1
CONFORMED COPY
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$877,000,000
CREDIT AGREEMENT
among
INTERNATIONAL HOME FOODS, INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as Documentation Agent,
BANKERS TRUST COMPANY,
as Syndication Agent,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of November 1, 1996,
as Amended and Restated as of July 1, 1997
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . 26
SECTION 2. AMOUNT AND TERMS OF LOANS . . . . . . . . . . . . . . . . . . . . 26
2.1 Term Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.2 Procedure for Incremental Term Loan Borrowing . . . . . . . . . 27
2.3 Repayment of Term Loans . . . . . . . . . . . . . . . . . . . . 27
2.4 Revolving Credit Commitments . . . . . . . . . . . . . . . . . . 28
2.5 Procedure for Revolving Credit Borrowing . . . . . . . . . . . . 28
2.6 Swing Line Commitment . . . . . . . . . . . . . . . . . . . . . 29
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line
Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.8 Commitment Fees, etc. . . . . . . . . . . . . . . . . . . . . . 31
2.9 Termination or Reduction of Revolving Credit Commitments . . . . 31
2.10 Optional Prepayments . . . . . . . . . . . . . . . . . . . . . 31
2.11 Mandatory Prepayments and Commitment Reductions . . . . . . . . 32
2.12 Conversion and Continuation Options . . . . . . . . . . . . . . 33
2.13 Minimum Amounts and Maximum Number of Eurodollar Tranches . . . 34
2.14 Interest Rates and Payment Dates . . . . . . . . . . . . . . . 34
2.15 Computation of Interest and Fees . . . . . . . . . . . . . . . 34
2.16 Inability to Determine Interest Rate . . . . . . . . . . . . . 35
2.17 Pro Rata Treatment and Payments . . . . . . . . . . . . . . . . 35
2.18 Requirements of Law . . . . . . . . . . . . . . . . . . . . . . 37
2.19 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2.20 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2.21 Change of Lending Office . . . . . . . . . . . . . . . . . . . 40
2.22 Replacement of Lenders under Certain Circumstances . . . . . . 41
SECTION 3. LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . . . . . . . 41
3.1 L/C Commitment . . . . . . . . . . . . . . . . . . . . . . . . . 41
3.2 Procedure for Issuance of Letter of Credit . . . . . . . . . . . 41
3.3 Commissions, Fees and Other Charges . . . . . . . . . . . . . . 42
3.4 L/C Participations . . . . . . . . . . . . . . . . . . . . . . . 42
3.5 Reimbursement Obligation of the Borrower . . . . . . . . . . . . 43
3.6 Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . 44
3.7 Letter of Credit Payments . . . . . . . . . . . . . . . . . . . 44
3.8 Applications . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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SECTION 4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . 44
4.1 Financial Condition . . . . . . . . . . . . . . . . . . . . . . 45
4.2 No Change . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
4.3 Corporate Existence; Compliance with Law . . . . . . . . . . . . 46
4.4 Corporate Power; Authorization; Enforceable Obligations . . . . 47
4.5 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4.6 No Material Litigation . . . . . . . . . . . . . . . . . . . . . 47
4.7 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
4.8 Ownership of Property; Liens . . . . . . . . . . . . . . . . . . 48
4.9 Intellectual Property . . . . . . . . . . . . . . . . . . . . . 48
4.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
4.11 Federal Regulations . . . . . . . . . . . . . . . . . . . . . . 48
4.12 Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.13 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.14 Investment Company Act; Other Regulations . . . . . . . . . . . 49
4.15 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.16 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . 49
4.17 Environmental Matters . . . . . . . . . . . . . . . . . . . . . 50
4.18 Accuracy of Information, etc . . . . . . . . . . . . . . . . . 51
4.19 Security Documents . . . . . . . . . . . . . . . . . . . . . . 51
4.20 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
4.21 Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . 52
4.22 Regulation H . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 5. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . 52
5.1 Conditions to Initial Extension of Credit . . . . . . . . . . . 52
5.2 Conditions to Each Extension of Credit . . . . . . . . . . . . . 56
5.3 Conditions to Amendment/Restatement Closing Date . . . . . . . . 57
SECTION 6. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 59
6.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . . 60
6.2 Certificates; Other Information . . . . . . . . . . . . . . . . 60
6.3 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . 62
6.4 Conduct of Business and Maintenance of Existence, etc. . . . . 62
6.5 Maintenance of Property; Insurance . . . . . . . . . . . . . . . 62
6.6 Inspection of Property; Books and Records; Discussions . . . . . 62
6.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
6.8 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . 63
6.9 Interest Rate Protection . . . . . . . . . . . . . . . . . . . . 63
6.10 Additional Collateral, etc . . . . . . . . . . . . . . . . . . 64
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SECTION 7. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 66
7.1 Financial Condition Covenants . . . . . . . . . . . . . . . . . 66
7.2 Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . 68
7.3 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . 69
7.4 Limitation on Fundamental Changes . . . . . . . . . . . . . . . 71
7.5 Limitation on Sale of Assets . . . . . . . . . . . . . . . . . . 71
7.6 Limitation on Dividends . . . . . . . . . . . . . . . . . . . . 72
7.7 Limitation on Capital Expenditures . . . . . . . . . . . . . . . 72
7.8 Limitation on Investments, Loans and Advances . . . . . . . . . 73
7.9 Limitation on Optional Payments and Modifications of Debt
Instruments, etc. . . . . . . . . . . . . . . . . . . . . . . 74
7.10 Limitation on Transactions with Affiliates . . . . . . . . . . 74
7.11 Limitation on Sales and Leasebacks . . . . . . . . . . . . . . 75
7.12 Limitation on Changes in Fiscal Periods . . . . . . . . . . . . 75
7.13 Limitation on Negative Pledge Clauses . . . . . . . . . . . . . 75
7.14 Limitation on Lines of Business . . . . . . . . . . . . . . . . 75
7.15 Limitation on Amendments to Acquisition Documents . . . . . . . 75
SECTION 8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 9. THE AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
9.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . 80
9.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . 80
9.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . 80
9.4 Reliance by Administrative Agent . . . . . . . . . . . . . . . . 80
9.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . 81
9.6 Non-Reliance on Agents and Other Lenders . . . . . . . . . . . . 81
9.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 82
9.8 Agent in Its Individual Capacity . . . . . . . . . . . . . . . . 82
9.9 Successor Administrative Agent . . . . . . . . . . . . . . . . . 82
9.10 Authorization to Release Liens . . . . . . . . . . . . . . . . 83
9.11 Documentation Agent and Syndication Agent . . . . . . . . . . . 83
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 83
10.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . 83
10.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
10.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . 85
10.4 Survival of Representations and Warranties . . . . . . . . . . 85
10.5 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . . 85
10.6 Successors and Assigns; Participations and Assignments . . . . 86
10.7 Adjustments; Set-off . . . . . . . . . . . . . . . . . . . . . 88
10.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 89
10.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 89
10.10 Integration . . . . . . . . . . . . . . . . . . . . . . . . . 89
10.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . 90
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10.12 Submission To Jurisdiction; Waivers . . . . . . . . . . . . . 90
10.13 Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . 90
10.14 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . 91
10.15 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 92
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SCHEDULES:
1.1A Commitments as of Closing Date
1.1B Mortgaged Property
1.1C Revolving Credit Commitments and Term Loans as of
Amendment/Restatement
Closing Date
1.1D Additional Mortgaged Property
2.17 Certain Funding Procedures
4.4 Consents, Authorizations, Filings and Notices
4.15 Subsidiaries on Closing Date
4.15-A Subsidiaries on Amendment/Restatement Closing Date
4.19(a) UCC Filing Jurisdictions
4.19(a)-A UCC Filing Jurisdictions--Bumble Bee
4.19(b) Mortgage Filing Jurisdictions
4.19(b)-A Mortgage Filing Jurisdictions--Bumble Bee
7.2(e) Existing Indebtedness
7.3(f) Existing Liens
7.8(g) Existing Investments
7.10 Certain Fees
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D-1 Form of Mortgage -- Borrower
D-2 Form of Mortgage -- Subsidiary Guarantor
E Form of Assignment and Acceptance
F Form of Legal Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
G-3 Form of Swing Line Note
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CREDIT AGREEMENT, dated as of November 1, 1996, as amended and
restated as of July 1, 1997, among INTERNATIONAL HOME FOODS, INC., a Delaware
corporation (the "Borrower"), the several banks and other financial
institutions or entities from time to time parties to this Agreement (the
"Lenders"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as documentation agent (in
such capacity, the "Documentation Agent"), BANKERS TRUST COMPANY, as
syndication agent (in such capacity, the "Syndication Agent"), and THE CHASE
MANHATTAN BANK, as administrative agent for the Lenders hereunder.
W I T N E S S E T H :
WHEREAS, the Borrower entered into the Credit Agreement, dated as
of November 1, 1996, as amended and modified pursuant to the First Amendment
and Waiver with respect thereto dated as of April 7, 1997 (as so amended, the
"Existing Credit Agreement"), with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as
documentation agent, Bankers Trust Company, as syndication agent, The Chase
Manhattan Bank, as administrative agent, and the several banks and other
financial institutions or entities parties thereto;
WHEREAS, the parties hereto have agreed to amend and restate the
Existing Credit Agreement as provided in this Agreement, which Agreement shall
become effective upon the satisfaction of certain conditions precedent set
forth in Section 5.3 hereof; and
WHEREAS, it is the intent of the parties hereto that this
Agreement not constitute a novation of the obligations and liabilities existing
under the Existing Credit Agreement or evidence repayment of any of such
obligations and liabilities and that this Agreement amend and restate in its
entirety the Existing Credit Agreement and re-evidence the obligations of the
Borrower outstanding thereunder;
NOW, THEREFORE, in consideration of the above premises, the
parties hereto hereby agree that on the Amendment/Restatement Closing Date (as
defined below) the Existing Credit Agreement shall be amended and restated in
its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to time by Chase
as its prime rate in effect at its principal office in New York City
(the Prime Rate not being intended to be the lowest rate of interest
charged by Chase in connection with extensions of credit to debtors);
"Base CD Rate" shall mean the sum of (a) the product of (i) the Three-
Month Secondary CD Rate and (ii) a fraction, the numerator of which is
one and the denominator of which is one minus the
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C/D Reserve Percentage and (b) the C/D Assessment Rate; "Three-Month
Secondary CD Rate" shall mean, for any day, the secondary market rate
for three-month certificates of deposit reported as being in effect on
such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will,
under the current practices of the Board, be published in Federal
Reserve Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in
New York City received at approximately 10:00 A.M., New York City time,
on such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing
selected by it; and "Federal Funds Effective Rate" shall mean, for any
day, 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 on the next succeeding Business Day
by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it. Any change in the ABR due to a change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall
be effective as of the opening of business on the effective day of such
change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Acquisition Agreement": the Agreement of Sale and Plan of
Merger, dated as of September 5, 1996, among the Sellers, AH Food Co.,
the Buyer and the Merger Sub.
"Acquisitions": the collective reference to the AHP Acquisition
and the Heritage Acquisition.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": Chase, together with its affiliates, as
the arranger of the Facilities and as the administrative agent for the
Lenders under this Agreement and the other Loan Documents, together with
any of its successors.
"Affiliate": as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control"
of a Person means the power, directly or indirectly, either to (a) vote
51% or more of the securities having ordinary voting power for the
election of directors (or persons performing similar functions) of such
Person or (b) direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
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"Agents": the collective reference to the Administrative Agent,
the Syndication Agent and the Documentation Agent.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"AH Food Co.": American Home Food Products, Inc., a Delaware
corporation.
"AHP": American Home Products Corporation, a Delaware
corporation.
"AHP Acquisition": as defined in Section 5.1(b).
"AHP Food Business": as defined in Section 5.1(b).
"AHP Holding": AHP Subsidiary Holding Corporation, a Delaware
corporation.
"Amendment/Restatement Closing Date": July 1, 1997.
"Applicable Margin": for each Type of Loan, the rate per annum
set forth under the relevant column heading below:
ABR Loans Eurodollar Loans
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Tranche A Term Loans
Revolving Credit Loans and
Swing Line Loans 1.0% 2.0%
Tranche B Term Loans 1.25% 2.25%
; provided, that on and after the first Adjustment Date occurring after
the date that is six months after the Amendment/Restatement Closing
Date, the Applicable Margin will be determined pursuant to the Pricing
Grid.
"Application": an application, in such form (reasonably
acceptable to the Borrower) as the relevant Issuing Lender may specify
from time to time, requesting such Issuing Lender to open a Letter of
Credit.
"Asset Sale": any Disposition of Property other than (a) any
Disposition of Property permitted by any of clauses (a) through (h) of
Section 7.5 and (b) any Disposition of Property which, together with any
related Disposition of Property, yields gross proceeds to the Borrower
or any of its Subsidiaries (valued at the initial principal amount
thereof in the case of non-cash proceeds consisting of notes or other
debt securities and valued at fair market value in the case of other
non-cash proceeds) of less than $1,000,000, provided, that the
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aggregate gross proceeds of Dispositions of Property excluded from the
definition of "Asset Sale" pursuant to this clause (b) shall not exceed
$5,000,000 in any fiscal year of the Borrower.
"Asset Swap": any substantially concurrent purchase and sale, or
exchange, of Property used or usable in the business of the Borrower and
its Subsidiaries.
"Assignee": as defined in Section 10.6(c).
"Assignor": as defined in Section 10.6(c).
"Available Revolving Credit Commitment": as to any Lender at any
time, an amount equal to (a) such Lender's Revolving Credit Commitment
minus (b) such Lender's Revolving Extensions of Credit; provided, that
in calculating any Lender's Revolving Extensions of Credit for the
purpose of determining such Lender's Available Revolving Credit
Commitment pursuant to Section 2.8(a), the aggregate principal amount of
Swing Line Loans then outstanding shall be deemed to be zero.
"Board": the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"Borrowing Date": any Business Day specified by the Borrower as
a date on which the Borrower requests the Lenders to make Loans
hereunder.
"Bumble Bee": Bumble Bee Seafoods, Inc., a Delaware corporation.
"Bumble Bee Acquisition": as defined in Section 5.3(b).
"Bumble Bee Confidential Information Memorandum": the
Confidential Information Memorandum dated June 1997 and furnished to the
Lenders in connection with the amendment and restatement of the Existing
Credit Agreement.
"Bumble Bee Pro Forma Financial Statements": as defined in
Section 4.1(a)(ii).
"Bumble Bee Purchase Agreement": the Asset Purchase and Sale
Agreement, dated as of May 1, 1997, among Bumble Bee, Bumble Bee
International, Inc., Commerce Distributing Company and Santa Fe Springs
Holding Company, as sellers, the Borrower and Bumble Bee Acquisition
Corporation, as buyer.
"Business": as defined in Section 4.17.
"Business Day": a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by
law to close.
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"Buyer": AHFP Holding Corporation, a Delaware corporation.
"Canadian Subsidiary": any Subsidiary of the Borrower organized
under the laws of Canada (or any jurisdiction therein).
"Canadian Subsidiary Equivalent Outstandings": as defined in
Section 7.2(h).
"Capital Expenditures": for any period, with respect to any
Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or leasing (pursuant to a capital
lease) of fixed or capital assets or additions to equipment (including
replacements, capitalized repairs and improvements during such period)
which should be capitalized under GAAP on a consolidated balance sheet
of such Person and its Subsidiaries.
"Capital Lease Obligations": as to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued
by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits, eurodollar time
deposits or overnight bank deposits having maturities of six months or
less from the date of acquisition issued by any Lender or by any
commercial bank organized under the laws of the United States of America
or any state thereof having combined capital and surplus of not less
than $250,000,000; (c) commercial paper of an issuer rated at least A-2
by Standard & Poor's Ratings Services or P-2 by ▇▇▇▇▇'▇ Investors
Service, Inc., or carrying an equivalent rating by a nationally
recognized rating agency, if both of the two named rating agencies cease
publishing ratings of commercial paper issuers generally, and maturing
within six months from the date of acquisition; (d) money market
accounts or funds with or issued by Qualified Issuers; and (e)
repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in clause (a) above entered
into with any bank meeting the qualifications specified in clause (b)
above.
"C/D Assessment Rate": for any day as applied to any ABR Loan,
the annual assessment rate in effect on such day which is payable by a
member of the Bank Insurance
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Fund maintained by the Federal Deposit Insurance Corporation (the
"FDIC") classified as well-capitalized and within supervisory subgroup
"B" (or a comparable successor assessment risk classification) within
the meaning of 12 C.F.R. Part 327 (or any successor provision) to the
FDIC (or any successor) for the FDIC's (or such successor's) insuring
time deposits at offices of such institution in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR
Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board, for determining the maximum
reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board as in effect from time to time) in respect of
new non-personal time deposits in Dollars having a maturity of 30 days
or more.
"Chase": The Chase Manhattan Bank.
"Closing Date": November 1, 1996.
"Code": the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral": all Property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Commitment Fee Rate": 1/2 of 1% per annum; provided, that on
and after the first Adjustment Date occurring after the date that is six
months after the Amendment/Restatement Closing Date, the Commitment Fee
Rate will be determined pursuant to the Pricing Grid.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes
the Borrower and which is treated as a single employer under Section 414
of the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential
Information Memorandum dated October 1996 and furnished to the Lenders.
"Consolidated Current Assets": at a particular date, all amounts
(other than cash and Cash Equivalents) which would, in conformity with
GAAP, be set forth opposite the caption "total current assets" (or any
like caption) on a consolidated balance sheet of the Borrower and its
Subsidiaries at such date.
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"Consolidated Current Liabilities": at a particular date, all
amounts which would, in conformity with GAAP, be set forth opposite the
caption "total current liabilities" (or any like caption) on a
consolidated balance sheet of the Borrower and its Subsidiaries at such
date, but excluding (a) the current portion of any Funded Debt of the
Borrower and its Subsidiaries, (b) without duplication of clause (a)
above, all Indebtedness consisting of Revolving Credit Loans or Swing
Line Loans to the extent otherwise included therein, (c) accrued
interest expense and (d) accrued income tax expense.
"Consolidated EBITDA": for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected as
a charge in the statement of such Consolidated Net Income for such
period, the sum of (a) total income tax expense, (b) interest expense,
amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with
Indebtedness (including the Loans), (c) depreciation and amortization
expense, (d) amortization of intangibles (including, but not limited to,
goodwill) and organization costs, (e) any extraordinary expenses or
losses (including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period,
losses on sales of assets other than inventory sold in the ordinary
course of business) and (f) any other non-cash charges, and minus, to
the extent included in the statement of such Consolidated Net Income for
such period, the sum of (a) interest income, (b) any extraordinary
income or gains (including, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets other than inventory sold in the
ordinary course of business) and (c) any other non-cash income, all as
determined on a consolidated basis.
"Consolidated Fixed Charge Coverage Ratio": for any period, the
ratio of (a) (i) Consolidated EBITDA for such period less (ii) the
lesser of (x) the aggregate amount actually paid by the Borrower and its
Subsidiaries in cash during such period on account of Capital
Expenditures (excluding (1) the principal amount of Indebtedness (other
than Loans) incurred in connection with such expenditures and (2)
Capital Expenditures made pursuant to Section 7.7(b)) and (y) if
applicable, the Scheduled Capital Expenditure Amount for such period to
(b) Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges": for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such period, (b)
Consolidated Tax Expense for such period and (c) scheduled payments made
during such period on account of principal of Indebtedness of the
Borrower or any of its Subsidiaries (including the Term Loans).
"Consolidated Interest Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated
Interest Expense for such period.
"Consolidated Interest Expense": for any period, total cash
interest expense (including that attributable to Capital Lease
Obligations), net of interest income, of the
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Borrower and its Subsidiaries for such period with respect to all
outstanding Indebtedness of the Borrower and its Subsidiaries
(including, without limitation, all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Interest Rate Protection
Agreements to the extent such net costs are allocable to such period in
accordance with GAAP).
"Consolidated Leverage Ratio": as at the last day of any period,
the ratio of (a) Consolidated Total Debt on such day to (b) Consolidated
EBITDA for such period.
"Consolidated Net Income": for any period, the consolidated net
income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded therefrom the income (or deficit) of any Person accrued prior
to the date it becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Subsidiaries.
"Consolidated Tax Expense": for any period, provision for cash
income taxes made by the Borrower or any of its Subsidiaries for such
period on a consolidated basis.
