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Exhibit (10)(ii)
EXECUTION COPY
CREDIT AGREEMENT
Dated as of December 15, 1994
AMENDED AND RESTATED
as of July 14, 1997
Among
▇▇▇▇▇▇, INC.
as Borrower,
▇▇▇▇▇▇ FOODS HOLDINGS CORPORATION
and
WISE HOLDINGS, INC.
as Affiliate Guarantors,
and
THE BANKS NAMED HEREIN
as Banks,
CITIBANK, N.A.
as Administrative Agent,
BANKERS TRUST COMPANY
THE CHASE MANHATTAN BANK
CITIBANK, N.A.
CREDIT SUISSE FIRST BOSTON
as Lead Managing Agents
and
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
CITICORP SECURITIES, INC.
CREDIT SUISSE FIRST BOSTON
as Arrangers
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T A B L E O F C O N T E N T S
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms............................................... 1
1.02. Computation of Time Periods......................................... 25
1.03. Accounting Terms.................................................... 25
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
2.01. The Advances........................................................ 25
2.02. Making the Advances................................................. 26
2.03. The Competitive Bid Advances........................................ 29
2.04. Repayment........................................................... 33
2.05. Reduction of the Commitments........................................ 33
2.06. Application of Certain Proceeds..................................... 33
2.07. Prepayments......................................................... 36
2.08. Interest............................................................ 37
2.09. Fees................................................................ 37
2.10. Conversion of Advances.............................................. 38
2.11. Increased Costs, Etc................................................ 38
2.12. Payments and Computations........................................... 40
2.13. Taxes............................................................... 42
2.14. Sharing of Payments, Etc............................................ 44
2.15. Letters of Credit................................................... 45
2.16. Use of Proceeds..................................................... 48
2.17. Defaulting Lenders.................................................. 48
2.18. Option to Replace Lenders........................................... 51
2.19. Increase in the Aggregate Commitments............................... 51
ARTICLE III
CONDITIONS PRECEDENT
3.01. Conditions Precedent to Certain Borrowings and Issuances............ 53
3.02. Conditions Precedent to Each Competitive Bid Borrowing.............. 53
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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SECTION PAGE
4.01. Representations and Warranties of the Obligated Parties............. 54
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants............................................... 58
5.02. Negative Covenants.................................................. 60
5.03. Reporting Requirements.............................................. 65
5.04. Financial Covenants................................................. 69
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default................................................... 71
6.02. Actions in Respect of the Letters of Credit upon Default............ 73
ARTICLE VII
GUARANTY
7.01. Unconditional Guaranty; Limitation of Liability..................... 74
7.02. Guaranty Absolute................................................... 74
7.03. Waivers............................................................. 76
7.04. Subrogation......................................................... 76
7.05. Release and Termination............................................. 77
ARTICLE VIII
THE AGENTS
8.01. Authorization and Action............................................ 78
8.02. Reliance, Etc....................................................... 78
8.03. Lead Managing Agents and Affiliates................................. 79
8.04. Lender Credit Decision.............................................. 79
8.05. Indemnification..................................................... 79
8.06. Successor Administrative Agent...................................... 80
ARTICLE IX
MISCELLANEOUS
9.01. Amendments, Etc..................................................... 81
9.02. Notices, Etc........................................................ 81
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9.03. No Waiver; Remedies................................................. 82
9.04. Costs and Expenses.................................................. 82
9.05. Right of Set-Off.................................................... 84
9.06. Binding Effect...................................................... 85
9.07. Assignments and Participations...................................... 85
9.08. Governing Law....................................................... 88
9.09. Execution in Counterparts........................................... 88
9.10. Confidentiality..................................................... 88
9.11. No Liability of the Issuing Banks................................... 88
9.12. Redesign............................................................ 89
9.13. Waiver of Jury Trial................................................ 89
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CREDIT AGREEMENT
DATED AS OF DECEMBER 15, 1994
AMENDED AND RESTATED
AS OF JULY 14, 1997
CREDIT AGREEMENT dated as of December 15, 1994, Amended and
Restated as of July 14, 1997 among ▇▇▇▇▇▇, Inc., a New Jersey corporation (the
"Borrower"), ▇▇▇▇▇▇ Foods Holdings Corporation, a Delaware corporation ("Foods
Holdings"), Wise Holdings, Inc., a Delaware corporation ("Wise Holdings" and,
together with Foods Holdings, the "Affiliate Guarantors"), the banks (the
"Banks") listed on the signature pages hereof, Citibank, N.A. ("Citibank"), as
administrative agent (together with any successor appointed pursuant to Article
VIII, the "Administrative Agent") for the Lenders (as hereinafter defined) and
the Swing Line Bank (as hereinafter defined), BT Securities Corporation ("BT
Securities"), Chase Securities Inc. ("Chase Securities"), Citicorp Securities,
Inc. and Credit Suisse First Boston ("Credit Suisse First Boston"), as arrangers
(the "Arrangers"), BT Securities and Chase Securities, as co-syndication agents,
and Credit Suisse First Boston, as Issuing Bank (as defined below) and
documentation agent.
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):
"Acquired Entity" means any Person, business unit or assets of
any Person invested in or acquired by any Affiliate Guarantor, the
Borrower or any of their respective Subsidiaries.
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative
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Agent with Citibank at its office at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. 3685 2248, Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇.
"Advance" means a Working Capital Advance, a Swing Line
Advance, a Competitive Bid Advance or a Letter of Credit Advance.
"Affiliate" means, as to any Person (other than a Subsidiary),
any other Person that, directly or indirectly, controls, is controlled
by or is under common control with such Person or is a director or
officer of such Person. For purposes of this definition, the term
"control" (including the terms "controlling," "controlled by" and
"under common control with") of a Person means the possession, direct
or indirect, of the power to vote 10% or more of the Voting Stock of
such Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock,
by contract or otherwise.
"Affiliate Assumption Agreement" means an agreement
substantially in the form of Exhibit E hereto.
"Affiliate Guarantors" means each of Foods Holdings, Wise
Holdings and, after any transfer of the Dairy Business to an Affiliate
that executes an Affiliate Assumption Agreement, such Affiliate, in
each case until it is released from its guarantee obligations under
Article VII in accordance with the provisions of Section 7.05.
"Affiliate Notes" means the senior notes issued by any
Affiliate Guarantor or any of its Subsidiaries to the Borrower as
consideration for the transfer of certain assets.
"Agents" means, collectively, the Administrative Agent, the
Lead Managing Agents and the Arrangers.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the
Administrative Agent as its Applicable Lending Office with respect to
such Competitive Bid Advance.
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"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Performance Level in effect on
such date as set forth below:
----------------------------------------------------------------------------------------
Applicable Margin for
Applicable Margin for Eurodollar Rate
Performance Level Base Rate Advances Advances
----------------------------------------------------------------------------------------
Level 1 0% .25%
----------------------------------------------------------------------------------------
▇▇▇▇▇ ▇ 0% .375%
----------------------------------------------------------------------------------------
▇▇▇▇▇ ▇ 0% .50%
----------------------------------------------------------------------------------------
▇▇▇▇▇ ▇ 0% .60%
----------------------------------------------------------------------------------------
▇▇▇▇▇ ▇ 0% .875%
----------------------------------------------------------------------------------------
▇▇▇▇▇ ▇ .125% 1.125%
----------------------------------------------------------------------------------------
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Performance Level in effect on
such date as set forth below:
--------------------------------------------------------------------------------
Applicable
Performance Level Percentage
--------------------------------------------------------------------------------
Level 1 .10%
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ .15%
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ .20%
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ .20%
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ .375%
--------------------------------------------------------------------------------
Level 6 .50%
--------------------------------------------------------------------------------
"Appropriate Lender" means, at any time, with respect to (a)
any of the Letter of Credit Facility Sublimit or Working Capital
Facility, a Lender that has a Commitment with respect to such Facility
at such time and (b) the Swing Line Facility, (i) the Swing Line Bank
and (ii) if any other Working Capital Lenders have made Swing Line
Advances pursuant to Section 2.02(b) that are outstanding at such time,
each such other Working Capital Lender.
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"Arrangers" has the meaning specified in the recital of
parties to this Agreement.
"Asset Proceeds" means the aggregate value received in
connection with the sale of assets or the sale of options to acquire
assets of the Affiliate Guarantors, the Borrower and any of their
respective Subsidiaries (other than Excluded Asset Sales) after
deducting therefrom only (a) the costs of sale including reasonable
brokerage commissions, underwriting fees and discounts, legal fees,
finder's fees, severance, legacy and similar costs and other similar
fees and commissions, (b) the amount of taxes paid or estimated to be
payable during the then current or next fiscal year in connection with
or as a result of such transaction and reasonable reserves associated
therewith (including such amounts paid or payable by direct or indirect
partners, members or other holders of direct or indirect equity or
other ownership interests in the assets or options subject to such
sale), (c) the amount of any Indebtedness related to such asset that,
by the terms of such transaction, is required to be repaid upon such
disposition and (d) any such other reasonable exit costs related to
such transaction, in each case to the extent, but only to the extent,
that the amounts so deducted are properly attributable to such
transaction or to the asset that is the subject thereof.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 9.07 and in
substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section
2.19(d).
"Assumption Agreement" has the meaning specified in Section
2.19(d)(ii).
"Attributable Share" means (a) with respect to any Person of
which an Obligated Party directly or indirectly owns or
controls up to 50% of the equity interests, 0%, (b) with
respect to any Person of which an Obligated Party directly or
indirectly owns or control more than 50% but less than 90% of
the equity interests, such percentage equity interest directly
or indirectly owned or controlled and (c) with respect to any
Person of which an Obligated Party directly or
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indirectly owns or controls 90% or more of the equity
interests, 100%.
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"Bank" has the meaning specified in the recital of parties to
this Agreement.
"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 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%)
of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in
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the United States, plus (iii) the average during such
three-week period of the annual assessment rates reasonably
estimated by Citibank for determining the then current annual
assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S.
dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.08(a)(i).
"▇▇▇▇▇▇ Holdings" means ▇▇▇▇▇▇ Holdings, Inc., a Delaware
corporation.
"▇▇▇▇▇▇ Holdings Notes" means the senior notes originally
issued by ▇▇▇▇▇▇ Holdings on September 29, 1995 in the original
aggregate principal amount of $614,368,775 in the form of Exhibit G
hereto.
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrowing" means a Competitive Bid Borrowing, a Working
Capital Borrowing or a Swing Line Borrowing.
"BT" means Bankers Trust Company.
"BT Securities" has the meaning specified in the recital of
parties to this Agreement.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings
are carried on in the London interbank eurodollar market.
"Capital Expenditures" means for any period, the aggregate of
all expenditures (whether paid in cash or accrued as liabilities and
including in all events all amounts expended or capitalized under
Capitalized Leases but excluding any amount representing capitalized
interest) by the Affiliate Guarantors, the Borrower and their
respective Subsidiaries during such period that, in conformity with
GAAP, are or are required to be included as additions during
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such period to property, plant or equipment reflected in the Combined
balance sheet of the Affiliate Guarantors, the Borrower and their
respective Subsidiaries, provided that Capital Expenditures shall in
any event exclude (a) expenditures made in connection with the
replacement, substitution or restoration of assets (i) to the extent
financed from insurance proceeds paid on account of the loss of or
damage to the assets being replaced or restored or (ii) with awards of
compensation arising from the taking by eminent domain or condemnation
of the assets being replaced, (b) the purchase price of equipment that
is purchased simultaneously with the trade-in of existing equipment to
the extent that the gross amount of such purchase price is reduced by
the credit granted by the seller of such equipment for the equipment
being traded in at such time and (c) the purchase of plant, property
and equipment made within 270 days of the sale of a similar asset.
"Capitalized Leases" has the meaning specified in clause (e)
of the definition of Debt.
"Cash Equivalents" means (i) securities issued or
unconditionally guaranteed by the United States Government or any
agency or instrumentality thereof, in each case having maturities of
not more than twelve months from the date of acquisition thereof; (ii)
securities issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality
thereof having maturities of not more than twelve months from the date
of acquisition thereof and, at the time of acquisition, having the
highest rating generally obtainable from either S&P or ▇▇▇▇▇'▇ (or, if
at any time neither S&P nor ▇▇▇▇▇'▇ shall be rating such obligations,
then from another nationally recognized rating service); (iii)
commercial paper issued by any Lender or any bank holding company
owning any Lender; (iv) commercial paper maturing no more than twelve
months after the date of creation thereof and, at the time of
acquisition, having a rating of at least A-1 or P-1 from either S&P or
▇▇▇▇▇'▇ (or, if at any time neither S&P nor ▇▇▇▇▇'▇ shall be rating
such obligations, then an equivalent rating from another nationally
recognized rating service); (v) domestic and eurodollar certificates of
deposit or bankers' acceptances maturing no more than one year after
the date of acquisition thereof issued by any Lender or any other bank
having combined capital and surplus of not less than $250,000,000 in
the case of domestic banks and $100,000,000 (or the
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dollar equivalent thereof) in the foreign banks; (vi) repurchase
agreements with a term of not more than seven days for underlying
securities of the type described in clauses (i), (ii) and (v) above
entered into with any bank meeting the qualifications specified in
clause (v) above or securities dealers of recognized national standing;
and (vii) other customarily utilized high quality instruments in
countries where the Borrower's or any Affiliate Guarantor's foreign
Subsidiaries are located.
"Chase" means The Chase Manhattan Bank.
"Chase Securities" has the meaning specified in the recital of
parties to this Agreement.
"Citibank" has the meaning specified in the recital of parties
to this Agreement.
"Combined" refers to the combination of accounts in accordance
with GAAP.
"Commitment" means a Working Capital Commitment or a Letter of
Credit Commitment.
"Commitment Date" has the meaning specified in Section
2.19(b).
"Commitment Increase" has the meaning specified in Section
2.19(a).
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
auction bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the auction bidding procedure
described in Section 2.03.
"Competitive Bid Note" means the promissory note of the
Borrower payable to the order of the Administrative Agent for the
benefit of each Lender making a Competitive Bid Advance, in
substantially the form of Exhibit A-3 hereto,
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evidencing the indebtedness of the Borrower to the Lenders resulting
from Competitive Bid Advances made by the Lenders.
"Competitive Bid Register" has the meaning specified in
Section 2.03(a)(vi).
"Confidential Information" means information that the Borrower
or any Affiliate Guarantor furnishes to any 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 such Agent or such Lender from a source
other than the Borrower or any Affiliate Guarantor.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Conversion," "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.10 or 2.11.
"Credit Suisse First Boston" has the meaning specified in the
recital of parties to this Agreement.
"Dairy Business" means the Dairy business of the Borrower as
reflected in the total adjusted balance sheet and statements of income
and cash flows of Meadow Gold Dairies West as of December 31, 1996,
with such changes as are related to the ordinary course of the
Borrower's Dairy business and including any additions to such business
permitted hereunder.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables and accrued expenses arising in the ordinary
course of business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
obligations of such Person created or arising under any conditional
sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations
of such Person as lessee under leases that have been, in accordance
with GAAP, recorded as capital leases
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("Capitalized Leases") and (f) all Debt referred to in clauses (a)
through (e) above secured by any Lien on property owned by such Person,
even though such Person has not assumed or become liable for the
payment of such Debt, but only to the extent that, in accordance with
GAAP, such Debt would be reflected on the financial statements of such
Person.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender at any
time, the amount of any Advance required to be made by such Lender to
the Borrower pursuant to Section 2.01 at or prior to such time which
has not been so made as of such time; provided, however, any Advance
made by the Administrative Agent for the account of such Lender
pursuant to Section 2.02(e) shall not be considered a Defaulted Advance
even if, at such time, such Lender shall not have reimbursed the
Administrative Agent therefor as provided in Section 2.02(e). In the
event that a portion of a Defaulted Advance shall be deemed made
pursuant to Section 2.17(a), the remaining portion of such Defaulted
Advance shall be considered a Defaulted Advance originally required to
be made pursuant to Section 2.01 on the same date as the Defaulted
Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender at any
time, any amount required to be paid by such Lender to the
Administrative Agent or any other Lender hereunder or under any other
Loan Document at or prior to such time which has not been so paid as of
such time, including, without limitation, any amount required to be
paid by such Lender to (a) the Swing Line Bank pursuant to Section
2.02(b) to purchase a portion of the Swing Line Advances made by the
Swing Line Bank, (b) any Issuing Bank pursuant to Section 2.15(b) to
purchase a portion of a Letter of Credit Advance made by such Issuing
Bank, (c) the Administrative Agent pursuant to Section 2.02(e) to
reimburse the Administrative Agent for the amount of any Advance made
by the Administrative Agent for the account of such Lender, (d) any
other Lender pursuant to Section 2.14 to purchase any participation in
Advances owing to such other Lender and (e) the Administrative Agent
pursuant to Section 8.05 to reimburse the Administrative Agent for such
Lender's ratable share of any amount required to be paid by the Lenders
to
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the Administrative Agent as provided therein. In the event that a
portion of a Defaulted Amount shall be deemed paid pursuant to Section
2.17(b), the remaining portion of such Defaulted Amount shall be
considered a Defaulted Amount originally required to be made hereunder
or under any other Loan Document on the same date as the Defaulted
Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender that, at
such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take or be the subject of any action or proceeding of a type
described in Section 6.01(f).
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and Acceptance, as the case may be, pursuant to which
it became a Lender, or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Administrative
Agent.
"EBITDA" means, for any period, net income (or net loss) plus
the sum, without duplication, of (a) Net Interest Expense, (b) income
tax expense, (c) depreciation expense, (d) amortization expense, (e)
extraordinary or unusual losses included in net income (net of taxes to
the extent not already deducted in determining such losses and net of
extraordinary or unusual gains included in net income) including,
without limitation, cumulative effects of accounting changes,
discontinued operations, restructuring charges and non-cash charges,
(f) amortization of deferred financing fees and debt discount, (g)
other non-cash charges, (h) gains or losses on asset sales (including
sales of accounts receivable), (i) severance and similar expenses, (j)
dividends accrued on securities other than common stock, in each case
determined in accordance with GAAP for such period and (k) any
deduction from such net income for minority interests held by
management for such period.
"Eligible Assignee" means any of (i) a commercial bank
organized under the laws of the United States, or any State thereof,
and having a combined capital and surplus of at least $250,000,000;
(ii) a savings and loan association or savings bank organized under the
laws of the United States, or any State thereof, and having a combined
capital and surplus of at least $250,000,000; (iii) a commercial bank
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organized under the laws of any other country that is a member of the
OECD or has concluded special lending arrangements with the
International Monetary Fund associated with its General Arrangements to
Borrow, or a political subdivision of any such country, and having a
combined capital and surplus of at least $250,000,000, 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 (iii); (iv) the central bank of any country
that is a member of the OECD; and (v) a finance company, insurance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary
course of its business and having a combined capital and surplus of at
least $100,000,000, in each case as approved by the Arrangers and the
Borrower, such approval not to be unreasonably withheld or delayed;
provided, however, that an Affiliate or Subsidiary of the Borrower
shall not qualify as an Eligible Assignee under this definition.
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of non-compliance or violation, investigations or
proceedings relating in any way to any Environmental Law (hereafter
"Claims") or any permit issued under any such law, including without
limitation (a) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law
and (b) any and all Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from
alleged injury or threat or injury to health, safety or the
environment.
"Environmental Law" means any federal, state, provincial or
local statute, law, rule, regulation, ordinance, code, policy or rule
of common law now or hereafter in effect and in each case as amended,
and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment,
relating to the environment, health, safety or Hazardous Materials.
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"Equity Proceeds" means gross proceeds received by any
Affiliate Guarantor, the Borrower or any of their respective
Subsidiaries from (a) the sale or issuance of any equity security of
such Affiliate Guarantor, the Borrower or such Subsidiary whether by
means of any public offering or private placement or (b) cash capital
contributions to the Borrower or such Affiliate Guarantor from time to
time.
