EXECUTION COPY
LONG-TERM REVOLVING CREDIT AGREEMENT
dated as of December 16, 2005
among
CONAGRA FOODS, INC.,
The Banks That Have Signed This Agreement,
JPMORGAN CHASE BANK, N.A., as Administrative Agent,
BANK OF AMERICA, N.A., as Syndication Agent, and
CITIBANK, N.A., BNP PARIBAS and
MERRILL LYNCH BANK USA, as Co-Documentation Agents
J.P. MORGAN SECURITIES INC., and BANC OF AMERICA SECURITIES
LLC,
as
Joint Lead Arrangers and Joint Bookrunners
<PAGE>
TABLE OF CONTENTS
Page
1.
DEFINITIONS..............................................................1
2.
TERMS....................................................................9
2.1.
Syndicated
Loans.................................................9
2.1.1. Commitment to
Make Syndicated Loans......................9
2.1.2. Revolving
Credit...................... ..................9
2.1.3.
Payments.................................................9
2.2.
Syndicated
Loan Borrowings.......................................9
2.2.1. Company
Notice.. .......................................9
2.2.2.
Funding.................................................9
2.3.
Bank
Records of Loans and Payments..............................10
2.4.
Fees,
Removal of Banks and Changes of Commitments...............10
2.4.1. Facility
Fee...........................................10
2.4.2.
Banks..................................................10
2.4.3.
Commitments............................................10
2.4.4.
Consents...............................................10
2.4.5.
Notice.................................................11
2.5.
Determination of Applicable Margin and Applicable
Facility Fee
Rate...............................................11
2.6.
Interest
Rates and Selection of Eurodollar Rates................12
2.7.
Restrictions on Syndicated Loans, Interest Periods
and
Conversion..................................................12
2.8.
Interest
Basis and Payment Dates................................12
2.9.
Payments........................................................13
2.9.1. Payment
to Administrative Agent........................13
2.9.2.
Application of Payments................................13
2.9.3. Payment
to Banks.......................................13
2.9.4. Extension
for Business Day.............................13
2.10.
Applicable
Lending Installations................................13
2.11.
Failure to Pay
or Borrow on Certain Dates.......................14
2.12.
Taxes...........................................................14
2.12.1.
Certification..........................................14
2.12.2. Change of
Law..........................................14
2.12.3.
Withholding............................................15
2.12.4.
Indemnity..............................................15
2.12.5. Notice to
Company......................................15
2.12.6. Notice of
Withholding..................................15
2.12.7. Timely
Payment.........................................16
2.12.8.
Mitigation.............................................16
2.13.
Increased
Costs.................................................16
2.13.1. Change of
Law..........................................16
2.13.2.
Notice.................................................17
2.14.
Availability of
Interest Rate...................................17
2.15.
Bank
Certificates; Survival of Indemnity........................18
2.16.
Telephonic
Notices..............................................18
2.17.
Mitigation of
Additional Costs or Adverse Circumstances.........18
2.18.
Extension of
Termination Date...................................18
2.19.
Pro Rata
Treatment..............................................19
2.19.1. Borrowings,
Fees, Etc..................................19
2.19.2. Payment of
Principal and Interest......................19
2.20.
Non-Receipt of
Funds by the Administrative Agent................20
2.21.
Illegality......................................................20
2.22.
Bid
Option......................................................20
2.22.1.
Bid Option; Repayment
and Effect of Bid Absolute
Rate Loans.............................................20
2.22.2. Bid Quote
Request......................................20
2.22.3. Invitation for
Bid Quotes..............................21
2.22.4. Submission and
Contents of Bid Quotes..................21
2.22.5. Notice to the
Company..................................23
2.22.6. Acceptance and
Notice by the Company...................23
2.22.7. Allocation by
the Administrative Agent.................23
2.23.
Increase of
Commitments.........................................24
3.
PREPAYMENT..............................................................24
3.1.
Generally.......................................................24
4. REPRESENTATIONS AND
WARRANTIES..........................................25
4.1.
Corporate
Existence and Standing................................25
4.2.
Authorization and
Validity......................................25
4.3.
Compliance
with Laws and Contracts..............................25
4.4.
Financial
Statements............................................25
4.4.1.
Audited................................................25
4.4.2. No
Material Adverse Change.............................25
4.5.
Taxes...........................................................26
4.6.
Litigation......................................................26
4.7.
Pension
Reform Act of 1974......................................26
4.8.
Defaults........................................................26
4.9.
Accuracy
of Information.........................................26
4.10.
Regulation
U....................................................26
4.11.
Legal
Authority.................................................26
5. AFFIRMATIVE
COVENANTS...................................................26
5.1.
Financial
Statements, Reports, Returns and Other
Financial
Data..................................................26
5.1.1. Quarterly
Financial Statements.........................27
5.1.2. Annual
Financial Statements............................27
5.1.3.
Stockholder and Governmental Reports...................27
5.2.
Officer's
Certificate...........................................27
5.3.
Sale and
Lease-Back.............................................27
6. NEGATIVE
COVENANTS......................................................28
6.1.
Funded
Debt.....................................................28
6.2.
Consolidation, Merger, Sale or
Conveyance.......................28
6.3.
Fixed
Charge Coverage...........................................29
6.4.
Liens...........................................................29
7. EVENTS OF DEFAULT AND
REMEDIES..........................................29
7.1.
Events of
Default...............................................29
7.1.1. Failure
to Pay Principal of Notes......................29
7.1.2. Failure
to Pay Interest on Notes or Fees...............29
7.1.3. Default
Under Other Obligations........................29
7.1.4. Breach of
Representation...............................29
7.1.5. Failure
to Perform Negative Covenants..................29
7.1.6. Failure
to Perform Other Terms and Conditions..........30
7.1.7.
Assignment For Benefit of Creditors and Insolvency.....30
7.1.8. Order for
Relief.......................................30
7.1.9. Voluntary
Receiver or Bankruptcy.......................30
7.1.10. Involuntary
Receiver or Bankruptcy.....................30
7.1.11. Involuntary
Order for Relief...........................30
7.1.12. Unsatisfied
Judgment...................................30
7.2.
Rights and
Duties After Default.................................30
7.2.1.