"Consolidated Total Debt": at any date, the aggregate principal
amount of all Indebtedness (excluding (a) Indebtedness of the type
described in clause (d), (h) or (i) of the definition thereof to the
extent such Indebtedness would not appear on a consolidated balance
sheet of the Borrower and its Subsidiaries in accordance with GAAP, (b)
Indebtedness of the type described in clause (f) of the definition
thereof to the extent such Indebtedness consists of undrawn amounts in
respect of letter of credit facilities and (c) Trade Acceptances that
have payment terms of not more than 90 days from the date of
acceptance), net of cash and Cash Equivalents, of the Borrower and its
Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Working Capital": the excess of Consolidated
Current Assets over Consolidated Current Liabilities.
"Continuing Directors": the directors of the Borrower on the
Closing Date, after giving effect to the Acquisitions and the other
transactions contemplated hereby, and each other director, if, in each
case, such other director's nomination for election to the board of
directors of the Borrower is recommended by a majority of the then
Continuing Directors or such other director receives the vote of the
Permitted Investors in his or her election by the shareholders of the
Borrower.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
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"Contributed Equity": (a) the proceeds of any capital
contribution made to the Borrower (or to a Parent and in turn
contributed to the Borrower) by any member of the Existing Investor
Group and (b) the proceeds of any private placement of Capital Stock of
the Borrower (or of a Parent and in turn contributed to the Borrower)
consummated after the Closing Date, provided, that the aggregate amount
of proceeds of sales of Capital Stock to Persons other than members of
the Existing Investor Group that may be included in "Contributed Equity"
pursuant to this clause (b) shall not exceed $25,000,000 during the
period from the Closing Date to the first anniversary thereof and shall
not exceed $50,000,000 during the term of this Agreement. As used in
this definition, (i) "Existing Investor Group" refers to any Permitted
Investor (other than any Parent), AHP or any of its Affiliates or any
Person that owns Capital Stock of the Buyer on the Closing Date or that
acquires Capital Stock of the Buyer within 60 days after the Closing
Date and (ii) "Parent" refers to the Buyer or any other direct or
indirect holding company parent of the Borrower.
"Default": any of the events specified in Section 8, whether or
not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Disposition": with respect to any Property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other
disposition thereof; and the terms "Dispose" and "Disposed of" shall
have correlative meanings.
"Dollars" and "$": lawful currency of the United States of
America.
"Domestic Subsidiary": any Subsidiary of the Borrower organized
under the laws of any jurisdiction within the United States of America.
"ECF Percentage": 75%; provided, that, with respect to each
fiscal year of the Borrower ending on or after December 31, 1998, the
ECF Percentage shall be reduced to 50% if the Consolidated Leverage
Ratio as of the last day of such fiscal year is not greater than 4.50 to
1.0.
"Environmental Laws": any and all foreign, Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating, relating to or
imposing liability or standards of conduct concerning protection of
human health or the environment, as now or may at any time hereafter be
in effect.
"Equity Financing Proceeds": any Contributed Equity used to
finance any Capital Expenditure made pursuant to Section 7.7(b) or any
investment made pursuant to Section 7.8(h).
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
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"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto) dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
equal to the rate at which Chase is offered Dollar deposits at or about
10:00 A.M., New York City time, two Business Days prior to the beginning
of such Interest Period in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in respect of
its Eurodollar Loans are then being conducted for delivery on the first
day of such Interest Period for the number of days comprised therein and
in an amount comparable to the amount of its Eurodollar Loans to be
outstanding during such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not
such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the
excess, if any, of (a) the sum, without duplication, of (i) Consolidated
EBITDA for such fiscal year, (ii) decreases in Consolidated Working
Capital for such fiscal year, (iii) the amount of any refund received by
the Borrower and its Subsidiaries during such fiscal year on taxes paid
by the Borrower and its Subsidiaries, (iv) cash dividends, cash interest
and other similar cash payments received by the Borrower during such
fiscal year in respect of investments to the extent not included in
Consolidated Net Income to determine Consolidated EBITDA for such fiscal
year, (v) any purchase price adjustments paid to the Borrower or any of
its Subsidiaries during such fiscal year pursuant to the Acquisition
Agreement or the Bumble Bee Purchase
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Agreement, and (vi) extraordinary cash gains to the extent subtracted or
otherwise not included in Consolidated Net Income to determine
Consolidated EBITDA for such fiscal year over (b) the sum, without
duplication, of (i) the aggregate amount actually paid by the Borrower
and its Subsidiaries in cash during such fiscal year on account of
Capital Expenditures (excluding (x) the principal amount of Indebtedness
incurred in connection with such expenditures and (y) any such
expenditures made pursuant to Section 7.7(b) except, in the case of this
clause (y), to the extent that the amounts used to make such
expenditures were included in determining Consolidated EBITDA for such
fiscal year), (ii) the aggregate amount of all prepayments of Revolving
Credit Loans and Swing Line Loans during such fiscal year to the extent
accompanying permanent optional reductions of the Revolving Credit
Commitments and all optional prepayments of the Term Loans during such
fiscal year, (iii) the aggregate amount of all regularly scheduled
principal payments of Funded Debt (including, without limitation, the
Term Loans) of the Borrower and its Subsidiaries made during such fiscal
year (other than in respect of any revolving credit facility to the
extent there is not an equivalent permanent reduction in commitments
thereunder), (iv) increases in Consolidated Working Capital for such
fiscal year, (v) cash interest expense of the Borrower and its
Subsidiaries for such fiscal year, (vi) cash taxes actually paid in such
fiscal year or to be paid in the subsequent fiscal year on account of
such fiscal year to the extent added to Consolidated Net Income to
determine Consolidated EBITDA for such fiscal year, (vii) the amount of
all loans and advances made in such fiscal year pursuant to Section
7.8(d) (net of any repayments of such loans and advances made during
such fiscal year), (viii) the amount of all investments made in such
fiscal year pursuant to Section 7.8(n), (ix) the amount of all deposits
required to be made by the Borrower or any of its Subsidiaries during
such fiscal year in connection with investments made pursuant to Section
7.8(l) (net of any amounts returned in respect of such deposits during
such fiscal year), (x) dividends paid by the Borrower during such fiscal
year in accordance with Section 7.6 to the extent not subtracted in the
determination of Consolidated Net Income of the Borrower for such fiscal
year, (xi) previously expensed royalty payments made during such fiscal
year to the extent not subtracted in the determination of Consolidated
Net Income of the Borrower for such fiscal year, (xii) any purchase
price adjustments paid by the Borrower or any of its Subsidiaries during
such fiscal year pursuant to the Acquisition Agreement or the Bumble Bee
Purchase Agreement, and (xiii) extraordinary cash losses to the extent
added to Consolidated Net Income to determine Consolidated EBITDA for
such fiscal year.
"Excess Cash Flow Application Date": as defined in Section
2.11(c).
"Excluded Foreign Subsidiaries": any Foreign Subsidiary the
pledge of all of whose Capital Stock as Collateral would, in the good
faith judgment of the Borrower, result in adverse tax consequences to
the Borrower.
"Facility": each of (a) the extensions of credit made hereunder
in the form of Tranche A Term Loans (the "Tranche A Term Loan
Facility"), (b) the extensions of credit made
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hereunder in the form of Tranche B Term Loans (the "Tranche B Term Loan
Facility") and (c) the Revolving Credit Commitments and the extensions
of credit made thereunder (the "Revolving Credit Facility").
"Federal Funds Effective Rate": as defined in the definition of
"ABR".
"Foreign Subsidiary": any Subsidiary of the Borrower that is not
a Domestic Subsidiary.
"Funded Debt": as to any Person, all Indebtedness of such Person
that matures more than one year from the date of its creation or matures
within one year from such date but is renewable or extendible, at the
option of such Person, to a date more than one year from such date or
arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
from such date, including, without limitation, all current maturities
and current sinking fund payments in respect of such Indebtedness
whether or not required to be paid within one year from the date of its
creation and, in the case of the Borrower, Indebtedness in respect of
the Loans.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and the statements
and pronouncements of the Financial Accounting Standards Board and the
rules and regulations of the Securities and Exchange Commission, or in
such other statements by such other entity as may be in general use by
significant segments of the accounting profession, which are applicable
to the circumstances of the Borrower as of the date of determination,
except that for purposes of Section 7.1, GAAP shall be determined on the
basis of such principles in effect on the Amendment/Restatement Closing
Date and consistent with those used in the preparation of the audited
financial statements of the AHP Food Business or Heritage, as the case
may be, in respect of the fiscal year ended December 31, 1995 delivered
pursuant to Section 4.1(b) (or, to the extent applicable to Bumble Bee
and its Subsidiaries, on the basis of such principles in effect on the
Amendment/Restatement Closing Date and consistent with those used in the
preparation of the audited financial statements of Bumble Bee in respect
of the fiscal year ended December 31, 1996 delivered pursuant to Section
4.1(b)). In the event that any "Accounting Change" (as defined below)
shall occur and such change results in a change in the method of
calculation of financial covenants, standards or terms in this
Agreement, then the Borrower and the Administrative Agent agree to enter
into negotiations in order to amend such provisions of this Agreement so
as to equitably reflect such Accounting Changes with the desired result
that the criteria for evaluating the Borrower's financial condition
shall be the same after such Accounting Changes as if such Accounting
Changes had not been made. Until such time as such an amendment shall
have been executed and delivered by the Borrower, the Administrative
Agent and the Required Lenders, all financial covenants, standards and
terms in this Agreement shall continue to be calculated or construed as
if such Accounting Changes had
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not occurred. "Accounting Changes" refers to changes in accounting
principles required by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of
the American Institute of Certified Public Accountants or, if
applicable, the Securities and Exchange Commission (or successors
thereto or agencies with similar functions).
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee and Collateral Agreement": the Guarantee and
Collateral Agreement to be executed and delivered by the Borrower and
each Subsidiary Guarantor, substantially in the form of Exhibit A, as
the same may be amended, supplemented or otherwise modified from time to
time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of
the guaranteeing person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of
such Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Heritage": Heritage Brands Holdings, Inc., a Delaware
corporation.
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"Heritage Acquisition": as defined in Section 5.1(b).
"▇▇▇▇▇ Muse": Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated.
"HM Equity": as defined in Section 5.1(b).
"Incremental Term Loans": as defined in Section 2.1.
"Incur": as defined in Section 7.2; and the term "Incurrence"
shall have a correlative meaning.
"Indebtedness": of any Person at any date, 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 current trade payables and accrued expenses
incurred in the ordinary course of such Person's business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all indebtedness 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 Capital Lease
Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party under acceptance, letter of
credit or similar facilities, (g) indebtedness incurred in connection
with any Receivables Facility, (h) all Guarantee Obligations of such
Person in respect of obligations of the kind referred to in clauses (a)
through (g) above and (i) all obligations of the kind referred to in
clauses (a) through (h) above secured by (or for which the holder of
such obligation has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, whether or not such
Person has assumed or become liable for the payment of such obligation.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245
of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Initial Public Offering": an underwritten public offering by
the Borrower of Capital Stock of the Borrower pursuant to a registration
statement filed with the Securities and Exchange Commission in
accordance with the Securities Act of 1933, as amended.
"Intellectual Property": as defined in Section 4.9.
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period,
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(c) as to any Eurodollar Loan having an Interest Period longer than
three months, each day which is three months, or a whole multiple
thereof, after the first day of such Interest Period and the last day of
such Interest Period and (d) as to any Loan, the date of repayment
thereof at final stated maturity.
"Interest Period": as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may
be, with respect to such Eurodollar Loan and ending one, two, three, six
or (if available to all Lenders under the relevant Facility) nine or
twelve months thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with
respect thereto; and (b) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such Eurodollar
Loan and ending one, two, three, six or (if available to all Lenders
under the relevant Facility) nine or twelve months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative
Agent not less than three Business Days prior to the last day of the
then current Interest Period with respect thereto; provided that, all of
the foregoing provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall
end on the immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend
beyond the Revolving Credit Termination Date or beyond the date
final payment is due on the Tranche A Term Loans or the Tranche B
Term Loans, as the case may be, shall end on the Revolving Credit
Termination Date or such due date, as applicable;
(iii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a
calendar month; and
(iv) the Borrower shall select Interest Periods so as not
to require a payment or prepayment of any Eurodollar Loan during
an Interest Period for such Loan.
"Interest Rate Protection Agreement": any interest rate
protection agreement, interest rate futures contract, interest rate
option, interest rate cap or other interest rate hedge arrangement, to
or under which the Borrower or any of its Subsidiaries is a party or a
beneficiary on the Closing Date or becomes a party or a beneficiary
after the Closing Date.
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"Issuing Lender": Chase or any of its affiliates or, with the
approval of the Administrative Agent, any of the other Lenders which
chooses to be an Issuing Lender, in its capacity as issuer of any Letter
of Credit.
"L/C Commitment": $30,000,000.
"L/C Fee Payment Date": the last day of each March, June,
September and December and the last day of the Revolving Credit
Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings
under Letters of Credit which have not then been reimbursed pursuant to
Section 3.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the
Issuing Lender that issued such Letter of Credit.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any capital lease having substantially the same
economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents and the
Notes.
"Loan Parties": the Borrower and each Subsidiary of the Borrower
which is a party to a Loan Document.
"Majority Facility Lenders": with respect to any Facility, the
holders of not less than 51% of the aggregate unpaid principal amount of
the Term Loans or the Total Revolving Extensions of Credit, as the case
may be, outstanding under such Facility (or, in the case of the
Revolving Credit Facility, prior to any termination of the Revolving
Credit Commitments, the holders of not less than 51% of the aggregate
Revolving Credit Commitments).
"Majority Revolving Credit Facility Lenders": the Majority
Facility Lenders in respect of the Revolving Credit Facility.
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"Material Adverse Effect": a material adverse effect on (a) the
business, assets, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole or (b)
the validity or enforceability of this Agreement or any of the other
Loan Documents or the rights or remedies of the Administrative Agent or
the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Merger": as defined in Section 5.1(b).
"Merger Sub": AHFP Acquisition Corporation, a Delaware
corporation.
"Mortgaged Properties": the real properties listed on Schedule
1.1B or Schedule 1.1D, as to which the Administrative Agent for the
benefit of the Lenders shall be granted a Lien pursuant to the
Mortgages.
"Mortgages": each of the mortgages and deeds of trust made by
any Loan Party in favor of, or for the benefit of, the Administrative
Agent for the benefit of the Lenders, substantially in the form of
Exhibit D-1 or D-2, as the case may be (with such changes thereto as
shall be advisable under the law of the jurisdiction in which such
mortgage or deed of trust is to be recorded), as the same may be
amended, supplemented or otherwise modified from time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
accountants' fees, investment banking fees, survey costs, title
insurance premiums, amounts required to be applied to the repayment of
Indebtedness secured by a Lien expressly permitted hereunder on any
asset which is the subject of such Asset Sale or Recovery Event (other
than any Lien pursuant to a Security Document) and other customary fees
and expenses actually incurred in connection therewith, net of taxes
paid or reasonably estimated to be payable as a result thereof (after
taking into account any available tax credits or deductions and any tax
sharing arrangements) and net of purchase price adjustments reasonably
expected to be payable in connection therewith and
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(b) in connection with any issuance or sale of equity securities or debt
securities or instruments or the incurrence of loans, the cash proceeds
received from such issuance or incurrence, net of attorneys' fees,
investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith, provided that, with respect to any issuance or
sale of debt securities or instruments as described in this clause (b),
to the extent that such cash proceeds are used to refinance any
Indebtedness permitted by this Agreement, then such cash proceeds shall
not constitute "Net Cash Proceeds" for the purpose of this Agreement.
"Non-Excluded Taxes": as defined in Section 2.19(a).
"Non-U.S. Lender": as defined in Section 2.19(b).
"Notes": the collective reference to the Tranche A Term Notes,
the Tranche B Term Notes, the Revolving Credit Notes and the Swing Line
Note.
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and Reimbursement Obligations and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the Loans and all other obligations and
liabilities of the Borrower to the Administrative Agent or to any Lender
(or, in the case of Interest Rate Protection Agreements, any affiliate
of any Lender), whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, this Agreement, any other Loan
Document, the Letters of Credit, any Interest Rate Protection Agreement
entered into with any Lender or any affiliate of any Lender or any other
document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all
fees, charges and disbursements of counsel to the Administrative Agent
or to any Lender that are required to be paid by the Borrower pursuant
hereto) or otherwise.
"Participant": as defined in Section 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Investors": the collective reference to ▇▇▇▇▇ Muse
and its Affiliates and principals.
"Permitted Issuance": (a) the issuance by the Borrower of shares
of Capital Stock as dividends on issued and outstanding Capital Stock of
the same class of the Borrower or pursuant to any dividend reinvestment
plan, (b) the issuance by the Borrower of options or
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other equity securities of the Borrower to outside directors, members of
management or employees of the Borrower or any Subsidiary of the
Borrower, (c) the issuance of securities as interest or dividends on
pay-in-kind debt or preferred equity securities permitted hereunder and
under the Security Documents, (d) the issuance to the Borrower or any
Subsidiary (or any director, with respect to directors' qualifying
shares) by any Subsidiary of the Borrower of any of its Capital Stock,
in each case with respect to this clause (d) to the extent such Capital
Stock is pledged to the Administrative Agent for the benefit of the
Lenders pursuant to the Guarantee and Collateral Agreement (provided,
that only 65% of the Capital Stock of an Excluded Foreign Subsidiary is
required to be so pledged) and (e) the issuance of Contributed Equity.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Prime Rate": as defined in the definition of "ABR".
"Pro Forma Balance Sheet": as defined in Section 4.1(a)(i).
"Projections": as defined in Section 6.2(c).
"Properties": as defined in Section 4.17.
"Property": any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.
"Qualified Issuer": any commercial bank (a) which has capital
and surplus in excess of $250,000,000 and (b) the outstanding long-term
debt securities of which are rated at least A-2 by Standard & Poor's
Ratings Services or at least P-2 by ▇▇▇▇▇'▇ Investors Service, Inc., or
carry an equivalent rating by a nationally recognized rating agency if
both of the two named rating agencies cease publishing ratings of
investments.
"Receivables Facility": one or more non-recourse receivables
facilities providing for the sale, encumbrance or other Disposition, at
any time or from time to time, of all or a portion of the accounts
receivable of the Borrower or any of its Subsidiaries.
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"Receivables Facility Assets": accounts receivable and related
ancillary rights, including, without limitation, any security interests
or guarantees securing the payment of such receivables, of the Borrower
or any of its Subsidiaries, that are sold, encumbered or otherwise
Disposed of at any time or from time to time in connection with a
Receivables Facility.
"Receivables SPV": a special purpose company established by the
Borrower or any of its Subsidiaries and so existing solely for purposes
of a Receivables Facility.
"Recovery Event": any settlement of or payment in respect of any
property insurance or casualty insurance claim or any condemnation
proceeding relating to any Property of the Borrower or any of its
Subsidiaries, excluding any such settlement or payment which, together
with any related settlement or payment, yields gross proceeds to the
Borrower or any of its Subsidiaries of less than $1,000,000.
"Refunded Swing Line Loans": as defined in Section 2.7.
"Refunding Date": as defined in Section 2.7.
"Register": as defined in Section 10.6(d).
"Reimbursement Obligation": the obligation of the Borrower to
reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by the Borrower or any
of its Subsidiaries in connection therewith which are not applied to
prepay the Term Loans or reduce the Revolving Credit Commitments
pursuant to Section 2.11(b) as a result of the delivery of a
Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in
respect of which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer stating that no Event of Default has occurred and is
continuing and that the Borrower (directly or indirectly through a
Subsidiary) intends and expects to use all or a specified portion of the
Net Cash Proceeds of an Asset Sale or Recovery Event to acquire assets
useful in its business.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto
less any amount expended prior to the relevant Reinvestment Prepayment
Date to acquire assets useful in the Borrower's business.
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"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the date occurring six months after such
Reinvestment Event and (b) the date on which the Borrower shall have
determined not to, or shall have otherwise ceased to, acquire assets
useful in the Borrower's business with all or any portion of the
relevant Reinvestment Deferred Amount.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under the regulations issued pursuant to Section
4043(b) of ERISA.
"Required Lenders": the holders of not less than 51% of the sum
of (a) the aggregate unpaid principal amount of the Term Loans and (b)
the aggregate Revolving Credit Commitments or, if the Revolving Credit
Commitments have been terminated, the Total Revolving Extensions of
Credit.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation (including,
without limitation, Environmental Laws) or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer, the
president, any senior vice president, the chief financial officer or the
treasurer of the Borrower (including, in any event, any person who is an
officer of the Borrower and is named on the closing certificate
delivered by the Borrower on the Closing Date pursuant to Section 5.1(g)
whether or not such person holds any of the foregoing positions).