"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 each person (as defined in Section
3(9) of ERISA) which together with the Borrower, any Affiliate
Guarantor or any Subsidiary of the Borrower or any Affiliate Guarantor
would be deemed to be a "single employer" within the meaning of Section
414 (b), (c), (m) or (o) of the Internal Revenue Code.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and Acceptance, as the case may be, pursuant to which
it became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may
from time to time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M. (London Time)
two Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurodollar Rate
Advance comprising part of such Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest
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14
Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period. The Eurodollar Rate for
any Interest Period for each Eurodollar Rate Advance comprising part of
the same Borrowing shall be determined by the Administrative Agent on
the basis of applicable rates furnished to and received by the
Administrative Agent from the Reference Banks two Business Days before
the first day of such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.08(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage if and to the extent actually 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 reserve
requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for each Lender with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on Eurodollar
Rate Advances is determined) having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Asset Sales" means (i) sales of inventory and other
assets (including, without limitation, worn out or obsolete equipment)
in the ordinary course of business, (ii) sales of accounts receivable
pursuant to Section 5.02(d) and (iii) sales of plant, property and
equipment to the extent that the proceeds thereof are used to purchase
a similar asset within 270 days of such sale.
"Existing Credit Agreement" means the Credit Agreement dated
as of December 15, 1994, Amended and Restated as of May 7, 1996 among
the Borrower, Foods Holdings, Wise Holdings, the banks named therein,
Citibank, as administrative agent, and BT Securities, Chase Securities,
Citicorp Securities and Credit Suisse, as arrangers, BT Securities and
Chase Securities, as co-syndication agents,
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15
and Credit Suisse, as issuing bank and documentation agent, as amended
prior to the date hereof.
"Existing Indebtedness" means Indebtedness of the Borrower and
its Subsidiaries outstanding on the date of the Existing Credit
Agreement.
"Facility" means the Working Capital Facility, the Letter of
Credit Facility Sublimit or the Swing Line Facility.
"Fair Market Value" means, (a) with respect to any asset or
Option sold to any Person that is an Affiliate of any Obligated Party
for consideration of $10,000,000 or more, the fair market value of such
asset or Option as determined by the Board of Directors of the Borrower
and (b) with respect to any other asset sold for consideration of
$10,000,000 or more or Option, the value that the Board of Directors of
the Person owning such asset or the stock or assets subject to such
Option determines to be the fair market value of such asset or Option;
provided, in each case, that (i) the consideration so determined to
equal such fair market value may include notes or other evidence of
indebtedness and (ii) the fair market value of Options with respect to
the issuance of Options on assets to be held by ▇▇▇▇▇▇ Foods Holdings
Corporation and its Subsidiaries will be represented by ▇▇▇▇▇▇ Holdings
Notes in an aggregate principal amount of up to $95,000,000, unless,
subject to Section 9.12, the Borrower shall have obtained an appraisal
of the fair market value of such Option from a nationally recognized
investment banker selected by the Borrower.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
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16
"Foods Business" means the business of Foods Holdings and its
Subsidiaries.
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in Section
7.01.
"Hazardous Materials" means (a) petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could
become friable, urea formaldehyde foam insulation, transformers or
other equipment that contained electric fluid containing levels of
polychlorinated biphenyls and radon gas, (b) any chemicals, materials
or substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely
hazardous wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants," "contaminants" or "pollutants," or words of similar
import, under any applicable Environmental Law and (c) any other
chemical, material or substance, exposure to which is prohibited,
limited or regulated by any governmental authority.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Increase Date" has the meaning specified in Section 2.19(a).
"Increasing Lender" has the meaning specified in Section
2.19(b).
"Indebtedness" of any Person means, without duplication, (a)
all Debt of such Person, (b) all obligations, contingent or otherwise,
of such Person under acceptance, letter of credit or similar
facilities, (c) all obligations of such Person in respect of Hedge
Agreements and (d) all Indebtedness of others referred to in clauses
(a) through (c) above guaranteed directly or indirectly in any manner
by such Person, or in effect guaranteed directly or indirectly by such
Person through an agreement (i) to pay or purchase such Indebtedness or
to advance or supply funds for the payment or purchase of such
Indebtedness, (ii) to purchase, sell or lease (as lessee or
21
17
lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Indebtedness or
to assure the holder of such Indebtedness against loss, (iii) to supply
funds to or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (iv) otherwise
to assure a creditor against loss; provided, however, that amount so
guaranteed shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any such
guarantee obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of
which such guarantee obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
"Indemnified Party" has the meaning specified in Section
9.04(b).
"Information Memorandum" means the information memorandum
dated November 16, 1994 used by the Arrangers in connection with the
syndication of the Commitments.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three, six or, to the extent available in the reasonable
judgment of the Administrative Agent, nine or twelve months, as the
Borrower may, upon notice received by the Administrative Agent not
later than 11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided,
however, that:
(a) the Borrower may not select any Interest Period
that ends after the Termination Date;
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18
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) 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
(d) 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.
"Investment Grade Rating" means the Borrower's long term
senior unsecured public debt is rated at least BBB- by S&P or Baa3 by
Moody's.
"Issuing Bank" means Credit Suisse First Boston, and any other
Lender that is a commercial bank, acting through a domestic branch, as
issuer of a Letter of Credit.
"KKR" has the meaning specified in Section 5.01(h).
"L/C Account" means an account to be established by the
Borrower with the Administrative Agent pursuant to an agreement in form
and substance reasonably satisfactory to the Administrative Agent.
"L/C Related Documents" has the meaning specified in Section
2.15(d).
"Lead Managing Agents" means BT, Chase, Citibank and Credit
Suisse First Boston.
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19
"Lenders" means the Banks listed on the signature pages
hereof, each Assuming Lender that shall become a party hereto pursuant
to Section 2.19 and each Eligible Assignee that shall become a party
hereto pursuant to Section 9.07.
"Letter of Credit Advance" means an advance made by any
Issuing Bank or any Working Capital Lender pursuant to Section 2.15(c).
"Letter of Credit Agreement" has the meaning specified in
Section 2.15(b).
"Letter of Credit Commitment" means, with respect to any
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Letter of Credit Commitment" or,
if such Lender has entered into one or more Assignments and
Acceptances, set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 9.07(c) as such Lender's
"Letter of Credit Commitment," as such amount may be reduced at or
prior to such time pursuant to Sections 2.05 and 2.06.
"Letter of Credit Facility Sublimit" means $300,000,000.
"Letters of Credit" has the meaning specified in Section
2.15(a).
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor.
"Loan Documents" means this Agreement, the Notes and each
Letter of Credit Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any change in the business,
condition (financial or otherwise), operations, performance or
properties of the Affiliate Guarantors, the Borrower and their
respective Subsidiaries taken as a whole
24
20
that would materially adversely affect the ability of the Borrower or
any Affiliate Guarantor to perform its obligations under this Agreement
and the other Loan Documents to which it is a party (taken as a whole).
"Material Adverse Effect" means a circumstance or condition
affecting the business, condition (financial or otherwise), operations,
performance or properties of the Affiliate Guarantors, the Borrower and
their respective Subsidiaries taken as a whole which would materially
adversely affect (a) the ability of the Borrower and the Affiliate
Guarantors, taken as a whole, to perform their obligations under this
Agreement, the Notes and the other Loan Documents to which any of them
is a party (taken as a whole) or (b) the rights and remedies of the
Administrative Agent or any Lender under this Agreement and the other
Loan Documents (taken as a whole).
"Material Subsidiary" means each Subsidiary of the Borrower or
any Affiliate Guarantor now existing or hereafter acquired or formed by
the Borrower or any Affiliate Guarantor which (x) for the most recent
fiscal year of the Borrower and the Affiliate Guarantors, accounted for
more than 3% of the Combined revenues of the Borrower and the Affiliate
Guarantors, taken as a whole, or (y) as at the end of such fiscal year,
was the owner of more than 4% of the Combined assets of the Borrower
and the Affiliate Guarantors, taken as a whole, in each case as shown
on the Combined financial statements of the Affiliate Guarantors, the
Borrower and their respective Subsidiaries for such fiscal year.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any
successor by merger or consolidation to its business.
"Net Interest Expense" means, for any fiscal period of the
Borrower, the aggregate of (a) interest expense on all Debt of the
Affiliate Guarantors, the Borrower and their respective Subsidiaries,
net of interest income, in accordance with GAAP (excluding, in any
event, interest expense, if any, on overdue tax assessments and
amortization of financing fees and debt discount) and (b) dividends
required to be paid on Preferred Stock permitted by Section
5.02(f)(ii).
"Note" means the Competitive Bid Note or a Working Capital
Note.
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21
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Issuance" has the meaning specified in Section
2.15(b).
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
"Obligated Parties" means the Borrower and, until it is
released from its guarantee obligations under Article VII in accordance
with the provisions of Section 7.05, each Affiliate Guarantor.
"OECD" means the Organization for Economic Cooperation and
Development.
"Option Exercise Proceeds" means the aggregate value received
in connection with the exercise of Options.
"Options" means the options acquired by Persons other than
officers, directors and employees of the Affiliate Guarantors, the
Borrower and their respective Subsidiaries to acquire stock or certain
assets of the Affiliate Guarantors, the Borrower or their respective
Subsidiaries.
"Other Taxes" has the meaning specified in Section 2.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof.
"Performance Level" means, as of any date of determination,
the numerically lowest level set forth below as then in effect, as
determined in accordance with the following provision of this
definition:
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ Ratio is less than 2.00:1.00;
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ Ratio is 2.00:1.00 or greater but
less than 2.50:1.00;
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22
Level 3 Total Debt/EBITDA Ratio is 2.50:1.00 or greater but
less than 3.00:1.00;
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ Ratio is 3.00:1.00 or greater but
less than 3.50:1.00;
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ Ratio is 3:50:1.00 or greater but
less than 4:00:1.00;
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ Ratio is 4:00:1.00 or greater;
provided, for purposes of this definition, the Performance Level shall
be determined as at the end of each of the first three fiscal quarters
of the Borrower and as of the end of the fiscal year of the Borrower,
based on the relevant financial statements delivered pursuant to
Section 5.03; changes in the Performance Level shall become effective
on the date such financial statements are delivered to the Lenders and
shall remain in effect until the next change to be effected pursuant to
this definition.
"Permitted Liens" means (a) Liens for taxes, assessments or
governmental charges or claims not yet due or which are being contested
in good faith and by appropriate proceedings for which appropriate
reserves have been established in accordance with GAAP; (b) Liens in
respect of property or assets of any Affiliate Guarantor, the Borrower
or any of their respective Subsidiaries imposed by law which are
incurred in the ordinary course of business, such as carriers',
warehousemen's and mechanics' Liens and other similar Liens arising in
the ordinary course of business, and which do not individually or in
the aggregate have a Material Adverse Effect; (c) Liens on assets of
any Affiliate Guarantor, the Borrower or any of their respective
Subsidiaries existing on the date hereof securing Indebtedness in an
aggregate principal amount not to exceed $5,000,000 or arising pursuant
to any of the Loan Documents; (d) Liens arising from judgments or
decrees in circumstances not constituting an Event of Default under
Section 6.01(g); (e) Liens incurred or deposits made in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business; (f) leases or
subleases granted
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23
to others not interfering in any material respect with the business of
the Affiliate Guarantors, the Borrower and their respective
Subsidiaries taken as a whole; (g) ground leases in respect of real
property on which facilities owned or leased by any Affiliate
Guarantor, the Borrower or any of their respective Subsidiaries are
located; (h) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business of the Affiliate
Guarantors, the Borrower and their respective Subsidiaries taken as a
whole; (i) any interest or title of a lessor or secured by a lessor's
interest under any lease permitted by this Agreement; (j) Liens in
favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of
goods; (k) Liens on goods the purchase price of which is financed by a
documentary letter of credit issued for the account of any Affiliate
Guarantor, the Borrower or any of their respective Subsidiaries where
such Lien secures the obligations of such Affiliate Guarantor, the
Borrower or such Subsidiaries in respect of such letter of credit to
the extent permitted under Section 5.02(b); (l) Liens on assets
permitted to be acquired hereunder; provided that such Liens were
existing at the time of such acquisition and were not created in
anticipation thereof; and (m) Liens granted in connection with any
foreign contract option, futures contract or similar agreement designed
to protect any Affiliate Guarantor, the Borrower or any of their
respective Subsidiaries from fluctuations in the price of commodities,
provided that such Liens attach solely to the commodities which are the
subject of such options, contracts or agreements.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"Plan" means any multiemployer or single-employer plan as
defined in Section 4001 of ERISA and which is covered by Title IV of
ERISA, which is maintained or contributed to (or to which there is an
obligation to contribute), by any Affiliate Guarantor, the Borrower,
any of their respective Subsidiaries or any ERISA Affiliate.
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24
"Preferred Stock" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a
preference or priority over any other capital stock issued by such
corporation upon any distribution of such corporation's assets, whether
by dividend or upon liquidation.
"Pro Forma EBITDA" means, for any period, (a) the sum of (i)
EBITDA, (ii) from and after the making of any investment or acquisition
in or of an Acquired Entity during such period, the Obligated Parties'
Attributable Share of the EBITDA of each Acquired Entity so invested in
or acquired for such period (including the portion thereof accruing
prior to the date of such acquisition or investment and determined as
of the last day of such period) and (iii) an amount equal to 50% of the
increase or decrease in EBITDA of such Acquired Entity that the
Borrower in good faith projects will occur as a result of reasonably
identifiable and supportable net cost savings or additional net costs
that are projected to be realizable during such period by combining the
operations of such Acquired Entity with the operations of the Borrower,
an Affiliate Guarantor or any of their respective Subsidiaries;
provided that, so long as such net cost savings or additional net costs
are projected to be realizable at any time during such period it shall
be assumed, for purposes of projecting such pro forma increase or
decrease in EBITDA of such Acquired Entity, that such net cost savings
or additional net costs will be realizable during the entire such
period; provided further that any such pro forma increase or decrease
in EBITDA of such Acquired Entity shall be without duplication of any
net cost savings or additional net costs actually realized during such
period and already included in clause (ii) above; minus (b) from and
after the disposition outside of the ordinary course of business of any
assets constituting a business unit or any Subsidiary, (i) the
proportion of the EBITDA of such assets or Subsidiary so disposed of
for cash consideration and (ii) with respect to any such period of
determination ended on or after the last day of the next full fiscal
quarter following the date of such disposition, the proportion of the
EBITDA of such assets or Subsidiary so disposed of for consideration
other than cash. For purposes of the foregoing, clauses (a)(ii) and (b)
above shall not apply to any investment, acquisition or disposition
made prior to December 31, 1996.
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"Ratable Share" of any amount means, with respect to any
Working Capital Lender at any time, the product of (a) a fraction the
numerator of which is the amount of such Lender's Working Capital
Commitment at such time and the denominator of which is the Working
Capital Facility at such time and (b) such amount.
"Real Property" of any Person means all of the right, title
and interest of such Person in and to land, improvements and fixtures,
including leaseholds.
"Receivables Financing Transaction" means any financing
secured by or based on the sale or transfer of, accounts receivable of
any Affiliate Guarantor, the Borrower or any of their respective
Subsidiaries on terms and conditions reasonably satisfactory to the
Required Lenders; provided that the aggregate program amount of
Receivable Financing Transactions shall not exceed $350,000,000.
"Redesign" means the restructuring of the businesses of the
Borrower, as more fully described on Schedule II hereto.
"Redesign Documents" means ▇▇▇▇▇▇ Holdings Notes held by the
Borrower, each Option Agreement for stock in substantially the form of
Exhibit K hereto, each Option Agreement for assets in substantially the
form of Exhibit L hereto, each Conveyance and Transfer Agreement in
substantially the form of Exhibit I hereto and the Limited Partnership
Agreement of BFC Investments, L.P. in substantially the form of Exhibit
H hereto.
"Reference Banks" means BT, Chase, Citibank and Credit Suisse
First Boston.
"Register" has the meaning specified in Section 9.07(c).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Replacement Lender" has the meaning specified in Section
2.18.
"Reportable Event" means an event described in Section 4043(b)
of ERISA with respect to a Plan as to which the 30-day notice
requirement has not been waived by the PBGC.
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26
"Required Lenders" means at any time Lenders having at least
51% of the Working Capital Commitments or, if the Working Capital
Commitments have been terminated, Lenders owed or holding at least 51%
of the aggregate principal amount of Advances outstanding at such time.
"Restatement Date" means July 14, 1997.
"S&P" means Standard & Poor's Ratings Group or any successor
by merger or consolidation to its business.
"Scheduled Debt" means Debt of the Borrower listed on Schedule
1.01 hereto, to the extent that such Debt matures or is payable on or
before the Termination Date and any renewal, extension or refinancing
thereof that does not increase the amount thereof that becomes due and
payable on or before the Termination Date.
"Senior Bank Facilities" means this Agreement and the 364-Day
Credit Agreement.
"Subsidiary" of any Person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes having
by the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the
time stock of any class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency)
is at the time owned by such Person directly or indirectly through
Subsidiaries and (ii) any partnership, association, joint venture or
other entity in which such Person directly or indirectly through
Subsidiaries has more than a 50% equity interest at the time.
"Swing Line Advance" means an advance made by (a) the Swing
Line Bank pursuant to Section 2.01(b) or (b) any Working Capital Lender
pursuant to Section 2.02(b).
"Swing Line Bank" means Citibank.
"Swing Line Borrowing" means a borrowing consisting of a Swing
Line Advance made by the Swing Line Bank.
"Swing Line Facility" has the meaning specified in Section
2.01(b).
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27
"364-Day Credit Agreement" means the 364-Day Credit Agreement
dated as of July 14, 1997 among the Borrower, Foods Holdings, Wise
Holdings, the banks named therein, Citibank, as administrative agent,
BT Securities, Chase Securities, Citicorp Securities and Credit Suisse
First Boston, as arrangers, BT Securities and Chase Securities, as
co-syndication agents, and Credit Suisse First Boston, as documentation
agent, as amended, supplemented or otherwise modified from time to
time.
"Taxes" has the meaning specified in Section 2.13(a).
"Termination Date" means the earlier of July 13, 2002 and the
date of termination in whole of the Working Capital Commitments
pursuant to Section 2.05 or 6.01.
"Total Debt" means, on any date of determination, (a) Debt of
the Affiliate Guarantors, the Borrower and their respective
Subsidiaries described in clauses (a) through (e) of the definition of
"Debt" herein minus (b) cash of the Affiliate Guarantors, the Borrower
and their respective Subsidiaries at such date in excess of
$75,000,000.
"Total Debt/EBITDA Ratio" means the ratio determined as of the
last day of each fiscal quarter for the twelve month period ended on
such day of (a) Combined Total Debt of the Affiliate Guarantors, the
Borrower and their Subsidiaries on such day to (b) to Combined Pro
Forma EBITDA of the Affiliate Guarantors, the Borrower and their
Subsidiaries for such period; provided, that for purposes of this
definition, Total Debt of any Subsidiary of any Obligated Party shall
be determined as such Obligated Party's Attributable Share of the Total
Debt of such Subsidiary.
"Type" refers to the distinction between Advances bearing
interest by reference to the Base Rate and Advances bearing interest by
reference to the Eurodollar Rate.
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the present value of the accrued benefits under such Plan
as of the close of its most recent plan year, based upon the actuarial
assumptions which would be required to be used by such Plan's actuary
in connection with the determination of such Plan's accrued benefits
pursuant to its termination, exceeds the fair market value of the
assets allocable thereto, determined in accordance with Section 412 of
the Internal Revenue Code.
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"Unused Working Capital Commitment" means, with respect to any
Working Capital Lender at any time, (a) such Lender's Working Capital
Commitments at such time minus (b) the sum of (i) the aggregate
principal amount of all Working Capital Advances, Swing Line Advances
and Letter of Credit Advances made by such Lender and outstanding at
such time, plus, without duplication, (ii) such Lender's Ratable Share
of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time, (B) the aggregate principal amount of all
Letter of Credit Advances made by an Issuing Bank pursuant to Section
2.15(c) and outstanding at such time other than any such Letter of
Credit Advance which, at or prior to such time, has been assigned in
part to such Working Capital Lender pursuant to Section 2.15(c), (C)
the aggregate principal outstanding amount of Competitive Bid Advances
and (D) the aggregate principal amount of all Swing Line Advances made
by the Swing Line Bank pursuant to Section 2.01(b) and outstanding at
such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even though the right so to vote has been suspended by the
happening of such a contingency (but excluding in any event convertible
or exchangeable Preferred Stock prior to conversion or exchange, as the
case may be).
