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EXHIBIT 4.4
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AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF DECEMBER 17, 1997
AMONG
DEL MONTE CORPORATION,
VARIOUS FINANCIAL INSTITUTIONS,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS ADMINISTRATIVE AGENT,
BANKERS TRUST COMPANY,
AS DOCUMENTATION AGENT,
AND
BANKBOSTON, N.A.,
CITICORP USA, INC.,
GENERAL ELECTRIC CAPITAL CORPORATION
AND
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY,
AS CO-AGENTS
ARRANGED BY
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS........................................2
1.1 Certain Defined Terms...............................................................2
1.2 Other Interpretive Provisions......................................................44
1.3 Accounting Principles..............................................................45
ARTICLE II
THE CREDITS.......................................45
2.1 Amounts and Terms of Commitments...................................................45
(a) The Term A Credit..................................................45
(b) The Term B Credit..............................................45
(c) The Revolving Credit...........................................46
2.2 Loan Accounts......................................................................46
2.3 Procedure for Borrowing............................................................47
2.4 Conversion and Continuation Elections..............................................48
2.5 Swingline Loans....................................................................50
2.6 Termination or Reduction of Revolving Commitments..................................52
2.7 Optional Prepayments...............................................................53
2.8 Mandatory Prepayments of Loans.....................................................54
2.9 Repayment ........................................................................59
(a) The Term A Credit..................................................59
(b) The Term B Credit..............................................59
(c) The Revolving Credit...........................................59
2.10 Interest ........................................................................59
2.11 Fees ........................................................................60
(a) Arranger and Agency Fees.......................................60
(b) Commitment Fees................................................60
2.12 Computation of Fees and Interest..................................................61
2.13 Payments by the Company...........................................................61
2.14 Payments by the Lenders to the Administrative Agent...............................62
2.15 Sharing of Payments, Etc..........................................................63
ARTICLE III
THE LETTERS OF CREDIT..................................64
3.1 The Letter of Credit Subfacility...................................................64
3.2 Issuance, Amendment and Extension of Letters of Credit.............................65
3.3 Risk Participations, Drawings and Reimbursements...................................68
3.4 Repayment of Participations........................................................70
3.5 Role of the Issuing Lender.........................................................70
3.6 Obligations Absolute...............................................................71
3.7 Cash Collateral Pledge.............................................................72
3.8 Letter of Credit Fees..............................................................72
3.9 Uniform Customs and Practice.......................................................73
3.10 Non-Dollar Letters of Credit......................................................73
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ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY..........................76
4.1 Taxes ........................................................................76
4.2 Illegality ........................................................................78
4.3 Increased Costs and Reduction of Return............................................79
4.4 Funding Losses.....................................................................80
4.5 Inability to Determine Rates.......................................................80
4.6 Certificates of Lenders............................................................81
4.7 Substitution of Lenders............................................................81
4.8 Survival ........................................................................81
ARTICLE V
CONDITIONS PRECEDENT...................................82
5.1 Conditions to Effectiveness. .....................................................82
(a) Credit Agreement...............................................82
(b) Resolutions and Incumbency.....................................82
(c) Organization Documents; Good Standing..........................82
(d) Legal Opinions.................................................83
(e) Notes..........................................................83
(f) Payment of Fees................................................83
(g) Parent Guaranty................................................83
(h) Confirmation...................................................83
(i) Certificate....................................................83
(j) Other Documents................................................84
(k) Other Documents................................................84
5.2 [Intentionally Left Blank]..........................................................84
5.3 Conditions to All Credit Extensions................................................84
(a) Notice, Application............................................84
(b) Continuation of Representations and
Warranties.....................................................84
(c) No Existing Default............................................84
5.4 Conditions to New Term B Loans.....................................................85
ARTICLE VI
REPRESENTATIONS AND WARRANTIES..............................86
6.1 Corporate Existence and Power......................................................86
6.2 Corporate Authorization; No Contravention..........................................87
6.3 Governmental Authorization.........................................................87
6.4 Binding Effect.....................................................................87
6.5 Litigation ........................................................................88
6.6 No Default ........................................................................88
6.7 ERISA Compliance...................................................................88
6.8 Use of Proceeds; Margin Regulations................................................89
6.9 Title to Properties................................................................89
6.10 Taxes ........................................................................89
6.11 Financial Condition...............................................................90
6.12 Regulated Entities................................................................91
6.13 No Burdensome Restrictions........................................................91
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6.14 Copyrights, Patents, Trademarks and Licenses, etc.................................91
6.15 Subsidiaries......................................................................92
6.16 Insurance ........................................................................92
6.17 Solvency, etc.....................................................................92
6.18 Merger, Subordinated Notes, etc...................................................93
6.19 Real Property.....................................................................93
6.20 Swap Obligations..................................................................93
6.21 Senior Indebtedness...............................................................94
6.22 Environmental Warranties..........................................................94
6.23 Full Disclosure...................................................................95
6.24 Contadina Acquisition, Parent Bridge Notes, etc...................................96
ARTICLE VII
AFFIRMATIVE COVENANTS..................................97
7.1 Financial Statements...............................................................97
7.2 Certificates; Other Information....................................................98
7.3 Notices ........................................................................99
7.4 Preservation of Corporate Existence, Etc..........................................100
7.5 Maintenance of Property...........................................................100
7.6 Insurance .......................................................................100
7.7 Payment of Obligations............................................................100
7.8 Compliance with Laws..............................................................101
7.9 Compliance with ERISA.............................................................101
7.10 Inspection of Property and Books and Records.....................................101
7.11 Interest Rate Protection.........................................................102
7.12 Environmental Covenant...........................................................102
7.13 Use of Proceeds..................................................................102
7.14 Further Assurances...............................................................103
ARTICLE VIII
NEGATIVE COVENANTS...................................105
8.1 Limitation on Liens...............................................................105
8.2 Disposition of Assets.............................................................107
8.3 Consolidations and Mergers........................................................108
8.4 Loans and Investments.............................................................109
8.5 Limitation on Indebtedness........................................................111
8.6 Transactions with Affiliates......................................................112
8.7 Use of Proceeds...................................................................113
8.8 Contingent Obligations............................................................113
8.9 Joint Ventures....................................................................113
8.10 Lease Obligations................................................................114
8.11 Minimum Fixed Charge Coverage....................................................114
8.12 Minimum EBITDA...................................................................114
8.13 Minimum Adjusted Net Worth.......................................................115
8.14 Maximum Senior Debt Ratio........................................................116
8.15 Maximum Total Debt Ratio.........................................................116
8.16 Maximum Capital Expenditures.....................................................116
8.17 Restricted Payments..............................................................117
8.18 ERISA .......................................................................119
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8.19 Limitations on Sale and Leaseback Transactions...................................119
8.20 Limitation on Restriction of Subsidiary Dividends and
Distributions..........................................................119
8.21 Inconsistent Agreements..........................................................120
8.22 Change in Business...............................................................120
8.23 Amendments to Certain Documents..................................................120
8.24 Fiscal Year......................................................................121
8.25 Limitation on Issuance of Guaranty Obligations...................................121
ARTICLE IX
EVENTS OF DEFAULT...................................122
9.1 Event of Default..................................................................122
(a) Non-Payment...................................................122
(b) Representation or Warranty....................................122
(c) Specific Defaults.............................................122
(d) Other Defaults................................................122
(e) Cross-Default.................................................122
(f) Insolvency; Voluntary Proceedings.............................123
(g) Involuntary Proceedings.......................................123
(h) ERISA.........................................................124
(i) Monetary Judgments............................................124
(j) Non-Monetary Judgments........................................124
(k) Change of Control.............................................124
(l) Guarantor Defaults............................................124
(m) Collateral Documents, etc.....................................124
9.2 Remedies .......................................................................125
9.3 Rights Not Exclusive..............................................................125
ARTICLE X
THE AGENTS.......................................126
10.1 Appointment and Authorization....................................................126
10.2 Delegation of Duties.............................................................127
10.3 Liability of Administrative Agent................................................127
10.4 Reliance by Administrative Agent.................................................127
10.5 Notice of Default................................................................128
10.6 Credit Decision..................................................................128
10.7 Indemnification of Agents........................................................129
10.8 Administrative Agent in Individual Capacity......................................129
10.9 Successor Administrative Agent...................................................130
10.10 Withholding Tax.................................................................130
10.11 Collateral Matters..............................................................132
ARTICLE XI
MISCELLANEOUS.....................................135
11.1 Amendments and Waivers...........................................................135
11.2 Notices .......................................................................137
11.3 No Waiver; Cumulative Remedies...................................................138
11.4 Costs and Expenses...............................................................138
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11.5 Company Indemnification..........................................................138
11.6 Payments Set Aside...............................................................139
11.7 Successors and Assigns...........................................................140
11.8 Assignments, Participations, etc.................................................140
11.9 Confidentiality..................................................................142
11.10 Set-off .......................................................................143
11.11 Automatic Debits of Fees........................................................144
11.12 Notification of Addresses, Lending Offices, Etc. ...............................144
11.13 Counterparts....................................................................144
11.14 Severability....................................................................144
11.15 No Third Parties Benefited......................................................144
11.16 Governing Law and Jurisdiction..................................................145
11.17 Waiver of Jury Trial............................................................145
11.18 Entire Agreement................................................................145
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SCHEDULES
Pricing Schedule
Schedule 1.1 Commitments, Total Percentages, Revolving
Percentages, Term A Percentages, Term B
Percentages
Schedule 2.8 Assets Held For Sale
Schedule 3.11 Prior Letters of Credit
Schedule 5.1 Debt to be Repaid
Schedule 6.5 Litigation
Schedule 6.11 Permitted Liabilities
Schedule 6.14 Material Intellectual Property
Schedule 6.15(a) Subsidiaries of the Company
Schedule 6.15(b) Equity Investments of the Company
Schedule 6.16 Insurance Matters
Schedule 6.19 Real Property
Schedule 6.22 Environmental Matters
Schedule 8.1 Liens
Schedule 8.4 Permitted Investments
Schedule 8.5(d) Existing Indebtedness
Schedule 8.8 Contingent Obligations
Schedule 11.2 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Promissory Note
Exhibit E-1 Form of Security Agreement (Company and Parent)
Exhibit E-2 Form of Subsidiary Security Agreement
Exhibit F-1 Form of Amended and Restated Parent Guaranty
Exhibit F-2 Form of Subsidiary Guaranty
Exhibit G-1 Form of Parent Pledge Agreement
Exhibit G-2 Form of Company Pledge Agreement
Exhibit G-3 Form of Subsidiary Pledge Agreement
Exhibit H-1 Form of Company Solvency Certificate
Exhibit H-2 Form of Parent Solvency Certificate
Exhibit I-1 Form of Opinion of special counsel to the
Company, Parent and ▇▇▇▇ Mac
Exhibit I-2 Form of Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General
Counsel to the Company, Parent and ▇▇▇▇ Mac
Exhibit I-3 Form of Opinion of Maryland special counsel to
Parent
Exhibit J [Reserved]
Exhibit K Form of Assignment and Acceptance
Exhibit L Form of Lender Certificate
Exhibit M Form of Borrowing Base Certificate
Exhibit N Form of Bailee's Consent
Exhibit O Form of Landlord's Consent
Exhibit P Form of Warehouseman's Consent
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Exhibit Q Intercreditor Agreement
Exhibit R Form of Intellectual Property License
Exhibit S Form of Environmental Indemnity
Exhibit T Form of Confirmation
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of
December 17, 1997, among DEL MONTE CORPORATION, the several financial
institutions from time to time party to this Agreement, BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as administrative agent for the Lenders, BANKERS
TRUST COMPANY, as documentation agent for the Lenders, and BANKBOSTON, N.A.,
CITICORP USA, INC., GENERAL ELECTRIC CAPITAL CORPORATION and THE LONG-TERM
CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY, as coagents for the Lenders.
W I T N E S S E T H:
WHEREAS, the Company, the Administrative Agent and the Lenders are
parties to that certain Credit Agreement, dated as of April 18, 1997 (the
"Original Credit Agreement");
WHEREAS, the parties hereto desire to amend and restate the Original
Credit Agreement and certain other Loan Documents in certain respects in
connection with the Company's proposed acquisition (the "Contadina Acquisition")
of certain assets constituting the business of Contadina Services, Inc. (the
"Seller") pursuant to an Asset Purchase Agreement dated November 12, 1997 among
Seller, Nestle USA, Inc., the Company and Parent (as amended from time to time
in accordance with the provisions hereof and thereof, the "Contadina Purchase
Agreement");
WHEREAS, in connection with the Contadina Acquisition, Parent intends to
issue new equity in an amount of $40,000,000 (the "New Parent Equity") and
intends to incur $60,000,000 of Parent Bridge Notes (the "Bridge Financing") or
Parent Discount Notes in lieu of such Bridge Financing and to contribute the net
proceeds received from the New Parent Equity and the Bridge Financing (or such
Parent Discount Notes) to the Company to enable the Company to pay a portion of
the purchase price (and related fees and expenses) in connection with the
Contadina Acquisition;
WHEREAS, also in connection with the Contadina Acquisition, the Company
has requested that the Lenders amend and restate the Original Credit Agreement
to, among other things, increase the aggregate principal amount of Term B Loans
by up to $85,000,000, with the proceeds of such incremental Term B Loans to be
used by the Company to fund that portion of the purchase price (and related fees
and expenses) in connection with the Contadina Acquisition not financed by the
New Parent Equity, Bridge Financing (or Parent Discount Notes issued in lieu of
such Bridge Financing) and the proceeds of Revolving Loans; and
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WHEREAS, the Company, the Administrative Agent and the Lenders desire
that the Original Credit Agreement be amended and restated on the terms and
conditions set forth herein to, among other things, set forth the terms and
conditions under which the Lenders hereafter will extend credit to the Company;
it being the intention of the Company, the Administrative Agent and the Lenders
that this Agreement and the execution and delivery of any substituted promissory
notes not effect a novation of the obligations of the Company to the Lenders
under the Original Credit Agreement but merely a restatement and, where
applicable, a substitution of the terms governing and evidencing such
obligations hereafter;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the Original Credit Agreement is amended and
restated to read in its entirety, and the parties agree, as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms have the
following meanings:
Account Debtor means any Person who is obligated to the Company
or any Domestic Subsidiary under, with respect to, or on account of an
Account Receivable.
Account Receivable means, with respect to any Person, any right
of such person to payment for goods sold or leased or for services
rendered, whether or not evidenced by an instrument or chattel paper and
whether or not yet earned by performance.
Acquired Indebtedness means mortgage Indebtedness or Indebtedness
with respect to capital leases of a Person existing at the time such
Person became a Subsidiary or assumed by the Company or a Subsidiary in
an Acquisition permitted hereunder (and not created or incurred in
connection with or in anticipation of such Acquisition); provided that
such Indebtedness is purchase money Indebtedness or Indebtedness with
respect to a capital lease, as the case may be, and was incurred by such
Person to finance the acquisition of property or, in either case, such
Indebtedness was incurred to refinance such Indebtedness, and the
principal amount of such Indebtedness does not exceed the purchase price
of such property.
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Acquisition means any transaction or series of related
transactions for the purpose of, or resulting directly or indirectly in,
(a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition
of in excess of 50% of the capital stock, partnership interests,
membership interests or equity of any Person, or otherwise causing any
Person to become a Subsidiary or (c) a merger or consolidation or any
other combination with another Person (other than a Person that is a
Subsidiary) provided that the Company or a Subsidiary is the surviving
entity.
Acquisition Prospect means each Person whose stock or assets is
intended to be acquired in an Acquisition permitted under subsection
8.4(i) including, in each case, the assets and the liabilities thereof.
Administrative Agent means BofA in its capacity as administrative
agent for the Lenders hereunder, and any successor administrative agent
arising under Section 10.9.
Affiliate means, 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. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the management
and policies of such other Person, whether through the ownership of
voting securities or membership interests, by contract, or otherwise.
Without limiting the foregoing, any Person which is an officer, director
or shareholder of the Company, or a member of the immediate family of
any such officer, director or shareholder, shall be deemed to be an
Affiliate of the Company.
Agent-Related Persons means BofA and any successor administrative
agent arising under Section 10.9, BofA and any successor Issuing Lender,
BofA and any successor Swingline Lender, together with their respective
Affiliates (including the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
Agent's Payment Office means the address for payments set forth
on Schedule 11.2 in relation to the Administrative Agent, or such other
address as the Administrative Agent may from time to time specify.
Agents means the Administrative Agent, the
Documentation Agent and the Co-Agents.
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Agreement means this Credit Agreement.
Agreement Currency - see subsection 3.10(f).
Applicable Base Rate Margin - see the Pricing Schedule.
Applicable Offshore Rate Margin - see the Pricing
Schedule.
Arranger means BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a Delaware
corporation.
Assets Held For Sale means assets of the Company and its
Subsidiaries listed on Schedule 2.8.
Assignee - see subsection 11.8(a).
Assignment and Acceptance - see subsection 11.8(a).
Attorney Costs means and includes all reasonable fees and
disbursements of any law firm or other external counsel and, without
duplication of effort, the allocated cost of internal legal services and
all disbursements of internal counsel.
Bailee's Consent means a document substantially in the form of
Exhibit N, with appropriate insertions, or such other form as shall be
acceptable to the Administrative Agent or Required Revolving Lenders.
Bankruptcy Code means the Federal Bankruptcy Reform Act
of 1978 (11 U.S.C. ss.101, et seq.).
Base Rate means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in
effect for such day as publicly announced from time to time by BofA in
San Francisco, California as its "reference rate." (The "reference rate"
is a rate set by BofA based upon various factors including BofA's costs
and desired return, general economic conditions and other factors, and
is used as a reference point for pricing some loans, which may be priced
at, above or below such announced rate.) Any change in the reference
rate announced by BofA shall take effect at the opening of business on
the day specified in the public announcement of such change.
Base Rate Loan means a Loan that bears interest based on the Base
Rate.
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BofA means Bank of America National Trust and Savings
Association, a national banking association.
Borrowing means a borrowing hereunder consisting of (a) Revolving
Loans, Term A Loans or Term B Loans of the same Type made to the Company
on the same day by the Lenders and, in the case of Offshore Rate Loans,
having the same Interest Period, or (b) a Swingline Loan made to the
Company by the Swingline Lender, in each case pursuant to Article II.
Borrowing Base means an amount equal to the total of (a) 85% of
the unpaid amount (net of such reserves and allowances as the
Administrative Agent deems necessary in its sole reasonable discretion)
of all Eligible Accounts Receivable plus (b) 70% of the value of all
Eligible Inventory consisting of finished goods (whether labeled or
unlabeled) or bulk tomato paste, valued at the lower of cost or market
(net of such reserves and allowances as the Administrative Agent deems
necessary in its sole reasonable discretion) plus (c) 20% of the value
of all other Eligible Inventory, valued at the lower of cost or market
(net of such reserves and allowances as the Administrative Agent deems
necessary in its sole reasonable discretion) plus (d) an amount equal to
(x) the aggregate cash purchase price paid by the Company and its
Subsidiaries (including related fees and expenses and amounts paid to
refinance Indebtedness in connection therewith but excluding the amount
of cash purchase price funded with the proceeds of capital contributions
to, or new equity sold by, the Company) in Acquisitions permitted under
subsection 8.4(i) minus (y) an amount equal to the average calendar
month end amount of the value of accounts receivable and inventory of
the business acquired in such Acquisition (to the extent the same would
have been eligible for inclusion in the Borrowing Base assuming such
Acquisition had occurred a year earlier) for the year preceding such
Acquisition, as it shall be reasonably determined by a Responsible
Officer, in each case multiplied by the applicable advance rate, less
(e) the net aggregate payables owing to growers or other suppliers of
crops or produce at such time, to the extent that such payables are
subject to statutory liens, trusts or priority claims (provided, that if
the Company is holding any Inventory at premises leased by the Company
or with a bailee or warehouseman and with respect to which the Company
shall not have obtained a Landlord's Consent, Bailee's Consent or
Warehouseman's Consent, as applicable, the Company may request that a
reserve equal to all rent payable by the Company with respect to such
property for one year from the date of determination of the reserve (in
the case of leased premises) or such other reserve in respect of
storage, transportation and other charges as shall be acceptable to
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the Administrative Agent or Required Revolving Lenders (in the case of
Inventory with a bailee or warehouseman) be established, in which case
such reserve shall be, if any Inventory located at such premises is to
be included in the Borrowing Base, deducted from the Borrowing Base and
such Inventory shall not, solely by virtue of clause (3) or clause (4)
of the definition of "Eligible Inventory," be deemed ineligible).
Borrowing Base Certificate means a certificate substantially in
the form of Exhibit M.
Borrowing Date means any date on which a Borrowing occurs under
Section 2.3.
Bridge Financing - see the recitals.
BTCo. means Bankers Trust Company, a New York banking
corporation.
Business Day means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City or San Francisco are
authorized or required by law to close and, if the applicable Business
Day relates to any Offshore Rate Loan, means such a day on which
dealings are carried on in the applicable offshore Dollar interbank
market.
Capital Adequacy Regulation means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case regarding capital adequacy of any bank or of any Person
controlling a bank.
Capital Expenditures means all expenditures which, in accordance
with GAAP, would be required to be capitalized and shown on the
consolidated balance sheet of the Company, but excluding expenditures
made in connection with the replacement, substitution or restoration of
assets to the extent financed (i) from insurance proceeds (or other
similar recoveries) paid on account of the loss of or damage to the
assets being replaced or restored or (ii) with awards of compensation
arising from the taking by eminent domain or condemnation of the assets
being replaced.
Cash Collateralize means to pledge and deposit with or deliver to
the Administrative Agent, for the benefit of the Administrative Agent,
the Issuing Lender and the Revolving Lenders, as additional collateral
for the L/C Obligations, cash or deposit account balances pursuant to
documentation
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in form and substance satisfactory to the Administrative Agent and the
Issuing Lender (which documents are hereby consented to by the Lenders).
Derivatives of such term shall have corresponding meanings. The Company
hereby grants the Administrative Agent, for the benefit of the
Administrative Agent, the Issuing Lender and the Revolving Lenders, a
security interest in all such cash and deposit account balances. Cash
collateral shall be maintained in blocked, non-interest bearing deposit
accounts at BofA.
Cash Equivalent Investments shall mean (i) securities issued or
directly and fully guaranteed or insured by the United States of America
or any agency or instrumentality thereof (provided that the full faith
and credit of the United States of America is pledged in support
thereof) having maturities of not more than three years from the date of
acquisition, (ii) marketable direct obligations issued by any State of
the United States of America or any local government or other political
subdivision thereof rated (at the time of acquisition of such security)
at least AA by Standard & Poor's Ratings Service, a division of The
McGrawHill Companies, Inc. ("S&P") or the equivalent thereof by ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's") having maturities of not more than
one year from the date of acquisition, (iii) time deposits (including
eurodollar time deposits), certificates of deposit (including eurodollar
certificates of deposit) and bankers' acceptances of (x) any Lender or
any Affiliate of any Lender, (y) any commercial bank of recognized
standing either organized under the laws of the United States (or any
State or territory thereof) or another country (or a political
subdivision thereof) which is a member of the Organization for Economic
Cooperation and Development and acting through a branch or agency
located in the United States, in either case having capital and surplus
in excess of $250,000,000 or (z) any bank whose short-term commercial
paper rating (at the time of acquisition of such security) by S&P is at
least A-1 or the equivalent thereof (any such bank, an "Approved Bank"),
in each case with maturities of not more than six months from the date
of acquisition, (iv) commercial paper and variable or fixed rate notes
issued by any Lender or Approved Bank or by the parent company of any
Lender or Approved Bank and commercial paper and variable rate notes
issued by, or guaranteed by, any industrial or financial company with a
short-term commercial paper rating (at the time of acquisition of such
security) of at least A-1 or the equivalent thereof by S&P or at least
P-1 or the equivalent thereof by Moody's, or guaranteed by any
industrial company with a long-term unsecured debt rating (at the time
of acquisition of such security) of at least AA or the equivalent
thereof by S&P or at least Aa or the equivalent thereof by Moody's and
in each
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case maturing within one year after the date of acquisition and (v)
repurchase agreements with any Lender or any primary dealer maturing
within one year from the date of acquisition that are fully
collateralized by investment instruments that would otherwise be Cash
Equivalent Investments; provided that the terms of such repurchase
agreements comply with the guidelines set forth in the Federal Financial
Institutions Examination Council Supervisory Policy -- Repurchase
Agreements of Depository Institutions With Securities Dealers and
Others, as adopted by the Comptroller of the Currency on October 31,
1985.
CERCLA means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
CERCLIS means the Comprehensive Environmental Response
Compensation Liability Information System List.
Change of Control means (i) the failure of the holders of capital
stock of Parent immediately after the Merger (collectively with (A) in
the case of TPG Partners, any other investment partnership, limited
liability company or other entity established for investment purposes
and controlled by the principals of TPG Partners, (B) in the case of any
other shareholder of Parent that is a corporation, any other entity that
owns, directly or indirectly, at least 51% of the equity securities of
such shareholder ("majority ownership") or that is under common majority
ownership with such shareholder, (C) in the case of any other
shareholder of Parent that is an investment partnership, limited
liability company or other entity established for investment purposes,
the partners, members or other owners thereof or another investment
partnership, limited liability company or other entity established for
investment purposes and controlled by such partners, members or other
owners, or an employee co-investment partnership and (D) in the case of
any other shareholder of Parent that is an individual, any successor by
death or divorce) to own not less than 51% of the issued and outstanding
capital stock of the Parent free and clear of all Liens (other than
Permitted Liens of the type described in subsection 8.1(b), (c) or (g)),
(ii) the failure of the Parent to own 100% of the issued and outstanding
capital stock of the Company free and clear of all Liens (other than
Permitted Liens of the type described in subsection 8.1(b), (c) or
(g)),(iii) while any Subordinated Notes or Exchange Notes are
outstanding, any "Change of Control" as defined in the Subordinated
Indenture or, while any Qualified Notes are outstanding, any "Change of
Control" as defined in any Qualified Indenture or any other similar
event, regardless of how designated, if the occurrence of such event
would
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17
require the Company to redeem or repurchase any Qualified Notes prior to
their expressed maturity or (iv) while any Parent Bridge Notes or Parent
Discount Notes are outstanding, any "Change of Control" as defined in
the Parent Bridge Note Agreement or Parent Discount Indenture or in any
other instrument governing the Parent Bridge Notes or Parent Discount
Notes or, while any Qualified Parent Notes are outstanding, any "Change
of Control" as defined in any Qualified Parent Indenture or any other
similar event, regardless of how designated, if the occurrence of such
event would require Parent, pursuant to any Qualified Parent Indenture,
to redeem or repurchase any Qualified Parent Notes prior to their
expressed maturity.
Closing Date means April 18, 1997.
Co-Agents means BankBoston, N.A., Citicorp USA, Inc., General
Electric Capital Corporation and The Long-Term Credit Bank of Japan,
Ltd., Los Angeles Agency in their capacities as co-agents for the
Lenders.
Code means the Internal Revenue Code of 1986.
Collateral means any property of Parent, the Company or any
Subsidiary upon which a security interest in favor of the Administrative
Agent for the benefit of the Lender Parties is purported to be granted
pursuant to any Collateral Document.
Collateral Document means the Security Agreements, each Copyright
Security Agreement, the Intellectual Property License, each Trademark
Security Agreement, each Patent Security Agreement, each Pledge
Agreement, each Mortgage and any other document pursuant to which
collateral securing the liabilities of the Company, Parent or any
Subsidiary under any Loan Document is granted or pledged to the
Administrative Agent for the benefit of itself and the Lenders.
Commercial Letter of Credit means any Letter of Credit which is
drawable upon presentation of a sight draft and other documents
evidencing the sale or shipment of goods purchased by the Company in the
ordinary course of business.
Commitment means, as to each Lender, such Lender's Revolving
Commitment, Term A Commitment or Term B Commitment, as applicable.
Commitment Fee Rate - see the Pricing Schedule.
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18
Common Stock means the common stock, par value $1.00 per share,
of the Company.
Company means Del Monte Corporation, a New York corporation and a
Wholly-Owned Subsidiary of Parent.
Company Pledge Agreement means the Company Pledge Agreement,
dated as of the Closing Date, between the Company and the Agent, in the
form of Exhibit G-2.
Compliance Certificate means a certificate substantially in the
form of Exhibit C.
Computation Period means, except as otherwise expressly provided
herein, any period of four consecutive fiscal quarters and in any case
ending on the last day of a fiscal quarter.
Consolidated Net Income means, with respect to Parent and its
Subsidiaries for any period, the net income (or loss) of Parent and its
Subsidiaries on a consolidated basis for such period. Notwithstanding
the foregoing, "Consolidated Net Income" shall be calculated without
giving effect to any charges arising from any purchase accounting
valuation adjustments over historical cost of the Person or assets
acquired, as required or permitted by Accounting Principles Board
Opinion Nos. 16 and 17.
Contadina Acquisition - see the recitals.
Contadina Purchase Agreement - see the recitals.
Contingent Obligation means, as to any Person, any direct or
indirect liability of such Person, whether or not contingent, with or
without recourse: (a) with respect to any Indebtedness, lease, dividend,
letter of credit or other obligation (the "primary obligation") of
another Person (the "primary obligor"), including any obligation of such
Person (i) to purchase, repurchase or otherwise acquire such primary
obligation or any security therefor, (ii) to advance or provide funds
for the payment or discharge of any primary obligation, or to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level of
income or financial condition of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring
the owner of any 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 holder of any primary obligation against
loss in respect thereof (each, a "Guaranty Obligation"); (b) with
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19
respect to any Surety Instrument (other than any Letter of Credit)
issued for the account of such Person or as to which such Person is
otherwise liable for reimbursement of drawings or payments; (c) to
purchase any materials, supplies or other property from, or to obtain
the services of, another Person if the relevant contract or other
related document or obligation requires that payment for such materials,
supplies or other property, or for such services, shall be made
regardless of whether delivery of such materials, supplies or other
property is ever made or tendered, or such services are ever performed
or tendered; or (d) in respect of any Swap Contract. The amount of any
Contingent Obligation shall, (1) in the case of Guaranty Obligations, be
deemed equal to the stated or determinable amount of the primary
obligation in respect of which such Guaranty Obligation is made or, if
not stated or if indeterminable, the maximum reasonably anticipated
liability in respect thereof, (2) in the case of Swap Contracts, be
equal to the Swap Termination Value and (3) in the case of other
Contingent Obligations, be equal to the maximum reasonably anticipated
liability in respect thereof.
Contractual Obligation means, as to any Person, any provision of
any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument,
document or agreement to which such Person is a party or by which it or
any of its property is bound.
Conversion/Continuation Date means any date on which, under
Section 2.4, the Company (a) converts Loans of one Type to the other
Type or (b) continues as Offshore Rate Loans, but with a new Interest
Period, Offshore Rate Loans having Interest Periods expiring on such
date.
Copyright Security Agreement means a copyright security agreement
in the form attached to a Security Agreement.
Credit Extension means (a) the making of any Loan hereunder and
(b) the Issuance of any Letter of Credit hereunder.
Debt to be Repaid means all Indebtedness listed on Schedule 5.1.
Designated Proceeds - see subsection 2.8(a).
DMFC Recapitalization means, collectively, the Merger, the
repayment of the Debt to be Repaid, the issuance of the Subordinated
Notes, the issuance of capital stock by TPG Acquisition to certain
investors (including TPG Partners),
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20
and the dividend by the Company to Parent permitted by
subsection 8.17(f).
DMFC Recapitalization Documents means the Merger Agreement, the
Subordinated Indenture, the Subordinated Note Purchase Agreement and the
subscription agreement pursuant to which certain investors agree to
purchase capital stock
of Parent.
Documentation Agent means BTCo., in its capacity as documentation
agent for the Lenders.
Dollar Amount means, in relation to any Indebtedness (i)
denominated in Dollars, the amount of such Indebtedness, and (ii)
denominated in a currency other than Dollars, the Dollar Equivalent of
the amount of such Indebtedness on the last day of the immediately
preceding calendar month.
Dollar Equivalent means, in relation to an amount denominated in
a currency other than Dollars, the amount of Dollars which could be
purchased with such amount at the prevailing foreign exchange spot rate.
Dollars and $ mean lawful money of the United States.
Domestic Subsidiary means each Subsidiary other than a Foreign
Subsidiary.
EBITDA means, as to any Person for any Computation
Period, the sum of
(a) Consolidated Net Income of such Person for such period
excluding, to the extent reflected in determining such Consolidated Net
Income, extraordinary gains and losses for such period,
plus
(b) to the extent deducted in determining Consolidated Net Income
and without duplication, Interest Expense, income tax expense,
depreciation and amortization (including amortization of goodwill and
other intangible assets) of such Person for such period, non-cash
charges and losses from sales of assets other than Inventory sold in the
ordinary course of business,
minus
(c) to the extent reflected in determining Consolidated Net
Income and without duplication, non-cash
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21
credits and gains of such Person from sales of assets other than
Inventory sold in the ordinary course of business,
plus
(d) in the case of Parent, to the extent deducted in determining
Consolidated Net Income of Parent and without duplication, management
incentive payments in connection with the DMFC Recapitalization and
other fees and expenses in connection with the DMFC Recapitalization and
the Contadina Acquisition;
provided that for purposes of calculating EBITDA of Parent for any
period, the EBITDA (as calculated pursuant to clauses (a), (b), (c) and
(d) above) of any Person, or attributable to any assets, acquired by the
Company or any Subsidiary during such period shall be included on a pro
forma basis for such period (assuming the consummation of each such
acquisition and the incurrence or assumption of any Indebtedness in
connection therewith occurred on the first day of such period, but
without any adjustment for expected cost savings or other synergies) if
(i) either (x) the audited consolidated balance sheet of such acquired
Person and its consolidated Subsidiaries as at the end of the fiscal
year of such Person preceding the acquisition of such Person and the
related audited consolidated statements of income, stockholders' equity
and cash flows for the such fiscal year have been provided to the
Administrative Agent and the Lenders and have been reported on without a
qualification arising from the scope of the audit or a "going concern"
or like qualification or exception or (y) such other financial
information furnished to the Lenders with respect to such period and
such acquisition has been found acceptable by the Required Lenders (it
being acknowledged that the information provided with respect to the
Seller in connection with the Contadina Acquisition has been found
acceptable by the Required Lenders) and (ii) either (x) any subsequent
unaudited financial statements for such Person for the period prior to
the acquisition of such Person were prepared on a basis consistent with
such audited financial statements, have been provided to the
Administrative Agent and the Lenders and have been reported on without a
qualification arising from the scope of the audit or a "going concern"
or like qualification or (y) such other financial information furnished
to the Lenders with respect to such period and such acquisition has been
found acceptable by the Required Lenders (it being acknowledged that the
information provided with respect to the Seller in connection with the
Contadina Acquisition has been found acceptable by the Required
Lenders).