"Revolving Credit Commitment": as to any Lender, the obligation
of such Lender, if any, to make Revolving Credit Loans and participate
in Swing Line Loans and Letters of Credit, in an aggregate principal
and/or face amount not to exceed the amount set forth under the heading
"Revolving Credit Commitment" opposite such Lender's name on Schedule
1.1A or, on the Amendment/Restatement Closing Date, Schedule 1.1C, as
the same may be changed from time to time pursuant to the terms hereof.
The original aggregate amount of the Revolving Credit Commitments, as of
the Closing Date, was $100,000,000. The original aggregate amount of
the Revolving Credit Commitments, as of the Amendment/Restatement
Closing Date, is $140,000,000.
"Revolving Credit Commitment Period": the period from and
including the Closing Date to the Revolving Credit Termination Date.
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"Revolving Credit Facility": as defined in the definition of
"Facility".
"Revolving Credit Lender": each Lender which has a Revolving
Credit Commitment or which has made Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4.
"Revolving Credit Note": any promissory note of the Borrower
evidencing Revolving Credit Loans.
"Revolving Credit Percentage": as to any Revolving Credit Lender
at any time, the percentage which such Lender's Revolving Credit
Commitment then constitutes of the aggregate Revolving Credit
Commitments (or, at any time after the Revolving Credit Commitments
shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Revolving Credit Loans then
outstanding constitutes of the aggregate principal amount of the
Revolving Credit Loans then outstanding).
"Revolving Credit Termination Date": the earlier of (a) the
Scheduled Revolving Credit Termination Date and (b) the date on which
the Tranche A Term Loans shall be paid in full.
"Revolving Extensions of Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Lender then
outstanding, (b) such Lender's Revolving Credit Percentage of the L/C
Obligations then outstanding and (c) such Lender's Revolving Credit
Percentage of the aggregate principal amount of Swing Line Loans then
outstanding.
"Scheduled Capital Expenditure Amount": in connection with the
calculation of the Consolidated Fixed Charge Coverage Ratio as at the
end of any period of four consecutive fiscal quarters of the Borrower
ending on the last day of any fiscal quarter set forth below, the amount
set forth opposite such fiscal quarter:
Fiscal Quarter Ending Amount
--------------------- -----------
December 31, 1997 to December 31, 1998 $38,000,000
March 31, 1999 $39,250,000
June 30, 1999 $40,500,000
September 30, 1999 $41,750,000
December 31, 1999 and thereafter $43,000,000
"Scheduled Revolving Credit Termination Date": March 31, 2003.
"Security Documents": the collective reference to the Guarantee
and Collateral Agreement, the Mortgages and all other security documents
hereafter delivered to the
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Administrative Agent granting a Lien on any Property of any Person to
secure the obligations and liabilities of any Loan Party under any Loan
Document.
"Sellers": the collective reference to AHP and AHP Holding.
"Senior Subordinated Note Indenture": the Indenture entered into
by the Borrower and certain of its Subsidiaries in connection with the
issuance of the Senior Subordinated Notes, together with all instruments
and other agreements entered into by the Borrower or such Subsidiaries
in connection therewith, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section 7.9.
"Senior Subordinated Notes": the subordinated notes of the
Borrower issued on the Closing Date pursuant to the Senior Subordinated
Note Indenture.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that, as
of any date of determination, (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and
liabilities mature, and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction,
for which such Person's property would constitute an unreasonably small
capital.
"Specified Change of Control": a "Change of Control" as defined
in the Senior Subordinated Note Indenture.
"Subsequent Purchase": as defined in Section 5.1(b).
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than stock
or such other ownership interests having such power only by reason of
the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other
entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries,
or both, by such Person. Unless otherwise qualified, all references to
a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
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"Subsidiary Guarantor": each Subsidiary of the Borrower other
than any Excluded Foreign Subsidiary and any Receivables SPV.
"Swing Line Commitment": the obligation of the Swing Line Lender
to make Swing Line Loans pursuant to Section 2.6 in an aggregate
principal amount at any one time outstanding not to exceed $10,000,000.
"Swing Line Lender": as defined in Section 2.6.
"Swing Line Loans": as defined in Section 2.6.
"Swing Line Note": any promissory note of the Borrower
evidencing Swing Line Loans.
"Swing Line Participation Amount": as defined in Section 2.7.
"Term Loan Facilities": the collective reference to the Tranche
A Term Loan Facility and the Tranche B Term Loan Facility.
"Term Loan Lenders": the collective reference to the Tranche A
Term Loan Lenders and the Tranche B Term Loan Lenders.
"Term Loans": the collective reference to the Tranche A Term
Loans and the Tranche B Term Loans.
"Test Period": any period of four consecutive fiscal quarters of
the Borrower (or, if less, (a) in the case of financial covenant
calculations as of any date or for any period occurring or ending on or
prior to June 30, 1997, the number of full fiscal quarters of the
Borrower subsequent to the Closing Date and (b) in the case of financial
covenant calculations or calculations pursuant to the Pricing Grid as of
any date or for any period occurring or ending after June 30, 1997 and
on or prior to March 31, 1998, the number of full fiscal quarters of the
Borrower subsequent to June 30, 1997).
"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving
Credit Lenders at such time.
"Trade Acceptances": any trade acceptance accepted by the
Borrower or any of its Subsidiaries in connection with purchases from
suppliers made in the ordinary course of business.
"Tranche A Term Loan": as defined in Section 2.1.
"Tranche A Term Loan Facility": as defined in the definition of
"Facility".
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"Tranche A Term Loan Lender": each Lender which has made a
Tranche A Term Loan.
"Tranche A Term Loan Percentage": as to any Tranche A Term Loan
Lender, the percentage which the principal amount of such Lender's
Tranche A Term Loan then outstanding constitutes of the aggregate
principal amount of the Tranche A Term Loans then outstanding.
"Tranche A Term Note": any promissory note of the Borrower
evidencing Tranche A Term Loans.
"Tranche B Term Loan": as defined in Section 2.1.
"Tranche B Term Loan Facility": as defined in the definition of
"Facility".
"Tranche B Term Loan Lender": each Lender which has made a
Tranche B Term Loan.
"Tranche B Term Loan Percentage": as to any Lender at any time,
the percentage which the principal amount of such Lender's Tranche B
Term Loan then outstanding constitutes of the aggregate principal amount
of the Tranche B Term Loans then outstanding.
"Tranche B Term Note": any promissory note of the Borrower
evidencing Tranche B Term Loans.
"Transferee": as defined in Section 10.6(g).
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"Unapplied Excess Cash Flow": any Excess Cash Flow that is not
required to be applied toward the prepayment of the Term Loans and the
reduction of the Revolving Credit Commitments pursuant to Section
2.11(c), as determined on each Excess Cash Flow Application Date in
respect of the immediately preceding fiscal year of the Borrower.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be revised from time to time.
"Wholly Owned Subsidiary": as to any Person, any other Person
all of the Capital Stock of which (other than directors' qualifying
shares required by law) is owned by such Person directly and/or through
other Wholly Owned Subsidiaries.
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"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor
that is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP;
provided that, if the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision hereof to eliminate the effect
of any change occurring after the Closing Date in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF LOANS
2.1 Term Loans. Subject to the terms and conditions hereof, (a)
each Tranche A Term Loan Lender severally agrees, on the Amendment/Restatement
Closing Date, to make and/or maintain outstanding, a term loan (a "Tranche A
Term Loan") to the Borrower and (b) each Tranche B Term Loan Lender severally
agrees, on the Amendment/Restatement Closing Date, to make and/or maintain
outstanding a term loan (a "Tranche B Term Loan") to the Borrower, in each case
in the respective amounts specified on Schedule 1.1C. A portion of the Tranche
B Term Loans to be so maintained by the Tranche B Term Loan Lenders represents
"Tranche C Term Loans" outstanding under the Existing Credit Agreement which
have been re-designated as Tranche B Term Loans for the purposes of this
Agreement. Term Loans made to the Borrower (rather than maintained) on the
Amendment/Restatement Closing Date are referred to herein as "Incremental Term
Loans". The aggregate outstanding principal amount of the Tranche A Term Loans
and the Tranche B Term Loans on the Amendment/Restatement Closing Date, after
giving effect to the making of the Incremental Term Loans, shall be
$367,500,000 and $369,500,000, respectively. The Term Loans
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may from time to time be Eurodollar Loans or ABR Loans, as determined by the
Borrower and notified to the Administrative Agent in accordance with Sections
2.2 and 2.12.
2.2 Procedure for Incremental Term Loan Borrowing. The Borrower
shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 10:00 A.M., New York City time,
one Business Day prior to the anticipated Amendment/Restatement Closing Date)
requesting that the Term Loan Lenders make the Incremental Term Loans on the
Amendment/Restatement Closing Date and specifying the amount to be borrowed.
The Incremental Term Loans made on the Amendment/Restatement Closing Date shall
initially be ABR Loans. Upon receipt of such notice the Administrative Agent
shall promptly notify each Term Loan Lender thereof. Not later than 12:00
Noon, New York City time, on the Amendment/Restatement Closing Date each Term
Loan Lender shall make available to the Administrative Agent at its office
specified in Section 10.2 an amount in immediately available funds equal to the
Incremental Term Loan or Incremental Term Loans to be made by such Lender. The
Administrative Agent shall credit the account of the Borrower on the books of
such office of the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent by the Term Loan Lenders in immediately
available funds.
2.3 Repayment of Term Loans. (a) The Tranche A Term Loan of
each Tranche A Lender shall mature in 12 consecutive semi-annual installments,
commencing on September 30, 1997, each of which shall be in an amount equal to
such Lender's Tranche A Term Loan Percentage multiplied by the amount set forth
below opposite such installment:
Installment Principal Amount
----------- ----------------
September 30, 1997 $16,000,000
March 31, 1998 19,000,000
September 30, 1998 19,000,000
March 31, 1999 25,500,000
September 30, 1999 25,500,000
March 31, 2000 32,000,000
September 30, 2000 32,000,000
March 31, 2001 35,000,000
September 30, 2001 38,500,000
March 31, 2002 38,500,000
September 30, 2002 41,500,000
March 31, 2003 45,000,000
(b) The Tranche B Term Loan of each Tranche B Lender shall
mature in 15 consecutive semi-annual installments, commencing on September 30,
1997, each of which shall be in an amount equal to such Lender's Tranche B Term
Loan Percentage multiplied by the amount set forth below opposite such
installment:
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Installment Principal Amount
----------- ----------------
September 30, 1997 $ 500,000
March 31, 1998 500,000
September 30, 1998 500,000
March 31, 1999 500,000
September 30, 1999 500,000
March 31, 2000 500,000
September 30, 2000 500,000
March 31, 2001 500,000
September 30, 2001 500,000
March 31, 2002 500,000
September 30, 2002 500,000
March 31, 2003 500,000
September 30, 2003 121,000,000
March 31, 2004 121,000,000
September 30, 2004 121,500,000
2.4 Revolving Credit Commitments. (a) Subject to the
terms and conditions hereof, each Revolving Credit Lender severally agrees to
make revolving credit loans ("Revolving Credit Loans") to the Borrower from
time to time during the Revolving Credit Commitment Period in an aggregate
principal amount at any one time outstanding which, when added to such Lender's
Revolving Credit Percentage of the sum of (i) the L/C Obligations then
outstanding and (ii) the aggregate principal amount of the Swing Line Loans
then outstanding, does not exceed the amount of such Lender's Revolving Credit
Commitment. During the Revolving Credit Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms
and conditions hereof. The Revolving Credit Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to
the Administrative Agent in accordance with Sections 2.5 and 2.12, provided
that no Revolving Credit Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the Scheduled Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit
Loans on the Revolving Credit Termination Date.
2.5 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 12:00 Noon, New York City time, (a) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date, in the
case of ABR Loans), specifying (i) the amount and Type of Revolving Credit
Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the case
of Eurodollar Loans, the respective amounts of each such Type
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of Loan and the respective lengths of the initial Interest Period therefor.
Each borrowing under the Revolving Credit Commitments shall be in an amount
equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple of
$500,000 in excess thereof (or, if the then aggregate Available Revolving
Credit Commitments are less than $1,000,000, such lesser amount) and (y) in the
case of Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in
excess thereof; provided, that the Swing Line Lender may request, on behalf of
the Borrower, borrowings under the Revolving Credit Commitments which are ABR
Loans in other amounts pursuant to Section 2.7. Upon receipt of any such
notice from the Borrower, the Administrative Agent shall promptly notify each
Revolving Credit Lender thereof. Each Revolving Credit Lender will make the
amount of its pro rata share of each borrowing available to the Administrative
Agent for the account of the Borrower at the office of the Administrative Agent
specified in Section 10.2 prior to 12:00 Noon, New York City time, on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the
Borrower by the Administrative Agent crediting the account of the Borrower on
the books of such office with the aggregate of the amounts made available to
the Administrative Agent by the Revolving Credit Lenders and in like funds as
received by the Administrative Agent.
2.6 Swing Line Commitment. (a) Subject to the terms and
conditions hereof, Chase (in such capacity, the "Swing Line Lender") agrees to
make a portion of the credit otherwise available to the Borrower under the
Revolving Credit Commitments from time to time during the Revolving Credit
Commitment Period by making swing line loans ("Swing Line Loans") to the
Borrower; provided that (i) the aggregate principal amount of Swing Line Loans
outstanding at any time shall not exceed the Swing Line Commitment then in
effect (notwithstanding that the Swing Line Loans outstanding at any time, when
aggregated with the Swing Line Lender's other outstanding Revolving Credit
Loans hereunder, may exceed the Swing Line Commitment then in effect) and (ii)
the Borrower shall not request, and the Swing Line Lender shall not make, any
Swing Line Loan if, after giving effect to the making of such Swing Line Loan,
the aggregate amount of the Available Revolving Credit Commitments would be
less than zero. During the Revolving Credit Commitment Period, the Borrower
may use the Swing Line Commitment by borrowing, repaying and reborrowing, all
in accordance with the terms and conditions hereof. Swing Line Loans shall be
ABR Loans only.
(b) The Borrower shall repay all outstanding Swing Line Loans on
the Revolving Credit Termination Date.
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line
Loans. (a) Whenever the Borrower desires that the Swing Line Lender make
Swing Line Loans it shall give the Swing Line Lender irrevocable telephonic
notice confirmed promptly in writing (which telephonic notice must be received
by the Swing Line Lender not later than 1:00 P.M., New York City time, on the
proposed Borrowing Date), specifying (i) the amount to be borrowed and (ii) the
requested Borrowing Date (which shall be a Business Day during the Revolving
Credit Commitment Period). Each borrowing under the Swing Line Commitment
shall be in an amount equal to $250,000 or a whole multiple of $100,000 in
excess thereof. Not later than 3:00 P.M., New York City time, on the
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Borrowing Date specified in a notice in respect of Swing Line Loans, the Swing
Line Lender shall make available to the Administrative Agent at its office
specified in Section 10.2 an amount in immediately available funds equal to the
amount of the Swing Line Loan to be made by the Swing Line Lender. The
Administrative Agent shall make the proceeds of such Swing Line Loan available
to the Borrower on such Borrowing Date by depositing such proceeds in the
account of the Borrower with the Administrative Agent on such Borrowing Date in
immediately available funds.
(b) The Swing Line Lender, at any time and from time to time in
its sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swing Line Lender to act on its behalf), on one
Business Day's notice given by the Swing Line Lender no later than 12:00 Noon,
New York City time, request each Revolving Credit Lender to make, and each
Revolving Credit Lender hereby agrees to make, a Revolving Credit Loan, in an
amount equal to such Revolving Credit Lender's Revolving Credit Percentage of
the aggregate amount of the Swing Line Loans (the "Refunded Swing Line Loans")
outstanding on the date of such notice, to repay the Swing Line Lender. Each
Revolving Credit Lender shall make the amount of such Revolving Credit Loan
available to the Administrative Agent at its office set forth in Section 10.2
in immediately available funds, not later than 10:00 A.M., New York City time,
one Business Day after the date of such notice. The proceeds of such Revolving
Credit Loans shall be immediately applied by the Swing Line Lender to repay the
Refunded Swing Line Loans. The Borrower irrevocably authorizes the Swing Line
Lender to charge the Borrower's accounts with the Administrative Agent (up to
the amount available in each such account) in order to immediately pay the
amount of such Refunded Swing Line Loans to the extent amounts received from
the Revolving Credit Lenders are not sufficient to repay in full such Refunded
Swing Line Loans.
(c) If prior to the time a Revolving Credit Loan would have
otherwise been made pursuant to Section 2.7(b), one of the events described in
Section 8(f) shall have occurred and be continuing with respect to the Borrower
or if for any other reason, as determined by the Swing Line Lender in its sole
discretion, Revolving Credit Loans may not be made as contemplated by Section
2.7(b), each Revolving Credit Lender shall, on the date such Revolving Credit
Loan was to have been made pursuant to the notice referred to in Section 2.7(b)
(the "Refunding Date"), purchase for cash an undivided participating interest
in an amount equal to (i) its Revolving Credit Percentage times (ii) the
aggregate principal amount of Swing Line Loans then outstanding which were to
have been repaid with such Revolving Credit Loans (the "Swing Line
Participation Amount").
(d) Whenever, at any time after the Swing Line Lender has
received from any Revolving Credit Lender such Lender's Swing Line
Participation Amount, the Swing Line Lender receives any payment on account of
the Swing Line Loans, the Swing Line Lender will distribute to such Lender its
Swing Line Participation Amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded and, in the case of principal
and interest payments, to reflect such Lender's pro rata portion of such
payment if such payment is not sufficient to pay the principal of and interest
on all Swing Line Loans then due); provided, however, that in the event that
such payment received
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by the Swing Line Lender is required to be returned, such Revolving Credit
Lender will return to the Swing Line Lender any portion thereof previously
distributed to it by the Swing Line Lender.
(e) Each Revolving Credit Lender's obligation to make the Loans
referred to in Section 2.7(b) and to purchase participating interests pursuant
to Section 2.7(c) shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Revolving Credit
Lender or the Borrower may have against the Swing Line Lender, the Borrower or
any other Person for any reason whatsoever; (ii) the occurrence or continuance
of a Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5; (iii) any adverse change in the condition
(financial or otherwise) of the Borrower; (iv) any breach of this Agreement or
any other Loan Document by the Borrower, any other Loan Party or any other
Revolving Credit Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
2.8 Commitment Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment
of such Lender during the period for which payment is made, payable quarterly
in arrears on the last day of each March, June, September and December and on
the Revolving Credit Termination Date, commencing on the first of such dates to
occur after the Closing Date.
(b) The Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates previously agreed to in writing by the
Borrower and the Administrative Agent.
2.9 Termination or Reduction of Revolving Credit Commitments.
The Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments; provided that no such termination or reduction of Revolving Credit
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans and Swing Line Loans made on the
effective date thereof, the Total Revolving Extensions of Credit would exceed
the Revolving Credit Commitments then in effect. Any such reduction shall be
in an amount equal to $1,000,000, or a whole multiple thereof, and shall reduce
permanently the Revolving Credit Commitments then in effect. Upon receipt of
any notice pursuant to this Section 2.9, the Administrative Agent shall
promptly notify each Revolving Credit Lender of the contents thereof.
2.10 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent at least
three Business Days prior thereto in the case of Eurodollar Loans and at least
one Business Day prior thereto in the case of ABR Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each;
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provided, that if a Eurodollar Loan is prepaid on any day other than the last
day of the Interest Period applicable thereto, the Borrower shall also pay any
amounts owing pursuant to Section 2.20. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If
any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein. Amounts prepaid on account of the Term
Loans may not be reborrowed. Partial prepayments of Eurodollar Loans shall be
in an aggregate principal amount of $1,000,000 or a whole multiple thereof.
Partial prepayments of ABR Loans (other than Swing Line Loans) shall be in an
aggregate principal amount of $500,000 or a whole multiple thereof. Partial
prepayments of Swing Line Loans shall be in an aggregate principal amount of
$100,000 or a whole multiple thereof.
2.11 Mandatory Prepayments and Commitment Reductions. (a) If
any Capital Stock or Indebtedness shall be issued or Incurred by the Borrower
or any of its Subsidiaries (excluding any Permitted Issuance and any Incurrence
of Indebtedness in accordance with Section 7.2 (other than Section 7.2(i)) as
in effect on the Amendment/Restatement Closing Date), an amount equal to 100%
of the Net Cash Proceeds thereof (excluding any Equity Financing Proceeds)
shall be applied on the date of such issuance or Incurrence toward the
prepayment of the Term Loans and the reduction of the Revolving Credit
Commitments as set forth in Section 2.11(d).