"Working Capital Advance" has the meaning specified in Section
2.01.
"Working Capital Borrowing" means a borrowing consisting of
simultaneous Working Capital Advances of the same Type made by the
Working Capital Lenders.
"Working Capital Commitment" means, with respect to any
Working Capital Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Working Capital
Commitment" or, if such Lender has become a Lender hereunder pursuant
to an Assumption Agreement, the amount set forth as the Commitment of
such Lender in such Assumption Agreement or, if such Lender has entered
into one or more Assignment and Acceptances, the amount set forth for
such Lender in the Register maintained by the Administrative Agent
pursuant to Section 9.07(c) as
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such Lender's "Working Capital Commitment," as such amount may be
reduced pursuant to Sections 2.05 and 2.06.
"Working Capital Facility" means, at any time, the aggregate
amount of the Working Capital Lenders' Working Capital Commitments at
such time.
"Working Capital Lender" means any Lender that has a Working
Capital Commitment.
"Working Capital Note" means a promissory note of the Borrower
payable to the order of any Working Capital Lender, in substantially
the form of Exhibit A-2 hereto, evidencing the indebtedness of the
Borrower to such Lender resulting from the Working Capital Advances
made by such Lender.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding."
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances. (a) Working Capital Advances. Each
Working Capital Lender severally agrees, on the terms and conditions hereinafter
set forth, to make advances ("Working Capital Advances") to the Borrower from
time to time on any Business Day during the period from the date hereof until
the Termination Date in an amount for each such Advance not to exceed such
Lender's Unused Working Capital Commitment on such Business Day. Each Working
Capital Borrowing shall be in an aggregate amount not less than $10,000,000 or
an integral multiple of $1,000,000 in excess thereof and shall consist of
Working Capital Advances of the same Type made on the same day by the Working
Capital Lenders ratably according to their respective Working Capital
Commitments. Within the limits of each Working Capital Lender's Unused Working
Capital Commitment in effect from time to
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time, the Borrower may borrow under this Section 2.01(a), prepay pursuant to
Section 2.07 and reborrow under this Section 2.01(a).
(b) The Swing Line Advances. The Borrower may request the
Swing Line Bank to make, and the Swing Line Bank may, if in its sole discretion
it elects to do so, make, on the terms and conditions hereinafter set forth,
Swing Line Advances to the Borrower from time to time on any Business Day during
the period from the date hereof until the Termination Date (i) in an aggregate
amount not to exceed at any time outstanding $20,000,000 (the "Swing Line
Facility") and (ii) in an amount for each such Swing Line Borrowing not to
exceed the aggregate of the Unused Working Capital Commitments of the Working
Capital Lenders at such time. No Swing Line Advance shall be used for the
purpose of funding the payment of principal of any other Swing Line Advance.
Each Swing Line Borrowing shall be in an amount of $1,000,000 or an integral
multiple of $1,000,000 in excess thereof and shall be made as a Base Rate
Advance. Within the limits of the Swing Line Facility and within the limits
referred to in clause (ii) above, so long as the Swing Line Bank, in its sole
discretion, elects to make Swing Line Advances, the Borrower may borrow under
this Section 2.01(b), repay pursuant to Section 2.04(c) or prepay pursuant to
Section 2.07 and reborrow under this Section 2.01(b).
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.02(b) and Section 2.15, each Borrowing shall be made on
notice, given not later than 11:00 A.M. (New York City time) (i) on the third
Business Day prior to the date of the proposed Borrowing in the case of
Eurodollar Rate Borrowings and (ii) on the same Business Day in the case of Base
Rate Borrowings, by the Borrower to the Administrative Agent, which shall give
to each Appropriate Lender prompt notice thereof by telex, telecopier or cable.
Each such notice of a Borrowing (a "Notice of Borrowing") shall be by telephone,
telex, telecopier or cable, confirmed immediately in writing, in substantially
the form of Exhibit B hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Facility under which such Borrowing is to be made, (iii) Type of
Advances comprising such Borrowing, (iv) aggregate amount of such Borrowing and
(v) in the case of a Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Advance. In the case of a proposed Borrowing
comprised of Eurodollar Rate Advances, the Administrative Agent shall promptly
notify each Appropriate Lender of the applicable interest rate under Section
2.08(a)(ii). Each Appropriate Lender shall, before 12:00 noon (New York City
time) on the date of such Borrowing,
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make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's ratable portion of such Borrowing in accordance with the
respective Commitments of such Lender and the other Appropriate Lenders. After
the Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower; provided, however, that, in the case
of any Working Capital Borrowing, the Administrative Agent shall first make a
portion of such funds equal to the aggregate principal amount of any Swing Line
Advances and Letter of Credit Advances made by the Swing Line Bank or any
Issuing Bank, as the case may be, and by any other Working Capital Lender and
outstanding on the date of such Borrowing, plus interest accrued and unpaid
thereon to and as of such date, available to the Swing Line Bank or such Issuing
Bank, as the case may be, and such other Working Capital Lenders for repayment
of such Swing Line Advances and Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice, given
not later than 11:00 A.M. (New York City time) on the date of the proposed Swing
Line Borrowing, by the Borrower to the Swing Line Bank and the Administrative
Agent. Each such notice of a Swing Line Borrowing (a "Notice of Swing Line
Borrowing") shall be by telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (i) date of such Borrowing, (ii)
amount of such Borrowing and (iii) maturity of such Borrowing. If, in its sole
discretion, it elects to make the requested Swing Line Advance, the Swing Line
Bank will make the amount thereof available to the Administrative Agent at the
Administrative Agent's Account, in same day funds. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Borrower by crediting the Borrower's Account. Upon written
demand by the Swing Line Bank, with a copy of such demand to the Administrative
Agent, each other Working Capital Lender shall purchase from the Swing Line
Bank, and the Swing Line Bank shall sell and assign to each such other Working
Capital Lender, such other Lender's Pro Rata Share of such outstanding Swing
Line Advance as of the date of such demand, by making available for the account
of its Applicable Lending Office to the Administrative Agent for the account of
the Swing Line Bank, by deposit to the Administrative Agent's Account, in same
day funds, an amount equal to the portion of the outstanding principal amount of
such Swing Line Advance to be purchased by such Lender.
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The Borrower hereby agrees to each such sale and assignment. Each Working
Capital Lender agrees to purchase its Pro Rata Share of an outstanding Swing
Line Advance on (i) the Business Day on which demand therefor is made by the
Swing Line Bank, provided that notice of such demand is given not later than
11:00 A.M. (New York City time) on such Business Day or (ii) the first Business
Day next succeeding such demand if notice of such demand is given after such
time. Upon any such assignment by the Swing Line Bank to any other Working
Capital Lender of a portion of a Swing Line Advance, the Swing Line Bank
represents and warrants to such other Lender that the Swing Line Bank is the
legal and beneficial owner of such interest being assigned by it, but makes no
other representation or warranty and assumes no responsibility with respect to
such Swing Line Advance, the Loan Documents or any Obligated Party. If and to
the extent that any Working Capital Lender shall not have so made the amount of
such Swing Line Advance available to the Administrative Agent, such Working
Capital Lender agrees to pay to the Administrative Agent forthwith on demand
such amount together with interest thereon, for each day from the date of demand
by the Swing Line Bank until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate. If such Lender shall pay to the Administrative
Agent such amount for the account of the Swing Line Bank on any Business Day,
such amount so paid in respect of principal shall constitute a Swing Line
Advance made by such Lender on such Business Day for purposes of this Agreement,
and the outstanding principal amount of the Swing Line Advance made by the Swing
Line Bank shall be reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
the initial Borrowing hereunder or for any Borrowing if the aggregate amount of
such Borrowing is less than $10,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.11 and (ii) the Working Capital Advances made on any date as
Eurodollar Rate Advances may not be outstanding as part of more than 20 separate
Working Capital Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower. In the case of any
Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower shall indemnify each Appropriate Lender,
after receipt of a written request by such Lender (which request shall set forth
in reasonable detail the basis for such amount) against any
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loss, cost or expense actually incurred by such Lender (excluding loss of
anticipated profits) as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss,
cost or expense reasonably incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Advance to be
made by such Lender as part of such Borrowing when such Advance, as a result of
such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice
from an Appropriate Lender prior to the time of any Borrowing under a Facility
under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay or pay to the Administrative
Agent forthwith on demand such corresponding amount and to pay interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid or paid to the Administrative Agent, at (i) in
the case of the Borrower, the interest rate applicable at such time under
Section 2.08 to Advances comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall pay to the Administrative
Agent such corresponding amount, such amount so paid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Working
Capital Lender severally agrees that the Borrower may make Competitive Bid
Borrowings under this Section 2.03 from time
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to time on any Business Day during the period from the date hereof until the
date occurring seven days prior to the Termination Date in the manner set forth
below; provided that, following the making of each Competitive Bid Borrowing, no
prepayment shall be required pursuant to Section 2.07(b)(i).
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Administrative Agent, by
telecopier or telex, confirmed immediately in writing, a notice of a
Competitive Bid Borrowing (a "Notice of Competitive Bid Borrowing"), in
substantially the form of Exhibit B-2 hereto, together with a
processing fee of $4,000 for each Notice of Competitive Bid Borrowing,
specifying therein (v) the date of such proposed Competitive Bid
Borrowing, (w) the aggregate amount of such proposed Competitive Bid
Borrowing, (x) the maturity date for repayment of each Competitive Bid
Advance to be made as part of such Competitive Bid Borrowing (which
maturity date may not be earlier than the date occurring seven days
after the date of such Competitive Bid Borrowing or later than the
Termination Date), (y) the interest payment date or dates relating
thereto, and (z) any other terms to be applicable to such Competitive
Bid Borrowing, not later than 10:00 A.M. (New York City time) (A) at
least one Business Day prior to the date of the proposed Competitive
Bid Borrowing, if the Borrower shall specify in the Notice of
Competitive Bid Borrowing that the rates of interest to be offered by
the Lenders shall be fixed rates per annum (the Advances comprising any
such Competitive Bid Borrowing being referred to herein as "Fixed Rate
Advances") and (B) at least four Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the Borrower shall instead
specify in the Notice of Competitive Bid Borrowing the basis to be used
by the Lenders in determining the rates of interest to be offered by
them (the Advances comprising such Competitive Bid Borrowing being
referred to herein as "LIBO Rate Advances"). The Administrative Agent
shall in turn promptly notify each Working Capital Lender of each
request for a Competitive Bid Borrowing received by it from the
Borrower by sending such Lender a copy of the related Notice of
Competitive Bid Borrowing.
(ii) Each Working Capital Lender may, if, in its sole
discretion, it elects to do so, irrevocably offer to make one or more
Competitive Bid Advances to the Borrower as part of such proposed
Competitive Bid Borrowing at a rate or rates of interest specified by
such Lender in its sole
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discretion, by notifying the Administrative Agent (which shall give
prompt notice thereof to the Borrower), before 10:00 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, of the minimum amount and maximum
amount of each Competitive Bid Advance which such Lender would be
willing to make as part of such proposed Competitive Bid Borrowing
(which amounts may, subject to the proviso to the first sentence of
this Section 2.03(a), exceed such Lender's Working Capital Commitment),
the rate or rates of interest therefor and such Lender's Applicable
Lending Office with respect to such Competitive Bid Advance; provided
that if the Administrative Agent in its capacity as a Working Capital
Lender shall, in its sole discretion, elect to make any such offer, it
shall notify the Borrower of such offer before 9:00 A.M. (New York City
time) on the date on which notice of such election is to be given to
the Administrative Agent by the other Working Capital Lenders. If any
Working Capital Lender shall elect not to make such an offer, such
Lender shall so notify the Administrative Agent, before 10:00 A.M. (New
York City time) on the date on which notice of such election is to be
given to the Administrative Agent by the other Working Capital Lenders,
and such Lender shall not be obligated to, and shall not, make any
Competitive Bid Advance as part of such Competitive Bid Borrowing;
provided that the failure by any Working Capital Lender to give such
notice shall not cause such Lender to be obligated to make any
Competitive Bid Advance as part of such proposed Competitive Bid
Borrowing.
(iii) The Borrower shall, in turn, before 11:00 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 1:00 P.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
either:
(x) cancel such Competitive Bid Borrowing by giving
the Administrative Agent notice to that effect, or
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(y) accept one or more of the offers made by any
Working Capital Lender or Lenders pursuant to paragraph (ii)
above, by giving notice to the Administrative Agent of the
amount of each Competitive Bid Advance (which amount shall be
equal to or greater than the minimum amount, and equal to or
less than the maximum amount, notified to the Borrower by the
Administrative Agent on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii) above) to
be made by each Lender as part of such Competitive Bid
Borrowing, and reject any remaining offers made by Lenders
pursuant to paragraph (ii) above by giving the Administrative
Agent notice to that effect.
(iv) If the Borrower notifies the Administrative Agent that
such Competitive Bid Borrowing is cancelled pursuant to paragraph
(iii)(x) above, the Administrative Agent shall give prompt notice
thereof to the Working Capital Lenders and such Competitive Bid
Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Working Capital Lender or Lenders pursuant to paragraph (iii)(y)
above, the Administrative Agent shall in turn promptly notify (A) each
Working Capital 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 the Borrower,
(B) each Working Capital Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, of the amount of
each Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Working Capital Lender that is
to make a Competitive Bid Advance as part of such Competitive Bid
Borrowing, upon receipt, that the Administrative Agent has received
forms of documents appearing to fulfill the applicable conditions set
forth in Article III. Each Working Capital Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing
shall, before 12:00 noon (New York City time) on the date of such
Competitive Bid Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding sentence
or any later time when such Lender shall have received notice from the
Administrative Agent pursuant to clause (C) of the preceding sentence,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the
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Administrative 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
Administrative Agent of such funds, the Administrative Agent will make
such funds available to the Borrower at the Administrative Agent's
address referred to in Section 9.02. Promptly after each Competitive
Bid Borrowing the Administrative Agent will notify each Working Capital
Lender of the amount of such Competitive Bid Borrowing.
(vi) The Administrative Agent shall maintain at its address
referred to in Section 9.02 a copy of each Notice of Competitive Bid
Borrowing delivered pursuant to subsection (a)(i) above and a register
for the recordation of the date, amount, maturity, interest rate,
interest payment dates, other terms and Working Capital Lender of each
Competitive Bid Advance accepted by the Borrower from time to time
pursuant to this subsection (a) (the "Competitive Bid Register"). The
entries in the Competitive Bid Register shall be conclusive and binding
for all purposes, absent demonstrable error, and the Borrower, the
Administrative Agent and the Working Capital Lenders may treat the
entries recorded in the Competitive Bid Register as evidence of
Competitive Bid Advances made pursuant to this Section 2.03. The
Competitive Bid Register shall be available for inspection by the
Borrower, or by any Working Capital Lender as to its Competitive Bid
Advances, at any reasonable time and from time to time upon reasonable
prior notice.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrower 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, the 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) The Borrower shall repay to the Administrative Agent for
the account of each Working Capital Lender that has made a Competitive Bid
Advance, on the maturity date of each
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Competitive Bid Advance (such maturity date being that specified by the Borrower
for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
recorded in the Competitive Bid Register with respect to such Competitive Bid
Advance), the then unpaid principal amount of such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Working Capital Lender making such Competitive Bid Advance in
its notice with respect thereto delivered pursuant to subsection (a)(ii) above,
payable on the interest payment date or dates specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above, as recorded in the Competitive
Bid Register with respect to such Competitive Bid Advance.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a master Competitive Bid Note of the Borrower
payable to the order of the Administrative Agent for the benefit of the Working
Capital Lender making such Competitive Bid Advance.
SECTION 2.04. Repayment. (a) Working Capital Advances. The
Borrower shall repay to the Administrative Agent for the ratable account of the
Working Capital Lenders the aggregate outstanding principal amount of the
Working Capital Advances on the Termination Date.
(b) Letter of Credit Advances. The Borrower shall repay to the
Administrative Agent for the account of each Issuing Bank and each other Working
Capital Lender which has made a Letter of Credit Advance the outstanding
principal amount of each Letter of Credit Advance made by each of them on
demand.
(c) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Working Capital Lender that has made a Swing Line Advance the outstanding
principal amount of each Swing Line Advance made by each of them on the earlier
of the maturity date specified in the applicable Notice of Swing Line Borrowing
and the Termination Date.
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SECTION 2.05. Reduction of the Commitments. (a) Optional. The
Borrower may, upon at least one Business Day's notice to the Administrative
Agent, terminate in whole or reduce in part the Unused Working Capital
Commitments and the Letter of Credit Commitments; provided, however, that each
partial reduction of a Facility (i) shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and (ii)
shall be made ratably among the Appropriate Lenders in accordance with their
Commitments with respect to such Facility.
(b) Mandatory. (i) The Working Capital Commitments shall be
terminated in full on the Termination Date.
(ii) The Working Capital Commitments shall be reduced by an
amount equal to the aggregate program amount of any Receivables Financing
Transaction.
SECTION 2.06. Application of Certain Proceeds. (a) The
Borrower shall reduce the aggregate Commitments under the Senior Bank Facilities
or pay or prepay Scheduled Debt by an amount equal to, and upon receipt of,
Asset Proceeds and Option Exercise Proceeds by the Affiliate Guarantors, the
Borrower and their respective Subsidiaries other than the following, without
duplication:
(i) Asset Proceeds paid to the Borrower for the initial
transfer of the Dairy Business to an Affiliate and its Subsidiaries at
the time, if any, such Affiliate becomes an Affiliate Guarantor;
(ii) Asset Proceeds from, without duplication, (A) the sale of
the Borrower's Dairy Business, (B) the sale of Foods Businesses other
than the pasta, soups and related businesses, (C) Option Exercise
Proceeds, (D) an amount equal to the portion, if any, of the amount of
the excess of (x) in the case of the exercise of an Option with a
substantially contemporaneous sale of the stock or assets the subject
of such Option, the actual sale price of such stock or assets or, in
each other case, the fair market value (as determined by the board of
directors of the Borrower) over (y) the exercise price of such Options
(the "Option Differential"), which is contributed to the equity of the
Borrower or the Affiliate Guarantors, upon the exercise of such Option,
(E) an amount equal to the portion, if any, of the amount of the
appreciation of trademarks the benefit of which accrues to ▇▇▇▇▇▇ Foods
Holdings, L.L.C.
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(the "Trademark Appreciation") which is contributed to the equity of
the Borrower or the Affiliate Guarantors, upon the sale of any
trademarks used in the Foods Business, (F) an amount equal to the
portion, if any, of the Affiliate Guarantor Stock Sale Proceeds (as
defined in Section 2.06(d)) contributed as equity to the Borrower or
the Affiliate Guarantors and (G) the sale of $1,000,000,000 of assets
not otherwise described in this clause (iii) and not including
consideration described in clauses (b), (c) and (d) below;
(iii) Asset Proceeds in the form of notes, property and other
consideration other than cash received other than pursuant to
transactions described in clause (ii) above from entities that are not
Affiliates of the Borrower or the Affiliate Guarantors, to the extent
that the amount thereof outstanding at any time (after giving effect to
monetization, payment or other cash realization thereof) does not
exceed $200,000,000;
(iv) Asset Proceeds from the sale, transfer or other
disposition of non-cash consideration to the extent an amount equal to
such non-cash consideration was required to be and was applied in
accordance with this Section 2.06(a) (including pursuant to the
exceptions described therein);
(v) Asset Proceeds from the sale, transfer or other
disposition of assets between or among (x) the Borrower and its
Subsidiaries or (y) the Affiliate Guarantors and their respective
Subsidiaries (including as an Affiliate Guarantor, for purposes of this
clause (vi), the Dairy Business); and
(vi) Asset Proceeds from sales of stock of, or equity interest
in, any Affiliate Guarantor or any Subsidiary of any Obligated Party to
any Obligated Party, any Subsidiary thereof or any employee of any
Obligated Party or its Subsidiaries by the exercise of stock options or
otherwise, provided that the aggregate amount of such sales made to
such employees (other than in respect of the exercise of stock options
issued to employees before the Restatement Date) with respect to any
Affiliate Guarantor or Subsidiary of any Obligated Party shall not
exceed the greater of $10,000,000 and 15% of the equity interests of
such Affiliate Guarantor or Subsidiary of an Obligated Party.