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22
Effective Amount means, (a) with respect to any Revolving Loans,
Swingline Loans and Term Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any Borrowings and
prepayments or repayments of Revolving Loans, Swingline Loans and Term
Loans occurring on such date, and (b) with respect to any outstanding
L/C Obligations on any date (i) the amount of such L/C Obligations on
such date after giving effect to any Issuances of Letters of Credit
occurring on such date, (ii) the amount of any undrawn Commercial
Letters of Credit which have expired less than 15 days prior to such
date and (iii) any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements
of outstanding unpaid drawings under any Letter of Credit or any
reduction in the maximum amount available for drawing under Letters of
Credit taking effect on such date.
Eligible Account Receivable means an Account Receivable owing to
the Company or any Domestic Subsidiary which meets the following
requirements:
(1) it arises from the sale of goods or the rendering of services
by the Company or such Domestic Subsidiary; and if it arises from the
sale of goods, (i) such goods comply with such Account Debtor's
specifications (if any) and have been shipped to such Account Debtor
(other than "▇▇▇▇ and hold" Accounts Receivable that are not ineligible
under clause (6)) and (ii) the Company has possession of, or if
requested by the Administrative Agent has delivered to the
Administrative Agent, shipping receipts evidencing such shipment;
(2) it (a) is subject to a perfected Lien in favor of the
Administrative Agent and (b) is not subject to any other assignment,
claim or Lien (other than Permitted Liens of the type described in
subsections 8.1(c) and (g) and statutory nonconsensual Liens in favor of
growers);
(3) it is a valid, legally enforceable and unconditional
obligation of the Account Debtor with respect thereto, and is not
subject to any counterclaim, credit, allowance, discount, rebate or
adjustment by the Account Debtor with respect thereto, or to any claim
by such Account Debtor denying liability thereunder in whole or in part,
and such Account Debtor has not refused to accept any of the goods which
are the subject of such Account Receivable or offered or attempted to
return any of such goods;
(4) there is no Insolvency Proceeding by or against the Account
Debtor with respect thereto;
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23
(5) the Account Debtor with respect thereto is a resident or
citizen of, and is located within, the United States or a province of
Canada in which the Personal Property Security Act is in effect, unless
(x) the sale of goods giving rise to such Account Receivable is on
letter of credit, banker's acceptance or other credit support terms
reasonably satisfactory to the Administrative Agent or (y) such Account
Receivable is payable by Plaza Provision, a Puerto Rico corporation, or
such other Account Debtors in Puerto Rico, or any other territory or
possession of the U.S. which has adopted Article 9 of the Uniform
Commercial Code or as may be approved by the Administrative Agent or
Required Lenders;
(6) it is not an Account Receivable arising from a "sale on
approval," "sale or return," "consignment" or "▇▇▇▇ and hold" or subject
to any other repurchase or return agreement (provided, that "▇▇▇▇ and
hold" Accounts Receivable shall not be ineligible solely by virtue of
this clause (6) if subject to a written agreement acceptable to the
Administrative Agent or Required Revolving Lenders to the effect that
the related Account Debtor's payment obligation is irrevocable);
(7) it is not an Account Receivable with respect to which
possession and/or control of the goods sold giving rise thereto is held,
maintained or retained by the Company or any Subsidiary (or by any agent
or custodian of the Company or any Subsidiary) for the account of or
subject to further and/or future direction from the Account Debtor with
respect thereto;
(8) it arises in the ordinary course of business of the Company
or such Domestic Subsidiary;
(9) if the Account Debtor is the United States or any department,
agency or instrumentality thereof, the Company has assigned its right to
payment of such Account Receivable to the Administrative Agent pursuant
to the Assignment of Claims Act of 1940, provided, however, that any
Accounts Receivable arising out of business conducted by the Company
consistent with business conducted prior to the Closing Date shall not
be subject to this clause (9);
(10) if the Company or such Domestic Subsidiary maintains a
credit limit for an Account Debtor, the aggregate dollar amount of
Accounts Receivable due from such Account Debtor, including such Account
Receivable, does not exceed such credit limit (provided, that the
Company may grant exceptions to such credit limits consistent with past
practice and in the ordinary course of business);
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24
(11) if the Account Receivable is evidenced by chattel paper or
an instrument, the originals of such chattel paper or instrument shall
have been endorsed and/or assigned and delivered to the Administrative
Agent in a manner satisfactory to the Administrative Agent;
(12) such Account Receivable is not more than (a) 60 days past
the due date thereof or (b) 120 days past the original invoice date
thereof, in each case according to the original terms of sale;
(13) it is not an Account Receivable with respect to an Account
Debtor that is located in any jurisdiction which has adopted a statute
or other requirement with respect to which any Person that obtains
business from within such jurisdiction must file a business activity
report or make any other required filings in a timely manner in order to
enforce its claims in such jurisdiction's courts unless such business
activity report has been duly and timely filed or the Company is exempt
from filing such report and has provided the Administrative Agent with
satisfactory evidence of such exemption; and
(14) it is not owed by an Account Debtor if (x) 30% or more of
the aggregate Dollar amount of outstanding Accounts Receivable owed at
such time by such Account Debtor is classified as ineligible under
clause (12) of this definition or (y) the aggregate Dollar amount of all
Accounts Receivable owed by the Account Debtor thereon exceeds 20% of
the aggregate amount of all Accounts Receivable at such time (but only,
in the case of this clause (y), to the extent of such excess).
An Account Receivable which is at any time an Eligible Account
Receivable, but which subsequently fails to meet any of the foregoing
requirements, shall forthwith cease to be an Eligible Account
Receivable. Further, with respect to any Account Receivable, if the
Administrative Agent or the Required Revolving Lenders at any time
hereafter determine in their reasonable discretion that the prospect of
payment or performance by the Account Debtor with respect thereto is
materially impaired for any reason whatsoever, such Account Receivable
shall cease to be an Eligible Account Receivable after notice of such
determination is given to the Company.
Eligible Assignee means (i) an "accredited investor" as such term
is defined in Rule 501(a) of Regulation D under the Securities Act
(other than the Company or an Affiliate of the Company), (ii) a Lender,
(iii) an Affiliate of a Lender (provided such Affiliate is an
"accredited investor") or (iv) any fund that invests in bank loans that
is managed
-16-
25
by the same investment adviser as another Lender that is such a fund
(provided such assignee fund is an "accredited investor").
Eligible Inventory means Inventory which meets the following
requirements:
(1) it (a) is subject to a perfected Lien in favor of the
Administrative Agent and (b) is not subject to any other assignment,
claim or Lien (other than Permitted Liens of the type described in
subsections 8.1(c) and (g) and statutory nonconsensual Liens in favor of
growers) (provided, that if the Company has not delivered any Bailee's
Consent, Warehouseman's Consent or Landlord's Consent but the
Administrative Agent has established adequate reserves in respect
thereof under the definition of "Borrowing Base" any claim or Lien of
the related bailee, warehouseman or landlord, if it is a Permitted Lien,
shall not cause the Inventory kept at such location to be ineligible
solely by virtue of this clause (1));
(2) it is (except as the Required Revolving Lenders may otherwise
consent in writing) salable;
(3) except as provided in clause (4) below or as the Required
Revolving Lenders may otherwise consent, it is in the possession and
control of the Company or the relevant Domestic Subsidiary and it is
stored and held in facilities owned by the Company or the relevant
Domestic Subsidiary or, if such facilities are not so owned, leased to
the Company or the relevant Domestic Subsidiary and with respect to
which the Administrative Agent has received a Landlord's Consent (unless
a reserve with respect thereto has been established by the
Administrative Agent in accordance with the proviso in the definition of
"Borrowing Base") (provided that no Landlord's Consents shall be
required for the first 60 days following the Closing Date);
(4) if it is in the possession or control of a bailee,
warehouseman or processor, the Administrative Agent is in possession of
a Bailee's Consent, Warehouseman's Consent or such other agreements,
instruments and documents as the Administrative Agent may reasonably
require in good faith, including warehouse receipts in the
Administrative Agent's name covering such Inventory (unless a reserve
with respect thereto has been established by the Administrative Agent in
accordance with the proviso in the definition of "Borrowing Base")
(provided that no Bailee's Consents, Warehouseman's Consents or other
such agreements, instruments or documents shall be required for the
first 60 days following the Closing Date);
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26
(5) it is not Inventory produced in violation of the Fair Labor
Standards Act and subject to the "hot goods" provisions contained in
Title 29 U.S.C. ss.215;
(6) it is not subject to any agreement which would restrict the
Administrative Agent's ability to sell or otherwise dispose of such
Inventory (provided, that if the Company has not delivered any Bailee's
Consent, Warehouseman's Consent or Landlord's Consent and has
established adequate reserves in respect thereof under the definition of
"Borrowing Base", any agreement entered into in the ordinary course of
business with such bailee, warehouseman or landlord shall not render the
Inventory kept at such location to be ineligible solely by virtue of
this clause (6));
(7) it is located in the United States or in any territory or
possession of the United States that has adopted Article 9 of the
Uniform Commercial Code or as may be approved by the Administrative
Agent or Required Revolving Lenders;
(8) it is not "in transit" to the Company or the relevant
Domestic Subsidiary or held by the Company or the relevant Domestic
Subsidiary on consignment; and
(9) the Administrative Agent (or Required Revolving Lenders)
shall not have determined (which determination shall be effective upon
notice to the Company) in its (or their) discretion that it is
unacceptable due to age, type, category, quality, quantity and/or any
other reason whatsoever.
Inventory which is at any time Eligible Inventory but which subsequently
fails to meet any of the foregoing requirements shall forthwith cease to
be Eligible Inventory.
Environmental Claims means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability
under any Environmental Law or responsibility for violation of any
Environmental Law, or for release or injury to the environment.
Environmental Indemnity means an unsecured environmental
indemnity in the form of Exhibit S in favor of the Administrative Agent.
Environmental Laws means CERCLA, the Resource Conservation and
Recovery Act and all other federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes relating to
pollution or
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27
protection of public or employee health or the environment, together
with all administrative orders, consent decrees, licenses,
authorizations and permits of any Governmental Authority implementing
them.
ERISA means the Employee Retirement Income Security Act of 1974.
ERISA Affiliate means any trade or business (whether or not
incorporated) under common control with the Company within the meaning
of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the
Code for purposes of provisions relating to Section 412 of the Code).
ERISA Event means: (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a substantial cessation of operations which is treated as
such a withdrawal; (c) a complete or partial withdrawal by the Company
or any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Pension Plan amendment as a
termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer
Plan; (e) an event or condition which might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title
IV of ERISA, other than PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon the Company or any ERISA Affiliate.
Event of Default means any of the events or circumstances
specified in Section 9.1.
Excess Cash Flow means, for any period, the remainder
of
(a) EBITDA of Parent for such period (without giving effect to
any amount included in such EBITDA on a pro forma basis solely by virtue
of the proviso to the definition of "EBITDA"),
less
(b) the sum, without duplication, of
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(i) repayments of principal of Term Loans pursuant to
Section 2.9, regularly scheduled principal payments arising with
respect to any other long-term Indebtedness of the Company and
its Subsidiaries, and the portion of any regularly scheduled
payments with respect to capital leases allocable to principal,
in each case made during such period,
plus
(ii) voluntary prepayments of the Term Loans pursuant to
Section 2.7 during such period (other than any such voluntary
prepayments to the extent that the same are applied during such
period to the scheduled unpaid principal installments of the Term
Loans in forward order of maturity pursuant to Section 2.7),
plus
(iii) cash payments made in such period with respect to
Capital Expenditures,
plus
(iv) all federal, state, local and foreign income taxes
paid by the Company and its Subsidiaries during such period,
plus
(v) cash Interest Expense of the Company and its
Subsidiaries during such period and, to the extent not deducted
in determining EBITDA of Parent, cash payments (other than
payments of principal) made by the Company in connection with
prepayments and repayments of Term Loans under clauses (b)(i) and
(b)(ii) above,
plus
(vi) cash payments made by the Company and its
Subsidiaries in respect of pension liability, workers'
compensation and other post-employment benefits to the extent
such payments exceed book expenses for such items reflected in
the calculation of EBITDA, and
plus
(vii) cash payments made by Parent and its Subsidiaries
during such period in respect of fees and expenses in connection
with the Contadina Acquisition.
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Excess Proceeds - see subsection 2.8(a).
Exchange Act means the Securities Exchange Act of 1934.
Exchange Notes means the 12-1/4% Series B Senior Subordinated
Notes due April 15, 2007 of the Company to be issued pursuant to the
Subordinated Indenture in a principal amount equal to the then
outstanding principal amount of the Subordinated Notes exchanged, as
amended from time to time in accordance with Section 8.23.
Excluded Taxes - see the definition of "Taxes."
Federal Funds Rate means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor, "H.15(519)") on the preceding Business
Day opposite the caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published on any such preceding
Business Day, the rate for such day will be the arithmetic mean as
determined by the Administrative Agent of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day by each of three leading brokers of Federal
funds transactions in New York City selected by the Administrative
Agent.
Fee Letter - see subsection 2.11(a).
Fixed Charge Coverage Ratio means, for the Computation Period
most recently ended on or before such date, the ratio of (a) EBITDA of
Parent for such Computation Period to (b) the sum of (i) Interest
Expense of Parent for such Computation Period (excluding, for purposes
of this definition, any Interest Expense attributable to the Parent
Bridge Notes, Parent Discount Notes or any Qualified Parent Notes) and
(ii) the scheduled installments of principal of the Term Loans for such
Computation Period (excluding therefrom the last four scheduled
installments of principal of Term B Loans to the extent that such
installments are refinanced with Indebtedness maturing after, and having
no mandatory prepayments or sinking fund payments prior to, March 31,
2005 and giving effect to any reduction of such scheduled installments
by virtue of the application of any prepayments or repayments made which
reduce scheduled installments pro rata or in inverse order of maturity
pursuant to Section 2.7 or 2.8); provided, however that with respect to
Computation Periods ending prior to March 31, 1998, Interest Expense of
Parent and scheduled installments of principal of the Term Loans shall
be measured from the
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period from April 1, 1997 through the end of any such Computation Period
and annualized as follows: with respect to the Computation Period ending
December 28, 1997, Interest Expense of Parent and scheduled installments
of principal on the Term Loans during such Computation Period shall be
multiplied by four-thirds.
Foreign Subsidiary shall mean each Subsidiary of the Company
organized under the laws of any jurisdiction other than the United
States or any state thereof.
FRB means the Board of Governors of the Federal Reserve System,
and any Governmental Authority succeeding to any of its principal
functions.
Further Taxes means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges (including net income taxes and franchise taxes), and all
liabilities with respect thereto, imposed by any jurisdiction on account
of amounts paid or payable pursuant to Section 4.1.
GAAP means generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting profession),
which are applicable to the circumstances as of the date of
determination.
Governmental Authority means any nation or government, any state
or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital ownership or otherwise, by
any of the foregoing.
Guarantor means Parent and each Subsidiary that from time to time
executes and delivers a counterpart of the Subsidiary Guaranty.
Guaranty means the Parent Guaranty or the Subsidiary Guaranty, as
applicable.
Guaranty Obligation has the meaning specified in the definition
of Contingent Obligation.
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Hazardous Material means
(a) any "hazardous substance", as defined by
CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous
or toxic chemical, material or substance within the meaning of any other
Environmental Law.
Honor Date - see subsection 3.3(b).
Indebtedness of any Person means, without duplication: (a) all
indebtedness of such Person for borrowed money; (b) all obligations
issued, undertaken or assumed by such Person as the deferred purchase
price of property or services (other than trade payables entered into
and accrued expenses arising in the ordinary course of business on
ordinary terms); (c) all non-contingent reimbursement or payment
obligations with respect to Surety Instruments; (d) all obligations of
such Person evidenced by notes, bonds, debentures or similar
instruments; (e) all indebtedness of such Person created or arising
under any conditional sale or other title retention agreement, or
incurred as financing, in either case 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); (f) all obligations of such
Person with respect to capital leases; (g) all indebtedness referred to
in clauses (a) through (f) above secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including Accounts Receivable
and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness; and
(h) all Guaranty Obligations of such Person in respect of indebtedness
or obligations of others of the kinds referred to in clauses (a) through
(g) above.
Indemnified Liabilities - see Section 11.5.
Indemnified Person - see Section 11.5.
Independent Auditor - see subsection 7.1(a).
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Insolvency Proceeding means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court
or other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief
of debtors or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other, similar
arrangement in respect of such Person's creditors generally or any
substantial portion of such creditors; in each case undertaken under any
U.S. Federal, State or foreign law, including the Bankruptcy Code.
Intellectual Property - see Section 6.14.
Intellectual Property License means the Intellectual Property
License, substantially in the form of Exhibit R, between the Company and
the Administrative Agent dated as of the Closing Date.
Intercreditor Agreement means the Amended and Restated
Intercreditor Agreement, dated as of December 5, 1989, among certain
Creditors (as therein defined), a copy of which is attached hereto as
Exhibit Q.
Interest Expense means as to any Person for any period the
consolidated interest expense of such Person and its Subsidiaries for
such period (including all imputed interest on capital leases) excluding
amortization or write-off of deferred financing costs.
Interest Payment Date means (i) as to any Offshore Rate Loan, the
last day of each Interest Period applicable to such Loan and, in the
case of any Offshore Rate Loan with a six-month Interest Period, the
three-month anniversary of the first day of such Interest Period, and
(ii) as to any Base Rate Loan, the last Business Day of each fiscal
quarter.
Interest Period means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending one, two, three or six
months thereafter, as selected by the Company in its Notice of Borrowing
or Notice of Conversion/Continuation; provided that:
(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 following Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month, in which
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event such Interest Period shall end on the preceding
Business Day;
(ii) 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 the
calendar month at the end of such Interest Period;
(iii) no Interest Period applicable to a Term A Loan or a
Term B Loan or any portion of any thereof shall extend beyond any
date upon which is due any scheduled principal payment in respect
of the Term A Loans or Term B Loans, as applicable, unless the
aggregate principal amount of Term A Loans or Term B Loans, as
applicable, represented by Base Rate Loans, or by Offshore Rate
Loans having Interest Periods that will expire on or before such
date, equals or exceeds the amount of such principal payment; and
(iv) no Interest Period for any Revolving Loan shall
extend beyond the Revolving Termination Date.
Inventory means any and all of the goods of the Company or a
Domestic Subsidiary, wheresoever located, that are held for sale or held
as raw materials, work in process or materials used or consumed in the
business of the Company or the applicable Domestic Subsidiary.
IRS means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
Issuance Date - see subsection 3.1(a).
Issue means, with respect to any Letter of Credit, to issue or
amend such Letter of Credit; and the terms "Issued," "Issuing" and
"Issuance" have corresponding
meanings.
Issuing Lender means BofA in its capacity as issuer of one or
more Letters of Credit hereunder, together with any replacement letter
of credit issuer arising under subsection 10.1(b) or Section 10.9, or
any successor thereto acceptable to the Company, the Administrative
Agent and the predecessor Issuing Lender.
Joint Venture means a corporation, partnership, limited liability
company, joint venture or other similar legal arrangement (whether
created by contract or conducted
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through a separate legal entity) which is not a Subsidiary of the
Company or any of its Subsidiaries and which is now or hereafter formed
by the Company or any of its Subsidiaries with another Person in order
to conduct a common venture or enterprise with such Person.
Judgment Currency - see subsection 3.10(f).
Landlord's Consent means a document substantially in the form of
Exhibit O, with appropriate insertions, or such other form as shall be
acceptable to the Administrative Agent or Required Revolving Lenders.
L/C Advance means each Lender's participation in any L/C
Borrowing in accordance with its Revolving Percentage.
L/C Amendment Application means an application form for amendment
of an outstanding standby or commercial documentary letter of credit as
shall at any time be in use at the Issuing Lender, as the Issuing Lender
shall request.
L/C Application means an application form for issuances of a
standby or commercial documentary letter of credit as shall at any time
be in use at the Issuing Lender, as the Issuing Lender shall request.
L/C Borrowing means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed
on the date when made nor converted into a Borrowing of Revolving Loans
under subsection 3.3(c).
L/C Commitment means the commitment of the Issuing Lender to
Issue, and the commitments of the Lenders severally to participate in,
Letters of Credit from time to time Issued or outstanding under Article
III, in an aggregate amount not to exceed on any date the lesser of
$70,000,000 and the amount of the aggregate amount of all Revolving
Commitments; it being understood that the L/C Commitment is a part of
the Revolving Commitments, rather than a separate, independent
commitment.
L/C Fee Rate -- see the Pricing Schedule.
L/C Obligations means at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus (b) the
amount of all unreimbursed drawings under all Letters of Credit,
including all outstanding L/C Borrowings.
L/C-Related Documents means the Letters of Credit, the
L/C Applications, the L/C Amendment Applications and any
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other document relating to any Letter of Credit, including any of the
Issuing Lender's standard form documents for letter of credit issuances.
Lenders means the several financial institutions from time to
time party to this Agreement. References to the "Lenders" shall include
BofA in its capacity as the Issuing Lender and BofA in its capacity as
Swingline Lender; for purposes of clarification only, to the extent that
the Swingline Lender or the Issuing Lender may have any rights or
obligations in addition to those of the other Lenders due to its status
as Swingline Lender or Issuing Lender, its status as such will be
specifically referenced. For purposes of making any determination with
respect to Citicorp USA, Inc. under Section 4.2 or 4.3, "Lender" shall
be deemed to include Citibank.
Lender Party means (i) any Lender or any Agent or (ii) any
Affiliate of any Lender that is party to a Swap Contract with the
Company.
Lending Office means, as to any Lender, the office or offices of
such Lender specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, on Schedule
11.2, or such other office or offices as such Lender may from time to
time specify to the
Company and the Administrative Agent.
Letters of Credit means any letters of credit (whether standby
letters of credit or commercial documentary letters of credit) Issued by
the Issuing Lender pursuant to Article III.
Liabilities means (i) all Obligations owing by the Company,
Parent or any Subsidiary (including post-petition interest) and (ii) all
Permitted Swap Obligations (monetary or otherwise) of the Company under
any Swap Contract with a Lender Party (other than Swap Contracts that,
by their terms, are unsecured); provided, however, that the term
"Liabilities" shall not include any obligations arising under any
Environmental Indemnity.
Lien means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a
capital lease, or any financing lease having substantially the same
economic effect as any of the foregoing, but not
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including the interest of a lessor under an operating
lease).
Loan means an extension of credit by a Lender to the Company
under Article II or Article III in the form of a Revolving Loan, Term
Loan, Swingline Loan or L/C Advance. Each Revolving Loan and each Term
Loan may be divided into tranches which are Base Rate Loans or Offshore
Rate Loans (each a "Type" of Loan).
Loan Documents means this Agreement, any Notes, the Fee Letter,
the fee letter delivered to BofA in connection with this Agreement, the
L/C-Related Documents, the Guaranties, the Collateral Documents and all
other documents delivered to the Administrative Agent or any Lender in
connection herewith or therewith.
Mandatory Prepayment Event - see subsection 2.8(a).
Margin Stock means "margin stock" as such term is defined in
Regulation G, T, U or X of the FRB.
Material Adverse Effect means: (a) a material adverse change in,
or a material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of the Company and its
Subsidiaries taken as a whole; (b) a material impairment of the ability
of the Company, Parent or any Subsidiary to perform any of its
obligations under any Loan Document; (c) a material adverse effect upon
the legality, validity, binding effect or enforceability against the
Company, Parent or any Subsidiary of any Loan Document; or (d) a
material adverse effect upon the Lien of any Collateral Document or a
material impairment of the rights, powers and remedies of the
Administrative Agent or any Lender under any Loan Document.
Material Subsidiary means a Subsidiary of the Company that meets
any of the following criteria:
(i) the assets of such Subsidiary and its Subsidiaries exceed 3%
of the consolidated assets (giving effect to intercompany eliminations)
of the Company and its Subsidiaries;
(ii) the revenues of such Subsidiary and its Subsidiaries for any
fiscal quarter exceed 3% of the consolidated revenues (giving effect to
intercompany eliminations) of the Company and its Subsidiaries for such
period; or
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(iii) the investments of the Company and its other Subsidiaries
in and advances to such Subsidiary and its Subsidiaries exceed 3% of the
consolidated assets (giving effect to intercompany eliminations) of the
Company and its Subsidiaries.
Maximum New Term B Commitment Amount - see subsection 2.1(b).
Merger means the merger of TPG Acquisition with and into Parent
pursuant to the terms of the Merger Agreement.
Merger Agreement means the Agreement and Plan of Merger, dated as
of February 21, 1997, among TPG Partners, TPG Acquisition and Parent, as
amended and restated as of April 14, 1997, and as amended from time to
time in accordance with Section 8.23.
▇▇▇▇ Mac means ▇▇▇▇ Mac IHC, Inc., a Delaware corporation and a
Subsidiary.
Mortgage means a mortgage, leasehold mortgage, deed of trust or
similar document granting a Lien on real property in appropriate form
for filing or recording in the applicable jurisdiction and otherwise
reasonably satisfactory to the Administrative Agent.
Multiemployer Plan means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, with respect to which the
Company or any ERISA Affiliate may have any liability.
Net Cash Proceeds means:
(a) with respect to the sale, transfer, or other
disposition by the Company or any Subsidiary of any
asset (including any stock of any Subsidiary or any
Accounts Receivable pursuant to a Permitted Receivables
Facility), the aggregate cash proceeds (including cash
proceeds received by way of deferred payment of
principal pursuant to a note, installment receivable or
otherwise, but only as and when received) received by
the Company or any Subsidiary pursuant to such sale,
transfer or other disposition, net of (i) the direct
costs relating to such sale, transfer or other
disposition (including sales commissions and legal,
accounting and investment banking fees), (ii) taxes
paid or reasonably estimated by the Company to be
payable as a result thereof (after taking into account
any available tax credits or deductions and any tax
sharing arrangements), (iii) amounts required to be
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applied to the repayment of any Indebtedness secured by a Lien on
the asset subject to such sale, transfer or other disposition
(other than the Loans) and (iv) appropriate amounts to be
provided by the Company or any Subsidiary, as the case may be, as
a reserve, in accordance with GAAP, against any liabilities
associated with such sale, transfer or other disposition and
retained by the Company or any Subsidiary, as the case may be,
after such sale, transfer or other disposition, including pension
and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any
indemnification obligations associated with such sale, transfer
or other disposition; and
(b) with respect to any issuance of equity securities or Other Debt,
the aggregate cash proceeds received by the Company or any
Subsidiary pursuant to such issuance, net of the direct costs
relating to such issuance (including sales and underwriter's
commissions, private placement fees and legal, accounting and
investment banking fees).
Net Worth means Parent's consolidated stockholders' equity
(without giving effect to any decrease in retained earnings of Parent
caused by a dividend on the TPG Acquisition Preferred Stock that is paid
in kind) plus, without duplication, the liquidation preference of all
outstanding TPG Acquisition Preferred Stock (without giving effect to
any increase in such TPG Acquisition Preferred Stock caused by a
dividend on the TPG Acquisition Preferred Stock that is paid in kind).
New Parent Equity - see the recitals.
New Term B Funding Date - see Section 5.4.
New Term B Lender means each financial institution signatory
hereto as a "New Term B Lender."
New Term B Loan - see subsection 2.1(b).
New Term B Percentage means, as to any New Term B Lender, the
percentage set forth opposite its signature hereto as a "New Term B
Lender", as such percentage may be adjusted after the date hereof by
assignment in accordance with subsection 11.8(a).
Non-Dollar Letter of Credit - see Section 3.10.
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Note means a promissory note executed by the Company in favor of
a Lender pursuant to subsection 2.2(b), in substantially the form of
Exhibit D.
Note and Warrant Escrow Agreement means an escrow agreement, in
form and substance satisfactory to the Administrative Agent, among the
lenders in the Bridge Financing, if any, and an escrow agent, to handle
the escrow of exchange notes and warrants as amended from time to time
in accordance with Section 8.23.
Notice of Borrowing means a notice in substantially the form of
Exhibit A.
Notice of Conversion/Continuation means a notice in substantially
the form of Exhibit B.
Obligations means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document owing by the
Company, Parent or any Subsidiary to any Lender, the Administrative
Agent, or any Indemnified Person, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become
due, or now existing or hereafter arising; provided, that "Obligations"
shall not include any obligations under any Environmental Indemnity.
Offering Memorandum means the Offering Memorandum of Parent dated
December 9, 1997 with respect to the Parent Discount Notes.
Offshore Rate means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward, if necessary, to the next 1/16th of
1%) determined by the Administrative Agent as follows:
Offshore Rate = IBOR
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any
Interest Period the maximum reserve percentage (expressed as a
decimal, rounded upward, if necessary, to the next 1/100th of 1%)
in effect on such day (whether or not applicable to any Lender)
under regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding
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(currently referred to as "Eurocurrency liabilities");
and
"IBOR" means the rate of interest per annum determined on the
basis of the rate for deposits in Dollars for a period equal to
such Interest Period commencing on the first day of such Interest
Period appearing on Page 3750 of the Telerate screen as of 11:00
a.m., London time, two Business Days prior to the beginning of
such Interest Period. In the event that such rate does not appear
on Page 3750 of the Telerate Service (or otherwise on such
service), "IBOR" for purposes of this definition shall be
determined by the Administrative Agent as the rate at which
Dollar deposits in the approximate amount of BofA's Offshore Rate
Loan for such Interest Period would be offered by BofA's Grand
Cayman Branch, Grand Cayman B.W.I. (or such other office as may
be designated for such purpose by BofA), to major banks in the
offshore dollar interbank market at their request at
approximately 11:00 a.m. (New York City time) two Business Days
prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to all
Offshore Rate Loans then outstanding as of the effective date of any
change in the Eurodollar Reserve Percentage.
Offshore Rate Loan means a Loan that bears interest based on the
Offshore Rate.
Organization Documents means, (a) for any domestic corporation,
the certificate or articles of incorporation, the bylaws, any
certificate of determination or instrument relating to the rights of
preferred shareholders of such corporation, any shareholder rights
agreement, and all applicable resolutions of the board of directors (or
any committee thereof) of such corporation and (b) for any foreign
corporation, the equivalent documents.
Original Credit Agreement - see the recitals.
Original Term B Loans - see subsection 2.4(d).
Other Debt means debt securities of Parent, the Company and its
Subsidiaries, other than as expressly permitted by (i) Section 8.5 or,
(ii) with respect to Parent, the Parent Guaranty.
Other Taxes means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made
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hereunder or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, this Agreement or any
other Loan Document.
Overnight Rate - see subsection 3.10(g).
Parent means Del Monte Foods Company, a Maryland
corporation.
Parent Bridge Note Agreement means a securities purchase
agreement among Parent and certain financial institutions, and
acceptable to the Administrative Agent, that definitively documents the
issuance and sale of Parent Bridge Notes, as amended from time to time
in accordance with Section 8.23.
Parent Bridge Notes means (i) the $60,000,000 Senior Unsecured
Increasing Rate Loans made to Parent due one year after issuance thereof
and (ii) the exchange notes to be issued by Parent upon exchange of the
loans described in clause (i) above upon maturity thereof.
Parent Discount Indenture means a trust indenture entered into by
Parent with an indenture trustee with respect to the Parent Discount
Notes with terms and provisions no more restrictive to the Parent and no
less advantageous to the Lenders than those described in the Offering
Memorandum, as amended from time to time in accordance with Section
8.23.
Parent Discount Notes means the $125,524,000 gross proceeds 12.5%
Senior Discount Notes due 2007 of Parent having the terms and conditions
set forth in the Offering
Memorandum.
Parent Guaranty means the amended and restated guaranty,
substantially in the form of Exhibit F-1, which will be executed by
Parent on the Restatement Date.
Parent Pledge Agreement means the Parent Pledge Agreement, dated
as of the Closing Date, between the Parent and the Administrative Agent,
in the form of Exhibit G-1.
Participant - see subsection 11.8(c).
Patent Security Agreement means a patent security agreement in
the form attached to a Security Agreement.
PBGC means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
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Pension Plan means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA with respect to which the Company or
any ERISA Affiliate may have any liability.
Permitted Liens - see Section 8.1.
Permitted Receivables Facility means any receivables financing
facility arrangement entered into by the Company providing for the
discount, sale or other transfer of its Accounts Receivable on a
nonrecourse basis for a transfer price at least equivalent to the
advance rate on such Accounts Receivable hereunder and otherwise on
terms and conditions (including repurchase provisions) satisfactory to
the Required Lenders.
Permitted Security Agreements means the Intellectual Property
Security Agreements and Assignments between the Company and Wafer
Limited and the Company and Del Monte Tropical Fruit Company, North
America, each dated December 5, 1989, the Intellectual Property Security
Agreement and Assignment dated as of January 9, 1990 between the Company
and Kikkoman Corporation, the Intellectual Property Security Agreement
and Assignment dated as of May 9, 1990 between the Company and Del Monte
Foods Limited, the Intellectual Property Security Agreement and
Assignment dated as of May 9, 1990 between the Company and Del Monte
International, Inc., and any other security agreements between the
Company and a licensee of Intellectual Property to secure the damages,
if any, of such licensee resulting from the rejection of the license of
such licensee in a bankruptcy, reorganization or similar proceeding with
respect to the Company; provided that each such Permitted Security
Agreement shall be subject to the Intercreditor Agreement.
Permitted Swap Obligations means all obligations (contingent or
otherwise) of the Company or any Subsidiary existing or arising under
Swap Contracts, provided that each of the following criteria is
satisfied: (a) such obligations are (or were) entered into by such
Person in the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments or assets held
or reasonably anticipated by such Person, or changes in the value of
securities issued by such Person in conjunction with a securities
repurchase program not otherwise prohibited hereunder, and not for
purposes of speculation or taking a "market view;" and (b) such Swap
Contracts do not contain (i) any provision ("walk-away" provision)
exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party or (ii) if
the counterparty is not a
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Lender Party, any provision creating or permitting the declaration of an
event of default, termination event or similar event upon the occurrence
of an Event of Default hereunder (other than an Event of Default under
subsection 9.1(a)).