Acceleration...........................................30
7.2.2. Interest
Rate After Acceleration.......................31
8. WAIVERS, AMENDMENTS AND
REMEDIES........................................31
8.1.
Waivers
and Remedies............................................31
8.2.
Amendments......................................................31
9. CONDITIONS PRECEDENT TO
CLOSING.........................................32
10. GENERAL
PROVISIONS......................................................33
10.1.
Benefit of
Agreement............................................33
10.1.1.
Assignments............................................33
10.1.2. [Intentionally
Omitted]................................33
10.1.3. Effect of
Assignments..................................33
10.1.4.
Participations.........................................34
10.1.5. General
Restrictions...................................34
10.1.6. Federal
Reserve Bank...................................35
10.2.
Survival of
Representations.....................................35
10.3.
Governmental
Regulation.........................................35
10.4.
Taxes...........................................................35
10.5.
Choice of
Law...................................................35
10.6.
Headings........................................................35
10.7.
Entire
Agreement................................................35
10.8.
Several
Obligations.............................................35
10.9.
Expenses........................................................35
10.10.
Numbers of
Documents............................................36
10.11.
Severability....................................................36
10.12.
Accounting......................................................36
10.13.
Confidentiality.................................................36
10.14.
USA PATRIOT
Act.................................................36
11. THE
AGENTS..............................................................36
11.1.
Appointment and
Powers..........................................36
11.2.
Powers..........................................................37
11.3.
General
Immunity................................................37
11.4.
No
Responsibility for Loans, Recitals, Etc......................37
11.5.
Right to
Indemnity..............................................37
11.6.
Action on
Instructions of Banks.................................37
11.7.
Employment of
Agents and Counsel................................37
11.8.
Reliance on
Documents; Counsel..................................37
11.9.
May Treat Payee
as Owner........................................38
11.10.
Administrative Agent's
Reimbursement............................38
11.11.
Rights as a
Bank................................................38
11.12.
Bank Credit
Decision............................................38
11.13.
Resignation or Removal
of Administrative Agent..................38
11.14.
Syndication Agent and
Co-Documentation Agents...................39
12.
SETOFF..................................................................39
13.
NOTICES.................................................................39
13.1.
Giving
Notice..................................................39
14.
COUNTERPARTS............................................................39
<PAGE>
EXHIBITS AND SCHEDULES
SCHEDULE 1
-
Banks, Commitments and Notice Information
EXHIBIT A
-
Form of
Note
EXHIBIT B
-
Sample Confirmation Letter
EXHIBIT C
-
Form of Section 2.12 Certificate
EXHIBIT D
-
Form of Opinion of Counsel for the Company
EXHIBIT E
-
Form of Bid Note
EXHIBIT F
-
Form of Bid Quote
EXHIBIT G
-
Form of Bid Quote Request
EXHIBIT H
-
Form of Invitation for Bid Quotes
EXHIBIT I
-
Form of Request for Extension
EXHIBIT J
-
Form of Acceptance of Request for Extension
EXHIBIT K
-
Form of Consent to Additional or Increasing Bank
EXHIBIT L
-
Form of Assignment and Assumption
<PAGE>
CONAGRA FOODS, INC.
LONG-TERM REVOLVING CREDIT AGREEMENT
Dated as of December 16, 2005
This Long-Term Revolving Credit Agreement (as the same may be
amended, supplemented or otherwise modified
from time to time hereafter, the
"Agreement") is entered into by and among
ConAgra Foods, Inc., a Delaware
corporation (the "Company"), the banks that
have signed this Agreement (the
"Banks"), JPMorgan Chase Bank, N.A.
("JPMCB"), as administrative agent for such
banks (the "Administrative Agent"), Bank of
America, N.A. ("BofA"), as
syndication agent (the "Syndication
Agent"), Citibank, N.A., BNP Paribas and
Merrill Lynch Bank USA as Co-Documentation
Agents and J.P. Morgan Securities
Inc. ("JPMorgan") and Banc of America
Securities LLC ("BAS"), as joint lead
arrangers and joint bookrunners (the
"Arrangers").
WHEREAS, the Company wishes to obtain certain long-term financing
from
the Banks, the Administrative Agent and the
Syndication Agent;
WHEREAS, the Banks, the Administrative Agent and the Syndication
Agent
are willing to extend long-term financing
to the Company on the terms and
conditions set forth herein;
NOW THEREFORE, the Company, the Banks, the Administrative Agent and
the
Syndication Agent agree as follows:
1. DEFINITIONS.
As used in this Agreement,
"Administrative Agent" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the
Banks pursuant to Section 11, and not
in its individual capacity as a Bank,
together with its successors and permitted
assigns.
"Affiliate" means any Person directly or indirectly
controlling, controlled by, or under direct
or indirect common control with, the
Company. A Person shall be deemed to
control a corporation if such Person
possesses, directly or indirectly, the
power to direct or cause the direction of
the management and policies of such
corporation, whether through the ownership
of voting securities, by contract or
otherwise.
"Agreement" means this Long-Term Revolving Credit Agreement,
as it may be amended or modified from time
to time.
"Alternate Base Rate" means, from time to time, the greater of
(i) the Prime Rate and (ii) the Federal
Funds Rate in effect from time to time
plus 1/2% per annum.
"Alternate Base Rate Loan" means that portion of any Loan at
the time the Alternate Base Rate is
applicable thereto.
"Applicable Facility Fee Rate" has the meaning given thereto
in Section 2.5 hereof.
"Applicable Lending Installation" means any office or branch
of any Bank or the Administrative
Agent.
"Applicable Margin" has the meaning given thereto in Section
2.5 hereof.
"Approved Fund" means any Person (other than a natural person)
that is engaged in making, purchasing,
holding or investing in bank loans and
similar extensions of credit in the
ordinary course of its business and that is
administered or managed by (a) a Bank, (b)
an Affiliate of a Bank or (c) an
entity or an Affiliate of an entity that
administers or manages a Bank.
"Arrangers" means J.P. Morgan Securities Inc. and Banc of
America Securities LLC in their capacities
as joint lead arrangers and joint
bookrunners.