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(vii) Asset Proceeds applied pursuant to clauses (b), (c) and
(d) below, to the extent that Commitments under the Senior Bank
Facilities have been reduced or Scheduled Debt has been paid or prepaid
pursuant to clauses (b), (c), (d) and (e) below, as applicable.
(b) The Borrower shall reduce the aggregate Commitments under
the Senior Bank Facilities or pay or prepay Scheduled Debt upon receipt of
Option Exercise Proceeds, by an amount equal to the portion of the Option
Differential not contributed to the equity of the Borrower or the Affiliate
Guarantors.
(c) The Borrower shall reduce the aggregate Commitments under
the Senior Bank Facilities or pay or prepay Scheduled Debt upon the sale of any
trademarks the benefit of which sale accrues to ▇▇▇▇▇▇ Foods Holdings, L.L.C.,
by an amount equal to the portion of the Trademark Appreciation not contributed
to the equity of the Borrower or the Affiliate Guarantors.
(d) The Borrower shall reduce the aggregate Commitments under
the Senior Bank Facilities or pay or prepay Scheduled Debt on the date of each
Guarantee Release Event (as defined in Section 7.05) in an amount equal to the
portion of the "Affiliate Guarantor Stock Sale Proceeds" (as defined below) in
respect thereof not contributed to the equity of the Borrower or the Affiliate
Guarantors. "Affiliate Guarantor Stock Sale Proceeds" means, in respect of any
Affiliate Guarantor, (i) in the event of a sale of all of the common stock of
such Affiliate Guarantor, the amount of Asset Proceeds of such sale received by
the holders of such common stock (or by such Affiliate Guarantor if a primary
issuance and sale) or (ii) in the event of a sale of less than all of the common
stock of such Affiliate Guarantor, the amount equal to the product of (x) the
Asset Proceeds per share of common stock received by the holders thereof in such
partial sale (or by such Affiliate Guarantor, if a primary issuance and sale)
and (y) the total number of shares of common stock of such Affiliate Guarantor
outstanding after giving effect to such partial sale.
(e) The payments and commitment reductions required by
Sections 2.06(a), (b), (c) and (d) shall be made as the Borrower may direct.
(f) For purposes of this Section 2.06, the Borrower and the
Affiliate Guarantors shall be deemed to have received
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Asset Proceeds on the last day of the fiscal year following the date of an asset
sale transaction in an amount equal to the excess of the reserve for taxes
payable or estimated to be payable in connection with or as a result of such
transaction over taxes actually paid in connection with or as a result of such
transaction on or before the last day of such fiscal year. The Borrower shall
apply an amount equal to such deemed Asset Proceeds in accordance with the terms
of this Section 2.06.
(g) The Borrower may apply proceeds as required by this
Section 2.06 on the last day of any Interest Period next ending after receipt
or, in the case of Asset Proceeds, deemed receipt, of such proceeds; provided
that the Borrower shall apply such proceeds on or before 30 days after such
receipt or deemed receipt; provided further that in the case of Asset Proceeds
resulting from the sale of an asset located outside the United States, such 30
days after such receipt or deemed receipt shall be extended to 90 days after
such receipt or deemed receipt.
(h) All prepayments of Senior Bank Facilities under this
Section 2.06 shall be made together with accrued interest to the date of such
prepayment on the principal amount prepaid.
SECTION 2.07. Prepayments. (a) Optional. The Borrower may,
upon (i) at least one Business Day's notice in the case of Base Rate Borrowings
and (ii) at least three Business Days' notice in the case of Eurodollar Rate
Borrowings, in each case to the Administrative Agent stating the proposed date
and aggregate principal amount of the prepayment, and if such notice is given
the Borrower shall, prepay the outstanding aggregate principal amount of the
Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the aggregate
principal amount prepaid; provided, however, that each partial prepayment shall
be in an aggregate principal amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(b) Mandatory. (i) The Borrower shall, on each Business Day,
prepay an aggregate principal amount of the Working Capital Advances comprising
part of the same Borrowings and Swing Line Advances equal to the amount by which
the (x) sum of (A) aggregate principal amount of the Working Capital Advances,
Letter of Credit Advances, Swing Line Advances and Competitive Bid Advances then
outstanding and (B) the Available Amount of all Letters of Credit then
outstanding exceeds (y) the Working Capital Facility.
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(ii) Prepayments of the Working Capital Facility made pursuant
to clause (i) above shall be first applied to prepay Letter of Credit Advances
then outstanding until such Advances are paid in full, second applied to prepay
Swing Line Advances then outstanding until such Advances are paid in full and
third applied to prepay Working Capital Advances then outstanding comprising
part of the same Borrowings until such Advances are paid in full.
(iii) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
SECTION 2.08. Interest. (a) Ordinary Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(A) the Base Rate in effect from time to time plus (B) the Applicable
Margin in effect from time to time, payable in arrears quarterly on the
first day of each January, April, July, and October during such periods
and on the date such Base Rate Advance shall be Converted or paid in
full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Interest Period for such Advance plus (B)
the Applicable Margin in effect on each day during such Interest
Period, 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.
(b) Default Interest. Overdue principal and interest in
respect of each Advance shall bear interest at a rate per annum equal to the
Base Rate in effect from time to time plus the sum of (i) 2% and (ii) the
Applicable Margin; provided that each Eurodollar Rate Advance and Competitive
Bid Advance shall bear interest after maturity (whether by acceleration or
otherwise) until the end of the Interest Period then applicable thereto at a
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rate per annum equal to 2% in excess of the rate of interest applicable thereto
at maturity.
SECTION 2.09. Fees. (a) Commitment Fee. The Borrower shall pay
to the Administrative Agent for the account of the Lenders a commitment fee on
each Working Capital Lender's average daily Unused Working Capital Commitment,
computed without regard to clauses (C) and (D) of the definition of Unused
Working Capital Commitment, minus the aggregate amount of Competitive Bid
Advances made by such Lender from the date hereof until the Termination Date at
the Applicable Percentage, payable in arrears quarterly on the first Business
Day of each January, April, July and October, commencing October 3, 1997, and on
the Termination Date; provided, however, that any commitment fee accrued with
respect to any of the Commitments of a Defaulting Lender during the period prior
to the time such Lender became a Defaulting Lender and unpaid at such time shall
not be payable by the Borrower so long as such Lender shall be a Defaulting
Lender except to the extent that such commitment fee shall otherwise have been
due and payable by the Borrower prior to such time; and provided further that no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender.
(b) Administrative Agent's and Arrangers' Fees. The Borrower
shall pay to the Administrative Agent and the Arrangers for their own respective
account such fees as may from time to time be agreed between the Borrower and
the Administrative Agent and the Arrangers.
SECTION 2.10. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Section
2.11, Convert all or any portion of the Working Capital Advances of one Type
comprising the same Borrowing into Advances of the other Type; provided,
however, that any Conversion of Base Rate Advances into Eurodollar Rate Advances
shall be in an amount not less than the minimum amount specified in Section
2.02(c) and no Conversion of any Advances shall result in more separate
Borrowings than permitted under Section 2.02(c). Each such notice of Conversion
shall, within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advances to be Converted and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
such Advances.
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(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $10,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance.
SECTION 2.11. Increased Costs, Etc. (a) If, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation after the date hereof or (ii) the compliance with any guideline or
request made after the date hereof from any central bank or other governmental
authority (whether or not having the force of law), there shall be any increase
in the cost to any Lender of agreeing to make or of making, funding or
maintaining Eurodollar Rate Advances or LIBO Rate Advances or of agreeing to
issue or issuing or maintaining Letters of Credit or of agreeing to make or of
making or maintaining Letter of Credit Advances, then the Borrower shall from
time to time, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
increased cost; provided, however, that each Lender agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office or take other
steps if to do so would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. A certificate as to the amount of such
increased cost accompanied by a statement setting forth in reasonable detail the
basis for, and amount of, such increased cost, submitted to the Borrower by such
Lender, shall be conclusive and binding for all purposes, absent demonstrable
error.
(b) If, after the date hereof, (i) the introduction of or any
change in any applicable law or regulation regarding capital adequacy or any
change after the date hereof in the interpretation or administration thereof by
any governmental
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authority, central bank or comparable agency charged with the interpretation or
administration thereof, or (ii) the compliance by a Lender or its parent with
any directive or request made after the date hereof regarding capital adequacy
from any central bank or other governmental authority (whether or not having the
force of law), has the effect of reducing the rate of return on such Lender's or
its parent's capital or assets as a consequence of such Lender's commitment to
lend hereunder or other obligations hereunder to a level below that which such
Lender or its parent would have achieved but for such introduction, change or
compliance (taking into consideration such Lender's or its parent's policies
with respect to capital adequacy), then, upon demand by such Lender (with a copy
of such demand to the Administrative Agent), the Borrower shall pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender for such reduction, it being understood and agreed, however, that such
Lender shall not be entitled to such compensation as a result of such Lender's
compliance with, or pursuant to any directive or request to comply with, any
such law or regulation as in effect on the date hereof; provided, however, that
each Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office or take other steps if to do so would avoid the need
for, or reduce the amount of, such compensation and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such Lender. A
certificate as to such amounts accompanied by a statement setting forth in
reasonable detail the basis for, and amount of, such increased cost submitted to
the Borrower by such Lender, shall be conclusive and binding for all purposes,
absent demonstrable error.
(c) If, with respect to any Eurodollar Rate Advances, the
Administrative Agent shall have determined that on any date for determining the
Eurodollar Rate for any Interest Period for such Advances that, by reason of
changes arising after the date hereof affecting the London interbank market,
adequate and fair means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of Eurodollar Rate (i) each
such Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lenders have determined that the circumstances causing such
suspension no longer exist.
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(d) Notwithstanding any other provision of this Agreement, if
after the date hereof the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful or impracticable,
or any central bank or other governmental authority shall assert that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or LIBO Rate Advances or
to continue to fund or maintain Eurodollar Rate Advances or LIBO Rate Advances
hereunder, then, on notice thereof and demand therefor by such Lender to the
Borrower through the Administrative Agent, (i) each Eurodollar Rate Advance
under which such Lender has a Commitment or LIBO Rate Advance, as the case may
be, will automatically, upon such demand, Convert into a Base Rate Advance or an
Advance that bears interest at the rate set forth in Section 2.08(a)(i), as the
case may be, and (ii) the obligation of the Appropriate Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until the
circumstances causing such suspension no longer exist; provided, however, that
such Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office or take other steps if to do so would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(e) If the Required Lenders shall so determine, upon the
occurrence and during the continuance of any Default, the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
SECTION 2.12. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the Administrative
Agent at the Administrative Agent's Account in same day funds. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrower is in respect of principal, interest,
commitment fees or any other obligation then payable hereunder and under the
Notes to more than one Lender, to such Lenders for the account of their
respective Applicable Lending Offices ratably in accordance with the amounts of
such respective obligations then payable to such Lenders and (ii) if such
payment by the Borrower is in respect of any obligation then payable hereunder
to one Lender, to such Lender
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for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon any Assuming Lender's becoming
a Lender hereunder as a result of a Commitment Increase pursuant to Section
2.19, and upon the Administrative Agent's receipt of such Lender's Assumption
Agreement and recording of the information contained therein in the Register,
from and after the applicable Increase Date, the Administrative Agent shall make
all payments hereunder and under the Notes issued in connection therewith in
respect of the interest assumed thereby to the Assuming Lender. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 9.07(d), from and after
the effective date of such Assignment and Acceptance, the Administrative Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) All computations of interest, fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest,
fees or commissions are payable. Each determination by the Administrative Agent
of an interest rate, fee or commission hereunder shall be conclusive and binding
for all purposes, absent demonstrable 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 commitment fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any Lender
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent
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may, in reliance upon such assumption, cause to be distributed to each such
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
(e) If the Administrative Agent receives funds for application
to the obligations under the Loan Documents under circumstances for which the
Loan Documents do not specify the Advances or the Facility to which, or the
manner in which, such funds are to be applied, the Administrative Agent shall
apply such funds to prepay Working Capital Advances (but not reduce the Working
Capital Commitments).
SECTION 2.13. Taxes. (a) Any and all payments by any Obligated
Party 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 and the
Administrative Agent, net income taxes and franchise taxes (imposed in lieu of
net income taxes) that are imposed by the United States or any political
subdivision or taxing authority thereof or therein or by a foreign jurisdiction
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having
executed, enforced, delivered or performed its obligations or received a payment
under this Agreement) (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If any Obligated Party shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.13) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Obligated Party
shall make such deductions and (iii) such
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Obligated Party shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each Obligated Party shall pay any present or
future stamp, documentary, excise, property or similar taxes, charges or levies
that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) Each Obligated Party shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes, and for the
full amount of taxes imposed by any jurisdiction on amounts payable under this
Section 2.13, paid by such Lender or the Administrative Agent (as the case may
be) and any liability (including penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto. The Administrative Agent or
such Lender shall provide the applicable Obligated Party with appropriate
receipts for any payments or reimbursements made to such Obligated Party
pursuant to this Section 2.13. This indemnification shall be made within 45 days
from the date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor.
(d) Within 45 days after the date of any payment of Taxes,
each Obligated Party shall furnish to the Administrative Agent, at its address
referred to in Section 9.02, the original receipt of payment thereof or a
certified copy of such receipt. In the case of any payment hereunder or under
the Notes by any Obligated Party through an account or branch outside the United
States or on behalf of such Obligated Party by a payor that is not a United
States person, if such Obligated Party determines that no Taxes are payable in
respect thereof, such Obligated Party shall furnish, or shall cause such payor
to furnish, to the Administrative Agent, at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (d) and subsection (e), the terms "United
States" and "United States person" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Bank, and on the date of the
Assumption Agreement or the Assignment and Acceptance pursuant to which it
became a Lender in
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the case of each other Lender, and from time to time thereafter if requested in
writing by any Obligated Party or the Administrative Agent (but only so long
thereafter as such Lender remains lawfully able to do so), provide the
Administrative Agent and each Obligated Party with Internal Revenue Service form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party that reduces the rate of
withholding tax on payments under this Agreement or the Notes or certifying that
the income receivable pursuant to this Agreement or the Notes is effectively
connected with the conduct of a trade or business in the United States. If the
form provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate form certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assumption Agreement or the Assignment and
Acceptance,as the case may be, pursuant to which a Lender assignee becomes a
party to this Agreement, the Lender assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to such Lender assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001 or
4224, that the applicable Lender reasonably considers to be confidential, such
Lender shall give notice thereof to the Obligated Parties and shall not be
obligated to include in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed
to provide the Obligated Parties with the appropriate form described in
subsection (e) (other than if such failure is due to a change in law occurring
after the date on which a form originally was required to be provided or if such
form otherwise is not required under subsection (e)), such Lender shall not be
entitled to indemnification under subsection (a) or (c) with respect to Taxes
imposed by the United States; provided, however, that should a Lender become
subject to Taxes because of its
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failure to deliver a form required hereunder, each Obligated Party shall take
such steps as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.13 shall use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office or to take other steps if to do so
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) (a) on account of obligations
due and payable to such Lender hereunder and under the Notes at such time under
any Facility in excess of its ratable share (according to the proportion of (i)
the amount of such obligations due and payable to such Lender at such time under
such Facility to (ii) the aggregate amount of the obligations due and payable to
all Appropriate Lenders hereunder and under the Notes at such time under such
Facility) of payments on account of the obligations due and payable to all
Appropriate Lenders hereunder and under the Notes at such time under such
Facility obtained by all the Appropriate Lenders at such time or (b) on account
of obligations owing (but not due and payable) to such Lender hereunder and
under the Notes at such time under any Facility in excess of its ratable share
(according to the proportion of (i) the amount of such obligations owing to such
Lender at such time under such Facility to (ii) the aggregate amount of the
obligations owing (but not due and payable) to all Appropriate Lenders hereunder
and under the Notes at such time under such Facility) of payments on account of
the obligations owing (but not due and payable) to all Appropriate Lenders
hereunder and under the Notes at such time under such Facility obtained by all
the Appropriate Lenders at such time, such Lender shall forthwith purchase from
the Appropriate Lenders such participations in the obligations due and payable
or owing to them, as the case may be, as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each other
Lender shall be rescinded and such other Lender shall repay to the purchasing
Lender the purchase price to the extent of such other
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Lender's ratable share (according to the proportion of (i) the purchase price
paid to such Lender to (ii) the aggregate purchase price paid to all Appropriate
Lenders) of such recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such other Lender's
required repayment to (ii) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section 2.14
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.15. Letters of Credit. (a) The Letter of Credit
Facility. The Borrower may request any Issuing Bank, on the terms and conditions
hereinafter set forth, to issue, and any such Issuing Bank shall, subject to the
terms and conditions hereinafter set forth, issue letters of credit (the
"Letters of Credit") for the account of the Borrower from time to time on any
Business Day during the period from the date of the initial Borrowing until 30
days before the Termination Date (i) in an aggregate Available Amount for all
Letters of Credit issued by such Issuing Bank not to exceed at any time such
Issuing Bank's Letter of Credit Commitment or Letter of Credit Facility Sublimit
and (ii) in an Available Amount for each such Letter of Credit not to exceed the
Unused Working Capital Commitments of the Working Capital Lenders on such
Business Day; provided, however, that no Issuing Bank shall be obligated to
issue any trade letters of credit. No Letter of Credit shall have an expiration
date (including all rights of the Borrower or the beneficiary to require
renewal) later than the earlier of 30 days before the Termination Date and one
year after the date of issuance thereof, but may by its terms be renewable
annually with the consent of the Issuing Bank. Within the limits of the Letter
of Credit Facility Sublimit, and subject to the limits referred to above, the
Borrower may request the issuance of Letters of Credit under this Section
2.15(a), repay any Letter of Credit Advances resulting from drawings thereunder
pursuant to Section 2.15(c) and request the issuance of additional Letters of
Credit under this Section 2.15(a).
(b) Request for Issuance. (i) Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the
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Borrower to any Issuing Bank, which shall give to the Administrative Agent and
each Working Capital Lender prompt notice thereof by telex, telecopier or cable.
Each such notice of issuance of a Letter of Credit (a "Notice of Issuance")
shall be by telex, telecopier or cable, confirmed immediately in writing,
specifying therein the requested (A) date of such issuance (which shall be a
Business Day), (B) Available Amount of such Letter of Credit, (C) expiration
date of such Letter of Credit, (D) name and address of the beneficiary of such
Letter of Credit and (E) form of such Letter of Credit, and shall be accompanied
by such Issuing Bank's customary application and agreement for letter of credit
(a "Letter of Credit Agreement"). If the requested form of such Letter of Credit
is acceptable to such Issuing Bank in its reasonable discretion, such Issuing
Bank will, upon fulfillment of the applicable conditions set forth in Article
III, make such Letter of Credit available to the Borrower at its office referred
to in Section 9.02 or as otherwise agreed with the Borrower in connection with
such issuance. In the event and to the extent that the provisions of any Letter
of Credit Agreement shall conflict with, or be duplicative of, provisions in
this Agreement, the provisions of this Agreement shall govern.
(ii) Each Issuing Bank shall furnish (A) to the Administrative
Agent on the first Business Day of each month a written report summarizing
issuance and expiration dates of Letters of Credit issued by such Issuing Bank
during the preceding month and drawings during such month under all Letters of
Credit issued by such Issuing Bank and (B) to the Administrative Agent on the
first Business Day of each calendar quarter a written report setting forth the
average daily aggregate Available Amount during the preceding calendar quarter
of all Letters of Credit issued by such Issuing Bank.