Person means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
Plan means an employee benefit plan (as defined in Section 3(3)
of ERISA) with respect to which the Company may have any liability.
Pledge Agreement means the Parent Pledge Agreement, the
Company Pledge Agreement and each Subsidiary Pledge
Agreement.
Prior Financing Agreements has the meaning assigned thereto in
the Original Credit Agreement.
Public Offering means an offering of equity securities or
Indebtedness registered under the Securities Act of 1933.
Qualified Indenture means a trust indenture entered into by the
Company with an indenture trustee with terms and provisions no more
restrictive to the Company than the Subordinated Indenture, and with
terms no less advantageous to the Lenders than the terms of the
Subordinated Indenture, as amended from time to time in accordance with
Section 8.23.
Qualified Notes means subordinated notes of the Company which
shall not require scheduled payments of principal prior to April 15,
2007, which shall not require cash interest payments thereon at a rate
in excess of 12-1/4% per annum, and which are issued pursuant to a
Qualified Indenture, as such notes may be amended from time to time in
accordance with Section 8.23.
Qualified Parent Indenture means a trust indenture entered into
by Parent with an indenture trustee with terms and provisions no more
restrictive to the Parent and no less advantageous to the Lenders than
those described in the Offering Memorandum with respect to the Parent
Discount Notes, as amended from time to time in accordance with Section
8.23.
Qualified Parent Notes means notes of Parent in an
aggregate principal amount not to exceed the amount
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necessary to pay all principal, interest, premium, if any, of the Parent
Discount Notes or, if applicable, a prior issuance of Qualified Parent
Notes, plus customary fees and expenses incurred in connection with the
issuance of the refinancing notes, which shall not require scheduled
payments of principal prior to April 15, 2007 and shall not require
payments of interest in cash thereon prior to June 15, 2003, with terms
and provisions not materially more restrictive to the Parent and not
materially less advantageous to the Lenders than those described in the
Offering Memorandum with respect to the Parent Discount Notes and which
are issued pursuant to a Qualified Parent Indenture, as amended from
time to time in accordance with Section 8.23.
Qualified Parent Refinancing means a refinancing of the Parent
Bridge Notes or Parent Discount Notes with Qualified Parent Notes or a
refinancing of Qualified Parent Notes with a subsequent issuance of
Qualified Parent Notes.
Qualified Refinancing means a refinancing of the Subordinated
Notes or the Exchange Notes with Qualified Notes; provided, that the
aggregate principal amount of Qualified Notes issued in connection
therewith does not exceed the aggregate principal amount of the
Indebtedness so refinanced unless the excess is applied as set forth in
subsection 2.8(a)(vi).
Release means a "release", as such term is defined in CERCLA.
Replacement Lender - see Section 4.7.
Reportable Event means any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC or administrative
pronouncements.
Required Lenders means, at any time, Lenders having an aggregate
Total Percentage of more than 50%.
Required Revolving Lenders means, at any time,
Revolving Lenders having an aggregate Revolving Percentage
of more than 50%.
Required Term A Lenders means, at any time, Term A Lenders having
an aggregate Term A Percentage of more than 50%.
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45
Required Term B Lenders means, at any time, Term B Lenders having
an aggregate Term B Percentage of more than 50%.
Requirement of Law means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or
of a 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.
Resource Conservation and Recovery Act means the
Resource Conservation and Recovery Act, 42 U.S.C. Section
690, et seq.
Responsible Officer means the chief executive officer, chief
operating officer or the president of the Company, or any other officer
having substantially the same authority and responsibility or the chief
financial officer, the treasurer or the chief accounting officer of the
Company, or any other officer having substantially the same authority
and responsibility.
Restatement Date - see Section 5.1.
Revolving Commitment means, as to any Lender, the commitment of
such Lender to make Revolving Loans pursuant to subsection 2.1(c). The
initial amount of each Revolving Lender's Revolving Commitment is set
forth across from such Lender's name on Schedule 1.1.
Revolving Lender means, at any time, a Lender with a Revolving
Commitment at such time or which then holds any Revolving Loan.
Revolving Loan - see subsection 2.1(c).
Revolving Percentage means, as to any Lender, the percentage
which (a) prior to the termination of the Revolving Commitments, (x) the
amount of such Lender's Revolving Commitment is of (y) the aggregate
amount of all of the Revolving Lenders' Revolving Commitments and (b)
after the termination of the Revolving Commitments, (x) the amount of
such Lender's Revolving Loans is of (y) the aggregate amount of all
Revolving Loans of all Revolving Lenders.
Revolving Termination Date means the earlier to occur of:
(a) March 31, 2003; and
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(b) the date on which the Revolving Commitments terminate
in accordance with the provisions of this Agreement.
SEC means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
Secured Proceeds Account means an account maintained by Parent
pursuant to the Parent Discount Indenture in which Parent has granted to
the trustee for the Parent Discount Notes, if any, a security interest
in, and into which Parent has deposited with such trustee, an amount in
cash equal to the amount required to redeem the Parent Discount Notes as
contemplated by the Offering Memorandum.
Security Agreement means either the Security Agreement (Company
and Parent) or the Subsidiary Security Agreement.
Security Agreement (Company and Parent) means the Security
Agreement, dated as of the Closing Date, among the Company, Parent and
the Administrative Agent in the form of Exhibit E-1 hereto.
Seller - see the recitals.
Senior Debt Ratio means for each Computation Period the
ratio of
(i) the quotient of (A) the sum of the aggregate
outstanding principal amount of all Total Debt (other than
Subordinated Debt) as of the last day of each of the last twelve
fiscal months divided by (B) twelve
to
(ii) EBITDA of Parent for such Computation Period most
recently ended on or before such date;
provided, however, that (x) with respect to the Computation Period
ending June 30, 1997, clause (i) shall be the quotient of (1) the sum of
the aggregate outstanding principal amount of all Total Debt (other than
Subordinated Debt) as of the last day of the last three fiscal months
divided by (2) three, (y) with respect to the Computation Period ending
September 28, 1997, clause (i) shall be the quotient of (1) the sum of
the aggregate outstanding principal amount of all Total Debt (other than
Subordinated Debt) as of the last day of the last six fiscal months
divided by (2) six and (z) with respect to the Computation Period ending
December 28, 1997, clause (i) shall be the
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quotient of (1) the sum of the aggregate outstanding principal amount of
all Total Debt (other than Subordinated Debt) as of the last day of the
last nine fiscal months divided by (2) nine.
Standby Letter of Credit means any Letter of Credit that is not a
Commercial Letter of Credit.
Subordinated Debt means the Subordinated Notes, the Exchange
Notes and any Qualified Notes and all other unsecured Indebtedness of
the Company for borrowed money which is subject to, and is only entitled
to the benefits of, terms and provisions (including maturity,
amortization, acceleration, interest rate, sinking fund, covenant,
default and subordination provisions) satisfactory in form and substance
to the Required Lenders, as evidenced by their written approval thereof
(which may be granted or withheld in their sole discretion).
Subordinated Debt Proceeds means, at any time, the lesser of (x)
the aggregate original principal amount of, or (y) the gross proceeds
received by the Company (before deduction of underwriting discounts,
placement fees and all other related fees and expenses) upon issuance
of, all outstanding Subordinated Notes, Exchange Notes or Qualified
Notes of the Company at such time.
Subordinated Indenture means the indenture governing the
Subordinated Notes and the Exchange Notes, as amended from time to time
in accordance with Section 8.23.
Subordinated Note Purchase Agreement means the Purchase Agreement
dated as of April 15, 1997 relating to the Subordinated Notes, as
amended from time to time in accordance with Section 8.23.
Subordinated Notes means the 12-1/4% Senior Subordinated Notes
due April 15, 2007 of the Company issued under the Subordinated
Indenture, as amended from time to time in accordance with Section 8.23.
Subsidiary of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests
or other equity interests is owned or controlled directly or indirectly
by such Person, or one or more of the Subsidiaries of such Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the
Company.
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Subsidiary Guaranty means the guaranty, substantially in the form
of Exhibit F-2, which may be executed from time to time by certain
Subsidiaries of the Company.
Subsidiary Pledge Agreement means the Subsidiary Pledge
Agreement, dated as of the Closing Date, between ▇▇▇▇ Mac and the
Administrative Agent in the form of Exhibit G-3; such pledge agreement
may be joined after the Closing Date by other Subsidiaries.
Subsidiary Security Agreement means the security agreement,
substantially in the form of Exhibit E-2, which may be executed from
time to time by certain Subsidiaries of the Company.
Surety Instruments means all letters of credit (including standby
and commercial), banker's acceptances, bank guaranties, surety bonds and
similar instruments.
Swap Contract means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity
index swap or option, bond, note or ▇▇▇▇ option, interest rate option,
forward foreign exchange transaction, cap, collar or floor transaction,
currency swap, cross-currency rate swap, swaption, currency option or
any other, similar transaction (including any option to enter into any
of the foregoing) or any combination of the foregoing, and, unless the
context otherwise clearly requires, any master agreement relating to or
governing any or all of the foregoing.
Swap Termination Value means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced
in clause (a) the amount(s) determined as the ▇▇▇▇-to-market value(s)
for such Swap Contracts, as determined based upon one or more mid-market
or other readily available quotations provided by any recognized dealer
in such Swap Contracts (which may include any Lender).
Swingline Lender means BofA in its capacity as lender of
Swingline Loans together with any replacement lender of Swingline Loans
arising under Section 10.9.
Swingline Loan has the meaning specified in subsection 2.5(a).
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Tax Sharing Agreement means the Tax Sharing Agreement dated as of
January 9, 1990 by and between Parent and the Company, as the same may
be amended from time to time in accordance with Section 8.23.
Taxes means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, charges or withholdings, fees
or similar charges and all liabilities with respect thereto, excluding,
in the case of each Lender and the Administrative Agent, such taxes
(including income taxes, branch profit taxes or franchise taxes) as are
imposed on or measured by such Lender's or the Administrative Agent's,
as the case may be, net income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Lender or the
Administrative Agent, as the case may be, is organized, maintains a
lending office or conducts business (collectively, "Excluded Taxes").
Term A Commitment means, as to any Lender, the commitment of such
Lender to make a Term A Loan pursuant to subsection 2.1(a).
Term A Lender means, at any time, a Lender with a Term A
Commitment at such time or which then holds any Term A Loan.
Term A Loan - see subsection 2.1(a).
Term A Percentage means, as to any Lender, the percentage which
(a) the Term A Commitment of such Lender (or, after the making of the
Term A Loans, the principal amount of such Lender's Term A Loan) is of
(b) the aggregate amount of Term A Commitments (or after the making of
the Term A Loans, the aggregate principal amount of all Term A Loans).
The initial Term A Percentage of each Lender is set forth across from
such Lender's name on Schedule 1.1.
Term B Commitment means, as to any Lender, the commitment of such
Lender to make a Term B Loan pursuant to subsection 2.1(b).
Term B Lender means, at any time, a Lender with a Term B
Commitment at such time or which then holds any Term B Loan.
Term B Loan - see subsection 2.1(b).
Term B Percentage means, as to any Lender, the percentage which
(a) the aggregate amount of such Lender's commitment to make New Term B
Loans plus the outstanding
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principal amount of such Lender's Term B Loans is of (b) the aggregate
amount of the commitments to make New Term B Loans of all Lenders plus
the outstanding principal amount of all Term B Loans. The Term B
Percentage in effect on the date hereof of each Lender is set forth
across from such Lender's name on Schedule 1.1.
Term Loan means a Term A Loan or a Term B Loan.
Total Debt means (i) total Indebtedness of Parent and its
Subsidiaries at the time of determination less (ii) Indebtedness of the
type described in clause (c) of the definition of "Indebtedness" in
respect of Surety Instruments under which Parent or any Subsidiary has
only an unmatured payment obligation determined at such time less (iii)
Indebtedness of the type described in clauses (g) and (h) of the
definition of "Indebtedness" in respect of Indebtedness at such time
described in clause (ii) above less (iv) any amounts outstanding under
any Parent Bridge Notes or Parent Discount Notes and any Qualified
Parent Notes.
Total Debt Ratio means as of June 30 of each year the ratio of
(i) the aggregate outstanding principal amount of
all Total Debt as of such day
to
(ii) EBITDA of Parent for the fiscal year ended on such
date.
Total Percentage means, as to any Lender, the percentage which
(a) the aggregate amount of such (i) Lender's Revolving Commitment plus
(ii) the outstanding principal amount of such Lender's Term A Loans plus
(iii) the aggregate amount of such Lender's commitment to make New Term
B Loans plus the outstanding principal amount of such Lender's Term B
Loans is of (b) the aggregate amount of (i) the Revolving Commitments of
all Lenders plus (ii) the outstanding principal amount of all Term A
Loans plus (iii) the aggregate amount of the commitments to make New
Term B Loans of all New Term B Lenders plus the outstanding principal
amount of all Term B Loans; provided that, after the Revolving
Commitments have been terminated, "Total Percentage" shall mean as to
any Lender the percentage which the aggregate principal amount of such
Lender's Loans is of the aggregate principal amount of all Loans. The
initial Total Percentage of each Lender is set forth opposite such
Lender's name on Schedule 1.1.
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TPG Acquisition means TPG Shield Acquisition Corporation, a
Maryland corporation.
TPG Acquisition Preferred Stock means the 14% Series C Redeemable
Preferred Stock, liquidation preference $1,000 per share, of Parent.
TPG Agreements means (i) the Management Advisory Agreement, dated
as of April 18, 1997, between the Company and TPG Partners and (ii) the
Transaction Advisory Agreement, dated as of April 18, 1997, between the
Company and TPG Partners, in each case as amended from time to time in
accordance with Section 8.23.
TPG Partners means TPG Partners, L.P., a Delaware limited
partnership.
Trademark Security Agreement means a trademark security agreement
in the form attached to a Security Agreement.
Type has the meaning specified in the definition of "Loan."
Unfunded Pension Liability means the excess of a Pension Plan's
accumulated benefit obligations over the current value of such Pension
Plan's assets, determined in accordance with SFAS No. 87 as of the
Company's most recent fiscal year end prior to the date of
determination.
United States and U.S. each means the United States of America.
Unmatured Event of Default means any event or circumstance which,
with the giving of notice, the lapse of time, or both, would (if not
cured or otherwise remedied during such time) constitute an Event of
Default.
Warehouseman's Consent means a document substantially in the form
of Exhibit P, with appropriate insertions, or such other form as shall
be acceptable to the Administrative Agent or Required Revolving Lenders.
Wholly-Owned Subsidiary means any corporation in which (other
than director's qualifying shares or due to native ownership
requirements) 100% of the capital stock of each class is owned
beneficially and of record by the Company or by one or more other
Wholly-Owned Subsidiaries.
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1.2 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words
refer to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including";
the words "to" and "until" each mean "to but excluding"; and the word
"through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(f) This Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms. Unless otherwise expressly
provided herein, any reference to any action of the Administrative Agent, the
Lenders, the Required Lenders, the Required Term A Lenders, the Required Term B
Lenders or the Required Revolving Lenders by way of consent, approval or waiver
shall be deemed modified by the phrase "in its/their sole discretion."
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(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agents, the Company
and the other parties, and are the products of all parties. Accordingly, they
shall not be construed against the Lenders or the Agents merely because of the
Lenders' or the Agents' involvement in their preparation.
1.3 Accounting Principles.
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP, consistently applied; provided that if the Company notifies the
Administrative Agent that the Company wishes to amend any covenant in Article
VIII or any corresponding definition to eliminate the effect of any change in
GAAP after the date hereof on the operation of such covenant (or if the
Administrative Agent notifies the Company that the Required Lenders wish to
amend Article VIII or any corresponding definition for such purpose), then the
Company's compliance with such covenant shall be determined on the basis of GAAP
in effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Company and the Required Lenders.
(b) References herein to "fiscal year" and "fiscal quarter" refer
to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments. (a) The Term A Credit. On the
Closing Date, each Term A Lender a party to the Original Credit Agreement on
such date made a single loan to the Company (each such loan, a "Term A Loan") on
the Closing Date in an amount not to exceed such Term A Lender's Term A
Percentage (determined as of such date) of $200,000,000. Amounts borrowed as
Term A Loans which are repaid or prepaid by the Company may not be reborrowed.
The Term A Commitments expired concurrently with the making of the Term A Loans
on the Closing Date.
(b) The Term B Credit. On the Closing Date, each Term B Lender a
party to the Original Credit Agreement on such date made a loan to the Company
in an amount equal such Term B Lender's Term B Percentage (determined as of such
date) of $180,000,000. Each New Term B Lender severally agrees, on the terms and
conditions set forth herein, to make on the New Term B Funding Date a loan (a
"New Term B Loan") to the Company equal to
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such New Term B Lender's New Term B Percentage of an amount not to exceed
$85,000,000 (the "Maximum New Term B Commitment Amount"); the Maximum New Term B
Commitment Amount shall be reduced by the amount (rounded, if necessary, to the
nearest whole integral multiple of $1,000,000) by which the gross proceeds of
the Parent Bridge Notes or Parent Discount Notes exceeds $90,524,800; the
Maximum New Term B Commitment Amount also may be reduced (i) at the Company's
option, by the first $30,000,000 of Excess Proceeds in the manner described in
subsection 2.8(a) and (ii) upon written notice to the Administrative Agent, in
such amount as may be specified by the Company in such notice. All such loans
referred to in the two immediately preceding sentences (including the New Term B
Loans) are collectively referred to herein as the "Term B Loans". Amounts
borrowed as Term B Loans which are repaid or prepaid by the Company may not be
reborrowed. After the making of the New Term B Loans on the New Term B Funding
Date, the commitments of the Lenders to make New Term B Loans shall be deemed to
be zero.
(c) The Revolving Credit. Each Revolving Lender severally agrees,
on the terms and conditions set forth herein, to make loans to the Company (each
such loan, a "Revolving Loan"), from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date, in an aggregate
amount not to exceed at any time outstanding such Revolving Lender's Revolving
Percentage of the aggregate amount of the Revolving Commitments; provided that,
after giving effect to any Borrowing of Revolving Loans, (x) the sum of the
Effective Amount of all Revolving Loans plus the Effective Amount of all
Swingline Loans plus the Effective Amount of all L/C Obligations shall not
exceed (y) the lesser of (1) the aggregate amount of the Revolving Commitments
and (2) the Borrowing Base. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Company may borrow under this subsection
2.1(c), prepay under Section 2.7 and reborrow under this subsection 2.1(c).
2.2 Loan Accounts. (a) The Loans made by each Lender and the Letters of
Credit Issued by the Issuing Lender shall be evidenced by one or more accounts
or records maintained by such Lender or the Issuing Lender, as the case may be,
in the ordinary course of business. The accounts or records maintained by the
Administrative Agent, the Issuing Lender and each Lender shall be conclusive
(absent manifest error) as to the amount of the Loans made by the Lenders to the
Company and the Letters of Credit Issued for the account of the Company, and the
interest and payments thereon. Any failure to record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Company
hereunder to pay any amount owing with respect to any Loan or any Letter of
Credit.
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(b) Upon the request of any Lender made through the
Administrative Agent, the Loans made by such Lender may be evidenced by one or
more Notes in addition to loan accounts. Each such Lender shall endorse on the
schedules annexed to its Note(s) the date, amount and maturity of each Loan made
by it and the amount of each payment of principal made by the Company with
respect thereto. Each such Lender is irrevocably authorized by the Company to
endorse its Note(s) and each Lender's record shall be conclusive absent manifest
error; provided that the failure of a Lender to make, or an error in making, a
notation thereon with respect to any Loan shall not limit or otherwise affect
the obligations of the Company hereunder or under any Note to such Lender.
2.3 Procedure for Borrowing. (a) Each Borrowing shall be made upon the
Company's irrevocable written notice delivered to the Administrative Agent in
the form of a Notice of Borrowing (which notice must be received by the
Administrative Agent (i) prior to 11:00 a.m. (Chicago time) three Business Days
prior to the requested Borrowing Date, in the case of Offshore Rate Loans and
(ii) prior to 11:00 a.m. (Chicago time) one Business Day prior to the requested
Borrowing Date, in the case of Base Rate Loans), specifying:
(A) the amount of the Borrowing, which shall be in an
amount of $5,000,000 or a higher integral multiple of $100,000;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Borrowing (subject to
Section 2.16); and
(D) in the case of Offshore Rate Loans, the duration of
the Interest Period applicable to such Loans included in such
notice.
(b) The Administrative Agent will promptly notify each Lender of
its receipt of any Notice of Borrowing and of the amount of such Lender's share
of the related Borrowing based upon such Lender's Revolving Percentage, Term A
Percentage or Term B Percentage, as applicable. Notwithstanding the immediately
preceding sentence, any Borrowing of New Term B Loans shall be made by the New
Term B Lenders in accordance with their respective New Term B Percentages, and
any Term B Lender that is not a New Term B Lender shall have no obligation to
make any New Term B Loan.
(c) Each Lender will make the amount of its share of each
Borrowing available to the Administrative Agent for the
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account of the Company at the Agent's Payment Office by 1:00 p.m. (Chicago time)
on the Borrowing Date requested by the Company in funds immediately available to
the Administrative Agent. The proceeds of all Loans will then be made available
to the Company by the Administrative Agent at such office by crediting the
account of the Company on the books of BofA with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
(d) After giving effect to any Borrowing, there may not be more
than twelve different Interest Periods in effect.
2.4 Conversion and Continuation Elections. (a) The Company
may, upon irrevocable written notice to the Administrative Agent
in accordance with subsection 2.4(b):
(i) elect to convert, on any Business Day, any Base Rate Loans
(in an aggregate amount of $5,000,000 or a higher integral multiple of
$100,000) into Offshore Rate Loans;
(ii) elect to convert, on the last day of the applicable Interest
Period, any Offshore Rate Loans (or any part thereof in an aggregate
amount of $5,000,000 or a higher integral multiple of $100,000) into
Base Rate Loans; or
(iii) elect to continue, as of the last day of the applicable
Interest Period, any Offshore Rate Loans having Interest Periods
expiring on such day (or any part thereof in an aggregate amount of
$5,000,000 or a higher integral multiple of $100,000);
provided that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing shall have been reduced, by payment, prepayment or
conversion of part thereof, to be less than $5,000,000, such Offshore Rate Loans
shall automatically convert into Base Rate Loans.
(b) The Company shall deliver a Notice of Conversion/Continuation
to be received by the Administrative Agent not later than (i) 11:00 a.m.
(Chicago time) at least three Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into or continued
as Offshore Rate Loans and (ii) not later than 11:00 a.m. (Chicago time) one
Business Day prior to the Conversion/Continuation Date, if the Loans are to be
converted into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
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(B) the aggregate principal amount of Loans to be
converted or continued;
(C) the Type of Loans resulting from the proposed
conversion or continuation; and
(D) in the case of conversions into Offshore Rate Loans,
the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans, the Company has failed to select timely a new Interest
Period to be applicable to such Offshore Rate Loans, the Company shall be deemed
to have elected to convert such Offshore Rate Loans into Base Rate Loans
effective as of the expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify each Lender of
its receipt of a Notice of Conversion/Continuation or, if no timely notice is
provided by the Company, the Administrative Agent will promptly notify each
Lender of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective outstanding
principal amounts of the Loans held by each Lender with respect to which the
notice was given. Notwithstanding the immediately preceding sentence, for a
period of 30 days after the New Term B Funding Date, the Company may effect
conversions and continuations of New Term B Loans, on the one hand, and Term B
Loans that are not New Term B Loans ("Original Term B Loans"), on the other
hand, on the following basis: (a) all conversions and continuations of New Term
B Loans shall be made ratably according to the respective outstanding principal
amounts of the New Term B Loans held by each Lender with respect to which the
applicable Notice of Conversion/Continuation was given; and (b) all conversions
and continuations of Original Term B Loans shall be made ratably according to
the respective outstanding principal amounts of the Original Term B Loans held
by each lender with respect to which the applicable Notice of
Conversion/Continuation was given.
(e) Unless the Required Lenders otherwise agree, during the
existence of an Event of Default or Unmatured Event of Default, the Company may
not elect to have a Loan converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of
Loans, there may not be more than twelve different Interest Periods in effect.
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2.5 Swingline Loans.
(a) Subject to the terms and conditions hereof, the Swingline
Lender may, in its sole discretion (subject to subsection 2.5(b)), make a
portion of the Revolving Commitments available to the Company by making
swingline loans (each such loan, a "Swingline Loan") to the Company on any
Business Day during the period from the Closing Date to the Revolving
Termination Date in accordance with the procedures set forth in this Section 2.5
in an aggregate principal amount at any one time outstanding not to exceed the
lesser of (x) the lesser of (1) the aggregate available amount of the Revolving
Commitments and (2) the Borrowing Base and (y) $25,000,000, notwithstanding the
fact that such Swingline Loans, when aggregated with the Swingline Lender's
outstanding Revolving Loans, may exceed the Swingline Lender's Revolving
Percentage of the aggregate amount of the Revolving Commitments; provided that
at no time shall the sum of the Effective Amount of all Swingline Loans,
Revolving Loans and L/C Obligations exceed the lesser of (1) the aggregate
amount of the Revolving Commitments and (2) the Borrowing Base. Subject to the
other terms and conditions hereof, the Company may borrow under this subsection
2.5(a), prepay pursuant to subsection 2.5(d) and reborrow pursuant to this
subsection 2.5(a) from time to time; provided that the Swingline Lender shall
not be obligated to make any Swingline Loan.
(b) The Company shall provide the Administrative Agent and the
Swingline Lender irrevocable written notice (or notice by a telephone call
confirmed promptly by facsimile) of any Swingline Loan requested hereunder
(which notice must be received by the Swingline Lender and the Administrative
Agent prior to 12:00 p.m. (Chicago time) on the requested Borrowing Date)
specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date,
which must be a Business Day. Upon receipt of such notice, the Swingline Lender
will promptly confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has received a copy of such notice from the
Company and, if not, the Swingline Lender will provide the Administrative Agent
with a copy thereof. If and only if the Administrative Agent notifies the
Swingline Lender on the proposed Borrowing Date that it may make available to
the Company the amount of the requested Swingline Loan, then, subject to the
terms and conditions hereof, the Swingline Lender may make the amount of the
requested Swingline Loan available to the Company by crediting the account of
the Company on the books of BofA with the amount of such Swingline Loan. The
Administrative Agent will not so notify the Swingline Lender if the
Administrative Agent has knowledge that (A) the limitations set forth in the
proviso set forth in the first sentence of subsection 2.5(a) are being violated
or would be violated by such Swingline Loan or (B) one or more conditions
specified in Article V is not then satisfied.
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Each Swingline Loan shall be in an aggregate principal amount equal to $500,000
or a higher integral multiple of $100,000. The Swingline Lender will promptly
notify the Administrative Agent of the amount of each Swingline Loan.
(c) Principal of and accrued interest on each Swingline Loan
shall be due and payable (i) on demand made by the Swingline Lender at any time
upon one Business Day's prior notice to the Company with a copy to the
Administrative Agent furnished at or before 10:45 a.m. (Chicago time), and (ii)
in any event on the Revolving Termination Date. Interest on Swingline Loans
shall be for the sole account of the Swingline Lender (except to the extent that
the other Lenders have funded the purchase of participations therein pursuant to
subsection 2.5(e)).
(d) The Company may, from time to time on any Business Day, make
a voluntary prepayment, in whole or in part, of the outstanding principal amount
of any Swingline Loan, without incurring any premium or penalty; provided that
(i) each such voluntary prepayment shall require prior written
notice given to the Administrative Agent and the Swingline Lender no
later than 1:00 p.m. (Chicago time) on the day on which the Company
intends to make a voluntary prepayment, and
(ii) each such voluntary prepayment shall be in an amount equal
to $500,000 or a higher integral multiple of $100,000 (or, if less, the
aggregate outstanding principal amount of all Swingline Loans then
outstanding).
Voluntary prepayments of Swingline Loans shall be made by the Company to
the Swingline Lender at such office as the Swingline Lender may designate by
notice to the Company from time to time. All such payments shall be made in
Dollars and in immediately available funds no later than 4:00 p.m. (Chicago
time) on the date specified by the Company pursuant to clause (i) above (and any
payment received later than such time shall be deemed to have been received on
the next Business Day). The Swingline Lender will promptly notify the
Administrative Agent of the amount of each prepayment of Swingline Loans.
(e) If (i) any Swingline Loan shall remain outstanding at 11:00
a.m. (Chicago time) on the Business Day immediately prior to a Business Day on
which Swingline Loans are due and payable pursuant to subsection 2.5(c) and by
such time on such Business Day the Administrative Agent shall have received
neither (A) a Notice of Borrowing delivered pursuant to Section 2.3 requesting
that Revolving Loans be made pursuant to subsection 2.1(c) on such following
Business Day in an amount at least equal to the aggregate principal amount of
such Swingline Loans, nor
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(B) any other notice indicating the Company's intent to repay such Swingline
Loans with funds obtained from other sources, or (ii) any Swingline Loans shall
remain outstanding during the existence of an Unmatured Event of Default or
Event of Default and the Swingline Lender shall in its sole discretion notify
the Administrative Agent that the Swingline Lender desires that such Swingline
Loans be converted into Revolving Loans, then the Administrative Agent shall be
deemed to have received a Notice of Borrowing from the Company pursuant to
Section 2.3 requesting that Base Rate Loans be made pursuant to subsection
2.1(c) on the following Business Day in an amount equal to the aggregate amount
of such Swingline Loans, and the procedures set forth in subsections 2.3(b) and
2.3(c) shall be followed in making such Base Rate Loans; provided that such Base
Rate Loans shall be made notwithstanding the Company's failure to comply with
Section 5.3; and provided, further, that if a Borrowing of Revolving Loans
becomes legally impracticable and if so required by the Swingline Lender at the
time such Revolving Loans are required to be made by the Revolving Lenders in
accordance with this subsection 2.5(e), each Revolving Lender agrees that in
lieu of making Revolving Loans as described in this subsection 2.5(e), such
Revolving Lender shall purchase a participation from the Swingline Lender in the
applicable Swingline Loans in an amount equal to such Revolving Lender's
Revolving Percentage of such Swingline Loans, and the procedures set forth in
subsections 2.3(b) and 2.3(c) shall be followed in connection with the purchases
of such participations. The proceeds of such Base Rate Loans (or participations
purchased) shall be delivered by the Administrative Agent to the Swingline
Lender to repay such Swingline Loans (or as payment for such participations). A
copy of each notice given by the Administrative Agent to the Revolving Lenders
pursuant to this subsection 2.5(e) with respect to the making of Loans, or the
purchases of participations, shall be promptly delivered by the Administrative
Agent to the Company. Each Revolving Lender's obligation in accordance with this
Agreement to make the Revolving Loans, or purchase the participations, as
contemplated by this subsection 2.5(e), shall be absolute and unconditional and
shall not be affected by any circumstance, including (1) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Lender may
have against the Swingline Lender, the Company or any other Person for any
reason whatsoever, (2) the occurrence or continuance of an Unmatured Event of
Default, an Event of Default or a Material Adverse Effect or (3) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
2.6 Termination or Reduction of Revolving Commitments.
(a) The Company may, upon not less than three Business Days'
prior written notice to the Administrative Agent,
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permanently reduce the Revolving Commitments to an amount which is not less than
the sum of the Effective Amount of all Revolving Loans plus the Effective Amount
of all Swingline Loans plus the Effective Amount of all L/C Obligations. Any
such reduction shall be in an aggregate amount of $10,000,000 or a higher
integral multiple of $5,000,000. The Company may at any time on like notice
terminate the Revolving Commitments upon payment in full of all Revolving Loans
and Swingline Loans and Cash Collateralization in full of all L/C Obligations.
(b) In addition, after (and to the extent not applied to) the
payment in full of all Term Loans pursuant to subsection 2.8(a), upon the
occurrence of any Mandatory Prepayment Event, the Revolving Commitments shall be
reduced by the amount of all Designated Proceeds resulting from such Mandatory
Prepayment Event, with each such reduction effective at the time required in
subsection 2.8(a) for a prepayment of Term Loans resulting from such Mandatory
Prepayment Event; provided, that upon any Mandatory Prepayment Event arising
from the transfer of Accounts Receivable under a Permitted Receivables Facility
under clause (viii) of subsection 2.8(a), (i) the Revolving Loans shall be
repaid in an amount equal to the Designated Proceeds from such transfer, (ii)
the Revolving Commitments shall be reduced by the full amount of all Designated
Proceeds from such transfer until the Revolving Commitments have been reduced to
zero and (iii) no such Designated Proceeds shall be applied to the Term Loans
until the Revolving Commitments have so been reduced to zero.
(c) Once reduced in accordance with this Section, the Revolving
Commitments may not be increased. Any reduction of the Revolving Commitments
shall be applied to the Revolving Commitment of each Revolving Lender according
to its Revolving Percentage. All accrued commitment fees to, but not including,
the effective date of any reduction or termination of the Revolving Commitments
shall be paid on the effective date of such reduction or termination.
2.7 Optional Prepayments.
(a) Subject to Section 4.4, (i) the Company may, from time to
time, upon irrevocable written notice to the Administrative Agent (which notice
must be received by 11:00 a.m. (Chicago time) one Business Day prior to the
requested day of prepayment in the case of Base Rate Loans and 11:00 a.m.
(Chicago time) three Business Days prior to the date of prepayment in the case
of Offshore Rate Loans), prepay any Borrowing of Revolving Loans in whole or in
part, without premium or penalty, in an aggregate amount of $5,000,000 or a
higher integral multiple of $100,000 and (ii) the Company may, from time to
time, upon not less than three Business Days' irrevocable notice to the
Administrative Agent, prepay any Borrowing of Term Loans in whole
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or in part, without premium or penalty, in an aggregate amount of $5,000,000 or
a higher integral multiple of $100,000.