"Authorized Officer" means any of the Chief Executive Officer,
the Chief Financial Officer, the
Controller, the Treasurer, any Assistant
Treasurer or any employee of the Company
designated in writing to the Banks by
any of the foregoing.
"Banks" means the banks listed on Schedule 1 hereto and any
Person that becomes a Bank pursuant to this
Agreement and their respective
successors and permitted assigns.
"Base Eurodollar Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, the rate
appearing on Page 3750 of the Dow
Jones Market Service (or on any successor
or substitute page of such Service, or
any successor to or substitute for such
Service, providing rate quotations
comparable to those currently provided on
such page of such Service, as
determined by the Administrative Agent from
time to time for purposes of
providing quotations of interest rates
applicable to dollar deposits in the
London interbank market) at approximately
11:00 a.m., London time, two Business
Days prior to the commencement of such
Interest Period, as the rate for dollar
deposits with a maturity comparable to such
Interest Period. In the event that
such rate is not available at such time for
any reason, then the "Base
Eurodollar Rate" with respect to such
Eurodollar Borrowing for such Interest
Period shall be the rate at which dollar
deposits of $5,000,000 and for a
maturity comparable to such Interest Period
are offered by the principal London
office of the Administrative Agent in
immediately available funds in the London
interbank market at approximately 11:00
a.m., London time, two Business Days
prior to the commencement of such Interest
Period.
"Bid Absolute Rate" means, with respect to a Bid Absolute Rate
Loan made by a relevant Bank for the
relevant Bid Interest Period, the rate of
interest per annum (rounded to the nearest
1/100th of 1%) offered by such Bank
and accepted by the Company pursuant to
Section 2.22.6.
"Bid Absolute Rate Loan" means that portion of any Loan at the
time the Bid Absolute Rate is applicable
thereto.
"Bid Interest Period" means, with respect to a Bid Absolute
Rate Loan, a period of not less than 30 and
not more than 270 days commencing on
a Business Day selected by the Company in
the relevant Bid Quote Request
pursuant to Section 2.22.2. If such Bid
Interest Period would end on a day which
is not a Business Day, such Bid Interest
Period shall end on the next succeeding
Business Day.
"Bid Note" means a promissory note in substantially the form
of Exhibit E hereto, with appropriate
insertions, duly executed and delivered to
the Administrative Agent by the Company and
payable to the order of a Bank,
including any amendment, modification,
renewal or replacement of such promissory
note.
"Bid Quote" means a Bid Quote substantially in the form of
Exhibit F hereto completed and delivered by
a Bank to the Administrative Agent
pursuant to Section 2.22.4.
"Bid Quote Request" means a Bid Quote Request substantially in
the form of Exhibit G hereto completed and
delivered by the Company to the
Administrative Agent pursuant to Section
2.22.2.
"Bid Rate Auction" means a solicitation of Bid Quotes pursuant
to Section 2.22.
"Board" means the Board of Governors of the Federal Reserve
Systems of the United States.
"Borrowing" means Loans of the same Type, made, converted or
continued on the same date and, in the case
of Eurodollar Loans, as to which a
single Interest Period is in effect.
"Borrowing Notice" means a written, telex, telecopy or
telephonic notice by the Company to the
Administrative Agent specifying (i) the
Effective Date of making a Syndicated Loan,
(ii) the amounts of, and Rate
Options applicable to, the Syndicated Loans
requested and (iii) the duration of
the Eurodollar Interest Period applicable
to each Eurodollar Loan requested.
"Business Day" means (i) with respect to borrowing, payment or
rate selection of Eurodollar Loans, a day
on which banks are open for business
in Chicago, New York and Omaha and on which
dealings in U.S. Dollars are carried
on in the London interbank market and (ii)
with respect to borrowing, payment or
rate selection of Alternate Base Rate Loans
and Bid Absolute Rate Loans or with
respect to a reduction of the Commitments,
a day on which banks are open for
business in Chicago, New York and
Omaha.
"Co-Documentation Agents" means Citibank, N.A., BNP Paribas
and Merrill Lynch Bank USA in their
capacity as Co-Documentation Agents for the
Banks pursuant to this Agreement.
"Commitments" means the aggregate of the amounts set forth
opposite each Bank's name on Schedule 1
hereto, as such amounts are reduced or
increased from time to time pursuant to
Section 2.4, 2.12.2, 2.17, 2.21, 2.23 or
7.2, and "Commitment" means any one amount
set forth opposite each Bank's name
on Schedule 1 as so reduced or
increased.
"Company" means ConAgra Foods, Inc., a Delaware corporation,
together with its successors and permitted
assigns.
"Consolidated Capital Base" means the sum of (i) Consolidated
Funded Debt, (ii) consolidated deferred
taxes of the Company and its
Subsidiaries, plus (iii) consolidated
stockholders' equity of the Company and
its Subsidiaries, all determined on a
consolidated basis in accordance with
Generally Accepted Accounting Principles;
provided, however, that in determining
consolidated stockholders' equity, any
contra account of up to $350,000,000
established for purposes of an employee
stock ownership plan or the Company's
Employee Equity Fund (EEF) shall be
disregarded and shall not be considered a
reduction of stockholders' equity.
"Consolidated Funded Debt" means the sum of (i) any obligation
for borrowed money, which under Generally
Accepted Accounting Principles is
shown on the consolidated balance sheet of
the Company and its Subsidiaries as a
non-current liability plus (ii) an amount
equal to 60% of the principal amount
payable by the Company or any Subsidiary
pursuant to any guaranty by the Company
or any Subsidiary of "Third Party Debt"
upon the happening of every contingency
to the enforcement of such guaranty. For
purposes hereof, "Third Party Debt"
shall mean debt of any Person (other than
the Company or any Subsidiary) for
borrowed money that (i) pursuant to
Generally Accepted Accounting Principles, is
classified as a non-current liability, and
(ii) the repayment of which is
guaranteed by the Company or any
Subsidiary.
"Effective Date" means any Business Day designated by the
Company in a Borrowing Notice, Bid Quote
Request, Rate Selection Notice or
Prepayment Notice as the date such
borrowing, rate selection or prepayment, as
the case may be, shall become
effective.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing
interest at a rate determined by reference
to the Eurodollar Rate.