(b) If on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a
Reinvestment Notice shall be delivered in respect thereof, such Net Cash
Proceeds shall be applied, within five Business Days after such date, toward
the prepayment of the Term Loans and the reduction of the Revolving Credit
Commitments as set forth in Section 2.11(d); provided, that, notwithstanding
the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be
excluded from the foregoing requirement in any fiscal year of the Borrower
pursuant to a Reinvestment Notice, when added to the aggregate fair market
value of Property Disposed of in connection with Asset Swaps during such fiscal
year, shall not exceed $20,000,000 and (ii) on each Reinvestment Prepayment
Date, an amount equal to the Reinvestment Prepayment Amount with respect to the
relevant Reinvestment Event shall be applied toward the prepayment of the Term
Loans and the reduction of the Revolving Credit Commitments as set forth in
Section 2.11(d).
(c) If, for any fiscal year of the Borrower commencing with the
fiscal year ending December 31, 1997, there shall be Excess Cash Flow, the
Borrower shall, on the relevant Excess Cash Flow Application Date, apply the
ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans
and the reduction of the Revolving Credit Commitments as set forth in Section
2.11(d). Each such prepayment and commitment reduction shall be made on a date
(an "Excess Cash Flow Application Date") no later than five days after the
earlier of (i) the date on which the financial statements of the Borrower
referred to in Section 6.1(a), for the fiscal year with respect to which such
prepayment is made, are required to be delivered to the Lenders and (ii) the
date such financial statements are actually delivered.
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(d) Amounts to be applied in connection with prepayments and
Revolving Credit Commitment reductions made pursuant to this Section 2.11 shall
be applied, first, to the prepayment of the Term Loans and, second, to reduce
permanently the Revolving Credit Commitments. Any such reduction of the
Revolving Credit Commitments shall be accompanied by prepayment of the
Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the
Total Revolving Extensions of Credit exceed the amount of the aggregate
Revolving Credit Commitments as so reduced, provided that if the aggregate
principal amount of Revolving Credit Loans and Swing Line Loans then
outstanding is less than the amount of such excess (because L/C Obligations
constitute a portion thereof), the Borrower shall, to the extent of the balance
of such excess, replace outstanding Letters of Credit and/or deposit an amount
in cash in a cash collateral account established with the Administrative Agent
for the benefit of the Lenders on terms and conditions satisfactory to the
Administrative Agent. The application of any prepayment pursuant to this
Section 2.11 shall be made first to ABR Loans and second to Eurodollar Loans.
Amounts prepaid on account of the Term Loans may not be reborrowed.
2.12 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least one Business Day's prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only
be made on the last day of an Interest Period with respect thereto. The
Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans
by giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election (which notice shall specify the length of
the initial Interest Period therefor), provided that no ABR Loan under a
particular Facility may be converted into a Eurodollar Loan (i) when any Event
of Default has occurred and is continuing and the Administrative Agent or the
Majority Facility Lenders in respect of such Facility have determined in its or
their sole discretion not to permit such conversions or (ii) after the date
that is one month prior to the final scheduled termination or maturity date of
such Facility. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan under a particular Facility may be
continued as such (i) when any Event of Default has occurred and is continuing
and the Administrative Agent has or the Majority Facility Lenders in respect of
such Facility have determined in its or their sole discretion not to permit
such continuations or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility, and provided, further,
that if the Borrower shall fail to give any required notice as described above
in this paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Loans shall be automatically converted to ABR Loans on
the last day of such then expiring Interest Period. Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant Lender
thereof.
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2.13 Minimum Amounts and Maximum Number of Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans
hereunder and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, (a) the aggregate principal amount of the Eurodollar Loans comprising
each Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof, (b) no more than six Eurodollar Tranches under a
particular Facility shall be outstanding at any one time and (c) no more than
sixteen Eurodollar Tranches in the aggregate shall be outstanding at any one
time.
2.14 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal
to the ABR plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any Loan
or Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and
Reimbursement Obligations (whether or not overdue) shall bear interest at a
rate per annum which is equal to (x) in the case of the Loans, the rate that
would otherwise be applicable thereto pursuant to the foregoing provisions of
this Section 2.14 plus 2% or (y) in the case of Reimbursement Obligations, the
rate applicable to ABR Loans under the Revolving Credit Facility plus 2%, and
(ii) if all or a portion of any interest payable on any Loan or Reimbursement
Obligation or any commitment fee or other amount payable hereunder shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal to the rate
applicable to ABR Loans under the relevant Facility plus 2% (or, in the case of
any such other amounts that do not relate to a particular Facility, the rate
applicable to ABR Loans under the Revolving Credit Facility plus 2%), in each
case, with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
Section 2.14 shall be payable from time to time on demand.
2.15 Computation of Interest and Fees. (a) Interest, fees and
commissions payable pursuant hereto shall be calculated on the basis of a 360-
day year for the actual days elapsed, except that, with respect to ABR Loans
the rate of interest on which is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the relevant Lenders of
each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the ABR or the Eurocurrency Reserve
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Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of the effective date
and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate applicable to any Eurodollar Loan.
2.16 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrower and the relevant Lenders as soon as practicable thereafter. If
such notice is given (x) any Eurodollar Loans under the relevant Facility
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as ABR Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted to ABR Loans on the last day of the
Interest Period applicable thereto. Until such notice has been withdrawn by
the Administrative Agent, no further Eurodollar Loans under the relevant
Facility shall be made or continued as such, nor shall the Borrower have the
right to convert Loans under the relevant Facility to Eurodollar Loans.
2.17 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on
account of any commitment fee and any reduction of the Revolving Credit
Commitments shall be made, with regard to the applicable Facility, pro rata
according to the respective Tranche A Term Loan Percentages, Tranche B Term
Loan Percentages or Revolving Credit Percentages, as the case may be, of the
relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Term Loans shall be made pro rata
according to the respective
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outstanding principal amounts of the Term Loans then held by the Term Loan
Lenders. The amount of each principal payment of the Term Loans (other than
scheduled repayments of installments of principal) shall be applied to reduce
the then remaining installments of the Tranche A Term Loans and the Tranche B
Term Loans, pro rata based upon the then remaining number of installments
thereof, after giving effect to all prior reductions thereto (i.e., each then
remaining installment of the Tranche A Term Loans or Tranche B Term Loans, as
the case may be, shall be reduced by an amount equal to the aggregate amount to
be applied to the Tranche A Term Loans or Tranche B Term Loans, as the case may
be, divided by the number of the then remaining installments for such Tranche A
Term Loans or Tranche B Term Loans); provided, that if the amount to be so
applied to any installment would exceed the then remaining amount of such
installment, then an amount equal to such excess shall be applied to the next
succeeding installment after giving effect to all prior reductions thereto
(including the amount of prepayments theretofore allocated pursuant to the
preceding portion of this sentence). Notwithstanding the foregoing, the first
$40,000,000 of optional prepayments of the Term Loans shall be applied to such
installments of the Term Loans as the Borrower shall elect (other than
scheduled installments of the Tranche B Term Loans prior to September 30,
2003).
(c) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Credit Loans shall be
made pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Revolving Credit Lenders.
(d) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Administrative
Agent's office specified in Section 10.2, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments to
the Lenders promptly upon receipt in like funds as received. If any payment
hereunder becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day (except, in the
case of Eurodollar Loans, as otherwise provided in clause (i) of the definition
of "Interest Period"). In the case of any extension of any payment of
principal pursuant to the preceding sentence, interest thereon shall be payable
at the then applicable rate during such extension.
(e) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to
the Administrative Agent by the required time on the Borrowing Date therefor,
such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available
to the
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Administrative Agent. A certificate of the Administrative Agent submitted to
any Lender with respect to any amounts owing under this Section 2.17(e) shall
be conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to ABR Loans under the relevant Facility, on demand, from
the Borrower.
(f) Certain procedures relating to extensions of credit
outstanding under the Existing Credit Agreement and extensions of credit to be
made on the Amendment/Restatement Closing Date are described on Schedule 2.17.
2.18 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the Closing Date:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
Application or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for Non-
Excluded Taxes covered by Section 2.19, the establishment of a tax based
on the overall net income of such Lender and changes in the rate of tax
on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes
entitled to claim any additional amounts pursuant to this Section 2.18, it
shall promptly (and in any event no later than 90 days after such Lender
becomes entitled to make such claim) notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so
entitled. If the Borrower notifies the Administrative Agent within five
Business Days after any Lender notifies the Borrower of any increased cost
pursuant to the foregoing provisions of this Section 2.18(a), the Borrower may
convert
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all Eurodollar Loans of such Lender then outstanding into ABR Loans in
accordance with Section 2.12 and shall, additionally, reimburse such Lender for
any cost in accordance with Section 2.20.
(b) If any Lender shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the Closing Date shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter
of Credit to a level below that which such Lender or such corporation could
have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time, after submission by such Lender to the Borrower (with a copy to
the Administrative Agent) of a written request therefor, the Borrower shall pay
to such Lender such additional amount or amounts as will compensate such Lender
or such corporation for such reduction; provided that the Borrower shall not be
required to compensate a Lender pursuant to this paragraph for any amounts
incurred more than six months prior to the date that such Lender notifies the
Borrower of such Lender's intention to claim compensation therefor; and
provided further that, if the circumstances giving rise to such claim have a
retroactive effect, then such six-month period shall be extended to include the
period of such retroactive effect.
(c) A certificate as to any additional amounts payable pursuant
to this Section 2.18, showing in reasonable detail the calculation thereof and
certifying that it is generally charging such costs to other similarly situated
borrowers under similar credit facilities, submitted by any Lender to the
Borrower (with a copy to the Administrative Agent), shall be conclusive in the
absence of manifest error, provided that the determination of such amounts
shall be made in good faith in a manner generally consistent with such Lender's
standard practices. The obligations of the Borrower pursuant to this Section
2.18 shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder for a period of nine months
thereafter.
2.19 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender as a result
of a present or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority 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, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any
amounts payable to the Administrative Agent or any Lender hereunder, the
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amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof to the extent such
Lender's compliance with the requirements of Section 2.19(b) at the time such
Lender becomes a party to this Agreement fails to establish a complete
exemption from such withholding. Whenever any Non-Excluded Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for its own account or for the account of such Lender,
as the case may be, a certified copy of an original official receipt received
by the Borrower showing payment thereof. If the Borrower fails to pay any Non-
Excluded Taxes when due to the appropriate taxing authority or fails to remit
to the Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this Section 2.19 shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder for a
period of nine months thereafter.
(b) Each Lender (or Transferee) that is not (i) a citizen or
resident of the United States of America, (ii) a corporation, partnership or
other entity created or organized in or under the laws of the United States of
America (or any jurisdiction thereof), or (iii) an estate or trust that is
subject to federal income taxation regardless of the source of its income
(each, a "Non-U.S. Lender") shall deliver to the Borrower and the
Administrative Agent (or, in the case of a Participant, to the Lender from
which the related participation shall have been purchased) two copies of either
U.S. Internal Revenue Service Form 1001 or Form 4224, or, in the case of a
Non-U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a Form W-8, or any subsequent versions thereof or successors thereto
(and, if such Non-U.S. Lender delivers a Form W-8, an annual certificate
representing, under penalty of perjury, that such Non-U.S. Lender is not a
"bank" for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or a
reduced rate of, U.S. federal withholding tax on all payments by the Borrower
under this Agreement and the other Loan Documents. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Non-U.S.
Lender shall deliver such forms on or before the expiration or obsolescence and
promptly upon the invalidity of any form previously delivered by such Non-U.S.
Lender and after the occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any extensions of time
reasonably requested by the Borrower of the Administrative Agent for filing and
completing such forms. Each Non-U.S. Lender agrees, to the extent legally
entitled to do so, upon reasonable request by the Borrower, to provide to the
Borrower (for the benefit of the Borrower and the Administrative
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Agent) such other forms as may be reasonably required in order to establish the
legal entitlement of such Lender to an exemption from withholding with respect
to payments of interest under this Agreement or the other Loan Documents,
provided that in determining the reasonableness of such a request, such Lender
shall be entitled to consider the cost of complying with such request (to the
extent unreimbursed by the Borrower) that would be imposed on such Lender.
Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this Section 2.19(b), a Non-U.S. Lender shall not be
required to deliver any form pursuant to this Section 2.19(b) that such
Non-U.S. Lender is not legally able to deliver.
2.20 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss (excluding loss of profit) or
expense which such Lender may sustain or incur as a consequence of (a) default
by the Borrower in making a borrowing of, conversion into or continuation of
Eurodollar Loans after the Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement, (b) default by the Borrower
in making any prepayment after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans on a day which is not the last day of an
Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of such Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the
applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (ii) the amount
of interest (as reasonably determined by such Lender) which would have accrued
to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank eurodollar market. A
certificate as to any amounts payable pursuant to this Section 2.20, showing in
reasonable detail the calculation thereof, submitted to the Borrower by any
Lender shall be conclusive in the absence of manifest error. This covenant
shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder for a period of nine months thereafter.
2.21 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.18 or
2.19(a) with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided, further, that nothing in this Section
2.21 shall affect or postpone any of the obligations of any Borrower or the
rights of any Lender pursuant to Section 2.18 or 2.19(a).
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2.22 Replacement of Lenders under Certain Circumstances. The
Borrower shall be permitted to replace any Lender which (a) requests
reimbursement for amounts owing pursuant to Section 2.18 or 2.19 or (b)
defaults in its obligation to make Loans hereunder, with a replacement
financial institution; provided that (i) such replacement does not conflict
with any Requirement of Law, (ii) no Event of Default shall have occurred and
be continuing at the time of such replacement, (iii) prior to any such
replacement, such Lender shall have taken no action under Section 2.21 so as to
eliminate the continued need for payment of amounts owing pursuant to Section
2.18 or 2.19, (iv) the Borrower shall repay (or the replacement financial
institution shall purchase, at par) all Loans and other amounts (including
accrued interest and fees) owing to such replaced Lender on or prior to the
date of replacement, (v) the Borrower shall be liable to such replaced Lender
under Section 2.20 if any Eurodollar Loan owing to such replaced Lender shall
be prepaid (or purchased) other than on the last day of the Interest Period
relating thereto, (vi) the replacement financial institution, if not already a
Lender, shall be reasonably satisfactory to the Administrative Agent, (vii) the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 10.6, (viii) until such time as such replacement
shall be consummated, the Borrower shall pay all additional amounts (if any)
required pursuant to Section 2.18 or 2.19, as the case may be, and (ix) any
such replacement shall not be deemed to be a waiver of any rights which the
Borrower, the Administrative Agent or any other Lender shall have against the
replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, each Issuing Lender, in reliance on the agreements of the other
Revolving Credit Lenders set forth in Section 3.4(a), agrees to issue letters
of credit ("Letters of Credit") for the account of the Borrower on any Business
Day during the Revolving Credit Commitment Period in such form as may be
approved from time to time by such Issuing Lender; provided that no Issuing
Lender shall have any obligation to issue any Letter of Credit if, after giving
effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment or (ii) the aggregate amount of the Available Revolving Credit
Commitments would be less than zero. Each Letter of Credit shall (i) be
denominated in Dollars and (ii) expire no later than the earlier of (x) the
first anniversary of its date of issuance and (y) the date which is five
Business Days prior to the Scheduled Revolving Credit Termination Date,
provided that any Letter of Credit with a one-year term may provide for the
renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above).
(b) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(c) No Issuing Lender shall at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
such Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower
may from time to time request that an Issuing Lender issue a Letter of Credit
by delivering to such Issuing Lender at its
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address for notices specified herein an Application therefor, completed to the
satisfaction of such Issuing Lender, and such other certificates, documents and
other papers and information as such Issuing Lender may reasonably request.
Upon receipt of any Application, the relevant Issuing Lender will process such
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested thereby (but
in no event shall any Issuing Lender be required to issue any Letter of Credit
earlier than three Business Days after its receipt of the Application therefor
and all such other certificates, documents and other papers and information
relating thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed to by the relevant Issuing
Lender and the Borrower. The relevant Issuing Lender shall furnish a copy of
such Letter of Credit to the Borrower promptly following the issuance thereof.
The relevant Issuing Lender shall promptly furnish to the Administrative Agent
notice of the issuance of each Letter of Credit (including the amount thereof).
The Administrative Agent will furnish to the Revolving Credit Lenders (a)
prompt notice of the issuance of each standby Letter of Credit and (b) a
monthly report setting forth for the relevant month the total aggregate daily
amount available to be drawn under commercial Letters of Credit that were
outstanding during such month.
3.3 Commissions, Fees and Other Charges. (a) The Borrower will
pay to the Administrative Agent, for the account of each Revolving Credit
Lender, a commission on all outstanding Letters of Credit at a per annum rate
equal to the Applicable Margin then in effect with respect to Eurodollar Loans
under the Revolving Credit Facility minus the fronting fee referred to below,
shared ratably among the Revolving Credit Lenders and payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date. In addition, the
Borrower shall pay to each Issuing Lender for its own account a fronting fee of
1/4 of 1% per annum in respect of each Letter of Credit issued by such Issuing
Lender, payable quarterly in arrears on each L/C Fee Payment Date after the
Issuance Date.
(b) In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the relevant Issuing Lender for such normal and
customary costs and expenses as are incurred or charged by such Issuing Lender
in issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit.
3.4 L/C Participations. (a) Each Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce each
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the relevant Issuing Lender, on the terms and conditions hereinafter stated,
for such L/C Participant's own account and risk an undivided interest equal to
such L/C Participant's Revolving Credit Percentage in such Issuing Lender's
obligations and rights under each Letter of Credit issued by such Issuing
Lender and the amount of each draft paid by such Issuing Lender thereunder.
Each L/C Participant unconditionally and irrevocably agrees with each Issuing
Lender that, if a draft is paid under any Letter of Credit issued by such
Issuing Lender for which such Issuing Lender is not reimbursed in full by the
Borrower in accordance with the terms of this Agreement, such L/C Participant
shall pay to such Issuing Lender upon demand an amount equal
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to such L/C Participant's Revolving Credit Percentage of the amount of such
draft, or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to
any Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Lender under any Letter of Credit
is paid to such Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to such Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to such Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to such Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, such
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans under the Revolving Credit Facility. A
certificate of the relevant Issuing Lender submitted to any L/C Participant
with respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error.
(c) Whenever, at any time after an Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant
its pro rata share of such payment in accordance with Section 3.4(a), such
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise, including proceeds of collateral
applied thereto by such Issuing Lender), or any payment of interest on account
thereof, such Issuing Lender will distribute to such L/C Participant its pro
rata share thereof; provided, however, that in the event that any such payment
received by such Issuing Lender shall be required to be returned by such
Issuing Lender, such L/C Participant shall return to such Issuing Lender the
portion thereof previously distributed by such Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse each Issuing Lender on each date on which such Issuing
Lender notifies the Borrower of the date and amount of a draft presented under
any Letter of Credit and paid by such Issuing Lender for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Lender in connection with such payment. Each such
payment shall be made to such Issuing Lender in lawful money of the United
States of America and in immediately available funds. Interest shall be
payable on any and all amounts remaining unpaid by the Borrower under this
Section from the date such amounts become payable (whether at stated maturity,
by acceleration or otherwise) until payment in full at the rate set forth in
Section 2.14(c). Each drawing under any Letter of Credit shall (unless an
event of the type described in clause (i) or (ii) of Section 8(f) shall have
occurred and be continuing with respect to the Borrower, in which case the
procedures specified in Section 3.4 for funding by L/C Participants shall
apply) constitute a request by the Borrower to the Administrative Agent for a
borrowing pursuant to Section 2.5 of ABR Loans (or, at the option of the
Administrative Agent and the Swing Line Lender in their sole discretion, a
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borrowing pursuant to Section 2.7 of Swing Line Loans) in the amount of such
drawing. The Borrowing Date with respect to such borrowing shall be the date
of payment of the relevant draft.
3.6 Obligations Absolute. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against any Issuing Lender (except to the extent
resulting from the gross negligence or willful misconduct of such Issuing
Lender), any beneficiary of a Letter of Credit or any other Person. The
Borrower also agrees with each Issuing Lender that, subject to the last
sentence of this Section 3.6, no Issuing Lender shall be responsible for, and
the Borrower's Reimbursement Obligations under Section 3.5 shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. No Issuing
Lender shall be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors,
omissions or delays in transmission found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Issuing Lender that issued such Letter of Credit.