(b) Each notice of prepayment shall specify the date and amount
of such prepayment and the Loans to be prepaid. The Administrative Agent will
promptly notify each Lender of its receipt of any such notice and of such
Lender's share of such prepayment based upon such Lender's Revolving Percentage,
in the case of a prepayment of Revolving Loans, Term A Percentage, in the case
of a prepayment of Term A Loans or Term B Percentage, in the case of a
prepayment of Term B Loans. If any such notice is given by the Company, the
Company shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein, together with
accrued interest to such date on the amount prepaid and any amounts required
pursuant to Section 4.4. Each prepayment of Revolving Loans shall be applied to
each Revolving Lender's Revolving Loans according to such Revolving Lender's
Revolving Percentage. Each prepayment of Term Loans shall be applied pro rata to
the Term A Loans and Term B Loans; provided, that if the Company elects to
provide the holders of Term B Loans with the option to waive their right to
accept any such voluntary prepayment, and any such Lender notifies the
Administrative Agent of such Lender's waiver of such prepayment not later than
two Business Days prior to the date of prepayment, 50% of the portion of any
such prepayment which would have been applied to such Lender's Term B Loans
shall be applied pro rata to the remaining installments of the Term A Loans of
all Lenders and the remaining 50% may be retained by the Company; provided,
further, that once the Term A Loans shall have been fully repaid, such remaining
prepayment amounts, if any, shall be applied pro rata to the Term B Loans. All
prepayments of the Term Loans pursuant to this Section 2.7 shall be applied pro
rata to the unpaid installments of each of the Term A Loans and Term B Loans;
provided, however, that, at the Company's option, a portion of any such
prepayment may be applied to unpaid installments of the Term A Loans in forward
order of maturity, but the amount so applied in any period of four consecutive
fiscal quarters may not exceed 50% of the amount of the scheduled installments
of the Term A Loans during such period (without giving effect to any reduction
to such scheduled installments as a result of mandatory or voluntary
prepayments).
2.8 Mandatory Prepayments of Loans. (a) The Company (or, in the case of
clause (iii), if the Administrative Agent is holding the proceeds of insurance
or condemnation as additional Collateral pursuant to the terms of a Security
Agreement or any Mortgage, the Administrative Agent) shall make a prepayment of
the Term Loans upon the occurrence of any of the following (each a "Mandatory
Prepayment Event") at the following times and in the following amounts (such
applicable amounts being referred to as "Designated Proceeds"):
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(i) Within 120 days after any sale, transfer or other disposition
by the Company or any Subsidiary of any asset (other than assets
described in clause (ii) below), other than sales of Inventory, Assets
Held for Sale and transfers of Accounts Receivable pursuant to a
Permitted Receivables Facility and dispositions of obsolete, unused,
surplus or unnecessary equipment, in each case in the ordinary course of
business, to a Person other than the Company or a Subsidiary, in an
amount equal to 100% of the Net Cash Proceeds of such sale, transfer or
other disposition; provided that the foregoing shall not apply (x) to
sales, transfers or other dispositions of such assets the proceeds (or
an amount equal to anticipated proceeds) of which are used or committed
to be used by the Company for the financing of the replacement or
substitution of such assets being sold prior to or within 120 days after
any such sale or (y) to the extent that the Net Cash Proceeds of all
such sales, transfers or other dispositions in any fiscal year is less
than $5,000,000.
(ii) Within 30 days after any sale, transfer or other disposition
(including by way of merger or consolidation) by the Company or any
Subsidiary of any of the capital stock of any of the Company's operating
Subsidiaries to a Person other than the Company or a Subsidiary, in an
amount equal to 100% of the Net Cash Proceeds of such sale.
(iii) Within 120 days after the receipt of any insurance or
condemnation proceeds (or other similar recoveries) by Parent, the
Company or any Subsidiary or by the Administrative Agent (to the extent
the Administrative Agent is holding the insurance or condemnation
proceeds as additional Collateral pursuant to Section 6 of a Security
Agreement or any provision of any Mortgage) from any casualty loss
incurred by Parent, the Company or any Subsidiary or condemnation of
property, in an amount equal to 100% of such insurance or condemnation
proceeds (or other similar recoveries) net of any collection expenses;
provided that no such prepayment shall be required (x) to the extent
such proceeds (or an amount equal to anticipated proceeds) are used by
the Company, or will be so used prior to or within 120 days after the
date of receipt of such proceeds for the financing of the replacement,
substitution or restoration of the assets sustaining such casualty loss
or condemnation or (y) to the extent that all such insurance or
condemnation proceeds received in any fiscal year is less than
$1,000,000.
(iv) Concurrently with the receipt of any Net Cash Proceeds from
any issuance of equity securities of Parent, the Company or any
Subsidiary (including a Public Offering,
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but excluding (w) any issuance of shares of capital stock pursuant to
any employee or director stock option program, benefit plan or
compensation program, (x) any such Net Cash Proceeds from equity
issuances of Parent to the extent used to redeem the TPG Acquisition
Preferred Stock, (y) Net Cash Proceeds in an aggregate amount not to
exceed $40,000,000 of New Parent Equity to the extent such proceeds are
concurrently either (A) contributed by Parent to the Company to fund a
portion of the purchase price of the Contadina Acquisition or (B)
deposited in the Secured Proceeds Account pending either the
consummation of the Contadina Acquisition or the redemption of the
Parent Discount Notes from the Secured Proceeds Account in the manner
contemplated by the Parent Discount Indenture and (z) if any Parent
Bridge Notes are outstanding, any Net Cash Proceeds from any issuance of
equity securities by Parent to the extent such proceeds are used
concurrently upon receipt by Parent to pay in full and discharge such
Parent Bridge Notes), in an amount equal to 50% of such Net Cash
Proceeds.
(v) Concurrently with the receipt of any Net Cash Proceeds from
the issuance of any Other Debt of Parent, the Company or any Subsidiary
in an amount equal to 100% of such Net Cash Proceeds.
(vi) If the net proceeds of the Subordinated Notes exceeds the
net proceeds the Company would have received on issuance of $150,000,000
of Subordinated Notes, or if the net proceeds received on issuance of
any Qualified Notes exceeds the net proceeds received by the Company in
the issuance of the Subordinated Notes or on any prior issuance of
Qualified Notes, concurrently with the receipt of the proceeds of such
notes by the Company in an amount equal to such excess.
(vii) Within 95 days after the end of each fiscal year
(commencing with the fiscal year ending June 30, 1998), in an amount
equal to 75% of Excess Cash Flow for such fiscal year; provided that if
the aggregate unpaid principal amount of the Term Loans as of the end of
such fiscal year is less than $190,000,000, then the amount of the
required prepayment shall be 50% of Excess Cash Flow.
(viii) Subject to the proviso to subsection 2.6(b), immediately
following any transfer by the Company or any Subsidiary of Accounts
Receivable pursuant to a Permitted Receivables Facility, in an amount
equal to the Net Cash Proceeds of such transfer (provided, that if the
Permitted Receivables Facility is a revolving program, the Designated
Proceeds available for application to the Loans and/or Revolving
Commitments from such Permitted Receivables
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Facility under this clause (viii) shall not exceed the maximum
outstanding amount of such Permitted Receivables Facility (without
giving effect to any reduction in such amount but giving effect to any
increase in such amount)).
(ix) Concurrently with the receipt of any proceeds from the
issuance of any Indebtedness by Parent (other than Other Debt), in an
amount equal to (A) in the case of Parent Bridge Notes or Parent
Discount Notes, 100% of the gross proceeds thereof and (B) in the case
of Qualified Parent Notes, 100% of the Net Cash Proceeds thereof;
provided, however, that Parent may retain up to $60,000,000 of the Net
Cash Proceeds of the Parent Bridge Notes (or any Parent Discount Notes
issued in lieu of the Parent Bridge Notes) if the Parent concurrently
contributes such portion to the Company in order to fund a portion of
the purchase price for the Contadina Acquisition; and provided, further,
that (1) the Parent may retain a portion of the Net Cash Proceeds of any
Qualified Parent Notes to the extent such portion is immediately used to
pay in full (including all principal of and interest and premium, if
any, on) and discharge the Parent Bridge Notes or Parent Discount Notes
or a prior issuance of Qualified Parent Notes, as applicable, and (2) no
Mandatory Prepayment Event shall occur under this clause (ix) with
respect to gross proceeds of Parent Discount Notes that are deposited
upon issuance into the Secured Proceeds Account unless and until such
funds are released to Parent or one of its Subsidiaries.
All prepayments of Term Loans pursuant to this subsection 2.8(a) shall be
applied to the prepayment of the Term Loans pro rata among the Term A Loans and
Term B Loans, with application to the remaining installments of each (x) in
inverse order of maturity, in the case of prepayments pursuant to clauses (v),
(vi) and (ix) and (y) pro rata, in the case of prepayments pursuant to clauses
(i), (ii), (iii), (iv), (vii) and (viii); provided, that Designated Proceeds
arising under clause (viii) shall only be applied to the Term Loans after the
Revolving Commitments have been reduced to zero pursuant to subsection 2.6(b);
provided, further, that, if the Company offers to any Lender holding Term B
Loans the right to waive any such prepayment, and any such Lender notifies the
Administrative Agent of such Lender's waiver of such prepayment not later than
two Business Days prior to the date upon which such prepayment is due, 50% of
the portion of any prepayment which would have been applied to such Lender's
Term B Loans shall be applied pro rata to the remaining installments of the Term
A Loans of all Lenders and the remaining 50% may be retained by the Company;
provided, further, that once the Term A Loans shall have been fully prepaid,
such remaining prepayment amounts, if any, shall be applied pro rata to the Term
B Loans; and provided, further, that as to (A) gross proceeds of any
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issuance of Parent Bridge Notes (or Parent Discount Notes issued in lieu of
Parent Bridge Notes) in excess of $60,524,800 or (B) Net Cash Proceeds of any
Qualified Parent Notes issued in a Qualified Parent Refinancing in excess of the
amount necessary to pay in full the Indebtedness refinanced thereby (including
principal of, and interest and premium, if any, on, such refinanced
Indebtedness) (any such excess (rounded, if necessary, to the nearest whole
integral multiple of $1,000,000) referred to in the foregoing clauses (A) and
(B) being collectively referred to as "Excess Proceeds"), (x) as to the first
$30,000,000 of Excess Proceeds, the Company shall apply such Excess Proceeds to
either (at the Company's election) (i) if no New Term B Loans have been made, to
reduce the Maximum New Term B Commitment Amount pursuant to subsection 2.1(b),
or if New Term B Loans have been made, to prepay the New Term B Loans of all New
Term B Lenders, with application to remaining installments thereof pro rata (or,
if no New Term B Loans are outstanding, pro rata among the Term A Loans and Term
B Loans of all Lenders, with application to the remaining installments of each
in inverse order of maturity) or (ii) to repay Revolving Loans (provided, that
such prepayment only to the extent the amount so required to be repaid is in
excess of the amount of Revolving Loans being concurrently borrowed to fund the
Contadina Acquisition) and (y) to the extent that the aggregate amount of Excess
Proceeds is greater than the sum of (i) the aggregate amount of reductions to
the Maximum New Term B Commitment Amount prior to the New Term B Funding Date
plus (ii) the amount of Loans repaid or prepaid pursuant to the foregoing clause
(x) (including for this purpose Loans that would have been repaid but for the
proviso to clause (x)(ii)), the Company shall prepay the New Term B Loans of all
New Term B Lenders in an amount equal to such excess, with application to
remaining installments thereof pro rata (or, if no New Term B Loans are
outstanding, pro rata among the Term A Loans and Term B Loans of all Lenders,
with application to the remaining installments of each in inverse order of
maturity); and provided, further that any such Excess Proceeds shall only be
available to be applied to the prepayment of the Term Loans after the Maximum
New Term B Commitment Amount has been reduced to zero.
(b) If on any day the Effective Amount of all Revolving Loans plus the
Effective Amount of all Swingline Loans plus the Effective Amount of all L/C
Obligations exceeds the lesser of (x) the Borrowing Base and (y) the Revolving
Commitments, the Company shall immediately prepay Revolving Loans and/or
Swingline Loans or Cash Collateralize the outstanding Letters of Credit, or do a
combination of the foregoing, in an amount sufficient to eliminate such excess.
(c) If on any date the Effective Amount of L/C Obligations exceeds the
amount of the L/C Commitment, the Company shall Cash
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Collateralize on such date the outstanding Letters of Credit in an amount equal
to the excess of the L/C Obligations over the amount of the L/C Commitment.
2.9 Repayment. (a) The Term A Credit. The Company shall repay the Term A
Loans in quarterly installments on the last Business Day of each fiscal quarter,
commencing on September 25, 1998, in the amount set forth opposite the period
below in which such quarterly date occurs:
Quarterly
Period Amounts
------ --------
9/25/98 through 6/30/99 $ 7,500,000
7/01/99 through 6/30/00 $ 8,750,000
7/01/00 through 6/30/01 $10,000,000
7/01/01 through 6/30/02 $11,250,000
7/01/02 through 12/31/02 $16,666,666.66
1/01/03 through 3/31/03 $16,666,666.68.
(b) The Term B Credit. The Company shall repay the Term B Loans
in quarterly installments on the last Business Day of each fiscal quarter,
commencing on March 27, 1998, in the amount set forth opposite the period below
in which such quarterly date occurs:
Quarterly
Period Amounts
------ ---------
3/27/98 through 9/25/98 $450,000
9/26/98 through 3/31/04 $450,000 plus 0.25% of the amount of the
New Term B Loans funded on the New Term B
Funding Date
4/01/04 through 3/31/05 $42,187,500 plus 23.625% of the New Term B
Loans funded on the New Term B Funding Date.
(c) The Revolving Credit. The Company shall pay to the
Administrative Agent, for the account of the Lenders, on the Revolving
Termination Date the aggregate principal amount of all Revolving Loans
outstanding on such date.
2.10 Interest. (a) Each Revolving Loan and Term Loan shall bear interest
on the outstanding principal amount thereof from the applicable Borrowing Date
at a rate per annum equal to the Offshore Rate or the Base Rate, as the case may
be (and subject to the Company's right to convert to the other Type of Loans
under Section 2.4), plus the Applicable Offshore Rate Margin or Applicable Base
Rate Margin, as the case may be. Each Swingline Loan shall bear interest on the
outstanding principal
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amount thereof from the applicable Borrowing Date at a rate per annum equal to
the Base Rate plus 1% per annum.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date therefor. Interest shall also be paid on the date of any
prepayment of Offshore Rate Loans under Section 2.7 or 2.8 for the portion of
the Loans so prepaid and upon payment (including prepayment) in full thereof.
(c) Notwithstanding subsection 2.10(a), during the existence of
any Event of Default, the Company shall pay interest (after as well as before
entry of judgment thereon to the extent permitted by law) on the principal
amount of all outstanding Loans and, to the extent permitted by applicable law,
on any other amount payable hereunder or under any other Loan Document, at a
rate per annum equal to the rate otherwise applicable thereto pursuant to the
terms hereof or such other Loan Document (or, if no such rate is specified, the
Base Rate plus the Applicable Base Rate Margin then in effect for Revolving
Loans) plus 2%. All such interest shall be payable on demand.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Lender hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder to the extent (but only to the extent) that
contracting for or receiving such payment by such Lender would be contrary to
the provisions of any law applicable to such Lender limiting the highest rate of
interest that may be lawfully contracted for, charged or received by such
Lender, and in such event the Company shall pay such Lender interest at the
highest rate permitted by applicable law.
2.11 Fees. In addition to certain fees described in Section 3.8:
(a) Arranger and Agency Fees. The Company shall pay fees to the
Arranger and BT Securities Corporation for their own accounts and agency fees to
the Administrative Agent for the Administrative Agent's own account, in each
case as required by the letter agreement (the "Fee Letter") among the Company,
the Arranger, Bankers Trust Company and the Administrative Agent dated April 14,
1997.
(b) Commitment Fees. The Company shall pay to the Administrative
Agent for the account of each Revolving Lender a commitment fee calculated at a
rate per annum equal to the Commitment Fee Rate on the average daily unused
portion of such Revolving Lender's Revolving Commitment, computed on a quarterly
basis in arrears on the last Business Day of each fiscal quarter based upon the
daily utilization for that quarter as calculated
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by the Administrative Agent. For purposes of calculating utilization under this
subsection, the Revolving Commitments shall be deemed used to the extent of the
Effective Amount of all Revolving Loans then outstanding (but Swingline Loans
shall not constitute usage of any Revolving Lender's Revolving Commitment) plus
the Effective Amount of all L/C Obligations then outstanding. Such commitment
fee shall accrue from the Closing Date to the Revolving Termination Date and
shall be due and payable quarterly in arrears on the last Business Day of each
fiscal quarter, with the final payment to be made on the Revolving Termination
Date. The commitment fees provided in this subsection shall accrue at all times
after the Closing Date, including at any time during which one or more
conditions in Article V are not met.
2.12 Computation of Fees and Interest. (a) All computations of interest
for Base Rate Loans when the Base Rate is determined by BofA's "reference rate"
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of interest and fees shall be made
on the basis of a 360-day year and actual days elapsed. Interest and fees shall
accrue during each period during which interest or such fees are computed from
the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Administrative
Agent shall be conclusive and binding on the Company and the Lenders in the
absence of manifest error. The Administrative Agent will, at the request of the
Company or any Lender, deliver to the Company or such Lender, as the case may
be, a statement showing the quotations used by the Administrative Agent in
determining any interest rate and the resulting interest rate.
2.13 Payments by the Company. (a) All payments to be made by the Company
shall be made without set-off, recoupment or counterclaim. Except as otherwise
expressly provided herein, all payments by the Company shall be made to the
Administrative Agent for the account of the Lenders at the Agent's Payment
Office, and shall be made in Dollars and in immediately available funds, no
later than 1:00 p.m. (Chicago time) on the date specified herein. Except as
expressly provided herein, the Administrative Agent will promptly distribute, in
like funds as received, to each Lender its Revolving Percentage of any portion
of such payment related to the Revolving Loans, its Term A Percentage of any
portion of such payment relating to the Term A Loans or its Term B Percentage of
any portion of such payment relating to the Term B Loans. Any payment received
by the Administrative Agent later than 1:00 p.m. (Chicago time) shall be deemed
to have been received on the following Business Day and any applicable interest
or fee shall continue to accrue.
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(b) Whenever any payment is due on a day other than a Business
Day, such payment shall be made on the preceding Business Day, and such
shortening of time shall in such case be reflected in the computation of
interest or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the
Company prior to the date on which any payment is due to the Lenders that the
Company will not make such payment in full as and when required, the
Administrative Agent may assume that the Company has made such payment in full
to the Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Company has not made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such Lender, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Lender until the date repaid.
2.14 Payments by the Lenders to the Administrative Agent. (a) Unless the
Administrative Agent receives notice from a Lender at least one Business Day
prior to the date of such Borrowing, that such Lender will not make available as
and when required hereunder to the Administrative Agent for the account of the
Company the amount of such Lender's Revolving Percentage, or proportionate
commitment to make New Term B Loans, as applicable, of such Borrowing, the
Administrative Agent may assume that each Lender has made such amount available
to the Administrative Agent in immediately available funds on the Borrowing Date
and the Administrative Agent may (but shall not be required to), in reliance
upon such assumption, make available to the Company on such date a corresponding
amount. If and to the extent any Lender shall not have made its full amount
available to the Administrative Agent in immediately available funds and the
Administrative Agent in such circumstances has made available to the Company
such amount, such Lender shall on the Business Day following such Borrowing Date
make such amount available to the Administrative Agent, together with interest
at the Federal Funds Rate for each day during such period. A notice of the
Administrative Agent submitted to any Lender with respect to amounts owing under
this subsection (a) shall be conclusive, absent manifest error. If such amount
is so made available, such payment to the Administrative Agent shall constitute
such Lender's Loan on the date of Borrowing for all purposes of this Agreement.
If such amount is not made available to the Administrative Agent on the Business
Day following the Borrowing Date, the Administrative Agent will notify the
Company of such failure to fund and, upon demand by the Administrative Agent,
the
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Company shall pay such amount to the Administrative Agent for the Administrative
Agent's account, together with interest thereon for each day elapsed since the
date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any Borrowing
Date shall not relieve any other Lender of any obligation hereunder to make a
Loan on such Borrowing Date, but no Lender shall be responsible for the failure
of any other Lender to make the Loan to be made by such other Lender on any
Borrowing Date.
2.15 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share of such payment
(determined in accordance with the provisions of this Agreement), such Lender
shall immediately (a) notify the Administrative Agent of such fact and (b)
purchase from the other Lenders such participations in the Loans made by them as
shall be necessary to cause such purchasing Lender to share the excess payment
pro rata with each other Lender; provided that if all or any portion of such
excess payment is thereafter recovered from the purchasing Lender, such purchase
shall to that extent be rescinded and each other Lender shall repay to the
purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender's ratable share (according to the proportion of (i)
the amount of such paying Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Company agrees that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off, but subject to Section 11.10) with
respect to such participation as fully as if such Lender were the direct
creditor of the Company in the amount of such participation. The Administrative
Agent will keep records (which shall be conclusive and binding in the absence of
manifest error) of participations purchased under this Section and will in each
case notify the Lenders following any such purchases or repayments.
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ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility. (a) On the terms and conditions
set forth herein: (i) the Issuing Lender agrees, (A) from time to time on any
Business Day during the period from the Closing Date to the Revolving
Termination Date to issue Letters of Credit for the account of the Company, and
to amend Letters of Credit previously issued by it, in accordance with
subsections 3.2(c) and 3.2(d), and (B) to honor drawings which comply with the
terms of the Letters of Credit issued by it; and (ii) the Revolving Lenders
severally agree to participate in Letters of Credit Issued for the account of
the Company; provided that the Issuing Lender shall not be obligated to Issue,
and no Revolving Lender shall be obligated to participate in, any Letter of
Credit if as of the date of Issuance of such Letter of Credit (the "Issuance
Date") (1) the sum of the Effective Amount of all L/C Obligations plus the
Effective Amount of all Revolving Loans plus the Effective Amount of all
Swingline Loans exceeds the lesser of (x) the aggregate amount of all Revolving
Commitments and (y) the Borrowing Base, (2) the Effective Amount of all L/C
Obligations exceeds the amount of the L/C Commitment or (3) with respect to any
particular Revolving Lender, the sum of the participation of such Revolving
Lender in the Effective Amount of all L/C Obligations plus the outstanding
principal amount of the Revolving Loans of such Revolving Lender shall exceed
such Revolving Lender's Revolving Commitment. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Company's ability to
obtain Letters of Credit shall be fully revolving, and, accordingly, the Company
may, during the foregoing period, obtain Letters of Credit to replace Letters of
Credit which have expired or which have been drawn upon and reimbursed.
(b) The Issuing Lender shall not be under any obligation to Issue
any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the
Issuing Lender from Issuing such Letter of Credit, or any Requirement of
Law applicable to the Issuing Lender or any request or directive
(whether or not having the force of law) from any Governmental Authority
with jurisdiction over the Issuing Lender shall prohibit, or request
that the Issuing Lender refrain from, the Issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon
the Issuing Lender with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the Issuing
Lender is not otherwise compensated hereunder) not in effect on the
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Closing Date, or shall impose upon the Issuing Lender any unreimbursed
loss, cost or expense which was not applicable on the Closing Date and
which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the Issuing Lender has received written notice from any
Lender, the Administrative Agent or the Company, on or prior to the
Business Day prior to the requested date of Issuance of such Letter of
Credit, that one or more of the applicable conditions contained in
Article V is not then satisfied;
(iii) the expiry date of such Letter of Credit is after the
Revolving Termination Date, or, in the case of a Commercial Letter of
Credit, the expiry date of such Letter of Credit is less than 15 days
prior to the Revolving Termination Date, unless all of the Revolving
Lenders have approved such expiry date in writing;
(iv) such Letter of Credit does not provide for drafts, or is not
otherwise in form and substance acceptable to the Issuing Lender, or the
Issuance of such Letter of Credit shall violate any applicable policies
of the Issuing Lender; or
(v) such Letter of Credit is denominated in a currency other than
Dollars.
3.2 Issuance, Amendment and Extension of Letters of Credit. (a) Each
Letter of Credit shall be issued upon the irrevocable written request of the
Company received by the Issuing Lender and the Administrative Agent at least
four Business Days (or such shorter time as the Issuing Lender and the
Administrative Agent may agree in a particular instance in their sole
discretion) prior to the proposed date of issuance. Each such request for
issuance of a Letter of Credit shall be by facsimile, confirmed immediately in
an original writing, in the form of an L/C Application, and shall specify in
form and detail satisfactory to the Issuing Lender: (i) the face amount of the
Letter of Credit; (ii) the expiry date of the Letter of Credit; (iii) the name
and address of the beneficiary thereof; (iv) the documents to be presented by
the beneficiary of the Letter of Credit in case of any drawing thereunder; (v)
the full text of any certificate to be presented by the beneficiary in case of
any drawing thereunder; and (vi) such other matters as the Issuing Lender may
require.
(b) At least two Business Days prior to the Issuance of any
Letter of Credit, the Issuing Lender will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received a copy
of the L/C Application
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or L/C Amendment Application from the Company and, if not, the Issuing Lender
will provide the Administrative Agent with a copy thereof. If and only if the
Administrative Agent notifies the Issuing Lender on or before the Business Day
immediately preceding the proposed date of Issuance of a Letter of Credit that
the Issuing Lender may Issue such Letter of Credit, then, subject to the terms
and conditions hereof, the Issuing Lender shall, on the requested date, Issue
such Letter of Credit for the account of the Company in accordance with the
Issuing Lender's usual and customary business practices. The Administrative
Agent shall not give such notice if the Administrative Agent has knowledge that
(A) such Issuance is not then permitted under subsection 3.1(a) as a result of
the limitations set forth in clause (1) or (2) thereof or (B) the Issuing Lender
has received a notice described in subsection 3.1(b)(ii). The Administrative
Agent will promptly notify the Lenders of any Letter of Credit Issuance
hereunder.
(c) From time to time while a Letter of Credit is outstanding and
prior to the Revolving Termination Date, the Issuing Lender will, upon the
written request of the Company received by the Issuing Lender (with a copy sent
by the Company to the Administrative Agent) at least four Business Days (or such
shorter time as the Issuing Lender and the Administrative Agent may agree in a
particular instance in their sole discretion) prior to the proposed date of
amendment, amend any Letter of Credit issued by it. Each such request for
amendment of a Letter of Credit shall be made by facsimile, confirmed
immediately in an original writing, made in the form of an L/C Amendment
Application and shall specify in form and detail satisfactory to the Issuing
Lender: (i) the Letter of Credit to be amended; (ii) the proposed date of
amendment of such Letter of Credit (which shall be a Business Day); (iii) the
nature of the proposed amendment; and (iv) such other matters as the Issuing
Lender may require. The Issuing Lender shall not have any obligation to amend
any Letter of Credit if the Issuing Lender would have no obligation at such time
to Issue such Letter of Credit in its amended form under the terms of this
Agreement.
(d) The Issuing Lender and the Lenders agree that, while a Letter
of Credit is outstanding and prior to the Revolving Termination Date, at the
option of the Company and upon the written request of the Company received by
the Issuing Lender (with a copy sent by the Company to the Administrative Agent)
at least four Business Days (or such shorter time as the Issuing Lender and the
Administrative Agent may agree in a particular instance in their sole
discretion) prior to the proposed date of notification of extension, the Issuing
Lender shall be entitled, with the approval of the Administrative Agent, to
authorize the automatic extension of any Letter of Credit issued by it. Each
such request for extension of a Letter of Credit shall be made by
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facsimile, confirmed immediately in an original writing, in the form of an L/C
Amendment Application, and shall specify in form and detail satisfactory to the
Issuing Lender: (i) the Letter of Credit to be extended; (ii) the proposed date
of notification of extension of such Letter of Credit (which shall be a Business
Day); (iii) the revised expiry date of such Letter of Credit (which, unless all
Lenders otherwise consent in writing, shall be, in the case of Standby Letters
of Credit, prior to the Revolving Termination Date and, in the case of
Commercial Letters of Credit, shall be prior to the date which is 15 days prior
to the Revolving Termination Date); and (iv) such other matters as the Issuing
Lender may require. The Issuing Lender shall not be under any obligation to
extend any Letter of Credit if: (A) the Issuing Lender would have no obligation
at such time to issue or amend such Letter of Credit in its extended form under
the terms of this Agreement; or (B) the beneficiary of such Letter of Credit
does not accept the proposed extension of such Letter of Credit. If any
outstanding Letter of Credit shall provide that it shall be automatically
extended unless the beneficiary thereof receives notice from the Issuing Lender
that such Letter of Credit shall not be extended, and if at the time of
extension the Issuing Lender would be entitled to authorize the automatic
extension of such Letter of Credit in accordance with this subsection 3.2(d)
upon the request of the Company but the Issuing Lender shall not have received
any L/C Amendment Application from the Company with respect to such extension or
other written direction by the Company with respect thereto, the Issuing Lender
shall nonetheless be permitted to allow such Letter of Credit to extend, subject
to the approval of the Administrative Agent, and the Company and the Lenders
hereby authorize such extension, and, accordingly, the Issuing Lender shall be
deemed to have received an L/C Amendment Application from the Company requesting
such extension.
(e) The Issuing Lender may, at its election (or as required by
the Administrative Agent at the direction of the Required Lenders), deliver any
notices of termination or other communications to any Letter of Credit
beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry
date of such Letter of Credit to be, in the case of Standby Letters of Credit, a
date not later than the Revolving Termination Date, and in the case of
Commercial Letters of Credit, a date not later than 15 days prior to the
Revolving Termination Date.
(f) This Agreement shall control in the event of any conflict
with any L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Lender will deliver to the Administrative Agent,
concurrently or promptly following its
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delivery of a Letter of Credit, or amendment to or extension of a Letter of
Credit, to an advising bank or a beneficiary, a true and complete copy of each
such Letter of Credit or amendment to or extension of a Letter of Credit.
(h) The Issuing Lender shall deliver to the Administrative Agent,
on the last day of each calendar month (or, if such day is not a Business Day,
the next succeeding Business Day) and upon the date of each payment by the
Company of the letter of credit fee referred to in subsection 3.8(a), a report
setting forth as of such day the aggregate Effective Amount of all Letters of
Credit outstanding on such date, and the Administrative Agent shall promptly
forward copies of such report to all Revolving Lenders.
3.3 Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of Credit, each
Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Issuing Lender a participation in such Letter of
Credit and each drawing thereunder in an amount equal to the product of (i) such
Revolving Lender's Revolving Percentage times (ii) the maximum amount available
to be drawn under such Letter of Credit and the amount of such drawing,
respectively.
(b) In the event of any request for a drawing under a Letter of
Credit by the beneficiary or transferee thereof, the Issuing Lender will
promptly notify the Company and the Administrative Agent. The Company shall
reimburse the Issuing Lender on each date that any amount is paid by the Issuing
Lender under any Letter of Credit (each such date, an "Honor Date") in an amount
equal to the amount so paid by the Issuing Lender. If the Company fails to
reimburse the Issuing Lender for the full amount of any drawing under any Letter
of Credit on the Honor Date, the Issuing Lender will promptly notify the
Administrative Agent and the Administrative Agent will promptly notify each
Revolving Lender thereof, and the Company shall be deemed to have requested that
Base Rate Loans be made by the Revolving Lenders to be disbursed on the Honor
Date under such Letter of Credit, subject to the amount of the unutilized
portion of the Revolving Commitments and subject to the conditions set forth in
Section 5.3 other than subsection 5.3(a). Any notice given by the Issuing Lender
or the Administrative Agent pursuant to this subsection 3.3(b) may be oral if
immediately confirmed in writing (including by facsimile); provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(c) Each Revolving Lender shall upon any notice pursuant to
subsection 3.3(b) make available to the
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Administrative Agent for the account of the Issuing Lender an amount in Dollars
and in immediately available funds equal to its Revolving Percentage of the
amount of the drawing, whereupon the participating Revolving Lenders shall
(subject to subsection 3.3(d)) each be deemed to have made a Revolving Loan
consisting of a Base Rate Loan to the Company in such amount. If any Revolving
Lender so notified fails to make available to the Administrative Agent for the
account of the Issuing Lender the amount of such Revolving Lender's Revolving
Percentage of the amount of such drawing by no later than 1:00 p.m. (Chicago
time) on the Honor Date, then interest shall accrue on such Revolving Lender's
obligation to make such payment, from the Honor Date to the date such Revolving
Lender makes such payment, at a rate per annum equal to the Federal Funds Rate
in effect from time to time during such period. The Administrative Agent will
promptly give notice of the occurrence of the Honor Date, but failure of the
Administrative Agent to give any such notice on the Honor Date or in sufficient
time to enable any Revolving Lender to effect such payment on such date shall
not relieve such Revolving Lender from its obligations under this Section 3.3.
(d) With respect to any unreimbursed drawing that is not
converted into Revolving Loans consisting of Base Rate Loans in whole or in
part, because of the Company's failure to satisfy the conditions set forth in
Section 5.3 (other than subsection 5.3(a), which need not be satisfied) or for
any other reason, the Company shall be deemed to have incurred from the Issuing
Lender an L/C Borrowing in the amount of such drawing, which L/C Borrowing shall
be due and payable on demand (together with interest) and shall bear interest at
a rate per annum equal to the Base Rate plus the Applicable Base Rate Margin
then in effect for Revolving Loans plus 2% per annum, and each Revolving
Lender's payment to the Issuing Lender pursuant to subsection 3.3(c) shall be
deemed payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Revolving Lender in satisfaction of its
participation obligation under this Section 3.3.
(e) Each Revolving Lender's obligation in accordance with this
Agreement to make Revolving Loans or L/C Advances, as contemplated by this
Section 3.3, as a result of a drawing under a Letter of Credit, shall be
absolute and unconditional and without recourse to the Issuing Lender and shall
not be affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Lender may have against
the Issuing Lender, the Company or any other Person for any reason whatsoever,
(ii) the occurrence or continuance of an Event of Default, an Unmatured Event of
Default or a Material Adverse Effect or (iii) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing; provided
that each Revolving Lender's obligation
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to make Revolving Loans under this Section 3.3 is subject to the conditions set
forth in Section 5.3.
3.4 Repayment of Participations. (a) Upon (and only upon) receipt by the
Administrative Agent for the account of the Issuing Lender of immediately
available funds from the Company (i) in reimbursement of any payment made by the
Issuing Lender under a Letter of Credit with respect to which any Revolving
Lender has paid the Administrative Agent for the account of the Issuing Lender
for such Revolving Lender's participation in such Letter of Credit pursuant to
Section 3.3 or (ii) in payment of interest thereon, the Administrative Agent
will pay to each Revolving Lender, in like funds as those received by the
Administrative Agent for the account of the Issuing Lender, the amount of such
Revolving Lender's Revolving Percentage of such funds, and the Issuing Lender
shall receive the amount of the Revolving Percentage of such funds of any
Revolving Lender that did not so pay the Administrative Agent for the account of
the Issuing Lender.