"Eurodollar Interest Period" means, with respect to a
Eurodollar Loan, a period of 1, 2, 3 or 6
months commencing on a Business Day
and selected by the Company in its
Borrowing Notice or Rate Selection Notice. If
any Eurodollar Interest Period would
otherwise end on a day which is not a
Business Day, such Eurodollar Interest
Period shall end on the next succeeding
Business Day, provided, however, that if
said next succeeding Business Day falls
in a new month such Eurodollar Interest
Period shall end on the immediately
preceding Business Day.
"Eurodollar Loan" means that portion of any Syndicated Loan at
the time the Eurodollar Rate is applicable
thereto.
"Eurodollar Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an
interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal
to the sum of (i) (a) the Base
Eurodollar Rate for such Interest Period
multiplied by (b) the Statutory Reserve
Rate plus (ii) the Applicable Margin.
"Event of Default" shall mean any of the events specified in
Section 7, provided that there has been
satisfied any requirement in connection
with such event for the giving of notice,
or the lapse of time, or the happening
of any further condition, event or act.
"Extraordinary Item" means extraordinary items and cumulative
effect of changes in accounting principles
that are non-cash as those items are
accounted for pursuant to Generally
Accepted Accounting Principles, and in
addition, any other non-recurring and/or
non-operating charges or credits up to
a maximum amount from May 27, 1996 to the
Termination Date of 20% of Company's
consolidated stockholders' equity as of the
quarter ended immediately preceding
the last to occur of such charge or
credit.
"Facility Fee" has the meaning set forth in Section 2.4.1
herein.
"Federal Funds Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on
overnight Federal funds transactions with
members of the Federal Reserve System
arranged by Federal funds brokers, as
published on the next succeeding 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 (rounded upwards, if
necessary, to the next 1/100 of 1%) of the
quotations for such day for such
transactions received by the Administrative
Agent from three Federal funds
brokers of recognized standing selected by
it.
"Fitch" means Fitch Ratings Ltd., together with its successors
and assigns.
"Fixed Charges" means, for any period, on a consolidated basis
for the Company and its Subsidiaries, net
interest expense plus non-cancelable
lease rental payments payable during such
period.
"Fixed Rate" means a rate per annum equal to either the Bid
Absolute Rate or the Eurodollar Rate.
"Fixed Rate Loan" means a Eurodollar Loan or a Bid Absolute
Rate Loan.
"Generally Accepted
Accounting
Principles" means
generally
accepted accounting principles in effect from time to
time.
"Indenture" means that certain Indenture dated as of October
8, 1990 between the Company and JPMorgan
Chase Bank, N.A. (f/k/a The Chase
Manhattan Bank), as trustee, as in effect
on the date hereof.
"Interest Period" means a Bid Interest Period or a Eurodollar
Interest Period.
"Invitation for Bid Quotes" means an Invitation for Bid Quotes
substantially in the form of Exhibit H
hereto completed and delivered by the
Administrative Agent to the Banks in
accordance with Section 2.22.3.
"JPMCB" means JPMorgan Chase Bank, N.A., in its individual
capacity, together with its successors and
permitted
assigns.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind
(including any agreement to give any of
the foregoing), conditional sale or other
title retention agreement, any lease
in the nature thereof, and the filing of or
agreement to give any financing
statement under the Uniform Commercial Code
of any jurisdiction.
"Loan" means any loan made under this Agreement.
"Loan Closing Date" means a Revolving Credit Loan Closing Date
or a date a Bid Absolute Rate Loan is
made.
"Loan Documents" means the Agreement and the Notes.
"Material Subsidiary" means a Subsidiary that has total
assets, determined in accordance with
Generally Accepted Accounting Principles,
in excess of 20% of the Company's total
consolidated assets, determined in
accordance with Generally Accepted
Accounting Principles.
"Minimum Notice Period" means a period commencing no later
than 10:00 a.m. Chicago time (i) on the
Effective Date of an Alternate Base Rate
borrowing or rate selection and (ii) three
Business Days prior to the Effective
Date of a Eurodollar Rate borrowing,
payment or rate selection.
"Moody's" means Moody's Investors Service, Inc., together with
its successors and assigns.
"Non-U.S. Bank"
means a Bank that is
not incorporated
under
the laws of the United States of America or a state
thereof.
"Notes" means collectively the Syndicated Notes and the Bid
Notes and "Note" means any one of such
Notes.
"Obligations" means all unpaid principal and interest under
the Notes, facility fees and all other
obligations of the Company or any
Subsidiary to the Banks or to any Bank or
to the Administrative Agent or the
Syndication Agent arising under the Loan
Documents.
"Officer's Certificate" shall mean a certificate signed in the
name of the Company by any Authorized
Officer.
"Person" shall mean and include an individual, a partnership,
a joint venture, a corporation, a trust, an
estate, an unincorporated
organization and a government, domestic or
foreign, or any department or agency
or political subdivision thereof.
"Potential Default" means an event which but for the lapse of
time, the giving of notice or the happening
of any further condition, event or
act would constitute an Event of
Default.
"Prepayment Notice" means a written, telex, telecopy or
telephonic notice by the Company to the
Administrative Agent pursuant to Section
3 specifying the amount of principal to be
prepaid and the Effective Date of
such prepayment.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMCB as its
prime rate in effect at its
principal office in New York City; each
change in the Prime Rate shall be
effective from and including the date such
change is publicly announced as being
effective.
"Prior Agreement" means that certain Long-Term Revolving
Credit Agreement dated as of May 22, 2002
by and among the Company, certain
financial institutions from time to time
parties thereto as Banks and JPMorgan
Chase Bank, N.A. (successor by merger to
Bank One, NA (Main Office Chicago)) as
Administrative Agent.
"Profit Before Taxes and Extraordinary Items" means on a
consolidated basis for any fiscal period of
the Company, earnings of the Company
and its Subsidiaries (exclusive of
Extraordinary Items) before provision for
taxes in respect of, or measured by, income
or excess profits for such period.