(c) Drawing and Reimbursement. The payment by any Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by such Issuing Bank of a Letter of Credit Advance,
which shall be a Base Rate Advance, in the amount of such draft. Upon written
demand by any Issuing Bank with an outstanding Letter of Credit Advance, with a
copy of such demand to the Administrative Agent, each other Working Capital
Lender shall purchase from such Issuing Bank, and such Issuing Bank shall sell
and assign to each such other Working Capital Lender, such other Lender's
Ratable Share of such outstanding Letter of Credit Advance as of the date of
such purchase, by making available for the account of its Applicable Lending
Office to the Administrative Agent for the account of such Issuing Bank, by
deposit to the Administrative
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Agent's Account, in same day funds, an amount equal to the portion of the
outstanding principal amount of such Letter of Credit Advance to be purchased by
such Lender. The Borrower hereby agrees to each such sale and assignment. Each
Working Capital Lender agrees to purchase its Ratable Share of an outstanding
Letter of Credit Advance on (i) the Business Day on which demand therefor is
made by the Issuing Bank which made such Advance, provided notice of such demand
is given not later than 11:00 A.M. (New York City time) on such Business Day or
(ii) the first Business Day next succeeding such demand if notice of such demand
is given after such time. Upon any such assignment by an Issuing Bank to any
other Working Capital Lender of a portion of a Letter of Credit Advance, such
Issuing Bank represents and warrants to such other Lender that such Issuing Bank
is the legal and beneficial owner of such interest being assigned by it free and
clear of any adverse claim, but makes no other representation or warranty and
assumes no responsibility with respect to such Letter of Credit Advance, the
Loan Documents or any Obligated Party. If and to the extent that any Working
Capital Lender shall not have so made the amount of such Working Capital Advance
available to the Administrative Agent, such Working Capital Lender agrees to pay
to the Administrative Agent forthwith on demand such amount together with
interest thereon, for each day from the date of demand by such Issuing Bank
until the date such amount is paid to the Administrative Agent, at the Federal
Funds Rate. If such Lender shall pay to the Administrative Agent such amount for
the account of such Issuing Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Letter of Credit Advance made by such
Lender on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Letter of Credit Advance made by such Issuing Bank shall
be reduced by such amount on such Business Day. No Lender shall be obligated to
purchase its Ratable Share of Letter of Credit Advances under this Section
2.15(c) to the extent that such Advances result from any Issuing Bank's willful
misconduct or gross negligence.
(d) Obligations Absolute. The obligations of the Borrower
under this Agreement, any Letter of Credit Agreement and any other agreement or
instrument relating to any Letter of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement, such Letter of Credit Agreement and such other agreement or
instrument under all circumstances, including, without limitation, the following
circumstances:
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(i) any lack of validity or enforceability of this Agreement,
any Letter of Credit Agreement, any Letter of Credit or any other
agreement or instrument relating thereto (this Agreement and all of the
other foregoing being, collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver of
or any consent to departure from all or any of the L/C Related
Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), any Issuing Bank,
any Lender or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated
transaction;
(iv) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment by any Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the obligations of the
Borrower in respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including, without limitation,
any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or a guarantor;
provided that notwithstanding the foregoing, the Borrower shall not be obligated
to reimburse any Issuing Bank for any payment made by such Issuing Bank under a
Letter of Credit as a result of
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acts or omissions constituting willful misconduct or gross negligence.
(e) Compensation. (i) The Borrower shall pay to the
Administrative Agent for the account of each Working Capital Lender a commission
on such Lender's Ratable Share of the average daily aggregate Available Amount
of all Letters of Credit outstanding from time to time at the Applicable Margin
applicable to Eurodollar Rate Advances payable in arrears quarterly on the first
Business Day of each January, April, July and October, commencing January 3,
1995, and on the Termination Date.
(ii) The Borrower shall pay to each Issuing Bank, for its own
account, such commissions, issuance fees, transfer fees and other fees and
charges in connection with the issuance or administration of each Letter of
Credit as the Borrower and such Issuing Bank shall agree.
SECTION 2.16. Use of Proceeds. The Letters of Credit and the
proceeds of the Advances shall be available to pay transaction fees and
expenses, for acquisitions and general corporate purposes of the Borrower and
its Subsidiaries and for making advances to the Affiliate Guarantors and their
Subsidiaries for acquisitions and general corporate purposes of the Affiliate
Guarantors and their Subsidiaries.
SECTION 2.17. Defaulting Lenders. (a) In the event that, at
any one time, (i) any Lender shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then the Borrower may, so long
as no Default shall occur or be continuing at such time and to the fullest
extent permitted by applicable law, set off and otherwise apply the obligation
of the Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that the Borrower shall so set off and otherwise apply the
obligation of the Borrower to make any such payment against the obligation of
such Defaulting Lender to make any such Defaulted Advance on any date, the
amount so set off and otherwise applied by the Borrower shall constitute for all
purposes of this Agreement and the other Loan Documents an Advance by such
Defaulting Lender made on such date. Such Advance shall bear interest at a rate
equal to the Base Rate (without giving effect to the Applicable Margin) and
shall be considered, for all purposes of this Agreement, to comprise part
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of the Borrowing in connection with which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01, even if the other Advances
comprising such Borrowing shall be Eurodollar Rate Advances on the date such
Advance is deemed to be made pursuant to this subsection (a). The Borrower shall
notify the Administrative Agent at any time the Borrower reduces the amount of
the obligation of the Borrower to make any payment otherwise required to be made
by it hereunder or under any other Loan Document as a result of the exercise by
the Borrower of its right set forth in this subsection (a) and shall set forth
in such notice (A) the name of the Defaulting Lender and the Defaulted Advance
required to be made by such Defaulting Lender and (B) the amount set off and
otherwise applied in respect of such Defaulted Advance pursuant to this
subsection (a). Any portion of such payment otherwise required to be made by the
Borrower to or for the account of such Defaulting Lender which is paid by the
Borrower, after giving effect to the amount set off and otherwise applied by the
Borrower pursuant to this subsection (a), shall be applied by the Administrative
Agent as specified in subsection (b) or (c) of this Section 2.17.
(b) In the event that, at any one time, (i) any Lender shall
be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount
to the Administrative Agent or any of the other Lenders and (iii) the Borrower
shall make any payment hereunder or under any other Loan Document to the
Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lenders and
to the fullest extent permitted by applicable law, apply at such time the amount
so paid by the Borrower to or for the account of such Defaulting Lender to the
payment of each such Defaulted Amount to the extent required to pay such
Defaulted Amount. In the event that the Administrative Agent shall so apply any
such amount to the payment of any such Defaulted Amount on any date, the amount
so applied by the Administrative Agent shall constitute for all purposes of this
Agreement and the other Loan Documents payment, to such extent, of such
Defaulted Amount on such date. Any such amount so applied by the Administrative
Agent shall be retained by the Administrative Agent or distributed by the
Administrative Agent to such other Lenders, ratably in accordance with the
respective portions of such Defaulted Amounts payable at such time to the
Administrative Agent and such other Lenders and, if the amount of such payment
made by the Borrower shall at such time be insufficient to pay all Defaulted
Amounts owing at such time to
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the Administrative Agent and the other Lenders, in the following order of
priority:
(i) first, to the Administrative Agent for any Defaulted
Amount then owing to the Administrative Agent; and
(ii) second, to any other Lenders for any Defaulted Amounts
then owing to such other Lenders, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lenders.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.17.
(c) In the event that, at any one time, (i) any Lender shall
be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, the Administrative Agent
or any other Lender shall be required to pay or distribute any amount hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrower or such other Lender shall pay such amount to the
Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow under
this subsection (c) shall be deposited by the Administrative Agent in an
interest-bearing account with Citibank, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection (c). The
terms applicable to such account, including the rate of interest payable with
respect to the credit balance of such account from time to time, shall be
Citibank's standard terms applicable to escrow accounts maintained with it. Any
interest credited to such account from time to time shall be held by the
Administrative Agent in escrow under, and applied by the Administrative Agent
from time to time in accordance with the provisions of, this subsection (c). The
Administrative Agent shall, to the fullest extent permitted by applicable law,
apply all funds so held in escrow from time to time to the extent necessary to
make any Advances required to be made by such Defaulting Lender and to pay any
amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent or any other Lender, as and when such
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Advances or amounts are required to be made or paid and, if the amount so held
in escrow shall at any time be insufficient to make and pay all such Advances
and amounts required to be made or paid at such time, in the following order of
priority:
(i) first, to the Administrative Agent for any amount then due
and payable by such Defaulting Lender to the Administrative Agent
hereunder;
(ii) second, to any other Lenders for any amount then due and
payable by such Defaulting Lender to such other Lenders hereunder,
ratably in accordance with such respective amounts then due and payable
to such other Lenders; and
(iii) third, to the Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to the Commitments of such
Defaulting Lender.
In the event that such Defaulting Lender shall, at any time, cease to be a
Defaulting Lender, any funds held by the Administrative Agent in escrow at such
time with respect to such Defaulting Lender shall be distributed by the
Administrative Agent to such Defaulting Lender and applied by such Defaulting
Lender to the obligations owing to such Lender at such time under this Agreement
and the other Loan Documents ratably in accordance with the respective amounts
of such obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.17 are in addition to other rights and remedies which the
Borrower may have against such Defaulting Lender with respect to any Defaulted
Advance and which the Administrative Agent or any Lender may have against such
Defaulting Lender with respect to any Defaulted Amount.
SECTION 2.18. Option to Replace Lenders. If any Lender shall
request the Borrower to pay any amounts, or shall assert any other special
rights, under Section 2.11 or 2.13 or if a Lender is a Defaulting Lender, the
Borrower may request one or more other Lenders or other financial institutions,
each of which is an Eligible Assignee (each a "Replacement Lender") to take over
all or the affected portion of such Lender's then outstanding Advances and to
assume all or the affected portion of such Lender's Commitments and obligations
hereunder. If one or more Replacement Lenders shall so agree, the Advances and
Commitments of the Lender to be replaced shall, at the direction
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of the Borrower, be assigned to such Replacement Lenders in accordance with
Section 9.07, in such amounts as the Borrower may designate.
SECTION 2.19. Increase in the Aggregate Commitments. (a) The
Borrower may, at any time but in any event not more than once in any year prior
to the Termination Date, by notice to the Administrative Agent, request that the
aggregate amount of the Commitments be increased by an amount of $50,000,000 or
an integral multiple of $5,000,000 in excess thereof (each a "Commitment
Increase") to be effective as of a date that is at least 90 days prior to the
scheduled Termination Date then in effect (the "Increase Date") as specified in
the related notice to the Administrative Agent; provided, however, that (i) in
no event shall the aggregate amount of the Commitments at any time exceed
$1,200,000,000, (ii) no Default shall have occurred and be continuing as of the
date of such request or as of the applicable Increase Date, or shall occur as a
result thereof and (iii) the aggregate amount of the Commitments and of the
"Commitments" under the 364-Day Credit Agreement shall not exceed
$1,200,000,000.
(b) The Administrative Agent shall promptly notify the Lenders
of a request by the Borrower for a Commitment Increase, which notice shall
include (i) the proposed amount of such requested Commitment Increase, (ii) the
proposed Increase Date and (iii) the date by which Lenders wishing to
participate in the Commitment Increase must commit to an increase in the amount
of their respective Commitments (the "Commitment Date"). Each Lender that is
willing to participate in such requested Commitment Increase (each an
"Increasing Lender") shall give written notice to the Administrative Agent on or
prior to the Commitment Date of the amount by which it is willing to increase
its Commitment. If the Lenders notify the Administrative Agent that they are
willing to increase the amount of their respective Commitments by an aggregate
amount that exceeds the amount of the requested Commitment Increase, the
requested Commitment Increase shall be allocated among the Lenders willing to
participate therein in such amounts as are agreed between the Borrower and the
Administrative Agent.
(c) Promptly following each Commitment Date, the
Administrative Agent shall notify the Borrower as to the amount, if any, by
which the Lenders are willing to participate in the requested Commitment
Increase. If the aggregate amount by which the Lenders are willing to
participate in any requested Commitment Increase on any such Commitment Date is
less than the
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requested Commitment Increase, then the Borrower may extend offers to one or
more Eligible Assignees to participate in any portion of the requested
Commitment Increase that has not been committed to by the Lenders as of the
applicable Commitment Date; provided, however, that the Commitment of each such
Eligible Assignee shall be in an amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof.
(d) On each Increase Date, each Eligible Assignee that accepts
an offer to participate in a requested Commitment Increase in accordance with
Section 2.19(c) (an "Assuming Lender") shall become a Lender party to this
Agreement as of such Increase Date and the Commitment of each Increasing Lender
for such requested Commitment Increase shall be so increased by such amount (or
by the amount allocated to such Lender pursuant to the last sentence of Section
2.19(b)) as of such Increase Date; provided, however, that the Administrative
Agent shall have received on or before such Increase Date the following, each
dated such date:
(i) an assumption agreement from each Assuming Lender, if any,
in form and substance satisfactory to the Borrower and the
Administrative Agent (each an "Assumption Agreement"), duly executed by
such Eligible Assignee, the Administrative Agent and the Borrower; and
(ii) confirmation from each Increasing Lender of the increase
in the amount of its Commitment in a writing satisfactory to the
Borrower and the Administrative Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.19(d), the Administrative Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or
telex, of the occurrence of the Commitment Increase to be effected on such
Increase Date and shall record in the Register the relevant information with
respect to each Increasing Lender and each Assuming Lender on such date.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to Certain Borrowings and
Issuances. The obligation of each Appropriate Lender to make an Advance (other
than a Swing Line Advance made
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by a Working Capital Lender pursuant to Section 2.02(b) and other than a Letter
of Credit Advance) on the occasion of each Borrowing, and the obligation of the
Issuing Banks to issue Letters of Credit, that would in either case cause the
aggregate amount of Advances outstanding and the Available Amount of Letters of
Credit outstanding or to be outstanding at the close of business on such date to
exceed the aggregate amount of all Advances outstanding (including any Advances
to be paid on the date of such Borrowing) and the Available Amount of Letters of
Credit outstanding immediately prior to the making of such Advance or such
issuance, and the right of the Borrower to request a Swing Line Borrowing, shall
be subject to the further conditions precedent that on the date of such
Borrowing or issuance the following statements shall be true (and each of the
giving of the Notice of Borrowing, Notice of Issuance or Notice of Swing Line
Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing
or such Letter of Credit shall constitute a representation and warranty by the
Borrower that on the date of such Borrowing or issuance such statements are
true):
(a) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of the date of
such Borrowing or issuance, before and after giving effect to such
Borrowing or issuance and to the application of the proceeds therefrom,
as though made on and as of such date (other than any such
representations or warranties that, by their terms, are made as of a
date other than the date of such Borrowing or issuance); and
(b) no event has occurred and is continuing, or would result
from such Borrowing or issuance or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.02. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Working Capital Lender that is to make a
Competitive Bid Advance on the occasion of a Competitive Bid Borrowing to make
such Competitive Bid Advance as part of such Competitive Bid Borrowing is
subject to the conditions precedent that (a) the Administrative Agent shall have
received the written confirmatory Notice of Competitive Bid Borrowing with
respect thereto and (b) on or before the date of such Competitive Bid Borrowing,
but prior to such Competitive Bid Borrowing, the Administrative Agent shall have
received for recordation in the Competitive Bid Register information as to each
of the one or more Competitive Bid Advances to be made by the Working Capital
Lenders as part of such Competitive Bid
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Borrowing, the principal amount of each such Competitive Bid Advance and such
other terms as were agreed to for each such Competitive Bid Advance in
accordance with Section 2.03.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Obligated
Parties. Each Obligated Party represents and warrants as follows:
(a) Such Obligated Party (i) is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which
it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to so
qualify or be licensed would not be likely to have a Material Adverse
Effect and (iii) has all requisite corporate power and authority to own
or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Material Subsidiaries of the Obligated Parties as
of the date of this Agreement, showing as of the date of this Agreement
(as to each such Subsidiary) the jurisdiction of its incorporation and
percentage of the outstanding shares of each such class owned (directly
or indirectly) by each Obligated Party. Each such Material Subsidiary
(i) is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, except where the failure
thereof would not be likely to have a Material Adverse Effect, (ii) is
duly qualified and in good standing as a foreign corporation in each
other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except
where the failure to so qualify or be licensed would not be likely to
have a Material Adverse Effect and (iii) has all requisite corporate
power and authority to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted
except where the
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failure to have such power would not be likely to have a Material
Adverse Effect.
(c) The execution, delivery and performance by each Obligated
Party of this Agreement, the Notes and each other Loan Document to
which it is or is to be a party, and the consummation of the
transactions contemplated hereby or thereby are within such Obligated
Party's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Obligated Party's
charter or by-laws, (ii) violate any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award, the
consequences of which would be likely to have a Material Adverse
Effect, (iii) conflict with or result in the breach of, or constitute a
default under, any loan agreement, indenture, mortgage, deed of trust,
lease or other instrument in each case involving Debt obligations of
the Borrower and the Affiliate Guarantors of $1,000,000 or more or (iv)
result in or require the creation or imposition of any Lien upon or
with respect to any of the properties of the Affiliate Guarantors, the
Borrower and their respective Subsidiaries, other than Liens permitted
by Section 5.02. None of any Affiliate Guarantor, the Borrower or any
of their respective Subsidiaries is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award or in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument, the violation or
breach of which would be likely to have a Material Adverse Effect.
(d) All necessary material governmental and third party
approvals required for (i) the due execution, delivery, recordation,
filing or performance by each Obligated Party of this Agreement, the
Notes or any other Loan Document to which it is a party or (ii) to the
extent obtainable on or prior to the date hereof, the exercise by the
Administrative Agent or any Lender of its rights under the Loan
Documents, have been duly obtained, taken, given or made and are in
full force and effect.
(e) This Agreement has been, and each of the Notes and each
other Loan Document to which each Obligated Party is a party when
delivered hereunder will have been, duly executed and delivered by such
Obligated Party. This Agreement is, and each of the Notes and each
other Loan Document to which the Borrower or any Affiliate Guarantor is
a party when delivered hereunder will be, the legal, valid and binding
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obligation of the Obligated Parties party thereto, enforceable against
each such Obligated Party in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or limiting
creditors' rights or by equitable principles generally.
(f) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1996, and the related Consolidated
statement of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Deloitte &
Touche LLP, independent public accountants, and the Consolidated
balance sheet of the Borrower and its Subsidiaries as at March 31,
1997, and the related Consolidated statement of income and cash flows
of the Borrower and its Subsidiaries for the three months then ended,
duly certified by the chief financial officer of the Borrower, copies
of which have been furnished to each Lender, fairly present, subject,
in the case of said balance sheet as at March 31, 1997, and said
statements of income and cash flows for the three months then ended, to
year-end audit adjustments, the Consolidated financial condition of the
Borrower and its Subsidiaries as at such date and the Consolidated
results of the operations of the Borrower and its Subsidiaries for the
periods ended on such dates, all in accordance with generally accepted
accounting principles applied on a consistent basis. Since December 31,
1996, there has been no Material Adverse Change.
(g) Neither the Information Memorandum nor any assertion of
fact of the Obligated Parties contained in any other written
information, exhibit or report furnished by the Obligated Parties to
the Administrative Agent or any Lender in connection with the
negotiation of the Loan Documents or pursuant to the terms of the Loan
Documents contained, as of its date, any untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements made in the Information Memorandum and such other
information, exhibits and reports (taken as a whole) not misleading.
(h) There is no action, suit, investigation, litigation or
proceeding affecting any Affiliate Guarantor, the Borrower or any of
their respective Subsidiaries pending or, to the best of any of their
knowledge, threatened before any court, governmental agency or
arbitrator that (i) except
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as disclosed in the Borrower's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996, would be likely to have a Material
Adverse Effect or (ii) would be likely to materially adversely affect
the legality, validity or enforceability of this Agreement and the
other Loan Documents (taken as a whole) or the consummation of the
transactions contemplated hereby.
(i) No Letters of Credit or proceeds of any Advance will be
used to acquire any equity security of a class that is registered
pursuant to Section 12 of the Securities Exchange Act of 1934.
(j) Neither the issuance of any Letter of Credit nor the
making of any Advance hereunder, nor the use of the proceeds thereof,
will violate the provisions of Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System.