The Borrower agrees that any action taken or omitted by any Issuing Lender
under or in connection with any Letter of Credit or the related drafts or
documents, if done in the absence of gross negligence or willful misconduct and
in accordance with the standards or care specified in the Uniform Commercial
Code of the State of New York, shall be binding on the Borrower and shall not
result in any liability of any Issuing Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the relevant Issuing Lender shall
promptly notify the Borrower of the date and amount thereof. The
responsibility of each Issuing Lender to the Borrower in connection with any
draft presented for payment under any Letter of Credit issued by it shall, in
addition to any payment obligation expressly provided for in such Letter of
Credit, be limited to determining that the documents (including each draft)
delivered under such Letter of Credit in connection with such presentment are
substantially in conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to the Administrative Agent
and each Lender that:
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4.1 Financial Condition. (a) (i) The unaudited pro forma
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at September 30, 1996 (including the notes thereto) (the "Pro Forma Balance
Sheet"), copies of which have heretofore been furnished to each Lender, has
been prepared giving effect (as if such events had occurred on such date) to
(i) the consummation of the Acquisitions, (ii) the Loans to be made and the
Senior Subordinated Notes to be issued on the Closing Date and the use of
proceeds thereof and (iii) the payment of fees and expenses in connection with
the foregoing. The Pro Forma Balance Sheet presents fairly on a pro forma
basis the financial position of the Borrower and its consolidated Subsidiaries
as at September 30, 1996 and is based upon good faith estimates and assumptions
believed by management of the Borrower to be reasonable at the time made,
assuming that the events specified in the preceding sentence had actually
occurred at such date.
(ii) The unaudited pro forma consolidated balance sheet and
statement of EBITDA of the Borrower and its consolidated Subsidiaries as at, or
for the fiscal year ended, December 31, 1996 (including the notes thereto) (the
"Bumble Bee Pro Forma Financial Statements"), copies of which have heretofore
been furnished to each Lender, has been prepared giving effect to (i) the
consummation of the Bumble Bee Acquisition (including the results of the
bankruptcy proceeding to which Bumble Bee shall have been subject), (ii) the
Loans to be made on the Amendment/Restatement Closing Date and the use of
proceeds thereof and (iii) the payment of fees and expenses in connection with
the foregoing. The Bumble Bee Pro Forma Financial Statements present fairly on
a pro forma basis the financial position of the Borrower and its consolidated
Subsidiaries as at December 31, 1996 and is based upon good faith estimates and
assumptions believed by management of the Borrower to be reasonable at the time
made.
(b) (i) The audited consolidated balance sheets of the AHP Food
Business as at December 31, 1994 and December 31, 1995, and the related
consolidated statements of income and of cash flows for the fiscal years ended
on such dates, reported on by and accompanied by an unqualified report from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, present fairly the consolidated financial condition of the
AHP Food Business as at such date, and the consolidated results of its
operations and its consolidated cash flows for the respective fiscal years then
ended. The audited consolidated balance sheet of Heritage and its consolidated
Subsidiaries as at December 31, 1995, and the related consolidated statements
of income and of cash flows for the fiscal years ended on such dates, reported
on by and accompanied by an unqualified report from Coopers & ▇▇▇▇▇▇▇ L.L.P.,
present fairly the consolidated financial condition of Heritage and its
consolidated Subsidiaries as at such date, and the consolidated results of
their operations and their consolidated cash flows for the fiscal year then
ended. The unaudited consolidated balance sheet of the AHP Food Business as at
September 30, 1996, and the related unaudited consolidated statements of income
and cash flows for the nine-month period ended on such date, present fairly the
consolidated financial condition of the AHP Food Business as at such date, and
the consolidated results of its operations and its consolidated cash flows for
the nine-month period then ended (subject to normal year-end audit
adjustments). The unaudited consolidated balance sheets of Heritage and its
consolidated Subsidiaries as at September 30, 1996, and the related unaudited
consolidated statements of income and cash flows for the nine-month period
ended on such date, present fairly the consolidated
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financial condition of Heritage and its consolidated Subsidiaries as at such
date, and the consolidated results of their operations and their consolidated
cash flows for the nine-month period then ended (subject to normal year-end
audit adjustments). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the
relevant firm of accountants and disclosed therein). The most recent balance
sheets referred to above reflect, as required by GAAP, with respect to the AHP
Food Business or Heritage, as the case may be, any material Guarantee
Obligations, contingent liabilities and liabilities for taxes, and any
long-term leases and unusual forward or long-term commitments, including,
without limitation, any interest rate or foreign currency swap or exchange
transaction or other obligation in respect of derivatives, in each case as of
the date of such balance sheets. During the period from September 30, 1996 to
and including the Closing Date there has been no sale, transfer or other
disposition by the AHP Food Business or Heritage of any material part of its
business or Property (other than in connection with the Acquisitions).
(ii) The audited consolidated balance sheets of Bumble Bee as at
December 31, 1995 and December 31, 1996, and the related consolidated
statements of income and of cash flows for the fiscal years ended on such
dates, reported on by and accompanied by a report from Peat Marwick LLP,
present fairly the consolidated financial condition of Bumble Bee as at such
dates, and the consolidated results of its operations and its consolidated cash
flows for the respective fiscal years then ended. The unaudited consolidated
balance sheet of Bumble Bee as at March 31, 1997, and the related unaudited
consolidated statements of income and cash flows for the three-month period
ended on such date, present fairly the consolidated financial condition of
Bumble Bee as at such date, and the consolidated results of its operations and
its consolidated cash flows for the three-month period then ended (subject to
normal year-end audit adjustments). All such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP applied consistently throughout the periods involved (except as approved
by the relevant firm of accountants and disclosed therein). During the period
from December 31, 1996 to and including the Amendment/Restatement Closing Date
there has been no sale, transfer or other disposition by Bumble Bee or any of
its Subsidiaries of any material part of its business or Property (other than
in connection with the Bumble Bee Acquisition).
4.2 No Change. Since December 31, 1996 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect (it being understood that the reference to the Borrower
and its Subsidiaries in the definition of "Material Adverse Effect" includes
the Property acquired pursuant to the Bumble Bee Acquisition).
4.3 Corporate Existence; Compliance with Law. Each of the
Borrower and each of its Subsidiaries (a) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization,
(b) has the corporate power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct
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of its business requires such qualification and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and, in the
case of the Borrower, to borrow and obtain other extensions of credit
hereunder. Each Loan Party has taken all necessary corporate action to
authorize the execution, delivery and performance of the Loan Documents to
which it is a party and, in the case of the Borrower, to authorize the
borrowings and other extensions of credit on the terms and conditions of this
Agreement. No consent or authorization of, filing with, notice to or other act
by or in respect of, any Governmental Authority or any other Person is required
in connection with the Acquisitions, the Bumble Bee Acquisition and the
borrowings and other extensions of credit hereunder or with the execution,
delivery, performance, validity or enforceability of this Agreement or any of
the other Loan Documents, except (i) consents, authorizations, filings and
notices described in Schedule 4.4, which consents, authorizations, filings and
notices have been obtained or made and are in full force and effect, (ii)
consents under immaterial Contractual Obligations relating to limitations on
the assignability thereof and (iii) the filings referred to in Section 4.19.
Each Loan Document has been duly executed and delivered on behalf of each Loan
Party party thereto. This Agreement constitutes, and each other Loan Document
upon execution will constitute, a legal, valid and binding obligation of each
Loan Party party thereto, enforceable against each such Loan Party in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
4.5 No Legal Bar. The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof will not violate
any Requirement of Law or any material Contractual Obligation of the Borrower
or any of its Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on any of their respective properties or revenues
pursuant to any Requirement of Law or any such Contractual Obligation (other
than the Liens created by the Security Documents). No Requirement of Law or
Contractual Obligation applicable to the Borrower or any of its Subsidiaries
could reasonably be expected to have a Material Adverse Effect.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of their respective properties or revenues
(a) with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) which could reasonably be expected to
have a Material Adverse Effect.
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4.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
4.8 Ownership of Property; Liens. Each of the Borrower and each
of its Subsidiaries has title in fee simple to, or a valid leasehold interest
in, all its real property, and good title to, or a valid leasehold interest in,
all its other property, and none of such property is subject to any Lien except
as permitted by Section 7.3.
4.9 Intellectual Property. Each of the Borrower and each of its
Subsidiaries owns (subject only to the recording of conveyance and assignment
documentation in the U.S. Patent and Trademark Office and other applicable
jurisdictions, which recording shall be completed promptly after the Closing
Date), or is licensed to use, all trademarks, tradenames, service marks,
copyrights, technology, know-how and processes ("Intellectual Property")
necessary for the conduct of its business as currently conducted. Except as,
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect, (a) no claim has been asserted and is pending by any Person challenging
or questioning the use of any Intellectual Property or the validity of any
Intellectual Property (nor does the Borrower know of any valid basis for any
such claim) and (b) the use of Intellectual Property by the Borrower and its
Subsidiaries does not infringe on the rights of, and no Intellectual Property
of the Borrower or any of its Subsidiaries is being infringed upon by, any
Person.
4.10 Taxes. Each of the Borrower and each of its Subsidiaries
has filed or caused to be filed all Federal and all material state and other
material tax returns which are required to be filed and has paid all taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority (other than any taxes,
fees or other charges the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the
Borrower or its Subsidiaries, as the case may be); and no tax Lien has been
filed, and, to the knowledge of the Borrower, no material claim is being
asserted, with respect to any such tax, fee or other charge.
4.11 Federal Regulations. No Letters of Credit and no part of
the proceeds of any Loans will be used for "purchasing" or "carrying" any
"margin stock" within the respective meanings of each of the quoted terms under
Regulation G or Regulation U of the Board as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR
Form G-3 or FR Form U-1 referred to in said Regulation G or Regulation U, as
the case may be.
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4.12 Labor Matters. There are no strikes or other labor disputes
against the Borrower or any of its Subsidiaries pending or, to the knowledge of
the Borrower, threatened that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. Hours worked by and
payment made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement
of Law dealing with such matters that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. All payments due
from the Borrower or any of its Subsidiaries on account of employee health and
welfare insurance that (individually or in the aggregate) could reasonably be
expected to have a Material Adverse Effect if not paid have been paid or
accrued as a liability on the books of the Borrower or the relevant Subsidiary.
4.13 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan, and
each Plan has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits by a material amount. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan that could reasonably be expected to have a Material Adverse
Effect, and neither the Borrower nor any Commonly Controlled Entity would
become subject to any liability under ERISA that could reasonably be expected
to have a Material Adverse Effect if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as
of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
4.15 Subsidiaries. The Subsidiaries listed on Schedule 4.15
constitute all the Subsidiaries of the Borrower at the Closing Date. The
Subsidiaries listed on Schedule 4.15-A constitute all the Subsidiaries of the
Borrower at the Amendment/Restatement Closing Date.
4.16 Use of Proceeds. The proceeds of the Term Loans shall be
used to finance a portion of the Acquisitions and the Bumble Bee Acquisition
and to pay related fees and expenses. The proceeds of the Revolving Credit
Loans and the Swing Line Loans shall be used for general corporate purposes.
The Letters of Credit shall be used for general corporate purposes.
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4.17 Environmental Matters. Except as, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by
the Borrower or any of its Subsidiaries (the "Properties") do not
contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations or under
circumstances which (i) constitute or constituted a violation of, or
(ii) could give rise to liability under, any Environmental Law;
(b) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under
or about the Properties or violation of any Environmental Law with
respect to the Properties or the business operated by the Borrower or
any of its Subsidiaries (the "Business");
(c) neither the Borrower nor any of its Subsidiaries has assumed
any liability of any other Person under Environmental Laws;
(d) neither the Borrower nor any of its Subsidiaries has
received or is aware of any notice of violation, alleged violation, non-
compliance, liability or potential liability regarding environmental
matters or compliance with Environmental Laws with regard to any of the
Properties or the Business, nor does the Borrower have knowledge or
reason to believe that any such notice will be received or is being
threatened;
(e) Materials of Environmental Concern have not been transported
or disposed of from the Properties in violation of, or in a manner or to
a location which could give rise to liability under, any Environmental
Law, nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Properties in
violation of, or in a manner that could give rise to liability under,
any applicable Environmental Law;
(f) no judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which the Borrower or any Subsidiary is
or will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business; and
(g) there has been no release or threat of release of Materials
of Environmental Concern at or from the Properties, or arising from or
related to the operations of the Borrower or any Subsidiary in
connection with the Properties or otherwise in connection with the
Business, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws.
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4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum, the Bumble Bee Confidential Information Memorandum or
any other document, certificate or statement furnished to the Administrative
Agent or the Lenders, or any of them, by or on behalf of any Loan Party for use
in connection with the transactions contemplated by this Agreement or the other
Loan Documents, contained as of the date such statement, information, document
or certificate was so furnished (or (a) in the case of the Confidential
Information Memorandum, as of the Closing Date or (b) in the case of the Bumble
Bee Confidential Information Memorandum, as of the Amendment/Restatement
Closing Date), any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein or
therein not misleading. The projections and pro forma financial information
and other estimates and opinions contained in the materials referenced above
are based upon good faith estimates and assumptions believed by management of
the Borrower to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is not
to be viewed as fact and that actual results during the period or periods
covered by such financial information may differ from the projected results set
forth therein by a material amount. As of the Closing Date, the
representations and warranties of the Buyer and the Merger Sub and, to the best
knowledge of the Borrower, the Sellers and AH Food Co. in the Acquisition
Agreement are true and correct in all material respects. As of the
Amendment/Restatement Closing Date, the representations and warranties of the
Buyer (as defined in the Bumble Bee Purchase Agreement) and, to the best
knowledge of the Borrower, the Sellers (as defined in the Bumble Bee Purchase
Agreement) in the Bumble Bee Purchase Agreement are true and correct in all
material respects. There is no fact known to any Loan Party that could
reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents, in the Confidential
Information Memorandum, in the Bumble Bee Confidential Information Memorandum
or in any other documents, certificates and statements furnished to the
Administrative Agent and the Lenders for use in connection with the
transactions contemplated hereby and by the other Loan Documents.
4.19 Security Documents. (a) The Guarantee and Collateral
Agreement is effective to create in favor of the Administrative Agent, for the
benefit of the Lenders, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. In the case of the Pledged
Stock described in the Guarantee and Collateral Agreement, when stock
certificates representing such Pledged Stock are delivered to the
Administrative Agent, and in the case of the other Collateral described in the
Guarantee and Collateral Agreement, when financing statements in appropriate
form are filed in the offices specified on Schedule 4.19(a) (or, in the case of
Collateral granted by Bumble Bee and its Subsidiaries, Schedule 4.19(a)-A), the
Guarantee and Collateral Agreement shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Loan Parties in
such Collateral and the proceeds thereof, as security for the Obligations (as
defined in the Guarantee and Collateral Agreement), in each case prior and
superior in right to any other Person subject, except in the case of such
Pledged Stock, to Liens permitted by paragraphs (a) through (f) of Section 7.3.
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(b) Each of the Mortgages is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
4.19(b) (or, in the case of Mortgages granted by Bumble Bee and its
Subsidiaries, Schedule 4.19(b)-A), each Mortgage shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in the Mortgaged Properties and the proceeds thereof, as
security for the Obligations (as defined in the relevant Mortgage), in each
case prior and superior in right to any other Person, subject to Liens
permitted by paragraphs (a) through (f) of Section 7.3.
4.20 Solvency. On the Closing Date, each Loan Party is, and
after giving effect to the Acquisitions and the incurrence of all Indebtedness
and obligations being incurred in connection herewith and therewith will be,
Solvent. On the Amendment/Restatement Closing Date, each Loan Party is, and
after giving effect to the Bumble Bee Acquisition and the incurrence of all
Indebtedness and obligations being incurred in connection herewith and
therewith will be, Solvent.
4.21 Senior Indebtedness. The Obligations constitute "Senior
Indebtedness" of the Borrower under and as defined in the Senior Subordinated
Note Indenture. The obligations of each Subsidiary Guarantor under the
Guarantee and Collateral Agreement constitute "Guarantor Senior Indebtedness"
of such Subsidiary Guarantor under and as defined in the Senior Subordinated
Note Indenture.
4.22 Regulation H. No Mortgage encumbers improved real property
which is located in an area that has been identified by the Secretary of
Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood
Insurance Act of 1968.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement of
each Lender to make the initial extension of credit requested to be made by it
is subject to the satisfaction, prior to or concurrently with the making of
such extension of credit on the Closing Date, of the following conditions
precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized
officer of the Borrower, (ii) the Guarantee and Collateral Agreement,
executed and delivered by a duly authorized officer of the Borrower and
each Subsidiary Guarantor, (iii) each of the Mortgages, executed and
delivered by a duly authorized officer of each party thereto, and (iv)
for the account of each relevant Lender, Notes conforming to the
requirements hereof and executed and delivered by a duly authorized
officer of the Borrower.
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(b) Acquisitions, HM Equity, Senior Subordinated Notes, etc.
The following transactions shall have been consummated, in each case on
terms and conditions reasonably satisfactory to the Lenders:
(i) Merger Sub shall have merged (the "Merger") with and
into AH Food Co. (with AH Food Co. being the surviving
corporation); AH Food Co. shall have changed its name to
International Home Foods, Inc.; at the time of the Merger and
after giving effect to certain related transactions referred to
below, the Borrower and its Subsidiaries shall conduct a business
(the "AHP Food Business") that manufactures, markets and sells
specialty foods products and, immediately prior to such
transactions, was conducted by AH Food Co., the Sellers and their
affiliates; certain Subsidiaries and other assets of the Sellers
and their affiliates included in the AHP Food Business shall
either have been transferred to AH Food Co. immediately prior to
the Merger or purchased by the Borrower (any such purchase, a
"Subsequent Purchase") immediately after the Merger, as
contemplated by the Acquisition Agreement; in conjunction with
the Merger, the Buyer shall have paid consideration to the
Sellers, the Borrower shall have redeemed shares of common stock
of the Borrower held by the Sellers and the Borrower shall have
paid to the Sellers the purchase price for any Subsequent
Purchase, with the aggregate amount expended (the "AHP Purchase
Price") by the Buyer and the Borrower in connection with such
transactions, together with the value of the shares of common
stock of the Borrower held by the Sellers after giving effect to
the Merger (valued on the same basis as the HM Equity) being
equal to not more than $1,275,000,000, subject to adjustment as
provided in the Acquisition Agreement; and after giving effect to
the foregoing transactions, 80% of the common stock of the
Borrower shall be owned by the Buyer and 20% of the common stock
of the Borrower shall be owned by the Sellers (all of the
foregoing transactions, collectively, the "AHP Acquisition");
(ii) the Borrower shall have acquired (the "Heritage
Acquisition") at least 75% of the capital stock of Heritage for a
purchase price (the "Heritage Purchase Price") (including
repayment of assumed Indebtedness of Heritage) of not more than
$70,000,000 and all Indebtedness of Heritage outstanding
immediately prior to the Heritage Acquisition shall have been
paid in full;
(iii) (x) the Buyer shall have received at least
$264,000,000 from the proceeds of equity (the "HM Equity") issued
by the Buyer to funds managed by ▇▇▇▇▇ Muse and other investors
satisfactory to the Lenders, and such proceeds shall have been
applied to finance a portion of the AHP Purchase Price and the
Heritage Purchase Price; and (y) the value of the shares of
common stock of the Borrower held by the Sellers after giving
effect to the AHP Acquisition (valued at a price per share by
reference to the HM Equity) shall be at least $66,000,000;
provided, that a portion of the amount referred to in clause (x)
above may be funded with the proceeds of unsecured loans to the
Buyer; and
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(iv) the Borrower shall have received at least
$400,000,000 in gross cash proceeds from the issuance of the
Senior Subordinated Notes.
(c) Pro Forma Balance Sheet; Financial Statements. The Lenders
shall have received (i) the Pro Forma Balance Sheet, (ii) audited
consolidated financial statements of the AHP Food Business for the 1994
and 1995 fiscal years and audited financial statements of Heritage for
the 1995 fiscal year and (iii) unaudited interim consolidated financial
statements of the AHP Food Business and Heritage for each fiscal month
and quarterly period ended subsequent to the date of the latest
applicable financial statements delivered pursuant to clause (ii) of
this paragraph as to which such financial statements are available, and
such financial statements shall not, in the reasonable judgment of the
Lenders, reflect any material adverse change in the consolidated
financial condition of the AHP Food Business or Heritage, as the case
may be, as reflected in the financial statements or projections
contained in the Confidential Information Memorandum
(d) Lien Searches. The Administrative Agent shall have received
the results of a recent lien search in each of the jurisdictions where
assets of the Loan Parties are located, and such search shall reveal no
liens on any of the assets of the Borrower or its Subsidiaries except
for liens permitted by Section 7.3.