"Pro Rata" means, for any Bank, (i) prior to the applicable
Termination Date, that percentage which is
equal to the proportion that such
Bank's Commitment bears to the sum of all
the then outstanding Commitments of
all of the Banks and (ii) after the
applicable Termination Date, that percentage
which is equal to the proportion that the
principal amount of such Bank's
outstanding Loans bears to the principal
amount of the sum of all the then
outstanding Loans of all of the Banks.
"Rate Option" means the Eurodollar Rate or the Alternate Base
Rate.
"Rate Selection Notice" means a written, telex or telephonic
notice by the Company to the Administrative
Agent specifying (i) the principal
amount of the outstanding Syndicated Loans
that shall be governed by each
Eurodollar Rate, if any, (ii) the
Eurodollar Interest Period applicable to each
such Eurodollar Loan and (iii) the
Effective Date of each such Eurodollar Rate
selection.
"Regulation D" means Regulation D of the Board (as modified)
and shall include any successor or other
regulation or official interpretation
of said Board of Governors relating to
reserve requirements applicable to member
banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board (as modified)
and shall include any successor or other
regulation or official interpretation
of said Board relating to the extension of
credit by banks for the purpose of
purchasing or carrying margin stocks
applicable to member banks of the Federal
Reserve System.
"Required Banks" means, (i) prior to the Termination Date,
Banks in the aggregate having outstanding
Commitments greater than 50% of the
sum of the Commitments and (ii) on and
after the Termination Date, Banks having
in the aggregate greater than 50% of the
outstanding Loans.
"Revolving Credit Loan Closing Date" means any Business Day on
which the Administrative Agent has actually
received within the applicable
Minimum Notice Period prior notice from the
Company for a Syndicated Loan,
specifying such date and requesting the
amount to be borrowed thereon and on
which the applicable conditions set forth
in Section 9 hereof are satisfied.
"S&P" means Standard & Poor's Ratings Group, a division of
The
McGraw-Hill Companies, Inc., together with
its successors and assigns.
"Section" means a numbered section of this Agreement, unless
another document is specifically
referenced.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the
number one and the denominator of which
is the number one minus the aggregate of
the maximum reserve percentages
(including any marginal, special, emergency
or supplemental reserves) expressed
as a decimal established by the Board to
which the Administrative Agent is
subject for eurocurrency funding (currently
referred to as "Eurocurrency
Liabilities" in Regulation D of the Board).
Such reserve percentages shall
include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding
and to be subject to such reserve
requirements without benefit of or credit
for proration, exemptions or offsets
that may be available from time to time to
any Bank under such Regulation D or
any comparable regulation. The Statutory
Reserve Rate shall be adjusted
automatically on and as of the effective
date of any change in any reserve
percentage.
"Subsidiary" means any corporation whose accounts are
consolidated with the accounts of the
Company in accordance with the Generally
Accepted Accounting Principles for purposes
of preparing the financial
statements referred to in Section 5.1.
"Syndicated Loan" means a Loan made pursuant to Section 2.1.1
hereof.
"Syndicated Note" means a promissory note in substantially the
form of Exhibit A hereto, dated the date
hereof, duly executed and delivered to
the Administrative Agent by the Company and
payable to the order of a Bank in
the amount of its Commitment.
"Syndication Agent" means Bank of America, N.A., in its
capacity as syndication agent for the Banks
pursuant to this Agreement.
"Termination Date" means, with respect to a Bank, the earlier
of December 16, 2010 or the date, if any,
on which such Bank's Commitment is
reduced to zero or terminated pursuant to
this Agreement.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on
such Loan, or on the Loans comprising
such Borrowing, is determined by reference
to the Eurodollar Rate or the
Alternate Base Rate.
The foregoing definitions shall be equally applicable to both
the singular and plural forms of the
defined terms.
2.
TERMS.
2.1. Syndicated
Loans.
2.1.1. Commitment to Make Syndicated Loans. Each Bank severally
agrees
to make, at the
option of the Company, Syndicated Loans to the Company from
time to time
from the date hereof to the Termination Date on the Effective
Dates specified
in Borrowing Notices received by the Administrative Agent
not less than
the Minimum
Notice Period prior to such Effective Date;
provided,
however, the Banks
shall not be obligated to make any Syndicated
Loan under this
Section 2.1.1 to the extent that the sum of the outstanding
principal
amount of all
Syndicated
Loans and all Bid
Absolute Rate Loans
would exceed the
amount of the then applicable Commitments of all the Banks
and provided
further, no Bank shall be obligated to make any Syndicated
Loan to the
extent that immediately after the making of any such Syndicated
Loan such Bank's
Pro Rata share of the outstanding Syndicated Loans under
this
Section 2.1.1 would exceed such Bank's Commitment. Each such
Syndicated
Loan shall be
evidenced by a Note
payable to the order of such
Bank in the form
of Exhibit A and/or E,
as applicable.
Syndicated
Loans
will be made
available subject to the conditions set forth in Section 9.2.
2.1.2. Revolving Credit. Subject to the terms of this
Agreement, the
Company may
borrow, repay and reborrow Loans prior to the Termination Date.
Each Bank's
Commitment shall expire on its Termination Date.
2.1.3. Payments.
Any Loans outstanding
on a Bank's
Termination Date
shall be paid in
full on such date
unless prepaid prior to such date in
accordance with
the terms of this Agreement.
2.2. Syndicated
Loan Borrowings.
2.2.1. Company Notice. The Company shall give the Administrative
Agent
(which
shall promptly notify the Banks) notice (within the applicable
Minimum Notice
Period) of each borrowing hereunder, stating the aggregate
amount of the
Syndicated Loans
requested under
Section 2.1, the Effective
Date of the
Syndicated Loans, the Interest Period applicable thereto, and
specifying
whether such
borrowing shall consist of Alternate Base Rate
Loans or
Eurodollar
Loans and the
respective
aggregate amounts of the
Syndicated Loans
of each type.
2.2.2. Funding. Not later than noon Chicago time on the Effective
Date
for each
borrowing under Section 2.1, each Bank shall make available to
the
Administrative
Agent the Pro Rata
amount of the Syndicated Loan to be made
by it on such
date, to an account
maintained by the
Administrative
Agent
with JPMCB, in
immediately available funds, for the account of the Company.