(b) If the Administrative Agent or the Issuing Lender is required
at any time to return to the Company, or to a trustee, receiver, liquidator or
custodian, or to any official in any Insolvency Proceeding, any portion of any
payment made by the Company to the Administrative Agent for the account of the
Issuing Lender pursuant to subsection 3.4(a) in reimbursement of a payment made
under a Letter of Credit or interest or fee thereon, each Revolving Lender
shall, on demand of the Administrative Agent, forthwith return to the
Administrative Agent or the Issuing Lender the amount of its Revolving
Percentage of any amount so returned by the Administrative Agent or the Issuing
Lender plus interest thereon from the date such demand is made to the date such
amount is returned by such Revolving Lender to the Administrative Agent or the
Issuing Lender, at a rate per annum equal to the Federal Funds Rate in effect
from time to time.
3.5 Role of the Issuing Lender. (a) Each Lender and the Company agree
that, in honoring any drawing under a Letter of Credit, the Issuing Lender shall
not have any responsibility to obtain any document (other than any sight draft
and certificate expressly required by such Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.
(b) No Agent-Related Person, Issuing Lender nor any of their
respective correspondents, participants or assignees shall be liable to any
Lender for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders (including the Required Lenders, as
applicable); (ii) any
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action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided that this assumption is not intended to, and shall not,
preclude the Company's pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under this Agreement or any other
agreement. No Agent-Related Person, Issuing Lender nor any of their respective
correspondents, participants or assignees shall be liable or responsible for any
of the matters described in clauses (i) through (vii) of Section 3.6; provided
that, anything in such clauses to the contrary notwithstanding, the Company may
have a claim against the Issuing Lender, and the Issuing Lender may be liable to
the Company, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Company which the Company
proves were caused by the Issuing Lender's willful misconduct or gross
negligence or the Issuing Lender's willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of such Letter
of Credit. In furtherance and not in limitation of the foregoing: (i) the
Issuing Lender may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) the Issuing Lender shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
3.6 Obligations Absolute. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the Issuing Lender for a
drawing under a Letter of Credit, and to repay any L/C Borrowing and any drawing
under a Letter of Credit converted into Revolving Loans, shall be unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-Related Document under all circumstances,
including the following:
(i) any lack of validity or enforceability of this
Agreement or any L/C-Related Document;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of the Company in
respect of any Letter of Credit or any other amendment or waiver of or
any consent to departure from all or any of the L/C-Related Documents;
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(iii) the existence of any claim, set-off, defense or other right
that the Company may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Issuing Lender or
any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C-Related Documents or any
unrelated transaction;
(iv) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any
Letter of Credit;
(v) any payment by the Issuing Lender under any Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by
the Issuing Lender under any Letter of Credit to any Person purporting
to be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of any Letter of Credit,
including any arising in connection with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from
any guarantee, for all or any of the obligations of the Company in
respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, the Company or a guarantor.
3.7 Cash Collateral Pledge. If any Letter of Credit remains outstanding
and partially or wholly undrawn as of the Revolving Termination Date, then the
Company shall immediately Cash Collateralize the L/C Obligations in an amount
equal to the maximum amount then available to be drawn under all Letters of
Credit.
3.8 Letter of Credit Fees. (a) The Company shall pay to the
Administrative Agent for the account of each Revolving Lender a letter of credit
fee with respect to each Letter of Credit equal to the L/C Fee Rate per annum of
the daily maximum amount
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available to be drawn on such Letter of Credit, computed for each day such
Letter of Credit is outstanding in arrears on the last Business Day of each
fiscal quarter; provided that, during the existence of any Event of Default, the
L/C Fee Rate shall be increased by 2% per annum. Such letter of credit fee shall
be due and payable quarterly in arrears on the last Business Day of each fiscal
quarter during which Letters of Credit are outstanding, commencing on the first
such quarterly date to occur after the Closing Date, to the Revolving
Termination Date (or such later date upon which all outstanding Letters of
Credit shall expire or be fully drawn), with the final payment to be made on the
Revolving Termination Date (or such later date).
(b) The Company shall pay to the Issuing Lender a letter of
credit fronting fee for each Letter of Credit Issued equal to 0.25% per annum of
the daily maximum amount available to be drawn on such Letter of Credit,
computed for each day such Letter of Credit is outstanding, on the last Business
Day of each fiscal quarter and on the Revolving Termination Date (or such later
date on which such Letter of Credit shall expire or be fully drawn).
(c) The letter of credit fees payable under subsection 3.8(a) and
the fronting fees payable under subsection 3.8(b) shall be due and payable
quarterly in arrears on the last Business Day of each fiscal quarter during
which Letters of Credit are outstanding, commencing on the first such quarterly
date to occur after the Closing Date, to the Revolving Termination Date (or such
later date upon which all outstanding Letters of Credit shall expire or be fully
drawn), with the final payment to be made on the Revolving Termination Date (or
such later date). For purposes of calculating the fees payable under subsection
3.8(a) and subsection 3.8(b), any undrawn Commercial Letters of Credit shall be
considered outstanding and available to be drawn upon for 15 days after their
expiry date.
(d) The Company shall pay to the Issuing Lender from time to time
on demand the normal issuance, payment, amendment and other processing fees, and
other standard costs and charges, of the Issuing Lender relating to letters of
credit as from time to time in effect.
3.9 Uniform Customs and Practice. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce most
recently at the time of issuance of any Letter of Credit shall (unless otherwise
expressly provided in such Letter of Credit) apply to each Letter of Credit.
3.10 Non-Dollar Letters of Credit. The Company, the Administrative
Agent, the Issuing Lender and all of the Lenders
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(i) agree that, upon the request of the Company, the Issuing Lender may (in its
sole discretion) issue Letters of Credit ("Non-Dollar Letters of Credit") in
currencies other than Dollars and (ii) further agree as follows with respect to
such Non-Dollar Letters of Credit:
(a) The Company agrees that its reimbursement obligation under
subsection 3.3(b) and any resulting L/C Borrowing, in each case in
respect of a drawing under any Non-Dollar Letter of Credit, (a) shall be
payable in Dollars at the Dollar Equivalent of such obligation in the
currency in which such Non-Dollar Letter of Credit was issued
(determined on the date of payment) and (b) shall bear interest at a
rate per annum equal to the sum of the Overnight Rate plus the
Applicable Offshore Rate Margin for Revolving Loans plus 3% for each day
from and including the Honor Date to but excluding the date such
obligation is paid in full (it being understood that any payment
received after 10:30 a.m., Chicago time, on any day shall be deemed
received on the following Business Day).
(b) Each Lender agrees that its obligation to make Revolving
Loans under subsection 3.3(b) and to make L/C Advances for any unpaid
reimbursement obligation or L/C Borrowing in respect of a drawing under
any Non-Dollar Letter of Credit shall be payable in Dollars at the
Dollar Equivalent of such obligation in the currency in which such
Non-Dollar Letter of Credit was issued (calculated on the date of
payment) (and any such amount which is not paid when due shall bear
interest at a rate per annum equal to the Overnight Rate plus, beginning
on the third Business Day after such amount was due, the Applicable
Offshore Rate Margin for Revolving Loans).
(c) For purposes of determining whether there is availability for
the Company to request, continue or convert any Loan, or request, extend
or increase the face amount of any Letter of Credit, the Dollar
Equivalent of the Effective Amount of each Non-Dollar Letter of Credit
shall be calculated on the date such Loan is to be made, continued or
converted or such Letter of Credit is to be issued, extended or
increased.
(d) For purposes of determining (i) the amount of the unused
portion of the Revolving Commitments under subsection 2.11(b), (ii) the
letter of credit fee under subsection 3.8(a) and (iii) the letter of
credit fronting fee under subsection 3.8(b), the Dollar Equivalent of
the Effective Amount of any Non-Dollar Letter of Credit shall be
determined on each of (1) the date of an issuance, extension or change
in the face amount of such Non-Dollar Letter of
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Credit, (2) the date of any payment by the Issuing Lender in respect of
a drawing under such Non-Dollar Letter of Credit, (3) the last day of
each calendar month and (4) each day on which the aggregate amount of
the Revolving Commitments and/or L/C Commitment is reduced.
(e) If, on the last day of any calendar month or any day on which
the aggregate amount of the Revolving Commitments and/or L/C Commitment
is reduced, the sum of the Effective Amount of all Revolving Loans plus
the Effective Amount of all Letters of Credit plus the Effective Amount
of all Swingline Loans (valuing the Effective Amount of, and all
reimbursement obligations and L/C Borrowings of the Company in respect
of, any Non-Dollar Letter of Credit at the Dollar Equivalent thereof as
of such day) would exceed the aggregate amount of the Revolving
Commitments, then the Company will immediately eliminate such excess by
prepaying Revolving Loans and/or Swingline Loans and/or causing one or
more Letters of Credit to be reduced or terminated.
(f) If, for the purposes of obtaining judgment in any court, it
is necessary to convert a sum due in respect of any Non-Dollar Letter of
Credit in one currency into another currency, the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Issuing Lender could purchase the first currency with such other
currency on the Business Day preceding that on which final judgment is
given. The obligation of the Company in respect of any such sum due from
it to the Administrative Agent, the Issuing Lender or any Lender
hereunder shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of the applicable Non-Dollar
Letter of Credit (the "Agreement Currency"), be discharged only to the
extent that on the Business Day following receipt by the Issuing Lender
of any sum adjudged to be so due in the Judgment Currency, the Issuing
Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency. If the amount of the
Agreement Currency so purchased is less than the sum originally due to
the Issuing Lender in the Agreement Currency, the Company agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify
the Administrative Agent, the Issuing Lender or the Lender to whom such
obligation was owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the
Issuing Lender in such currency, the Issuing Lender agrees to return the
amount of any excess to the Company (or to any other Person who may be
entitled thereto under applicable law).
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(g) For purposes of this Section, "Overnight Rate" means, for any
day, the rate of interest per annum at which overnight deposits in the
applicable currency, in an amount approximately equal to the amount with
respect to which such rate is being determined, would be offered for
such day by the London Branch of BofA to major banks in the London or
other applicable offshore interbank market. The Overnight Rate for any
day which is not a Business Day (or on which dealings are not carried on
in the applicable offshore interbank market) shall be the Overnight Rate
for the immediately preceding Business Day.
3.11 Prior Letters of Credit. The Company, the Issuing Lender, the
Lenders and the Administrative Agent agree that, on the Closing Date, the
letters of credit issued by BofA and listed on Schedule 3.11 shall be deemed to
be, and constitute, Letters of Credit Issued by the Issuing Lender hereunder.
Without limiting the generality of the foregoing, each Revolving Lender shall be
deemed to have purchased from the Issuing Lender a participation in such Letters
of Credit on the Closing Date pursuant to subsection 3.3(a). BofA represents to
the Lenders that all participations in such Letters of Credit under the Prior
Financing Agreements will be terminated on the Closing Date. The letter of
credit fees payable under subsection 3.8(a) and the fronting fees payable under
subsection 3.8(b) with respect to such Letters of Credit shall accrue from the
Closing Date. The Company shall be deemed to have satisfied the condition
precedent to issuance of such Letters of Credit set forth in subsection 5.3(a)
by virtue of its agreements set forth in this Section 3.11.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes. (a) Any and all payments by the Company to each Lender or the
Administrative Agent under this Agreement and any other Loan Document shall be
made free and clear of, and without deduction or withholding for, any Taxes. In
addition, the Company shall pay all Other Taxes.
(b) Subject to subsection 4.1(g), the Company agrees to indemnify
and hold harmless each Lender and the Administrative Agent for the full amount
of Taxes, Other Taxes and Further Taxes paid by such Lender in the amount
necessary to preserve the after-tax yield such Lender would have received if
such Taxes, Other Taxes or Further Taxes had not been imposed, and any liability
(including penalties, interest, additions to tax and reasonable out-of-pocket
expenses) arising therefrom or with respect thereto, whether or not such Taxes,
Other Taxes or
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Further Taxes were correctly or legally asserted; provided, however, that the
Company shall not have to indemnify any Lender or the Administrative Agent for
Taxes, Other Taxes, Further Taxes, penalties, additions to tax or expenses
arising as a result of the gross negligence or wilful misconduct of such Person.
Payment under this subsection 4.1(b) shall be made within 30 days from the date
such Lender or the Administrative Agent makes written demand therefor.
(c) If the Company shall be required by law to deduct or withhold
any Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section), such Lender or the Administrative Agent, as the case may
be, receives and retains an amount equal to the sum it would have
received and retained had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and withholdings; and
(iii) the Company shall pay the full amount deducted or withheld
to the relevant taxing authority or other authority in accordance with
applicable law.
(d) Within 10 days after the date the Company receives any
receipt for the payment of Taxes, Other Taxes or Further Taxes, the Company
shall furnish to the Administrative Agent the original or a certified copy of
such receipt evidencing payment thereof, or other evidence of payment
satisfactory to the Administrative Agent and the Administrative Agent will
promptly provide a copy thereof to all interested Lenders.
(e) If the Company is required to pay additional amounts to any
Lender or the Administrative Agent pursuant to subsection (b) of this Section or
Section 4.3, then such Lender shall use reasonable efforts (consistent with
legal and regulatory restrictions) to change the jurisdiction of its Lending
Office so as to reduce or eliminate any such additional payment by the Company
which may thereafter accrue, if such change in the sole judgment of such Lender
is not otherwise disadvantageous to such Lender.
(f) If any Lender or the Administrative Agent receives a refund
in respect of any Taxes, Other Taxes or Further Taxes as to which it has been
indemnified by the Company pursuant to this
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Section 4.1, it shall repay such refund (to the extent of amounts that have been
paid by the Company under this Section 4.1 with respect to such refund and not
previously reimbursed) to the Company, net of all out-of-pocket expenses of such
Lender or the Administrative Agent and without any interest.
(g) The Company shall not be required to pay additional amounts
to the Administrative Agent or any Lender pursuant to this Section 4.1 to the
extent that the obligation to pay such additional amounts would not have arisen
but for a failure by the Administrative Agent or such Lender to comply with
Section 10.10.
4.2 Illegality. (a) After the date hereof, if any Lender determines that
the introduction of any Requirement of Law, or any change in any Requirement of
Law, or in the interpretation or administration of any Requirement of Law, has
made it unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for such Lender or its applicable Lending Office
to make Offshore Rate Loans, then, on notice thereof by the Lender to the
Company through the Administrative Agent, any obligation of such Lender to make
Offshore Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Company that the circumstances giving rise to such
determination no longer exist.
(b) After the date hereof, if a Lender determines that it is
unlawful to maintain any Offshore Rate Loan, the Company shall, upon its receipt
of notice of such fact and demand from such Lender (with a copy to the
Administrative Agent), prepay in full such Offshore Rate Loan, together with
interest accrued thereon and any amount required under Section 4.4, either on
the last day of the Interest Period thereof, if such Lender may lawfully
continue to maintain such Offshore Rate Loan to such day, or on such earlier
date on which such Lender may no longer lawfully continue to maintain such
Offshore Rate Loan (as determined by such Lender). If the Company is required to
so prepay any Offshore Rate Loan, then concurrently with such prepayment, the
Company shall borrow from the affected Lender, in the amount of such repayment,
a Base Rate Loan.
(c) If the obligation of any Lender to make or maintain Offshore
Rate Loans has been terminated or suspended pursuant to subsection (a) or (b)
above, all Loans which would otherwise be made by such Lender as Offshore Rate
Loans shall be instead Base Rate Loans.
(d) Before giving any notice to the Administrative Agent or
demand upon the Company under this Section, the affected Lender shall designate
a different Lending Office with respect to its Offshore Rate Loans if such
designation will avoid the need
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for giving such notice or making such demand and will not, in the sole judgment
of such Lender, be illegal or otherwise disadvantageous to such Lender.
4.3 Increased Costs and Reduction of Return. (a) After the date hereof,
if any Lender determines that, due to either (i) the introduction of or any
change (other than any change by way of imposition of or increase in reserve
requirements included in the calculation of the Offshore Rate) in or in the
interpretation of any law or regulation or (ii) compliance by such Lender with
any guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost to such Lender of agreeing to make or making, funding or maintaining any
Offshore Rate Loan or participating in Letters of Credit or, in the case of the
Issuing Lender, any increase in the cost to the Issuing Lender of agreeing to
issue, issuing or maintaining any Letter of Credit or of agreeing to make or
making, funding or maintaining any unpaid drawing under any Letter of Credit,
then the Company shall be liable for, and shall from time to time, upon demand
(with a copy of such demand to be sent to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender, additional amounts as are
sufficient to compensate such Lender for such increased costs.
(b) After the date hereof, if any Lender shall have determined
that (i) the introduction of any Capital Adequacy Regulation, (ii) any change in
any Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration thereof
or (iv) compliance by such Lender (or its Lending Office) or any corporation
controlling such Lender with any Capital Adequacy Regulation, affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy
and such Lender's desired return on capital) determines that the amount of such
capital is increased as a consequence of any of its Commitments, Loans, credits
or obligations under this Agreement, then, upon demand of such Lender to the
Company through the Administrative Agent, the Company shall pay to such Lender,
from time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender for such increase.
(c) This Section 4.3 shall not require the Company to reimburse
the Administrative Agent or any Lender for any Taxes which are otherwise covered
by the indemnity set forth in Section 4.1 or any Excluded Taxes.
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4.4 Funding Losses. The Company shall reimburse each Lender and hold
each Lender harmless from any loss or expense which such Lender may sustain or
incur as a consequence of:
(a) the failure of the Company to make on a timely basis any
payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert a
Loan after the Company has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/ Continuation;
(c) the failure of the Company to make any prepayment in
accordance with any notice delivered under Section 2.7;
(d) the prepayment (including pursuant to Section 2.8) or other
payment (including after acceleration thereof) of an Offshore Rate Loan on a day
that is not the last day of the relevant Interest Period; or
(e) the automatic conversion under subsection 2.4(a) of any
Offshore Rate Loan to a Base Rate Loan on a day that is not the last day of the
relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Company to the Lenders under this Section and
under subsection 4.3(a), each Offshore Rate Loan made by a Lender (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the IBOR used in determining the Offshore Rate for
such Offshore Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded.
4.5 Inability to Determine Rates. If the Administrative Agent determines
that for any reason adequate and reasonable means do not exist for determining
the Offshore Rate for any requested Interest Period with respect to a proposed
Offshore Rate Loan, or the Required Lenders determine (and notify the
Administrative Agent) that the Offshore Rate applicable pursuant to subsection
2.10(a) for any requested Interest Period with respect to a proposed Offshore
Rate Loan does not adequately and fairly reflect the cost to such Lenders of
funding such Loan, the Administrative Agent will promptly so notify the Company
and each Lender. Thereafter, the obligation of the Lenders to make or maintain
Offshore Rate Loans hereunder shall be suspended until the Administrative Agent,
with the consent of the Required
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Lenders, revokes such notice in writing. Upon receipt of such notice, the
Company may revoke any Notice of Borrowing or Notice of Conversion/Continuation
then submitted by it. If the Company does not revoke such Notice, the Lenders
shall make, convert or continue the Loans, as proposed by the Company, in the
amount specified in the applicable notice submitted by the Company, but such
Loans shall be made, converted or continued as Base Rate Loans instead of
Offshore Rate Loans.
4.6 Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Article IV shall deliver to the Company (with a copy to
the Administrative Agent) a certificate setting forth in reasonable detail the
basis for such claim and a calculation of the amount payable to such Lender and
such certificate shall be conclusive and binding on the Company in the absence
of manifest error.
4.7 Substitution of Lenders. In the event the Company becomes obligated
to pay additional amounts to any Lender pursuant to Section 4.3, the Company may
designate another Lender (with such other Lender's consent) which is acceptable
to the Administrative Agent, the Issuing Lender and the Swingline Lender in
their sole discretion (such other Lender being herein called a "Replacement
Lender") to purchase the Loans of such Lender and such Lender's rights
hereunder, without recourse to or warranty by, or expense to, such Lender for a
purchase price equal to the outstanding principal amount of the Loans payable to
such Lender plus any accrued but unpaid interest on such Loans and accrued but
unpaid commitment fees in respect of such Lender's Commitments and any other
amounts payable to such Lender under this Agreement, and to assume all the
obligations of such Lender hereunder, and, upon such purchase, such Lender shall
no longer be a party hereto or have any rights hereunder (other than indemnities
and other similar rights applicable to such Lender prior to the date of such
assignment and assumption) and shall be relieved from all obligations to the
Company hereunder, and the Replacement Lender shall succeed to the rights and
obligations of such Lender hereunder; without limiting the generality of the
foregoing, the Replacement Lender or the Company shall bear the processing fee
referred to in subsection 11.8(a) in any such substitution.
4.8 Survival. The agreements and obligations of the Company in this
Article IV shall survive the payment of all other Obligations.
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ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Effectiveness. This Agreement shall become effective
on the date (the "Restatement Date") each of the conditions precedent set forth
in this Section 5.1 has been satisfied or waived with the consent of the
Required Lenders (or, with respect to subsection 5.1(f), with the consent of the
Persons entitled to receive payment). The effectiveness of this Agreement is
subject to the conditions that the Administrative Agent shall have received all
of the following, in form and substance satisfactory to each Agent and each
Lender, and (except for the Notes) in sufficient copies for the Administrative
Agent and each Lender:
(a) Credit Agreement. This Agreement executed by the
Company, the New Term B Lenders, the Required Lenders, the
Required Revolving Lenders, the Required Term A Lenders and the
Required Term B Lenders.
(b) Resolutions and Incumbency.
(i) Copies of resolutions of the board of directors of the
Company, Parent and ▇▇▇▇ Mac authorizing the transactions contemplated
hereby, certified as of the Restatement Date by the Secretary or an
Assistant Secretary of such Person; and
(ii) A certificate of the Secretary or an Assistant Secretary of
the Company, Parent and ▇▇▇▇ Mac certifying the names and true
signatures of the officers of such Person authorized to execute, deliver
and perform this Agreement and all other Loan Documents to be delivered
by it hereunder.
(c) Organization Documents; Good Standing. Each of the following
documents:
(i) for the Company, Parent and ▇▇▇▇ Mac, the articles or
certificate of incorporation and the bylaws of each such Person, as the
case may be, as in effect on the Restatement Date, certified by the
Secretary or Treasurer of such Person, as of the Restatement Date; and
(ii) a good standing certificate for the Company, Parent and ▇▇▇▇
Mac from the Secretary of State (or similar applicable Governmental
Authority) of the jurisdiction of its organization.
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(d) Legal Opinions.
(i) An opinion of Pillsbury, Madison & Sutro LLP, special counsel
to the Company, Parent and ▇▇▇▇ Mac, substantially in the form of
Exhibit I-1,
(ii) An opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel to the
Company, Parent and ▇▇▇▇ Mac, substantially in the form of Exhibit I-2,
and
(iii) An opinion of Ballard, Spahr, ▇▇▇▇▇▇▇ & Ingersoll, special
Maryland counsel to Parent, substantially in the form of Exhibit I-3.
(e) Notes. New Notes, substantially in the form of Exhibit D,
payable to the order of each of the Lenders party hereto who have executed this
Amendment as a "New Term B Lender" and have requested a Note under subsection
2.2(b) (collectively, the "New Notes").
(f) Payment of Fees. Evidence of payment by the Company of all
accrued and unpaid fees, costs and expenses to the extent then due and payable
on the Restatement Date, together with Attorney Costs of the Administrative
Agent and the Arranger to the extent invoiced at least three Business Days prior
to the Restatement Date, plus such additional amounts of Attorney Costs as shall
constitute the Administrative Agent's reasonable estimate of Attorney Costs
incurred or to be incurred by it or the Arranger through the Restatement Date
(provided that such estimate shall not thereafter preclude final settling of
accounts between the Company and the Administrative Agent), including such
costs, fees and expenses arising under or referenced in Section 11.4.
(g) Parent Guaranty. The Parent Guaranty executed by
Parent.
(h) Confirmation. A confirmation from Parent and ▇▇▇▇ Mac,
substantially in the form of Exhibit T hereto.
(i) Certificate. A certificate signed by a Responsible Officer,
dated as of the Restatement Date, stating that:
(i) the representations and warranties contained in Article VI
are true and correct in all material respects on and as of such date, as
though made on and as of such date;
(ii) no Event of Default or Unmatured Event of Default exists or
will result from the effectiveness of this Agreement; and
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(iii) no event or circumstance has occurred since December 31,
1996 that has resulted, or would reasonably be expected to result, in a
Material Adverse Effect.
(j) Other Documents. A copy, certified as true and correct by the
Secretary or the Treasurer of the Company, of each of (a) the Contadina Purchase
Agreement (including all exhibits and schedules thereto), (b) the Parent Bridge
Note Agreement, if any, (c) the Note and Warrant Escrow Agreement, if any, and
(d) the Parent Discount Indenture, if any.
(k) Other Documents. Such other approvals, opinions,
documents or materials as any Agent or any Lender may reasonably
request.
5.2 [Intentionally Left Blank]
5.3 Conditions to All Credit Extensions. The obligation of each Lender
to make any Loan to be made by it and the obligation of the Issuing Lender to
Issue any Letter of Credit is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or Issuance Date:
(a) Notice, Application. In the case of any Loan, the
Administrative Agent shall have received a Notice of Borrowing and, in the case
of any Issuance of any Letter of Credit, the Issuing Lender and the
Administrative Agent shall have received an L/C Application or L/C Amendment
Application, as required under Section 3.2.
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VI shall be true and correct in all
material respects on and as of such Borrowing Date or Issuance Date with the
same effect as if made on and as of such Borrowing Date or Issuance Date (except
to the extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such earlier date).
(c) No Existing Default. No Event of Default or Unmatured Event
of Default shall exist or shall result from such Borrowing or Issuance.
Each Notice of Borrowing and L/C Application or L/C Amendment Application
submitted by the Company hereunder shall constitute a representation and
warranty by the Company hereunder, as of the date of such notice and as of the
applicable Borrowing Date or Issuance Date, that the conditions in this Section
5.3 are satisfied.
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5.4 Conditions to New Term B Loans. The obligation of each New Term B
Lender to make its New Term B Loan is, in addition to the conditions precedent
specified in Section 5.3, subject to the following conditions precedent:
(a) Bridge Financing/Permanent Financing. The Parent shall have
issued the Parent Bridge Notes (or Parent Discount Notes in lieu thereof) on
terms and conditions satisfactory to the Administrative Agent for gross proceeds
of not less than $60,000,000 and shall have contributed the net cash proceeds of
such issuance to the Company.
(b) New Parent Equity. The Parent shall have received a
$40,000,000 cash equity investment from TPG Partners and others on terms and
conditions satisfactory to the Administrative Agent, and shall have contributed
the proceeds of such investment to the Company.
(c) Contadina Acquisition. The Contadina Purchase Agreement shall
not have been modified or any of the provisions thereof waived in any way that
could be adverse to the Lenders. All conditions precedent to the Contadina
Acquisition (other than the payment of the purchase price under the Contadina
Purchase Agreement) shall have been satisfied or, with the consent of the
Administrative Agent, waived.
(d) No Material Adverse Change. Since June 30, 1997, there shall
have occurred no material adverse change in the condition (financial or
otherwise), business, assets, liabilities, properties, results of operations or
prospects of the Company.
(e) Subordinated Indenture. The amount of the New Term B Loans
actually funded shall be permitted to be incurred by the Subordinated Indenture,
and the Company shall have delivered to the Administrative Agent evidence, in
form and substance satisfactory to the Administrative Agent and the New Term B
Lenders, that the incurrence of such New Term B Loans is so permitted.
(f) Financial Information. The Company shall have delivered to
the Lenders all financial and operating information with respect to the Seller
required to be provided by such Seller under the Contadina Purchase Agreement
and otherwise to the extent provided by such Seller.
(g) Approvals and Agreements. All governmental and third party
approvals required under the Contadina Purchase Agreement or otherwise necessary
in connection with the New Term B Loans, the incurrence of the Parent Bridge
Notes (or Parent Discount Notes in lieu thereof) and the equity issued by Parent
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described in subsection 5.4(b) 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 or the Contadina Acquisition or
the financing thereof, in each case except for such governmental and third party
approvals which the failure to obtain would not, individually or in the
aggregate, have a Material Adverse Effect.
(h) Collateral Documents. The Administrative Agent shall have
received such documents as it may reasonably request to ensure that Section 7.14
will be complied with immediately after giving effect to the Contadina
Acquisition.
(i) Date. The borrowing of the New Term B Loans by the Company
shall have occurred on or prior to January 31, 1998; provided, that if the
Contadina Acquisition shall not have been consummated on or prior to such date
solely due to the failure to obtain early termination or clearance under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, then the New
Term B Loans may be borrowed by the Company on any date on or prior to March 3,
1998.
The date of making the New Term B Loans is referred to as the "New Term
B Funding Date".
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each Agent and each Lender that:
6.1 Corporate Existence and Power. Parent, the Company and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals (i) to own its assets and to carry on its
business and (ii) to execute, deliver and perform its obligations under the Loan
Documents;
(c) is duly qualified as a foreign corporation and is licensed
and in good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification or license; and
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(d) is in compliance with all Requirements of Law;
except, in each case referred to in clause (b)(i), (c) or (d), to the extent
that the failure to do so would not reasonably be expected to have a Material
Adverse Effect.
6.2 Corporate Authorization; No Contravention. The execution and
delivery by the Company of this Agreement and each other Loan Document to which
it is a party, the Borrowings hereunder, the execution and delivery by Parent
and each Subsidiary of each Loan Document to which it is a party, the
performance by each of the Company, Parent and each Subsidiary of its
obligations under each Loan Document to which it is a party and the incurrence
of the Obligations (i) are within the corporate powers of the Company, Parent
and each Subsidiary, as applicable, (ii) have been duly authorized by all
necessary corporate action on the part of the Company, Parent and each
Subsidiary (including any necessary shareholder action) and (iii) do not and
will not:
(a) contravene the terms of any of the Organization
Documents of the Company, Parent or any Subsidiary;
(b) conflict with or result in a breach or contravention of, or
the creation of any Lien (other than Liens in favor of the Administrative Agent)
under, any document evidencing any Contractual Obligation to which the Company,
Parent or any Subsidiary is a party or any order, injunction, writ or decree of
any Governmental Authority to which the Company, Parent, any Subsidiary or any
of their properties are subject; or
(c) violate any Requirement of Law.
6.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, (i) the Company
of this Agreement or any other Loan Document to which it is a party or (ii)
Parent or any Subsidiary with respect to each Loan Document to which it is a
party, except, in each case, for filings required to perfect Liens in favor of
the Administrative Agent granted under the Loan Documents.
6.4 Binding Effect. This Agreement and each other Loan Document to which
the Company is a party constitutes the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of
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creditors' rights generally or by equitable principles relating to
enforceability; and with respect to Parent and each Subsidiary, each Loan
Document to which such Person is a party constitutes the legal, valid and
binding obligation of such Person, enforceable against such Person in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally and by equitable principles relating to enforceability.
6.5 Litigation. Except as specifically disclosed in Schedule 6.5, there
are no actions, suits, proceedings, claims or disputes pending or, to the best
knowledge of the Company, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against Parent, the Company or
any Subsidiary or any of their respective properties which: (a) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby or thereby; or (b) would reasonably be expected
to have a Material Adverse Effect. No injunction, writ, temporary restraining
order or other order of any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain the execution, delivery
or performance of this Agreement or any other Loan Document, or directing that
the transactions provided for herein or therein not be consummated as herein or
therein provided.
6.6 No Default. No Event of Default or Unmatured Event of Default exists
or would result from the incurring of any Obligations by the Company. As of the
Restatement Date, neither the Company nor any Subsidiary is in default under or
with respect to any Contractual Obligation in any respect which, individually or
together with all such defaults, would reasonably be expected to have a Material
Adverse Effect, or that would, if such default had occurred after the
Restatement Date, create an Event of Default under subsection 9.1(e).
6.7 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law. To the
best knowledge of the Company, nothing has occurred which would cause any Plan
which is intended to qualify under Section 401(a) of the Code to fail to be so
qualified. The Company and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code, and no application
for a funding waiver or an extension of any amortization period pursuant to
Section 412 of the Code has been made within the last five years with respect to
any Plan.
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(b) There are no pending or, to the best knowledge of the
Company, threatened claims, actions or lawsuits, or actions by any Governmental
Authority, with respect to any Plan which has resulted or would reasonably be
expected to result in a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect to
any Plan which has resulted or would reasonably be expected to result in a
Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur that would reasonably be expected to have a Material Adverse Effect; (ii)
no contribution failure has occurred with respect to a Pension Plan sufficient
to give rise to a Lien under Section 302(f) of ERISA; and (iii) neither the
Company nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability to the PBGC under Title IV of ERISA with respect to any Pension
Plan.
6.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans are
to be used solely for the purposes set forth in and permitted by Sections 7.13
and 8.7. Neither the Company nor any Subsidiary is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
6.9 Title to Properties. Each of the Company and each Subsidiary has
good record and marketable title in fee simple to, or a valid leasehold interest
in, all real property necessary or used in the ordinary conduct of its
businesses, except for such defects in title as would not, individually or in
the aggregate, have a Material Adverse Effect. Each of the Company and each
Subsidiary has good title to all their other respective material properties and
assets (except for those assets disposed of not in violation of this Agreement
and the other Loan Documents and except for encumbrances and title defects that
would not be reasonably likely to have a Material Adverse Effect). As of the
Closing Date, the property of the Company and its Subsidiaries is subject to no
Liens, other than Permitted Liens.
6.10 Taxes. Parent, the Company and its Subsidiaries have filed all
Federal and State income tax returns and all other material tax returns and
reports required to be filed, and have paid all Federal and State income taxes
and all other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in accordance
with GAAP. There is no proposed tax assessment against Parent, the Company or
any Subsidiary that would, if made, have a Material Adverse Effect. The Tax
Sharing Agreement is the only agreement among Parent, the Company and its
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Subsidiaries regarding tax sharing, tax reimbursement or tax indemnification.
6.11 Financial Condition. (a) The audited consolidated financial
statements of Parent dated June 30, 1994, June 30, 1995 and June 30, 1996, and
the related consolidated statements of income or operations, shareholders'
equity and cash flows for the fiscal periods ended on such dates:
(i) were prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, except as otherwise expressly
noted therein;
(ii) present fairly the financial condition of Parent and its
Subsidiaries as of the dates thereof and results of operations for the
periods covered thereby; and
(iii) except as specifically disclosed in Schedule 6.11, show all
material indebtedness and other liabilities, direct or contingent, of
Parent and its Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Contingent Obligations.
