISA or (v) any other event or
condition which, as reasonably determined by the Borrower in good
faith, is reasonably likely to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan.
"Uncontested Withdrawal Liability" means as of any date,
Withdrawal Liability for which the Borrower has not provided the
Lenders with evidence reasonably satisfactory to the Lenders that there
are reasonable grounds for contesting, and the Borrower is in fact
contesting in a timely and appropriate manner, such Withdrawal
Liability.
"US Holdings" means Bottling Holdings (International) Inc., a
Delaware corporation.
"US Sub-Agent" means Citibank, in its capacity as a subagent
of the Agent with respect to any Syndicated Borrowings consisting of
Base Rate Loans and any Competitive Bid Borrowings consisting of Fixed
Rate Loans to be denominated in Dollars.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein
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shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes required by the
accounting profession or changes concurred in by the Company's independent
public accountants) with the most recent audited Consolidated financial
statements of the Company and its Consolidated Subsidiaries delivered to the
Lenders.
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
SECTION 2.01. The Syndicated Loans. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Syndicated
Loans 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 (based
in respect of any Syndicated Loan denominated in a Primary Currency on the
Equivalent in Dollars on the Business Day such Loan is made), not to exceed at
any time outstanding such Lender's Commitment, provided that the aggregate
amount of the Commitments of the Lenders shall be deemed used from time to time
to the extent of the aggregate amount (based in respect of any Competitive Bid
Loan denominated in a Primary Currency on the Equivalent in Dollars at such
time) of the Competitive Bid Loans 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"); provided further
that each Lender's Loan made under the Competitive Bid Option shall not reduce
such Lender's obligation to lend its pro rata share of the remaining undrawn
Commitments. Each Syndicated Borrowing shall be in an aggregate amount not less
than $25,000,000 (or the Equivalent thereof in any Primary Currency, determined
as of the date of the applicable Notice of Syndicated Borrowing) or an integral
multiple of $1,000,000 (or the Equivalent thereof in any Primary Currency,
determined as of the date of the applicable Notice of Syndicated Borrowing) in
excess thereof and shall consist of Syndicated Loans of the same Type made on
the same day by the Lenders ratably according to their respective Commitments.
Within the limits of each Lender's Commitment, any Borrower may borrow under
this Section 2.01, prepay pursuant to Section 2.09 and reborrow under this
Section 2.01.
SECTION 2.02. Making the Syndicated Loans. (a) Each Syndicated
Borrowing shall be made on notice, given not later than (x) 11:00 A.M. (London
time) on the third Business Day prior to the date of the proposed Syndicated
Borrowing in the case of a Syndicated Borrowing consisting of Eurocurrency Rate
Loans or
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(y) 10:30 A.M. (New York City time) on the day of the proposed Syndicated
Borrowing in the case of a Syndicated Borrowing consisting of Base Rate Loans,
by any Borrower to the Agent (and, in the case of a Syndicated Borrowing
consisting of Base Rate Loans, simultaneously to the US Sub-Agent), which shall
give to each Lender prompt notice thereof by telecopier or telex. Each such
notice of a Syndicated Borrowing (a "Notice of Syndicated Borrowing") shall be
by telephone, confirmed immediately in writing, or telecopier or telex in
substantially the form of Exhibit B-1 hereto, specifying therein the requested
(i) date of such Syndicated Borrowing, (ii) Type of Loans comprising such
Syndicated Borrowing, (iii) aggregate amount of such Syndicated Borrowing, and
(iv) in the case of a Syndicated Borrowing consisting of Eurocurrency Rate
Loans, initial Interest Period and currency for each such Syndicated Loan. Each
Lender shall, before 12:00 noon (New York City time) on the date of such
Syndicated Borrowing, in the case of a Syndicated Borrowing consisting of Base
Rate Loans, and before 11:00 A.M., (London time) on the date of such Syndicated
Borrowing, in the case of a Syndicated Borrowing consisting of Eurocurrency Rate
Loans, make available for the account of its Applicable Lending Office to the
Agent at the applicable Agent's Account in same day funds, such Lender's ratable
portion (determined in accordance with Section 2.01) of such Syndicated
Borrowing. After the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will make such funds
available to the Borrower requesting the Syndicated Borrowing at the Agent's
address referred to in Section 9.02 or at the applicable Payment Office, as the
case may be.
(b) Anything in subsection (a) above to the contrary
notwithstanding, the Eurocurrency Rate Loans may not be outstanding as part of
more than ten separate Syndicated Borrowings.
(c) Each Notice of Syndicated Borrowing of any Borrower shall
be irrevocable and binding on such Borrower. In the case of any Syndicated
Borrowing that the related Notice of Syndicated Borrowing specifies is to be
comprised of Eurocurrency Rate Loans, the Borrower requesting such Syndicated
Borrowing shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure by such Borrower to fulfill on or
before the date specified in such Notice of Syndicated Borrowing for such
Syndicated Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Syndicated Loan to
be made by such Lender as part of such Syndicated Borrowing when such Syndicated
Loan, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the date of any Syndicated Borrowing that such
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Lender will not make available to the Agent such Lender's ratable portion of
such Syndicated Borrowing, the Agent may assume that such Lender has made such
portion available to the Agent on the date of such Syndicated Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the Borrower proposing such
Syndicated Borrowing on such date a corresponding amount. If and to the extent
that such Lender shall not have so made such ratable portion available to the
Agent and the Agent shall have made such portion available to such Borrower on
such date, such Lender and such Borrower severally agree to repay to the Agent
forthwith on demand such corresponding amount, together with interest thereon,
for each day from the date such amount is made available to such Borrower until
the date such amount is repaid to the Agent, at (i) in the case of such
Borrower, the interest rate applicable at the time to Syndicated Loans
comprising such Syndicated Borrowing and (ii) in the case of such Lender (A) the
Federal Funds Rate in the case of Loans denominated in Dollars or (B) the cost
of funds incurred by the Agent in respect of such amount in the case of Loans
denominated in Primary Currencies. If such Lender shall repay to the Agent such
corresponding amount, such Borrower shall be relieved of its obligation to repay
such amount to the Agent and such amount so repaid (excluding interest) shall
constitute such Lender's Syndicated Loan as part of such Syndicated Borrowing
for purposes of this Agreement.
(e) The failure of any Lender to make the Syndicated Loan to
be made by it as part of any Syndicated Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Syndicated Loan on the
date of such Syndicated Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Syndicated Loan to be made by such other
Lender on the date of any Syndicated Borrowing.
SECTION 2.03. The Competitive Bid Loans. (a) Each Lender
severally agrees that any Borrower may request Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 7 days prior to the Termination Date in
the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, the aggregate amount (based in respect of any Loan
denominated in a Primary Currency on the Equivalent in Dollars on the Business
Day such Loan is requested) of the Loans then outstanding shall not exceed the
aggregate amount of the Commitments of the Lenders at such time (computed
without regard to any Competitive Bid Reduction).
(i) Any Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Agent (and, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Loans (as
hereinafter defined) to be denominated in Dollars, simultaneously to
the US Sub-Agent), by telecopier or
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telex, a notice of a Competitive Bid Borrowing (a "Notice of
Competitive Bid Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (s) date of such proposed
Competitive Bid Borrowing, (t) aggregate amount of such proposed
Competitive Bid Borrowing, (u) interest rate basis to be offered by the
Lenders, (v) currency of such proposed Competitive Bid Borrowing, (w)
in the case of a Competitive Bid Borrowing consisting of LIBO Rate
Loans, Interest Period, or in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Loans, maturity date for repayment of each
Fixed Rate Loan to be made as part of such Competitive Bid Borrowing
(which maturity date may not be earlier than the date occurring 7 days
after the date of such Competitive Bid Borrowing or later than the
earlier of (I) 180 days after the date of such Competitive Bid
Borrowing and (II) the Termination Date), (x) interest payment date or
dates relating thereto, (y) location of such Borrower's account to
which funds are to be advanced, and (z) other terms (if any) to be
applicable to such Competitive Bid Borrowing, not later than 4:00 P.M.
(London time) (A) at least one Business Day prior to the date of the
proposed Competitive Bid Borrowing, if such Borrower shall specify in
its Notice of Competitive Bid Borrowing that the rates of interest to
be offered by the Lenders shall be fixed rates per annum (each Loan
comprising any such Competitive Bid Borrowing being referred to herein
as a "Fixed Rate Loan") and that the Loans comprising such proposed
Competitive Bid Borrowing shall be denominated in Dollars, (B) at least
two Business Days prior to the date of the proposed Competitive Bid
Borrowing, if such Borrower shall instead specify in its Notice of
Competitive Bid Borrowing that the Loans comprising such Competitive
Bid Borrowing shall be Fixed Rate Loans denominated in any Primary
Currency and (C) at least four Business Days prior to the date of the
proposed Competitive Bid Borrowing, if such Borrower shall instead
specify in its Notice of Competitive Bid Borrowing that the Loans
comprising such Competitive Bid Borrowing shall be LIBO Rate Loans.
Each Notice of Competitive Bid Borrowing shall be irrevocable and
binding on such Borrower. Any Notice of Competitive Bid Borrowing by a
Designated Subsidiary shall be given to the Agent in accordance with
the preceding sentence through the Company on behalf of such Designated
Subsidiary. The Agent shall in turn promptly notify each Lender of each
request for a Competitive Bid Borrowing received by it from such
Borrower by sending such Lender a copy of the related Notice of
Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Loans to
the Borrower proposing the Competitive Bid Borrowing as part of such
proposed Competitive Bid Borrowing at a rate or rates of interest
specified by such Lender in its sole discretion, by notifying the Agent
(which
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shall give prompt notice thereof to such Borrower), (A) before 2:00
P.M. (London time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Loans denominated in Dollars, (B) before 12:00 noon (London
time) one Business Day before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Loans denominated in any Primary Currency and (C) before
12:00 noon (London time) three Business Days before the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Loans, of the minimum amount and
maximum amount of each Competitive Bid Loan which such Lender would be
willing to make as part of such proposed Competitive Bid Borrowing
(which amounts, or the Equivalent thereof in Dollars, as the case may
be, may, subject to the proviso to the first sentence of this Section
2.03(a), exceed such Lender's Commitment, if any), the rate or rates of
interest therefor and such Lender's Applicable Lending Office with
respect to such Competitive Bid Loan; provided that if the Agent in its
capacity as a Lender shall, in its sole discretion, elect to make any
such offer, it shall notify such Borrower of such offer at least 30
minutes before the time and on the date on which notice of such
election is to be given to the Agent by the other Lenders. If any
Lender shall elect not to make such an offer, such Lender shall so
notify the Agent, before 12:00 noon (London time) on the date on which
notice of such election is to be given to the Agent by the other
Lenders, and such Lender shall not be obligated to, and shall not, make
any Competitive Bid Loan as part of such Competitive Bid Borrowing;
provided that the failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Bid Loan as
part of such proposed Competitive Bid Borrowing.
(iii) The Borrower proposing the Competitive Bid Loan
shall, in turn, (A) before 2:30 P.M. (London time) on the date
of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Loans denominated
in Dollars, (B) before 3:00 P.M. (London time) one Business Day before
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Loans denominated
in any Primary Currency and (C) before 3:00 P.M. (London time) three
Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Loans, either:
(x) cancel such Competitive Bid Borrowing by giving
the Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in
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its sole discretion, by giving notice to the Agent of the
identity of such Lender or Lenders and the amount of each
Competitive Bid Loan (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the
maximum amount, notified to such Borrower by the Agent on
behalf of such Lender or Lenders for such Competitive Bid Loan
pursuant to paragraph (ii) above) to be made by such Lender or
Lenders as part of such Competitive Bid Borrowing, and reject
any remaining offers made by other Lenders pursuant to
paragraph (ii) above by giving the Agent notice to that
effect. Such Borrower shall accept the offers made by any
Lender or Lenders to make Competitive Bid Loans in order of
the lowest to the highest rates of interest offered by such
Lenders. If two or more Lenders have offered the same interest
rate, the amount to be borrowed at such interest rate will be
allocated among such Lenders in proportion to the amount that
each such Lender offered at such interest rate.
(iv) If the Borrower proposing the Competitive Bid Borrowing
notifies the Agent that such Competitive Bid Borrowing is cancelled
pursuant to paragraph (iii)(x) above, the Agent shall give prompt
notice thereof to the Lenders and such Competitive Bid Borrowing shall
not be made.
(v) If the Borrower proposing the Competitive Bid Borrowing
accepts one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, the Agent shall in turn promptly
notify (A) each Lender that has made an offer as described in paragraph
(ii) above, of the date and aggregate amount of such Competitive Bid
Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by such Borrower,
(B) each Lender that is to make a Competitive Bid Loan as part of such
Competitive Bid Borrowing, of the amount of each Competitive Bid Loan
to be made by such Lender as part of such Competitive Bid Borrowing,
and (C) each Lender that is to make a Competitive Bid Loan as part of
such Competitive Bid Borrowing, upon receipt, that the Agent has
received forms of documents appearing to fulfill the applicable
conditions set forth in Article III. Each Lender that is to make a
Competitive Bid Loan as part of such Competitive Bid Borrowing shall,
before 12:00 noon (New York City time), in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Loans denominated in Dollars,
and before 12:00 noon (London time), in each other case, on the date of
such Competitive Bid Borrowing specified in the notice received from
the Agent pursuant to clause (A) of the preceding sentence or any later
time when such Lender shall have received notice from the Agent
pursuant to clause (C) of the preceding sentence, make available for
the account of its Applicable Lending Office to
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the Agent at the applicable Agent's Account, in same day funds, such
Lender's portion of such Competitive Bid Borrowing. Upon fulfillment of
the applicable conditions set forth in Article III and after receipt by
the Agent of such funds, the Agent will make such funds available to
such Borrower's account at the location specified by such Borrower in
its Notice of Competitive Bid Borrowing. Promptly after each
Competitive Bid Borrowing the Agent will notify each Lender of the
amount of such Competitive Bid Borrowing, the consequent Competitive
Bid Reduction and the dates upon which such Competitive Bid Reduction
commenced and will terminate.
(vi) If the Borrower proposing the Competitive Bid Borrowing
notifies the Agent that it accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, such notice
of acceptance shall be irrevocable and binding on such Borrower. Such
Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure by such Borrower to
fulfill on or before the date specified in the related Notice of
Competitive Bid Borrowing for such Competitive Bid Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (including 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 Loan to be made by such Lender as part of such Competitive Bid
Borrowing when such Competitive Bid Loan, as a result of such failure,
is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount not less than $25,000,000 (or the Equivalent thereof in any Primary
Currency, determined as of the date of the applicable Notice of Competitive Bid
Borrowing) or an integral multiple of $1,000,000 (or the Equivalent thereof in
any Primary Currency, determined as of the date of the applicable Notice of
Competitive Bid Borrowing) in excess thereof and, following the making of each
Competitive Bid Borrowing, the Borrower that has borrowed such Competitive Bid
Borrowing shall be in compliance with the limitation set forth in the proviso to
the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, any Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(d) Any Borrower that has borrowed through a Competitive Bid
Borrowing shall repay to the Agent for the account of each Lender that has made
a Competitive Bid Loan, on the maturity date
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of such Competitive Bid Loan (such maturity date being that specified by such
Borrower for repayment of such Competitive Bid Loan in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid Loan), the
then unpaid principal amount of such Competitive Bid Loan. Such Borrower shall
have no right to prepay any principal amount of any Competitive Bid Loan unless,
and then only on the terms, specified by such Borrower for such Competitive Bid
Loan in the related Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and set forth in the Competitive Bid Note evidencing
such Competitive Bid Loan.