The amount so
received by the
Administrative Agent
shall, subject to
the
terms and
conditions of this Agreement, be made available to the Company
by
depositing the
same, in immediately
available funds, in an
account of the
Company
maintained
with JPMCB,
or such other account,
in either case as
specified in
writing by an
Authorized Officer (or
in such other manner as
may be specified by the Company and is reasonably acceptable to the
Administrative
Agent).
2.3. Bank
Records of Loans and Payments. Each Bank is hereby authorized
to
record the principal amount of each Syndicated Loan made under Section
2.1 and
each repayment of any such Syndicated Loan on the schedule attached to its
Syndicated Note; however, failure to do so shall not affect the Company's
obligations thereunder.
2.4. Fees,
Removal of Banks and Changes of Commitments.
2.4.1. Facility Fee.
The Company agrees to pay to the Administrative
Agent for the
account of each Bank a
facility fee (the "Facility Fee")
equal to the
Applicable
Facility Fee Rate on such Bank's
average daily
Commitment
(without regard to
usage) from the date hereof to and including
the Termination Date, payable in arrears on the first
day of each March,
June,
September,
and December to occur
during the term of this Agreement
and on the
Termination Date, with
the first such payment to occur on March
1, 2006.
2.4.2. Banks.
Subject to the provisions of Section 2.4.4 and in
accordance
with Section 2.23, so
long as no Potential
Default or Event of
Default shall
have occurred and be
continuing or would
result therefrom,
the Company may,
from time to time with
the consent of the
Administrative
Agent,
add additional banks as parties to this Agreement. Unless the
Company
otherwise reduces the Commitments in accordance with the terms
hereof or
removes a Bank pursuant to the terms hereof, the addition of any
new bank shall
increase the aggregate Commitments; provided, however, that
the aggregate
Commitments shall at no time exceed $2,000,000,000. Any such
new bank shall
execute a consent in substantially the form attached hereto
as Exhibit K,
which executed
consent shall be provided by the Company
to
the
Administrative Agent. In addition, the Company may, from time to
time,
remove
any Bank from
Schedule 1 by written notice to each Bank and the
Administrative
Agent, so long as the
Company has satisfied all Obligations
to such removed
Bank as of the effective date of such removal. Upon such
removal,
the removed Bank shall no longer be deemed to
be a party to the
Agreement and
shall cease to have any rights or obligations pursuant hereto
except it shall
continue to be
entitled to the
indemnities
set forth in
Sections 2.12.4
and 2.15.
2.4.3. Commitments.
The Company may
permanently reduce the aggregate
Commitments
in whole or in part in multiples of $25,000,000, without
penalty,
upon
at least three Business Days written notice to the
Administrative
Agent, which shall specify the amount of any such reduction,
provided,
however, that the Commitments may not be
reduced below the then
outstanding
principal amount of the Syndicated Loans owing to the Banks. In
addition,
subject to the
provisions of Section
2.4.4, and so long as
the
aggregate Commitments do not
at any time exceed $2,000,000,000, the Company
may, from time
to time, increase any Bank's Commitment so long as such Bank
consents in
writing to such increased Commitment.
2.4.4. Consents.
Prior to adding any
bank to Schedule 1
pursuant to
Section
2.4.2 or increasing any Bank's Commitment pursuant to Section
2.4.3,
the Company shall give
written notice to each other Bank specifying
the action to be
taken and the
effective date of such
action. Each Bank
shall have ten
(10) Business Days from receipt of such notice to provide to
the Company
written notice that
such Bank does not consent to such action.
Within ten (10)
Business Days of receipt of any such
notice, the
Company
shall
either (i) rescind
such action and notify the Banks that such action
will not be
taken, or (ii) satisfy
all Obligations
to any Bank that
gave
such notice and
cause such Banks to be removed from Schedule 1.
2.4.5. Notice.
Within ten (10)
Business Days following the effective
date of the
addition or removal of
any Bank or the increase or decrease of
any Commitment, the Administrative Agent shall notify each Bank of
such
change.
2.5.
Determination of
Applicable Margin and Applicable Facility Fee Rate.
The Administrative Agent, using the per annum rates
set forth below, shall from
time to time determine the applicable margin used (in part) to calculate
the
Eurodollar Rate (the "Applicable Margin") and the rate used to
calculate the
Facility Fee (the "Applicable Facility Fee Rate"). If, at any time during the
term of this Agreement, the daily aggregate principal amount of Loans
outstanding hereunder (i) exceeds 50% of the
aggregate Commitments
hereunder,
the Administrative Agent shall refer to the
column titled "Applicable Eurodollar
Margin (utilization > 50%)" in the chart
below to determine the Applicable
Margin, or (ii) is equal to or less than 50% of the aggregate Commitments
hereunder, the Administrative Agent shall
refer to the column titled "Applicable
Eurodollar Margin (utilization = 50%)" in the chart below to determine the
Applicable Margin. The following per annum
rates correspond with ratings of the
Company's unsecured senior long-term
indebtedness (without
giving effect to any
third-party credit enhancement) by S&P
and Moody's.