(b) The Company has furnished to each Agent and each Lender an
estimated consolidated pro forma balance sheet of Parent and its Subsidiaries as
of March 31, 1997 (giving effect to the Merger, the refinancing of the Debt to
be Repaid, the incurrence of the Obligations and the Subordinated Notes and the
consummation of all other transactions contemplated to occur on the Closing
Date, assuming all such transactions had occurred on March 31, 1997), prepared
by the Company and certified as true and correct in all material respects by the
Chief Financial Officer of the Company.
(c) The Company has furnished to each Agent and each Lender
financial projections dated the Closing Date and covering the period from March
31, 1997 to June 30, 2006. Such projections were prepared by the Company and its
Subsidiaries in good faith on the basis of information and assumptions that the
Company and its senior management believed to be reasonable as of the date of
such projections and such assumptions are reasonable as of the Closing Date (it
being understood that projections are subject to significant uncertainties and
contingencies, many of which are beyond the Company's control, and that no
assurance can be given that the projections will be realized).
(d) The Company has furnished to each Agent and each Lender an
estimated consolidated pro forma balance sheet of Parent and its Subsidiaries as
of December 31, 1997 (giving effect to the Contadina Acquisition, the incurrence
of the New Term B Loans and the Bridge Financing (or the issuance of Parent
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Discount Notes issued in lieu thereof) and the consummation of all other
transactions contemplated to occur on the New Term B Funding Date, assuming all
such transactions had occurred on December 31, 1997), prepared by the Company
and the Company hereby certifies that the same is true and correct in all
material respects; it being understood that, information with respect to the
business to be acquired on the Contadina Acquisition is based solely on
information provided by the Seller, which, to the best knowledge of the Company,
is true and correct.
(e) The Company has furnished to each Agent and each Lender
financial projections dated the Restatement Date and covering the period from
July 1, 1997 to June 30, 2006. Such projections were prepared by the Company and
its Subsidiaries in good faith on the basis of information and assumptions that
the Company and its senior management believed to be reasonable as of the date
of such projections and such assumptions are reasonable as of the Closing Date
(it being understood that projections are subject to significant uncertainties
and contingencies, many of which are beyond the Company's control, and that no
assurance can be given that the projections will be realized).
(f) Since December 31, 1996 there has been no Material Adverse
Effect.
6.12 Regulated Entities. None of Parent, the Company or any Subsidiary
is an "investment company" within the meaning of the Investment Company Act of
1940. None of Parent, the Company or any Subsidiary is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
6.13 No Burdensome Restrictions. None of Parent, the Company nor any
Subsidiary is a party to or bound by any Contractual Obligation or subject to
any restriction in any Organization Document or any Requirement of Law which
would reasonably be expected to have a Material Adverse Effect.
6.14 Copyrights, Patents, Trademarks and Licenses, etc. The Company and
its Subsidiaries own or are licensed or otherwise have the right to use all of
the patents, trademarks, service marks, trade names, copyrights, trade secrets
and other similar rights ("Intellectual Property") that are necessary for the
operation of their respective businesses, without conflict with the rights of
any other Person except for Intellectual Property the failure of which to own or
be licensed or otherwise have the right to use, individually or in the
aggregate, would not be reasonably likely to have a Material Adverse Effect. All
of such
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Intellectual Property is subsisting, valid and enforceable, except to the extent
that the failure to be subsisting, valid and enforceable would not be reasonably
expected to have a Material Adverse Effect. Except to the extent set forth on
Schedule 6.14, there is no individual item of Intellectual Property the loss of
which would reasonably be expected to have a Material Adverse Effect. To the
best knowledge of the Company, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Company or any Subsidiary infringes upon any
rights held by any other Person except for any infringement which, individually
or in the aggregate, would not reasonably likely to have a Material Adverse
Effect. Except as specifically disclosed on Schedule 6.5, no claim or litigation
regarding any of the foregoing is pending or threatened against the Company or
any Subsidiary, and no patent, invention, device, application, principle or any
statute, law, rule, regulation, standard or code, relating in each case to
Intellectual Property, is, to the knowledge of the Company, pending or proposed,
which, in either case, would reasonably be expected to have a Material Adverse
Effect.
6.15 Subsidiaries. As of the Restatement Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
6.15 hereto and has no equity investments in any other corporation or entity
other than those specifically disclosed in part (b) of Schedule 6.15. As of the
Restatement Date, the Company has no Material Subsidiaries.
6.16 Insurance. Except as specifically disclosed in Schedule 6.16, the
properties of the Company and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Company, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where the Company or such Subsidiary operates.
6.17 Solvency, etc. On the Closing Date (or, in the case of any Person
that becomes a party to any Loan Document after the Closing Date, on the date
such Person becomes such a party), and immediately prior to and after giving
effect to the Issuance of each Letter of Credit and each Borrowing hereunder and
the use of the proceeds thereof, (a) each of the Company, Parent and each
Material Subsidiary will not have an unreasonably small capital, (b) each of the
Company's, Parent's and each Material Subsidiary's assets will exceed its
liabilities, (c) each of the Company, Parent and each Material Subsidiary will
be solvent, will be able to pay its liabilities as they mature and (d) both the
fair value and fair saleable value of the assets of the Company, Parent and each
Material Subsidiary exceeds the
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liabilities, respectively, of each of the Company, Parent and
each Material Subsidiary.
6.18 Merger, Subordinated Notes, etc.
(a) The Merger has been consummated in accordance with the terms
of the Merger Agreement, without waiver of any of the conditions thereof.
(b) The Merger and the issuance and sale of the Subordinated
Notes complied with all Requirements of Law (including the Securities Act of
1933), and all necessary governmental, regulatory, shareholder and other
consents and approvals required for the consummation of the Merger and the
issuance and sale of the Subordinated Notes were, prior to the consummation
thereof, duly obtained and in full force and effect. All applicable waiting
periods with respect to the Merger and the issuance and sale of the Subordinated
Notes have expired without any action being taken by any competent Governmental
Authority which restrains, prevents or imposes material adverse conditions upon
the consummation of any such transaction.
(c) The execution and delivery of the Merger Agreement and the
issuance and sale of the Subordinated Notes did not, and the consummation of the
Merger will not, violate any Requirement of Law, or result in a breach of, or
constitute a default under, any Contractual Obligation affecting the Company or
any of its Subsidiaries which, individually or in the aggregate, is reasonably
likely to have a Material Adverse Effect.
(d) There does not exist any judgment, order or injunction
prohibiting or imposing material adverse conditions upon the consummation of the
Merger and the issuance and sale of the Subordinated Notes.
(e) All of the representations and warranties of the Company
contained in the Merger Agreement were true and correct in all material respects
as of the Closing Date.
(f) All of the representations and warranties of the Company set
forth in the Subordinated Note Purchase Agreement were true and correct in all
material respects as of the Closing Date.
6.19 Real Property. Set forth on Schedule 6.19 is a complete and
accurate list, as of the date of this Agreement, of the address and legal
description of any real property owned by the Company or any Subsidiary.
6.20 Swap Obligations. Neither the Company nor any of its
Subsidiaries has incurred any outstanding obligations under any
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Swap Contracts, other than Permitted Swap Obligations. The Company has
undertaken its own independent assessment of its consolidated assets,
liabilities and commitments and has considered appropriate means of mitigating
and managing risks associated with such matters and has not relied on any swap
counterparty or any Affiliate of any swap counterparty in determining whether to
enter into any Swap Contract.
6.21 Senior Indebtedness. The Company's obligation to pay the
Obligations, including interest thereon and all fees, costs, expenses and
indemnities related thereto, constitutes "Designated Senior Debt" of the Company
as such term is defined in the Subordinated Indenture. Parent's obligation to
pay its Guaranty Obligations under the Parent Guaranty constitutes "Guarantor
Senior Debt" of Parent as such term is defined in the Subordinated Indenture.
The Company acknowledges that the Lenders and the Administrative Agent have
entered into this Agreement, and have extended Commitments, in reliance upon the
subordination provisions in the Subordinated Notes and the Subordinated
Indenture. If any Qualified Notes are outstanding, the foregoing representation
and warranty shall be deemed made with respect to Qualified Notes and the
related Qualified Indenture to the same extent made with respect to Subordinated
Notes and the Subordinated Indenture.
6.22 Environmental Warranties. Except as set forth in
Schedule 6.22:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Company or any of its Subsidiaries are in
compliance with all Environmental Laws, except for such non-compliance as would
not reasonably be expected to result in a Material Adverse Effect;
(b) there are no pending or threatened Environmental Claims,
except for such Environmental Claims that are not reasonably likely, either
singly or in the aggregate, to result in a Material Adverse Effect;
(c) there have been no Releases of Hazardous Materials at, on or
under any property now or, to the best of the Company's knowledge, previously
owned or leased by the Company or any of its Subsidiaries that, singly or in the
aggregate, have, or may reasonably be expected to have, a Material Adverse
Effect;
(d) the Company and its Subsidiaries have been issued and are in
compliance with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters and necessary or desirable for
their businesses, except to the extent that the failure to have or comply with
such permits, certificates, approvals, licenses and other
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authorizations relating to environmental matters would not be reasonably likely
to have a Material Adverse Effect;
(e) no property now or, to the best of the Company's knowledge,
previously owned or leased by the Company or any of its Subsidiaries is listed
or proposed for listing (with respect to owned property only) on the National
Priorities List pursuant to CERCLA, or, to the best of the Company's knowledge,
is on the CERCLIS or on any similar state list of sites requiring investigation
or clean-up, except, in each case, for any such listing that, singly or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect;
and
(f) to the best of the Company's knowledge, neither the Company
nor any Subsidiary of the Company has directly transported or directly arranged
for the transportation of any Hazardous Material to any location which is listed
or proposed for listing on the National Priorities List pursuant to CERCLA, or
which is the subject of Federal, state or local enforcement actions or other
investigations which may lead to Environmental Claims against the Company or
such Subsidiary except, in each case, to the extent that the foregoing would not
reasonably be expected to have a Material Adverse Effect.
6.23 Full Disclosure. None of the representations or warranties made by
Parent, the Company or any Subsidiary in the Loan Documents as of the date such
representations and warranties are made or deemed made and none of the written
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of Parent, the Company or any Subsidiary in connection with the
Loan Documents, considering each of the foregoing and in the context in which it
was made and together with all other representations, warranties and written
statements theretofore furnished by Parent, the Company and its Subsidiaries to
the Administrative Agent and the Lenders in connection with the Loan Documents,
contains any untrue statement of a material fact or omits any material fact
required to be stated therein or necessary to make such representation, warranty
or written statement, in light of the circumstances under which it is made, not
misleading as of the time when made or delivered; provided that the Company's
representation and warranty as to any forecast, projection or other statement
regarding future performance, future financial results or other future
development is limited to the fact that such forecast, projection or statement
was prepared in good faith on the basis of information and assumptions that the
Company believed to be reasonable as of the date such material was provided (it
being understood that projections are subject to significant uncertainties and
contingencies, many of which are beyond the Company's control, and that no
assurance can be given that the projections will be realized).
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6.24 Contadina Acquisition, Parent Bridge Notes, etc.
(a) As of the New Term B Funding Date, the Contadina Acquisition
will have been consummated in accordance with the terms of the Contadina
Purchase Agreement, without waiver of any of the conditions thereof.
(b) As of the New Term B Funding Date, the Contadina Acquisition
and the issuance and sale of the Parent Bridge Notes (or, if applicable, Parent
Discount Notes issued in lieu thereof) will have complied with all Requirements
of Law (including the Securities Act of 1933), and all necessary governmental,
regulatory, shareholder and other consents and approvals required for the
consummation of the Contadina Acquisition and the issuance and sale of the
Parent Bridge Notes (or, if applicable, Parent Discount Notes issued in lieu
thereof) will have been, prior to the consummation thereof, duly obtained and in
full force and effect. As of the New Term B Funding Date, all applicable waiting
periods with respect to the Contadina Acquisition and the issuance and sale of
the Parent Bridge Notes (or, if applicable, Parent Discount Notes issued in lieu
thereof) will have expired without any action being taken by any competent
Governmental Authority which restrains, prevents or imposes material adverse
conditions upon the consummation of any such transaction.
(c) The execution and delivery of the Contadina Purchase
Agreement did not, and the consummation of the Contadina Acquisition and the
issuance and sale of the Parent Bridge Notes (or, if applicable, Parent Discount
Notes issued in lieu thereof) will not, violate any Requirement of Law, or
result in a breach of, or constitute a default under, any Contractual Obligation
affecting the Parent or any of its Subsidiaries which, individually or in the
aggregate, is reasonably likely to have a Material Adverse Effect.
(d) There does not exist any judgment, order or injunction
prohibiting or imposing material adverse conditions upon the consummation of the
Contadina Acquisition and the issuance and sale of the Parent Bridge Notes (or,
if applicable, Parent Discount Notes issued in lieu thereof).
(e) All of the representations and warranties of the Company
contained in the Contadina Purchase Agreement are true and correct in all
material respects as of the Restatement Date.
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ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
7.1 Financial Statements. The Company shall deliver to the
Administrative Agent (which shall promptly provide copies to each Lender), in
form and detail satisfactory to the Required Lenders:
(a) as soon as available, but not later than 90 days after the
end of each fiscal year, a copy of the audited consolidated balance sheet of
Parent and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, and accompanied by (i) the opinion of a
nationally-recognized independent public accounting firm (the "Independent
Auditor"), which report (x) shall state that such consolidated financial
statements present fairly the consolidated financial position of Parent and its
Subsidiaries for the periods indicated in conformity with GAAP applied on a
basis consistent with prior years and (y) shall not be qualified or limited
because of a restricted or limited examination by the Independent Auditor of any
material portion of Parent's or any of its Subsidiary's records and (ii) a
comparison with the budget for such fiscal year;
(b) Promptly when available, and in any event within 30 days
after the end of each month that is not the end of a fiscal quarter, and within
45 days after the end of each month that is the end of a fiscal quarter (other
than the last month of each fiscal year), a copy of the unaudited consolidated
balance sheet of Parent and its Subsidiaries as of the end of such month and the
related consolidated statements of income, shareholders' equity and cash flows
for the period commencing on the first day and ending on the last day of such
month, including a comparison with the corresponding month and period of the
previous fiscal year and a comparison with the budget for such month and for
such period of the current fiscal year, together with a certificate of a
Responsible Officer of the Company that each such statement fairly presents the
financial condition and results of operations (subject to normal year-end audit
adjustments) of Parent and its Subsidiaries and has been prepared in accordance
with GAAP consistently applied; and
(c) Not later than 60 days after the end of each fiscal year, a
copy of the projections of Parent of the
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consolidated operating budget and cash flow budget of Parent and its
Subsidiaries for the succeeding fiscal year (including an explanation of the
assumptions used in preparing such budgets), such projections to be accompanied
by a certificate of a Responsible Officer of the Company to the effect that (i)
such projections were prepared by the Company in good faith, (ii) the Company
has a reasonable basis for the assumptions contained in such projections and
(iii) such projections have been prepared according to such assumptions.
7.2 Certificates; Other Information. The Company shall furnish to the
Administrative Agent (and the Administrative Agent will promptly distribute
copies of the same to the Lenders):
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the Independent Auditor
stating that in making the examination necessary therefor no knowledge was
obtained of any Event of Default or Unmatured Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a) and each set of quarterly statements referred
to in subsection 7.1(b), a Compliance Certificate executed by a Responsible
Officer;
(c) promptly, copies of all financial statements and regular,
periodic or special reports (including Forms 10K, 10Q and 8K) that Parent, the
Company or any Subsidiary may make to, or file with, the SEC;
(d) promptly from time to time, any notices (including notices of
default or acceleration thereunder) received from any holder or trustee of,
under or with respect to any Subordinated Debt of the Company;
(e) forthwith upon any Qualified Refinancing or Qualified Parent
Refinancing, a copy of the related Qualified Indenture or Qualified Parent
Indenture, certified as true and correct by the Secretary or an Assistant
Secretary of the Company or Parent, as applicable;
(f) within 30 days of the end of each month, a Borrowing Base
Certificate dated as of the end of such month and executed by a Responsible
Officer (provided that (i) the Company may deliver a Borrowing Base Certificate
more frequently if it chooses and (ii) after an Event of Default shall have
occurred and be continuing, the Required Revolving Lenders may request that the
Company deliver Borrowing Base Certificates more frequently); and
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(g) promptly, such additional information regarding the business,
financial or corporate affairs of Parent, the Company or any Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.
7.3 Notices. Promptly upon a Responsible Officer obtaining knowledge
thereof, the Company shall notify the Administrative Agent (and the
Administrative Agent will promptly distribute such notice to the Lenders) of:
(a) the occurrence of any Event of Default or
Unmatured Event of Default;
(b) any matter that has resulted or would reasonably be expected
to result in a Material Adverse Effect, including, if applicable, (i) any breach
or non-performance of, or any default under, a Contractual Obligation of the
Company or any Subsidiary, (ii) any dispute, litigation, investigation,
proceeding or suspension between the Company or any Subsidiary and any
Governmental Authority or (iii) the commencement of, or any material development
in, any litigation or proceeding affecting the Company or any Subsidiary;
(c) the occurrence of any of the following events affecting the
Company or any ERISA Affiliate (but in no event more than ten days after such
event), and deliver to the Administrative Agent (which shall promptly deliver to
each Lender a copy thereof) a copy of any notice with respect to such event that
is filed with a Governmental Authority and any notice delivered by a
Governmental Authority to the Company or any ERISA Affiliate with respect to
such event:
(i) an ERISA Event; or
(ii) a contribution failure with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA;
(d) any material change in accounting policies or financial
reporting practices by the Company or any of its consolidated Subsidiaries;
(e) any Mandatory Prepayment Event;
(f) any proposed payment of principal of Subordinated Debt prior
to the making thereof; and
(g) upon the request from time to time of the Administrative
Agent, the Swap Termination Values, together with a description of the method by
which such values were determined,
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relating to any then-outstanding Swap Contracts to which the Company or any of
its Subsidiaries is party.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto and at what time. Each notice
under subsection 7.3(a) shall describe with particularity any and all clauses or
provisions of this Agreement or any other Loan Document that have been breached
or violated.
7.4 Preservation of Corporate Existence, Etc. The Company
shall, and shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation except a Subsidiary need not be in compliance with the foregoing
to the extent such Subsidiary is sold pursuant to Section 8.2 or merged or
consolidated into another Person pursuant to Section 8.3;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises, in each case which are material and which are necessary or desirable
in the normal conduct of its business except in connection with transactions
permitted by Section 8.3 and dispositions of assets permitted by Section 8.2;
and
(c) preserve or renew all of its registered patents, copyrights,
trademarks, trade names and service marks, the non-preservation of which would
reasonably be expected to have a Material Adverse Effect.
7.5 Maintenance of Property. The Company shall, and shall cause each
Subsidiary to, maintain and preserve all property material to the normal conduct
of its business in good working order and condition, ordinary wear and tear
excepted, other than obsolete, worn out or surplus equipment.
7.6 Insurance. The Company shall, and shall cause each Subsidiary to,
maintain with financially sound and reputable independent insurers, insurance
with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
7.7 Payment of Obligations. The Company shall, and shall
cause each Subsidiary to, pay and discharge as the same shall
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become due and payable, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Company or such Subsidiary in respect thereof, all of its
obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets; and
(b) all lawful claims which, if unpaid, would by law become a
Lien upon its property.
7.8 Compliance with Laws. The Company shall, and shall cause each
Subsidiary to, comply in all material respects with all Requirements of Law of
any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist.
7.9 Compliance with ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other Federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.
7.10 Inspection of Property and Books and Records. The Company shall,
and shall cause each Subsidiary to, maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Company and such Subsidiary. The Company shall
permit, and shall cause each Subsidiary to permit, representatives and
independent contractors of the Administrative Agent or any Lender (a) to visit
and inspect any of their respective properties, to examine their respective
corporate, financial and operating records, and to make copies thereof or
abstracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, and independent public
accountants and (b) to inspect any of their Inventory and equipment, to perform
appraisals of any of their equipment, and to inspect, audit, check and make
copies and/or extracts from the books, records, computer data and records,
computer programs, journals, orders, receipts, correspondence and other data
relating to Inventory, Accounts Receivable, contract rights, general
intangibles, equipment and any other Collateral, or relating to any other
transactions between the parties hereto; at such reasonable times during normal
business hours and as often as may be reasonably desired,
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upon reasonable advance notice to the Company; provided, however, that when an
Event of Default exists, the Administrative Agent or any Lender may do any of
the foregoing without advance notice. After the occurrence and during the
continuance of an Event of Default, any such inspection shall be at the
Company's expense.
7.11 Interest Rate Protection. (a) The Company shall, not later than 90
days after the Closing Date, enter into one or more Permitted Swap Obligations,
each with a term of at least three years, on an ISDA standard form with one or
more Lenders or Affiliates thereof or with counterparties reasonably acceptable
to the Administrative Agent with respect to not less than $235,000,000 of the
principal amount of the Loans in form and substance reasonably satisfactory to
the Administrative Agent.
(b) The Company shall, not later than 90 days after the New Term B
Funding Date, enter into one or more Permitted Swap Obligations, each with a
term of at least three years, on an ISDA standard form with one or more Lenders
or Affiliates thereof or with counterparties reasonably acceptable to the
Administrative Agent with respect to not less than one-half of the principal
amount of the New Term B Loans made on such date in form and substance
reasonably satisfactory to the Administrative Agent.
7.12 Environmental Covenant. The Company will, and will cause each of
its Subsidiaries to,
(a) use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance therewith, and
handle all Hazardous Materials in material compliance with all applicable
Environmental Laws;
(b) promptly notify the Administrative Agent and provide copies
of all written material Environmental Claims, and shall act in a diligent and
prudent fashion to address such Environmental Claims, including Environmental
Claims that allege that the Company or any of its Subsidiaries is not in
compliance with Environmental Laws; and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this Section 7.12.
7.13 Use of Proceeds. The Company shall use the proceeds of the Loans
and the Letters of Credit (i) to finance the Contadina Acquisition, and (ii) for
working capital and other general corporate purposes not in contravention of any
Requirement of Law or of any Loan Document; provided that
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Revolving Loans may be used to finance Acquisitions permitted in accordance with
subsection 8.4(i).
7.14 Further Assurances. (a) After the Merger has been consummated, the
Company shall cause to be delivered to the Agents and Lenders evidence of such
consummation, in form and substance satisfactory to the Administrative Agent.
(b) The Company shall, and shall cause each Subsidiary to,
execute, acknowledge, deliver, record, re-record, file, refile, register and
re-register, any and all such further acts, deeds, conveyances, security
agreement, mortgages, assignments, estoppel certificates, financing statements
and continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments the Administrative
Agent or the Required Lenders, as the case may be, may reasonably request from
time to time in order (1) to ensure that (i) the obligations of the Company
hereunder and under the other Loan Documents are secured by substantially all
assets of the Company (provided, that unless otherwise reasonably required by
the Required Lenders, the pledge of the capital stock of a Foreign Subsidiary
shall be limited to 65% of the outstanding capital stock of such Subsidiary) and
guaranteed, pursuant to the Guaranties, by Parent and all Domestic Subsidiaries
that are Material Subsidiaries (including, promptly upon the acquisition or
creation thereof, any Material Subsidiary created or acquired after the date
hereof) and (ii) the obligations of the Company under the Loan Documents are
secured by substantially all of the assets of Parent and each Domestic
Subsidiary that is a Material Subsidiary (provided, that unless reasonably
required by the Required Lenders, the pledge of the capital stock of a Foreign
Subsidiary shall be limited to 65% of the outstanding capital stock of such
Subsidiary), (2) to perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and the Liens intended to be created
thereby and (3) to better assure, convey, grant, assign, transfer, preserve,
protect and confirm to the Administrative Agent and the Lenders the rights
granted or now or hereafter intended to be granted to the Administrative Agent
and the Lenders under any Loan Documents or under any other document executed in
connection therewith. Contemporaneously with the execution and delivery of any
document referred to above, the Company shall, and shall cause each Subsidiary
to, deliver all resolutions, opinions and corporate documents as the
Administrative Agent or the Required Lenders may reasonably request to confirm
the enforceability of such document and the perfection of the security interest
created thereby, if applicable. The Company shall, and shall cause its
Subsidiaries to, use best efforts to obtain consents of landlords to the
granting of security interests in favor of the Administrative Agent for the
benefit of the Lender Parties in (i) the Company's leasehold interests in real
property in Dallas (#228), Stockton
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(#222), ▇▇▇▇▇▇▇▇▇, California (Warehouse #28), ▇▇▇▇▇▇▇▇▇, California (Nebraska
and Chestnut), San ▇▇▇▇ (#3), California, San ▇▇▇▇ (#4), California, Modesto
(4318 Yosemite), California, Sleepy Eye, Minnesota, and Plover (Warehouse #115),
Wisconsin, and (ii) all leasehold interests of the Company or any Subsidiary of
real property that is used for distribution or warehousing and has aggregate
improvements of 100,000 square feet or greater and such other leased properties
as the Administrative Agent may reasonably request; provided, however, that such
best efforts obligation shall not require the Company or any Subsidiary to make
any payment of money or property.
(c) If at any time (x) there are Subsidiaries that are not
parties to the Subsidiary Security Agreement or the Subsidiary Guaranty and (y)
(i) the aggregate assets of such Subsidiaries exceed 5% of the consolidated
assets of the Company and its Subsidiaries, (ii) the aggregate revenues of such
Subsidiaries for any fiscal quarter exceed 5% of the consolidated revenues of
the Company and its Subsidiaries for such period or (iii) the aggregate
investments of the Company and its other Subsidiaries in and advances to such
Subsidiaries exceed 5% of the consolidated assets of the Company and its
Subsidiaries, then the Company shall cause one or more Subsidiaries that are not
then parties to the Subsidiary Security Agreement and/or the Subsidiary Guaranty
to execute and deliver to the Administrative Agent counterparts to such
agreements and become parties thereto such that the circumstances described in
the foregoing clauses (y)(i), (y)(ii) and (y)(iii) do not exist, and in
connection with such execution and delivery the Company shall cause to be
delivered to the Administrative Agent such opinions of counsel and other
supporting documentation in respect thereof as the Administrative Agent shall
reasonably request.
(d) Subject to the following sentence, within 30 days after the
Closing Date, the Company shall cause each financial institution at which
Parent, the Company or any Domestic Subsidiary maintains any lockbox, deposit
account or other similar account to deliver to the Administrative Agent and the
Company a writing, in form and substance satisfactory to the Administrative
Agent, acknowledging and consenting to the security interest of the
Administrative Agent in such lockbox or account and all cash, checks, drafts and
other instruments or writings for the payment of money from time to time
therein, confirming such financial institution's agreement to follow the
instructions of the Administrative Agent with respect to all such cash, checks,
drafts and other instruments or writings for the payment of money following the
occurrence of any Event of Default or Unmatured Event of Default of the type
specified in subsection 9.1(f) or (g) and waiving all rights of setoff and
banker's lien on all items held in any such lockbox or account. With respect to
each of the Company's accounts at ▇▇▇▇▇ Fargo Bank, Mellon
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Bank East and The Northern Trust Company which are listed on Schedule V of the
Security Agreement (Company and Parent), the Company shall have 120 days after
the Closing Date (A) to obtain an agreement from the related bank covering such
account and satisfying the requirements of the prior sentence or (B) to close
such account, and, with respect to each of the accounts held at First State Bank
▇▇▇▇ ▇▇▇▇▇▇▇ and listed on Schedule V of the Security Agreement (Company and
Parent), the Company shall not be obligated to obtain an agreement from such
bank covering such account and satisfying the requirements of the prior sentence
so long as the amount in such account is less than $5,000; provided, however,
that notwithstanding the foregoing, upon the occurrence of an Event of Default
or Unmatured Event of Default or at the request of Administrative Agent, the
Company shall have 30 days to obtain an agreement covering each of the accounts
referred to in this sentence and satisfying the requirements of the prior
sentence.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
8.1 Limitation on Liens. The Company shall not, and shall not permit
Parent or any Subsidiary to, directly or indirectly, make, create, incur, assume
or suffer to exist any Lien upon or with respect to any part of its property,
whether now owned or hereafter acquired, other than the following ("Permitted
Liens"):
(a) any Lien existing on property of the Company or any
Subsidiary on the Closing Date and set forth on Schedule 8.1 securing
Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to the
extent that non-payment thereof is permitted by Section 7.7, provided that no
notice of lien has been filed or recorded under the Code;
(d) growers', carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary course
of business which are not delinquent or which are being contested in good faith
and by appropriate proceedings, which proceedings have the effect of
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preventing the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation;
(f) Liens on property of the Company or any Subsidiary securing
(i) the non-delinquent performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, (ii) surety bonds (excluding
appeal bonds and other bonds posted in connection with court proceedings or
judgments) and (iii) other non-delinquent obligations of a like nature, in each
case, incurred in the ordinary course of business, provided that all such Liens
in the aggregate would not (even if enforced) cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment Liens and
Liens securing contingent obligations on appeal bonds and other bonds posted in
connection with court proceedings or judgments, provided that the enforcement of
such Liens is effectively stayed;
(h) easements, rights-of-way, restrictions and other similar
encumbrances 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 interfere
with the ordinary conduct of the businesses of the Company and its Subsidiaries;
(i) purchase money security interests on any property acquired by
the Company or any Subsidiary in the ordinary course of business, securing
Indebtedness incurred or assumed for the purpose of financing all or any part of
the cost of acquiring such property, provided that (i) any such Lien attaches to
such property concurrently with or within 45 days after the acquisition thereof,
(ii) such Lien attaches solely to the property so acquired in such transaction,
(iii) the principal amount of the Indebtedness secured thereby does not exceed
100% of the cost of such property and (iv) the principal amount of the
Indebtedness secured by all such purchase money security interests shall not at
any time exceed $20,000,000;
(j) Liens securing obligations in respect of capital leases on
assets subject to such leases, provided that such capital leases are otherwise
permitted hereunder;
(k) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or
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other funds maintained with a creditor depository institution, provided that (i)
such deposit account is not a dedicated cash collateral account and is not
subject to restrictions against access by the Company in excess of those set
forth by regulations promulgated by the FRB and (ii) such deposit account is not
intended by the Company or any Subsidiary to provide collateral to the
depository institution;
(l) Liens in connection with a Permitted Receivables Facility;
(m) Liens under Permitted Security Agreements;
(n) Liens securing Acquired Indebtedness permitted by subsection
8.5(k), provided that such Liens were in existence prior to the contemplation of
the related Acquisition and do not extend to any assets other than the property
financed with such Acquired Indebtedness;
(o) Liens, defects and other matters specifically disclosed on
the title insurance policies delivered to and accepted by the Administrative
Agent on the Closing Date in connection with properties subjected to a Mortgage
on the Closing Date;
(p) extensions, renewals and replacements of Liens referred to in
clauses (a) through (o) above, provided that any such extension, renewal or
replacement Lien is limited to the property or assets covered by the Lien
extended, renewed or replaced and does not secure any Indebtedness in addition
to that secured immediately prior to such extension, renewal or replacement;
(q) the Lien on the Secured Proceeds Account and amounts on
deposit therein pursuant to the Parent Discount Indenture; and
(r) Liens securing other Indebtedness of the Company and its
Subsidiaries not expressly permitted by clauses (a) through (q) above; provided
that the aggregate amount of the Indebtedness secured by Liens permitted
pursuant to this clause (r) does not exceed $5,000,000 in the aggregate
outstanding at any time.
8.2 Disposition of Assets. The Company shall not, and shall not permit
any Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer
or otherwise dispose of (whether in one or a series of transactions) any
property (including accounts and notes receivable, with or without recourse) or
enter into any agreement to do any of the foregoing, except:
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(a) dispositions of Inventory, or worn-out or surplus
equipment, all in the ordinary course of business;
(b) the sale of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to the
purchase price of such replacement equipment, unless such equipment is not
needed in the Company's or such Subsidiary's business;
(c) transfers of Accounts Receivable under a Permitted
Receivables Facility;
(d) dispositions not otherwise permitted hereunder (including the
disposition of all of the capital stock of any operating Subsidiary by sale of
stock or by merger of such Subsidiary with or into another Person and including
a disposition pursuant to a sale and lease-back transaction) which are made for
fair market value if the fair market value of all assets so disposed of by the
Company and its Subsidiaries under this clause (d) does not exceed $25,000,000
in the aggregate; provided that (i) at the time of any disposition, no Event of
Default or Unmatured Event of Default shall exist or will result from such
disposition, (ii) at least 75% of the consideration received by the Company or
such Subsidiary from such disposition is in cash or Cash Equivalent Investments
and (iii) the proceeds thereof are applied as provided in subsection 2.8(a);
(e) mergers expressly permitted by clauses (i) and (ii) of
Section 8.3 or transfers by any Wholly-Owned Subsidiary of the Company of its
assets upon its liquidation to the Company or any of its Wholly-Owned
Subsidiaries;
(f) dispositions of Assets Held for Sale which are made for fair
market value; and
(g) dispositions of assets not exceeding $2,000,000 in any fiscal
year for non-cash consideration.
8.3 Consolidations and Mergers. The Company shall not, and shall not
permit any Subsidiary to, merge or consolidate with or into any other Person,
except that (i) any Subsidiary may merge with the Company (provided that the
Company shall be the continuing or surviving corporation) or with any one or
more Wholly-Owned Subsidiaries (provided that a Wholly-Owned Subsidiary shall be
the continuing or surviving corporation), (ii) any Wholly-Owned Subsidiary may
acquire by merger any Person in an Acquisition permitted by subsection 8.4(i)
(provided that such Wholly-Owned Subsidiary is the survivor of such merger) and
(iii) any Subsidiary may be merged with or into any other Person in a
transaction permitted by subsection 8.2(d).
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8.4 Loans and Investments. The Company shall not, and shall not permit
any Subsidiary to, purchase or acquire, or make any commitment to purchase or
acquire, any capital stock, equity interest or other obligations or securities
of, or any interest in, any other Person, or make or commit to make any
Acquisition, or make or commit to make any advance, loan, extension of credit or
capital contribution to or any other investment in, any other Person, except
for:
(a) investments in Cash Equivalent Investments;
(b) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(c) investments by the Company in its Wholly-Owned Subsidiaries
or by any Subsidiary in any Wholly-Owned Subsidiary, in the form of
contributions to capital or loans or advances; provided that, immediately before
and after giving effect to such investment, no Event of Default or Unmatured
Event of Default shall have occurred and be continuing and the aggregate amount
invested in Foreign Subsidiaries after the Closing Date shall not exceed
$10,000,000;
(d) loans or advances made by any Subsidiary to the Company;
(e) loans and advances to employees in the ordinary course of
business (such as travel advances) in an aggregate amount not at any time
exceeding $5,000,000;
(f) investments by the Company and its Subsidiaries in Joint
Ventures in the form of contributions of capital, loans, advances or Contingent
Obligations; provided that, immediately before and after giving effect to such
investment, (x) no Event of Default or Unmatured Event of Default shall have
occurred and be continuing, including pursuant to Section 8.9, and (y) the
aggregate amount of all investments pursuant to this clause (f) shall not exceed
$20,000,000 in the aggregate (with all such investments valued at the time of
investment at the cash amount thereof, if in cash, the fair market value thereof
as determined by the board of directors of the Company, if in property, and at
the maximum amount thereof if in Contingent Obligations);
(g) investments constituting Permitted Swap Obligations or
payments or advances under Swap Contracts relating to Permitted Swap
Obligations;
(h) other investments in an aggregate amount not exceeding
$5,000,000 during the term of this Agreement (with all such investments valued
at the time of investment at the cash
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amount thereof, if in cash, the fair market value thereof as determined by the
board of directors of the Company, if in property, and at the maximum amount
thereof if in Contingent Obligations);
(i) Acquisitions (other than the Contadina Acquisition), provided
that
(i) the Company shall have delivered to the Administrative
Agent evidence in form and substance satisfactory to the
Administrative Agent that the financial conditions referred to in
clause (ii) below with respect to such Acquisition will be
satisfied, together with a statement of a Responsible Officer of
the Company detailing all amounts required to consummate the
prospective Acquisition and a business description and summary of
terms of the prospective Acquisition,
(ii) the Company shall be in compliance with all financial
covenants in Sections 8.11, 8.12, 8.14 and 8.15 on a pro forma
basis for the period of four consecutive fiscal quarters ending
on the last day of the last completed fiscal quarter immediately
preceding the proposed date of consummation of the prospective
Acquisition (on the assumption such Acquisition occurred on the
first day of such four fiscal quarter period and using historical
results of the Company and its Subsidiaries and the related
Acquisition Prospect for such period, without giving effect to
any adjustment for expected cost savings or other synergies),
(iii) such Acquisition shall be consummated in accordance
with all Requirements of Law and the Company and its Subsidiaries
shall have obtained all consents and approvals necessary or
desirable to such consummation and the business operations of
such Acquisition Prospect after such Acquisition, including
governmental and contractual approvals,
(iv) no Event of Default or Unmatured Event of Default
shall exist at the time of consummation thereof or would result
therefrom,
(v) the Person to be acquired (or its Board of Directors
or equivalent governing body) has not (A) announced it will
oppose such Acquisition or (B) commenced any action which alleges
that such Acquisition violates, or will violate, any Requirement
of Law, and
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(vi) the total consideration for all such Acquisitions
(including cash and noncash purchase price, liabilities assumed,
deferred or financed purchase price, purchase price characterized
as noncompetition payments and the like), together with the
amount of all investments made pursuant to subsection 8.4(k),
does not exceed in the aggregate during the term of this
Agreement an amount equal to the sum of (x) $75,000,000 plus (y)
an amount equal to the aggregate amount received by the Company
as capital contributions from Parent after the Closing Date;
(j) investments existing on the Closing Date and set forth on
Schedule 8.4;
(k) investments in Subsidiaries acquired in Acquisitions
permitted under subsection 8.4(i) that are not Wholly-Owned Subsidiaries,
provided that the amount of all such investments, together with the aggregate
total consideration paid in connection with all Acquisitions permitted by
subsection 8.4(i) (calculated in the manner set forth in subsection 8.4(i)(vi)),
does not exceed in the aggregate during the term of this Agreement an amount
equal to the sum of (x) $75,000,000 plus (y) an amount equal to the aggregate
amount received by the Company as capital contributions from Parent after the
Closing Date; and
(l) the Contadina Acquisition.
8.5 Limitation on Indebtedness. The Company shall not, and shall not
permit any Subsidiary to, create, incur, assume, suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement, the
Subsidiary Guaranty and the other Loan Documents;
(b) the Subordinated Notes and the Exchange Notes and any
Qualified Notes issued in a Qualified Refinancing and related Guaranty
Obligations by Subsidiaries of the Company;
(c) Indebtedness consisting of Contingent Obligations permitted
pursuant to Section 8.8;
(d) Indebtedness existing on the Closing Date, as set forth in
Schedule 8.5(d), and extensions, renewals or replacements of such Indebtedness
to the extent that the principal amount of such Indebtedness is not increased;
(e) Indebtedness of Subsidiaries to the Company or Wholly-Owned
Subsidiaries; provided, that the aggregate amount of
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all such Indebtedness of Foreign Subsidiaries and other investments by the
Company and its Subsidiaries in Foreign Subsidiaries shall not exceed
$25,000,000;
(f) Indebtedness up to $20,000,000 outstanding at any time
secured by Liens permitted by subsection 8.1(i);
(g) Indebtedness incurred in connection with leases permitted
pursuant to Section 8.10;
(h) Indebtedness of the Company or any Subsidiary of the Company
in connection with guaranties resulting from endorsement of negotiable
instruments in the ordinary course of business;
(i) surety bonds and appeal bonds required in the ordinary course
of business or in connection with the enforcement of rights or claims of the
Company or in connection with judgments that do not result in an Unmatured Event
of Default or an Event of Default;
(j) any Indebtedness arising under a Permitted Receivables
Facility;
(k) up to $20,000,000 of Acquired Indebtedness assumed in
Acquisitions permitted under subsection 8.4(i); and
(l) other Indebtedness in an aggregate amount not at any time
exceeding $5,000,000.
It is understood that any Indebtedness borrowed in a foreign currency shall
continue to be permitted under this Section, notwithstanding any fluctuation in
the Dollar Amount of such Indebtedness, as long as the outstanding principal
balance of such Indebtedness (denominated in its original currency) does not
exceed the maximum amount of such Indebtedness (denominated in such currency)
permitted to be outstanding on the date such Indebtedness was incurred.
8.6 Transactions with Affiliates. The Company shall not, and shall not
permit any Subsidiary to, enter into any transaction with any Affiliate of the
Company (other than a Material Subsidiary), except upon fair and reasonable
terms no less favorable to the Company or such Subsidiary than would be
obtainable in a comparable arm's-length transaction with a Person not an
Affiliate of the Company; provided that the TPG Agreements, the Tax Sharing
Agreement and payments (not exceeding $900,000) to Citicorp Venture Capital and
its Affiliates in connection with the DMFC Recapitalization shall not violate
this Section.
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8.7 Use of Proceeds. The Company shall not, and shall not permit any
Subsidiary to, use any portion of the proceeds of any Loan or any Letter of
Credit, directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to
repay or otherwise refinance indebtedness of the Company or others incurred to
purchase or carry Margin Stock, (iii) to extend credit for the purpose of
purchasing or carrying any Margin Stock or (iv) to acquire any security in any
transaction that is subject to Section 13 or 14 of the Exchange Act.
8.8 Contingent Obligations. The Company shall not, and shall not permit
any Subsidiary to, create, incur, assume or suffer to exist any Contingent
Obligation except:
(a) endorsements for collection or deposit in the
ordinary course of business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Company and its Subsidiaries
existing as of the Closing Date and listed in Schedule 8.8 and Guaranty
Obligations by the Company relating to Indebtedness of Wholly-Owned
Subsidiaries, provided, that all Contingent Obligations permitted by this
subsection 8.8(c) shall not exceed $10,000,000 at any one time;
(d) Contingent Obligations arising under the Loan Documents;
(e) Guaranty Obligations described in subsection
8.5(b); and
(f) Contingent Obligations with respect to Joint Ventures to the
extent permitted by Section 8.9.
8.9 Joint Ventures. The Company shall not, and shall not permit any
Subsidiary to, enter into any Joint Venture, except that the Company or any
Subsidiary may enter into any Joint Venture so long as the aggregate amount
invested by the Company and its Subsidiaries in all Joint Ventures in any form
(including by capital contribution, incurrence of Indebtedness by any such Joint
Venture to the Company or any Subsidiary or the incurrence of Contingent
Obligations by the Company or any Subsidiary with respect to any such Joint
Venture), during the term of this Agreement does not exceed $20,000,000;
provided, however, that for purposes of determining the aggregate amount
invested in Joint Ventures hereunder (x) any return of principal or equity
received in cash on any amount invested hereunder and (y) the fair market value
of any other property received in exchange for any amount invested hereunder
shall be deducted.
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8.10 Lease Obligations. The Company shall not, and shall not permit any
Subsidiary to, create or suffer to exist any obligations for the payment of rent
for any property under lease or agreement to lease, except for:
(a) leases of the Company and its Subsidiaries in existence on
the Closing Date and any renewal, extension or refinancing thereof;
(b) operating leases entered into by the Company or any
Subsidiary after the Closing Date in the ordinary course of business; and
(c) capital leases entered into by the Company or any Subsidiary;
provided that no Event of Default or Unmatured Event of Default has occurred and
is continuing or will result from the incurrence of the obligations of the
Company contemplated thereby.
8.11 Minimum Fixed Charge Coverage. The Company will not permit the
Fixed Charge Coverage Ratio for any Computation Period to be less than the ratio
set forth below opposite the period in which such Computation Period ends:
Period Ratio
------ -----
12/28/97 - 9/26/99 1.20:1.0
12/26/99 - 3/26/00 1.25:1.0
6/30/00 - 4/01/01 1.30:1.0
6/30/01 - 6/30/03 1.35:1.0
9/28/03 1.40:1.0
12/26/03 - 3/28/04 1.45:1.0
6/30/04 and thereafter 1.50:1.0.
8.12 Minimum EBITDA. The Company will not permit EBITDA of Parent for
any Computation Period to be less than the amount set forth below opposite the
period in which such Computation Period ends:
(a) from the date hereof until consummation of the Contadina
Acquisition:
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Period EBITDA
------ ------
12/28/97 - 3/29/98 $95,000,000
6/30/98 - 9/27/98 $100,000,000
12/27/98 - 3/28/99 $105,000,000
6/30/99 - 3/26/00 $110,000,000
6/30/00 - 4/01/01 $120,000,000
6/30/01 - 3/31/02 $130,000,000
6/30/02 and thereafter $140,000,000; and
(b) from and after the consummation of the Contadina Acquisition:
Period EBITDA
------ ------
12/28/97 - 3/29/98 $110,000,000
6/30/98 - 9/27/98 $115,000,000
12/27/98 - 3/28/99 $120,000,000
6/30/99 - 3/26/00 $125,000,000
6/30/00 - 4/01/01 $135,000,000
6/30/01 - 3/31/02 $145,000,000
6/30/02 and thereafter $155,000,000.
8.13 Minimum Adjusted Net Worth. The Company will not permit at any time
(i) Net Worth at such time plus Subordinated Debt Proceeds at such time plus
$380,000,000 plus, to the extent the same have been expensed for purposes of
calculating Net Worth, fees and expenses related to the Contadina Acquisition to
be less than (ii) (a) $115,000,000 plus the gross proceeds of the New Parent
Equity issued by Parent, plus (b) 80% of cumulative Consolidated Net Income of
Parent for the period beginning on the Closing Date and ending on the date of
calculation (provided that if Consolidated Net Income is less than zero for any
fiscal year, or for the completed portion of the then-current fiscal year,
Consolidated Net Income for such fiscal year or portion shall be deemed to be
zero); provided that no Event of Default shall arise by reason of clause (i)
above being less than clause (ii) above if, within ten days of the occurrence of
any such deficiency, Parent receives a capital contribution from its
shareholders at
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least equal to the amount of such deficiency and Parent in turn makes a capital
contribution of such amount to the Company.
8.14 Maximum Senior Debt Ratio. The Company will not permit the Senior
Debt Ratio for any Computation Period to exceed the ratio set forth below
opposite the period in which such Computation Period ends:
Period Ratio
------ -----
12/28/97 - 3/29/98 5.25:1.0
6/30/98 - 3/28/99 5.00:1.0
6/30/99 - 3/26/00 4.25:1.0
6/30/00 - 4/01/01 3.75:1.0
6/30/01 - 3/31/02 3.25:1.0
6/30/02 - 3/30/03 2.75:1.0
6/30/03 and thereafter 2.25:1.0.
8.15 Maximum Total Debt Ratio. The Company will not permit the Total
Debt Ratio on the last day of any fiscal year to exceed the ratio set forth
below opposite such fiscal year:
Fiscal Year Ending Ratio
------------------ -----
6/30/98 6.25:1.0
6/30/99 5.50:1.0
6/30/00 5.00:1.0
6/30/01 4.50:1.0
6/30/02 4.00:1.0
6/30/03 and each fiscal year 3.50:1.0.
thereafter
8.16 Maximum Capital Expenditures. The Company will not permit the
aggregate amount of all Capital Expenditures made by the Company and its
Subsidiaries for any fiscal year to exceed the amount set forth below opposite
such fiscal year (it being understood that with respect to the line item below
for June 30, 1997, such expenditures shall be measured from the Closing Date to
June 30, 1997):
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(a) from the date hereof until consummation of the Contadina
Acquisition:
Fiscal Year Amount
----------- ------
ending 6/30/97 $15,000,000
ending 6/30/98 $55,000,000
ending 6/30/99 $50,000,000
ending 6/30/00 $45,000,000
ending 6/30/01 and each fiscal $40,000,000;
year thereafter
(b) from and after the consummation of the Contadina Acquisition:
Fiscal Year Amount
----------- ------
ending 6/30/97 $15,000,000
ending 6/30/98 $45,000,000
ending 6/30/99 $50,000,000
ending 6/30/00 $55,000,000
ending 6/30/01 and each fiscal $40,000,000;
year thereafter
provided, however, that to the extent Capital Expenditures actually made in any
fiscal year are less than the amount permitted to be made in such fiscal year
(without giving effect to any carryforward), the lesser of (x) the amount of the
difference and (y) 50% (100% with respect to the fiscal period ending June 30,
1997) of the amount of Capital Expenditures permitted to be made in such year as
set forth in the table above may be carried forward and used to make Capital
Expenditures in the next succeeding fiscal year; provided, further, however,
that in any period the Company and its Subsidiaries may only use a carryforward
to such period if the entire amount set forth in the table above for such period
has been utilized.
8.17 Restricted Payments. The Company shall not, and shall not permit
any Subsidiary to, (1) declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any shares of any
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class of its capital stock, or purchase, redeem or otherwise acquire for value
any shares of its capital stock or any warrants, rights or options to acquire
such shares, now or hereafter outstanding, or (2) make any redemptions,
prepayments, defeasances or repurchases of any Subordinated Debt except that:
(a) any Subsidiary may declare and pay dividends to
the Company or a Wholly-Owned Subsidiary;
(b) the Company may declare and make dividend payments or other
distributions payable solely in Common Stock;
(c) the Subordinated Notes may be exchanged for the Exchange
Notes pursuant to the terms of the Subordinated Note Purchase Agreement and the
Exchange Notes or the Subordinated Notes may be repaid using the Net Cash
Proceeds of a Qualified Refinancing;
(d) the Company or any of its Subsidiaries may purchase (or may
pay a dividend to Parent to enable Parent to purchase) capital stock or options
with respect to capital stock held by employees or management of Parent or any
of its Subsidiaries in connection with the termination of employment of any such
employees or management, provided that any such payments do not exceed
$2,000,000 in any fiscal year or $10,000,000 in the aggregate;
(e) upon an initial Public Offering of the Company or Parent, the
Company may repurchase or redeem Subordinated Notes, Exchange Notes or Qualified
Notes with the Net Cash Proceeds of such initial Public Offering, provided that
no more than $52,500,000 principal amount of Subordinated Debt may be
repurchased or redeemed pursuant to this clause (e) and provided further that
any such application of the proceeds of such Public Offering to repurchase
Subordinated Debt may only be made following the making of any mandatory
prepayment required under subsection 2.8(a) in connection with such Public
Offering;
(f) the Company may pay a dividend to Parent on the Closing Date
in an amount not exceeding $265,000,000 to finance Parent's payment
consideration for the Merger to its shareholders pursuant to the terms of the
Merger Agreement and related fees and expenses, provided that such funds are
actually used by Parent to pay such Merger consideration and such fees and
expenses within 30 days of the payment of such dividend;
(g) the Company may make payments to Parent at the times and in
the amounts provided in the Tax Sharing Agreement;
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(h) the Company may make payments to TPG Partners of fees and
expenses at the times and in the amounts provided in the TPG Agreements;
(i) the Company may make payments to Parent in amounts not to
exceed $1,000,000 per fiscal year to reimburse Parent for expenses incurred by
Parent in the ordinary course of business; and
(j) the Company may make a payment to Parent in an amount not to
exceed $7,500,000 if the Contadina Acquisition is not consummated and the
amounts in the Secured Proceeds Account are disbursed to redeem outstanding
Parent Discount Notes in accordance with the terms of the Parent Discount
Indenture.
8.18 ERISA. The Company shall not, and shall not permit any of its ERISA
Affiliates to: (a) engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted or
would reasonably be expected to result in a Material Adverse Effect; or (b)
engage in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
8.19 Limitations on Sale and Leaseback Transactions. The Company shall
not, and shall not permit any Subsidiary to, enter into any arrangement with any
Person providing for the leasing by the Company or any Subsidiary of any real or
personal property, which property is or has been sold or transferred by the
Company or any Subsidiary to such Person in contemplation of taking back a lease
thereof to the extent the fair market value of the property sold or transferred
is in an aggregate amount in excess of $25,000,000.
8.20 Limitation on Restriction of Subsidiary Dividends and
Distributions. The Company will not, and will not permit any Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to (a)
pay dividends or make other distributions on its capital stock owned by the
Company or any Subsidiary, or pay any Indebtedness owed to the Company or any
Subsidiary, (b) make loans or advances to the Company or (c) transfer any of its
assets or properties to the Company, except for such encumbrances or
restrictions existing by reason of or under (i) applicable law, (ii) this
Agreement and the other Loan Documents, (iii) prior to the termination thereof
on the Closing Date, the Prior Financing Agreements, (iv) customary
non-assignment provisions of any contract or lease governing a leasehold or
ownership interest of any Subsidiary, (v) any instrument governing Acquired
Indebtedness, which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person or
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the properties or assets of the Person so acquired, (vi) customary net worth
provisions contained in leases and other agreements entered into by a Subsidiary
in the ordinary course of business, (vii) customary restrictions with respect to
a Subsidiary pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the capital stock of such
Subsidiaries, (viii) customary provisions in joint venture agreements and other
similar agreements relating solely to the securities, assets and revenues of
such joint venture or other business venture and (ix) an agreement governing
Indebtedness incurred to refinance the Indebtedness issued, assumed or incurred
pursuant to an agreement referred to in clause (v) above; provided, however,
that the provisions relating to such encumbrance or restriction contained in any
such Indebtedness are not, in the aggregate, materially less favorable to the
Company as determined by the Board of Directors of the Company in its reasonable
and good faith judgment than the provisions relating to such encumbrance or
restriction contained in the agreements referred to in such clause (v).
8.21 Inconsistent Agreements. The Company will not, and will not permit
any Subsidiary to, enter into any agreement containing any provision which would
be violated or breached by any borrowing by the Company hereunder or by the
performance by the Company or any Subsidiary of their respective obligations
hereunder or under any other Loan Document. The Company will not, and will not
permit any of its Subsidiaries to, enter into any agreement (other than this
Agreement and the other Loan Documents) prohibiting the creation or assumption
of any Lien upon its properties, revenues or assets, whether now owned or
hereafter acquired, or the ability of the Company and its Subsidiaries to amend
or modify this Agreement or any other Loan Document.
8.22 Change in Business. The Company shall not, and shall not permit any
Subsidiary to, engage in any material business other than production, processing
and related distribution of food and beverage products and other related
businesses.
8.23 Amendments to Certain Documents. The Company and Parent shall not
make or agree to any amendment to or modification of, or waive any of its rights
under, any of the terms of (a) the Merger Agreement, (b) the Subordinated Note
Purchase Agreement, (c) the Subordinated Indenture, (d) any Qualified Indenture,
(d) any other instrument evidencing Subordinated Debt, (e) the Tax Sharing
Agreement, (f) the TPG Agreements, (g) the Contadina Purchase Agreement, (h) the
Parent Bridge Note Agreement, (i) any Qualified Parent Indenture or Parent
Discount Indenture or (j) any other instrument evidencing Qualified Parent Notes
or Parent Discount Notes or Parent Bridge
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Notes, unless any such amendment, modification or waiver is not adverse in any
respect to the Lenders.
8.24 Fiscal Year. The Company shall not, and shall not permit any
Subsidiary to, change the fiscal year of the Company or of any Subsidiary;
provided, that any Subsidiary acquired in an Acquisition permitted hereunder may
change its fiscal year to end on June 30.
8.25 Limitation on Issuance of Guaranty Obligations. The Company will
not permit any Subsidiary to create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to any
Guaranty Obligation of such Subsidiary relating to any Indebtedness of the
Company unless
(i) such Subsidiary, if it is not already a party to the
Subsidiary Guaranty, simultaneously executes and delivers to the
Administrative Agent a counterpart to the Subsidiary Guaranty, together
with such supporting documentation as the Administrative Agent may
reasonably request, notwithstanding Section 7.14,
(ii) if such Indebtedness is by its terms subordinated to the
Obligations, any such assumption, guaranty or other liability of such
Subsidiary with respect to such Indebtedness shall be subordinated, in
form and substance satisfactory to the Administrative Agent, to such
Subsidiary's Guaranty Obligation with respect to the Obligations to the
same extent as such Indebtedness is subordinated to the Obligations
(provided that such Subsidiary's Guaranty Obligation of such
Indebtedness of the Company shall be subordinated to the full amount of
such Subsidiary's Guaranty Obligation under the Subsidiary Guaranty
without giving effect to any reduction thereto necessary to render the
Guaranty Obligation of such Subsidiary thereunder not voidable under
applicable law relating to fraudulent conveyance or fraudulent
transfer), and
(iii) such Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any right of
reimbursement, indemnity or subrogation or any other rights against the
Company or any other Subsidiary as a result of any payment by such
Subsidiary under such Guaranty Obligation unless and until payment in
full in cash is made of such Indebtedness of the Company.
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ARTICLE IX
EVENTS OF DEFAULT
9.1 Event of Default. Any of the following shall constitute an "Event of
Default":
(a) Non-Payment. The Company fails to pay, when and as required
to be paid herein, any amount of principal of any Loan or of any L/C Obligation,
or, within three days after the same becomes due, any amount of interest or any
fees or other amounts payable hereunder or under any other Loan Document.
(b) Representation or Warranty. Any representation or warranty by
Parent, the Company or any Subsidiary made or deemed made herein or in any other
Loan Document, or which is contained in any certificate, document or financial
or other statement by Parent, the Company, any Subsidiary or any Responsible
Officer furnished at any time under this Agreement or any other Loan Document,
is incorrect in any material respect on or as of the date made or deemed made.
(c) Specific Defaults. The Company fails to perform or observe
any term, covenant or agreement contained in any of Section 7.3 or Article VIII
(other than Section 8.1, 8.5, 8.6, 8.17(1) or 8.19).
(d) Other Defaults. The Company fails to perform or observe any
term or covenant contained in Section 8.1, 8.5, 8.6, 8.17(1) or 8.19 (or the
Parent shall fail to perform its agreement in the Parent Guaranty to comply with
Section 8.1), and such default shall continue unremedied for a period of 10 days
after the earlier of (i) the date upon which a Responsible Officer knew or
reasonably should have known of such failure or (ii) the date upon which written
notice thereof is given to the Company by the Administrative Agent or any
Lender; or the Company, Parent or any Subsidiary fails to perform or observe any
term or covenant contained in this Agreement (other than Section 7.3 or Article
VIII) or any other Loan Document, and such default shall continue unremedied for
a period of 30 days after the earlier of (x) the date upon which a Responsible
Officer knew or reasonably should have known of such failure or (y) the date
upon which written notice thereof is given to the Company by the Administrative
Agent or any Lender.
(e) Cross-Default. (i) The Company, Parent or any Subsidiary (A)
fails to make any payment in respect of any Indebtedness or Contingent
Obligation (other than in respect of Swap Contracts) having an aggregate
principal amount (including undrawn committed or available amounts and including
amounts owing to all creditors under any combined or syndicated credit
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arrangement) of more than $10,000,000 when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise but subject to any
applicable grace period) or (B) fails to perform or observe any other condition
or covenant, or any other event shall occur or condition shall exist, under any
agreement or instrument relating to any such Indebtedness or Contingent
Obligation, if the effect of such failure, event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, such Indebtedness
to be declared to be due and payable prior to its stated maturity, or such
Contingent Obligation to become payable, or cash collateral in respect thereof
to be demanded or (ii) there occurs under any Swap Contract an Early Termination
Date (as defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which the Company or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event
(as so defined) as to which the Company or any Subsidiary is an Affected Party
(as so defined), and, in either event, the Swap Termination Value owed by the
Company or such Subsidiary as a result thereof is greater than $5,000,000.
(f) Insolvency; Voluntary Proceedings. The Company, Parent or any
Material Subsidiary: (i) ceases or fails to be solvent, or generally fails to
pay, or admits in writing its inability to pay, its debts as they become due;
(ii) voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing.
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company, Parent or any Material
Subsidiary, or any writ, judgment, warrant of attachment, warrant of execution
or similar process is issued or levied against a substantial part of the
Company's, Parent's or any Material Subsidiary's properties, and such proceeding
or petition shall not be dismissed, or such writ, judgment, warrant of
attachment, warrant of execution or similar process shall not be released,
vacated or fully bonded within 60 days after commencement, filing or levy; (ii)
the Company, Parent or any Material Subsidiary admits the material allegations
of a petition against it in any Insolvency Proceeding, or an order for relief
(or similar order under non-U.S. law) is ordered in any Insolvency Proceeding;
or (iii) the Company, Parent or any Material Subsidiary acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor) or other similar Person for itself
or a substantial portion of its property or business.
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(h) ERISA. (i) One or more ERISA Events shall occur with respect
to a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Company under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
$10,000,000; (ii) a contribution failure shall have occurred with respect to a
Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA; or
(iii) the Company or any ERISA Affiliate shall fail to pay when due, after the
expiration of any applicable grace period, one or more installment payments with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan which results in an aggregate withdrawal liability in excess
of $10,000,000.
(i) Monetary Judgments. One or more judgments, orders, decrees or
arbitration awards is entered against the Company, Parent or any Subsidiary
involving in the aggregate a liability (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), as to
any single or related series of transactions, incidents or conditions, of
$10,000,000 or more, and the same shall remain undischarged, unvacated and
unstayed pending appeal for a period of 30 days after the entry thereof, or the
Company, Parent or any Subsidiary shall enter into any agreement to settle or
compromise any pending or threatened litigation, as to any single or related
series of claims, involving payment by the Company, Parent or any Subsidiary of
$10,000,000 or more.
(j) Non-Monetary Judgments. Any non-monetary judgment, order or
decree is entered against the Company, Parent or any Subsidiary which has or
would reasonably be expected to have a Material Adverse Effect, and there shall
be any period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect.
(k) Change of Control. Any Change of Control occurs.
(l) Guarantor Defaults. Any Guaranty shall cease to be in full
force and effect with respect to any Guarantor (other than as expressly
permitted hereunder), any Guarantor shall fail to comply with or to perform any
applicable provision of any Guaranty, or any Guarantor (or any Person acting by,
through or on behalf of such Guarantor) shall contest in any manner the
validity, binding nature or enforceability of any Guaranty with respect to such
Guarantor.
(m) Collateral Documents, etc. Any Collateral Document shall
cease to be in full force and effect with respect to the Company, Parent or any
Subsidiary (other than pursuant to its terms or as expressly permitted
hereunder), or the Company,
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Parent or any Subsidiary (or any Person acting by, through or on behalf of the
Company, Parent or any Subsidiary) shall contest in any manner the validity,
binding nature or enforceability of any Collateral Document.
9.2 Remedies. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders do
any or all of the following:
(a) declare the commitment of each Lender to make Loans and any
obligation of the Issuing Lender to Issue Letters of Credit to be terminated,
whereupon such commitments and obligations shall be terminated (provided, that
if any Event of Default occurs after the making of the Term Loans, the Revolving
Commitments shall, at the request of, or may, with the consent of, the Required
Revolving Lenders (and not the Required Lenders), be terminated);
(b) declare an amount equal to the maximum aggregate amount that
is or at any time thereafter may become available for drawing under any
outstanding Letter of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letter of Credit) to be immediately due
and payable, and declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any Event of Default specified in
subsection 9.1(f) or (g), the obligation of each Lender to make Loans and the
obligation of the Issuing Lender to Issue Letters of Credit shall automatically
terminate and the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and
payable without further act of the Administrative Agent, the Issuing Lender or
any other Lender.
9.3 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
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ARTICLE X
THE AGENTS
10.1 Appointment and Authorization. (a) Each Lender hereby irrevocably
(subject to Section 10.9) appoints, designates and authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto.
Each Lender hereby appoints BTCo. as Documentation Agent for the Lenders and
BankBoston, N.A., Citicorp USA, Inc., General Electric Capital Corporation and
The Long-Term Credit Bank of Japan, Ltd., Los Angeles Agency as CoAgents for the
Lenders. The Documentation Agent and the CoAgents, in their capacities as such,
shall have no rights or duties hereunder or under any other Loan Document.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, nor
shall the Administrative Agent have or be deemed to have 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. Without limiting the generality of the foregoing sentence,
the use of the term "agent" in this Agreement and in the other Loan Documents
with reference to the Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligation arising under agency doctrine
of any applicable law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative relationship
between independent contracting parties.
(b) The Issuing Lender shall act on behalf of the Lenders with
respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for the Issuing Lender with
respect thereto; provided, however, that the Issuing Lender shall have all of
the benefits and immunities (i) provided to the Administrative Agent in this
Article X with respect to any acts taken or omissions suffered by the Issuing
Lender in connection with Letters of Credit Issued by it or proposed to be
Issued by it and the applications and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term "Administrative
Agent", as used in this Article X, included the Issuing Lender with respect to
such acts or omissions and (ii) as
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additionally provided in this Agreement with respect to the Issuing Lender.
10.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees 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 agent or
attorney-in-fact that it selects with reasonable care.
10.3 Liability of Administrative Agent. None of the Agent-Related
Persons shall (a) be liable for any action taken or omitted to be taken by any
of them under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct) or (b) be responsible in any manner to any of the Lenders
for any recital, statement, representation or warranty made by the Company or
any Subsidiary or Affiliate of the Company, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or the existence,
creation, validity, attachment, perfection, enforceability, value or sufficiency
of any collateral security for the Obligations or for any failure of the Company
or any other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall 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 the Company or any
of the Company's Subsidiaries or Affiliates.
10.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement 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 counsel to the Company), independent accountants and
other experts selected by 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 as it deems appropriate and, if it so
requests, it shall first be
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indemnified to its satisfaction by the Lenders against any and all liability and
expense 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 or any other Loan
Document in accordance with a request or consent of the Required Lenders and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all of the Lenders.
10.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Event of Default or Unmatured
Event of Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Company referring to this Agreement,
describing such Event of Default or Unmatured Event of Default and stating that
such notice is a "notice of default". The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Event of Default or Unmatured Event of Default
as may be requested by the Required Lenders in accordance with Article IX;
provided, however, that unless and until the Administrative Agent has received
any such request, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such Event
of Default or Unmatured Event of Default as it shall deem advisable or in the
best interest of the Lenders.
10.6 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Administrative Agent hereafter taken, including any review of the
affairs of the Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company and its Subsidiaries, and
all applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Company hereunder. Each Lender also represents that it will,
independently and without reliance upon any Agent-Related Person 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
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under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Lenders by the Administrative
Agent, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Company which may come into the possession of any of the
Agent-Related Persons.
10.7 Indemnification of Agents. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand the
Agents and the Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Company and without limiting the obligation of the Company to do
so), pro rata, from and against any and all Indemnified Liabilities incurred by
the Agents or the Agent-Related Persons in their capacities as such; provided,
however, that no Lender shall be liable for the payment to any Agent or
Agent-Related Person of any portion of the Indemnified Liabilities resulting
solely from such Person's gross negligence or willful misconduct. Without
limitation of the foregoing, to the extent the same are not reimbursed by the
Company, each Lender shall reimburse each Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs) incurred
by such Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that such
Agent is not reimbursed for such expenses by or on behalf of the Company. The
undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of any Agent.
10.8 Administrative Agent in Individual Capacity. BofA and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Company and its Subsidiaries and Affiliates as though BofA were not the
Administrative Agent hereunder and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, BofA or its
Affiliates may receive information regarding the Company or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Company or such Affiliates) and acknowledge that the
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Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, BofA and any Affiliate thereof shall have the
same rights and powers under this Agreement as any other Lender and may exercise
the same as though BofA were not the Administrative Agent.
10.9 Successor Administrative Agent. The Administrative Agent may, and
at the request of the Required Lenders shall, resign as Administrative Agent
upon 30 days' notice to the Lenders and the Company. If the Administrative Agent
resigns under this Agreement, the Required Lenders shall have the right, with
the consent of the Company so long as no Event of Default or Unmatured Event of
Default has occurred and is continuing (which consent shall not be unreasonably
withheld or delayed), to appoint from among the Lenders a successor agent for
the Lenders. If no successor agent is appointed prior to the effective date of
the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Company, a successor agent
from among the Lenders. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights, powers
and duties of the retiring Administrative Agent and the term "Administrative
Agent" shall mean such successor agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article X and Sections 11.4 and
11.5 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. If no successor
agent has accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above. Notwithstanding the foregoing, however,
BofA may not be removed as the Administrative Agent at the request of the
Required Lenders unless BofA and any Affiliate thereof acting as the Issuing
Lender or Swingline Lender hereunder shall also simultaneously be replaced as
the Issuing Lender and Swingline Lender pursuant to documentation in form and
substance reasonably satisfactory to BofA (and, if applicable, such Affiliate).
10.10 Withholding Tax. (a) If any Lender is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Lender claims
exemption from, or a reduction of, U.S. withholding tax under Section 1441 or
1442 of the Code, such Lender shall deliver to the Administrative Agent and the
Company:
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(i) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, properly completed IRS
Forms 1001 and W-8 before the payment of any interest in the first
calendar year and before the payment of any interest in each third
succeeding calendar year during which interest may be paid under this
Agreement;
(ii) if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Lender, two properly completed and executed copies of IRS Form 4224
before the payment of any interest is due in the first taxable year of
such Lender and in each succeeding taxable year of such Lender during
which interest may be paid under this Agreement, and IRS Form W-9;
(iii) if such Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form 1001 or 4224, such Lender shall deliver (A) a
certificate substantially in the form of Exhibit L and (B) two properly
completed and signed copies of Internal Revenue Service Form W-8
certifying that such Lender is entitled to an exemption from United
States withholding tax with respect to payments of interest to be made
under this Agreement and any Note; and
(iv) such other form or forms as may be required under the Code
or other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.
Each such Lender agrees to promptly notify the Administrative Agent and the
Company of any change in circumstances which would modify or render invalid any
claimed exemption or reduction.
(b) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001 and
such Lender sells, assigns, grants a participation in, or otherwise transfers
all or part of the Obligations of the Company to such Lender, such Lender agrees
to notify the Administrative Agent and the Company of the percentage amount in
which it is no longer the beneficial owner of Obligations of the Company to such
Lender. To the extent of such percentage amount, the Administrative Agent and
the Company will treat such Lender's IRS Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Administrative Agent and the
Company sells, assigns, grants a participation in, or otherwise transfers all or
part of the
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Obligations of the Company to such Lender, such Lender agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent or the Company, as the case may be,
may withhold from any interest payment to such Lender an amount equivalent to
the applicable withholding tax after taking into account such reduction. If the
forms or other documentation required by subsection (a) of this Section are not
timely delivered to the Administrative Agent, or the Company, as the case may
be, then the Administrative Agent or the Company, as the case may be, may
withhold from any interest payment to such Lender not providing such forms or
other documentation an amount equivalent to the applicable withholding tax
without reduction.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent or
the Company did not properly withhold tax from amounts paid to or for the
account of any Lender (because the appropriate form was not delivered or was not
properly executed, or because such Lender failed to notify the Administrative
Agent or the Company of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason)
such Lender shall indemnify the Administrative Agent or the Company, as the case
may be, fully for all amounts paid, directly or indirectly, by the
Administrative Agent or the Company, as the case may be, as Tax or otherwise,
including penalties and interest, and including any Taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent or the Company,
as the case may be, under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Lenders under this subsection
shall survive the payment of all Obligations and the resignation or replacement
of the Administrative Agent.
(f) If any Lender claims exemption from, or reduction of,
withholding tax under the Code by providing IRS Form W-8 and a certificate in
the form of Exhibit L and such Lender sells, assigns, grants a participation in,
or otherwise transfers all or part of the Obligations of the Company to such
Lender, such Lender agrees to notify the Administrative Agent and the Company of
the percentage amount in which it is no longer the beneficial owner of
Obligations of the Company to such Lender. To the extent of such percentage
amount, the Administrative Agent and the Company will treat such Lender's IRS
Form W-8 and certificate in the form of Exhibit L as no longer valid.
10.11 Collateral Matters. (a) The Administrative Agent is
authorized on behalf of all the Lenders, without the necessity of
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any notice to or further consent from the Lenders, from time to time to take any
action with respect to any Collateral or the Collateral Documents which may be
necessary to perfect and maintain perfected the security interest in and Liens
upon the Collateral granted pursuant to the Collateral Documents.
(b) The Lenders irrevocably authorize the Administrative Agent,
at its option and in its discretion, to release any Lien granted to or held by
the Administrative Agent upon any Collateral: (i) upon termination of the
Commitments and payment in full of all Loans and all other obligations known to
the Administrative Agent and payable under this Agreement or any other Loan
Document; (ii) constituting property sold or to be sold or disposed of as part
of or in connection with any disposition permitted hereunder; (iii) constituting
property in which the Company or any Subsidiary owned no interest at the time
the Lien was granted or at any time thereafter; (iv) constituting property
leased to the Company or any Subsidiary under a lease which has expired or been
terminated in a transaction permitted under this Agreement or is about to expire
and which has not been, and is not intended by the Company or such Subsidiary to
be, renewed or extended; (v) consisting of an instrument evidencing Indebtedness
or other debt instrument, if the indebtedness thereby has been paid in full; or
(vi) if approved, authorized or ratified in writing by the Required Lenders or,
if required by subsection 11.1(g), all the Lenders. Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent's authority to release particular types or items of
Collateral pursuant to this subsection 10.11(b).
(c) Each Lender agrees with and in favor of each other (which
agreement shall not be for the benefit of the Company or any Subsidiary) that
any security interest in real property collateral received by a Lender in
connection with the extension of any loan or financial commitment between such
Lender and the Company or any of its Affiliates and not related to the
transactions contemplated hereby shall not constitute collateral for the
Company's obligations under this Agreement or any other Loan Document.
(d) (i) Any and all proceeds of disposition or other realization
on the Collateral or from any realization on any Guaranty received by the
Administrative Agent in connection with any enforcement, sale, collection
(including judicial or non-judicial foreclosure) or similar proceedings with
respect to the Collateral or a demand or other enforcement or collection with
respect to any Guaranty shall be applied by the Administrative Agent, as
follows:
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FIRST: To the payment of the reasonable costs and expenses of
such disposition, collection or other realization, including Attorney
Costs, and all reasonable expenses, liabilities and advances made or
incurred by the Administrative Agent in connection therewith;
SECOND: To the ratable payment of the Liabilities then due and
owing to the Lender Parties; provided that with respect to Liabilities
consisting of the undrawn amounts of outstanding Letters of Credit,
payment shall be made to the Administrative Agent, to be retained as
Cash Collateral, for the ratable portion of the Liabilities consisting
of such undrawn amount of outstanding Letters of Credit (provided that
(A) if any such Letter of Credit is drawn upon, the Administrative Agent
shall distribute (ratably in accordance with subsection 3.4(a)) the Cash
Collateral therefor which is allocable to the amount drawn upon such
Letter of Credit to the Issuing Lender and, if any Revolving Lenders
have paid the Administrative Agent for the account of the Issuing Lender
for such Revolving Lender's participation in such Letter of Credit in
accordance with Section 3.3, the Revolving Lenders entitled to receive
such distribution and (B) if and to the extent that any such Letter of
Credit shall expire or terminate, the amount of Cash Collateral therefor
shall be applied in accordance with this subsection 10.11(d)(i)),
calculated in accordance with the provisions of subsection 10.11(d)(ii);
and
THIRD: After payment in full of all Liabilities, any surplus then
remaining from such proceeds shall be paid to the Company or to
whomsoever may be lawfully entitled to receive the same or paid as a
court of competent jurisdiction may direct.
Until such proceeds are so applied, the Administrative Agent shall hold
such proceeds in its custody in accordance with its regular procedures for
handling deposited funds.
(ii) Payment of proceeds of Collateral or of any realization on any
Guaranty to any Lender Party shall be based upon the proportion which the amount
of such Liabilities of such Lender Party bears to the total amount of all
Liabilities of all such Lender Parties. For purposes of determining the
proportionate amounts of all Liabilities sharing in any such distribution, (A)
the amount of the outstanding Obligations shall be deemed to be the Effective
Amount of the Loans and Letters of Credit and all accrued interest, fees and
costs with respect thereto and (B) the amount under any outstanding Swap
Contract shall be deemed to be the amount of the Permitted Swap Obligations then
due and payable (including early termination payments then due) in connection
therewith and all accrued interest and fees with respect thereto,
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after giving effect to any netting of payments to which the Company is entitled
with respect to such Swap Contract vis-a-vis the Company's counterparty to such
Swap Contract.
(iii) Payments of proceeds of Collateral or of any realization on any
Guaranty by the Administrative Agent in respect of (i) the Obligations shall be
made to the Administrative Agent for distribution to the Lenders pro rata and
(ii) any Swap Contract shall be made as directed by the Lender Party to which
the same is owed.
ARTICLE XI
MISCELLANEOUS
11.1 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company therefrom, shall be effective unless the same shall be
in writing and signed by the Required Lenders and the Company and acknowledged
by the Administrative Agent, and then any such waiver or consent shall be
effective only if in writing and in the specific instance and for the specific
purpose for which given; provided that:
(a) no such waiver, amendment or consent shall increase or extend
any Commitment of any Lender (or reinstate any Commitment terminated pursuant to
Section 9.2) without the written consent of such Lender;
(b) no such waiver, amendment or consent shall postpone or delay
any date fixed by this Agreement or any other Loan Document for any payment of
regularly scheduled principal or interest on any Loan without the written
consent of the Lender holding such Loan (provided, that any date fixed for
repayment of principal of any Term A Loan may be postponed or delayed (but not
beyond March 31, 2003) with the consent of Term A Lenders with an aggregate Term
A Percentage of at least 66-2/3%);
(c) no such waiver, amendment or consent relating to the
definition of "Mandatory Prepayment Event" or to any provision of this Agreement
or any other Loan Document which would result in any increased or decreased
mandatory prepayment of any Loan, or any increased or decreased mandatory
reduction of any Commitment, shall be made without the written consent of the
Required Revolving Lenders, Required Term A Lenders and Required Term B Lenders;
(d) no such waiver, amendment or consent shall reduce the
principal of, or the rate of interest specified herein on,
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any Loan without the written consent of the Lender holding such Loan;
(e) no such waiver, amendment or consent shall (subject to clause
(m) below) reduce any fees payable hereunder or under any other Loan Document,
or postpone or delay any date fixed by this Agreement or any other Loan Document
for the payment of fees or any other amounts due to any Lender hereunder or
under any other Loan Document, without the written consent of the Lender to whom
such fee or other amount is owing;
(f) no such waiver, amendment or consent shall (w) change the
aggregate percentage of the Total Percentage which is required for the Lenders
or any of them to take any action hereunder without the written consent of all
Lenders, (x) amend the definition of "Required Revolving Lenders" without the
written consent of all Revolving Lenders, (y) amend the definition of "Required
Term A Lenders" without the written consent of all Term A Lenders or (z) amend
the definition of "Required Term B Lenders" without the written consent of all
Term B Lenders;
(g) no such waiver, amendment or consent shall release any
Guaranty or Parent or any Subsidiary from its respective obligations under the
Loan Documents to which it is a party or release all or substantially all of the
collateral securing the Obligations without the written consent of all Lenders;
(h) no such waiver, amendment or consent shall amend or waive any
provision of this Section or Section 2.15, or any other provision herein
providing for consent or other action by all Lenders, without the written
consent of all Lenders;
(i) after the making of the Term Loans, Section 2.3, 2.4 (as it
relates to conversions and continuations of Revolving Loans), 2.6, 2.7 (as it
relates to an optional prepayment of Revolving Loans), 2.8(b) or 2.9(c) or
Article III may be amended, or the rights or privileges thereunder waived, with
the written consent of the Required Revolving Lenders (or, in the case of
Section 2.9(c), all of the Revolving Lenders), the Company and the
acknowledgment of the Administrative Agent;
(j) no amendment, waiver or consent shall, unless in writing and
signed by the Issuing Lender in addition to the Required Lenders or all Lenders,
as the case may be, affect the rights or duties of the Issuing Lender under this
Agreement or any L/C-Related Document relating to any Letter of Credit Issued or
to be Issued by it;
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(k) no amendment, waiver or consent shall, unless in writing and
signed by the Swingline Lender in addition to the Required Lenders or all
Lenders, as the case may be, affect the rights and duties of the Swingline
Lender under this Agreement;
(l) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Required Lenders or all
Lenders, as the case may be, affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document; and
(m) the Fee Letter may be amended, or rights or privileges
thereunder waived, in writing executed by the parties thereto.
11.2 Notices. (a) All notices, requests and other communications
hereunder shall be in writing (including, unless the context expressly otherwise
provides, by facsimile transmission, provided that any matter transmitted by the
Company by facsimile (i) shall be immediately followed by a telephone call to
the recipient at the number specified on Schedule 11.2, and (ii) shall be
followed promptly by delivery of a hard copy original thereof) and mailed, faxed
or delivered to the address or facsimile number specified for notices on
Schedule 11.2; or, as directed to the Company or the Administrative Agent, to
such other address as shall be designated by such party in a written notice to
the other parties, and as directed to any other party, at such other address as
shall be designated by such party in a written notice to the Company and the
Administrative Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the U.S. mail, return
receipt requested; except that notices to the Administrative Agent pursuant to
Article II, III or X shall not be effective until actually received by the
Administrative Agent, and notices pursuant to Article III to the Issuing Lender
shall not be effective until actually received by the Issuing Lender at the
address specified for the "Issuing Lender" on Schedule 11.2.
(c) Any agreement of the Administrative Agent and the Lenders
herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Company. The Administrative Agent and the
Lenders shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Company to give such notice and the Administrative
Agent and the Lenders shall not have any liability to the Company or any other
Person on account of any action taken or not taken by the Administrative Agent
or the Lenders in
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reliance upon such telephonic or facsimile notice. The obligation of the Company
to repay the Loans and L/C Obligations shall not be affected in any way or to
any extent by any failure of the Administrative Agent and the Lenders to receive
written confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent and the Lenders of a confirmation which is at variance with
the terms understood by the Administrative Agent and the Lenders to be contained
in the telephonic or facsimile notice.
11.3 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 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.
11.4 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse the Administrative Agent, the Documentation Agent
and the Arranger and their Affiliates (including BofA in its capacities as
Swingline Lender and Issuing Lender) within five Business Days after demand
therefor (subject to subsection 5.1(f)) for all reasonable and documented costs
and expenses incurred by such Agents and the Arranger and their Affiliates in
connection with the preparation, delivery, administration and execution of, and
any amendment, supplement, waiver or modification to (in each case, whether or
not consummated), this Agreement, any Loan Document and any other document
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including Attorney Costs incurred
by such Agents and the Arranger with respect thereto; and
(b) pay or reimburse the Administrative Agent and each Lender
within five Business Days after demand therefor (subject to subsection 5.1(f))
for all costs and expenses (including Attorney Costs) incurred by them in
connection with the enforcement, attempted enforcement or preservation of any
right or remedy under this Agreement or any other Loan Document during the
existence of an Event of Default or after acceleration of the Loans (including
in connection with any "workout" or restructuring regarding the Loans and
including in any Insolvency Proceeding or appellate proceeding).
11.5 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify and hold the
Agent-Related Persons, each Agent
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and each Lender and each of their respective Affiliates, officers, directors,
employees, counsel, agents and attorneys-in-fact (each an "Indemnified Person")
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may at any
time (including, at any time following repayment of the Loans, the termination
of the Letters of Credit and the termination, resignation or replacement of the
Administrative Agent or replacement of any Lender) be imposed on, incurred by or
asserted against any such Person in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby or thereby, or any action taken or omitted by
any such Person under or in connection with any of the foregoing, including with
respect to any investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding or any investigation, litigation or
proceeding related to any environmental cleanup, audit, compliance or other
matter relating to the protection of the environment or the Release by the
Company or any of its Subsidiaries of any Hazardous Material) related to or
arising out of this Agreement or the Loans or Letters of Credit or the use of
the proceeds thereof, whether or not any Indemnified Person is a party thereto
(all the foregoing, collectively, the "Indemnified Liabilities"); provided that
the Company shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities resulting solely from the gross negligence or
willful misconduct of such Indemnified Person. The agreements in this Section
shall survive payment of all other Obligations. Each Agent-Related Person and
each Lender agrees that in the event that any investigation, litigation or
proceeding is asserted or threatened in writing or instituted against it or any
other Indemnified Person, or any remedial, removal or response action which is
requested of it or any other Indemnified Person, for which any Agent-Related
Person or Lender may desire indemnity or defense hereunder, such Agent-Related
Person or such Lender shall notify the Company in writing of such event;
provided that failure to so notify the Company shall not affect the right of any
Agent-Related Person or Lender to seek indemnification under this Section.
11.6 Payments Set Aside. To the extent that the Company makes a payment
to the Administrative Agent or the Lenders, or the Administrative Agent or the
Lenders exercise their right of set-off, and such payment or the proceeds of
such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee or receiver, or any other party, in
connection with any
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Insolvency Proceeding or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such set-off had not occurred and (b) each Lender severally agrees to pay to the
Administrative Agent upon demand its pro rata share of any amount so recovered
from or repaid by the Administrative Agent.
11.7 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Administrative Agent and each Lender.
11.8 Assignments, Participations, etc. (a) Any Lender may, with the
written consent of the Company at all times other than during the existence of
an Event of Default and with the written consents of the Administrative Agent
and, in case of an assignment of a Revolving Commitment or L/C Obligations, the
Issuing Lender and the Swingline Lender, which consents shall not be
unreasonably withheld or delayed, at any time assign and delegate to one or more
Eligible Assignees (provided that no written consent of the Company, the
Administrative Agent, the Issuing Lender or the Swingline Lender shall be
required in connection with any assignment and delegation by a Lender to a
Person described in clause (ii), (iii) or (iv) of the definition of Eligible
Assignee) (each, an "Assignee") all, or any part, of the Loans, the Revolving
Commitment, the L/C Obligations and the other rights and obligations of such
Lender hereunder, in a minimum amount of $5,000,000 (or, if less, all of such
Lender's remaining rights and obligations hereunder or all of such Lender's
rights and obligations with respect to Revolving Commitment and Revolving Loans,
Term A Loans or Term B Loans) or such lesser amount as may be approved by the
Company and the Administrative Agent (provided that such minimum amount shall
not apply to assignments by a Lender to Persons described in clause (ii), (iii)
or (iv) of the definition of Eligible Assignee); provided, however, that (A) the
Company, the Administrative Agent, the Issuing Lender and the Swingline Lender
may continue to deal solely and directly with such Lender in connection with the
interest so assigned to an Assignee until (i) written notice of such assignment,
together with payment instructions, addresses and related information with
respect to the Assignee shall have been given to the Company and the
Administrative Agent by such Lender and the Assignee, (ii) such Lender and the
Assignee shall have delivered to the Company and the Administrative Agent an
Assignment and Acceptance in the form of Exhibit K (an "Assignment and
Acceptance") together with any Note or Notes subject to such assignment and
(iii) the assignor Lender or the Assignee has paid to the Administrative Agent a
processing fee in
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the amount of $3,500 and (B) the Company shall not, as a result of any
assignment by any Lender to any of such Lender's Affiliates, incur any increased
liability for Taxes, Other Taxes or Further Taxes pursuant to Section 4.1. The
Company designates the Administrative Agent as its agent for maintaining a book
entry record of ownership identifying the Lenders, their respective addresses
and the amount of the respective Loans and Notes which they own. The foregoing
provisions are intended to comply with the registration requirements in Treasury
Regulation Section 5f.103-1 so that the Loans and Notes are considered to be in
"registered form" pursuant to such regulation.
(b) From and after the date that the Administrative Agent
notifies the assignor Lender that it has provided its consent, and received the
consents of the Swingline Lender, the Issuing Lender and (if applicable) the
Company, with respect to an executed Assignment and Acceptance and payment of
the above-referenced processing fee, (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Lender under the Loan Documents, and (ii) the assignor
Lender shall, to the extent that rights and obligations hereunder and under the
other Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Any Lender may at any time sell to one or more commercial
banks or other Persons not Affiliates of the Company (a "Participant")
participating interests in any Loan, the Revolving Commitment of such Lender and
the other interests of such Lender (the "originating Lender") hereunder and
under the other Loan Documents; provided, however, that (i) the originating
Lender's obligations under this Agreement shall remain unchanged, (ii) the
originating Lender shall remain solely responsible for the performance of such
obligations, (iii) the Company, the Swingline Lender, the Issuing Lender and the
Administrative Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents and (iv) no Lender
shall transfer or grant any participating interest under which the Participant
has rights to approve any amendment to, or any consent or waiver with respect
to, this Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require unanimous consent of the Lenders or
the consent of a particular Lender or the consent of the Required Revolving
Lenders, Required Term A Lenders or Required Term B Lenders, in each case as
described in clauses (a) through (h) of the proviso to Section 11.1. In the case
of any such participation, the Participant shall be entitled to the benefit of
Sections 4.1, 4.3 and 11.5 as though it were also a Lender
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hereunder (provided, with respect to Sections 4.1 and 4.3, the Company shall not
be required to pay any amount which it would not have been required to pay if no
participating interest had been sold), and if amounts outstanding under this
Agreement are due and unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, the Participant
shall be deemed to have the right of set-off 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. Each Lender which sells a participation will maintain a book
entry record of ownership identifying the Participant(s) and the amount of such
participation(s) owned by such Participant(s). Such book entry record of
ownership shall be maintained by the Lender as agent for the Company and the
Administrative Agent. This provision is intended to comply with the registration
requirements in Treasury Regulation Section 5f.103-1 so that the Loans and Notes
are considered to be in "registered form" pursuant to such regulation. Each
Lender may furnish any information concerning the Company and its Subsidiaries
in the possession of such Lender from time to time to participants and
prospective participants and may furnish information in response to credit
inquiries consistent with general banking practice.
(d) Notwithstanding any other provision in this Agreement, (i)
any Lender may at any time assign all or any portion of its rights under and
interest in this Agreement and any Note held by it to any Affiliate of such
Lender that is an "Eligible Assignee" or create a security interest in, or
pledge all or any portion of its rights under and interest in this Agreement and
any Note held by it in favor of any Federal Reserve Bank in accordance with
Regulation A of the FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such
Federal Reserve Bank may enforce such pledge or security interest in any manner
permitted under applicable law and (ii) any Lender which is a fund may, with the
consent of the Company, the Administrative Agent, and in the case of an
assignment of a Revolving Commitment or L/C Obligations, the Issuing Lender and
the Swingline Lender, pledge all or any portion of its Loans and Notes to its
trustee in support of its obligations to its trustee.
11.9 Confidentiality. Each Lender agrees to take, and to cause its
Affiliates to take, normal and reasonable precautions and exercise due care to
maintain the confidentiality of all non-public information provided to it by the
Company or any Subsidiary, or by the Administrative Agent on the Company's or
any Subsidiary's behalf, under this Agreement or any other Loan Document, and
neither such Lender nor any of its Affiliates shall use any such information
other than in connection with or in enforcement of this Agreement and the other
Loan Documents or in
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connection with other business now or hereafter existing or contemplated with
the Company or any Subsidiary, except to the extent such information (i) was or
becomes generally available to the public other than as a result of disclosure
by such Lender or (ii) was or becomes available on a non-confidential basis from
a source other than the Company (provided that such source is not bound by a
confidentiality agreement with the Company or any Subsidiary known to such
Lender); provided, however, that any Lender may disclose such information (A) at
the request or pursuant to any requirement of any Governmental Authority to
which such Lender is subject or in connection with an examination of such Lender
by any such authority, (B) pursuant to subpoena or other court process, (C) when
required to do so in accordance with the provisions of any applicable
Requirement of Law, (D) to the extent reasonably required in connection with any
litigation or proceeding to which the Administrative Agent or any Lender or any
of their respective Affiliates may be party, (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder or under any
other Loan Document, (F) to such Lender's independent auditors and other
professional advisors, (G) to any Participant or Assignee, actual or potential,
or to direct or indirect contractual counterparties to swap agreements or such
contractual counterparties' professional advisors provided that such Person or
contractual counterparty or professional advisor to such contractual
counterparty agrees in writing to keep such information confidential to the same
extent required of the Lenders hereunder, (H) as to any Lender or its Affiliate,
as expressly permitted under the terms of any other document or agreement
regarding confidentiality to which the Company or any Subsidiary is party or is
deemed party with such Lender or such Affiliate, (I) to its Affiliates and (J)
to the National Association of Insurance Commissioners or any similar
organization or, with the consent of the Company (not to be unreasonably
withheld or delayed), any nationally recognized rating agency that requires
access to information about such Lender's investment portfolio in connection
with ratings issued to such Lender.
11.10 Set-off. In addition to any right or remedy of the Lenders
provided by law, if an Event of Default exists, or the Loans have been
accelerated, each Lender is authorized at any time and from time to time,
without prior notice to the Company, any such notice being waived by the Company
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by, and other indebtedness at any time owing by, such Lender or any
Affiliate of such Lender to or for the credit or the account of the Company
against any and all Obligations owing to such Lender, now or hereafter existing,
irrespective of whether or not the Administrative Agent or such Lender shall
have made demand under this Agreement or any other Loan Document and
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152
although such Obligations may be contingent or unmatured and each Affiliate of
such Lender is hereby irrevocably authorized to permit such set-off and
application. Each Lender agrees promptly to notify the Company and the
Administrative Agent after any such set-off and application made by such Lender;
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
11.11 Automatic Debits of Fees. With respect to any commitment fee,
arrangement fee, agency fee, letter of credit fee or other fee, or any other
cost or expense (including Attorney Costs) due and payable to the Administrative
Agent, the Swingline Lender or the Issuing Lender under the Loan Documents, the
Company hereby irrevocably authorizes BofA to debit any deposit account of the
Company with BofA in an amount such that the aggregate amount debited from all
such deposit accounts does not exceed such fee or other cost or expense. If
there are insufficient funds in such deposit accounts to cover the amount of the
fee or other cost or expense then due, such debits will be reversed (in whole or
in part, in BofA's sole discretion) and such amount not debited shall be deemed
to be unpaid. No such debit under this Section shall be deemed a set-off.
11.12 Notification of Addresses, Lending Offices, Etc. Each Lender shall
notify the Administrative Agent in writing of any change in the address to which
notices to such Lender should be directed, of addresses of any Lending Office,
of payment instructions in respect of all payments to be made to it hereunder
and of such other administrative information as the Administrative Agent shall
reasonably request.
11.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of which taken together shall constitute but one and the same
instrument.
11.14 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or such instrument or agreement.
11.15 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Lenders, the
Administrative Agent and the Agent Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any other Loan Document.
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11.16 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND ANY NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE
STATE OF NEW YORK; PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT
AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS EACH WAIVE
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
11.17 Waiver of Jury Trial. THE COMPANY, THE LENDERS AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR
OTHERWISE. THE COMPANY, THE LENDERS AND THE ADMINISTRATIVE AGENT EACH AGREE THAT
ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE
RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY
ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENT, RENEWAL, SUPPLEMENT OR MODIFICATION TO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS.
11.18 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
the Lenders and the Agents, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
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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.
DEL MONTE CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: Senior Vice President & Treasurer
----------------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative
Agent, Issuing Lender, Swingline Lender
and Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
----------------------------------
BANKERS TRUST COMPANY, as
Documentation Agent and as a Lender
By: /s/ ▇▇▇▇ ▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇ ▇▇▇▇▇
Title: Assistant Vice President
----------------------------------
S-1
155
BANKBOSTON, N.A., as Co-Agent and as a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Managing Director
----------------------------------
CITICORP USA, INC., as Co-Agent and as
a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in fact
----------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Agent and as a Lender
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
▇. ▇. ▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
----------------------------------
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY, as Co-Agent
and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Title: Deputy General Manager
----------------------------------
ABN AMRO BANK N.V., as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
----------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Group Vice President
----------------------------------
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY, as a
Lender
By:
-------------------------------------
Title:
----------------------------------
By:
-------------------------------------
Title:
----------------------------------
BHF-BANK AKTIENGESELLSCHAFT, as a
Lender
By: /s/ [ILLEGIBLE]
-------------------------------------
Title: Assistant Vice President
----------------------------------
By: /s/ [ILLEGIBLE]
-------------------------------------
Title: Assistant Treasurer
----------------------------------
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE, as a Lender
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Vice President
----------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
----------------------------------
CREDIT LYONNAIS LOS ANGELES BRANCH, as
a Lender
By:
-------------------------------------
Title:
----------------------------------
FLEET NATIONAL BANK, as a Lender
By:
-------------------------------------
Title:
----------------------------------
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157
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P., as
a Lender
By:
-------------------------------------
Title:
----------------------------------
▇▇▇▇▇▇ FINANCIAL, INC., as a Lender
By: /s/ ▇▇▇▇▇ ▇. [ILLEGIBLE]
-------------------------------------
Title: Vice President
----------------------------------
IMPERIAL BANK, a California banking
corporation, as a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
----------------------------------
THE INDUSTRIAL BANK OF JAPAN, Limited,
Los Angeles Agency, as a Lender
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: SVP & Senior Manager
----------------------------------
THE ING CAPITAL SENIOR SECURED HIGH
INCOME FUND, L.P., as a Lender
By: ING Capital Advisors, Inc., as
Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Portfolio Manager
-----------------------------------
MARINE MIDLAND BANK, as a Lender
By: /s/ [ILLEGIBLE]
--------------------------------------
Title: Authorized Signatory
-----------------------------------
S-4
158
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, as a Lender
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
------------------------------------
▇▇▇▇▇▇ BANK LTD., NEW YORK BRANCH,
as a Lender
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
----------------------------------
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
----------------------------------
METROPOLITAN LIFE INSURANCE COMPANY,
as a Lender
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
----------------------------------
THE MITSUBISHI TRUST AND BANKING
CORPORATION, Los Angeles Agency, as a
Lender
By: /S/ [ILLEGIBLE]
-------------------------------------
Title: Senior Vice President &
Chief Manager
----------------------------------
MITSUI LEASING (U.S.A.) INC., as
a Lender
By: /S/ [ILLEGIBLE]
-------------------------------------
Title: Senior Vice President
----------------------------------
NATIONAL CITY BANK, as a Lender
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
----------------------------------
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159
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a Unit of The Chase
Manhattan Bank), as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
----------------------------------
OAK HILL SECURITIES FUND, L.P., as a
Lender
By: Oak Hill Securities GenPar, L.P.,
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
----------------------------------
PILGRIM AMERICA PRIME RATE TRUST, as a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
----------------------------------
PPM AMERICA, INC., as attorney in
fact, on behalf of ▇▇▇▇▇▇▇ National
Life Insurance Company
By:
-------------------------------------
Title:
----------------------------------
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND" NEW YORK BRANCH, as a
Lender
By: /s/ [ILLEGIBLE]
-------------------------------------
Title: Vice President
----------------------------------
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇ ▇▇▇▇▇
Title: Senior Credit Officer
----------------------------------
KZH-SOLEIL CORPORATION, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Agent
----------------------------------
TRANSAMERICA BUSINESS CREDIT
CORPORATION, as a Lender
By:
-------------------------------------
Title:
----------------------------------
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME RATE
INCOME TRUST, as a Lender
By:
-------------------------------------
Title:
----------------------------------
THE BANK OF NEW YORK, as a Lender
By:
-------------------------------------
Title:
----------------------------------
CITY NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
----------------------------------
S-7
161
ORIX USA CORPORATION, as a Lender
By: /s/ [ILLEGIBLE]
-------------------------------------
Title: Executive Vice President
----------------------------------
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
----------------------------------
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR), as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
----------------------------------
By: /s/ ▇▇▇▇▇▇ TOUFFU
-------------------------------------
Name: ▇▇▇▇▇▇ Touffu
------------------------------------
Title: 1st Vice President and
Regional Manager
-----------------------------------
DRESDNER BANK AG, NEW YORK BRANCH and
GRAND CAYMAN BRANCH, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
----------------------------------
By: /s/ BRIGITTE SACIN
-------------------------------------
Brigitte Sacin
Title: Assistant Treasurer
----------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender
By:
-------------------------------------
Title:
----------------------------------
S-8
162
SANWA BUSINESS CREDIT CORP.,
as a Lender
By: /s/ [ILLEGIBLE]
-------------------------------------
Title: Vice President
----------------------------------
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ [ILLEGIBLE]
-------------------------------------
Title: Relationship Manager
----------------------------------
NEW YORK LIFE INSURANCE COMPANY,
as a Lender
By:
-------------------------------------
Title:
----------------------------------
TCW ASSET MANAGEMENT COMPANY, as
Attorney-In-Fact for United Companies
Life Insurance Company, as a Lender
By:
-------------------------------------
Title:
----------------------------------
TCW ASSET MANAGEMENT COMPANY, as
Attorney-In-Fact for Integon Life
Insurance Corporation, as a Lender
By:
-------------------------------------
Title:
----------------------------------
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
its investment adviser
By:
-------------------------------------
Title:
----------------------------------
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
By: /s/ [ILLEGIBLE] ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
----------------------------------
SWISS BANK CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Director
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By: /s/ ▇▇▇▇▇ [ILLEGIBLE]
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Title: Executive Director
Distressed Debt
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▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE
FUND, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
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PAMCO CAYMAN LTD.
By: Protective Asset Management
Company, as Collateral Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
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SUMITOMO TRUST & BANKING COMPANY, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇
Title: Manager & Vice President
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CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
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DLJ CAPITAL FUNDING, INC.
By: /s/ ▇▇▇▇▇ ▇. [ILLEGIBLE]
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Title: Vice President
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ML CBO IV (Cayman) Ltd.
By: Protective Asset Management
Company, as Collateral Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
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S-10
164
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
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S-11
165
ROYALTON COMPANY
By: Pacific Investment Management Company
as its investment advisor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management,
L.P. as Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
-----------------------------------------
FLOATING RATE PORTFOLIO
By: Chancellor LGT Senior Secured
Management, Inc., as Attorney-in-Fact
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
-----------------------------------------
PAMCO CAYMAN LTD.
By: Protective Asset Management
L.L.C., as Collateral Manager
By:
--------------------------------------------
Title:
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S-12
▇▇▇
▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇ ▇ LENDERS:
38.1250000% BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
----------------------------------
5.40000000% KZH-SOLEIL CORPORATION
By: /s/ ▇. ▇▇▇▇▇▇
-----------------------------------
▇. ▇▇▇▇▇▇
Title: Authorized Agent
----------------------------------
6.95000000% OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a Unit of the Chase
Manhattan Bank)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
----------------------------------
4.05000000% PILGRIM AMERICA PRIME RATE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
----------------------------------
5.77500000% SWISS BANK CORPORATION
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: Executive Director, Distressed Debt
----------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Director, Distressed Debt
----------------------------------
5.40000000% METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
----------------------------------
S-13
167
2.50000000% ROYALTON COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
----------------------------------
2.55000000% FLOATING RATE PORTFOLIO
By: Chancellor LGT Senior Secured
Management, Inc., as Attorney-in-Fact
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
-----------------------------------
2.55000000% ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
-----------------------------------
4.05000000% MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
-----------------------------------
4.05000000% THE ING CAPITAL SENIOR SECURED HIGH
INCOME FUND, L.P.
By: ING Capital Advisors, Inc., as
Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Portfolio Manager
-----------------------------------
13.5000000% OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities Gen Par, L.P.,
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
-----------------------------------
S-14
168
5.10000000% ▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE
FUND
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signature
-----------------------------------
S-15