(e) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall pay interest on the unpaid principal amount of each Competitive
Bid Loan comprising such Competitive Bid Borrowing from the date of such
Competitive Bid Loan to the date the principal amount of such Competitive Bid
Loan is repaid in full, at the rate of interest for such Competitive Bid Loan
specified by the Lender making such Competitive Bid Loan in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by such Borrower for such Competitive
Bid Loan in the related Notice of Competitive Bid Borrowing delivered pursuant
to subsection (a)(i) above, as provided in the Competitive Bid Note evidencing
such Competitive Bid Loan. Upon the occurrence and during the continuance of an
Event of Default under Section 6.01(a), such Borrower shall pay interest on the
amount of unpaid principal of and interest on each Competitive Bid Loan 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 Loan under the terms of the
Competitive Bid Note evidencing such Competitive Bid Loan unless otherwise
agreed in such Competitive Bid Note.
(f) The indebtedness of any Borrower resulting from each
Competitive Bid Loan made to such Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the Borrower
payable to the order of the Lender making such Competitive Bid Loan.
SECTION 2.04. Fees. (a) Facility Fee. The Company agrees to
pay to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment from the Effective Date in the case of each
Initial Lender and from the later of the Effective Date and the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender until the Termination Date at a rate per annum
equal to the Applicable Percentage in effect from time to time, payable in
arrears quarterly on the last day of each
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March, June, September and December, commencing December 31, 1996 and on the
Termination Date.
(b) Agent's Fees. The Company shall pay to the Agent for its
own account such fees as may from time to time be agreed between the Company and
the Agent.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Ratable Termination or Reduction. The Company shall have the right, upon at
least three Business Days' notice to the Agent, to terminate or cancel 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 an aggregate
amount not less than $25,000,000 or an integral multiple of $5,000,000 in excess
thereof and provided further that the aggregate amount of the Commitments of the
Lenders shall not be reduced to an amount that is less than the sum of the
aggregate principal amount of the Competitive Bid Loans denominated in Dollars
then outstanding plus the Equivalent in Dollars (determined as of the date of
such notice) of the aggregate principal amount of the Competitive Bid Loans
denominated in Primary Currencies then outstanding.
(b) Non-Ratable Termination by Assignment. The Company shall
have the right, upon at least ten Business Days' written notice to the Agent
(which shall then give prompt notice thereof to the relevant Lender), to require
any Lender that makes a demand for payment under Section 2.10 or 2.13 to assign,
pursuant to and in accordance with the provisions of Section 9.07, all of its
rights and obligations under this Agreement and under the Notes to an Eligible
Assignee selected by the Company; provided, however, that (i) no Event of
Default shall have occurred and be continuing at the time of such request and at
the time of such assignment; (ii) the assignee shall have paid to the assigning
Lender the aggregate principal amount of, and any interest accrued and unpaid to
the date of such assignment on, the Note or Notes of such Lender; (iii) the
Company shall have paid to the assigning Lender any and all facility fees and
other fees payable to such Lender and all other accrued and unpaid amounts owing
to such Lender under any provision of this Agreement (including, but not limited
to, any increased costs or other additional amounts owing under Section 2.10 and
any indemnification for Taxes under Section 2.13) as of the effective date of
such assignment; and (iv) if the assignee selected by the Company is not an
existing Lender, such assignee or the Company shall have paid the processing and
recordation fee required under Section 9.07(a) for such assignment; provided
further that the assigning Lender's rights under Sections 2.10, 2.13 and 9.04,
and its obligations under Section 8.05, shall survive such assignment as to
matters occurring prior to the date of assignment.
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SECTION 2.06. Repayment of Syndicated Loans. Each Borrower
shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Syndicated Loans then
outstanding in respect of such Borrower.
SECTION 2.07. Interest on Syndicated Loans. (a) Scheduled
Interest. Each Borrower shall pay interest on the unpaid principal amount of
each Syndicated Loan owing by such Borrower to each Lender from the date of such
Syndicated Loan until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Loans. During such periods as such Syndicated
Loan is a Base Rate Loan, a rate per annum equal at all times to the
Base Rate in effect from time to time, payable in arrears quarterly on
the last day of each March, June, September and December during such
periods and on the date such Base Rate Loan shall be Converted or paid
in full.
(ii) Eurocurrency Rate Loans. During such periods as such
Syndicated Loan is a Eurocurrency Rate Loan, a rate per annum equal at
all times during each Interest Period for such Syndicated Loan to the
sum of (x) the Eurocurrency Rate for such Interest Period for such
Syndicated Loan plus (y) the Applicable Margin in effect from time to
time, payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months
from the first day of such Interest Period and on the date such
Eurocurrency Rate Loan shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), each Borrower shall
pay interest on (i) the unpaid principal amount of each Syndicated Loan owing by
such Borrower to each Lender, payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 1% per
annum above the rate per annum required to be paid on such Syndicated Loan
pursuant to clause (a)(i) or (a)(ii) above (or, if applicable, the proviso to
Section 2.08(b) below) and (ii) to the fullest extent permitted by law, the
amount of any interest, fee or other amount payable hereunder by such Borrower
that is not paid when due, from the date such amount shall be due until such
amount shall be paid in full, payable in arrears on the date such amount shall
be paid in full and on demand, at a rate per annum equal at all times to 1% per
annum above the rate per annum required to be paid on such Syndicated Loan
pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Agent timely information for the purpose of
determining each Eurocurrency Rate and each LIBO
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Rate. If any one or more of the Reference Banks shall not furnish such timely
information to the Agent for the purpose of determining any such interest rate,
the Agent shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks. The Agent shall give prompt notice
to the Company and the Lenders of the applicable interest rate determined by the
Agent for purposes of Section 2.07(a)(i) or (ii), and the rate, if any,
furnished by each Reference Bank for the purpose of determining the interest
rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Loans, the
Majority Lenders reasonably and in good faith notify the Agent that (i) they are
unable to obtain matching deposits in the London inter-bank 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 Syndicated Loans as a
part of such Borrowing during its Interest Period or (ii) the Eurocurrency Rate
for any Interest Period for such Loans will not adequately reflect the cost to
such Majority Lenders of making, funding or maintaining their respective
Eurocurrency Rate Loans for such Interest Period, the Agent shall forthwith so
notify each Borrower and the Lenders, whereupon (A) the Borrower of such
Eurocurrency Rate Loans will, on the last day of the then existing Interest
Period therefor, (1) if such Eurocurrency Rate Loans are denominated in Dollars,
Convert such Loans into Base Rate Loans and (2) if such Eurocurrency Rate Loans
are denominated in any Primary Currency, either (x) prepay such Loans or (y)
redenominate such Loans into an Equivalent amount of Dollars and Convert such
Loans into Base Rate Loans, and (B) the obligation of the Lenders to make
Eurocurrency Rate Loans in the same currency as such Eurocurrency Rate Loans
shall be suspended until the Agent shall notify each Borrower and the Lenders
that the circumstances causing such suspension no longer exist; provided, if the
circumstances set forth in clause (ii) above are applicable, the applicable
Borrower may elect, by notice to the Agent and the Lenders, to continue such
Loans in such Primary Currency for Interest Periods of not longer than one
month, which Loans shall thereafter bear interest at a rate per annum equal to
the Applicable Margin plus, for each Lender, the cost to such Lender (expressed
as a rate per annum) of funding its Eurocurrency Rate Loans by whatever means it
reasonably determines to be appropriate. Each Lender shall certify its costs of
funds for each such Interest Period to the Agent and the Company as soon as
practicable (but in any event not later than ten Business Days after the first
day of such Interest Period).
(c) If any Borrower shall fail to select the duration of the
Interest Period for any Eurocurrency Rate Loans in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify such Borrower and the Lenders and such Loans will
automatically, on the last day of the then existing Interest Period therefor,
(i) if such Eurocurrency Rate Loans are denominated in Dollars, be Converted
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into Base Rate Loans and (ii) if such Eurocurrency Rate Loans are denominated in
any Primary Currency, be redenominated into an Equivalent amount of Dollars and
Converted into Base Rate Loans.
(d) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a), (i) each Eurocurrency Rate Loan will
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Loan is denominated in Dollars, be Converted into
a Base Rate Loan and (B) if such Eurocurrency Rate Loan is denominated in any
Primary Currency, be redenominated into an Equivalent amount of Dollars and
Converted into a Base Rate Loan and (ii) the obligation of the Lenders to make
Eurocurrency Rate Loans shall be suspended; provided that the Company and the
applicable Borrower may elect, by notice to the Agent and the Lenders within one
Business Day of such Event of Default, to continue such Loans in such Primary
Currency, whereupon the Agent may require that each Interest Period relating to
such Eurocurrency Rate Loans shall bear interest at the Overnight Eurocurrency
Rate for a period of three Business Days and thereafter, each such Interest
Period shall have a duration of not longer than one month. "Overnight
Eurocurrency Rate" means the rate per annum applicable to an overnight period
beginning on one Business Day and ending on the next Business Day equal to the
sum of 1%, the Applicable Margin and the average (rounded upward to the nearest
whole multiple of 1/16 of 1%, if such average is not such a multiple) of the
respective rates per annum quoted by each Reference Bank to the Agent on request
as the rate at which it is offering overnight deposits in the relevant currency
in amounts comparable to such Reference Bank's Eurocurrency Rate Loans.
(e) If fewer than two Reference Banks furnish timely
information to the Agent for determining the Eurocurrency Rate or LIBO Rate for
any Eurocurrency Rate Loans or LIBO Rate Loans, as the case may be,
(i) the Agent shall forthwith notify the relevant Borrower
and the Lenders that the interest rate cannot be determined for
such Eurocurrency Rate Loans or LIBO Rate Loans, as the case may be,
(ii) with respect to Eurocurrency Rate Loans, each such Loan
will automatically, on the last day of the then existing Interest
Period therefor, (A) if such Eurocurrency Rate Loan is denominated in
Dollars, be Converted into a Base Rate Loan and (B) if such
Eurocurrency Rate Loan is denominated in any Primary Currency, be
redenominated into an Equivalent amount of Dollars and Converted into a
Base Rate Loan, and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Loans or LIBO Rate Loans shall be suspended until the Agent shall
notify the Borrowers and the Lenders
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that the circumstances causing such suspension no longer exist.
SECTION 2.09. Prepayments of Syndicated Loans. (a) Optional
Prepayments. Each Borrower may, upon notice to the Agent stating the proposed
date and aggregate principal amount of the prepayment, given not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
such proposed prepayment, in the case of Eurocurrency Rate Loans, and not later
than 11:00 A.M. (New York City time) on the day of such proposed prepayment, in
the case of Base Rate Loans, and, if such notice is given, such Borrower shall,
prepay the outstanding principal amount of the Syndicated Loans comprising part
of the same Syndicated Borrowing in whole or ratably in part (without premium or
penalty or additional costs other than pursuant to Section 9.04(c)), 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 not less than $25,000,000 or the Equivalent thereof
in a Primary Currency (determined on the date notice of prepayment is given) or
an integral multiple of $5,000,000 or the Equivalent thereof in a Primary
Currency (determined on the date notice of prepayment is given) in excess
thereof and (y) in the event of any such prepayment of a Eurocurrency Rate Loan
other than on the last day of the Interest Period therefor, such Borrower shall
be obligated to reimburse the Lenders in respect thereof pursuant to Section
9.04(c). Each notice of prepayment by a Designated Subsidiary shall be given to
the Agent through the Company.
(b) Mandatory Prepayments. (i) If the Agent notifies the
Company that, on any interest payment date, the sum of (A) the aggregate
principal amount of all Loans denominated in Dollars then outstanding plus (B)
the Equivalent in Dollars (determined on the third Business Day prior to such
interest payment date) of the aggregate principal amount of all Loans
denominated in Primary Currencies then outstanding exceeds 103% of the aggregate
Commitments of the Lenders on such date, the Company and each other Borrower
shall, within two Business Days after receipt of such notice, prepay the
outstanding principal amount of any Loans owing by such Borrower in an aggregate
amount sufficient to reduce such sum to an amount not to exceed 100% of the
aggregate Commitments of the Lenders on such date.
(ii) Each prepayment made pursuant to this Section 2.09(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
Eurocurrency Rate Loan or a LIBO Rate Loan 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(c). The Agent shall give prompt notice of
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any prepayment required under this Section 2.09(b) to the Borrowers and the
Lenders.
SECTION 2.10. Increased Costs. (a) If after the date hereof,
the adoption of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement (including, without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System but excluding with respect to
any Eurocurrency Rate Loan or LIBO Rate Loan any such requirement included in an
applicable Eurocurrency Reserve Percentage) against assets of, deposits with or
for the account of, or credit extended by, any Lender (or its Applicable Lending
Office) or shall impose on any Lender (or its Applicable Lending Office) or on
the United States market for certificates of deposit or the London interbank
market any other condition affecting its Eurocurrency Rate Loans or LIBO Rate
Loans, its Notes or its obligation to make Eurocurrency Rate Loans, and the
result of any of the foregoing is to increase the cost to such Lender (or its
Applicable Lending Office) of making or maintaining any Eurocurrency Rate Loan
or LIBO Rate Loan, or to reduce the amount of any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Agreement or under its
Notes with respect thereto by an amount deemed by such Lender to be material,
then, within 15 days after demand by such Lender, the Borrower of such Loans
shall pay to such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduction.
(b) If after the date hereof, any Lender shall have determined
that the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Applicable Lending Office) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital as a consequence of its obligations hereunder to
a level below that which such Lender could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, within 15 days after demand by such Lender, the Company
shall pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
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(c) Each Lender will notify the Agent and the Company of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section within the time
limitation set forth in Section 9.04(d) and will designate a different
Eurocurrency Lending Office if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender. A certificate of any Lender
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
SECTION 2.11. Illegality. If, after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Eurocurrency Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for any Lender (or its Eurocurrency
Lending Office) to make, maintain or fund its Eurocurrency Rate Loans in Dollars
or any Primary Currency or LIBO Rate Loans in Dollars or any Primary Currency
hereunder such Lender shall so notify the Agent and the Company, whereupon until
such Lender notifies the Agent and the Company that the circumstances giving
rise to such suspension no longer exist, the obligation of such Lender to make
such Eurocurrency Rate Loans shall be suspended. Before giving any notice to the
Agent and the Company pursuant to this Section, such Lender shall designate a
different Eurocurrency Lending Office if such designation will avoid the need
for giving such notice and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender. If such Lender shall determine that it
may not lawfully continue to maintain and fund any of its outstanding
Eurocurrency Rate Loans or LIBO Rate Loans to maturity and shall so specify in
such notice, each such Eurocurrency Rate Loan or such LIBO Rate Loan, as the
case may be, will automatically, upon such demand, (a) if such Eurocurrency Rate
Loan or LIBO Rate Loan is denominated in Dollars, be converted into a Base Rate
Loan or a Loan that bears interest at the rate set forth in Section 2.07(a)(i),
as the case may be and (b) if such Eurocurrency Loan or LIBO Rate Loan is
denominated in any Primary Currency, be redenominated into an Equivalent amount
of Dollars and converted into a Base Rate Loan or a Loan that bears interest at
the rate set forth in Section 2.07(a)(i), as the case may be.
SECTION 2.12. Payments and Computations. (a) Each Borrower
shall make each payment hereunder and under the Notes, except with respect to
principal of, interest on, and other amounts
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relating to, Loans denominated in a Primary Currency, not later than 12:00 noon
(New York City time) on the day when due in Dollars to the Agent at the
applicable Agent's Account in same day funds. Each Borrower shall make each
payment hereunder and under the Notes with respect to principal of, interest on,
and other amounts relating to Loans denominated in a Primary Currency not later
than 12:00 Noon (at the Payment Office for such Primary Currency) on the day
when due in such Primary Currency to the Agent in same day funds by deposit of
such funds to the applicable Agent's Account. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or facility fees ratably (other than amounts payable pursuant to
Section 2.03, 2.10, 2.13, 2.14 or 9.04(c)) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 9.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) All computations of interest based on the Base Rate and of
facility fees shall be made by the Agent on the basis of a year of 365 or 366
days, as the case may be, and all computations of interest based on the
Eurocurrency Rate, the LIBO Rate or the Federal Funds Rate shall be made by the
Agent on the basis of a year of 360 days (or, in the case of Loans denominated
in Primary Currencies where market practice differs, in accordance with market
practice), in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest or
facility fees are payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurocurrency Rate Loans or LIBO Rate Loans to be
made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(d) Unless the Agent shall have received notice from any
Borrower prior to the date on which any payment is due to the
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Lenders hereunder that such Borrower will not make such payment in full, the
Agent may assume that such Borrower has made such payment in full to the Agent
on such date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent such Borrower shall not have so made such
payment in full to the Agent, each Lender shall repay to the Agent forthwith on
demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Agent, at (i) the Federal Funds Rate
in the case of Loans denominated in Dollars or (ii) the cost of funds incurred
by the Agent in respect of such amount in the case of Loans denominated in
Primary Currencies.
SECTION 2.13. Taxes. (a) Any and all payments by any Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender, the US Sub-Agent and the
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction under the laws of which such
Lender, the US Sub-Agent or the Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under any of the Notes being hereinafter referred to as "Taxes").
If any Borrower shall be required by law to deduct any Taxes from or in respect
of any sum paid or payable hereunder or under any Note to any Lender, the US
Sub-Agent or the Agent, or, if the Agent shall be required by law to deduct any
Taxes from or in respect of any sum paid or payable hereunder or under any Note
to any Lender or if the US Sub-Agent shall be required by law to deduct any
Taxes from or in respect of any sum paid or payable hereunder or under any Note
to any Lender or to the Agent, (i) the sum payable by such Borrower shall be
increased by such Borrower as may be necessary so that, after making all
required deductions (including deductions, whether by such Borrower, the US
Sub-Agent or the Agent, applicable to additional sums payable under this Section
2.13) such Lender, the US Sub-Agent and the Agent each receive an amount equal
to the sum they each would have received had no such deductions been made (for
example, and without limitation, if the sum paid or payable hereunder from or in
respect of which a Borrower or the US SubAgent or the Agent shall be required to
deduct any Taxes is interest, the interest payable by such Borrower shall be
increased by such Borrower as may be necessary so that, after making all
required deductions (including deductions applicable to additional
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interest), such Lender, the US Sub-Agent and the Agent each receive interest
equal to the interest they each would have received had no such deduction been
made), (ii) such Borrower (or, as the case may be and as required by applicable
law, the US Sub-Agent or the Agent) shall make such deductions and (iii) such
Borrower (or, as the case may be and as required by applicable law, the US
Sub-Agent or the Agent) shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performance under, or
otherwise with respect to, this Agreement or any of the Notes (hereinafter
referred to as "Other Taxes").
(c) Each Borrower shall indemnify each Lender, the US
Sub-Agent and the Agent for and hold harmless against the full amount of Taxes
or Other Taxes (as well as, without limitation, any taxes imposed by any
jurisdiction on amounts payable under this Section 2.13) imposed on or paid by
such Lender, the US Sub-Agent or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
such Lender, the US Sub-Agent or the Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes,
each Borrower shall furnish to the Agent at its address referred to in Section
9.02, the original or a certified copy of a receipt evidencing payment thereof.
In the case of any payment hereunder or under any of the Notes by or on behalf
of any Borrower through an account or branch outside the United States, the
United Kingdom, the Republic of France and the Kingdom of The Netherlands or by
or on behalf of any Borrower by a payor that is not a United States person or a
corporation organized under the laws of the United Kingdom, the Republic of
France or the Kingdom of The Netherlands, if such Borrower determines that no
Taxes are payable in respect thereof, such Borrower shall furnish, or shall
cause such payor to furnish, to the Agent, at such address, an opinion of
counsel reasonably acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d), the terms "United States" and
"United States person" shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(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, and from time to time thereafter as requested in writing
by
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any Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide such Borrower and the Agent with any form or certificate that is
required by any taxing authority including, if applicable, two original Internal
Revenue Service forms 1001 or 4224, as appropriate, or any successor or other
form prescribed by the Internal Revenue Service, certifying (if it is the case)
that such Lender is exempt from or entitled to a reduced rate of Home
Jurisdiction Withholding Taxes on payments pursuant to this Agreement or the
Notes (or, in the case of a Lender that initially becomes a party to this
Agreement pursuant to an assignment under Section 9.07, exempt from or entitled
to a reduced rate of Home Jurisdiction Withholding Taxes on payments made
pursuant to this Agreement or the Notes that is no greater than the rate to
which the assigning Lender was subject (assuming such assigning Lender provided
such forms or certificates as may be required by this subsection (e)));
provided, however, that such Lender shall have been advised in writing by each
Borrower (including at the time any renewal form is due) of the form or
certificate applicable to it, determined by reference to the jurisdiction of
organization and Applicable Lending Office of such Lender set forth on Schedule
I hereto, in the case of each Initial Lender, or to the jurisdiction of
organization and Applicable Lending Office of such Lender set forth in the
Assignment and Acceptance pursuant to which it became a Lender, in the case of
each other Lender, or such other branch or office of any Lender designated by
such Lender from time to time. If any form or document referred to in this
subsection (e) requires the disclosure of information not substantially similar
to the information necessary to compute the tax payable and information required
on the date hereof by Internal Revenue Service form 1001 or 4224 or United
Kingdom Inland Revenue Form FD13, and which a Lender reasonably considers to be
confidential, such Lender shall give notice thereof to the Borrower and shall
not be obligated to include in such form or document such confidential
information.
"Home Jurisdiction Withholding Taxes" means (a) in the case of
the Company and US Holdings, withholding taxes imposed by the United States, (b)
in the case of UK Holdings, withholding taxes imposed by the United Kingdom, (c)
in the case of Beverages France and France Holdings, withholding taxes imposed
by the Republic of France and (d) in the case of Netherlands Holdings and
Beverages Netherlands, withholding taxes imposed by the Kingdom of The
Netherlands.
(f) For any period with respect to which a Lender has failed,
within 30 days of such Lender's receipt of written advice to such effect from
any Borrower, to provide such Borrower with the appropriate form or certificate
described in Section 2.13(e) (other than if such failure is due to a change in
law (including, without limitation, any change in regulation or change in the
interpretation of any statute or regulation or other rule of law) occurring
subsequent to the date on which a form originally was required to be provided,
such Lender shall not be entitled to
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indemnification under Section 2.13(a) or (c) with respect to Taxes imposed by
the United States, the United Kingdom, the Republic of France and the Kingdom of
The Netherlands by reason of such failure; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form or
certificate required hereunder, each Borrower shall take such steps as such
Lender shall reasonably request, and at such Lender's expense, to assist such
Lender to recover such Taxes.
(g) Each Lender shall promptly upon the request of the Agent
take all action (including without limitation the completion of forms and the
provision of information to the appropriate taxing authorities or to the Agent),
of the kind prescribed in regulations promulgated under Section 118H of the U.K.
Income and Corporation Taxes Act of 1988 (and any statements published by the
Inland Revenue relating thereto and having general application) and consistent
with such Lender's legal and regulatory restrictions, reasonably requested by
the Agent, and the Agent shall upon reasonable request from any Borrower make
such request of each Lender and shall itself (consistent with the Agent's legal
and regulatory restrictions), to the extent appropriate and reasonable, take
similar action, to secure the benefit of any exemption from, or relief with
respect to, Taxes or Other Taxes imposed by the United Kingdom under Section
118H of the U.K. Income and Corporation Taxes Act of 1988 in relation to any
amounts payable under this Agreement or any of the Notes.
(h) Any Lender or the Agent (as the case may be) claiming any
additional amounts payable pursuant to this Section 2.13 will notify the Agent
and the applicable Borrower of such claim within the time limitation set forth
in Section 9.04(d) and agrees to use reasonable efforts (consistent with such
Lender's or the Agent's (as the case may be) internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable Lending
Office or the office of the Agent (as the case may be) if the making of such a
change would avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the sole judgment of such
Lender or in the reasonable judgment of the Agent (as the case may be), be
otherwise disadvantageous to such Lender or the Agent (as the case may be). Each
Borrower shall promptly upon request by any Lender or the Agent take all actions
(including, without limitation, the completion of forms and the provision of
information to the appropriate taxing authorities) reasonably requested by such
Lender or the Agent to secure the benefit of any exemption from, or relief with
respect to, Taxes or Other Taxes in relation to any amounts payable under this
Agreement.
SECTION 2.14. Regulation D Compensation. Each Lender that is
subject to reserve requirements of the Board of Governors of the Federal Reserve
System (or any successor) may require the applicable Borrower to pay,
contemporaneously with each payment of
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interest on the Eurocurrency Rate Loans and LIBO Rate Loans, as the case may be,
additional interest on the related Eurocurrency Rate Loans and LIBO Rate Loans,
as the case may be, of such Lender at the rate per annum equal to the excess of
(i) (A) the applicable Eurocurrency Rate or LIBO Rate, as the case may be,
divided by (B) one minus the Eurocurrency Rate Reserve Percentage over (ii) the
rate specified in clause (i) (A). Any Lender wishing to require payment of such
additional interest (x) shall so notify the Agent and the applicable Borrower,
in which case such additional interest on the Eurocurrency Rate Loans and LIBO
Rate Loans, as the case may be, of such Lender shall be payable to such Lender
at the place indicated in such notice with respect to each Interest Period
commencing at least five Business Days after the giving of such notice and (y)
shall notify the Agent and the applicable Borrower at least five Business Days
prior to each date on which interest is payable on the amount then due it under
this Section.
SECTION 2.15. Use of Proceeds. The proceeds of the Loans shall
be available (and each Borrower agrees that it shall use such proceeds) solely
for working capital and for other general corporate purposes of such Borrower
and its Subsidiaries, including, without limitation, backstop of commercial
paper and acquisition financing.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become
effective on and as of the first date on or before November 15, 1996 (the
"Effective Date") on which the following conditions precedent have been
satisfied:
(a) The Company shall have notified the Agent as to the
proposed Effective Date.
(b) The Company shall have paid all accrued fees and expenses
of the Agent (including the accrued fees and expenses of counsel to the
Agent).
(c) On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender a
certificate of the Company on behalf of itself and each other Borrower,
signed by a duly authorized officer of the Company, 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
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(ii) No event has occurred and is continuing that
constitutes a Default.
(d) The Company shall have terminated the commitments of the
banks parties to the $1,000,000,000 Credit Agreement dated as of
December 7, 1994 with the Company, and shall have paid in full all Debt
outstanding under such Credit Agreement.
(e) The Agent shall have received on or before the Effective
Date the following, each dated such day, in form and substance
satisfactory to the Agent and (except for the Syndicated Notes) in
sufficient copies for each Lender:
(i) The Syndicated Notes of each Initial Borrower
to the order of the Lenders, respectively.
(ii) Certified copies of the resolutions of the
Board of Directors of each Initial Borrower approving this
Agreement and the Notes of such Initial Borrower, and of all
documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this
Agreement and such Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of each Initial Borrower certifying the names and
true signatures of the officers of such Initial Borrower
authorized to sign this Agreement and the Notes of such
Initial Borrower and the other documents to be delivered
hereunder.
(iv) Copies of the most recently available
Consolidated financial statements of the Company and its
Consolidated Subsidiaries and the related Consolidated
statements of income, Consolidated balance sheets,
Consolidated statements of shareholder's equity and
Consolidated statements of cash flows, duly certified by the
chief financial officer of the Company.
(v) A favorable opinion of Xxxxxx & Xxxxxx, counsel
of the Borrowers, substantially in the form of Exhibit F
hereto and as to such other matters as any Lender through the
Agent may reasonably request.
(vi) A favorable opinion of Shearman & Sterling,
counsel for the Agent, in form and substance satisfactory to
the Agent.
(vii) Evidence of the Process Agent's acceptance of
its appointment pursuant to Section 9.14(a) as the agent of
the Initial Borrowers.
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(viii) Such other approvals, opinions or documents as
any Lender, through the Agent, may reasonably request.
SECTION 3.02. Initial Loan to Each Designated Subsidiary. The
obligation of each Lender to make an initial Loan to each Designated Subsidiary
following any designation of such Designated Subsidiary as a Borrower hereunder
pursuant to Section 9.08 is subject to the Agent's receipt on or before the date
of such initial Loan of each of the following, in form and substance
satisfactory to the Agent and dated such date, and (except for the Syndicated
Notes) in sufficient copies for each Lender:
(a) The Syndicated Notes of such Borrower to the order of the
Lenders, respectively.
(b) Certified copies of the resolutions of the Board of
Directors of such Borrower (with a certified English translation if the
original thereof is not in English) approving this Agreement and the
Notes of such Borrower, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to
this Agreement and such Notes.
(c) A certificate of the Secretary or an Assistant Secretary
of such Borrower certifying the names and true signatures of the
officers of such Borrower authorized to sign this Agreement and the
Notes of such Borrower and the other documents to be delivered
hereunder.
(d) A certificate signed by a duly authorized officer of the
Company, dated as of the date of such initial Loan, certifying that
such Borrower shall have obtained all governmental and third party
authorizations, consents, approvals (including exchange control
approvals) and licenses required under applicable laws and regulations
necessary for such Borrower to execute and deliver this Agreement and
the Notes and to perform its obligations thereunder.
(e) The Designation Letter of such Designated Subsidiary,
substantially in the form of Exhibit D hereto.
(f) Evidence of the Process Agent's acceptance of its
appointment pursuant to Section 9.14(a) as the agent of such Borrower,
substantially in the form of Exhibit E hereto.
(g) A favorable opinion of counsel (which may be in-house
counsel) to such Designated Subsidiary, dated the date of such initial
Loan, covering, to the extent customary and appropriate for the
relevant jurisdiction, the opinions outlined on Exhibit G hereto.
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(h) Such other approvals, opinions or documents as any Lender,
through the Agent, may reasonably request.
SECTION 3.03. Conditions Precedent to Each Syndicated
Borrowing. The obligation of each Lender to make a Syndicated Loan on the
occasion of each Syndicated Borrowing shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such
Syndicated Borrowing (a) the following statements shall be true (and each of the
giving of the applicable Notice of Syndicated Borrowing and the acceptance by
the Borrower requesting such Syndicated Borrowing of the proceeds of such
Syndicated Borrowing shall constitute a representation and warranty by such
Borrower that on the date of such Borrowing such statements are true):
(i) the representations and warranties 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 (ii)
thereof)) thereof are correct in all material respects on and as of the
date of such Syndicated Borrowing, before and after giving effect to
such Syndicated Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and additionally, if
such Syndicated Borrowing shall have been requested by a Designated
Subsidiary, the representations and warranties of such Designated
Subsidiary contained in its Designation Letter are correct in all
material respects on and as of the date of such Syndicated Borrowing,
before and after giving effect to such Syndicated Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date;
(ii) no event has occurred and is continuing, or would result
from such Syndicated Borrowing or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.04. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid Loan
on the occasion of a Competitive Bid Borrowing to make such Competitive Bid Loan
as part of such Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, (ii) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the
Agent shall have received a Competitive Bid Note payable to the order of such
Lender for each of the one or more Competitive Bid Loans 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 Loan to be evidenced
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thereby and otherwise on such terms as were agreed to for such Competitive Bid
Loan in accordance with Section 2.03, and (iii) on the date of such Competitive
Bid Borrowing the following statements shall be true (and each of the giving of
the applicable Notice of Competitive Bid Borrowing and the acceptance by the
Borrower requesting such Competitive Bid Borrowing of the proceeds of such
Competitive Bid Borrowing shall constitute a representation and warranty by such
Borrower that on the date of such Competitive Bid Borrowing such statements are
true):
(a) the representations and warranties contained in Section
4.01 (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f) thereof (other than clause
(ii) thereof)) are correct in all material respects 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 Letter are correct in all
material respects 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,
(b) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a
result of which the information concerning such Borrower that has been
provided to the Agent and each Lender by such Borrower in connection
herewith would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made,
not materially misleading.
SECTION 3.05. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Company,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The
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Agent shall promptly notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers.
Each Borrower represents and warrants as follows:
(a) Each Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
indicated at the beginning of this Agreement. Each Borrower is duly
qualified and in good standing as a foreign corporation authorized to
do business in each jurisdiction (other than the jurisdiction of its
incorporation) in which the nature of its activities or the character
of the properties it owns or leases makes such qualification necessary
and in which the failure so to qualify would have a materially adverse
effect on the financial condition or operations of the Company and its
Subsidiaries taken as a whole.
(b) The execution, delivery and performance by each Borrower
of this Agreement and the Notes of such Borrower are within such
Borrower's corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) such Borrower's charter or
by-laws (or equivalent constitutive documents) or (ii) any law, rule,
regulation or contractual restriction in any material contract or, to
the knowledge of the Chief Financial Officer of the Company, any other
contract the breach of which would limit the ability of any Borrower to
perform its obligations under this Agreement or the Notes, binding on
or affecting any Borrower.
(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 any
Borrower of this Agreement or the Notes.
(d) This Agreement is, and the Notes when delivered hereunder
will be, legal, valid and binding obligations of each Borrower party
thereto enforceable against such Borrower in accordance with their
respective terms.
(e) The Consolidated financial statements of the Company and
its Consolidated Subsidiaries as of December 31, 1995 and the related
Consolidated statements of income, Consolidated balance sheets,
Consolidated statements of shareholders'
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equity and Consolidated statements of cash flows for the fiscal year
then ended, reported on by Ernst & Young and set forth in the Company's
1995 Form 10-K, and the Consolidated financial statements of the
Company and its Consolidated Subsidiaries as of June 28, 1996 and the
related Consolidated statements of income, Consolidated balance sheets,
Consolidated statements of shareholders' equity and Consolidated
statements of cash flows for the six months then ended, duly certified
by the chief financial officer of the Company, a copy of which has been
delivered to each of the Lenders, fairly present, subject, in the case
of said financial statements as at June 28, 1996, to year-end audit
adjustments, in accordance with generally accepted accounting
principles, the consolidated financial position of the Company and its
Consolidated Subsidiaries at such dates and their consolidated results
of operations for the periods ended on such dates. Since December 31,
1995, there has been no material adverse change in the business,
financial position or results of operations of the Company and its
Subsidiaries, taken as a whole.
(f) There is no pending or, to the best of each Borrower's
knowledge, threatened action or proceeding involving any Borrower or
any of its Subsidiaries before any court, governmental agency or
arbitrator, (i) which is likely to materially adversely affect the
financial condition or operations of the Company and its Subsidiaries
taken as a whole or (ii) which purports to affect the legality,
validity or enforceability of this Agreement or any Note.
(g) No proceeds of any Loan will be used to acquire any equity
security of a class which is registered pursuant to Section 12 of the
Securities Exchange Act of 1934, other than immaterial quantities of
equity securities held in the investment portfolio of a Person whose
stock is acquired with the proceeds of such Loan.
(h) No Borrower is engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U), and no proceeds of any Loan will be used to
purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock.
(i) No Default described in Sections 6.01(g), 6.01(h) or
6.01(i) has occurred and is continuing, or is reasonably expected to
occur within sixty days.
(j) A copy of the Schedule B (Actuarial Information) to the
most recent annual report (Form 5500 Series) of the Company or any
ERISA Affiliate with respect to each Plan has been filed with the
Internal Revenue Service, and each such
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Schedule B fairly presents the funding status and financial condition
of such Plan in all material respects, and since the date of such
Schedule B there has been no material adverse change in such funding
status or financial condition.
(k) No Borrower is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.01. Affirmative Covenants. So long as any Loan shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will, unless the Majority Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations
and orders (including, without limitation, ERISA and the rules and
regulations thereunder and all applicable environmental laws),
noncompliance with which would materially adversely affect the business
or financial condition of the Company and its Consolidated
Subsidiaries, taken as a whole.
(b) Reporting Requirements. Furnish to the Agent on behalf of
the Lenders:
(i) as soon as available and in any event not later
than 55 days after the end of each of the first three quarters
of each fiscal year of the Company, commencing with the fiscal
quarter ending September 27, 1996, Consolidated balance sheets
of the Company and its Consolidated Subsidiaries as of the end
of such quarter, and related Consolidated statements of income
of the Company and its Consolidated Subsidiaries for such
quarter and for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter,
and Consolidated statements of cash flows of the Company and
its Consolidated Subsidiaries for such quarter and for such
period, in each case signed by the chief financial officer of
the Company, together with (A) the representation and warranty
of the Company to the effect that no Default has occurred and
is continuing or, if a Default has occurred and is continuing,
a statement as to the nature thereof and the action which the
Company has taken and proposes to take with respect thereto
and (B) a schedule in form satisfactory to the Majority
Lenders of the computations used by the Company in
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determining compliance with the covenants contained in
Sections 5.02(a) and 5.02(b);
(ii) as soon as available and in any event not later
than 110 days after the end of each fiscal year of the
Company, a copy of the annual report for such year for the
Company and its Consolidated Subsidiaries, containing the
Consolidated financial statements for such fiscal year with a
report thereon by Ernst & Young or other independent public
accountants acceptable to the Majority Lenders stating that
such Consolidated financial statements fairly present the
Consolidated financial position of the Company and its
Consolidated Subsidiaries as at the date indicated and the
Consolidated results of their operations and cash flows for
the period indicated in conformity with generally accepted
accounting principles applied on a consistent basis (except
for changes required by the accounting profession or changes
concurred in by the Company's independent public accountants)
and that the audit by such accountants in connection with such
Consolidated financial statements has been made in accordance
with generally accepted auditing standards, together with (A)
the representation and warranty of the Company to the effect
that no Default has occurred and is continuing or, if an Event
of Default or Default has occurred and is continuing, a
statement as to the nature thereof and the action which the
Company has taken and proposes to take with respect thereto
and (B) a schedule in form satisfactory to the Majority
Lenders of the computations used by the Company in determining
compliance with the covenants contained in Sections 5.02(a)
and 5.02(b);
(iii) as soon as possible and in any event within
five days after the chief financial officer of the Company has
knowledge of the occurrence of each Default continuing on the
date of such statement, a statement of such chief financial
officer setting forth details of such Default and the action
which the Company has taken and proposes to take with respect
thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports which the Company sends to its security
holders (other than reports furnished only to The Coca Cola
Company), and copies of all reports and registration
statements which become effective which the Company or any
Subsidiary files with the Securities and Exchange Commission
or any national securities exchange;
(v) as soon as possible and in any event (A) within
60 Business Days after the Company or any ERISA Affiliate
knows or has reason to know that any Termination Event
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described in clause (i) of the definition of Termination Event
with respect to any Plan has occurred and (B) within 30
Business Days after the Company or any ERISA Affiliate knows
or has reason to know that any other Termination Event with
respect to any Plan has occurred, a statement of the chief
financial officer of the Company describing such Termination
Event and the action, if any, which the Company or such ERISA
Affiliate proposes to take with respect thereto;
(vi) promptly and in any event within six Business
Days after receipt thereof by the Company or any ERISA
Affiliate, copies of each notice received by the Company or
any ERISA Affiliate from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to
administer any Plan;
(vii) promptly and in any event within thirty
Business Days after receipt thereof by the Company or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, a
copy of each notice received by the Company or any ERISA
Affiliate concerning (A) the imposition of Withdrawal
Liability by a Multiemployer Plan, (B) the determination that
a Multiemployer Plan is, or is expected to be, in
reorganization within the meaning of Title V of ERISA, (C) the
termination of a Multiemployer Plan within the meaning of
Title IV of ERISA, or (D) the amount of liability incurred, or
expected to be incurred, by the Company or any ERISA Affiliate
in connection with any event described in clause (A), (B) or
(C) above;
(viii) promptly after the preparation thereof, if
any, annual financial statements of each of the Borrowers
other than the Company; and
(ix) such other information respecting the condition
or operations, financial or otherwise, of the Company or any
of its Subsidiaries as any Lender through the Agent may from
time to time reasonably request.
(c) Maintenance of Properties, Etc. Cause all properties used
or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and
working order and cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried
on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section 5.01(c)
shall prevent the Company or any Subsidiary from discontinuing the
operation or maintenance of any of such properties if such
discontinuance is not materially adverse to the Lenders and,
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in the judgment of the Company, is desirable in the conduct of its
business or the business of any Subsidiary.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Company or such Subsidiary operates, provided that the Company may
self-insure, or insure through captive insurers or insurance
cooperatives, to the extent consistent with prudent business practices.
(e) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a lien or encumbrance upon its
property; provided, however, that neither the Company nor any of its
Subsidiaries shall be required to pay and discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained in accordance with GAAP, unless and until any lien or
encumbrance resulting therefrom attaches to its property and becomes
enforceable against its other creditors.
(f) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence; provided, however, that the Company and its
Subsidiaries may consummate any merger or consolidation permitted under
Section 5.02(c).
(g) Rating Agencies. Maintain ratings of its commercial paper
by not fewer than three Rating Agencies.
SECTION 5.02. Negative Covenants. So long as any Loan shall
remain unpaid or any Lender shall have any Commitment hereunder, the Company
will not, without the written consent of the Majority Lenders:
(a) Liens, Etc. Create, incur, issue, assume or guarantee, or
permit any Restricted Subsidiary to create, incur, issue, assume or
guarantee, any Secured Debt. The term "Secured Debt" means notes,
bonds, debentures or other similar evidences of indebtedness for money
borrowed secured by any Mortgage. The term "Mortgage" or "Mortgages"
means any mortgage, pledge, lien, security interest or other
encumbrances upon any Principal Property or on any shares of stock or
indebtedness of any Restricted Subsidiary (whether
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such Principal Property, shares of stock or indebtedness are now owned
or hereafter acquired). "Restricted Subsidiary" means any Subsidiary
which owns or is the lessee of any Principal Property. "Principal
Property" means each bottling plant or facility; except any such
bottling plant or facility which the Board of Directors of the Company
by resolution reasonably determines not to be of material importance to
the total business conducted by the Company and its Restricted
Subsidiaries. The foregoing restrictions shall not apply to:
(1) Mortgages on property, shares of stock or
indebtedness of any corporation existing at the time such
corporation becomes a Restricted Subsidiary;
(2) Mortgages on property or shares of stock existing
at the time of acquisition of such property or stock by the
Company or a Restricted Subsidiary or existing as of June 28,
1996;
(3) Mortgages to secure the payment of all or any
part of the price of acquisition, construction or improvement
of such property or stock by the Company or a Restricted
Subsidiary, or to secure any Secured Debt incurred by the
Company or a Restricted Subsidiary, prior to, at the time of,
or within 90 days after the later of the acquisition or
completion of construction (including any improvements on an
existing property), which Secured Debt is incurred for the
purpose of financing all or any part of the purchase price
thereof or construction of improvements thereon; provided,
however, that, in the case of any such acquisition,
construction or improvement, the Mortgage shall not apply to
any property theretofore owned by the Company or a Restricted
Subsidiary, other than, in the case of any such construction
or improvement, any theretofore substantially unimproved real
property on which the property or improvement so constructed
is located;
(4) Mortgages securing Secured Debt of a Restricted
Subsidiary owing to Company or to another Restricted
Subsidiary;
(5) Mortgages on property of a corporation existing
at the time such corporation is merged into or consolidated
with the Company or a Restricted Subsidiary or at the time of
a sale, lease or other disposition of the properties of a
corporation or firm as an entirety or substantially as an
entirety to the Company or a Restricted Subsidiary;
(6) Mortgages on property of the Company or a
Restricted Subsidiary in favor of the United States of
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America or any state thereof, or any department, agency or
instrumentality or political subdivision of the United States
of America or any state thereof, or in favor of any other
country or any political subdivision thereof, or any
department, agency or instrumentality of such country or
political subdivision, to secure partial progress, advance or
other payments pursuant to any contract or statute or to
secure any indebtedness incurred for the purpose of financing
all or any part of the purchase price or the cost of
construction of the property subject to such Mortgages; or
(7) any extension, renewal or replacement (or
successive extensions, renewals or replacements) in whole or
in part of any Mortgage referred to in the foregoing clauses
(1) through (6), inclusive, provided, however, that the
principal amount of Secured Debt secured thereby shall not
exceed the principal amount of Secured Debt so secured at the
time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or a
part of the property which secured the Mortgage so extended,
renewed or replaced (plus improvements and construction on
such property).
Notwithstanding the foregoing provisions of this Section 5.02(a), the
Company and any one or more Restricted Subsidiaries may create, incur,
issue, assume or guarantee Secured Debt secured by a Mortgage which
would otherwise be subject to the foregoing restrictions in an
aggregate amount which, together with all other Secured Debt of the
Company and its Restricted Subsidiaries which (if originally created,
incurred, issued, assumed or guaranteed at such time) would otherwise
be subject to the foregoing restrictions (not including Secured Debt
permitted to be secured under clauses (1) through (7) above), does not
at the time exceed 15% of the shareholders' equity of the Company and
its Consolidated Subsidiaries as shown on the financial statements of
the Company as of the end of the fiscal year preceding the date of
determination.
(b) Leverage Ratio. Permit Consolidated Debt less Cash to be
at any time more than 75% of Total Capital, where "Cash" means cash and
cash equivalents and interest bearing assets with maturities of one
year or less; and "Total Capital" means the sum of Shareholders'
Equity, Deferred Income Taxes and Consolidated Debt less Cash. All such
terms shall be as they appear on the Company's published Consolidated
financial statements and calculated under the generally accepted
accounting principles and practices applied by the Company on the date
hereof in the preparation of its Consolidated financial statements.
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(c) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
its assets (whether now owned or hereafter acquired) to, any Person, or
permit any of its Subsidiaries to do so, except that (i) any Subsidiary
of the Company may merge or consolidate with or into, or dispose of
assets to, any other Subsidiary of the Company and (ii) any Subsidiary
of the Company may merge into or dispose of assets to the Company or
any other Person, provided in each case that, immediately after giving
effect to such proposed transaction, no Default would exist, and, in
the case of any such merger to which the Company is a party the Company
is the surviving corporation.
(d) Affiliate Transactions. Engage in, or permit any of its
Subsidiaries to engage in any transaction (other than transactions
between the Company and any Subsidiary or between Subsidiaries of the
Company) involving payments, or property having a fair market value, in
excess of $30,000,000 with The Coca Cola Company or any Person
controlling, controlled by, or under common control with the Company,
on terms less favorable to it or such Subsidiary than would be
available in an arms' length transaction with an unrelated Person.
(e) Compliance with ERISA. Terminate, or permit any ERISA
Affiliate to terminate, any Plan so as to result in any liability of
the Company or any ERISA Affiliate to the PBGC in excess of
$15,000,000, or permit to exist an event or condition which reasonably
presents a material risk of a termination by the PBGC of any Plan with
respect to which the Company or any ERISA Affiliate would, in the event
of such termination, incur liability to the PBGC in excess of
$15,000,000.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) any Borrower shall fail to pay any principal of any Note
when the same becomes due and payable, or shall fail to pay any
interest on any Note or any fees or other amounts payable hereunder for
a period of five days after the same becomes due and payable; or
(b) any representation or warranty made or deemed (under
Section 3.03 or 3.04) to have been made by any Borrower (or any of its
officers) in connection with this Agreement, or by
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any Designated Subsidiary in the Designation Letter pursuant to which
such Designated Subsidiary became a Borrower hereunder, shall prove to
have been incorrect or misleading in any material respect when made or
deemed to have been made; or
(c) the Company shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.01(b)(iii), (v), (vi) or
(vii) or 5.02 provided that any such failure with respect to Section
5.01(b)(vii) shall be an Event of Default under this clause (i) only if
the amount of liability incurred or expected to be incurred by the
Company or any ERISA Affiliate exceeds $25,000,000, or (ii) any other
term, covenant or agreement contained in this Agreement on its part to
be performed or observed if such failure shall remain unremedied for 30
days after written notice thereof shall have been given to the Company
by the Agent or any Lender; or
(d) there shall be a default under any bond, debenture, note
or other evidence of indebtedness for borrowed money or under any
mortgage, indenture or other instrument under which there may be issued
or by which there may be secured or evidenced any indebtedness for
borrowed money by the Company or any Subsidiary or under any guarantee
of payment by the Company or any Subsidiary of indebtedness for
borrowed money, whether such indebtedness or guarantee now exists or
shall hereafter be incurred or created (but excluding Indebtedness
evidenced by the Notes), and (i) with respect to a payment default, as
a result of such payment default such indebtedness has, by acceleration
or otherwise under the terms of such bond, debenture, note, mortgage,
indenture, guarantee or payment or such other evidence of indebtedness,
become due prior to its stated maturity or the effect of such payment
default is to permit such bond, debenture, note, mortgage, indenture,
guarantee or payment or such other evidence of indebtedness, to become
due prior to its stated maturity, or (ii) with respect to any default
other than a payment default, as a result of such default such
indebtedness has, by acceleration or otherwise under the terms of such
bond, debenture, note, mortgage, indenture, guarantee of payment or
such other evidence of indebtedness, becomes due prior to its stated
maturity and such default continues for a period of four Business Days
after the date upon which such indebtedness has become due prior to its
stated maturity (and, with respect to any guarantee, such default
continues for a period of four Business Days after the Company has
received written demand for payment under any such guarantee);
provided, however, that no default under this Section 6.01(d) shall
exist if all such defaults do not relate to such indebtedness or
guarantees with an aggregate principal amount in excess of $50,000,000;
or
(e) the Company or any Subsidiary pursuant to or within the
meaning of any Bankruptcy Law: (i) commences a voluntary
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case; (ii) consents to the entry of an order for relief against it in
an involuntary case; (iii) consents to the appointment of a Custodian
of it or for all or substantially all of its property; (iv) makes a
general assignment for the benefit of creditors; (v) a court of
competent jurisdiction enters an order or decree under any Bankruptcy
Law that (A) is for relief against the Company or any Subsidiary in an
involuntary case, (B) appoints a Custodian of the Company or any
Subsidiary or for all or substantially all of its property, or (C)
orders the liquidation of the Company or any Subsidiary, and the order
or decree remains unstayed and in effect for 45 days; (vi) is the
subject of an involuntary case which is not dismissed within 45 days
after the filing thereof; (vii) fails to pay its debts generally as
they become due or admits in writing its inability to pay its debts
generally as they become due; or (viii) takes any corporate action to
authorize the Company's taking of any of the actions set forth in
clauses (i), (ii), (iii) or (iv) above. "Bankruptcy Law" means Title
11, U.S. Code or any similar federal or state law for the relief of
debtors. The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law; or
(f) any judgment or order for the payment of money in excess
of $50,000,000 shall be rendered against the Company or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided, however, that any such
judgment or order shall not be an Event of Default under this Section
6.01(f) if and for so long as (i) the amount of such judgment or order
is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such
insurer has been notified of, and has not denied the claim made for
payment of, the amount of such judgment or order; or
(g) any Termination Event with respect to a Plan shall have
occurred and the sum (determined as of the date of occurrence of such
Termination Event) of the Insufficiency of such Plan and the
Insufficiency of any and all other Plans with respect to which a
Termination Event shall have occurred and then exist (or in the case of
a Multiple Employer Plan with respect to which a Termination Event
shall have occurred and then exist, the liability of the Company or any
ERISA Affiliate related to such Termination Event) is equal to or
greater than $30,000,000; or
(h) the Company or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has
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incurred Uncontested Withdrawal Liability to such Multiemployer Plan in
an amount which, when aggregated with all other amounts required to be
paid to Multiemployer Plans in connection with Uncontested Withdrawal
Liabilities (determined as of the date of such notification), exceeds
$50,000,000 or requires payments exceeding $5,000,000 per annum; or
(i) the Company or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, if solely as a result of such reorganization or
termination the aggregate annual contributions of the Company and its
ERISA Affiliates to all Multiemployer Plans which are then in
reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the immediately
preceding plan years of the respective plans by an amount exceeding
$5,000,000; or
(j) any provision of Article VII hereof shall for any reason
cease to be valid and binding on or enforceable against the Company or
the chief financial officer of the Company shall so state in writing by
reference to this Section;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Majority Lenders, by notice to the Borrowers, declare the
obligation of each and every Lender to make Loans to be terminated, whereupon
the same shall forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Majority Lenders, by notice to the Borrowers, declare all
Notes, all interest thereon and all other amounts payable under this Agreement
to be forthwith due and payable, whereupon the Notes, all such interest and all
such amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrowers; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to any Borrower under any
Bankruptcy Law, (A) the obligation of each Lender to make Loans shall
automatically be terminated and (B) the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrowers.
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee. For valuable
consideration, receipt whereof is hereby acknowledged, and to
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induce each Lender to make Loans to the Designated Subsidiaries and to induce
the Agent to act hereunder, the Company hereby unconditionally and irrevocably
guarantees to each Lender and the Agent the punctual payment when due, whether
at stated maturity, by acceleration or otherwise, of all obligations of each of
the other Borrowers now or hereafter existing under this Agreement, whether for
principal, interest, fees, expenses or otherwise (such obligations being the
"Obligations"). Without limiting the generality of the foregoing, the Company's
liability shall extend to all amounts that constitute part of the Obligations
and would be owed by any other Borrower to the Agent or any other Lender under
this Agreement but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding involving
any such other Borrower.
SECTION 7.02. Guarantee Absolute. The Company 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 any Lender or
the Agent with respect thereto. The obligations of the Company under this
Article VII are independent of the Obligations, and a separate action or actions
may be brought and prosecuted against the Company to enforce this Article VII,
irrespective of whether any action is brought against any other Borrower or
whether any other Borrower is joined in any such action or actions. The
liability of the Company under this guarantee shall be irrevocable absolute and
unconditional irrespective of, and the Company hereby irrevocably waives any
defenses it may now or hereafter have in any way relating to, any or all of the
following:
(a) any lack of validity or enforceability of this Agreement
or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to departure from this Agreement
(including, without limitation, any Commitment extension pursuant to
Section 9.09);
(c) any taking, exchange, release or non-perfection of any
collateral or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the
Obligations;
(d) any change, restructuring or termination of the corporate
structure or existence of any other Borrower; or
(e) any other circumstance, (including, without limitation,
any statute of limitations to the fullest extent permitted by
applicable law) which might otherwise constitute
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a defense available to, or a discharge of, the Company, any other
Borrower or a guarantor.
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 any of the Lenders or the Agent upon the insolvency,
bankruptcy or reorganization of any other Borrower or otherwise, all as though
such payment had not been made.
SECTION 7.03. Waivers. (a) The Company hereby expressly waives
promptness, diligence, notice of acceptance, presentment, demand for payment,
protest, any requirement that any right or power be exhausted or any action be
taken against any other Borrower or against any other guarantor of all or any
portion of the Loans, and all other notices and demands whatsoever.
(b) The Company hereby waives any right to revoke this
guaranty, and acknowledges that this guaranty is continuing in nature and
applies to all Obligations, whether existing now or in the future.
(c) The Company acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated herein
and that the waivers set forth in this Article VII are knowingly made in
contemplation of such benefits.
(d) The Company agrees that payments made by it pursuant to
this Article VII will be subject to the provisions of Section 2.13 and Section
9.13 as if such payments were made by the Company in its capacity as a Borrower.
SECTION 7.04. Subrogation. The Company will not exercise any
rights that it may now or hereafter acquire against any other Borrower, any
Designated Subsidiary or any other insider guarantor that arise from the
existence, payment, performance or enforcement of the Obligations under 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 the Agent or any other Lender against
another Borrower or any other insider guarantor or any collateral, whether or
not such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from
another Borrower or any other insider guarantor, directly or indirectly, in cash
or other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Obligations
and all other amounts payable under this guaranty shall have been paid in full
in cash and the Commitments shall have expired or terminated. If any amount
shall be paid to the Company in violation of the preceding sentence at
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any time prior to the later of the payment in full in cash or immediately
available funds 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 the Agent and the other Lenders and shall forthwith be paid to the
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, or to be held as collateral for any Obligations or
other amounts payable under this guaranty thereafter arising. If (i) the Company
shall make payment to the Agent or any other Lender of all or any part of the
Obligations, (ii) all the Obligations and all other amounts payable under this
guaranty shall be paid in full in cash and (iii) the Termination Date shall have
occurred, the Agent and the other Lenders will, at the Company's request and
expense, execute and deliver to the Company appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to the Company of an interest in the Obligations
resulting from such payment by the Company. The Company acknowledges that it
will receive direct and indirect benefits from the financing arrangements
contemplated by this Agreement and that the waiver set forth in this section is
knowingly made in contemplation on such benefits.
SECTION 7.05. Survival. This guaranty is a continuing
guarantee 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 the Company, its successors and
assigns, (c) inure to the benefit of and be enforceable by each Lender
(including each assignee Lender pursuant to Section 9.07) and the Agent and
their respective successors, transferees and assigns and (d) shall be reinstated
if at any time any payment to a Lender or the Agent hereunder is required to be
restored by such Lender or the Agent. Without limiting the generality of the
foregoing clause (c), each Lender may assign or otherwise transfer its interest
in any Loan to any other Person, and such other Person shall thereupon become
vested with all the rights in respect thereof granted to such Lender herein or
otherwise.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. (a) Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or
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collection of the Notes), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however, that the
Agent shall not be required to take any action that exposes the Agent to
personal liability or that is contrary to this Agreement or applicable law. The
Agent agrees to give to each Lender prompt notice of each notice given to it by
any Borrower pursuant to the terms of this Agreement.
(b) Each Lender hereby also appoints and authorizes Citibank
to act as the US Sub-Agent hereunder and to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the US SubAgent under Section 2.02 or as are otherwise from time to
time delegated thereto by the Agent, together with such powers and discretions
as are reasonably incidental thereto. In such capacity, the US Sub-Agent shall
be entitled to the benefits of all of the provisions of this Article VIII
(including, without limitation, Section 8.05) as if such provisions were set
forth in full herein with respect thereto.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (a) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 9.07; (b) may consult with legal counsel (including counsel for the
Company), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (c)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (d) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of any Borrower
or to inspect the property (including the books and records) of any Borrower;
(e) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (f) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or
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writing (which may be by telecopier, telegram or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 8.03. Citibank International and Affiliates. With
respect to its Commitment, the Loans made by it and the Note issued to it,
Citibank International shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not
the Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly
indicated, include Citibank International in its individual capacity. Citibank
International and its Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, the Company, any of its
Subsidiaries and any Person who may do business with or own securities of the
Company or any such Subsidiary, all as if Citibank International were not the
Agent and without any duty to account therefor to the Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01(e) and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to indemnify
the Agent (to the extent not reimbursed by a Borrower), ratably according to the
respective principal amounts of the Syndicated Notes then held by each of them
(or if no Syndicated Notes are at the time outstanding, ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the Agent under
this Agreement, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this
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Agreement, to the extent that the Agent is not reimbursed for such expenses by a
Borrower.
SECTION 8.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Company and may be
removed at any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Agent which, so long as no Default shall have occurred and be
continuing, shall be subject to the Company's approval, which approval shall not
be unreasonably withheld or delayed. If no successor Agent shall have been so
appointed by the Majority Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of resignation or the
Majority Lenders' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be a commercial
bank organized under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $500,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 8.07. Co-Agents. Bank of America NT&SA, Deutsche Bank
AG, New York Branch, NationsBank, N.A. and Union Bank of Switzerland have been
designated as Co-Agents under this Agreement, but the use of such title does not
impose on any of them any duties or obligations greater than those of any other
Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Syndicated Notes, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Majority Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders affected
thereby, do any of the following: (a) waive any of the conditions specified in
Section 3.01, (b) increase the Commitments of the Lenders or subject the Lenders
to any additional obligations, (c) reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, (d) postpone any
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date fixed for any payment of principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, (e) release the Company from any of its
obligations under Article VII, (f) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Loans, or the number of Lenders,
that shall be required for the Lenders or any of them to take any action
hereunder or (g) amend this Section 9.01; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Agent under this Agreement or any Note.
SECTION 9.02. Notices, Etc. (a) All notices and other
communications provided for hereunder shall be in writing (including telex,
facsimile or similar communication) and mailed (return receipt requested) or
delivered, if to any Initial Borrower or to any Designated Subsidiary, at the
Company's address at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 00, Xxxxxxx, Xxxxxxx 00000,
Attention: Treasury Services; 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 the Agent, at its address at 0xx
Xxxxx Xxxxxxxxx House, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx XX00 0XX,
Attention: Loans Agency Department; and if to the US Sub-Agent, at its address
at Xxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxx 0, Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000,
Attention: Mr. Xxxxxxx Xxxxxx, Bank Loan Syndication Department; or, as to any
Borrower or the Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Company and the Agent. All such notices and communications shall be
effective (i) if given by telex, when such telex is transmitted to the
applicable telex number and the appropriate answerback is received, (ii) if
given by facsimile, when such facsimile is transmitted to the applicable
facsimile number and telephonic confirmation is received, (iii) if given by
mail, five Business Days after such communication is deposited in the mails with
first class postage prepaid addressed as aforesaid or (iv) if given by any other
means, when delivered at the appropriate address, except that notices and
communications to the Agent or the US Sub-Agent pursuant to Article II, III or
VIII shall not be effective until received by the Agent. Any notice, request or
other communication given by facsimile shall also be given by personal delivery
or by mail, but such notice, request or other communication given by facsimile
shall be effective as set forth in clause (ii) above. Delivery by facsimile of
an executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
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(b) Notwithstanding anything to the contrary contained in this
Agreement or any Note, (i) any notice to the Borrowers or to any one of them
required under this Agreement or any such Note that is delivered to the Company
shall constitute effective notice to the Borrowers or to any such Borrower,
including the Company and (ii) any Notice of Borrowing may be delivered by any
Borrower or by the Company, on behalf of any other Borrower. Each Initial
Borrower (other than the Company) and each Designated Subsidiary hereby
irrevocably appoints the Company as its authorized agent to receive and deliver
notices in accordance with this Section 9.02, and hereby irrevocably agrees that
(A) in the case of clause (i) of the immediately preceding sentence, the failure
of the Company to give any notice referred to therein to any such Initial
Borrower or any such Designated Subsidiary, as the case may be, to which such
notice applies shall not impair or affect the validity of such notice with
respect thereto and (B) in the case of clause (ii) of the immediately preceding
sentence, the delivery of any such notice by the Company, on behalf of any other
Borrower, shall be binding on such other Borrower to the same extent as if such
notice had been executed and delivered directly by such Borrower.
SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Company shall pay
(i) all reasonable out-of-pocket expenses of the Agent, including fees and
disbursements of special counsel for the Agent, in connection with the
preparation, execution and delivery of this Agreement, review or preparation of
any waiver or consent hereunder or any amendment hereof or any Default or
alleged Default hereunder and (ii) if an Event of Default occurs, all reasonable
out-of-pocket expenses incurred by the Agent, the US Sub-Agent and the Lenders,
including fees and disbursements of counsel (or the reasonable allocable costs
and disbursements of any Lender's in-house counsel), in connection with such
Event of Default and collection and other enforcement proceedings resulting
therefrom.
(b) The Company agrees to indemnify and hold harmless the
Agent, the US Sub-Agent and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense
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in connection therewith) the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the Loans,
except to the extent such claim, damage, loss, liability or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 9.04(b) applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by any
Borrower, its directors, shareholders or creditors or an Indemnified Party or
any other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. Each
Borrower also agrees not to assert any claim against the Agent, the US
Sub-Agent, any Lender, any of their Affiliates, or any of their respective
directors, officers, employees, attorneys and agents, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the Loans.
(c) If any Borrower makes any payment of principal with
respect to any Eurocurrency Rate Loan or LIBO Rate Loan (pursuant to Section
2.03(d), 2.05(b), 2.09 (a) or (b), 2.11, acceleration of the maturity of the
Notes pursuant to Section 6.01 or otherwise) on any day other than the last day
of the Interest Period applicable thereto, or if any Borrower fails to borrow
any Eurocurrency Rate Loans or LIBO Rate Loans after notice has been given to
the Agent in accordance with Section 2.02 or 2.03, such Borrower shall reimburse
each Lender on demand for any resulting loss or expense incurred by it (or by an
existing or prospective participant in the related Loan), including (without
limitation) any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period after any such
payment or failure to borrow, provided that such Lender shall have delivered to
the Company a certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error, and provided
further that in cases where a Lender has granted a participation in a Loan, the
aggregate amount of losses and expenses demanded by such Lender shall not exceed
the aggregate amount of losses and expenses that such Lender would have incurred
had it not granted such participation.
(d) Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in Sections 2.10, 2.13 and 9.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes
and the termination in whole of the Commitments hereunder; provided, however,
that the obligations of the Borrowers contained in Sections 2.10, 2.13 and 9.04
shall terminate upon the third anniversary of the later of such payment and
termination of the
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Commitments except to the extent of any claims that have not been fully
satisfied in accordance with the terms of such Sections; and provided, further,
that each Lender and the Agent (as the case may be) agrees to make written
demand upon the applicable Borrower no later than six months after such Lender
or the Agent (as the case may be) receives actual knowledge of the event giving
rise to a claim under Sections 2.10, 2.13 and 9.04 and its effect upon this
Agreement and if such Lender or the Agent fails to give such notice within such
time limitation, such Borrower shall have no obligation to pay any amount
thereunder arising prior to the 180th day preceding such demand.
SECTION 9.05. Right of Set-off; Sharing of Payments. (a) 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
6.01 to authorize the Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates 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 or such Affiliate to or for the credit or the account
of any Borrower against any and all of the obligations of such Borrower now or
hereafter existing under this Agreement and the Note of such Borrower held by
such Lender, whether or not such Lender shall have made any demand under this
Agreement or such Note and although such obligations may be unmatured. Each
Lender agrees promptly to notify the relevant Borrower after any such set-off
and application, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
(b) Each Lender agrees that if it shall, by exercising any
right of set-off or counterclaim or otherwise, receive payment of a proportion
of the aggregate amount of principal and interest due with respect to any Note
held by it which is greater than the proportion received by any other Lender in
respect of the aggregate amount of principal and interest due with respect to
any Note held by such other Lender (a "non-pro rata payment"), the Lender
receiving such non-pro rata payment shall promptly purchase such participations
in the Notes held by the other Lenders, and such other adjustments shall be
made, as may be required so that all such non-pro rata payments shall be shared
by the Lenders (i) pro rata in accordance with the principal amounts of their
Notes (other than Competitive Bid Notes) to the extent that such non-pro rata
payment does not exceed the aggregate amount of principal and interest due with
respect to such Notes and (ii) pro rata in accordance with the principal amount
of their Competitive Bid
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Notes, to the extent that such non-pro rata payment exceeds the amount referred
to in clause (i); provided that nothing in this Section shall impair the right
of any Lender to exercise any right of set-off or counterclaim it may have and
to apply the amount subject to such exercise to the payment of indebtedness of
the Borrowers other than its indebtedness under the Notes. Each Borrower agrees,
to the fullest extent it may effectively do so under applicable law, that any
holder of a participation in a Note, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off or counterclaim and other
rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of such Borrower in the amount of such
participation. Each Lender receiving any non-pro rata payment shall notify the
Agent, the Company and the other Lenders of such payment within five Business
Days after receipt.
SECTION 9.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by each Initial Borrower and the Agent and when the
Agent shall have been notified by each Initial Lender that such Initial Lender
has executed it and thereafter shall be binding upon and inure to the benefit of
each Borrower, the Agent, the US Sub-Agent and each Lender and their respective
successors and assigns, except that no Borrower shall have the right to assign
its rights hereunder or any interest herein without the prior written consent of
the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender
may assign, with the consent, not to be unreasonably withheld, of the Agent and
the Company, to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Syndicated Loans owing to it and the Syndicated
Note or Notes held by it); provided, however, that (i) each such assignment
shall be of a constant, and not a varying, percentage of all rights and
obligations under this Agreement (other than any right to make Competitive Bid
Loans, Competitive Bid Loans owing to it and Competitive Bid Notes), (ii) except
in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than the lesser of (x) $20,000,000 or an integral multiple of
$1,000,000 in excess thereof or (y) an amount equal to the product of
$20,000,000 and a fraction the numerator of which is such Lender's Commitment
and the denominator of which is the sum of such Lender's Commitment and the
"Commitment" of such Lender under the $1,000,000,000 364-Day Credit Agreement
dated as of November 4, 1996 (the "364-Day Credit Agreement") among the Company,
the lenders and co-agents parties
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thereto and Citibank, as agent, provided that contemporaneously with such
assignment, such Lender shall assign to such assignee an amount of such Lender's
"Commitment" under the 364-Day Credit Agreement equal to the excess of
$20,000,000 over the amount described in this clause (y), (iii) each such
assignment shall be to an Eligible Assignee and (iv) the parties to each such
assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any
Syndicated Note subject to such assignment and a processing and recordation fee
of $3,500. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Company or the performance or observance by the Borrowers of any of their
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, the US Sub-Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent and the US
Sub-Agent to take such action as agent on its behalf and to exercise such powers
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and discretion under this Agreement as are delegated to the Agent and the US
Sub-Agent, respectively, by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Syndicated Note or Notes subject to such assignment,
the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Company and each other Borrower. Within
five Business Days after its receipt of such notice, each Borrower, at its own
expense, shall execute and deliver to the Agent in exchange for the surrendered
Syndicated Note made by such Borrower a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Syndicated Note to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Syndicated
Note or Notes from each Borrower shall be in an aggregate principal amount equal
to the aggregate principal amount of such surrendered Syndicated Note or Notes,
shall be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A-1 hereto.
(d) The Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes absent manifest error, and the Company,
each other Borrower, the Agent, the US Sub-Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Company, any other Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks
or other entities (other than the Company or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Loans owing to it
and the Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation,
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its Commitment to the Company and the other Borrowers hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall remain
the holder of any such Note for all purposes of this Agreement, (iv) the Company
and each other Borrower, the Agent, the US Sub-Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any consent to any
departure by any Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(f) Any Lender may, in connection with an assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to an existing or proposed assignee or participant any
information relating to the Company or any Borrower furnished to such Lender by
or on behalf of the Company or such Borrower; provided, however, that, prior to
any such disclosure, the existing or proposed assignee or participant shall
agree to preserve the confidentiality of any Confidential Information relating
to the Company or any Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may, without consent of the Company or the Agent, (i) at
any time create a security interest in all or any portion of its rights under
this Agreement (including, without limitation, the Loans owing to it and the
Note or Notes held by it) in favor of any Federal Reserve Bank in accordance
with Regulation A of the Board of Governors of the Federal Reserve System and
(ii) assign, with notice to the Company and the Agent, all or part of its rights
or obligations under this Agreement to any of its Affiliates or any other
Lender.
SECTION 9.08. Designated Subsidiaries. The Company may at any
time, and from time to time, by delivery to the Agent of a Designation Letter
duly executed by the Company and the respective Subsidiary and substantially in
the form of Exhibit 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 obligations of a Borrower hereunder. The Agent
shall promptly notify each Lender of each such designation by the Company and
the identity of the respective Subsidiary.
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SECTION 9.09. Commitment Extension. The Company shall have the
right to make requests for one-year extensions of the Termination Date; any such
request shall be received by the Agent at least 30 days (but not more than 60
days) prior to any anniversary of the Effective Date. Each such request shall be
irrevocable and binding upon the Borrowers. The Agent shall promptly notify each
Lender of any such request. If a Lender agrees, in its individual and sole
discretion, to so extend its Commitment (an "Extending Lender"), it will notify
the Agent, in writing, of its decision to do so within 30 days after receipt of
such notice from the Agent but in any event, no later than 15 days prior to the
next anniversary of the Effective Date. The Commitment of any Lender that fails
to accept the Company's request for extension of the Termination Date (a
"Declining Lender") shall be terminated on the Termination Date originally in
effect (without regard to extension by other Lenders). The Company shall have
the right to first, accept from the Extending Lenders increases in their
respective Commitments by an aggregate amount up to the amount of all Declining
Lenders' Commitments and second, to identify Eligible Assignees that agree to
accept assignments of Commitments ("Replacement Lenders") in an amount equal to
the amount of all Declining Lenders' Commitments not otherwise assumed by
Extending Lenders, in each case by requiring each Declining Lender to assign in
full its rights and obligations under this Agreement to one or more Extending
Lenders or Replacement Lenders, provided that (i) such assignment is otherwise
in compliance with Section 9.07, (ii) such Declining Lender receives payment in
full of the principal amount of all Advances owing to such Declining Lender,
together with accrued interest thereon to the date of such payment of principal
and all other amounts payable to such Declining Lender under this Agreement and
(iii) any such assignment shall be effective on the date specified by the
Company and agreed to by the applicable Extending Lenders or Replacement Lenders
and the Agent. If, but only if, Extending Lenders and/or Replacement Lenders
provide Commitments in an aggregate amount equal to 100% of the aggregate amount
of the Commitments outstanding immediately prior to the Termination Date in
effect at the time the Company requests such extension, the Termination Date
shall be extended by one year.
SECTION 9.10. Confidentiality. Neither the Agent nor any
Lender shall disclose any Confidential Information to any other Person without
the consent of the Company, other than (a) to the Agent's, the US Sub-Agent's or
such Lender's Affiliates and their officers, directors, employees, agents and
advisors, and then only for use in connection with the transaction contemplated
by this Agreement and on a "need to know" basis, and, as contemplated by Section
9.07(f), to actual or prospective assignees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or judicial
process and (c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
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SECTION 9.11. Governing Law. This Agreement, each Designation
Letter and the Notes shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 9.12. 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 9.13. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or under
the Notes in Dollars into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Agent
could purchase Dollars with such other currency at Citibank's principal office
in London at 11:00 A.M. (London time) on the Business Day preceding that on
which final judgment is given.
(b) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder or under the Notes in a Primary
Currency into Dollars, the parties agree to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase such Primary
Currency with Dollars at Citibank's principal office in London at 11:00 A.M.
(London time) on the Business Day preceding that on which final judgment is
given.
(c) The obligation of any Borrower in respect of any sum due
from it to any Lender or the Agent hereunder or under a Note held by such Lender
shall, notwithstanding any judgment in a currency other than Dollars, be
discharged only to the extent that on the Business Day following receipt by such
Lender or the Agent (as the case may be) of any sum adjudged to be so due in
such other currency, such Lender or the Agent (as the case may be) may in
accordance with normal banking procedures purchase Dollars with such other
currency; if the Dollars so purchased are less than such sum due to such Lender
or the Agent (as the case may be) in Dollars, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or the Agent (as the case may be) against such loss, and if the Dollars
so purchased exceed such sum due to any Lender or the Agent (as the case may be)
in Dollars, such Lender or the Agent (as the case may be) agrees to remit to
such Borrower such excess.
SECTION 9.14. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for
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itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the Notes, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each Initial Borrower 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 CT
Corporation System at its offices at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(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 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) 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
COCA-COLA ENTERPRISES INC.
S/ XXXXX X. XXXXX
By: ----------------------------
Name: Xxxxx X. Xxxxx
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Title: Vice President and
Treasurer
BOTTLING HOLDINGS (GREAT BRITAIN) LTD.
S/ XXXXX X. XXXXX
By: ----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and
Treasurer
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[THIS PAGE INTENTIONALLY LEFT BLANK]
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CITIBANK INTERNATIONAL PLC,
as Agent
S/ XXXXXXX X. XXXXXX
By: -------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
COMMITMENT: THE LENDERS:
$ 150,000,000.00 CITIBANK, N.A.
S/ XXXXXX X. XXXXXXXX
By:--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Attorney-in-Fact
$ 90,000,000.00 ABN AMRO BANK N.V., ATLANTA AGENCY
S/ XXXXXX XXXXXXX
By: --------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
S/ XXXXX XXXXX
By: ------------------------------
Name: Xxxxx Xxxxx
Title: Group Vice President
$ 127,500,000.00 BANK OF AMERICA NT&SA
S/ XXXXXXXX XXXXXXXX
By: -------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
$ 30,000,000.00 BANK BRUSSELS XXXXXXX,
NEW YORK BRANCH
S/ XXXX XXXXXX
By: --------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
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S/ XXXXXXXX X. X. VANGAEVER
By: --------------------------------
Name: Xxxxxxxx X. X. Vangaever
Title: Senior Vice President,
Credit
$ 90,000,000.00 CIBC INC.
S/ XXXXXXX X. XXXXXXXXX
By: --------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
$ 90,000,000.00 COMMERZBANK AG
S/ X. XXXXXX
By: --------------------------------
Name: X. Xxxxxx
Title: Senior Vice President
S/ X. XXXXXXX
By: --------------------------------
Name: X. Xxxxxxx
Title: Vice President
$ 30,000,000.00 THE DAI-ICHI KANGYO BANK, LTD.,
ATLANTA AGENCY
S/ XXXXXXXX XXXXXXXX
By: -------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Joint General Manager
$ 127,500,000.00 DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
S/ XXXXXXX X. XXXXXXXX
By:--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
S/ XXXX XXXX GOYAL
By:--------------------------------
Name: Xxxx Xxxx Xxxxx
Title: Assistant Vice President
72
76
$ 60,000,000.00 THE FIRST NATIONAL BANK OF CHICAGO
S/ XXXXXX X. XXXXXXX
By:--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Corporate Banking Officer
$ 30,000,000.00 KREDIETBANK N.V.,
GRAND CAYMAN BRANCH
S/ XXXXXX XXXXXXXX
By:--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
S/ XXX X. XXXXX
By:--------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
$ 30,000,000.00 MIDLAND BANK PLC
S/ X. X. HORO
By:--------------------------------
Name: X. X. Horo
Title: Head of Consumer,
$ 127,500,000.00 NATIONSBANK, N.A.
S/ XXXXXX X. X'XXXXX
By:--------------------------------
Name: Xxxxxx X. X'Xxxxx
Title: Senior Vice President
$ 30,000,000.00 THE NORTHERN TRUST COMPANY
S/ XXXX X. XXXXXX
By:--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
73
77
$ 60,000,000.00 SOCIETE GENERALE
S/ XXXXX XXXXX
By:--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President, Manager
$ 90,000,000.00 SUNTRUST BANK, ATLANTA
S/ XXXXXX-XXX X. HATTINK
By:--------------------------------
Name: Xxxxxx-Xxx X. Hattink
Title: Group Vice President
S/ XXXXX X. XXXXXXXX
By:--------------------------------
Name: Xxxxx X. XxXxxxxx
Title:
$ 30,000,000.00 SWISS BANK CORPORATION, NEW YORK
BRANCH
S/ XXXXXX XXXXXXXXXXXXX
By:--------------------------------
Name: Xxxxxx Xxxxxxxxxxxxx
Title: Executive Director,
Credit Risk Management
S/ XXXXX XXXXXXX
By:--------------------------------
Name: Xxxxx Xxxxxxx
Title: Associate Director,
Banking Finance Support, N.A.
$ 90,000,000.00 TEXAS COMMERCE BANK, NATIONAL
ASSOCIATION
S/ XXXX XXXXXXXX
By:--------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
74
78
$ 127,500,000.00 UNION BANK OF SWITZERLAND, NEW YORK BRANCH
S/ XXXXXX X. XXXXX, XX.
By:--------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Managing Director
S/ XXXXXX XXXXXXX
By:--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
$ 90,000,000.00 WACHOVIA BANK OF GEORGIA, N.A.
S/ XXXXXXX X. XXXXXX
By:--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
$ 1,500,000,000.00 Total of the Commitments
75
79
SCHEDULES
Schedule I - List of Applicable Lending Offices
EXHIBITS
Exhibit A-1 -Form of Syndicated Note
Exhibit A-2 -Form of Competitive Bid Note
Exhibit B-1 -Form of Notice of Syndicated Borrowing
Exhibit B-2 -Form of Notice of Competitive Bid Borrowing
Exhibit C -Form of Assignment and Acceptance
Exhibit D -Form of Designation Letter
Exhibit E -Form of Acceptance by Process Agent
Exhibit F -Form of Opinion of Xxxxxx & Xxxxxx, Counsel for the
Company
Exhibit G -Form of Opinion of Counsel to a Designated Subsidiary
76
80
SCHEDULE I
APPLICABLE LENDING OFFICES
Eurocurrency Primary Currency
Name of Initial Lender Domestic Lending Office Lending Office Lending Office
---------------------- ----------------------- -------------- --------------
CITIBANK INTERNATIONAL PLC Xxx Xxxxx Xxxxxx, 0xx Xxxxx Xxxxxxxxx House Xxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxxxxx Xxxx, XX 00000 00 Xxxxxxxxxx Xxxxxx Xxxx Xxxxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx 3rd Floor Attn: Xxxxxxx Xxxxxx
Phone: (000) 000-0000 Xxxxxxxx XX00 0XX Phone: (000) 000-0000
Fax: (000) 000-0000 ENGLAND Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
ABN AMRO BANK N.V., One Ravinia Drive One Ravinia Drive One Ravinia Drive
ATLANTA AGENCY Xxxxx 0000 Xxxxx 0000 Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx Attn: Xxxxxxx Xxxx Attn: Xxxxxxx Xxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone:(000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
BANK BRUSSELS XXXXXXX, 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
XXX XXXX BRANCH 0xx Xxxxx 0xx Xxxxx 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx Attn: Xxxx Xxxxxx Attn: Xxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
XXXX XX XXXXXXX XX&XX 0000 Xxxxxxx Xxxx. 0000 Xxxxxxx Xxxx. 0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx Attn: Xxxxx Xxxxx Attn: Xxxxx Xxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
CIBC, INC. Two Paces West Two Paces West Two Paces West
0000 Xxxxx Xxxxx Xxxx 0000 Xxxxx Xxxxx Xxxx 2727 Paces Ferry Road
Suite 1200 Suite 1200 Suite 1200
Atlanta, GA 30339 Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx Attn: Xxxxx Xxxxx Attn: Xxxxx Xxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
COMMERZBANK AG, Promenade Two Promenade Two Promenade Two
ATLANTA AGENCY 0000 Xxxxxxxxx Xxxxxx, X.X. 0000 Xxxxxxxxx Xxxxxx, X.X. 0000 Xxxxxxxxx Xxxxxx, X.X.
Suite 3500 Suite 3500 Suite 3500
Atlanta, GA 30309 Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx Attn: Xxxxx Xxxxxxx Attn: Xxxxx Xxxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
THE DAI-ICHI KANGYO Marquis Two Tower Marquis Two Tower Marquis Two Tower
BANK, LTD., ATLANTA AGENCY Xxxxx 0000 Xxxxx 0000 Xxxxx 0000
000 Xxxxxxxxx Xxxxxx Ave. 000 Xxxxxxxxx Xxxxxx Xxx. 000 Xxxxxxxxx Xxxxxx Xxx.
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx Attn: Xxxxxxx Xxxxx Attn: Xxxxxxx Xxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
DEUTSCHE BANK A.G., New York Branch Cayman Islands Branch New York Branch NEW
YORK AND/OR CAYMAN 00 Xxxx 00xx Xxxxxx 00 Xxxx 00xx Xxxxxx 00 Xxxx 00xx Xxxxxx
XXXXXXX XXXXXXXX Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx Attn: Xxxxxxx Xxxxxxxxx Attn: Xxxxxxx Xxxxxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
THE FIRST NATIONAL BANK One First National Plaza One First National Plaza One First National Plaza
OF CHICAGO Suite 0634, 1-10 First Xxxxxxx Xxxxx Xxxxx 0000, 0-00
Xxxxxxx, XX 00000 00 Xxxx Xxxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx London, ENGLAND Attn: Xxxxxx Xxxxxxxxx
Phone: (000) 000-0000 Attn: Dot X'Xxxxxxxx Phone: (000) 000-0000
Fax: (000) 000-0000 Phone: (000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
81
KREDIETBANK N.V., 0000 Xxxx Xxxxxxxxx Xxxxxx 0000 Xxxx Xxxxxxxxx Xxxxxx 0000 Xxxx Xxxxxxxxx Xxxxxx
GRAND CAYMAN BRANCH Suite 1750 Suite 1750 Suite 1750
Atlanta, GA 30309 Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx Attn: Xxxx X. Xxxxxxx Attn: Xxxx X. Xxxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
MIDLAND BANK PLC 27-32 Poultry 27-32 Poultry 27-32 Poultry
London EC2P 2BX London EC2P 2BX Xxxxxx XX0X 0XX
XXXXXXX XXXXXXX XXXXXXX
Attn: Xxxxxx Xxxx Attn: Xxxxxx Xxxx Attn: Xxxxxx Xxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
NATIONSBANK, N.A. Independence Center Independence Center Independence Center
15th Floor 15th Floor 15th Floor
000 Xxxxx Xxxxx Xx., 000 Xxxxx Xxxxx Xx., 000 Xxxxx Xxxxx Xx.,
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
THE NORTHERN TRUST 00 XxXxxxx Xxxxxx 00 XxXxxxx Xxxxxx 00 XxXxxxx Xxxxxx
COMPANY Xxxxxxx, XX 00000 Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx Honda Attn: Xxxxx Honda Attn: Xxxxx Honda
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
SOCIETE GENERALE Xxxxxxx Xxxx Center Xxxxxxx Xxxx Center Xxxxxxx Xxxx Center
0000 Xxxx Xxxxxx 2001 Xxxx Avenue 0000 Xxxx Xxxxxx
Xxxxx 0000 Xxxxx 0000 Xxxxx 0000
Xxxxxx, XX 00000 Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxx Attn: Xx. Xxxxx Xxxxx Attn: Xx. Xxxxx Xxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
or or or
(000) 000-0000 (000) 000-0000 (000) 000-0000
SUNTRUST BANK, ATLANTA 00 Xxxx Xxxxx 00 Xxxx Xxxxx 25 Park Plave
23rd Floor 23rd Floor 23rd Floor
Atlanta, GA 30302 Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx XxxXxxxxx Attn: Xxxxx XxxXxxxxx Attn: Xxxxx XxxXxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
SWISS BANK CORPORATION 000 Xxxxxxxx 000 Xxxxxxxx 000 Xxxxxxxx
XXX XXXX XXXXXX Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxx Attn: Xxxx Xxxxx Attn: Xxxx Xxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
TEXAS COMMERCE BANK, 707 Xxxxxx 707 Xxxxxx 707 Xxxxxx
NATIONAL ASSOCIATION X.X. Xxx 0000 X.X. Xxx 0000 X.X. Xxx 0000
Houston, TX 77252-8059 Xxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx Attn: Xxxxx Xxxxxx Attn: Xxxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
UNION BANK OF SWITZERLAND 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
XXX XXXX XXXXXX Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx, Xx. Attn: Xxxxxx Xxxxx, Xx. Attn: Xxxxxx Xxxxx, Xx.
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
XXXXXXXX XXXX XX XXXXXXX, 000 Xxxxxxxxx Xxxxxx, X.X. 000 Xxxxxxxxx Xxxxxx, X.X. 000 Xxxxxxxxx Xxxxxx, X.X.
N.A. Xxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxx Attn: Xxxxxxx Xxxxxx Attn: Xxxxxxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000 Fax: (000) 000-0000
82
EXHIBIT A-1 - FORM OF
SYNDICATED
PROMISSORY NOTE
U.S. $ ..........
Dated: ..............., 199..
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
aggregate principal amount of the Syndicated Loans made by the Lender to the
Borrower pursuant to the Five Year Credit Agreement dated as of November 4, 1996
among the Borrower and certain other borrowers parties thereto, the Lender and
certain other lenders parties thereto, Citibank International plc, as Agent, 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) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount of
each Syndicated Loan from the date of such Syndicated Loan until such principal
amount is paid in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement.
Both principal and interest in respect of each Syndicated Loan (i) in
Dollars are payable in lawful money of the United States of America to Citibank
International plc, as Agent, at its account maintained at Citibank, N.A., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, in same day funds and (ii) in any
Primary Currency are payable in such currency at the applicable Payment Office
in same day funds. Each Syndicated Loan 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 Syndicated 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 Syndicated Loans 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 or the Equivalent
thereof in one or more Primary Currencies, the indebtedness of the Borrower
resulting from each such Syndicated Loan being evidenced by this Promissory
Note, (ii) contains provisions for determining the Dollar Equivalent of
Syndicated Loans denominated in Primary Currencies and (iii) 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.
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.
83
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:
84
LOANS AND PAYMENTS OF PRINCIPAL
========================================================================================================
| | | | | Amount of | | |
| | | Amount of | | Principal | Unpaid | |
| | Type of | Loan in | Interest | Paid | Principal | Notation |
| Date | Loan | Relevant Currency | Rate | or Prepaid | Balance | Made By |
|-------------------------------------------------------------------------------------------------------
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
|------------------------------------------------------------------------------------------------------|
| | | | | | | |
--------------------------------------------------------------------------------------------------------
85
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
Dated: ..............., 199..
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
.......... corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
.......... (the "Lender") for the account of its Applicable Lending Office (as
defined in the Five Year Credit Agreement dated as of November 4, 1996 among the
Borrower and certain other borrowers parties thereto, the Lender and certain
other lenders parties thereto, Citibank International plc, as Agent, 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 ..............., the principal amount of [U.S.$................]
[for a Competitive Bid Loan in a Primary Currency, list currency and amount of
such Loan].
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in full,
at the interest rate and payable on the interest payment date or dates provided
below:
Interest Rate: [...% per annum (calculated on the basis of a
year of ..... days for the actual number of days elapsed)].
Interest Payment Date or Dates: ..............
Both principal and interest are payable in lawful money of
................... to Citibank International plc, as Agent, for the account of
the Lender at the office of ........................., at
......................... in same day funds.
This Promissory Note is one of the Competitive Bid Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, contains provisions for (a) determining
the Dollar Equivalent of Competitive Bid Loans denominated in Primary Currencies
and (b) 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:
86
EXHIBIT B-1 - FORM OF NOTICE OF
SYNDICATED BORROWING
Citibank International plc, as Agent
for the Lenders parties
to the Credit Agreement
referred to below
0xx Xxxxx Xxxxxxxxx House
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx
XX00 0XX
Citibank, N.A., as US Sub-Agent
for said Lenders
Xxx Xxxxx Xxxxxx
0xx Xxxxx, Xxxx 0
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000 [Date]
Attention:
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five Year
Credit Agreement, dated as of November 4, 1996 (as amended or modified from time
to time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain other Borrowers parties
thereto, certain Lenders parties thereto and Citibank International plc, as
Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests a
Syndicated Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Syndicated Borrowing (the "Proposed
Syndicated Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The date of the Proposed Syndicated Borrowing is
................
(ii) The Type of Loans comprising the Proposed Syndicated
Borrowing is [Base Rate Loans] [Eurocurrency Rate Loans].
(iii) The aggregate amount of the Proposed Syndicated
Borrowing is [$...............] [for a Syndicated Borrowing in a
Primary Currency, list currency and amount of Syndicated Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate
Loan made as part of the Proposed Syndicated Borrowing is .....
month[s].]
87
2
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Syndicated 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 (ii) thereof)), are correct in all material
respects, before and after giving effect to the Proposed Syndicated
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date; and
(B) no event has occurred and is continuing, or would result
from such Proposed Syndicated Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
Very truly yours,
[NAME OF BORROWER]
By......................................
Name:
Title:
88
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank International plc, as Agent
for the Lenders parties
to the Credit Agreement
referred to below
0xx Xxxxx Xxxxxxxxx House
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx XX00 0XX
Citibank, N.A., as US Sub-Agent
for said Lenders
Xxx Xxxxx Xxxxxx
0xx Xxxxx, Xxxx 0
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000 [Date]
Attention:
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the Five Year
Credit Agreement, dated as of November 4, 1996 (as amended or modified from time
to time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain other Borrowers parties
thereto, certain Lenders parties thereto and Citibank International plc, as
Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to
Section 2.03 of the Credit Agreement that the undersigned hereby requests a
Competitive Bid Borrowing under the Credit Agreement, and in that connection
sets forth the terms on which such Competitive Bid Borrowing (the "Proposed
Competitive Bid Borrowing") is requested to be made:
(A) Date of Competitive Bid Borrowing ..................
(B) Aggregate Amount of Competitive Bid Borrowing ..................
(C) [Maturity Date] [Interest Period] ..................
(D) Interest Rate Basis ..................
(E) Interest Payment Date(s) ..................
(F) [Currency] ..................
(G) Borrower's Account Location ..................
(H) ................... ..................
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement (except the representations set forth in
the last sentence of subsection (e) thereof and in subsection (f)
thereof (other than clause (ii) thereof)), are correct in all material
respects, 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; and
(B) no event has occurred and is continuing, or would result
from such Proposed Competitive Bid Borrowing or from the application of
the proceeds therefrom, that constitutes a Default.
89
2
The undersigned hereby confirms that the Proposed Competitive
Bid Borrowing is to be made available to it in accordance with Section
2.03(a)(v) of the Credit Agreement.
Very truly yours,
[NAME OF BORROWER]
By...................................
Name:
Title:
90
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated: .............
Reference is made to the Five Year Credit Agreement dated as
of November 4, 1996 (as amended or modified from time to time, the "Credit
Agreement") among Coca-Cola Enterprises Inc., a Delaware corporation (and
together with any Designated Subsidiaries, as defined in the Credit Agreement,
collectively, the "Borrowers"), the Lenders (as defined in the Credit Agreement)
and Citibank International plc, as agent (the "Agent") for the Lenders (as
defined in the Credit Agreement). Terms defined in the Credit Agreement are used
herein with the same meaning.
............ (the "Assignor") and ............ (the
"Assignee") 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 Loans and Competitive Bid
Notes) equal to the percentage interest specified on Schedule 1 hereto of all of
the Assignor's outstanding rights and obligations under the Credit Agreement
(other than in respect of Competitive Bid Loans and Competitive Bid Notes).
After giving effect to such sale and assignment, the Assignee's Commitment and
the amount of the Syndicated Loans in each relevant currency owing to the
Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other instrument or document furnished pursuant thereto
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or the
performance or observance by such Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Syndicated Note held by the Assignor and requests that the
Agent exchange such Syndicated Note for a new Syndicated Note payable to the
order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and, if the assigning Lender has retained a Commitment
hereunder, a new Syndicated Note payable to the order of the Assignor in an
amount equal to the Commitment retained by the Assignor under the Credit
Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01(e) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit
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Agreement as are delegated to the Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (v) agrees that it
will perform in accordance with their terms all of the obligations that by the
terms of the Credit Agreement are required to be performed by it as a Lender;
and (vi) attaches any U.S. Internal Revenue Service forms required under Section
2.13 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement, provided, however,
that the Assignor's rights under Sections 2.10, 2.13 and 9.04 of the Credit
Agreement, and its obligations under Section 8.05 of the Credit Agreement, shall
survive the assignment pursuant to this Assignment and Acceptance as to matters
occurring prior to the Effective Date.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the Credit
Agreement and the Syndicated Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the
Syndicated Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
92
Schedule 1
to
Assignment and Acceptance
Dated:.............
Section 1.
Percentage interest of Assignor's rights assigned: .........%
Assignee's Commitment: $ .........
Section 2.
(a) Assigned Loans
Aggregate outstanding principal amount of Syndicated
Loans in Dollars assigned: $ ..............
Aggregate outstanding principal amount of Syndicated
Loans in lawful money of the Republic of France assigned: FFR..........
Aggregate outstanding principal amount of Syndicated
Loans in lawful currency of the United Kingdom of Great
Britain and Northern Ireland assigned: PS.........
Aggregate outstanding principal amount of Syndicated
Loans in lawful currency of Canada assigned: $ .........
Aggregate outstanding principal amount of Syndicated
Loans in lawful currency of the Kingdom of Belgium assigned: BEF.......
Aggregate outstanding principal amount of Syndicated
Loans in lawful currency of the Netherlands assigned: .........
(b) Retained Loans
Aggregate outstanding principal amount of Syndicated
Loans in Dollars retained: $ .........
Aggregate outstanding principal amount of Syndicated
Loans in lawful money of the Republic of France retained: FFR........
Aggregate outstanding principal amount of Syndicated
Loans in lawful currency of the United Kingdom of Great
Britain and Northern Ireland retained: PS.........
Aggregate outstanding principal amount of Syndicated
Loans in lawful currency of Canada retained: PS.........
Aggregate outstanding principal amount of Syndicated
Loans in lawful currency of the Kingdom of Belgium assigned: BEF........
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Aggregate outstanding principal amount of Syndicated
Loans in lawful currency of the Netherlands assigned: $.........
Effective Date: ...............
[NAME OF ASSIGNOR], as Assignor
By......................................
Title:
Dated: ...............
[NAME OF ASSIGNEE], as Assignee
By..........................................
Title:
Dated: ...............
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
Accepted and Approved this .... day
.........., 199.
CITIBANK INTERNATIONAL PLC, as Agent
By...................................
Title:
Approved to this ..... day
of ........, 199.
COCA-COLA ENTERPRISES INC.
By..................................
Name:
Title:
94
EXHIBIT D - FORM OF DESIGNATION LETTER
[DATE]
To each of the Lenders
parties to the Credit Agreement
(as defined below) and to Citibank International plc
as Agent for such Lenders
Ladies and Gentlemen:
Reference is made to the Five Year Credit Agreement dated as
of November 4, 1996 among Coca-Cola Enterprises Inc. (the "Company"), certain
other borrowers parties thereto, the Lenders named therein, Citibank
International plc, as Agent for said Lenders (the "Credit Agreement"). Terms
used herein and defined in the Credit Agreement shall have the respective
meanings ascribed to such terms in the Credit Agreement.
Please be advised that the Company hereby designates its
undersigned Subsidiary, ............ ("Designated Subsidiary"), as a "Designated
Subsidiary" under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's
agreement to extend credit to it under and on the terms and conditions set forth
in the Credit Agreement, does hereby assume each of the obligations imposed upon
a "Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Lenders as follows:
(a) The Designated Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of
....................... The Designated Subsidiary is duly qualified and
in good standing as a foreign corporation authorized to do business in
each jurisdiction (other than the jurisdiction of its incorporation) in
which the nature of its activities or the character of the properties
it owns or leases makes such qualification necessary and in which the
failure so to qualify would have a materially adverse effect on the
Designated Subsidiary and its Subsidiaries taken as a whole.
(b) The execution, delivery and performance by the Designated
Subsidiary of this Designation Letter, the Credit Agreement and its
Notes 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)
any law, rule, regulation or contractual restriction in any material
contract or, to the knowledge of the Chief Financial Officer of the
Designated Subsidiary, any other contract binding on or affecting the
Designated Subsidiary.
(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 Letter, the Credit Agreement
or its Notes.
(d) This Designation Letter is, and the Notes of the
Designated Subsidiary when delivered hereunder will be, legal, valid
and binding obligations of the Designated Subsidiary enforceable
against the Designated Subsidiary in accordance with their respective
terms.
(e) There is no pending or, to the best of the Designated
Subsidiary's knowledge, threatened action or proceeding involving the
Designated Subsidiary or any of its Subsidiaries before any court,
governmental agency or arbitrator, (i) as of the date of this
Designation Letter, which is likely to
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materially adversely affect the financial condition or operations of
the Designated Subsidiary and its Subsidiaries taken as a whole or (ii)
which purports to affect the legality, validity or enforceability of
this Designation Letter, the Credit Agreement or any Note of the
Designated Subsidiary.
(f) No proceeds of any Loan will be used to acquire any equity
security of a class which is registered pursuant to Section 12 of the
Securities Exchange Act of 1934, other than immaterial quantities of
equity securities held in the investment portfolio of a Person whose
stock is acquired with the proceeds of such Loan.
(g) The Designated Subsidiary is not engaged in the business
of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U), and no proceeds of any Loan
will be used to purchase or carry any margin stock or to extend credit
to others for the purpose of purchasing or carrying any margin stock.
(h) The Designated Subsidiary is not an "investment company",
or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
Very truly yours,
COCA-COLA ENTERPRISES INC.
By .........................
Name:
Title:
[THE DESIGNATED SUBSIDIARY]
By..........................
Name:
Title:
96
EXHIBIT E - FORM OF ACCEPTANCE BY PROCESS AGENT
[Letterhead of Process Agent]
[Date]
To each of the Lenders parties
to the Credit Agreement
(as defined below) and to
Citibank International plc, as Agent for
said Lenders
[Name of Designated Subsidiary]
Ladies and Gentlemen:
Reference is made to (i) that certain Five Year Credit
Agreement dated as of November 4, 1996 among Coca-Cola Enterprises Inc. and
certain other borrowers parties thereto, the Lenders named therein, Citibank
International plc, as Agent for the Lenders (such Credit Agreement as it may
hereafter be amended, supplemented or otherwise modified from time to time,
being the "Credit Agreement"; the terms defined therein being used herein as
therein defined), and (ii) to the Designation Letter, dated ........., pursuant
to which .......... (the "Designated Subsidiary") has become a Borrower.
Pursuant to Section 9.14 of the Credit Agreement to which the
Designated Subsidiary has become subject pursuant to its Designation Letter, the
Designated Subsidiary has appointed ............... (with an office on the date
hereof at ..............., Attention: ..........) as Process Agent to receive on
behalf of the 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 the Credit Agreement.
The undersigned hereby accepts such appointment as Process
Agent and agrees with each of you that (i) the undersigned will maintain an
office in ................ through the Termination Date and will give the Agent
prompt notice of any change of address of the undersigned, (ii) the undersigned
will perform its duties as Process Agent to receive on behalf of the 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 the Credit Agreement and (iii) the undersigned will forward forthwith to the
Designated Subsidiary at its address at ................ or, if different, its
then current address, copies of any summons, complaint and other process which
the undersigned receives in connection with its appointment as Process Agent.
This acceptance and agreement shall be binding upon the
undersigned and all successors of the undersigned.
Very truly yours,
[NAME OF PROCESS AGENT]
By.......................
97
EXHIBIT F - FORM OF
OPINION OF COUNSEL
FOR THE COMPANY
[Effective Date]
To each of the Lenders parties
to the Five Year Credit Agreement dated
as of November 4, 1996
among Coca-Cola Enterprises Inc.,
said Lenders and Citibank International plc,
as Agent for said Lenders, and
to Citibank International plc, as Agent
Coca-Cola Enterprises Inc.
Ladies/Gentlemen:
This opinion is furnished to you at the direction of our client,
Coca-Cola Enterprises Inc. (the "Company"), pursuant to Section 3.01 of the Five
Year Credit Agreement dated as of November 4, 1996 (the "Credit Agreement")
among the Company, the Lenders parties thereto and Citibank International plc,
as Agent. Terms defined in the Credit Agreement are used herein as therein
defined.
We have acted as counsel for the Company in connection with the
preparation, execution and delivery of, and the initial Borrowing made under,
the Credit Agreement.
In that connection we have examined:
(1) the Credit Agreement;
(2) the documents furnished by the Company pursuant to Article
III of the Credit Agreement;
(3) the Certificate of Incorporation of the Company and all
amendments thereto (the "Charter"); and
(4) the by-laws of the Company and all amendments thereto (the
"By- laws").
We have also examined the originals, or copies certified to our satisfaction, of
the documents listed in a certificate of the chief financial officer of the
Company, dated the date hereof (the "Certificate"), certifying that the
documents listed in such certificate are all of the indentures, loan or credit
agreements, leases, mortgages, security agreements, bonds, notes and other
agreements or instruments, and all of the orders, writs, judgments, awards,
injunctions and decrees, which materially adversely affect or purport to
materially adversely affect the Company's right to borrow money or the Company's
obligations under the Credit Agreement or the Notes. In addition, we have
examined the originals, or copies certified to our satisfaction, of such other
corporate records of the Company, certificates of public officials and of
officers of the Company, and agreements, instruments and documents, as we have
deemed necessary as a basis for the opinions hereinafter expressed. 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 Company, or
its officers or of public officials (including telex and telephone confirmations
of such certificates), and in such instances we have made no independent inquiry
with respect to such factual matters.
We have assumed that the Agent, each of the Lenders and UK Holdings
have all requisite power and authority to enter into and perform under the
Credit Agreement,
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and that such document has been duly authorized, executed and delivered by the
Agent, each of the Lenders and UK Holdings and constitute legal, valid and
binding obligations of the Agent, each of the Lenders and UK Holdings. With
respect to UK Holdings, we refer you to the opinion of Messrs. Xxxxx & Xxxxx
dated the date hereof addressed to you.
The opinions expressed herein are limited in all respects to the laws
of the State of Georgia, the general corporate law of the State of Delaware, and
the federal laws of the United States, and no opinion is being rendered herein
with respect to the effect, if any, which the laws of any other jurisdiction may
have on the opinions rendered herein.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Company of
the Credit Agreement and the Notes are within the Company's corporate
powers, have been duly authorized by all necessary corporate action,
and do not contravene (i) the Charter or the By-laws or (ii) any law,
rule or regulation applicable to the Company (including, without
limitation, Regulation X of the Board of Governors of the Federal
Reserve System) or (iii) any contractual or legal restriction contained
in any document listed in the Certificate or insofar as is known to us,
contained in any other similar document to which the Company is a
party. The Credit Agreement and the Notes delivered on the date hereof
have been duly executed and delivered on behalf of the Company.
3. No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Company of the Credit Agreement or the Notes.
4. Insofar as is known to us, there is no pending or
threatened action or proceeding against the Company or any of its
Subsidiaries before any court, governmental agency or arbitrator which
is likely to have a materially adverse effect upon the financial
condition or the operations of the Company and its Subsidiaries taken
as a whole. In rendering the foregoing opinion, we have assumed that,
in any such action or proceeding where the total damages or other
monetary relief sought is not likely to result in a judgment against
the Company or its Subsidiaries in excess of $50,000,000, such action
or proceeding would not be likely to have any materially adverse effect
on the financial conditions or operations of the Company and its
Subsidiaries taken as a whole.
5. Each of the Credit Agreement and the Notes provides that
such document is to be governed by the laws of the State of New York.
Under applicable Georgia case law, if examined by a Georgia Court or a
federal court sitting in Georgia as the forum state and applying
Georgia conflict of laws rules (in either case a "Georgia Court"), the
Georgia Court should give effect to the choice of law provisions of the
parties as contained in the Credit Agreement and the Notes unless it
were to determine that (i) the State of New York has no substantial
relationship to the parties or the transaction, or (ii) the result
obtained from applying New York law would be contrary to Georgia public
policy. Because choice of law issues are decided on a case-by-case
basis, depending on the facts of the particular transactions, we are
unable to conclude with certainty that a Georgia Court would give
effect to those provisions of the Credit Agreement and the Notes
designating New York governing law. Nevertheless, based on existing
Georgia case law and on the facts of this transaction (including,
without limitation, the fact that the Credit Agreement and the Notes
will be executed and delivered to the Agent for
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the benefit of the Lenders in New York and that a substantial amount of
the payments under the Credit Agreement and the Notes are payable to
the Agent for the benefit of the Lenders in New York), we believe that
a Georgia Court should conclude that New York has a substantial
relationship to the parties and the transaction. We are aware of no
Georgia laws or current Georgia cases which indicate that giving effect
to the provisions of the Credit Agreement (excluding Section 9.04 as to
which we express no opinion) and the Notes designating New York law
(including, without limitation, the usury law of New York) as the
governing law would violate Georgia public policy, except with respect
to (i) the provisions of Article II of the Credit Agreement to the
extent such provisions would require payment of interest (whether due
to acceleration, prepayment or otherwise) in an amount greater than
five percent (5%) per month, or (ii) Sections 2.03 or 2.07 of the
Credit Agreement to the extent said sections would require payment of
interest on unpaid interest, or would require payment of additional
amounts as a result of the occurrence of any Event of Default and such
provisions were deemed to be a penalty (although we believe that under
current Georgia case law, a court should conclude that neither of such
provisions constitutes a penalty).
6. If a court were to determine that, notwithstanding the
provisions of Section 9.11 of the Credit Agreement, the Credit
Agreement and the Notes are governed by, and construed in accordance
with, the internal laws of the State of Georgia, the Credit Agreement
and the Notes would be, under such laws, legal, valid and binding
obligations of the Initial Borrowers, enforceable against the Initial
Borrowers in accordance with their respective terms, except (i) as may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, and
by general principles of equity (regardless of whether considered in a
proceeding in equity or at law), (ii) that enforceability of Section
9.04(a) of the Credit Agreement requiring payment by the Initial
Borrowers of costs of collection, including attorneys' fees, is subject
to compliance by the Lenders with O.C.G.A Section 13-1-11, (iii) that
no opinion is expressed herein with respect to those provisions of the
Credit Agreement referred to in clauses (i) and (ii) in paragraph 5
above, and (iv) that we express no opinion as to the enforceability of
any provision of the Credit Agreement or the Notes allowing the Lenders
to accelerate the maturity of the indebtedness evidenced thereby
without notice to the Initial Borrowers, but no such lack of
enforceability will, in our judgment, substantially interfere with the
practical realization by the Lenders of the Lenders' rights under the
Credit Agreement and the Notes except for the economic consequences of
any procedural delay which may be occasioned by such lack of
enforceability.
In expressing the opinions set out above, we have assumed,
without independent inquiry, the following: (i) the rate of interest
payable by the Initial Borrowers under the terms of the Credit
Agreement and the Notes, including, without limitation, loan
origination fees, discount points, expenses and other fees and charges
(including amounts payable to the Lenders by the Initial Borrowers for
payment in reimbursement of the Lenders' cost and expenses or otherwise
to defray the Lenders' costs and expenses), whether or not denominated
as interest, will not under any circumstances, whether by reason of
prepayment, acceleration or otherwise, exceed five percent (5%) per
month, and that no such interest or charges constitute precomputed
interest within the meaning of O.C.G.A. Section 7-4-2(b); and (ii)
unless the requirements of O.C.G.A Section 7-4-17 are satisfied, no
interest will be payable on unpaid interest under the Credit Agreement
and the Notes.
This letter is furnished by us for the sole benefit of the Agent and
the Lenders. No other person or entity shall be entitled to rely on this opinion
without our express written consent in each instance. This opinion is limited to
the matters expressly stated herein as of the date hereof, and no other opinions
are implied or may be inferred.
Very truly yours,
100
EXHIBIT G - FORM OF
OPINION OF COUNSEL
TO A DESIGNATED SUBSIDIARY
[Effective Date of Designation Letter]
1. The Designated Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of the ...........
2. The execution, delivery and performance by the Designated Subsidiary
of the Designation Letter, the Credit Agreement and its Notes are within the
Designated Subsidiary's corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the organizational
documents of the Designated Subsidiary 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)
any contractual or legal restriction contained in any indentures, loan or credit
agreements, leases, mortgages, security agreements, bonds, notes and other
agreements or instruments, or orders, writs, judgments, awards, injunctions and
decrees, which materially adversely affect or purport to materially adversely
affect the Designated Subsidiary's right to borrow money or the Designated
Subsidiary's obligations under the Credit Agreement, its Designation Letter or
its Notes. The Designation Letter and each Note of the Designated Subsidiary
delivered 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 is required for the
due execution, delivery and performance by the Designated Subsidiary of the
Designation Letter, the Credit Agreement or the Notes of the Designated
Subsidiary.
4. Each of the Designation Letter, the Credit Agreement and the Notes
of 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.