<TABLE>
<S>
<C>
<C>
<C>
-------------------------------
---------------------------- ----------------------------
----------------------------
Pricing Levels
Applicable Eurodollar
Applicable Eurodollar
Applicable Facility Fee
Margin (utilization
Margin (utilization > 50%)
Rate
< or = to 50%)
-------------------------------
---------------------------- ----------------------------
----------------------------
Pricing Level I
0.19%
0.29%
0.060%
-------------------------------
---------------------------- ----------------------------
----------------------------
Pricing Level II
0.23%
0.33%
0.070%
-------------------------------
---------------------------- ----------------------------
----------------------------
Pricing
Level III
0.27%
0.37%
0.080%
-------------------------------
---------------------------- ----------------------------
----------------------------
Pricing Level IV
0.40%
0.50%
0.10%
-------------------------------
---------------------------- ----------------------------
----------------------------
Pricing Level V
0.525%
0.625%
0.125%
-------------------------------
---------------------------- ----------------------------
----------------------------
Pricing Level VI
0.70%
0.80%
0.20%
-------------------------------
---------------------------- ----------------------------
----------------------------
</TABLE>
For purposes of this Section 2.5, with
respect to the rating of the Company's
unsecured senior long-term indebtedness
(without giving effect to any
third-party credit enhancement) on any date
of determination, (i) "Pricing Level
I" means a rating of A or higher by either
S&P or Fitch or a rating of A2 or
higher by Moody's, (ii) "Pricing Level II"
means a rating of A- or higher by
either S&P or Fitch or a rating of A3
or higher by Moody's, and that the Company
does not qualify for Pricing Level I, (iii)
"Pricing Level III" means a rating
of BBB+ or higher by either S&P or
Fitch or a rating of Baa1 or higher by
Moody's, and that the Company does not
qualify for either Pricing Level I or
Pricing Level II, (iv) "Pricing Level IV"
means a rating of BBB or higher by
either S&P or Fitch or a rating of Baa2
or higher by Moody's, and that the
Company does not qualify for Pricing Level
I, Pricing Level II, or Pricing Level
III, (v) "Pricing Level V" means a rating
of BBB- or higher by either S&P or
Fitch or a rating of Baa3 or higher by
Moody's, and that the Company does not
qualify for Pricing Level I, Pricing Level
II, Pricing Level III, or Pricing
Level IV, and (vi) "Pricing Level VI" means
a rating of lower than BBB- by
either S&P or Fitch and a rating lower
than Baa3 by Moody's. If the Company's
unsecured senior long-term indebtedness
(without giving effect to any
third-party credit enhancement) is
split-rated by S&P, Fitch and Moody's, as
applicable, and the ratings differential is
one level, the better rating will
apply. For example, if the S&P rating
on any date of determination is A and the
Moody's rating on such date is A3, a rating
of A/A2 will apply and Pricing Level
I will be in effect on such date. If the
Company's unsecured senior long-term
indebtedness (without giving effect to any
third-party credit enhancement) is
split-rated by S&P, Fitch and Moody's,
as applicable, and the ratings
differential is two levels or more, then
the operative rating shall be one level
below the higher of the two ratings. For
example, if the S&P rating on any date
of determination is A and the Moody's
rating on such date is Baa2, a rating of
A-/A3 will apply and Pricing Level II will
be in effect. In the event all of the
S&P, Moody's and Fitch ratings differ,
then the Pricing Level shall be
determined using the highest of such
ratings and the lowest of such ratings. For
example, if the S&P rating on any date
of determination is A-, the Fitch rating
on such date is BBB+, and the Moody's
rating on such date is Baa2, the S&P and
Moody's ratings shall be used, and a rating
of BBB+/Baa1 will apply and Pricing
Level III will be in effect. The credit
rating in effect on any date for
purposes of this Section 2.5 is that rating
in effect at the close of business
on such date. If at any time the Company
has no credit rating from either S&P or
Moody's, Pricing Level VI shall then be in
effect.
2.6. Interest
Rates and Selection of Eurodollar Rates. Except as provided
in this Section 2.6, the Syndicated Notes shall bear interest at the
Alternate
Base Rate. Subject to the terms and
conditions of this
Agreement, the
Company
may elect from time to time to pay
interest at a Eurodollar Rate and for a
Eurodollar Interest Period selected hereunder for all or any portion of the
Syndicated Loans, by giving the
Administrative Agent
the appropriate
Borrowing
Notice (in the case of a new Syndicated
Loan) or a Rate Selection Notice (in the
case of an existing Syndicated Loan) in not less than
the Minimum Notice Period
applicable thereto. The unpaid principal amount of each
Eurodollar Loan shall
bear interest from and including the first
day of the Eurodollar Interest Period
applicable thereto to (but not including) the last day of such Eurodollar
Interest Period at the Eurodollar Rate
applicable to such Loan, and during such
Eurodollar Interest Period the Rate Option
applicable to such
Eurodollar Loan
shall not be changed by the Company or any Bank. If, at the end of an Interest
Period for an outstanding Eurodollar Loan, the Company fails to select a
new
Rate Option by giving a Rate
Selection Notice or to pay the Eurodollar Loan
after giving a Prepayment Notice in not less than the
Minimum Notice
Period
provided therefor, then such Loan shall be an
Alternate Base Rate
Loan on and
after the last day of such Eurodollar Interest Period until paid or until the
Effective Date of a new Rate Option. The Company may not select a
Eurodollar
Rate to apply to any portion of the
Syndicated
Loans if, on the
Effective Date
of such selection, there exists an Event of
Default or Potential Default.
2.7.
Restrictions on
Syndicated Loans,
Interest Periods and Conversion.
Each new Syndicated Loan and each conversion of a
Syndicated Loan to a new Rate
Option shall be in an amount of $25,000,000 or an integral multiple of
$5,000,000 in excess thereof. Eurodollar Loans at any one time outstanding
may
not be divided into more than 10 Interest
Periods without the prior consent of
the Administrative Agent. No Eurodollar Interest Period for any Loan made
by a
Bank shall extend beyond such Bank's
Termination Date.
2.8.
Interest Basis and Payment Dates. Interest on Alternate Base Rate
Loans shall be calculated for actual days elapsed on the
basis of a 365 or 366
day year and interest on Eurodollar Loans, Bid Absolute Rate Loans and fees
shall be computed on the basis of a year of 360 days
and actual days
elapsed.
The interest rate on Alternate Base Rate Loans shall change when and as the
Alternate Base Rate changes. Interest
accrued on Alternate Base Rate Loans shall
be payable quarterly in arrears on the 1st
day of each March,
June, September
and December to occur after the date
hereof, and upon any prepayment or at
maturity, whether by acceleration on the
Termination Date or otherwise. Interest
accrued on Fixed Rate Loans shall be payable on the last day
of the applicable
Interest Period and, in the case of an
Interest Period longer than three months
(or longer than 90 days in the case of a
Bid Absolute Rate Loan), interest shall
also be payable every three months (or every 90 days in the case of a Bid
Absolute Rate Loan) during the Interest
Period, upon any prepayment (whether due
to acceleration or otherwise) and on the
Termination
Date. If any Loan is
not
paid when due, whether at its scheduled
maturity or upon acceleration, interest
shall thereafter be payable on demand at the rate
set forth in Section
7.2.2.