(k) Each Plan is in substantial compliance with ERISA and the
Internal Revenue Code; no Reportable Event has occurred with respect to
a Plan; no Plan is insolvent or in reorganization; no Plan has an
accumulated or waived funding deficiency, has permitted decreases in
its funding standard account or has applied for an extension of any
amortization period within the meaning of Section 412 of the Internal
Revenue Code; none of any Affiliate Guarantor, the Borrower, any of
their respective Subsidiaries or any ERISA Affiliate has incurred or
reasonably expects to incur any liability to or on account of a Plan
pursuant to ERISA or the Internal Revenue Code; no proceedings have
been instituted by the PBGC to terminate any Plan; no condition exists
which presents a material risk to any Affiliate Guarantor, the
Borrower, any of their respective Subsidiaries or any ERISA Affiliate
of incurring a liability to or on account of a Plan pursuant to ERISA
or the Internal Revenue Code; no lien imposed under the Internal
Revenue Code or ERISA on the assets of any Affiliate Guarantor, the
Borrower, any of their respective Subsidiaries or any ERISA Affiliate
exists or is likely to arise on account of any Plan; where, with
respect to any of the foregoing representations in this Section
4.01(k), the liability for or the lien which would arise as a result
of, the particular circumstance or event which is the subject of the
representation, would be likely to result in a Material Adverse Effect.
All representations and warranties made with respect to any Plan which
is a
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Multiemployer Plan shall be made to the best knowledge of the Borrower
and the Affiliate Guarantors.
(l) Each Affiliate Guarantor, the Borrower and each of their
respective Subsidiaries are in material compliance with all material
laws and regulations relating to pollution and environmental control or
employee safety in all domestic jurisdictions in which the Affiliate
Guarantors, the Borrower and their respective Subsidiaries are
presently doing business, other than those the non-compliance with
which would not be likely to have a Material Adverse Effect.
(m) Each Affiliate Guarantor, the Borrower and each of their
respective Subsidiaries has filed, has caused to be filed or has been
included in all tax returns (Federal, state, local and foreign)
required to be filed and has paid all taxes shown thereon to be due,
together with applicable interest and penalties, except where the
failure to so file or pay would not be likely to have a Material
Adverse Effect or as disclosed on the Borrower's Annual Report on Form
10-K for the fiscal year ended December 31, 1994.
(n) None of any Affiliate Guarantor, the Borrower or any of
their respective Subsidiaries is an "investment company," or a company
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
shall have any Commitment hereunder, each Obligated Party will, unless the
Required 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 except to the extent the failure to do so would not be
likely to have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before
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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 in excess of $15,000,000 individually or
$30,000,000 in the aggregate for the Obligated Parties and their
respective Subsidiaries that, if unpaid, would by law become a Lien
(other than a Permitted Lien) upon its property; provided, however,
that no Obligated Party or any of its Subsidiaries shall be required to
pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by appropriate proceedings for which
appropriate reserves have been established in accordance with GAAP.
(c) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries to comply, with all material laws and regulations
relating to pollution and environmental control or employee safety
which may be imposed in the future in jurisdictions in which any
Obligated Party or any of its Subsidiaries may then be doing business,
other than those the non-compliance with which would not be likely to
have a Material Adverse Effect; and if required to do so under any
applicable Environmental Law, undertake, and cause each of its
Subsidiaries to undertake, any cleanup, removal, remedial or other
action necessary to remove and clean up any Hazardous Materials from
any Real Property in accordance with the requirements of all such
applicable Environmental Laws and in accordance with orders and
directives of all governmental authorities; provided that no Obligated
Party or any of its Subsidiaries shall be required to take any such
action where the failure to do so would not have a Material Adverse
Effect.
(d) Maintenance of Insurance. Maintain, and cause each of its
Material Subsidiaries to maintain, insurance with reputable insurance
companies or associations in such amounts, with such retention and
deductibles, and covering such risks as are in accordance with normal
industry practice.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Material Subsidiaries to preserve and
maintain, its corporate existence, rights (charter and statutory) and
franchises except to the extent that the failure to do so would not be
likely to have a Material Adverse Effect; provided, however, that the
Obligated Parties and their Subsidiaries may consummate any transaction
permitted under Section 5.02(c);
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and provided further that no Obligated Party or any of its Subsidiaries
shall be required to preserve any right or franchise if the Board of
Directors of such Obligated Party or such Subsidiary shall determine
that the preservation thereof is no longer desirable in the conduct of
the business of such Obligated Party or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any
material respect to such Obligated Party, such Subsidiary or the
Lenders.
(f) Visitation Rights. At any reasonable time and upon prior
notice, permit the Administrative Agent or any of the Lenders or any
agents or representatives thereof, to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, such Obligated Party and any of its Subsidiaries, and to
discuss the affairs, finances and accounts of such Obligated Party and
any of its Subsidiaries with any of their officers or, if reasonably
requested by the Administrative Agent or any Lender, through the
officers of such Obligated Party or such Subsidiary and with their
independent certified public accountants.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted, and
do, or cause to be done, all things necessary to preserve and keep in
full force and effect its material licenses, permits, copyrights,
patents, trademarks, service marks, tradenames and rights with respect
thereto, except in each case to the extent that the failure to do so
would not be likely to have a Material Adverse Effect.
(h) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions with any of their
Affiliates (other than the Borrower and its Subsidiaries) on terms that
are substantially as favorable to such Obligated Party or such
Subsidiary as it would obtain in a comparable arm's-length transaction
with a Person not an Affiliate; provided that the foregoing
restrictions shall not apply to (i) customary annual fees paid to
Kohlberg Kravis ▇▇▇▇▇▇▇ & Co. ("KKR") and its Affiliates for
management, consulting and financial services rendered to such
Obligated Party and its Subsidiaries, and customary investment banking
fees paid to KKR and its
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Affiliates for services rendered to such Obligated Party and its
Subsidiaries in connection with divestitures, acquisitions, financings
and certain other transactions; (ii) customary fees paid to members of
the Board of Directors of such Obligated Party and its Subsidiaries;
(iii) loans and advances made by the Borrower to any of its
Subsidiaries or any Affiliate Guarantor; and (iv) the consummation of
the Redesign in accordance with the terms set forth in Section 9.12.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder, no Obligated Party will, at any time, without the
written consent of the Required Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character whether now owned or hereafter acquired other than:
(i) Permitted Liens;
(ii) Liens securing Indebtedness permitted by
Sections 5.02(b)(viii), (ix) and (xi);
(iii) Liens, if any, arising under, financing
statements filed in connection with, and assignments of
accounts pursuant, to a Receivables Financing Transaction;
(iv) other Liens securing Indebtedness outstanding in
an aggregate principal amount for the Obligated Parties and
their respective Subsidiaries not to exceed $200,000,000 at
any time;
(v) purchase money Liens upon or in any capital
assets acquired or held by the Borrower, any Affiliate
Guarantor or any of their respective Subsidiaries in the
ordinary course of business to secure the purchase price of
such asset or to secure Debt incurred solely for the purpose
of financing the acquisition, construction or improvement of
such asset, or Liens existing on such asset at the time of its
acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to
finance the
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acquisition of such asset) or extensions, renewals or
replacements of any of the foregoing for the same or a lesser
amount, provided, however, that no such Lien shall extend to
or cover any properties of any character other than the asset
being acquired, and no such extension, renewal or replacement
shall extend to or cover any properties not theretofore
subject to the Lien being extended, renewed or replaced,
provided further that the aggregate principal amount of the
indebtedness secured by the Liens referred to in this clause
(v) shall not exceed $100,000,000 at any time outstanding.
(vi) the replacement, extension or renewal of any
Lien permitted by clauses (i) through (v) above upon or in the
same property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Indebtedness
secured thereby.
(b) Indebtedness. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Indebtedness other than:
(i) Indebtedness arising under the Loan Documents;
(ii) Indebtedness with no principal or sinking fund
payment due prior to December 31, 2002 with covenants (taken
as a whole) customary in United States unsecured public debt
financings or private placements (other than bank financings)
for comparably rated issuers and in any event no more onerous
than those contained in this Agreement (taken as a whole);
(iii) unsecured Indebtedness incurred in the ordinary
course of business for borrowed money, maturing within one
year from the date incurred, evidenced by commercial paper or
comparable instruments customary for evidencing similar
obligations in jurisdictions other than the United States in
an aggregate principal amount not exceeding the Unused Working
Capital Commitments of the Working Capital Lenders;
(iv) Indebtedness in respect of acceptance, trade
letter of credit, warehouse receipt or similar
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facilities and non-trade letters of credit issued outside the
United States not supporting Debt entered into in the ordinary
course of business;
(v) Indebtedness, if any, arising under a Receivables
Financing Transaction;
(vi) Guaranties in respect of Indebtedness otherwise
permitted hereunder;
(vii) Guaranties in the ordinary course of business
in respect of obligations of suppliers, customers, franchisees
and licensees of such Obligated Party and its Subsidiaries;
(viii) Indebtedness of the Subsidiaries of any
Obligated Party organized outside the United States in an
aggregate principal amount for the Obligated Parties and their
respective Subsidiaries not exceeding at any time the excess
of $250,000,000 over the proceeds of sales of accounts
receivable by such Subsidiaries;
(ix) Indebtedness arising under Capitalized Leases in
an aggregate principal amount for the Obligated Parties and
their respective Subsidiaries not exceeding $100,000,000 at
any time;
(x) Indebtedness in respect of Hedge Agreements in an
aggregate notional amount for the Obligated Parties and their
respective Subsidiaries not to exceed $2,500,000,000 at any
time outstanding;
(xi) Indebtedness of any Obligated Party or any of
its Subsidiaries owed to any Obligated Party or any of its
Subsidiaries;
(xii) Indebtedness secured by Liens permitted by
Section 5.02(a)(v).
(xiii) Guaranties in respect of Indebtedness listed
on Schedule 5.02(b) hereto;
(xiv) additional Indebtedness not contemplated by
clauses (i)-(xii) above in an aggregate principal amount for
the Obligated Parties and their respective Subsidiaries not
exceeding $300,000,000 at any time;
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(xv) any renewal, extension or refinancing of the foregoing
Indebtedness in an amount not exceeding the amount outstanding at the
time of such renewal, extension or refinancing and, in the case of any
renewal, extension or refinancing of the Indebtedness specified in
clauses (ii) and (iii) above, otherwise in compliance with the
limitations set forth in clauses (ii) and (iii), respectively; and
(xvi) the Existing Indebtedness, and any Indebtedness
extending the maturity of, or refunding or refinancing, in whole or in
part, any Existing Indebtedness, provided that the terms of any such
extending, refunding or refinancing Indebtedness, and of any agreement
entered into and of any instrument issued in connection therewith, are
otherwise permitted by the Loan Documents and certain covenants that
are no more onerous than the stricter of those covenants of this
Agreement (taken as a whole) or those covenants applicable to such
Existing Indebtedness on the date hereof and further provided that the
principal amount of such Existing Indebtedness shall not be increased
above the principal amount thereof outstanding immediately prior to
such extension, refunding or refinancing (including additional
Indebtedness to the extent necessary to finance the payment of
premiums, make-wholes or similar payments incurred in connection with
such extension, refunding or refinancing), and the direct and
contingent obligors therefor shall not be changed, as a result of or in
connection with such extension, refunding or refinancing.
(c) Mergers, Etc. Merge into or consolidate with any Person or permit
any Person to merge into it, or permit any of its Subsidiaries to do so, except
that (i) any Subsidiary of any Obligated Party may merge into or consolidate
with, or transfer all or a portion of its assets to, any Person, provided that,
in the case of any such merger or consolidation, the Person formed by such
merger or consolidation, or the Person to which all or a portion of such assets
were transferred, shall be a Subsidiary of an Obligated Party, (ii) any
Subsidiaries of an Obligated Party may merge into, or transfer all or a portion
of its assets to, any Obligated Party, provided that in the case of any such
merger, such Obligated Party is the surviving corporation, (iii) the Borrower
may merge into a wholly owned Subsidiary of the Borrower that (A) is
incorporated
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under the laws of any of the States of Delaware, New York or Ohio and (B) has no
material assets or liabilities, for the sole purpose of changing the state of
incorporation of the Borrower if the surviving corporation shall expressly
assume the liabilities of the Borrower under the Loan Documents and (iv) any
Subsidiary of any Obligated Party may merge into any Person pursuant to a
transaction not prohibited by Section 5.02(d); provided, however, that in each
case, immediately after giving effect thereto, no event shall occur and be
continuing that constitutes a Default.
(d) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose
of any assets of such Obligated Party and its Subsidiaries for less than Fair
Market Value, provided, that the foregoing shall not apply to (i) sales of
inventory and other assets (including, without limitation, worn out and obsolete
equipment) in the ordinary course of business, (ii) dispositions of assets
conducted on an arm's length basis for a consideration of less than $10,000,000
and (iii) dispositions of assets between or among an Obligated Party and any of
its Subsidiaries; sell, lease, transfer or otherwise dispose of all or
substantially all of the assets of the Obligated Parties and their Subsidiaries
taken as a whole, except in a transaction authorized by subsection (c) of this
Section; or sell or grant Options except that the Obligated Parties and their
Subsidiaries may sell or grant Options (i) pursuant to terms and conditions
substantially similar to those set forth in Exhibits K and L hereto, (ii) for
Fair Market Value and (iii) in an aggregate amount of proceeds thereof not to
exceed $101,000,000 after June 30, 1997; provided, however, that with respect to
any sale, lease, transfer or other disposition of Options or any assets (other
than Excluded Asset Sales) including pursuant to Options, immediately after
giving effect thereto, no event shall occur and be continuing that constitutes
an Event of Default under Sections 6.01(a), (b), (c) or (f).
(e) Dividends, Etc. Declare or pay any dividends (other than dividends
payable only in common stock or Preferred Stock permitted by clause (ii) below
of the Borrower), purchase, redeem, retire, defease or otherwise acquire for
value any of its capital stock or any warrants, rights or options to acquire
such capital stock, now or hereafter outstanding, return any capital to its
stockholders as such, make any distribution of assets, capital stock, warrants,
rights, options, obligations or
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securities to its stockholders as such or issue or sell any capital stock (other
than common stock) or any warrants, rights or options to acquire such capital
stock (other than common stock), or permit any of its Subsidiaries to purchase,
redeem, retire, defease or otherwise acquire for value any capital stock of the
Borrower or any Affiliate Guarantor or any warrants, rights or options to
acquire such capital stock or to issue or sell any capital stock (other than
common stock) or any warrants, rights or options to acquire such capital stock
(other than common stock), except that, so long as no Default described in
Sections 6.01(a) or (f) and no Event of Default shall have occurred and be
continuing, (i) any Obligated Party or its Subsidiaries may repurchase capital
stock, or any warrants, rights or options to acquire such capital stock held by
its officers, directors and employees, (ii) the Borrower may issue Preferred
Stock and pay dividends thereon, provided that such Preferred Stock (A) shall
not obligate the Borrower to redeem at a fixed or determinable date prior to
January 1, 2000, whether by operation of a sinking fund or otherwise, or upon
the occurrence of a condition not solely within the control of this issuer and
(B) shall not be redeemable at the option of the holder prior to January 1,
2000, (iii) the Borrower may pay dividends on its common stock to the extent
that such dividends are paid to the Borrower as interest on the notes issued by
▇▇▇▇▇▇ Holdings then held by the Borrower or its Subsidiaries; (iv) the Borrower
may pay dividends on its common stock at any time when the ratio of Combined
Total Debt to Combined EBITDA of the Affiliate Guarantors, the Borrower, and
their respective Subsidiaries for the period of four consecutive fiscal quarters
most recently ended is less than 3.00:1.00, in an amount not to exceed 25% of
the Borrower's net income for the fiscal year most recently ended; and (v) any
Subsidiary of any Obligated Party may issue Preferred Stock to such Obligated
Party and pay dividends thereon; (vi) the Borrower may make non-cash dividends
after the Effective Date in an aggregate amount not to exceed $50,000,000; (vii)
the Borrower may make a non-cash dividend of its ▇▇▇▇▇▇ Services division; and
(viii) any Affiliate Guarantor may make and pay dividends or distributions in
amounts necessary to pay taxes paid or payable in connection with any sale or
disposition of assets by such Affiliate Guarantor or its Subsidiaries.
(f) Change in Nature of Business. Make any material change in the
nature of its business taken as a whole as carried on at the date of the
Existing Credit Agreement,
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other than as a result of (i) dispositions of assets or businesses
approved by the Board of Directors of the applicable Obligated Party or
(ii) business activities engaged in by any Obligated Party or its
Subsidiaries on or prior to such date and other similar or related
activities.
(g) Accounting Changes. Make or permit, or permit any of its
Material Subsidiaries to make or permit, any change in its fiscal year
or any significant change in accounting policies or reporting
practices, except as required or permitted by generally accepted
accounting principles.
(h) Amendment, Etc. of Redesign Documents. After the execution
and delivery of any Redesign Document, cancel or terminate such
Redesign Document or consent to, permit or accept such cancellation or
termination thereof, amend, modify or change in any manner any term or
condition of such Redesign Document or give any consent, waiver or
approval thereunder, waive any default under or any breach of any term
or condition of such Redesign Document, agree in any manner to any
other amendment, modification or change of any term or condition of
such Redesign Document or take any other action in connection with such
Redesign Document, or permit any of its Subsidiaries to do so, except
to the extent that after giving effect to any such action, the
applicable Redesign Document contains terms substantially the same as
those set forth in Exhibits G through L, as applicable, provided that
after giving effect to any such action the Amended and Restated
Agreement of Limited Partnership of BFC Investments, L.P. shall contain
provisions strictly complying with those set forth in Exhibit H as (i)
the defined term "Percentage Interest@ and (ii) Section 5.3(b).
5.03. Reporting Requirements. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will,
unless the Required Lenders shall otherwise consent in writing, furnish to the
Lenders:
(a) Default Notice. As soon as possible and in any event
within three Business Days after any officer of the Borrower obtains
knowledge of each Default continuing on the date of such statement, a
statement of the chief financial officer of the Borrower setting forth
details thereof and the action that the Borrower has taken and proposes
to take with respect thereto.
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(b) Quarterly Financials. As soon as available and in any
event within 45 days after the end of each of the first three quarters
of each fiscal year of the Obligated Parties, a Consolidated balance
sheet of (x) the Borrower and its Subsidiaries, (y) each Affiliate
Guarantor and its Subsidiaries and (z) ▇▇▇▇▇▇ Holdings and its
Subsidiaries, respectively, and a Combined balance sheet of the
Affiliate Guarantors, the Borrower and their respective Subsidiaries,
in each case as of the end of such quarter and Consolidated statements
of income and cash flows of (x) the Borrower and its Subsidiaries, (y)
each Affiliate Guarantor and its Subsidiaries and (z) ▇▇▇▇▇▇ Holdings
and its Subsidiaries, respectively, and Combined statements of income
and cash flows of the Affiliate Guarantors, the Borrower and their
respective Subsidiaries, in each case for the period commencing at the
end of the previous fiscal year and ending with the end of such
quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the
preceding fiscal year, certified (subject to year-end audit
adjustments) by the chief financial officer of the Borrower as having
been prepared in accordance with GAAP, together with (i) a certificate
of said officer stating that, to the knowledge of such officer, 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
that the Borrower has taken and proposes to take with respect thereto
and (ii) a schedule setting forth in reasonable detail the computations
used by the Borrower in determining compliance with the covenants
contained in Section 5.04. To the extent that a Combined financial
statement is required to be delivered under this Section, if
Consolidated statements of the Affiliate Guarantors, the Borrower and
their respective Subsidiaries are filed with the Securities and
Exchange Commission in lieu of Combined statements, delivery of such
Consolidated statements shall satisfy the requirements of this Section.