(e) Environmental Audit. The Administrative Agent shall have
received an environmental audit with respect to the real properties of
the Borrower and its Subsidiaries specified by the Administrative Agent.
(f) Expenses. The Administrative Agent shall have received
satisfactory evidence that the fees and expenses to be incurred in
connection with the Acquisitions and the financing thereof shall not
exceed $55,000,000.
(g) Closing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of each Loan
Party, dated the Closing Date, substantially in the form of Exhibit C,
with appropriate insertions and attachments.
(h) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions:
(i) the legal opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to
the Borrower and its Subsidiaries, substantially in the form of
Exhibit F; and
(ii) the legal opinion of local counsel in each of
California, Pennsylvania and Ontario.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
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(i) Pledged Stock; Stock Powers. The Administrative Agent shall
have received the certificates representing the shares of Capital Stock
pledged pursuant to the Guarantee and Collateral Agreement, together
with an undated stock power for each such certificate executed in blank
by a duly authorized officer of the pledgor thereof.
(j) Filings, Registrations and Recordings. Each document
(including, without limitation, any Uniform Commercial Code financing
statement) required by the Security Documents or under law or reasonably
requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent, for
the benefit of the Lenders, a perfected Lien on the Collateral described
therein, prior and superior in right to any other Person (other than
with respect to Liens expressly permitted by Section 7.3), shall be in
proper form for filing, registration or recordation.
(k) Mortgages, etc. (i) The Administrative Agent shall have
received a Mortgage with respect to each Mortgaged Property, executed
and delivered by a duly authorized officer of each party thereto.
(ii) If reasonably requested by the Administrative Agent, the
Administrative Agent shall have received, and the title insurance
company issuing the policy referred to in Section 5.1(m)(iii) (the
"Title Insurance Company") shall have received, maps or plats of an as-
built survey of the sites of the Mortgaged Properties certified to the
Administrative Agent and the Title Insurance Company in a manner
satisfactory to them, dated a date satisfactory to the Administrative
Agent and the Title Insurance Company by an independent professional
licensed land surveyor reasonably satisfactory to the Administrative
Agent and the Title Insurance Company, which maps or plats and the
surveys on which they are based shall be made in accordance with the
Minimum Standard Detail Requirements for Land Title Surveys jointly
established and adopted by the American Land Title Association and the
American Congress on Surveying and Mapping in 1992, and, without
limiting the generality of the foregoing, there shall be surveyed and
shown on such maps, plats or surveys the following: (A) the locations on
such sites of all the buildings, structures and other improvements and
the established building setback lines; (B) the lines of streets
abutting the sites and width thereof; (C) all access and other easements
appurtenant to the sites; (D) all roadways, paths, driveways, easements,
encroachments and overhanging projections and similar encumbrances
affecting the site, whether recorded, apparent from a physical
inspection of the sites or otherwise known to the surveyor; (E) any
encroachments on any adjoining property by the building structures and
improvements on the sites; (F) if the site is described as being on a
filed map, a legend relating the survey to said map; and (G) the flood
zone designations, if any, in which the Mortgaged Properties are
located; provided, that any of the foregoing items so requested by the
Administrative Agent may be delivered after the Closing Date subject to
compliance with Section 6.10(e).
(iii) The Administrative Agent shall have received in respect of
each Mortgaged Property a mortgagee's title insurance policy (or
policies) or marked up unconditional binder
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for such insurance. Each such policy shall (A) be in an amount
reasonably satisfactory to the Administrative Agent; (B) be issued at
ordinary rates; (C) insure that the Mortgage insured thereby creates a
valid first Lien on such Mortgaged Property free and clear of all
defects and encumbrances, except as disclosed therein; (D) name the
Administrative Agent for the benefit of the Lenders as the insured
thereunder; (E) be in the form of ALTA Loan Policy - 1970 (Amended
10/17/70 and 10/17/84) (or equivalent policies) to the extent available
in the applicable jurisdictions; (F) contain such endorsements and
affirmative coverage as the Administrative Agent may reasonably request
to the extent available in the applicable jurisdictions; and (G) be
issued by title companies satisfactory to the Administrative Agent
(including any such title companies acting as co-insurers or reinsurers,
at the option of the Administrative Agent). The Administrative Agent
shall have received evidence satisfactory to it that all premiums in
respect of each such policy, all charges for mortgage recording tax, and
all related expenses, if any, have been paid.
(iv) If reasonably requested by the Administrative Agent, the
Administrative Agent shall have received (A) a policy of flood insurance
which (1) covers any parcel of improved real property which is
encumbered by any Mortgage, (2) is written in an amount not less than
the outstanding principal amount of the indebtedness secured by such
Mortgage which is reasonably allocable to such real property or the
maximum limit of coverage made available with respect to the particular
type of property under the National Flood Insurance Act of 1968,
whichever is less, and (3) has a term ending not later than the maturity
of the Indebtedness secured by such Mortgage and (B) confirmation that
the Borrower has received the notice required pursuant to Section
208(e)(3) of Regulation H of the Board; provided, that any of the
foregoing items so requested by the Administrative Agent may be
delivered after the Closing Date subject to compliance with Section
6.10(e).
(v) The Administrative Agent shall have received a copy of all
recorded documents referred to, or listed as exceptions to title, in the
title policy or policies referred to in Section 5.1(k)(iii) and a copy
of all other material documents affecting the Mortgaged Properties.
(l) Solvency Opinion. The Administrative Agent shall have
received a solvency opinion from Corporate Valuation Advisors, Inc.
(m) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of the Guarantee and
Collateral Agreement and the Mortgages.
5.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it on any
date (including, without limitation, its initial extension of credit) is
subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date.
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(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(c) Revolving Credit Facility. In the case of any extension of
credit under the Revolving Credit Facility, after giving effect thereto,
the sum of the Total Revolving Extensions of Credit and the Canadian
Subsidiary Equivalent Outstandings shall not exceed $140,000,000.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
5.3 Conditions to Amendment/Restatement Closing Date. The
effectiveness of the amendment and restatement of the Existing Credit Agreement
pursuant to this Agreement, and the agreement of each Lender to make any
extension of credit requested to be made by it on the Amendment/Restatement
Closing Date, is subject to the satisfaction, prior to or concurrently with the
making of any such extension of credit on the Amendment/Restatement Closing
Date, of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized
officer of the Borrower, (ii) a supplement to the Guarantee and
Collateral Agreement, executed and delivered by a duly authorized
officer of the Borrower and each Subsidiary Guarantor, in form and
substance satisfactory to the Administrative Agent, (iii) a Mortgage in
respect of each Mortgaged Property listed on Schedule 1.1D, executed and
delivered by a duly authorized officer of each party thereto, (iv) for
the account of each relevant Lender, to the extent necessary, Notes
conforming to the requirements hereof and executed and delivered by a
duly authorized officer of the Borrower and (v) an Addendum executed and
delivered by each Lender listed on Schedule 1.1C.
(b) Bumble Bee Acquisition. The Borrower, through Bumble Bee
Acquisition Corporation, a Wholly Owned Subsidiary of the Borrower,
shall have acquired (the "Bumble Bee Acquisition") substantially all of
the assets of Bumble Bee and its Subsidiaries for a purchase price of
not more than $163,000,000 (plus or minus any purchase price adjustments
as provided in the Bumble Bee Purchase Agreement), on the terms and
conditions set forth in the Bumble Bee Purchase Agreement. The Borrower
shall have at least $36,600,000 of excess cash-on-hand available to
finance a portion of the purchase price for the Bumble Bee Acquisition.
Not more than $133,400,000 of Indebtedness shall have been incurred by
the Borrower and its Subsidiaries to finance the Bumble Bee Acquisition
and the payment of related fees and expenses. None of the material
terms and conditions of the Bumble Bee Purchase Agreement shall have
been amended or waived without the consent of the Required Lenders. No
Indebtedness (including trade payables owing to affiliates), other than
Assumed
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Liabilities (as defined in the Bumble Bee Purchase Agreement), or Liens,
other than Permitted Encumbrances (as defined in the Bumble Bee Purchase
Agreement), shall be assumed in connection with the Bumble Bee
Acquisition, and the existing creditors of Bumble Bee and its
Subsidiaries shall have expressly released any such Indebtedness or
Liens on terms satisfactory to the Administrative Agent. All material
orders of the bankruptcy court relating to Bumble Bee and the Bumble Bee
Acquisition shall be satisfactory to the Administrative Agent. All
governmental and third party approvals (including landlords' and other
consents) necessary in connection with the Bumble Bee Acquisition, the
financing thereof contemplated hereby and the continuing operations of
Bumble Bee and its Subsidiaries shall have been obtained and be in full
force and effect, and all applicable waiting periods shall have expired
without any action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose adverse conditions on
the Bumble Bee Acquisition or the financing thereof.
(c) Bumble Bee Pro Forma Financial Statements; Financial
Statements. The Lenders shall have received (i) the Bumble Bee Pro
Forma Financial Statements and (ii) unaudited interim consolidated
financial statements of Bumble Bee and its Subsidiaries for each fiscal
month and quarterly period ended subsequent to the last day of Bumble
Bee's 1996 fiscal year as to which such financial statements are
available.
(d) Lien Searches. The Administrative Agent shall have received
the results of a recent lien search in each of the jurisdictions where
assets of Bumble Bee and its Subsidiaries are located, and such search
shall reveal no liens on any of the assets of Bumble Bee or its
Subsidiaries except for liens permitted by Section 7.3.
(e) Environmental Audit. The Administrative Agent shall have
received an environmental audit with respect to the real properties of
Bumble Bee and its Subsidiaries located in California and Puerto Rico.
(f) Expenses. The Administrative Agent shall have received
satisfactory evidence that the fees and expenses to be incurred in
connection with the Bumble Bee Acquisition and the financing thereof
shall not exceed $7,000,000.
(g) Closing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the
Borrower and each former Subsidiary of Bumble Bee that is a Loan Party,
dated the Closing Date, substantially in the form of Exhibit C, with
appropriate insertions and attachments.
(h) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions:
(i) the legal opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to
the Borrower and its Subsidiaries, substantially in the form of
Exhibit F (revised as appropriate to
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reflect the transactions contemplated hereby in connection with
the Bumble Bee Acquisition); and
(ii) the legal opinion of local counsel in each of
California and Puerto Rico.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(i) Pledged Stock; Stock Powers. The Administrative Agent shall
have received the certificates representing the shares of Capital Stock
pledged by Bumble Bee or any of its Subsidiaries pursuant to the
Guarantee and Collateral Agreement, together with an undated stock power
for each such certificate executed in blank by a duly authorized officer
of the pledgor thereof.
(j) Filings, Registrations and Recordings. Each document
(including, without limitation, any Uniform Commercial Code financing
statement) required by the Security Documents or under law or reasonably
requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent, for
the benefit of the Lenders, a perfected Lien on the Collateral granted
by Bumble Bee or any of its Subsidiaries, prior and superior in right to
any other Person (other than with respect to Liens expressly permitted
by Section 7.3), shall be in proper form for filing, registration or
recordation.
(k) Mortgages. The Administrative Agent shall have received a
Mortgage with respect to each Mortgaged Property listed on Schedule
1.1D, executed and delivered by a duly authorized officer of each party
thereto, together with documents of the type delivered in respect of the
Mortgaged Properties listed on Schedule 1.1B pursuant to Section 5.1(k).
(l) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of the Guarantee and
Collateral Agreement and the relevant Mortgages, after giving effect to
the Bumble Bee Acquisition.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving Credit
Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or the Administrative Agent
hereunder, the Borrower shall and shall cause each of its Subsidiaries to:
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6.1 Financial Statements. Furnish to the Administrative Agent
(with sufficient copies for each Lender, which shall in turn be promptly
distributed by the Administrative Agent to the Lenders):
(a) as soon as available, but in any event within 95 days after
the end of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows for such year,
setting forth in each case in comparative form the figures for the
previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of
the audit, by independent certified public accountants of nationally
recognized standing;
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and
of cash flows for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments); and
(c) as soon as available, but in any event not later than 30
days after the end of each month occurring during each fiscal year of
the Borrower (other than the third, sixth, ninth and twelfth such
month), the unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such month and the related unaudited
consolidated statements of income and of cash flows for such month and
the portion of the fiscal year through the end of such month, setting
forth in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein); provided, that financial statements delivered pursuant
to paragraphs (b) and (c) above shall not be required to contain footnote
disclosure.
6.2 Certificates; Other Information. Furnish to the
Administrative Agent (with sufficient copies for each Lender, which shall in
turn be promptly distributed by the Administrative Agent to the Lenders) or, in
the case of clause (f), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent
certified public accountants reporting on such
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financial statements stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of Default,
except as specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer
stating that, to the best of such Responsible Officer's knowledge, each
Loan Party during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained
in this Agreement and the other Loan Documents to which it is a party to
be observed, performed or satisfied by it, and that such Responsible
Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and (ii) in the case of
quarterly or annual financial statements, (x) a Compliance Certificate
containing all information necessary for determining compliance by the
Borrower and its Subsidiaries with the provisions of this Agreement
referred to therein as of the last day of the relevant fiscal quarter or
fiscal year and (y) to the extent not previously disclosed to the
Administrative Agent, a listing of any state or province within the
United States or Canada where any Loan Party keeps inventory or
equipment and of any Intellectual Property arising under the laws of the
United States or Canada (or any jurisdiction therein) acquired by any
Loan Party since the date of the most recent list delivered pursuant to
this clause (y) (or, in the case of the first such list so delivered,
since the Closing Date);
(c) as soon as available, and in any event no later than 45 days
after the end of each fiscal year of the Borrower, a detailed
consolidated budget for the following fiscal year (including a projected
consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of the following fiscal year, and the related consolidated
statements of projected cash flow, projected changes in financial
position and projected income), and, as soon as available, significant
revisions, if any, of such budget and projections with respect to such
fiscal year (collectively, the "Projections"), which Projections shall
in each case be accompanied by a certificate of a Responsible Officer
stating that such Projections are based upon good faith estimates and
assumptions believed by management of the Borrower to be reasonable at
the time made, it being recognized by the Lenders that such financial
information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such
financial information may differ from the projected results set forth
therein by a material amount;
(d) within 45 days after the end of each fiscal quarter of the
Borrower, a narrative discussion and analysis of the financial condition
and results of operations of the Borrower and its Subsidiaries for such
fiscal quarter and for the period from the beginning of the then current
fiscal year to the end of such fiscal quarter, as compared to the
portion of the Projections covering such periods and to the comparable
periods of the previous year;
(e) within five days after the same are sent, copies of all
financial statements and reports which the Borrower sends to the holders
of any class of its debt securities or public equity securities and
within five days after the same are filed, copies of all financial
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statements and reports which the Borrower may make to, or file with, the
Securities and Exchange Commission or any successor or analogous
Governmental Authority; and
(f) promptly, such additional financial and other information as
any Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all
its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be.
6.4 Conduct of Business and Maintenance of Existence, etc. (a)
(i) Continue to engage in business of the same general type as now conducted by
it, (ii) preserve, renew and keep in full force and effect its corporate
existence and (iii) take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business, except, in each case, as otherwise permitted by Section 7.4 and
except, in the case of clause (iii) above, to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect; and (b)
comply with all Contractual Obligations and Requirements of Law except to the
extent that failure to comply therewith could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted and (b) maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general area by companies engaged in the same or a similar
business.
6.6 Inspection of Property; Books and Records; Discussions. (a)
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities and
(b) upon reasonable prior notice and at any reasonable time, permit
representatives of the Administrative Agent or any Lender to visit and inspect
any of its properties and examine and, if reasonably requested, make copies of
its contracts, books and records and to discuss the business, operations,
properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants; provided that the
Administrative Agent or such Lender shall notify the Borrower prior to any
contact with such accountants and give the Borrower the opportunity to
participate in such discussions.
6.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
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(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority and which has a reasonable likelihood of being adversely
determined, which in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any
of its Subsidiaries in which the amount involved is $10,000,000 or more
and not covered by insurance or in which injunctive or similar relief is
sought;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, the creation of any
Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action by
the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event which has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary
proposes to take with respect thereto.
6.8 Environmental Laws. (a) Except as could not reasonably be
expected to have a Material Adverse Effect, comply with, and ensure compliance
by all tenants and subtenants, if any, with, all applicable Environmental Laws,
and obtain and comply with and maintain, and ensure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws.
6.9 Interest Rate Protection. In the case of the Borrower, (a)
within 90 days after the Closing Date, enter into Interest Rate Protection
Agreements to the extent necessary to provide that at least 50% of the
aggregate principal amount of the Senior Subordinated Notes and the Term Loans
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outstanding on the Closing Date is subject to either a fixed interest rate or
interest rate protection for a period of not less than one year and (b) within
90 days after the Amendment/Restatement Closing Date, enter into additional
Interest Rate Protection Agreements to the extent necessary to provide that at
least 50% of the aggregate principal amount of the Senior Subordinated Notes
and the Term Loans outstanding on the Amendment/Restatement Closing Date is
subject to either a fixed interest rate or interest rate protection, with any
additional Interest Rate Protection Agreements required by this clause (b)
having a term of not less than one year (provided, that, in each case, in the
event that the term thereof shall be less than two years, such Interest Rate
Protection Agreements shall be extended or replaced no later than the
expiration of such term, with the term of such extended or replacement Interest
Rate Protection Agreements ending no earlier than the second anniversary of the
date on which the original Interest Rate Protection Agreements were entered
into), which Interest Rate Protection Agreements shall in each case have terms
and conditions reasonably satisfactory to the Administrative Agent.
6.10 Additional Collateral, etc. (a) With respect to any
Property acquired after the Closing Date by the Borrower or any of its
Subsidiaries (other than (x) any Property described in paragraph (b), (c) or
(d) below, (y) any Property subject to a Lien expressly permitted by Section
7.3(g) and (z) Receivables Facility Assets) as to which the Administrative
Agent, for the benefit of the Lenders, does not have a perfected Lien, promptly
(i) execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement or such other documents as the
Administrative Agent deems necessary or advisable in order to grant to the
Administrative Agent, for the benefit of the Lenders, a security interest in
such Property and (ii) take all actions necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in such Property, including without limitation, the
filing of Uniform Commercial Code financing statements in such jurisdictions as
may be required by the Guarantee and Collateral Agreement or by law or as may
be reasonably requested by the Administrative Agent.