Interest shall be payable for the day a
Loan is made but not for the day of any
payment on the amount paid if payment is
received by the
Administrative
Agent
prior to noon Chicago time.
2.9.
Payments.
2.9.1. Payment to Administrative Agent. Except to the extent
otherwise
provided herein,
all payments of
principal, interest
and other amounts to
be made by the
Company under this
Agreement and the Notes shall be made in
U.S. Dollars, in
immediately available
funds, to the Administrative Agent
to an
account maintained by the Administrative Agent with JPMCB or as
otherwise
directed by the Administrative Agent, not later than noon
Chicago
time on the date
on which such payment
shall become due (each such payment
made after such
time on such due date to be deemed to have been made on the
next succeeding
Business Day).
2.9.2. Application
of Payments. Without prejudice to the other
provisions of
this Agreement, the Company shall, at the time of making each
payment
under this
Agreement or any Note,
specify to the
Administrative
Agent the Loans
or other amounts payable by the Company hereunder to which
such
payment is to be applied (and in the event that it fails to so
specify,
or if an Event of
Default has occurred
and is continuing, the
Administrative
Agent may distribute such payment to the Banks in such
manner as it or
the Required Banks may determine to be appropriate, subject
to Section 2.19
hereof).
2.9.3. Payment to
Banks. Each payment received by the Administrative
Agent under this
Agreement or any Note
for account of a Bank shall be paid
promptly to such
Bank, in immediately
available funds, for account of such
Bank's
Applicable
Lending Installation for the Loan in respect of
which
such payment is
made.
2.9.4. Extension
for Business Day. If the due date of any payment
under this
Agreement or any Note would otherwise fall on a day which is
not
a Business Day
such date shall (unless otherwise expressly provided herein)
be extended to
the immediately
succeeding Business
Day and interest shall
be payable for any principal so
extended for the period of such extension.
2.10. Applicable
Lending Installations.
Each Bank may book the
Fixed Rate
Loans at any Applicable Lending
Installation selected by the Bank and may change
the Applicable Lending Installation from time to time,
provided that a Bank may
not change its Applicable Lending Installation to a new Applicable Lending
Installation if, at the time of such
change, the Company
would incur additional
costs pursuant to Section 2.13.
All terms of this
Agreement shall apply
to any
such Applicable Lending Installation and the Notes shall
be deemed held by each
Bank for the benefit of such Applicable
Lending Installation.
Each Bank may, by
written or telex notice to the Company and
the Administrative
Agent, designate
an Applicable Lending Installation through which Fixed Rate Loans are
made and
for whose account Fixed Rate Loan payments
are to be made.
2.11.
Failure to Pay or
Borrow on Certain
Dates. If (i) any payment or
interest rate conversion of a Fixed Rate Loan
occurs on a date which is not the
last day of an Interest Period, or (ii) a Fixed Rate Loan is not made on the
date specified in a Borrowing Notice, Bid
Quote Request or Rate Selection Notice
for any reason other than default by the
Banks, the Company
will indemnify each
Bank for any loss or cost incurred by it
resulting therefrom, including, without
limitation, any loss or cost in liquidating or
employing deposits
acquired to
fund or maintain the Fixed Rate Loan, but
excluding loss of
anticipated profit
for the period after such payment or
conversion.
2.12. Taxes.
2.12.1. Certification.
Each Bank and the
Administrative Agent
shall
submit
to the Company upon the execution of this Agreement, two duly
completed and
signed copies of either Form W-8BEN (relating to such Person
and entitling it
to a complete exemption from withholding on all amounts of
interest and
original issue discount to be received by such Person pursuant
to this
Agreement) or Form W-8ECI (relating to all amounts of
interest and
original
issue discount to be received by such Person pursuant to this
Agreement)
of the United States Internal Revenue Service; or of a
certificate
substantially in the
form of Exhibit C hereto. Thereafter and
from time to
time, each Bank and the Administrative Agent shall, subject to
Section
2.12.2 and 2.12.3,
submit to the
Company such additional duly
completed
and signed copies of one or the other of such forms (or such
successor,
additional or replacement forms as shall be adopted from time
to
time
by the relevant United States taxing authorities) or of such a
certificate
or form as the Company
may request from such
Person which may
be required by
United States Federal,
State or local tax
authorities
or
under then
current applicable law
or regulations in connection with United
States Federal,
State or local
withholding taxes on, or backup withholding
in respect of,
payments to be
received by such Person under the Notes and
this
Agreement.
2.12.2. Change
of Law. If any Bank or the Administrative Agent
determines,
as a result of any
change in applicable
law, regulation or
treaty, or in
any official publication or interpretation thereof, that it
is unable (after
taking any reasonable
steps available to it) to submit to
the Company any
form or forms or other
certification that such party would
otherwise have
been obliged to submit pursuant to Section 2.12.1, or that
such
party is required to withdraw or cancel any such form or forms
or
other
certification
previously submitted,
then such party shall
promptly
notify
the Company of such fact, whereupon the Company shall,
notwithstanding
any provision herein to the contrary, be entitled to
terminate
such Bank's Commitment. The Company will pay all principal,
interest,
fees and costs due under Section 2.11 due to such Bank in
connection with
any prepayment hereunder.
2.12.3. Withholding. If the Company or any paying agent is required
by
law or
regulation to make any deduction, withholding or backup
withholding
on account of
any taxes hereafter imposed, levied, collected, withheld or
assessed
by the United States, the United Kingdom or any other taxing
authority
(or any subdivision or taxing authority thereof or therein)
("Relevant
Taxes") from any payment to any Bank or the Administrative
Agent
under this
Agreement,
then the amount
payable in respect of
such payment
will be
increased to the amount which, after deduction from such
increased
amount of all
Relevant Taxes required to be withheld or deducted therefrom,
will yield the
amount required
under this
Agreement to be payable with
respect
thereto had no such
deduction, withholding
or backup
withholding
been required;
provided, however, that the Company shall not be required to
pay any
additional
amount on account of
any taxes of, or imposed by, the
United States of
America pursuant to this Section 2.12.3 to any Bank or the
Administrative
Agent, and shall not be required to
indemnify such
Person
pursuant to
Section 2.12.4, if such Person:
(a) is not entitled,
on the date this
Agreeme