(c) Annual Financials. As soon as available and in any event
within 90 days after the end of each fiscal year of the Obligated
Parties, a copy of the annual audit report for such year for (w) the
Borrower and its Subsidiaries, the Affiliate Guarantors and their
Subsidiaries, (y) each Affiliate Guarantor and its Subsidiaries and (z)
▇▇▇▇▇▇ Holdings and its Subsidiaries, respectively, including
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therein a Consolidated balance sheet of (x) the Borrower and its
Subsidiaries, (y) each Affiliate Guarantor and its Subsidiaries and (z)
▇▇▇▇▇▇ Holdings and its Subsidiaries, respectively, and a Combined
balance sheet of the Affiliate Guarantors, the Borrower and their
respective Subsidiaries, in each case as of the end of such fiscal year
and Consolidated statements of income and cash flows of (x) the
Borrower and its Subsidiaries, (y) each Affiliate Guarantor and its
Subsidiaries and (z) ▇▇▇▇▇▇ Holdings and its Subsidiaries, respectively
(or audited combining statements including the Borrower and the
Affiliate Guarantors if combining statements are filed with the
Securities and Exchange Commission in lieu of such separate
consolidating statements), and Combined statements of income and cash
flows of the Affiliate Guarantors, the Borrower and their respective
Subsidiaries for such fiscal year, in each case accompanied by either
an unqualified opinion, or an opinion acceptable to the Required
Lenders, of Deloitte & Touche LLP or other independent public
accountants of recognized standing acceptable to the Required Lenders,
together with (i) a certificate of such accounting firm to the Lenders
stating that in the course of the regular audit of the business of (w)
the Borrower and its Subsidiaries, (x) the Borrower, the Affiliate
Guarantors and their Subsidiaries, (y) each Affiliate Guarantor and its
Subsidiaries and (z) ▇▇▇▇▇▇ Holdings and its Subsidiaries,
respectively, which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such accounting
firm has obtained no knowledge that a Default has occurred and is
continuing, or if, in the opinion of such accounting firm, a Default
has occurred and is continuing, a statement as to the nature thereof
(provided that in no event shall such accountants be liable as a result
of this Agreement by reason of any failure to obtain knowledge of any
Default that would not be disclosed in the course of their audit
examination), (ii) a schedule setting forth in reasonable detail the
computations used by such accountants in determining, as of the end of
such fiscal year, compliance with the covenants contained in Section
5.04 and (iii) a certificate of the chief financial officer of the
Borrower stating that, to the knowledge of such officer, 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 that
the Borrower has taken and proposes to take with respect thereto. To
the extent that a Combined financial statement is required to be
delivered under this Section, if Consolidated statements of the
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Affiliate Guarantors, the Borrower and their respective Subsidiaries
are filed with the Securities and Exchange Commission in lieu of
Combined statements, delivery of such Consolidated statements shall
satisfy the requirements of this Section.
(d) Budgets; Etc. Not more than 60 days after the commencement
of each fiscal year of the Obligated Parties, budgets of each Obligated
Party on a Consolidated basis in reasonable detail for each of the four
fiscal quarters of such fiscal year as customarily prepared by
management for its internal use setting forth, with appropriate
discussion, the principal assumptions upon which such budgets are
based.
(e) ERISA. As soon as possible and, in any event, within 10
days after any Affiliate Guarantor, the Borrower, any of their
respective Subsidiaries or any ERISA Affiliate knows of the occurrence
of any of the following events which, in the aggregate would be likely
to have a Material Adverse Effect, the Borrower will deliver to each of
the Lenders a certificate of the chief financial officer or other
authorized officer of the Borrower setting forth details as to such
occurrence and such action, if any, which such Affiliate Guarantor, the
Borrower, such Subsidiary, such ERISA Affiliate, the PBGC, a Plan
participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred; that an accumulated funding deficiency
has been incurred or an application is reasonably likely to be or has
been made to the Secretary of the Treasury for a waiver or modification
of the minimum funding standard (including any required installment
payments) or an extension of any amortization period under Section 412
of the Internal Revenue Code with respect to a Plan; that a Plan has
been or is reasonably likely to be terminated, reorganized, partitioned
or declared insolvent under Title IV of ERISA; that a Plan has an
Unfunded Current Liability giving rise to a lien under ERISA or the
Internal Revenue Code; that proceedings are reasonably likely to be or
have been instituted to terminate a Plan; that a proceeding has been
instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; or that any Affiliate Guarantor, the Borrower,
any of their respective Subsidiaries or any ERISA Affiliate will or is
reasonably likely to incur any liability (including any contingent or
secondary liability) to or on account of the termination of or
withdrawal from a Plan under Section 4062, 4063, 4064, 4069, 4201 or
4204 of ERISA or with respect to a Plan under
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Section 4971 or 2975 of the Internal Revenue Code or Section 409 or
502(i) or 502(l) of ERISA.
(f) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign,
affecting any Affiliate Guarantor, the Borrower or any of their
respective Subsidiaries which the Borrower reasonably believes would be
likely to have a Material Adverse Effect.
(g) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports that any Affiliate Guarantor, the Borrower or any of their
respective Subsidiaries sends to the public stockholders of the
Borrower or any Affiliate Guarantor and copies of all reports on Forms
10-Q, 10-K and 8-K that any Affiliate Guarantor, the Borrower or any of
their respective Subsidiaries files with the Securities and Exchange
Commission or any governmental authority that may be substituted
therefor.
(h) Environmental Matters. Promptly after obtaining knowledge
of any of the following environmental matters, unless such
environmental matters would not, individually or when aggregated with
all other such matters, be likely to have a Material Adverse Effect,
written notice of (i) any pending or threatened material Environmental
Claim against any Affiliate Guarantor, the Borrower or any of their
respective Subsidiaries or any Real Property; (ii) any condition or
occurrence on any Real Property that (x) results in material
noncompliance by any Affiliate Guarantor, the Borrower or any of their
respective Subsidiaries with any applicable Environmental Law or (y)
would be likely to form the basis of a material Environmental Claim
against any Affiliate Guarantor, the Borrower or any of their
respective Subsidiaries or any Real Property; (iii) any condition or
occurrence on any material Real Property that could reasonably be
anticipated to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of
such Real Property under any Environmental Law; and (iv) the taking of
any material removal or remedial action in response to the actual or
alleged presence of any Hazardous Material on any Real Property. All
such notices shall describe in reasonable detail the nature of the
claim, investigation,
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condition, occurrence or removal or remedial action and such Affiliate
Guarantor's or the Borrower's response thereto.
(i) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Affiliate Guarantor, the Borrower or any
of their respective Subsidiaries as any Lender through the
Administrative Agent may from time to time reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Obligated Parties
will, unless the Required Lenders otherwise consent in writing:
(a) EBITDA/Net Interest Expense. Maintain a ratio of Combined
EBITDA of the Affiliate Guarantors, the Borrower and their respective
Subsidiaries to Combined Net Interest Expense of not less than the
amount set forth below for each period of four consecutive fiscal
quarters ended at the dates set forth below:
QUARTER ENDING RATIO
-------------- -----
June 30, 1997 2.25:1.00
September 30, 1997 2.35:1.00
December 31, 1997 2.50:1.00
March 31, 1998 2.50:1.00
June 30, 1998 2.50:1.00
September 30, 1998 2.60:1.00
December 31, 1998 2.75:1.00
March 31, 1999 2.75:1.00
June 30, 1999 2.75:1.00
September 30, 1999 2.85:1.00
December 31, 1999 3.00:1.00
and thereafter
(b) Total Debt/EBITDA Ratio. Maintain a Total Debt/EBITDA
Ratio of not more than the amount set forth below for each period of
four consecutive fiscal quarters ended at the dates set forth below:
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QUARTER ENDING RATIO
-------------- -----
June 30, 1997 4.50:1.00
September 30, 1997 4.50:1.00
December 31, 1997 4.50:1.00
March 31, 1998 4.50:1.00
June 30, 1998 4.50:1.00
September 30, 1998 4.50:1.00
December 31, 1998 4.50:1.00
March 31, 1999 4.00:1.00
June 30, 1999 4.00:1.00
September 30, 1999 4.00:1.00
December 31, 1999 4.00:1.00
March 31, 2000 3.90:1.00
and thereafter
(c) Capital Expenditures. Not make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause the
aggregate of all such Capital Expenditures made by the Affiliate
Guarantors, the Borrower and their respective Subsidiaries to exceed
$275,000,000 in fiscal year 1997 or $250,000,000 in any fiscal year
thereafter, plus for the first year following any acquisition or
investment by the Borrower, any Affiliate Guarantor or their respective
Subsidiaries, an amount equal to 10% of the sales attributable to the
Person or assets acquired or investment made for the period of twelve
consecutive calendar months ended immediately prior to the date of
determination, plus for each year following the first anniversary of
any acquisition, an amount equal to 7.5% of such acquisition's target's
sales for the period of twelve consecutive calendar months ended
immediately prior to the date of determination and plus for any fiscal
year Equity Proceeds received by the Borrower or any Affiliate
Guarantor on or after March 31, 1997; provided that any Capital
Expenditure permitted but not made in a prior year (commencing with the
year 1997) may be carried forward and added to the amounts set forth
above; provided further that for purposes of this Section 5.04(c)
"Capital Expenditures" shall not include any portion of any acquisition
made outside of the ordinary course of business.
ARTICLE VI
EVENTS OF DEFAULT
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SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) the Borrower shall fail to pay when due any principal of
any Advance, or the Borrower shall fail to pay any interest or other
amount due under any Loan Document and such failure shall continue for
five or more days; or
(b) any representation or warranty made by any Obligated Party
under or in connection with any Loan Document shall prove to have been
incorrect in any material respect when made; or
(c) any Obligated Party shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(e), 5.02 or 5.04;
or
(d) any Obligated Party shall fail to perform any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30
days after written notice thereof shall have been received by the
Borrower from the Administrative Agent or the Required Lenders; or
(e) any Obligated Party or any of its Subsidiaries shall
default in any payment with respect to any Indebtedness in excess of
$15,000,000 individually or $30,000,000 in the aggregate (but excluding
Indebtedness outstanding hereunder) of such Obligated Party and its
Subsidiaries, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Indebtedness; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such
Indebtedness and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Indebtedness or otherwise to cause, or to permit
the holder thereof to cause, such Indebtedness to mature; or any such
Indebtedness shall be declared to be due and payable or required to be
prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Indebtedness shall be required
to
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be made, in each case prior to the stated maturity thereof; or
(f) any Obligated Party or any of its Material Subsidiaries
shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any Obligated Party or any
of its Material Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted
by it) that is being diligently contested by it in good faith, either
such proceeding shall remain undismissed or unstayed for a period of 60
days or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or any substantial part of its property) shall occur; or any
Obligated Party or any of its Material Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in
this subsection (f); or
(g) any judgment or order for the payment of money in excess
of $15,000,000 individually or $30,000,000 in the aggregate (to the
extent not paid or fully covered by insurance provided by a carrier
that has acknowledged coverage) shall be rendered against any Obligated
Party or any of its Subsidiaries and any such judgment or order shall
not have been vacated, discharged, satisfied or stayed or bonded
pending appeal within 60 days from the entry thereof; or
(h) (i) KKR and its Affiliates or Subsidiaries shall cease to
have beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of the Borrower and each
Affiliate Guarantor that has not been released in accordance with
Section 7.05 (or other Securities convertible into such
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Voting Stock) representing 50.1% or more of the combined voting power
of all Voting Stock of the Borrower and each such Affiliate Guarantor,
provided that the percentage required by this subsection (i) shall be
reduced to 35% or more provided that the Borrower maintains an
Investment Grade Rating; or (ii) individuals selected by KKR and its
Affiliates or Subsidiaries (other than the Borrower or an Affiliate
Guarantor that has not been released in accordance with Section 7.05)
shall fail to constitute a majority of the Board of Directors of the
Borrower or such Affiliate Guarantor; or
(i) (i) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such
standard or extension of any amortization period is sought or granted
under Section 412 of the Internal Revenue Code; any Plan is, shall have
been or is likely to be terminated or the subject of termination
proceedings under ERISA; any Plan shall have an Unfunded Current
Liability; or any Affiliate Guarantor, the Borrower, any of their
respective Subsidiaries or any ERISA Affiliate has incurred or is
likely to incur a liability to or on account of a Plan under Section
409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA
or Section 4971 or 4975 of the Internal Revenue Code; and (ii) there
shall result from any such event or events referred to in clause (i)
above the imposition of a lien, the granting of a security interest, or
a liability or a material risk of incurring a liability, on the part of
any Affiliate Guarantor, the Borrower, any of their respective
Subsidiaries or any ERISA Affiliate, which in each case would be likely
to have a Material Adverse Effect;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents 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
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of which are hereby expressly waived by the Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to
any Obligated Party under the Federal Bankruptcy Code, (x) the obligation of
each Lender to make Advances shall automatically be terminated and (y) the
Notes, all such interest and all such amounts shall automatically become and be
due and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent shall at the request, or may with the consent, of the
Required Lenders, irrespective of whether it is taking any of the actions
described in Section 6.01 or otherwise, make demand upon the Borrower to, and
forthwith upon such demand the Borrower will, pay to the Administrative Agent on
behalf of the Lenders in same day funds at the Administrative Agent's office
designated in such demand, for deposit in the L/C Account, an amount equal to
the aggregate Available Amount of all Letters of Credit then outstanding. If at
any time the total amount of such funds is less than the aggregate Available
Amount of all Letters of Credit, the Borrower will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited and held in the L/C Account, an amount equal to the excess of (a) such
aggregate Available Amount over (b) the total amount of funds, if any, then held
in the L/C Account.
ARTICLE VII
GUARANTY
SECTION 7.01. Unconditional Guaranty; Limitation of Liability.
(a) Each Affiliate Guarantor hereby absolutely and unconditionally guarantees
the punctual payment when due, whether at stated maturity, by acceleration or
otherwise, of all obligations of each other Obligated Party now or hereafter
existing under the Loan Documents whether for principal, interest, fees,
expenses or otherwise (such obligations being the "Guaranteed Obligations"), and
agrees to pay any and all reasonable expenses (including reasonable counsel fees
and expenses) incurred by the Administrative Agent or any Lender in enforcing
any rights under this Article VII. Without limiting
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the generality of the foregoing, each Affiliate Guarantor's liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by any Obligated Party to the Administrative Agent or any Lender
under the Loan Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such Obligated Party.
(b) The aggregate liability of each Affiliate Guarantor under
this Article VII and under guaranties by such Affiliate Guarantor permitted by
Section 5.02(b)(xii) shall not exceed the greater of (i) the net benefit
realized by such Affiliate Guarantor from the proceeds of the Advances made from
time to time by the Borrower to such Affiliate Guarantor or any Subsidiary of
such Affiliate Guarantor and (ii) the greater of (x) 95% of the Adjusted Net
Assets of such Affiliate Guarantor on the date of delivery hereof and (y) 95% of
the Adjusted Net Assets of such Affiliate Guarantor on the date of any payment
hereunder. "Adjusted Net Assets" of any Affiliate Guarantor at any date means
the lesser of (x) the amount by which the fair value of the property of such
Affiliate Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities, but excluding liabilities under this Article
VII and liabilities under guaranties by such Affiliate Guarantor permitted by
Section 5.02(b)(xii), of such Affiliate Guarantor at such date and (y) the
amount by which the present fair salable value of the assets of such Affiliate
Guarantor at such date exceeds the amount that will be required to pay the
probable liability of such Affiliate Guarantor on its debts, excluding debt in
respect of this Article VII and debt in respect of guaranties by such Affiliate
Guarantor permitted by Section 5.02(b)(xii), as they become absolute and
matured.
SECTION 7.02. Guaranty Absolute. Each Affiliate Guarantor
guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Loan Documents, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of the Administrative Agent or any Lender with respect thereto. The
obligations of each Affiliate Guarantor under this Article VII are independent
of the Guaranteed Obligations, and a separate action or actions may be brought
and prosecuted against each Affiliate Guarantor to enforce this Article VII,
irrespective of whether any action is brought against the Borrower or any other
Affiliate Guarantor or whether the Borrower or any other Affiliate Guarantor is
joined in any such action or
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actions. The liability of each Affiliate Guarantor under this Article VII shall
be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any Loan
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from any Loan
Document other than this Article VII, including, without limitation,
any increase in the Guaranteed Obligations resulting from the extension
of additional credit to the Borrower or otherwise;
(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 Guaranteed
Obligations;
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other assets of the Borrower or any other
Obligated Party or any of their respective Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of the Borrower or any other Obligated Party or
any of their respective Subsidiaries; or
(f) any other circumstance (including, without limitation, any
statute of limitations) that might otherwise constitute a defense
available to, or a discharge of, the Borrower, any other Obligated
Party or a guarantor.
This guaranty shall continue to be effective or shall be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the Administrative Agent or any
Lender upon the insolvency, bankruptcy or reorganization of the Borrower, any
other Obligated Party or otherwise, all as though such payment had not been
made.
SECTION 7.03. Waivers. Each Affiliate Guarantor hereby waives
to the extent permitted by applicable law:
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(a) promptness, diligence, notice of acceptance and any other
notice with respect to any of the Guaranteed Obligations and this
Article VII;
(b) any requirement that the Administrative Agent, any Lender
or any other Person protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action
against the Borrower, any Affiliate Guarantor or any other Person or
any collateral;
(c) any defense arising by reason of any claim or defense
based upon an election of remedies by the Administrative Agent or any
Lender that in any manner impairs, reduces, releases or otherwise
adversely affects its subrogation, contribution or reimbursement rights
or other rights to proceed against the Borrower, any Affiliate
Guarantor or any other Person or any collateral; and
(d) any duty on the part of the Administrative Agent or any
Lender to disclose to such Affiliate Guarantor any matter, fact or
thing relating to the business, operation or condition of any Obligated
Party and its assets now or hereafter known by the Administrative Agent
or such Lender, as the case may be.
SECTION 7.04. Subrogation. No Affiliate Guarantor will
exercise any rights that it may now or hereafter acquire against the Borrower,
any other Obligated Party or any other insider guarantor that arise from the
existence, payment, performance or enforcement of such Affiliate Guarantor's
obligations under this Article VII or any other Loan Document, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of the Administrative Agent or any Lender against the Borrower, any other
Obligated Party 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 the
Borrower, any other Obligated Party or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Article VII shall have been paid in full in cash and the Commitments shall have
expired or terminated. If any amount shall be paid to any Affiliate Guarantor in
violation of the preceding sentence at any time prior to the later of the
payment
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in full in cash of the Guaranteed Obligations and all other amounts payable
under this Article VII and the Termination Date, such amount shall be held in
trust for the benefit of the Administrative Agent and the Lenders and the
beneficiaries of guaranties made by the Affiliate Guarantors as permitted by
Section 5.02(b)(xii) and shall forthwith be paid to the Administrative Agent and
such other beneficiaries, and if delivered to the Administrative Agent shall be
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Article VII, whether matured or unmatured, in accordance with the
terms of the Loan Documents, or held as collateral for any Guaranteed
Obligations or other amounts payable under this Article VII thereafter arising.
If (i) any Affiliate Guarantor shall make payment to the Administrative Agent or
any Lender of all or any part of the Guaranteed Obligations, (ii) all of the
Guaranteed Obligations and all other amounts payable under this Article VII
shall be paid in full in cash and (iii) the Termination Date shall have
occurred, the Administrative Agent and the Lenders will, at such Affiliate
Guarantor's request and expense, execute and deliver to such Affiliate Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to such Affiliate Guarantor of
an interest in the Guaranteed Obligations resulting from such payment by such
Affiliate Guarantor.
SECTION 7.05. Release and Termination. (a) Upon the sale,
transfer or other disposition of all or any portion of the common stock of any
Affiliate Guarantor (including through the primary issuance and sale of shares
of common stock) that the Borrower elects by notice to the Administrative Agent
to designate as a "Guarantee Release Event", the Administrative Agent will, at
the Borrower's expense, execute and deliver to such Affiliate Guarantor such
documents as such Affiliate Guarantor shall reasonably request to evidence the
release of such Affiliate Guarantor from its obligations under this Agreement,
provided that (i) at the time of such designation and such release no Default
shall have occurred and be continuing, (ii) such sale, transfer or disposition
is in compliance with Section 5.02(d) and (iii) the proceeds of such sale,
transfer or disposition required to be applied pursuant to Section 2.06 shall be
so applied.