(b) With respect to any fee interest in any real estate which,
together with any related parcel of real estate not yet subject to a Mortgage,
has a value (determined inclusive of any improvements thereof) of at least
$5,000,000 acquired after the Closing Date by the Borrower or any of its
Subsidiaries (other than any such real estate subject to a Lien expressly
permitted by Section 7.3(g)), promptly (i) execute and deliver a first priority
mortgage or deed of trust (subject only to Liens permitted by Section 7.3) in
favor of the Administrative Agent, for the benefit of the Lenders, covering
such real estate, in form and substance reasonably satisfactory to the
Administrative Agent, (ii) if reasonably requested by the Administrative Agent,
provide the Lenders with (x) title and extended coverage insurance covering
such real estate in an amount at least equal to the purchase price of such real
estate (or such other amount as shall be reasonably specified by the
Administrative Agent) as well as a current ALTA survey thereof, together with a
surveyor's certificate and (y) any consents or estoppels reasonably deemed
necessary or advisable by the Administrative Agent in connection with such
mortgage or deed of trust, each of the foregoing in form and substance
reasonably satisfactory to the Administrative Agent and (iii) if reasonably
requested by the Administrative Agent, deliver to the Administrative Agent
legal opinions relating to the matters
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described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
(c) With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary or any Receivables SPV) created or acquired after the
Closing Date (which, for the purposes of this paragraph (c), shall include any
existing Subsidiary that ceases to be an Excluded Foreign Subsidiary) by the
Borrower or any of its Subsidiaries, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Administrative Agent deems necessary or advisable in order to grant to
the Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in the Capital Stock of such new Subsidiary which is
owned by the Borrower or any of its Subsidiaries, (ii) deliver to the
Administrative Agent the certificates representing such Capital Stock, together
with undated stock powers, in blank, executed and delivered by a duly
authorized officer of the Borrower or such Subsidiary, as the case may be,
(iii) cause such new Subsidiary (A) to become a party to the Guarantee and
Collateral Agreement and (B) to take such actions necessary or advisable to
grant to the Administrative Agent for the benefit of the Lenders a perfected
first priority security interest in the Collateral described in the Guarantee
and Collateral Agreement with respect to such new Subsidiary, including,
without limitation, the filing of Uniform Commercial Code financing statements
in such jurisdictions as may be required by the Guarantee and Collateral
Agreement or by law or as may be reasonably requested by the Administrative
Agent, and (iv) if reasonably requested by the Administrative Agent, deliver to
the Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
(d) With respect to any new Excluded Foreign Subsidiary created
or acquired after the Closing Date by the Borrower or any of its Subsidiaries,
promptly (i) execute and deliver to the Administrative Agent such amendments to
the Guarantee and Collateral Agreement as the Administrative Agent deems
necessary or advisable in order to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest in the
Capital Stock of such new Subsidiary which is owned by the Borrower or any of
its Subsidiaries (provided that in no event shall more than 65% of the total
outstanding Capital Stock of any such new Subsidiary be required to be so
pledged), (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be and (iii) if reasonably requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(e) Within 60 days after the Closing Date, deliver any items
requested by the Administrative Agent pursuant to Sections 5.1(k)(ii) and
5.1(k)(iv) and not delivered on the Closing Date, together with, in the case of
surveys, such endorsements to the title insurance policies referred to in
Section 5.1(k)(iii) relating to the matters disclosed in such surveys as may be
reasonably requested by the Administrative Agent. In the case of the Borrower,
within 30 days after the Closing
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Date, acquire that portion of the capital stock of Heritage not acquired by the
Borrower on the Closing Date.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving Credit
Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or the Administrative Agent
hereunder, the Borrower shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as at the last day of any Test Period ending with any fiscal
quarter set forth below to exceed the ratio set forth below opposite such
fiscal quarter:
Fiscal Quarter Ending Consolidated Leverage Ratio
--------------------- ---------------------------
3/31/97-12/31/97 6.50 to 1.0
3/31/98-6/30/98 6.40 to 1.0
9/30/98 6.20 to 1.0
12/31/98 6.10 to 1.0
3/31/99 5.95 to 1.0
6/30/99 5.90 to 1.0
9/30/99 5.80 to 1.0
12/31/99 5.70 to 1.0
3/31/00 5.60 to 1.0
6/30/00 5.50 to 1.0
9/30/00 5.40 to 1.0
12/31/00 5.30 to 1.0
3/31/01-6/30/01 5.00 to 1.0
9/30/01-12/31/01 4.90 to 1.0
3/31/02-6/30/02 4.60 to 1.0
9/30/02-12/31/02 4.40 to 1.0
3/31/03 4.30 to 1.0
6/30/03 4.20 to 1.0
9/30/03 4.10 to 1.0
12/31/03 and thereafter 4.00 to 1.0
(b) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any Test Period ending with any fiscal
quarter set forth below to be less than the ratio set forth below opposite such
fiscal quarter:
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Fiscal Quarter Consolidated Interest
Ending Coverage Ratio
-------------- ---------------------
3/31/97-3/31/98 1.50 to 1.0
6/30/98-12/31/98 1.55 to 1.0
3/31/99-12/31/99 1.60 to 1.0
3/31/00-6/30/00 1.70 to 1.0
9/30/00-12/31/00 1.75 to 1.0
3/31/01-6/30/01 1.80 to 1.0
9/30/01-12/31/01 1.90 to 1.0
3/31/02-6/30/02 2.00 to 1.0
9/30/02-12/31/02 2.10 to 1.0
3/31/03-9/30/03 2.20 to 1.0
12/31/03 and 2.30 to 1.0
thereafter
(c) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any Test Period ending with any
fiscal quarter set forth below to be less than the ratio set forth below
opposite such fiscal quarter:
Fiscal Quarter Consolidated Fixed
Ending Charge Coverage Ratio
--------------------- ----------------------
3/31/97-12/31/00 1.00 to 1.0
3/31/01-12/31/03 1.05 to 1.0
3/31/04 and thereafter 1.10 to 1.0
Notwithstanding anything to the contrary herein, (i) for the purposes of
determining the Consolidated Leverage Ratio, the Consolidated Interest Coverage
Ratio and the Consolidated Fixed Charge Coverage Ratio pursuant to this Section
7.1 or pursuant to the Pricing Grid for the Test Periods ending March 31, 1997,
June 30, 1997, September 30, 1997, December 31, 1997 and March 31, 1998, (i)
Consolidated EBITDA for the relevant Test Period shall be deemed to equal
actual Consolidated EBITDA for such Test Period plus $151,500,000,
$102,600,000, $148,800,000, $97,700,000 and $48,000,000, respectively; (ii)
Consolidated Interest Expense for the relevant Test Period shall be deemed to
equal actual Consolidated Interest Expense for such Test Period multiplied by
▇, ▇, ▇, ▇ ▇▇▇ ▇/▇, ▇▇▇▇▇▇▇▇▇▇▇▇, (▇▇▇) Consolidated Tax Expense for the
relevant Test Period shall be deemed to equal actual Consolidated Tax Expense
for such Test Period multiplied by 4, 2, 4, 2 and 4/3, respectively, (iv)
scheduled payments payable during the relevant Test Period on account of
principal of Indebtedness shall be appropriately annualized (e.g., the
aggregate amount of the principal installments of the Term Loans due on March
31, 1997 shall be multiplied by 2 for the purposes of determining the
Consolidated Fixed Charge Coverage Ratio for the Test Periods ending March 31,
1997 and June 30, 1997), and (v) Capital Expenditures for the relevant Test
Period shall
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be deemed to equal actual Capital Expenditures for such Test Period plus
$11,000,000, $7,400,000, $15,300,000, $10,400,000 and $4,000,000, respectively.
7.2 Limitation on Indebtedness. Create, incur, assume or suffer
to exist (in each case, to "Incur") any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
(b) Indebtedness of the Borrower to any Subsidiary and of any
Wholly Owned Subsidiary Guarantor to the Borrower or any other
Subsidiary;
(c) purchase money Indebtedness and Indebtedness secured by
Liens permitted by Section 7.3(g), provided, that the aggregate amount
of Indebtedness incurred pursuant to this Section 7.2(c) shall not
exceed $25,000,000 at any one time outstanding;
(d) Capital Lease Obligations, provided, that the aggregate
principal amount of Capital Lease Obligations incurred pursuant to this
Section 7.2(d) in any fiscal year of the Borrower, when added to the
aggregate amount of other Capital Expenditures made during such fiscal
year pursuant to Section 7.7(a), shall not exceed the amount permitted
to be expended during such fiscal year pursuant to Section 7.7(a);
(e) Indebtedness outstanding on the Closing Date and listed on
Schedule 7.2(e) and any refinancings, refundings, renewals or extensions
thereof (without any increase in the principal amount thereof);
(f) guarantees made in the ordinary course of business by the
Borrower or any of its Subsidiaries of obligations of any Wholly Owned
Subsidiary Guarantor;
(g) (i) Indebtedness of the Borrower in respect of the Senior
Subordinated Notes in an aggregate principal amount not to exceed
$400,000,000 and (ii) subordinated Guarantee Obligations of any
Subsidiary Guarantor in respect of such Indebtedness;
(h) Indebtedness of any Canadian Subsidiary incurred for working
capital purposes in the ordinary course of business, provided that (i)
the U.S.$ equivalent (determined in good faith by the Borrower) of the
aggregate outstanding principal amount thereof (the "Canadian Subsidiary
Equivalent Outstandings") shall not exceed $10,000,000 at any one time
and (ii) on the date of any incurrence thereof, after giving effect
thereto, the sum of the Canadian Subsidiary Equivalent Outstandings and
the Total Revolving Extensions of Credit shall not exceed $140,000,000;
(i) Indebtedness of any Receivables SPV pursuant to a
Receivables Facility on terms and conditions reasonably satisfactory to
the Required Lenders;
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(j) Trade Acceptances in an aggregate face amount not to exceed
$10,000,000 at any one time outstanding;
(k) at any time after the Revolving Credit Commitments shall
have been terminated (other than pursuant to Section 8), Indebtedness in
respect of unsecured revolving lines of credit in an aggregate
outstanding principal amount not exceeding $100,000,000 at any one time;
and
(l) additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and all
Subsidiaries) not to exceed $25,000,000 at any one time outstanding.
7.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, provided that adequate reserves
with respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP (or, in the
case of Foreign Subsidiaries, generally accepted accounting principles
in effect from time to time in their respective jurisdictions of
incorporation);
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations,
insurance contracts, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions, covenants, minor
exceptions to title and other similar encumbrances (i) incurred in the
ordinary course of business which, in the aggregate, are not substantial
in amount and which do not in any case materially detract from the value
of the property subject thereto or materially interfere with the
ordinary conduct of the business of the Borrower or any of its
Subsidiaries or (ii) which are set forth in the "marked up" commitments
for title insurance delivered to the Administrative Agent on the Closing
Date;
(f) Liens in existence on the Amendment/Restatement Closing Date
listed on Schedule 7.3(f), securing Indebtedness permitted by Section
7.2(e), provided that no such
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Lien is spread to cover any additional property after the Closing Date
and that the amount of Indebtedness secured thereby is not increased;
(g) (i) Liens securing Indebtedness of the Borrower or any of
its Subsidiaries incurred to finance the acquisition of fixed or capital
assets (provided that (x) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets, (y)
such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (z) the amount of
Indebtedness secured thereby is not increased) and (ii) Liens existing
on any property or asset at the time of acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any
Person that becomes a Subsidiary after the Closing Date at the time such
Person becomes a Subsidiary (provided that (x) such Lien is not created
in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as the case may be, (y) such Lien shall
not apply to any other property or assets of the Borrower or any of its
Subsidiaries and (z) such Lien shall secure only those obligations which
it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be);
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered
into by the Borrower or any of its Subsidiaries in the ordinary course
of its business and covering only the assets so leased;
(j) any obligations or duties affecting any of the Property of
the Borrower or its Subsidiaries to any municipality or public authority
with respect to any franchise, grant, license or permit which do not
materially impair the use of such Property for the purposes for which it
is held;
(k) with respect to Property located in Canada, reservations,
limitations, provisos and conditions in any original grant from the
Crown or any freehold lessor of any Property of the Borrower or any of
its Subsidiaries;
(l) Liens encumbering inventory and accounts receivable of a
Canadian Subsidiary securing Indebtedness of such Canadian Subsidiary
incurred pursuant to Section 7.2(h);
(m) Liens imposed by operation of law with respect to any
judgments or orders not constituting an Event of Default;
(n) Liens on any Receivables Facility Assets to secure the
repayment of any Indebtedness incurred under any Receivables Facility
permitted by Section 7.2(i); and
(o) Liens not otherwise permitted by this Section 7.3 so long as
neither (i) the aggregate outstanding principal amount of the
obligations secured thereby nor (ii) the
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aggregate fair market value (determined as of the date such Lien is
incurred) of the assets subject thereto exceeds (as to the Borrower and
all Subsidiaries) $5,000,000 at any one time.
7.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its property, business or assets, or make any material change in its present
method of conducting business, except:
(a) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any Wholly Owned
Subsidiary Guarantor (provided that the Wholly Owned Subsidiary
Guarantor shall be the continuing or surviving corporation); and
(b) any Subsidiary of the Borrower may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any Wholly Owned Subsidiary
Guarantor.
7.5 Limitation on Sale of Assets. Dispose of any of its
property, business or assets (including, without limitation, receivables and
leasehold interests), whether now owned or hereafter acquired, or, in the case
of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock
to any Person, except:
(a) the Disposition of obsolete or worn out property in the
ordinary course of business;
(b) the Disposition of inventory in the ordinary course of
business;
(c) Dispositions permitted by Section 7.4(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to
the Borrower or any Wholly Owned Subsidiary Guarantor;
(e) transfers resulting from any casualty or condemnation of
property or assets;
(f) licenses or sublicenses of intellectual property and general
intangibles and licenses, leases or subleases of other property in the
ordinary course of business and which do not materially interfere with
the business of the Borrower and its Subsidiaries;
(g) any consignment arrangements or similar arrangements for the
sale of assets in the ordinary course of business;
(h) (i) the sale or discount of overdue accounts receivable
arising in the ordinary course of business, but only in connection with
the compromise or collection thereof and (ii)
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the Disposition at any time or from time to time for fair market value
of Receivables Facility Assets; and
(i) the Disposition of other assets having a fair market value
not to exceed $25,000,000 in the aggregate for any fiscal year of the
Borrower, provided, that (i) except in the case of an Asset Swap, at
least 75% of the consideration received by the Borrower and its
Subsidiaries in connection with each such Disposition shall be in the
form of cash or Cash Equivalents and (ii) the aggregate fair market
value of Property Disposed of in connection with Asset Swaps during any
fiscal year of the Borrower, when added to the aggregate Net Cash
Proceeds of Asset Sales excluded from the requirements of Section
2.11(b) during such fiscal year pursuant to a Reinvestment Notice, shall
not exceed $20,000,000.
7.6 Limitation on Dividends. Declare or pay any dividend (other
than dividends payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Borrower or any Subsidiary or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Borrower or any Subsidiary (collectively,
"Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower
or any Wholly Owned Subsidiary Guarantor;
(b) Permitted Issuances may be made; and
(c) so long as no Default or Event of Default shall have
occurred and be continuing, the Borrower may (i) purchase the Borrower's
common stock or common stock options from present or former officers or
employees of the Borrower or any Subsidiary upon the death, disability
or termination of employment of such officer or employee, provided, that
the aggregate amount of payments under this clause (i) during the term
of this Agreement shall not exceed $15,000,000 net of any proceeds
received by the Borrower in connection with resales of any common stock
or common stock options so purchased and (ii) pay management fees to
▇▇▇▇▇ Muse and its Affiliates expressly permitted by Section 7.10.
7.7 Limitation on Capital Expenditures. Make or commit to make
(by way of the acquisition of securities of a Person or otherwise) any Capital
Expenditure, except (a) Capital Expenditures of the Borrower and its
Subsidiaries in the ordinary course of business not exceeding $38,000,000 in
any fiscal year of the Borrower ending on or prior to December 31, 1998 or
$43,000,000 in any subsequent fiscal year; provided, that (i) up to $15,000,000
of any such amount referred to above, if not so expended in the fiscal year for
which it is permitted, may be carried over for expenditure in the next
succeeding fiscal year and (ii) Capital Expenditures made pursuant to this
clause (a) during any fiscal year shall be deemed made, first, in respect of
amounts carried over from
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the prior fiscal year pursuant to subclause (i) above and, second, in respect
of amounts permitted for such fiscal year as provided above and (b) Capital
Expenditures made pursuant to an Asset Swap or with the proceeds of any
Reinvestment Deferred Amount, any Unapplied Excess Cash Flow or any Contributed
Equity.
7.8 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit (by way of guaranty or otherwise) or capital
contribution to, or purchase any stock, bonds, notes, debentures or other
securities of or any assets constituting a business unit of, or make any other
investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to employees of the Borrower or its
Subsidiaries in the ordinary course of business (including, without
limitation, for travel, entertainment and relocation expenses) in an
aggregate amount for the Borrower and its Subsidiaries not to exceed
$5,000,000 at any one time outstanding;
(e) the Acquisitions and the Bumble Bee Acquisition;
(f) investments by the Borrower or any of its Subsidiaries in
the Borrower or any Wholly Owned Subsidiary Guarantor;
(g) loans, advances or investments in existence on the Closing
Date and listed on Schedule 7.8(g), and extensions, renewals,
modifications or restatements or replacements thereof, provided that no
such extension, renewal, modification or restatement shall (i) increase
the amount of the original loan, advance or investment, or (ii)
adversely affect the interests of the Lenders with respect to such
original loan, advance or investment or the interests of the Lenders
under this Agreement or any other Loan Document in any respect;
(h) investments made by the Borrower or any of its Subsidiaries
with the proceeds of any Reinvestment Deferred Amount or any Unapplied
Excess Cash Flow;
(i) investments made by the Borrower or any of its Subsidiaries
pursuant to an Asset Swap or with the proceeds of any Contributed
Equity, so long as, after giving pro forma effect thereto (as certified
to the Administrative Agent by a Responsible Officer prior to
consummation of such investment), no Default or Event of Default shall
have occurred and be continuing (including, without limitation, pursuant
to Section 7.1); and
(j) Investments constituting Capital Expenditures permitted by
Section 7.7;
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(k) promissory notes and other similar non-cash consideration
received by the Borrower and its Subsidiaries in connection with the
Dispositions permitted by Section 7.5;
(l) Investments consisting of Interest Rate Protection
Agreements and commodity and currency hedging arrangements entered into
in the ordinary course of business of the Borrower or any of its
Subsidiaries and not for purposes of speculation;
(m) Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent obligations of,
and other disputes with, customers and suppliers arising in the ordinary
course of business;
(n) Investments on customary terms required to create and
capitalize a Receivables SPV; and
(o) in addition to investments otherwise expressly permitted by
this Section 7.8, investments by the Borrower or any of its Subsidiaries
in an aggregate amount (valued at cost) not to exceed $30,000,000 at any
one time outstanding, so long as, after giving pro forma effect thereto
(as certified to the Administrative Agent by a Responsible Officer prior
to consummation of such investment, in the case of any single investment
in excess of $15,000,000), no Default or Event of Default shall have
occurred and be continuing (including, without limitation, pursuant to
Section 7.1).
7.9 Limitation on Optional Payments and Modifications of Debt
Instruments, etc. (a) Make or offer to make any optional payment, prepayment,
repurchase or redemption of or otherwise defease or segregate funds with
respect to the Senior Subordinated Notes, (b) amend, modify, waive or otherwise
change, or consent or agree to any amendment, modification, waiver or other
change to, any of the terms of the Senior Subordinated Notes or the Senior
Subordinated Note Indenture (other than any such amendment, modification,
waiver or other change which (i) would extend the maturity or reduce the amount
of any payment of principal thereof or which would reduce the rate or extend
the date for payment of interest thereon and (ii) does not involve the payment
of a consent fee) or (c) designate any Indebtedness as "Designated Senior
Indebtedness" for the purposes of the Senior Subordinated Note Indenture.
7.10 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property or the rendering of any service, with any Affiliate (other
than the Borrower or any Wholly Owned Subsidiary Guarantor) unless such
transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of business of the Borrower or such Subsidiary, as the case may
be, and (c) upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate. Notwithstanding
the foregoing, the Borrower and its Subsidiaries may pay to ▇▇▇▇▇ Muse and its
Affiliates fees and expenses, as set forth on Schedule 7.10, pursuant to a
monitoring and oversight
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agreement and a financial advisory agreement, in each case approved by the
board of directors of the Borrower.
7.11 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Borrower or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or such
Subsidiary.
7.12 Limitation on Changes in Fiscal Periods. Permit the fiscal
year of the Borrower to end on a day other than December 31 or change the
Borrower's method of determining fiscal quarters.
7.13 Limitation on Negative Pledge Clauses. Enter into with any
Person, or suffer to exist, any agreement, other than (a) this Agreement and
the other Loan Documents, (b) the Senior Subordinated Note Indenture and (c) in
the case of clause (i) below only, any agreements governing any purchase money
Liens or Capital Lease Obligations otherwise permitted hereby (in which case,
any prohibition or limitation shall only be effective against the assets
financed thereby), which prohibits or limits the ability of the Borrower or any
of its Subsidiaries to (i) create, incur, assume or suffer to exist any Lien
upon any of its Property or revenues, whether now owned or hereafter acquired,
or (ii) pay dividends or make other distributions, or pay any Indebtedness
owed, to the Borrower or any of its Subsidiaries.
7.14 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
the Borrower and its Subsidiaries are engaged on the Amendment/Restatement
Closing Date or which are reasonably related thereto.
7.15 Limitation on Amendments to Acquisition Documents. (a)
Amend, supplement or otherwise modify (pursuant to a waiver or otherwise) the
terms and conditions of the indemnities furnished to the Borrower or any of its
Subsidiaries pursuant to the Acquisition Agreement, the Bumble Bee Purchase
Agreement or any other document delivered by the relevant sellers or any of
their affiliates in connection therewith such that after giving effect thereto
such indemnities shall be materially less favorable to the interests of the
Loan Parties or the Lenders with respect thereto or (b) otherwise amend,
supplement or otherwise modify the terms and conditions of the Acquisition
Agreement, the Bumble Bee Purchase Agreement or any such other documents except
to the extent that any such amendment, supplement or modification could not
reasonably be expected to have a Material Adverse Effect.
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SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof;
or the Borrower shall fail to pay any interest on any Loan or
Reimbursement Obligation, or any other amount payable hereunder or under
any other Loan Document, within five days after any such interest or
other amount becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or which is contained in
any certificate, document or financial or other statement furnished by
it at any time under or in connection with this Agreement or any such
other Loan Document shall prove to have been inaccurate in any material
respect on or as of the date made or deemed made; or
(c) (i) any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of Section
6.4(a) (with respect to the Borrower only), Section 6.7(a) or Section 7
of this Agreement or Section 5.5 or 5.7(b) of the Guarantee and
Collateral Agreement or (ii) an "Event of Default" under and as defined
in any Mortgage shall have occurred and be continuing; or
(d) any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through
(c) of this Section), and such default shall continue unremedied for a
period of 30 days after notice from the Administrative Agent or the
Required Lenders; or
(e) The Borrower or any of its Subsidiaries shall (i) default in
making any payment of any principal of or interest on any Indebtedness
(including, without limitation, any Guarantee Obligation, but excluding
the Loans, Reimbursement Obligations and Guarantee Obligations pursuant
to the Guarantee and Collateral Agreement) beyond the period of grace,
if any, provided in the instrument or agreement under which such
Indebtedness was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition
is to cause, or to permit the holder or beneficiary of such Indebtedness
(or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or (in the case of any such
Indebtedness constituting a Guarantee Obligation) to become payable;
provided, that a default, event or condition described in clause (i) or
(ii) of this paragraph (e) shall not at any time constitute an Event of
Default under this Agreement unless, at such time, one or more defaults,
events or conditions (without duplication as to the same item of
Indebtedness) of the type described in clauses (i) and (ii) of this
paragraph (e)
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shall have occurred and be continuing with respect to Indebtedness the
outstanding principal amount of which exceeds in the aggregate
$10,000,000; or
(f) (i) The Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it
a bankrupt or insolvent, or seeking reorganization, winding-up,
liquidation, dissolution, composition or other relief with respect to it
or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or
any substantial part of its assets, or the Borrower or any of its
Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Borrower or any
of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Borrower or any of its Subsidiaries
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order
for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof;
or (iv) the Borrower or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) the Borrower or any of its Subsidiaries shall generally
not, or shall be unable to, or shall admit in writing its inability to,
pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed (or a trustee
shall be appointed) to administer, or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or
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(h) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance as to which the
relevant insurance company has acknowledged coverage) of $10,000,000 or
more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or
(i) Any Loan Document shall, at any time, cease to be in full
force and effect (unless released by the Administrative Agent at the
direction of the Required Lenders or all Lenders (to the extent required
by Section 10.1) or as otherwise permitted under this Agreement or the
other Loan Documents) or shall be declared null and void (and, if such
invalidity is such so as to be amenable to cure without materially
disadvantaging the position of the Administrative Agent and the Lenders
thereunder, the relevant Loan Party shall have failed to cure such
invalidity within 30 days after notice from the Administrative Agent or
such shorter time period as is specified by the Administrative Agent in
such notice and is reasonable in the circumstances), or the validity or
enforceability thereof shall be contested by any Loan Party, or any of
the Liens intended to be created by any Security Document shall cease to
be or shall not be a valid and perfected Lien having the priority
contemplated thereby (and, if such invalidity is such so as to be
amenable to cure without materially disadvantaging the position of the
Administrative Agent and the Lenders as secured parties thereunder, the
relevant Loan Party shall have failed to cure such invalidity within 30
days after notice from the Administrative Agent or such shorter time
period as specified by the Administrative Agent in such notice and is
reasonable in the circumstances); or
(j) (i) The Permitted Investors shall cease to have the power,
directly or indirectly, to vote or direct the voting of securities
having a majority of the ordinary voting power for the election of
directors of the Borrower, provided that the occurrence of the foregoing
event shall not be deemed an Event of Default if (A) at any time prior
to the consummation of an Initial Public Offering, (1) the Permitted
Investors otherwise have the right to designate (and do so designate) a
majority of the board of directors of the Borrower or (2) the Permitted
Investors and their employees, directors and officers (the "HM Group")
own of record and beneficially an amount of common stock of the Borrower
equal to at least 50% of the amount of common stock of the Borrower
(adjusted for stock splits, stock dividends and other similar events on
an equitable basis) owned by the HM Group of record and beneficially as
of the Closing Date and such ownership by the HM Group represents the
largest single block of voting securities of the Borrower held by any
"person" or "group" for purposes of Section 13(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or (B) at any
time after the consummation of an Initial Public Offering, (1) no
"person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), excluding the Permitted Investors, shall become
the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under
the Exchange Act), directly or indirectly, of more than the greater of
(x) 15% of the then outstanding voting stock of the Borrower and (y) the
percentage of the then outstanding voting stock of the Borrower owned by
the Permitted Investors and (2) the board
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of directors of the Borrower shall consist of a majority of Continuing
Directors; or (ii) a Specified Change of Control shall occur; or
(k) The Senior Subordinated Notes or the guarantees thereof
shall cease, for any reason, to be validly subordinated to the
Obligations or the obligations of the Subsidiary Guarantors under the
Guarantee and Collateral Agreement, as the case may be, as provided in
the Senior Subordinated Note Indenture, or any Loan Party, any Affiliate
of any Loan Party, the trustee in respect of the Senior Subordinated
Notes or the holders of at least 25% in aggregate principal amount of
the Senior Subordinated Notes shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Revolving Credit Commitments shall immediately terminate and
the Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder) shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions
may be taken: (i) with the consent of the Majority Revolving Credit Facility
Lenders, the Administrative Agent may, or upon the request of the Majority
Revolving Credit Facility Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Revolving Credit Commitments to be terminated
forthwith, whereupon the Revolving Credit Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of
an acceleration pursuant to this paragraph, the Borrower shall at such time
deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit. Amounts held in such cash collateral account shall be applied by
the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents.
After all such Letters of Credit shall have expired or been fully drawn upon,
all Reimbursement Obligations shall have been satisfied and all other
obligations of the Borrower hereunder and under the other Loan Documents shall
have been paid in full, the balance, if any, in such cash collateral account
shall be returned to the Borrower (or such other Person as may be lawfully
entitled thereto). Except as otherwise expressly provided above in this
Section 8, the Borrower waives presentment, demand, protest or other notice of
any kind.
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SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Agents under or in connection with, this Agreement
or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party a party thereto to perform its
obligations hereunder or thereunder. The Agents shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.
9.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by
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the Administrative Agent. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless a written notice
of assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense (other than any liability
described in the proviso to the first sentence of Section 9.7) which may be
incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all Lenders), and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders); provided that unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and
their affiliates and made its own decision to make its Loans hereunder and
enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent hereunder, the Administrative Agent
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shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan Party or
any affiliate of a Loan Party which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent
in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Revolving Credit Percentages, Tranche A Term Loan Percentages
and Tranche B Term Loan Percentages in effect on the date on which
indemnification is sought under this Section 9.7 (or, if indemnification is
sought after the date upon which the Revolving Credit Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Percentages immediately prior to such date), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Loans, the Revolving Credit Commitments,
this Agreement, any of the other Loan Documents or any documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by such Agent under or in connection
with any of the foregoing; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements which
are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from such Agent's gross negligence or willful
misconduct. The agreements in this Section 9.7 shall survive the payment of
the Loans and all other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Loan Party as though such Agent were not an Agent.
With respect to its Loans made or renewed by it and with respect to any Letter
of Credit issued or participated in by it, each Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not an Agent, and the terms
"Lender" and "Lenders" shall include each Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent
shall be approved by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on
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the part of such former Administrative Agent or any of the parties to this
Agreement or any holders of the Loans. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.
9.10 Authorization to Release Liens. The Administrative Agent
is hereby irrevocably authorized by each of the Lenders to release any Lien
covering any Property of the Borrower or any of its Subsidiaries that is the
subject of a Disposition which is permitted by this Agreement or which has been
consented to in accordance with Section 10.1.
9.11 Documentation Agent and Syndication Agent. Neither the
Documentation Agent nor the Syndication Agent shall have any duties or
responsibilities hereunder in its capacity as such.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Documents may,
or, with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party party to the relevant Loan Document may, from time to time,
(a) enter into written amendments, supplements or modifications hereto and to
the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders or the Administrative Agent,
as the case may be, may specify in such instrument, any of the requirements of
this Agreement or the other Loan Documents or any Default or Event of Default
and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (i) forgive the principal amount or
extend the final scheduled date of maturity of any Loan, extend the scheduled
date of any amortization payment in respect of any Term Loan, reduce the stated
rate of any interest, fee or letter of credit commission payable hereunder or
extend the scheduled date of any payment thereof, or increase the amount or
extend the expiration date of any Lender's Revolving Credit Commitment, in each
case without the written consent of each Lender directly affected thereby; (ii)
amend, modify or waive any provision of this Section 10.1 or reduce any
percentage specified in the definition of Required Lenders, consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents, release all or substantially
all of the Collateral or release all or substantially all of the Subsidiary
Guarantors from their obligations under the Guarantee and Collateral Agreement,
in each case without the written consent of all Lenders; (iii) amend, modify or
waive any condition precedent to any extension of credit under the Revolving
Credit Facility set forth in Section 5.2 without the written consent of the
Majority Revolving Credit Facility Lenders; (iv) change the allocation of
payments among the Term Loan Facilities specified in Section 2.17(b) or the
allocation of payments between the Term Loan Facilities and the Revolving
Credit Facility pursuant to Section 2.11(d), in each case without the
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written consent of the Majority Facility Lenders in respect of each Facility
adversely affected thereby; (v) reduce the percentage specified in the
definition of Majority Facility Lenders without the written consent of all
Lenders under each affected Facility; (vi) amend, modify or waive any provision
of Section 9 without the written consent of the Administrative Agent; (vii)
amend, modify or waive any provision of Section 2.6 or 2.7 without the written
consent of the Swing Line Lender; or (viii) amend, modify or waive any
provision of Section 3 without the written consent of each affected Issuing
Lender. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding upon the Loan
Parties, the Lenders, the Administrative Agent and all future holders of the
Loans. In the case of any waiver, the Loan Parties, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice,
when received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
The Borrower: International Home Foods, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ Misericordia
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with copies to: Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated
1325 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
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The Administrative Agent: The Chase Manhattan Bank Loan
and Agency Services Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: 212-270-5659
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation,
the reasonable fees and disbursements of counsel to the Administrative Agent,
(b) to pay or reimburse each Lender and the Administrative Agent for all its
reasonable costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including, without limitation, the reasonable fees
and disbursements of counsel (including the allocated fees and expenses of in-
house counsel) to each Lender and of counsel to the Administrative Agent, (c)
to pay, indemnify, and hold harmless each Lender and the Administrative Agent
from and against any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any,
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which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents, and (d) to pay, indemnify and hold
harmless each Lender and the Administrative Agent and their respective
officers, directors, trustees, professional advisors, employees, affiliates,
agents and controlling persons (each, an "indemnitee") from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance
and administration of this Agreement, the other Loan Documents and any such
other documents, including, without limitation, any of the foregoing relating
to the use of proceeds of the Loans or the violation of, noncompliance with or
liability under, any Environmental Law applicable to the operations of the
Borrower any of its Subsidiaries or any of the Properties (all the foregoing in
this clause (d), collectively, the "indemnified liabilities"), provided, that
the Borrower shall have no obligation hereunder to any indemnitee with respect
to indemnified liabilities to the extent such indemnified liabilities are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of such
indemnitee. The agreements in this Section 10.5 shall survive repayment of the
Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent, all future holders of the
Loans and their respective successors and assigns, except that the Borrower may
not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks,
financial institutions or other entities (each, a "Participant") participating
interests in any Loan owing to such Lender, any Revolving Credit Commitment of
such Lender or any other interest of such Lender hereunder and under the other
Loan Documents. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement to
the other parties to this Agreement shall remain unchanged, such Lender shall
remain solely responsible for the performance thereof, such Lender shall remain
the holder of any such Loan for all purposes under this Agreement and the other
Loan Documents, and the Borrower and the Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the other Loan Documents. In
no event shall any Participant under any such participation have any right to
approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest
on, the Loans or any fees payable hereunder, or postpone the date of the final
maturity of the Loans, in each case to the extent subject to such
participation. The Borrower agrees that if amounts outstanding under this
Agreement and the Loans are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum
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extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 10.7(a) as
fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of Sections 2.18, 2.19 and 2.20
with respect to its participation in the Revolving Credit Commitments and the
Loans outstanding from time to time as if it were a Lender; provided that, in
the case of Section 2.19, such Participant shall have complied with the
requirements of said Section and provided, further, that no Participant shall
be entitled to receive any greater amount pursuant to any such Section than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with
applicable law, at any time and from time to time assign to any Lender or any
affiliate thereof or, with the consent of the Borrower and the Administrative
Agent (which, in each case, shall not be unreasonably withheld or delayed), to
an additional bank, financial institution or other entity (an "Assignee") all
or any part of its rights and obligations under this Agreement pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit E, executed by
such Assignee and such Assignor (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Borrower and the Administrative
Agent) and delivered to the Administrative Agent for its acceptance and
recording in the Register; provided that no such assignment to an Assignee
(other than any Lender or any affiliate thereof) shall be in an aggregate
principal amount of less than $5,000,000 (other than in the case of an
assignment of all of a Lender's interests under this Agreement), unless
otherwise agreed by the Borrower and the Administrative Agent. Any such
assignment need not be ratable as among the Facilities. Upon such execution,
delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Revolving Credit Commitment and/or Loans as set forth therein,
and (y) the Assignor thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of an
Assignor's rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto). Notwithstanding any provision of this
Section 10.6, the consent of the Borrower shall not be required, and, unless
requested by the Assignee and/or the Assignor, new Notes shall not be required
to be executed and delivered by the Borrower, for any assignment which occurs
at any time when any of the events described in Section 8(f) shall have
occurred and be continuing.
(d) The Administrative Agent shall maintain at its address
referred to in Section 10.2 a copy of each Assignment and Acceptance delivered
to it and a register (the "Register") for the recordation of the names and
addresses of the Lenders and the Revolving Credit Commitments of, and the
principal amount of the Loans owing to, each Lender from time to time. The
entries in the
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Register shall be conclusive, in the absence of manifest error, and the
Borrower, each other Loan Party, the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. Any assignment of
any Loan or other obligation hereunder (whether or not evidenced by a Note)
shall be effective only upon appropriate entries with respect thereto being
made in the Register.
(e) Upon its receipt of an Assignment and Acceptance executed by
an Assignor and an Assignee (and, in the case of an Assignee that is not then a
Lender or an affiliate thereof, by the Borrower and the Administrative Agent)
together with payment to the Administrative Agent of a registration and
processing fee of $4,000, the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) record the information contained
therein in the Register on the effective date determined pursuant thereto.
(f) The Loans made by each Lender shall be evidenced by a Note
issued by the Borrower, substantially in the form of Exhibit G-1, G-2 or G-3,
as the case may be, payable to the order of such Lender. Each Lender is hereby
authorized to record, on the schedule annexed to and constituting a part of the
relevant Note, information regarding the relevant Loans made by such Lender,
and any such recordation shall constitute prima facie evidence of the accuracy
of the information so recorded, provided that the failure to make any such
recordation or any error in such recordation shall not affect the Borrower's
obligations hereunder or under any Note. On or prior to the effective date of
an Assignment and Acceptance, the Borrower, at its own expense, shall execute
and deliver to the Administrative Agent, in exchange for the relevant Notes,
new Notes to the order of the Assignee and, if applicable, the Assignor. Such
new Notes shall be dated the Closing Date and shall otherwise be in the form of
the Notes replaced thereby.
(g) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information concerning the Loan Parties and their
respective affiliates which has been delivered to such Lender by or on behalf
of any Loan Party pursuant to this Agreement or any other Loan Document or
which has been delivered to such Lender by or on behalf any Loan Party in
connection with such Lender's credit evaluation of the Loan Parties and their
respective affiliates, under the condition that such Transferee or prospective
Transferee shall previously have agreed to be bound by the provisions of
Section 10.15.
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 10.6 concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement provides for payments to be allocated to the Lenders under a
particular Facility, if any Lender (a "Benefitted Lender") shall at any time
receive any payment of all or part of its Loans or the Reimbursement
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Obligations owing to it, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in Section 8(f), or otherwise),
in a greater proportion than any such payment to or collateral received by any
other Lender, if any, in respect of such other Lender's Loans or the
Reimbursement Obligations owing to such other Lender, or interest thereon, such
Benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Loans and/or
of the Reimbursement Obligations owing to each such other Lender, or shall
provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrower, the Administrative Agent and
the Lenders with respect to the subject matter hereof and thereof, and there
are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to subject matter hereof or thereof
not expressly set forth or referred to herein or in the other Loan Documents.
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10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in Section 10.2 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section 10.12 any special, exemplary, punitive or
consequential damages.
10.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and
the relationship between Administrative Agent and Lenders, on one hand,
and the Borrower, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and
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(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
10.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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10.15 Confidentiality. Each Lender agrees to keep information
obtained by it pursuant hereto and the other Loan Documents identified as
confidential in writing at the time of delivery confidential in accordance with
such Lender's customary practices and agrees that it will only use such
information in connection with the transactions contemplated by this Agreement
and not disclose any of such information other than (a) to such Lender's
employees, representatives, directors, attorneys, auditors, agents,
professional advisors, trustees or affiliates who are advised of the
confidential nature of such information, (b) to the extent such information
presently is or hereafter becomes available to such Lender on a non-
confidential basis from any source or such information that is in the public
domain at the time of disclosure, (c) to the extent disclosure is required by
law (including applicable securities laws), regulation, subpoena or judicial
order or process (provided that notice of such requirement or order shall be
promptly furnished to the Borrower unless such notice is legally prohibited) or
requested or required by bank, securities, insurance or investment company
regulations or auditors or any administrative body or commission to whose
jurisdiction such Lender may be subject, (d) to any rating agency to the extent
required in connection with any rating to be assigned to such Lender, (e) to
Transferees or prospective Transferees who agree to be bound by the provisions
of this Section 10.15, (f) to the extent required in connection with any
litigation between any Loan Party and any Lender with respect to the Loans or
this Agreement and the other Loan Documents or (g) with the Borrower's prior
written consent. The agreements in this Section 10.15 shall survive repayment
of the Loans and all other amounts payable hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
INTERNATIONAL HOME FOODS, INC.
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
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BANKERS TRUST COMPANY, as Syndication
Agent
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as Documentation Agent
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
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Annex A
PRICING GRID
----------------------------------------------------------------------------------------------------------
Applicable Margin for Applicable Margin
Eurodollar Loans for ABR Loans
------------------------------------------
Commitment
Consolidated Leverage Ratio A/RC B A/RC B Fee Rate
----------------------------------------------------------------------------------------------------------
Greater than or equal to 2.25% 2.50% 1.25% 1.50% 0.500%
5.75 to 1.0
----------------------------------------------------------------------------------------------------------
Greater than or equal to 5.00 to 1.0 2.00% 2.25% 1.00% 1.25% 0.500%
and less than 5.75 to 1.0
----------------------------------------------------------------------------------------------------------
Greater than or equal to 4.25 to 1.0 1.75% 2.25% 0.75% 1.25% 0.500%
and less than 5.00 to 1.0
----------------------------------------------------------------------------------------------------------
Greater than or equal to 3.75 to 1.0 1.50% 2.125% 0.50% 1.125% 0.375%
and less than 4.25 to 1.0
----------------------------------------------------------------------------------------------------------
Greater than or equal to 3.25 to 1.0 1.25% 2.00% 0.25% 1.00% 0.375%
and less than 3.75 to 1.0
----------------------------------------------------------------------------------------------------------
Less than 3.25 to 1.0 1.00% 2.00% 0% 1.00% 0.300%
----------------------------------------------------------------------------------------------------------
As used above, "A/RC" refers to Tranche A Term Loans, Revolving Credit Loans
and Swing Line Loans and "B" refers to Tranche B Term Loans.
Changes in the Applicable Margin or the Commitment Fee Rate resulting from
changes in the Consolidated Leverage Ratio shall become effective on the date
(the "Adjustment Date") on which financial statements are delivered to the
Lenders pursuant to Section 6.1 (but in any event not later than the 45th day
after the end of each of the first three quarterly periods of each fiscal year
or the 95th day after the end of each fiscal year, as the case may be) and
shall remain in effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not delivered
within the time periods specified above, then, until such financial statements
are delivered, the Consolidated Leverage Ratio as at the end of the fiscal
period that would have been covered thereby shall for the purposes of this
definition be deemed to be greater than 5.75 to 1. Each determination of the
Consolidated Leverage Ratio pursuant to this paragraph shall be made with
respect to the Test Period ending at the end of the period covered by the
relevant financial statements and, to the extent applicable, in accordance with
the last paragraph of Section 7.1.