(b) Upon the payment in full of the Guaranteed Obligations (on
or after the Termination Date), the Administrative Agent will, at the Borrower's
expense, execute and deliver to each Affiliate Guarantor such documents as such
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Affiliate Guarantor shall reasonably request to evidence the termination of the
obligations of such Affiliate Guarantor under this Agreement.
(c) Upon the earlier of the occurrence of a "Guarantee Release
Event" in accordance with subsection (a) above or the termination of obligations
pursuant to subsection (b) above, the applicable Affiliate Guarantor shall be
released from the guaranty of such Affiliate Guarantor under this Article VII
and from all other obligations of such Affiliate Guarantor under this Agreement
and each other Loan Document and such Affiliate Guarantor shall cease to be an
"Affiliate Guarantor" or an "Obligated Party" hereunder.
ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action. Each Lender (in its
capacities as a Lender, the Swing Line Bank (if applicable) and an Issuing Bank
(if applicable)) hereby appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof and thereof, together with such powers
and discretion as are reasonably incidental thereto. As to any matters not
expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of the Notes), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action that exposes the Administrative Agent to personal liability or that
is contrary to this Agreement or applicable law. The Administrative Agent agrees
to give to each Lender prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
SECTION 8.02. Reliance, Etc. (a) None of the Administrative
Agent, any Lead Managing Agent or any Arranger or any of their respective
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it
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or them under or in connection with the Loan Documents, except for its or their
own gross negligence or willful misconduct. Without limitation of the generality
of the foregoing, the Administrative Agent: (i) may treat the payee of any Note
as the holder thereof until the Administrative Agent receives and accepts an
Assumption Agreement entered into by an Assuming Lender as provided in Section
2.19 or 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; (ii) may consult with legal counsel (including counsel
for any Obligated Party), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations made in or in connection with the Loan Documents; (iv) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Loan Document on the part of
any Obligated Party or to inspect the property (including the books and records)
of any Obligated Party; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any Lien created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant hereto; and (vi) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy, cable or
telex) believed by it to be genuine and signed or sent by the proper party or
parties.
(b) The Lead Managing Agents and the Arrangers, as such, shall
have no duties or obligations whatsoever with respect to this Agreement, the
Notes or any other document or any matter related thereto.
SECTION 8.03. Lead Managing Agents and Affiliates. With
respect to their respective Commitments, the Advances made by them and the Notes
issued to them, each of the Lead Managing Agents shall have the same rights and
powers under the Loan Documents as any other Lender and may exercise the same as
though it or its Affiliate were not the Administrative Agent, a Lead Managing
Agent or an Arranger, as the case may be; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include each of the Lead Managing
Agents in its
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individual capacity. Each of the Lead Managing Agents and its respective
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, any Obligated Party, any of its Subsidiaries and
any Person who may do business with or own securities of any Obligated Party or
any such Subsidiary, all as if such Lead Managing Agent or any of its respective
Affiliates were not the Administrative Agent, a Lead Managing Agent or an
Arranger, as the case may be, 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 Administrative Agent,
the Lead Managing Agents, any Arranger or any other Lender and based on the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, the Lead
Managing Agents, any Arranger 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. Each Lender severally agrees to
indemnify each Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender's ratable share of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against such Agent in any way relating to or
arising out of the Loan Documents or any action taken or omitted by such Agent
under the Loan Documents; provided, however, 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 such
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse each Agent promptly upon demand for
its ratable share of any costs and expenses payable by the Borrower under
Section 9.04, to the extent that such Agent is not promptly reimbursed for such
costs and expenses by the Borrower. For purposes of this Section 8.05, the
Lenders' respective Ratable Shares of any amount shall be determined, at any
time, according to the sum of (a) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lenders,
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(b) their respective Ratable Shares of the aggregate Available Amount of all
Letters of Credit outstanding at such time and (c) their respective Unused
Working Capital Commitments at such time; provided that the aggregate principal
amount of Swing Line Advances owing to the Swing Line Bank shall be considered
to be owed to the Working Capital Lenders ratably in accordance with their
respective Working Capital Commitments. In the event that any Defaulted Advance
shall be owing by any Defaulting Lender at any time, such Lender's Commitment
with respect to the Advance under which such Defaulted Advance was required to
have been made shall be considered to be unused for purposes of this Section
8.05 to the extent of the amount of such Defaulted Advance. The failure of any
Lender to reimburse any Agent promptly upon demand for its ratable share of any
amount required to be paid by the Lenders to such Agent as provided herein shall
not relieve any other Lender of its obligation hereunder to reimburse such Agent
for its ratable share of such amount, but no Lender shall be responsible for the
failure of any other Lender to reimburse such Agent for such other Lender's
ratable share of such amount.
SECTION 8.06. Successor Administrative Agent. The
Administrative Agent may resign as to all of the Facilities at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Required Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $250,000,000. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent as to all of the Facilities, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Article VIII shall inure to its benefit as to any actions
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taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by each Lender affected thereby (other than any
Lender which is, at such time, a Defaulting Lender) directly: (i) reduce the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the number of Lenders, that shall be required for the Lenders or any
of them to take any action hereunder, (ii) amend this Section 9.01, (iii) extend
the scheduled time of payment of any interest or commitment fee or Letter of
Credit fee owing to such Lender, (iv) increase the aggregate amount of the
Commitments of such Lender, (v) reduce the stated rate of interest borne by the
Advances owing to such Lender (other than as a result of waiving the
applicability of any post-default increase in interest rates), forgive all or
any part of the principal amount thereof or reduce the stated rate for
calculating any commitment fee or Letter of Credit fee owing to such Lender,
(vi) extend the final scheduled maturity of any Advance owing to such Lender or
(vii) release any Affiliate Guarantor from its obligations under Article VII
except as expressly provided in Section 7.05; provided further that no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Bank or each Issuing Bank, as the case may be, in addition to the Lenders
required above to take such action, affect the rights or obligations of the
Swing Line Bank or the Issuing Banks, as the case may be, under this Agreement;
and provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note.
SECTION 9.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
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(including telegraphic, telecopy, telex or cable communication) and mailed,
telegraphed, telecopied, telexed, cabled or delivered, if to the Borrower, at
its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Vice
President and Treasurer; if to Foods Holdings, at its address at ▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; if to Wise Holdings, at its address at ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; if to any Bank, at its Domestic
Lending Office specified opposite its name on Schedule I hereto; if to any other
Lender, at its Domestic Lending Office specified in the Assumption Agreement or
the Assignment and Acceptance pursuant to which it became a Lender, as the case
may be; if to Credit Suisse First Boston, in its capacity as an Issuing Bank, at
its address at 5 World Trade Center, 8th Floor, New York, New York 10048,
Attention: Trade Services Department, with a copy to ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇; and if to the Administrative
Agent, at its address at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, with a copy to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇; or, as to the Borrower or the
Administrative Agent, at such other address as shall be designated by such party
in a written notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written notice to the
Borrower and the Administrative Agent. All such notices and communications
shall, when mailed, telegraphed, telecopied, telexed or cabled, be effective
when deposited in the mails, delivered to the telegraph company, transmitted by
telecopier, confirmed by telex answerback or delivered to the cable company,
respectively, except that notices and communications to the Administrative Agent
pursuant to Article II, III or VIII shall not be effective until received by the
Administrative Agent.
SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Lender, any Arranger or the Administrative Agent to exercise, and no delay
in exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand (i) all reasonable and documented costs and out-of-pocket expenses
of each Agent in connection with the preparation, execution, delivery and
amendment of the Loan Documents (including, without limitation, (A) all due
diligence,
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syndication (including printing, distribution and bank meetings),
transportation, computer, telecommunications, duplication, audit, insurance,
consultant, search, filing and recording fees and all other out-of-pocket
expenses in an aggregate amount agreed to by the Arrangers and the Borrower and
(B) the reasonable and documented fees and out-of-pocket expenses of counsel for
the Lead Managing Agents and the Arrangers) with respect thereto, with respect
to advising the Administrative Agent as to its rights and responsibilities, or
the perfection, protection or preservation of rights or interests, under the
Loan Documents, with respect to negotiations with any Obligated Party or with
other creditors of any Obligated Party or any of its Subsidiaries arising out of
any Default or any events or circumstances that may give rise to a Default and
with respect to presenting claims in or otherwise participating in or monitoring
any bankruptcy, insolvency or other similar proceeding involving creditors'
rights generally and any proceeding ancillary thereto), (ii) all reasonable and
documented costs and out-of-pocket expenses of the Administrative Agent in
connection with the administration of the Loan Documents and (iii) all
reasonable and documented costs and out-of-pocket expenses of the Administrative
Agent and the Lenders in connection with the enforcement of the Loan Documents,
whether in any action, suit or litigation, any bankruptcy, insolvency or other
similar proceeding affecting creditors' rights generally or otherwise
(including, without limitation, the reasonable and documented fees and
out-of-pocket expenses of counsel for the Administrative Agent and each Lender
with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless each
Agent and each Lender and each of their respective Affiliates and their
respective 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 and
documented fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of, or in connection with the preparation for a
defense of, any investigation, litigation or proceeding arising out of, related
to or in connection with this Agreement (including, without limitation, the
Notes and any of the transactions contemplated herein or in any other Loan
Document or the actual or proposed use of the Letters of Credit or the proceeds
of the Advances) whether or not such investigation, litigation or proceeding is
brought by any Obligated Party, its directors, shareholders or creditors or an
Indemnified Party or any Indemnified Party is
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otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated, except to the extent such claim, damage, loss, liability
or expense results from such Indemnified Party's gross negligence or willful
misconduct. The Borrower also agrees not to assert any claim against any Agent
or any Lender or any of their respective 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 in any other Loan Document or the actual or proposed use
of the Letters of Credit or the proceeds of the Advances.
Each Indemnified Party agrees to notify the Borrower, promptly
after obtaining actual knowledge thereof, of the assertion against it or any
other Person of any claim or the commencement of any action or proceeding
relating to this Agreement (including, without limitation, the Notes and any of
the transactions contemplated herein or in any other Loan Document or the actual
or proposed use of the proceeds of the Advances) which such Indemnified Party
considers to be a claim, action or proceeding with respect to which it is
entitled to indemnification hereunder, but failure to so notify will not relieve
the Borrower from any liability under this Section 9.04(b). Each Indemnified
Party will be entitled to defend any such claim, action or proceeding, and may
employ or retain counsel to represent it in, and to defend, such claim, action
or proceeding and the Borrower will pay the reasonable and documented fees and
out-of-pocket expenses of such counsel; provided, however, that the Indemnified
Parties shall, to the extent practicable, choose one counsel to act on their
behalf at the Borrower's expense, which counsel, at the request of the Borrower,
shall also represent and defend the Borrower in such claim, action or proceeding
unless an Indemnified Party reasonably determines based on an opinion of outside
counsel that having common counsel would present such counsel with a conflict of
interest. In the event of such determination, such Indemnified Party or Parties
shall not be required to share counsel and shall be entitled to full
indemnification for such counsel's fees and expenses as otherwise provided
herein.
(c) If any payment of principal of, or Conversion of, or
failure to Convert as a result of a withdrawn notice of Conversion, any
Eurodollar Rate Advance, LIBO Rate Advance or Fixed Rate Advance is made by the
Borrower to or for the account of a Lender other than on the last day of the
Interest Period for such Advance, as a result of a payment or Conversion
pursuant to
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Section 2.07, 2.10(b)(i) or 2.11(d), acceleration of the maturity of the Notes
pursuant to Section 6.01 or for any other reason, the Borrower shall, after
receipt of a written request by such Lender (which request shall set forth in
reasonable detail the basis for requesting such amount and shall also be sent
upon demand by such Lender (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment, including,
without limitation, any loss cost or expense (excluding loss of anticipated
profits) actually incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement
of the Borrower and each other Obligated Party hereunder, the agreements and
obligations of the Borrower contained in Sections 2.11, 2.13 and 9.04 shall
survive the payment in full of the principal and interest hereunder and under
the Notes.
SECTION 9.05. Right of Set-Off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its branches and agencies is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and otherwise 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, its branches or agencies to or
for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Notes held by such Lender, irrespective of whether 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 Borrower after any
such set-off and application; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Lender, its branches or agencies under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) that such Lender, its branches or agencies may have.
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SECTION 9.06. Binding Effect. This amendment and restatement
of the Existing Credit Agreement shall become effective when it shall have been
executed by the Borrower, the Affiliate Guarantors and the Administrative Agent
and when the Administrative Agent shall have been notified by each Bank that
such Bank has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Administrative Agent and each Lender and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights or obligations hereunder or any interest herein
without the prior written consent of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender
(x) may assign to one or more of its Affiliates or Subsidiaries and (y) may with
the prior consent of the Administrative Agent and the Borrower (such consents
not to be unreasonably withheld or delayed) assign to one or more banks or other
entities, all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments, the
Advances owing to it and the Notes held by it); provided, however, that such
assignment or any activity intended to give rise to an assignment shall not be
initiated prior to the receipt by the Lenders of notice from the Arrangers that
the syndication of this Agreement has been completed; provided further, however,
that (i) each such assignment shall be of a uniform, and not a varying,
percentage of all such Lender's rights and obligations under and in respect of
the Working Capital Facility (other than any right to make Competitive Bid
Advances or Competitive Bid Advances owing to it), (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 Commitments of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than $10,000,000,
(iii) each such assignment shall be to a Lender, an Eligible Assignee or to an
Affiliate or Subsidiary of the assignor, and (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment, and a processing and recordation fee
of $3,000 for each assignment completed after the notice referred to in the
first proviso of this Section 9.07 has been received. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in such Assignment and Acceptance, (x) the assignee thereunder shall be a
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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, or the perfection or priority of any Lien created or purported to be
created under or in connection with, this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any other Obligated Party or the
performance or observance by the Borrower or any other Obligated Party of any of
its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is a
Lender, an Eligible Assignee or an Affiliate of the assignor; (vi) such assignee
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Administrative Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees
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that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred
to in Section 9.02 a copy of each Assumption Agreement and 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 under each Facility
of, and principal amount of the Advances owing under each Facility 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
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any Note or Notes subject to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower. Within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered Note or Notes a new Note or Notes to the
order of such assignee in an amount equal to the Commitment assumed by it under
a Facility pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Commitment hereunder under such Facility, new Notes to the
order of the assigning Lender in an aggregate amount equal to the aggregate
Commitments retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered 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.
(e) Each Lender may sell participations in or to all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitments, the Advances owing to it and the Note or
Notes held by it); provided, however, that (i) such Lender's obligations under
this Agreement (including, without limitation, its
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Commitments) 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 such Note or Notes for all purposes
of this Agreement, (iv) the Borrower, the Agents 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 and no sub-participant of such participation shall
have any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by the Borrower therefrom, except to
the extent that such amendment, waiver or consent would directly: reduce the
stated rate of interest borne by the Advances owing to such participant (other
than as a result of waiving the applicability of any post-default increase in
interest rates), forgive all or any part of the principal amount thereof, reduce
the stated rate for calculating any commitment fee or Letter of Credit fee owing
to the Lenders or extend the final scheduled maturity of any Advance owing to
such participant, in each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided, however, that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall have executed a confidentiality agreement substantially in the form of
Exhibit F hereto and returned to same to such Lender and the Borrower.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 9.08. Governing Law. This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 9.09. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by
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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 9.10. Confidentiality. Each Lender has heretofore executed a
confidentiality agreement in the form of Exhibit F hereto and returned a copy
thereof to the Borrower. Each Lender shall hold all non-public information
obtained pursuant to this Agreement in accordance with the terms of such
confidentiality agreement and in accordance with safe and sound banking
practices and, subject to Section 9.07, may make disclosure reasonably requested
by any bona fide transferee in connection with the contemplated transfer of any
Advances or participation therein or as required or requested by any
governmental authority or pursuant to legal process; provided that each such
transferee shall have previously signed and returned to such Lender a
confidentiality agreement in the form of Exhibit F, and such Lender agrees to
send to the Borrower promptly a copy of each such confidentiality agreement
executed by such transferee.
SECTION 9.11. No Liability of the Issuing Banks. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
any Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against such Issuing Bank, and the Issuing Bank
shall be liable to the Borrower, to the extent of any direct, but not
consequential, damages suffered by the Borrower that the Borrower proves were
caused by (i) such Issuing Bank's willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit comply with
the terms of such Letter of Credit or (ii) such Issuing Bank's
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willful failure to make lawful payment under a Letter of Credit after the
presentation to it of a draft and certificates strictly complying with the terms
and conditions of such Letter of Credit. In furtherance and not in limitation of
the foregoing, such Issuing Bank may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary.
SECTION 9.12. Redesign. The Lenders hereby agree that, in accordance
with Section 5.01(h), the Borrower, its Subsidiaries, the Affiliate Guarantors
and their Subsidiaries may enter into the Redesign Documents on the following
terms and conditions:
(a) Trademarks. The Borrower and its Subsidiaries may transfer
trademarks to be used by ▇▇▇▇▇▇ Foods Holdings, LLC and its Subsidiaries to a
partnership organized pursuant to terms substantially the same as those set
forth in Exhibit H hereto, provided that the executed Amended and Restated
Agreement of Limited Partnership of BFC Investments, L.P. shall contain
provisions strictly conforming to those set forth in Exhibit H as (i) the
defined term "Percentage Interest" and (ii) Section 5.3(b).
(b) Dairy Business. The Borrower and its Subsidiaries may transfer
the Dairy Business to an Affiliate Guarantor and any of such Affiliate
Guarantor's Subsidiaries having a structure substantially the same as that of
Wise Holdings, Inc. and its Subsidiaries, pursuant to terms substantially the
same as those set forth in the form of Conveyance and Transfer Agreement
attached as Exhibit I hereto, provided that (i) the consideration for the
transfer of the subject assets shall not be less than Fair Market Value and (ii)
upon the consummation of such transfer the Borrower and such Affiliate Guarantor
shall deliver to the Administrative Agent a certificate in the form of Exhibit J
hereto.
(c) Options on Assets. The initial Options granted in respect of
certain of the assets of ▇▇▇▇▇▇ Foods Holdings Corporation and its Subsidiaries
shall be issued pursuant to terms substantially the same as those set forth in
the form of Option Agreement attached as Exhibit L hereto, provided that the
consideration for the issuance of such Options shall not exceed $95,000,000 in
the aggregate, which may consist of ▇▇▇▇▇▇ Holdings Notes in whole or in part.
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SECTION 9.13. Waiver of Jury Trial. Each of the Borrower, the Agents
and the Lenders hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to any of the Loan Documents, the Advances
or the actions of any Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
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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.
▇▇▇▇▇▇, INC.
By
------------------------------------------
Name:
Title:
▇▇▇▇▇▇ FOODS HOLDINGS CORPORATION
By
------------------------------------------
Name:
Title:
WISE HOLDINGS, INC.
By
------------------------------------------
Name:
Title:
CITIBANK, N.A., as Administrative Agent
By
------------------------------------------
Name:
Title:
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ARRANGERS
BT SECURITIES CORPORATION,
as Arranger
By
------------------------------------------
Name:
Title:
CHASE SECURITIES INC.,
as Arranger
By
------------------------------------------
Name:
Title:
CITICORP SECURITIES, INC.,
as Arranger
By
------------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as Arranger
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
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BANKS
LEAD MANAGING AGENTS
BANKERS TRUST COMPANY
By
--------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By
--------------------------------------------
Name:
Title:
CITIBANK, N.A.
By
--------------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By
--------------------------------------------
Name:
Title:
By
--------------------------------------------
Name:
Title:
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SENIOR MANAGING AGENTS
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By
-----------------------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By
-----------------------------------------
Name:
Title:
NATIONSBANK, N.A.
By
-----------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By
-----------------------------------------
Name:
Title:
MANAGING AGENTS
THE BANK OF NEW YORK
By
-----------------------------------------
Name:
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Title:
BANK OF TOKYO -
MITSUBISHI TRUST COMPANY
By
-----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By
-----------------------------------------
Name:
Title:
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THE FUJI BANK, LIMITED
By
-----------------------------------------
Name:
Title: