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EXHIBIT 4(a)(i)
EXECUTION COPY
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$455,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
among
IMPERIAL ▇▇▇▇▇ CORPORATION,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
▇▇▇▇▇▇ BROTHERS INC.,
as Arranger
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
as Syndication Agent
and
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Administrative Agent and Collateral Agent
Dated as of December 22, 1997
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . 2
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . 2
1.2 Other Definitional Provisions . . . . . . . . . . . 28
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS . . . . . . . . . 28
2.1 Term Loan Commitments . . . . . . . . . . . . . . . 28
2.2 Procedure for Term Loan Borrowing . . . . . . . . . 28
2.3 Repayment of Term Loans . . . . . . . . . . . . . . 29
2.4 Revolving Credit Commitments . . . . . . . . . . . 30
2.5 Procedure for Revolving Credit Borrowing . . . . . 31
2.6 Swing Line Commitment . . . . . . . . . . . . . . . 31
2.7 Procedure for Swing Line Borrowing; Refunding of
Swing Line Loans . . . . . . . . . . . . . . . . 32
2.8 Repayment of Loans; Evidence of Debt . . . . . . . 33
2.9 Commitment Fees, etc. . . . . . . . . . . . . . . 34
2.10 Termination or Reduction of Revolving Credit
Commitments . . . . . . . . . . . . . . . . . . 34
2.11 Optional Prepayments . . . . . . . . . . . . . . . 35
2.12 Mandatory Prepayments and Commitment Reductions . 35
2.13 Conversion and Continuation Options . . . . . . . 36
2.14 Minimum Amounts and Maximum Number of Eurodollar
Tranches . . . . . . . . . . . . . . . . . . . . 37
2.15 Interest Rates and Payment Dates . . . . . . . . . 37
2.16 Computation of Interest and Fees . . . . . . . . . 38
2.17 Inability to Determine Interest Rate . . . . . . . 38
2.18 Pro Rata Treatment and Payments . . . . . . . . . 39
2.19 Requirements of Law . . . . . . . . . . . . . . . 41
2.20 Taxes . . . . . . . . . . . . . . . . . . . . . . 42
2.21 Indemnity . . . . . . . . . . . . . . . . . . . . 44
2.22 Change of Lending Office; Claims Certificate . . . 44
2.23 Margin Regulations . . . . . . . . . . . . . . . . 45
2.24 Illegality . . . . . . . . . . . . . . . . . . . . 46
SECTION 3. LETTERS OF CREDIT . . . . . . . . . . . . . . . . 46
3.1 L/C Commitment . . . . . . . . . . . . . . . . . . 46
3.2 Procedure for Issuance of Letter of Credit . . . . 47
3.3 Commissions, Fees and Other Charges . . . . . . . . 47
3.4 L/C Participations . . . . . . . . . . . . . . . . 47
3.5 Reimbursement Obligation of the Borrower . . . . . 48
3.6 Obligations Absolute . . . . . . . . . . . . . . . 49
3.7 Letter of Credit Payments . . . . . . . . . . . . . 49
3.8 Reductions and Reinstatements . . . . . . . . . . . 49
3.9 Documents and Reports . . . . . . . . . . . . . . . 49
3.10 Amendments . . . . . . . . . . . . . . . . . . . . 49
3.11 Applications . . . . . . . . . . . . . . . . . . . 50
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SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 Financial Condition . . . . . . . . . . . . . . . . 50
4.2 No Change . . . . . . . . . . . . . . . . . . . . . 51
4.3 Corporate Existence; Compliance with Law . . . . . 51
4.4 Corporate Power; Authorization; Enforceable
Obligations . . . . . . . . . . . . . . . . . . 52
4.5 No Legal Bar . . . . . . . . . . . . . . . . . . . 52
4.6 No Material Litigation . . . . . . . . . . . . . . 52
4.7 No Default . . . . . . . . . . . . . . . . . . . . 52
4.8 Ownership of Property; Liens . . . . . . . . . . . 52
4.9 Intellectual Property . . . . . . . . . . . . . . . 53
4.10 Taxes . . . . . . . . . . . . . . . . . . . . . . 53
4.11 Federal Regulations . . . . . . . . . . . . . . . 53
4.13 Investment Company Act; Other Regulations . . . . 54
4.14 Subsidiaries . . . . . . . . . . . . . . . . . . . 54
4.15 Use of Proceeds . . . . . . . . . . . . . . . . . 54
4.16 Environmental Matters . . . . . . . . . . . . . . 54
4.17 Accuracy of Information, etc . . . . . . . . . . . 55
4.18 Security Documents . . . . . . . . . . . . . . . . 55
4.19 Solvency . . . . . . . . . . . . . . . . . . . . . 56
4.20 Regulation H . . . . . . . . . . . . . . . . . . . 56
SECTION 5. CONDITIONS PRECEDENT . . . . . . . . . . . . . . 56
5.1 Conditions to Initial Extension of Credit . . . . . 56
5.2 Conditions to Each Extension of Credit . . . . . . 61
5.3 Conditions to Issuance of Bond Letters of Credit . 61
SECTION 6. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . 62
6.1 Financial Statements . . . . . . . . . . . . . . . 62
6.2 Certificates; Other Information . . . . . . . . . . 63
6.3 Payment of Obligations . . . . . . . . . . . . . . 64
6.4 Conduct of Business and Maintenance of Existence,
etc. . . . . . . . . . . . . . . . . . . . . . 64
6.5 Maintenance of Property; Insurance . . . . . . . . 64
6.6 Inspection of Property; Books and Records;
Discussions . . . . . . . . . . . . . . . . . . 65
6.7 Notices . . . . . . . . . . . . . . . . . . . . . . 65
6.8 Environmental Laws . . . . . . . . . . . . . . . . 66
6.9 Interest Rate Protection . . . . . . . . . . . . . 67
6.10 Additional Collateral, etc . . . . . . . . . . . . 67
SECTION 7. NEGATIVE COVENANTS . . . . . . . . . . . . . . . 69
7.1 Financial Condition Covenants . . . . . . . . . . . 69
7.2 Limitation on Indebtedness . . . . . . . . . . . . 71
7.3 Limitation on Liens . . . . . . . . . . . . . . . . 72
7.4 Limitation on Fundamental Changes . . . . . . . . . 74
7.5 Limitation on Sale of Assets . . . . . . . . . . . 74
7.6 Limitation on Dividends . . . . . . . . . . . . . . 75
7.7 Limitation on Capital Expenditures . . . . . . . . 75
7.8 Limitation on Investments, Loans and Advances . . . 75
7.9 Limitation on Optional Payments and Modifications
of Debt Instruments, etc. . . . . . . . . . . . 76
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Page
7.10 Limitation on Transactions with Affiliates . . . . 77
7.11 Limitation on Sales and Leasebacks . . . . . . . . 77
7.12 Limitation on Changes in Fiscal Periods . . . . . 77
7.13 Limitation on Negative Pledge Clauses . . . . . . 77
7.14 Limitation on Restrictions on Subsidiary
Distributions . . . . . . . . . . . . . . . . . 78
7.15 Limitation on Lines of Business . . . . . . . . . 78
SECTION 8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . 78
SECTION 9. THE AGENTS . . . . . . . . . . . . . . . . . . . 82
9.1 Appointment . . . . . . . . . . . . . . . . . . . . 82
9.2 Delegation of Duties . . . . . . . . . . . . . . . 82
9.3 Exculpatory Provisions . . . . . . . . . . . . . . 82
9.4 Reliance by Administrative Agent . . . . . . . . . 82
9.5 Notice of Default . . . . . . . . . . . . . . . . . 83
9.6 Non-Reliance on Agents and Other Lenders . . . . . 83
9.7 Indemnification . . . . . . . . . . . . . . . . . . 84
9.8 Agent in Its Individual Capacity . . . . . . . . . 84
9.9 Successor Administrative Agent . . . . . . . . . . 85
9.10 Authorization to Release Liens . . . . . . . . . . 85
9.11 The Arranger . . . . . . . . . . . . . . . . . . . 86
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . 86
10.1 Amendments and Waivers . . . . . . . . . . . . . . 86
10.2 Notices . . . . . . . . . . . . . . . . . . . . . 87
10.3 No Waiver; Cumulative Remedies . . . . . . . . . . 87
10.4 Survival of Representations and Warranties . . . . 88
10.5 Payment of Expenses . . . . . . . . . . . . . . . 88
10.6 Successors and Assigns; Participations and
Assignments . . . . . . . . . . . . . . . . . . 88
10.7 Adjustments; Setoff . . . . . . . . . . . . . . . 91
10.8 Counterparts . . . . . . . . . . . . . . . . . . . 92
10.9 Severability . . . . . . . . . . . . . . . . . . . 92
10.10 Integration . . . . . . . . . . . . . . . . . . . 92
10.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . 92
10.12 Submission To Jurisdiction; Waivers . . . . . . . 92
10.13 Acknowledgements . . . . . . . . . . . . . . . . 93
10.14 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . 93
10.15 Confidentiality . . . . . . . . . . . . . . . . . 93
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ANNEXES:
A Pricing Grid
SCHEDULES:
1.1A Commitments
1.1B Mortgaged Property
1.1C Non-Guarantor Subsidiaries
4.14 Subsidiaries
4.18(a) UCC Filing Jurisdictions
4.18(b) Mortgage Filing Jurisdictions
4.20 Real Property Located in Flood Zone
5.1(c) Sources and Use of Funds
7.2(e) Existing Indebtedness
7.3(g) Existing Liens
7.8(j) Extensions of Credit
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Mortgage
E Form of Assignment and Acceptance
F-1 Form of Legal Opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.
F-2 Form of Legal Opinion of Borrower's General Counsel
F-3 Form of Legal Opinion of Hunter, MacLean, ▇▇▇▇▇ &
▇▇▇▇, P.C.
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
G-3 Form of Swing Line Note
H Form of Exemption Certificate
I Form of Prepayment Option Notice
J-1 Form of Notice of Borrowing (Drawings)
J-2 Form of Notice of Borrowing (Conversions)
J-3 Form of Notice of Borrowing (Continuations)
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December
22, 1997, among IMPERIAL ▇▇▇▇▇ CORPORATION, a Texas corporation (the
"Borrower"), the several banks and other financial institutions or entities
from time to time parties to this Agreement (the "Lenders"), ▇▇▇▇▇▇ BROTHERS
INC., as arranger (in such capacity, the "Arranger"), ▇▇▇▇▇▇ COMMERCIAL PAPER
INC., as syndication agent (in such capacity, the "Syndication Agent"), ▇▇▇▇▇▇
TRUST AND SAVINGS BANK, as collateral agent (in such capacity, the "Collateral
Agent") and ▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as administrative agent (in such
capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, IHK Merger Sub Corporation, a Delaware corporation
("IHK Merger Sub"), a wholly owned subsidiary of the Borrower, made an offer
(the "Tender Offer") to purchase a number of the outstanding shares (the
"Shares") of common stock equal to 14,397,836 which represented approximately
50.1% of the Shares outstanding at the date of such purchase, par value $0.25,
of Savannah Foods & Industries, Inc., a Delaware corporation (the "Target"),
pursuant to an Offer to Purchase dated September 18, 1997 (the "Offer to
Purchase") at a price of $20.25 per Share;
WHEREAS, the Offer to Purchase was made pursuant to an
Agreement and Plan of Merger, dated as of September 12, 1997 (including the
schedules thereto, the "Merger Agreement"), among the Borrower, IHK Merger Sub
and Target, which provides that (i) as soon as practicable after the purchase
of Shares (the "Tender Offer Purchase") pursuant to the Offer to Purchase
(subject to certain conditions), each of the Borrower and the Target acting
through its respective Board of Directors shall give notice of, and convene a
special meeting of, its respective stockholders for the purpose of (in the case
of Target) approving and adopting the Merger Agreement and the Merger or (in
the case of the Borrower) approving the issuance of shares of common stock of
the Borrower in the Merger and subject to such stockholder approvals, IHK
Merger Sub will be merged with and into the Target (the "Merger"), with the
Target surviving as a wholly owned subsidiary of the Borrower; (ii) at the
effective time of the Merger, each of the Shares (other than Shares held by the
Borrower, IHK Merger Sub or any of their subsidiaries or in the treasury of the
Target, all of which will be canceled, and Shares held by Target stockholders
who perfect their appraisal rights under Delaware law) will be converted into
the right to receive a combination of cash consideration and shares of common
stock, without par value, of the Borrower pursuant to the proration and stock
price determination procedures set forth in the Merger Agreement and the Offer
to Purchase such that the aggregate cash consideration paid for Shares pursuant
to the Tender Offer Purchase and the Merger equals approximately 70% of the
total such consideration so paid;
WHEREAS, (i) in order to provide the financing for the Tender
Offer Purchase, the repayment of up to approximately $136,000,000 in existing
indebtedness of the Borrower and certain related expenses, and to provide for
the Borrower's working capital needs pending
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the Merger, the Borrower entered into a $505,000,000 Credit Agreement, dated as
of October 17, 1997, among the Borrower, the lenders party thereto, ▇▇▇▇▇▇
Brothers Inc., as arranger, ▇▇▇▇▇▇ Commercial Paper Inc., as syndication agent
and administrative agent and ▇▇▇▇▇▇ Trust and Savings Bank, as collateral agent
(the "Tender Facilities"), comprised of a term loan facility of $295,000,000
and a revolving credit facility of $210,000,000 and (ii) in order to provide a
portion of the financing for the Merger and certain related expenses, the
refinancing of certain indebtedness of Target, the repayment of amounts owing
under the Tender Facilities and to provide financing for future working capital
and other general corporate purposes, the Borrower will require at the time of
the Merger financing comprised of (A) senior credit facilities made available
pursuant to this Agreement of $455,000,000 comprised of term loan facilities
aggregating $255,000,000 and a $200,000,000 revolving credit facility and (B)
$250,000,000 in proceeds of unsecured senior subordinated notes issued by the
Borrower (as more fully defined herein, the "Senior Subordinated Notes");
WHEREAS, after giving effect to the Merger, Target will be a
wholly owned subsidiary of the Borrower; and
WHEREAS, the Lenders are willing to make the senior tender and
revolving credit facilities referred to above available upon and subject to the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms
listed in this Section 1.1 shall have the respective meanings set forth in this
Section 1.1.
"Adjusted Capital Expenditure Amount" for any period or four
consecutive fiscal quarters shall mean the excess of (i) the aggregate
amount actually paid by the Borrower and its Subsidiaries in cash
during such period on account of Capital Expenditures over (ii) in the
case of any such period ending on or before (A) March 31, 1998,
$30,000,000, (B) June 30, 1998, $35,000,000, (C) September 30, 1998,
$30,000,000, (D) December 31, 1998, $25,000,000, (E) March 31, 1999,
$10,000,000, (G) June 30, 1999, $5,000,000 or (H) thereafter, zero.
"Adjusted Consolidated Working Capital": at any date, the
excess of (i) all amounts which would, in conformity with GAAP, be
attributable to and reflected as accounts receivable, inventory and
deferred costs on a consolidated balance sheet of the Borrower and its
Subsidiaries at such date, over (ii) the sum of (A) all amounts which
would, in conformity with GAAP, be attributable to and reflected as
accounts payable on a consolidated balance sheet of the Borrower and
its Subsidiaries and (B) the aggregate principal amount of all
Indebtedness consisting of Revolving Credit Loans,
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Swing Line Loans or Indebtedness of the Borrower and its Subsidiaries
incurred pursuant to Section 7.2(k) on such date.
"Adjusted Revolving Credit Commitment": as to any Lender at
any time, (a) the amount of such Lender's Revolving Credit Commitment
less (b) such Lender's Revolving Credit Percentage of the aggregate
principal amount of Indebtedness of the Borrower and its Subsidiaries
incurred pursuant to Section 7.2(k) at such time.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or
indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether
by contract or otherwise.
"Agents": the collective reference to the Syndication Agent,
the Administrative Agent and the Collateral Agent.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": for each Type of Loan, the rate per
annum set forth under the relevant column heading below:
Base Rate Eurodollar
Loans Loans
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Revolving Credit Loans and
Swing Line Loans 0.75% 1.75%
Tranche A Term Loans 0.75% 1.75%
Tranche B Term Loans 1.00% 2.00%
; provided, that on and after the first Adjustment Date occurring at
least six months after the Merger, the Applicable Margin with respect
to Revolving Credit Loans, Swing Line Loans, Tranche A Term Loans and
Tranche B Term Loans will be determined based on the Consolidated
Total Leverage Ratio in effect from time to time, as set forth in the
Pricing Grid.
"Application": an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender to
open a Letter of Credit.
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"Arranger": as defined in the preamble hereto.
"Asset Sale": any Disposition of Property or series of
related Dispositions of Property (excluding any such Disposition
permitted by clause (a), (b), (c) or (d) of Section 7.5) which yields
gross proceeds to the Borrower or any of its Subsidiaries (valued at
the initial principal amount thereof in the case of non-cash proceeds
consisting of notes or other debt securities and valued at fair market
value in the case of other non- cash proceeds) in excess of $250,000.
"Assignee": as defined in Section 10.6(c).
"Assignor": as defined in Section 10.6(c).
"Available Revolving Credit Commitment": as to any Revolving
Credit Lender at any time, an amount equal to the excess, if any, of
(a) such Lender's Adjusted Revolving Credit Commitment over (b) such
Lender's Revolving Extensions of Credit; provided, that (i) in
calculating any Lender's Revolving Extensions of Credit for the
purpose of determining such Lender's Available Revolving Credit
Commitment pursuant to Section 2.9(a), the aggregate principal amount
of Swing Line Loans then outstanding shall be deemed to be zero and
(ii) in calculating such Lender's Adjusted Revolving Credit Commitment
for the purpose of determining such Lender's Available Revolving
Credit Commitment pursuant to Section 2.9(a), the aggregate principal
amount of Indebtedness incurred pursuant to Section 7.2(k) shall be
deemed to be zero.
"Base Rate": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by
the Reference Lender as its prime rate in effect at its principal
office in Chicago, Illinois (the Prime Rate not being intended to be
the lowest rate of interest charged by the Reference Lender in
connection with extensions of credit to debtors); "Base CD Rate" shall
mean the sum of (a) the product of (i) the Three-Month Secondary CD
Rate and (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage and (b)
the C/D Assessment Rate; and "Three-Month Secondary CD Rate" shall
mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or,
if such day shall not be a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such
rate shall not be so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New
York City received at approximately 9:00 A.M., Chicago time, on such
day (or, if such day shall not be a Business Day, on the next
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preceding Business Day) by the Reference Lender from three New York
City negotiable certificate of deposit dealers of recognized standing
selected by it. Any change in the Base Rate due to a change in the
Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate, respectively.
"Base Rate Loans": Loans the rate of interest applicable to
which is based upon the Base Rate.
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Bonds": any industrial revenue bonds or other similar
obligations of any state or any political subdivision, agency or
municipality thereof.
"Bond Documents": as to any series or issue of Bonds, the
trust indenture, trust agreement, loan agreement, lease, guaranty and
other documents pursuant to which such Bonds are issued or which
evidence such Bonds or the Company's or any Subsidiary's obligations
in any way relating to such Bonds.
"Bond Letter of Credit": any letter of credit issued by the
Issuing Lender under this Agreement to a Bond Trustee to support the
payment of the principal of, premium, if any, and interest on any
Bonds issued for the account or benefit of the Borrower or a
Subsidiary of the Borrower, or to support the obligation of the
Borrower or a Subsidiary of the Borrower, to purchase any such Bonds
upon any tender for purchase pursuant to any of the Bond Documents
relating thereto.
"Bond Trustee": as to any series or issue of Bonds, the
Trustee for such Bonds.
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower
as a date on which the Borrower requests the relevant Lenders to make
Loans hereunder.
"Business Day": (i) for all purposes other than as covered by
clause (ii) below, a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by
law to close and (ii) with respect to all notices and determinations
in connection with, and payments of principal and interest on,
Eurodollar Loans, any day which is a Business Day described in clause
(i) and which is also a day for trading by and between banks in Dollar
deposits in the interbank eurodollar market.
"Capital Expenditures": for any period, with respect to any
Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or
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leasing (pursuant to a capital lease) of fixed or capital assets or
additions to equipment (including replacements, capitalized repairs
and improvements during such period) which should be capitalized under
GAAP on a consolidated balance sheet of such Person and its
Subsidiaries.
"Capitalized Refurbishment Expenditures": manufacturing costs
incurred between processing periods which are necessary to prepare any
factory for the next processing campaign which are deferred and
allocated to the cost of sugar produced in the subsequent campaign.
"Capital Lease Obligations": as to any Person, the
obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a
balance sheet of such Person under GAAP and, for the purposes of this
Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with
GAAP.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in
a Person (other than a corporation) and any and all warrants, rights
or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit
of the United States, in each case maturing within one year from the
date of acquisition; (b) certificates of deposit, time deposits,
eurodollar time deposits or overnight bank deposits having maturities
of six months or less from the date of acquisition issued by any
Lender or by any commercial bank organized under the laws of the
United States of America or any state thereof having combined capital
and surplus of not less than $500,000,000; (c) commercial paper of an
issuer rated at least A-2 by Standard & Poor's Ratings Services
("S&P") or P-2 by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), or
carrying an equivalent rating by a nationally recognized rating
agency, if both of the two named rating agencies cease publishing
ratings of commercial paper issuers generally, and maturing within six
months from the date of acquisition; (d) repurchase obligations of any
Lender or of any commercial bank satisfying the requirements of clause
(b) of this definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured by the
United States government; (e) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities
of which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at
least A by S&P or A by ▇▇▇▇▇'▇; (f) securities with maturities of six
months or less from the date of acquisition backed by
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standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition; or (g)
shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a)
through (f) of this definition.
"C/D Assessment Rate": for any day as applied to any Base
Rate Loan, the annual assessment rate in effect on such day which is
payable by a member of the Bank Insurance Fund maintained by the
Federal Deposit Insurance Corporation (the "FDIC") classified as
well-capitalized and within supervisory subgroup "B" (or a comparable
successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.4 (or any successor provision) to the FDIC (or any
successor) for the FDIC's (or such successor's) insuring time deposits
at offices of such institution in the United States.
"C/D Reserve Percentage": for any day as applied to any Base
Rate Loan, that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Board, for determining the maximum
reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board as in effect from time to time) in respect
of new non-personal time deposits in Dollars having a maturity of 30
days or more.
"Closing Date": the date on which the conditions precedent
set forth in Section 5.1 shall have been satisfied, which date
occurred on December 22, 1997.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all Property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by
any Security Document.
"Collateral Agent": as defined in the preamble hereto.
"Commitment": as to any Lender, the sum of the Tranche A Term
Loan Commitment, the Tranche B Term Loan Commitment and the Revolving
Credit Commitment of such Lender.
"Commitment Fee Rate": 3/8 of 1% per annum; provided, that on
and after the first Adjustment Date occurring at least six months
after the Merger, the Commitment Fee Rate will be determined based on
the Consolidated Total Leverage Ratio in effect from time to time, as
set forth in the Pricing Grid.
"Commitment Letter Date": September 10, 1997, the date of the
commitment letter executed by the Borrower and the Syndication Agent
in respect of the credit facilities provided for herein (as amended on
September 18, 1997).
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of
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ERISA or is part of a group which includes the Borrower and which is
treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential
Information Memorandum dated November, 1997 and furnished to the
Lenders.
"Consolidated Current Assets": at any date, all amounts
(other than cash and Cash Equivalents) which would, in conformity with
GAAP, be set forth opposite the caption "total current assets" (or any
like caption) on a consolidated balance sheet of the Borrower and its
Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts
which would, in conformity with GAAP, be set forth opposite the
caption "total current liabilities" (or any like caption) on a
consolidated balance sheet of the Borrower and its Subsidiaries at
such date, but excluding (a) the current portion of any Funded Debt of
the Borrower and its Subsidiaries and (b) without duplication of
clause (a) above, all Indebtedness consisting of Revolving Credit
Loans or Swing Line Loans to the extent otherwise included therein.
"Consolidated EBITDA": for any period, Consolidated Net
Income for such period plus, without duplication and to the extent
reflected as a charge in the statement of such Consolidated Net Income
for such period, the sum of (a) income tax expense, (b) interest
expense, amortization or writeoff of debt discount and debt issuance
costs and commissions, discounts and other fees and charges associated
with Indebtedness (including the Loans), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but
not limited to, goodwill) and organization costs, (e) any
extraordinary, unusual or non-recurring expenses or losses (including,
whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, losses on
sales of assets outside of the ordinary course of business) and (f)
any other non-cash charges other than amounts expensed during such
period attributable to Capitalized Refurbishment Expenditures, and
minus, to the extent included in the statement of such Consolidated
Net Income for such period, the sum of (a) interest income, (b) any
extraordinary, unusual or non-recurring income or gains (including,
whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, gains on
the sales of assets outside of the ordinary course of business but
excluding, for any period, up to $5,000,000 in gain from sales during
such four quarter period of the Borrower's portfolio of marketable
securities) and (c) any other non-cash income, all as determined on a
consolidated basis.
"Consolidated Fixed Charges": for any period, the sum
(without duplication) of (a) Consolidated Interest Expense for such
period, (b) provision for cash income taxes
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made by the Borrower or any of its Subsidiaries on a consolidated
basis in respect of such period, (c) cash payments made during such
period on account of principal of Indebtedness of the Borrower or any
of its Subsidiaries (including scheduled principal payments in respect
of the Term Loans) other than the repayment of principal outstanding
under the Tender Facilities at the final maturity thereof and (d)
dividends paid during such period by the Borrower or any of its
Subsidiaries.
"Consolidated Fixed Charge Coverage Ratio": for any period,
the ratio of (a) Consolidated EBITDA for such period less the Adjusted
Capital Expenditure Amount for such period to (b) Consolidated Fixed
Charges for such period.
"Consolidated Interest Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated
Interest Expense for such period.
"Consolidated Interest Expense": for any period, total cash
interest expense (including that attributable to Capital Lease
Obligations) of the Borrower and its Subsidiaries for such period with
respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries (including, without limitation, all commissions,
discounts and other fees and charges owed with respect to letters of
credit and bankers' acceptance financing and net costs under Interest
Rate Protection Agreements to the extent such net costs are allocable
to such period in accordance with GAAP).
"Consolidated Net Income": for any period, the consolidated
net income (or loss) of the Borrower and its Subsidiaries, determined
on a consolidated basis in accordance with GAAP; provided that there
shall be excluded (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the Borrower or is merged
into or consolidated with the Borrower or any of its Subsidiaries, (b)
the income (or deficit) of any Person (other than a Subsidiary of the
Borrower) in which the Borrower or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is
actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings
of any Subsidiary of the Borrower to the extent that the declaration
or payment of dividends or similar distributions by such Subsidiary is
not at the time permitted by the terms of any Contractual Obligation
(other than under any Loan Document) or Requirement of Law applicable
to such Subsidiary.
"Consolidated Net Worth": at any date, all amounts which
would, in conformity with GAAP, be included on a consolidated balance
sheet of the Borrower and its Subsidiaries under stockholders' equity
at such date, excluding any amount included therein attributable to
unrealized gains or losses on marketable securities held by the
Borrower or its Subsidiaries.
"Consolidated Senior Debt": all Consolidated Total Debt other
than Subordinated Debt.
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10
"Consolidated Senior Leverage Ratio": as of the last day of
any period of four consecutive fiscal quarters, the ratio of (a)
Consolidated Senior Debt on such day to (b) Consolidated EBITDA for
such period; provided that for purposes of calculating Consolidated
EBITDA of the Borrower and its Subsidiaries for any period, the
Consolidated EBITDA of any Person acquired by the Borrower or its
Subsidiaries 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) if the
consolidated balance sheet of such acquired Person and its
consolidated Subsidiaries as at the end of the period preceding the
acquisition of such Person and the related consolidated statements of
income and stockholders' equity and of cash flows for the period in
respect of which Consolidated EBITDA is to be calculated (i) have been
previously provided to the Agents and the Lenders and (ii) either (A)
have been reported on without a qualification arising out of the scope
of the audit by independent certified public accountants of nationally
recognized standing or (B) have been found acceptable by the Agents;
provided, further that for purposes of calculating Consolidated EBITDA
of the Borrower and its Subsidiaries for any period, the Consolidated
EBITDA of any Person sold or otherwise disposed of by the Borrower or
its Subsidiaries during such period shall be excluded on a pro forma
basis for such period (assuming the consummation of each such sale or
other disposition occurred on the first day of such period).
"Consolidated Tangible Assets": with respect to any Person as
of any date, the amount which, in accordance with GAAP, would be set
forth under the caption "Total Assets" (or any like caption) on a
consolidated balance sheet of such Person and its Subsidiaries, less
all intangible assets, including, without limitation, goodwill,
organization costs, patents, trademarks, copyrights, franchises and
research and development costs.
"Consolidated Total Debt": at any date, the sum of (a) the
aggregate principal amount of all Funded Debt of the Borrower and its
Subsidiaries at such date minus (b) the excess of (i) the aggregate
principal amount of all Revolving Credit Loans, Swing Line Loans and
Indebtedness incurred pursuant to Section 7.2(k) outstanding at such
date over (ii) the lowest amount described in the foregoing clause (i)
to be outstanding during any consecutive 30 days occurring within the
12 months ending on such date, all determined on a consolidated basis
in accordance with GAAP; provided that for the purposes of calculating
Consolidated Total Leverage Ratio for its use in determining the
Applicable Margin and the Commitment Fee Rate in the Pricing Grid,
"Consolidated Total Debt" shall mean, at any date, the aggregate
principal amount of all Funded Debt of the Borrower and its
Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Total Leverage Ratio": as at the last day of
any period of four consecutive fiscal quarters, the ratio of (a)
Consolidated Total Debt on such day to (b) Consolidated EBITDA for
such period; provided that for purposes of calculating
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Consolidated EBITDA of the Borrower and its Subsidiaries for any
period, the Consolidated EBITDA of any Person acquired by the Borrower
or its Subsidiaries 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) if the
consolidated balance sheet of such acquired Person and its
consolidated Subsidiaries as at the end of the period preceding the
acquisition of such Person and the related consolidated statements of
income and stockholders' equity and of cash flows for the period in
respect of which Consolidated EBITDA is to be calculated (i) have been
previously provided to the Agents and the Lenders and (ii) either (A)
have been reported on without a qualification arising out of the scope
of the audit by independent certified public accountants of nationally
recognized standing or (B) have been found acceptable by the Agents;
provided, further that for purposes of calculating Consolidated EBITDA
of the Borrower and its Subsidiaries for any period, the Consolidated
EBITDA of any Person sold or otherwise disposed of by the Borrower or
its Subsidiaries during such period shall be excluded on a pro forma
basis for such period (assuming the consummation of each such sale or
other disposition occurred on the first day of such period).
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current
Liabilities on such date.
"Continuing Directors": the directors of the Borrower on the
Closing Date, after giving effect to the Merger and the other
transactions contemplated hereby, and each other director, if, in each
case, such other director's nomination for election to the board of
directors of the Borrower is recommended by at least 66-2/3% of the
then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or
any of its Property is bound.
"Control Agreement": the Amended and Restated Control
Agreement, dated as of the date hereof, among ▇▇▇▇▇▇ Trust and Savings
Bank, as securities intermediary, the Collateral Agent and the
Borrower, as the same may be amended, supplemented or otherwise
modified from time to time.
"Debt Tender Offer": the Offer to Purchase and Consent
Solicitation Statement, dated September 18, 1997, in respect of the
Senior Notes.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
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"Disposition": with respect to any Property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other
disposition thereof; and the terms "Dispose" and "Disposed of" shall
have correlative meanings.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Subsidiary": any Subsidiary of the Borrower
organized under the laws of any jurisdiction within the United States
of America.
"Environmental Laws": any and all laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, or other legally
enforceable requirement (including, without limitation, Environmental
Permits) of any Governmental Authority, regulating, relating to or
imposing liability or standards of conduct concerning protection of
the environment or of human health, or employee health and safety, as
has been, is now, or may at any time hereafter be, in effect.
"Environmental Permits": any and all permits, licenses,
registrations, notifications, exemptions and any other authorization
required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied
to a Eurodollar Loan, the aggregate (without duplication) of the
maximum rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board) maintained by
a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
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),
the "Eurodollar Base Rate" for purposes of this definition shall be
determined by reference to such other comparable publicly available
service for displaying eurodollar rates as may be selected by the
Administrative Agent and acceptable to Borrower or, in the absence of
such availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or about 10:00
A.M., Chicago time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where its
eurodollar and foreign currency and
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exchange operations are then being conducted for delivery on the first
day of such Interest Period for the number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not
such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the
excess, if any, of (a) the sum, without duplication, of (i)
Consolidated Net Income for such fiscal year, (ii) an amount equal to
the amount of all non-cash charges (including depreciation and
amortization and amounts expensed during such period attributable to
Capitalized Refurbishment Expenditures) deducted in arriving at such
Consolidated Net Income, (iii) decreases in Consolidated Working
Capital for such fiscal year, (iv) an amount equal to the aggregate
net non-cash loss on the Disposition of Property by the Borrower and
its Subsidiaries during such fiscal year (other than sales of
inventory in the ordinary course of business), to the extent deducted
in arriving at such Consolidated Net Income and (v) the net increase
during such fiscal year (if any) in deferred tax accounts of the
Borrower over (b) the sum, without duplication, of (i) an amount equal
to the amount of all non-cash credits included in arriving at such
Consolidated Net Income, (ii) the aggregate amount actually paid by
the Borrower and its Subsidiaries in cash during such fiscal year on
account of Capital Expenditures (excluding the principal amount of
Indebtedness incurred in connection with such expenditures and any
such expenditures financed with the proceeds of any Recovery
Reinvestment Deferred Amount), (iii) the aggregate amount of all
prepayments of Revolving Credit Loans and Swing Line Loans during such
fiscal year to the extent of accompanying permanent optional
reductions of the Revolving Credit Commitments and all optional
prepayments of the Term Loans during such fiscal year, (iv) the
aggregate amount of all regularly scheduled principal payments of
Funded Debt (including, without limitation, the Term Loans) of the
Borrower and its Subsidiaries made during such fiscal year (other than
in respect of any revolving credit facility to the extent there is not
an equivalent permanent reduction in commitments thereunder), (v)
increases in Consolidated Working Capital for such fiscal
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year, (vi) an amount equal to the aggregate net non-cash gain on the
Disposition of Property by the Borrower and its Subsidiaries during
such fiscal year (other than sales of inventory in the ordinary course
of business), to the extent included in arriving at such Consolidated
Net Income, and (vii) the net decrease during such fiscal year (if
any) in deferred tax accounts of the Borrower.
"Excess Cash Flow Application Date": as defined in Section
2.12(c).
"Excluded Foreign Subsidiaries": any Foreign Subsidiary the
pledge of all of whose Capital Stock as Collateral would, in the good
faith judgment of the Borrower, result in adverse tax consequences to
the Borrower.
"Facility": each of (a) the Tranche A Term Loan Commitments
and the Tranche A Term Loans made thereunder (the "Tranche A Term Loan
Facility"), (b) the Tranche B Commitments and the Tranche B Term Loans
made thereunder (the "Tranche B Term Loan Facility") and (c) the
Revolving Credit Commitments and the extensions of credit made
thereunder (the "Revolving Credit Facility").
"Federal Funds Effective Rate"; for any day, the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Reference Lender from
three federal funds brokers of recognized standing selected by it.
"Foreign Subsidiary": any Subsidiary of the Borrower that is
not a Domestic Subsidiary.
"Funded Debt": as to any Person, all Indebtedness of such
Person that (i) matures more than one year from the date of its
creation or matures within one year from such date but is renewable or
extendible, at the option of such Person, to a date more than one year
from such date or (ii) arises under a revolving credit or similar
agreement that obligates the lender or lenders to extend credit during
a period of more than one year from such date, including, without
limitation, all current maturities and current sinking fund payments
in respect of such Indebtedness whether or not required to be paid
within one year from the date of its creation and, in the case of the
Borrower, Indebtedness in respect of the Loans, provided that,
notwithstanding the foregoing, all Indebtedness incurred pursuant to
Section 7.2(k) shall be included in Funded Debt.
"Funding Office": the office specified from time to time by
the Administrative Agent as its funding office by notice to the
Borrower and the Lenders.
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"GAAP": generally accepted accounting principles in the
United States of America as in effect from time to time set forth in
the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards
Board, or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession,
which are applicable to the circumstances of the Borrower as of the
date of determination, except that for purposes of Section 7.1, GAAP
shall be determined on the basis of such principles in effect on the
date hereof and consistent with those used in the preparation of the
most recent audited financial statements delivered pursuant to Section
4.1(b). In the event that any "Accounting Change" (as defined below)
shall occur and such change results in a change in the method of
calculation of financial covenants, standards or terms in this
Agreement, then the Borrower and the Administrative Agent agree to
enter into negotiations in order to amend such provisions of this
Agreement so as to equitably reflect such Accounting Changes with the
desired result that the criteria for evaluating the Borrower's
financial condition shall be the same after such Accounting Changes as
if such Accounting Changes had not been made. Until such time as such
an amendment shall have been executed and delivered by the Borrower,
the Administrative Agent and the Required Lenders, all financial
covenants, standards and terms in this Agreement shall continue to be
calculated or construed as if such Accounting Changes had not
occurred. "Accounting Changes" refers to changes in accounting
principles required by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board
of the American Institute of Certified Public Accountants or, if
applicable, the Securities and Exchange Commission (or successors
thereto or agencies with similar functions).
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government (including, without
limitation, the National Association of Insurance Commissioners).
"Guarantee and Collateral Agreement": the Amended and
Restated Guarantee and Collateral Agreement to be executed and
delivered by the Borrower and each Subsidiary Guarantor, substantially
in the form of Exhibit A, as the same may be amended, supplemented or
otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (i) to purchase
any such primary obligation or any Property constituting
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direct or indirect security therefor, (ii) to advance or supply funds
(1) for the purchase or payment of any such primary obligation or (2)
to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase Property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business or purchases of inventory (including crops and raw
materials) in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be
the lower of (a) an amount equal to the stated or determinable amount
of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person
may be liable are not stated or determinable, in which case the amount
of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.
"H-S-R Act": the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvement Act
of 1976 as amended.
"IHK Merger Sub": as defined in the recitals hereto.
"Incur": as defined in Section 7.2.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of
Property or services (other than current trade payables incurred in
the ordinary course of such Person's business), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to
Property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such Property), (e) all Capital
Lease Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party under acceptance, letter
of credit or similar facilities, (g) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any Capital Stock (other than common stock) of such
Person, (h) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (g) above;
(i) all obligations of the kind referred to in clauses (a) through (h)
above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on
Property (including, without limitation, accounts and contract rights)
owned by such Person, whether or not such Person has
22
17
assumed or become liable for the payment of such obligation (for
purposes of calculating the amount of indebtedness referred to in this
clause (i) the amount of indebtedness shall be limited to the value of
such Property) and (j) for the purposes of Section 8(e) only, all
obligations of such Person in respect of Interest Rate Protection
Agreements and (k) the liquidation value of any preferred Capital
Stock of such Person or its Subsidiaries (i) held by any Person other
than such Person and its Wholly Owned Subsidiaries and (ii) providing
for any scheduled or mandatory payment, redemption or sinking fund
prior to one year after the final maturity of the Tranche B Term
Loans.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property,
whether arising under United States, multinational or foreign laws or
otherwise, including, without limitation, copyrights, copyright
licenses, patents, patent licenses, trademarks, trademark licenses,
technology, and all rights to ▇▇▇ at law or in equity for any
infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan, the
last day of each March, June, September and December to occur while
such Loan is outstanding and the final maturity date of such Loan, (b)
as to any Eurodollar Loan having an Interest Period of three months or
less, the last day of such Interest Period, (c) as to any Eurodollar
Loan having an Interest Period longer than three months, each day
which is three months, or a whole multiple thereof, after the first
day of such Interest Period and the last day of such Interest Period
and (d) as to any Loan (other than any Revolving Credit Loan that is a
Base Rate Loan and any Swing Line Loan), the date of any repayment or
prepayment made in respect thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case
may be, with respect to such Eurodollar Loan and ending one, two,
three or six months thereafter, as selected by the Borrower in its
Notice of Borrowing with respect thereto; and (b) thereafter, each
period commencing on the last day of the next preceding Interest
Period applicable to such Eurodollar Loan and ending one, two, three
or six months thereafter, as selected by the Borrower by irrevocable
notice to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with respect
thereto; provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into
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another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend
beyond the Revolving Credit Termination Date or beyond the
date final payment is due on the Tranche A Term Loans or the
Tranche B Term Loans, as the case may be, shall end on the
Revolving Credit Termination Date or such due date, as
applicable;
(iii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
a calendar month ending one, two, three or six months
thereafter, as the case may be, as designated in the relevant
Notice of Borrowing; and
(iv) the Borrower shall select Interest Periods so as not
to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Loan.
"Interest Rate Protection Agreement": any interest rate
protection agreement, interest rate futures contract, interest rate
option, interest rate cap or other interest rate hedge arrangement, to
or under which the Borrower or any of its Subsidiaries is a party or a
beneficiary on the date hereof or becomes a party or a beneficiary
after the date hereof.
"Issuing Lender": ▇▇▇▇▇▇ Trust and Savings Bank, in its
capacity as issuer of any Letter of Credit.
"L/C Commitment": $75,000,000.
"L/C Fee Payment Date": the last day of each March, June,
September and December and the Revolving Credit Termination Date.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit (including, in the case of Bond Letters
of Credit, the maximum amount that may be drawn thereunder at any
time, including by virtue of reinstatement thereof) and (b) the
aggregate amount of drawings under Letters of Credit which have not
then been reimbursed pursuant to Section 3.5.
"L/C Participants": the collective reference to all the
Revolving Credit Lenders other than the Issuing Lender.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
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"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature
whatsoever, whether or not filed, recorded or otherwise perfected
under applicable law (including, without limitation, any conditional
sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing and any
filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents, the
Syndication Letter, the Applications and the Notes.
"Loan Parties": the Borrower and each Subsidiary of the
Borrower which is a party to a Loan Document.
"Loan Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the
aggregate Commitments (or, at any time after the Closing Date, the
percentage which the aggregate principal amount of such Lender's
Revolving Credit Commitments (or, if the Revolving Credit Commitments
have been terminated, such Lender's Revolving Extensions of Credit)
and Term Loans then outstanding constitutes of the aggregate principal
amount of the Revolving Credit Commitments (or, if the Revolving
Credit Commitments have been terminated, the Total Revolving
Extensions of Credit) and Term Loans then outstanding).
"Majority Facility Lenders": with respect to any Facility,
the holders of more than 50% of the aggregate unpaid principal amount
of the Term Loans or the Total Revolving Extensions of Credit, as the
case may be, outstanding under such Facility (or, in the case of the
Revolving Credit Facility, prior to any termination of the Revolving
Credit Commitments, the holders of more than 50% of the Total
Revolving Credit Commitments).
"Majority Revolving Credit Facility Lenders": the Majority
Facility Lenders in respect of the Revolving Credit Facility.
"Margin Stock": as defined in Regulation U.
"Margin Stock Collateral": all Margin Stock of the Borrower
and its Subsidiaries by which the Loans are secured pursuant to the
Security Documents or are deemed "indirectly secured" within the
meaning of Regulation U.
"Material Adverse Effect": a material adverse effect on (a)
the business, assets, property, operations, liabilities (including,
without limitation, contingent liabilities), or condition (financial
or otherwise) of the Borrower, the Target and their respective
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Subsidiaries taken as a whole, (b) the consummation of the Merger or
(c) the validity or enforceability of this Agreement or any of the
other Loan Documents or the rights or remedies of the Agents or the
Lenders hereunder or thereunder which materially affects the benefits
intended to be bestowed thereunder.
"Material Environmental Amount": an amount payable by the
Borrower and/or its Subsidiaries in excess of $10,000,000 in any
individual circumstance, or at the time of any determination,
$15,000,000 in the aggregate at any such time for remedial costs,
compliance costs, compensatory damages, punitive damages, fines,
penalties or any combination thereof.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products, polychlorinated biphenyls, urea-formaldehyde insulation,
asbestos, pollutants, contaminants, radioactivity, and any other
substance that is regulated pursuant to or could give rise to
liability under any Environmental Law or common law.
"Merger": as defined in the recitals hereto.
"Merger Agreement": as defined in the recitals hereto.
"Mortgaged Properties": the real properties listed on
Schedule 1.1B, as to which the Collateral Agent for the benefit of the
Lenders shall be granted a Lien pursuant to the Mortgages.
"Mortgages": each of the mortgages and deeds of trust made by
any Loan Party in favor of, or for the benefit of, the Collateral
Agent for the benefit of the Lenders, substantially in the form of
Exhibit D (with such changes thereto as shall be advisable under the
law of the jurisdiction in which such mortgage or deed of trust is to
be recorded), as the same may be amended, supplemented or otherwise
modified from time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and
when received) of such Asset Sale or Recovery Event, net of attorneys'
fees, accountants' fees, investment banking fees, amounts required to
be applied to the repayment of Indebtedness secured by a Lien
expressly permitted hereunder on any asset which is the subject of
such Asset Sale or Recovery Event (other than any Lien pursuant to a
Security Document) and other customary fees and expenses actually
incurred in connection therewith and net of taxes paid or reasonably
estimated to be
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payable as a result thereof (after taking into account any available
tax credits or deductions and any tax sharing arrangements realized as
a result of such Asset Sales or Recovery Events) and (b) in connection
with any issuance or sale of equity securities or debt securities or
instruments or the incurrence of loans, the cash proceeds received
from such issuance or incurrence, net of attorneys' fees, investment
banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith.
"Non-Excluded Taxes": as defined in Section 2.20(a).
"Non-U.S. Lender": as defined in Section 2.20(d).
"Notes": the collective reference to any promissory note
evidencing Loans.
"Notice of Borrowing": (i) with respect to (a) any borrowing
of Loans, a Notice of Borrowing (Drawings), substantially in the form
of Exhibit J-1, (b) any conversion of Loans, a Notice of Borrowing
(Conversions), substantially in the form of Exhibit J-2 and (c) any
continuation of Eurodollar Loans, a Notice of Borrowing
(Continuations), substantially in the form of Exhibit J-3 or (ii)
telephonic notice of any such borrowing, conversion or continuation
promptly confirmed in writing (in a form reasonably acceptable to the
Administrative Agent).
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity
of the Loans and Reimbursement Obligations and interest accruing after
the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the
Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of the Borrower to the Administrative
Agent or to any Lender (or, in the case of Interest Rate Protection
Agreements, any Affiliate of any Lender), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Loan Document, the Letters of Credit,
any Interest Rate Protection Agreement entered into with any Lender or
any Affiliate of any Lender or any other document made, delivered or
given in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender
that are required to be paid by the Borrower pursuant hereto) or
otherwise.
"Offered Rate Loan": a Swing Line Loan which bears interest
as provided in Section 2.15(c) hereof.
"Offer to Purchase": as defined in the recitals hereto.
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"Other Collateral": all assets of the Borrower and its
Subsidiaries (other than Margin Stock) by which the Loans are secured
pursuant to the Security Documents or are deemed "indirectly secured"
within the meaning of Regulation U.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to,
this Agreement.
"Participant": as defined in Section 10.6(b).
"Payment Office": the office specified from time to time by
the Administrative Agent as its payment office by notice to the
Borrower and the Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Pro Forma Balance Sheets": as defined in Section 4.1(a).
"Projections": as defined in Section 6.2(c).
"Properties": as defined in Section 4.16.
"Property": any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible
or intangible, including, without limitation, Capital Stock.
"Recovery Event": any settlement of or payment in excess of
$250,000 in respect of any property or casualty insurance claim or any
condemnation proceeding relating to any asset of the Borrower or any
of its Subsidiaries.
"Recovery Reinvestment Deferred Amount": with respect to any
Recovery Reinvestment Event, the aggregate Net Cash Proceeds received
by the Borrower or any of its Subsidiaries in connection therewith
which are not applied to prepay the Term
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Loans or reduce the Revolving Credit Commitments pursuant to Section
2.12(b) as a result of the delivery of a Recovery Reinvestment Notice.
"Recovery Reinvestment Event": any Recovery Event in respect
of which the Borrower has delivered a Recovery Reinvestment Notice.
"Recovery Reinvestment Notice": a written notice executed by
a Responsible Officer stating that no Event of Default has occurred
and is continuing and that the Borrower (directly or indirectly
through a Subsidiary) intends and expects to use all or a specified
portion of the Net Cash Proceeds of a Recovery Event to acquire or
construct assets to replace the assets to which such Recovery Event
relates and that such acquisition or construction shall commence
within six months of the Recovery Reinvestment Event.
"Recovery Reinvestment Prepayment Amount": with respect to
any Recovery Reinvestment Event, the Recovery Reinvestment Deferred
Amount relating thereto less any amount (i) expended prior to the
relevant Recovery Reinvestment Prepayment Date to acquire or construct
the replacement assets relating thereto or (ii) to the extent not so
expended, committed prior to the relevant Recovery Reinvestment
Prepayment Date to the commencement (occurring no later than the
relevant Recovery Reinvestment Prepayment Date) of the acquisition or
construction of the replacement assets related thereto.
"Recovery Reinvestment Prepayment Date": with respect to any
Recovery Reinvestment Event, the earlier of (a) the date occurring six
months after such Recovery Reinvestment Event and (b) the date on
which the Borrower shall have determined not to, or shall have
otherwise ceased to, acquire or construct assets to replace the assets
to which the Recovery Reinvestment Event relates with all or any
portion of the relevant Recovery Reinvestment Deferred Amount.
"Reference Lender": Administrative Agent.
"Refunded Swing Line Loans": as defined in Section 2.7.
"Refunding Date": as defined in Section 2.7.
"Register": as defined in Section 10.6(d).
"Regulation G": Regulation G of the Board as in effect from
time to time.
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Regulation T": Regulation T of the Board as in effect from
time to time.
"Regulation X": Regulation X of the Board as in effect from
time to time.
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"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsection .13, .14, .16, .18, .19 or
.20 of PBGC Reg. Section 2615.
"Required L/C Participants": the Majority Revolving Credit
Facility Lenders.
"Required Lenders": the holders of more than 50% of (a) until
the Closing Date, the Commitments and (b) thereafter, the sum of (i)
the aggregate unpaid principal amount of the Term Loans and (ii) the
Total Revolving Credit Commitments or, if the Revolving Credit
Commitments have been terminated, the Total Revolving Extensions of
Credit.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its Property or to which such Person or any of its Property is
subject.
"Responsible Officer": the chief executive officer,
president, chief financial officer or vice president/treasurer of the
Borrower, but in any event, with respect to financial matters, the
chief financial officer of the Borrower.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender, if any, to make Revolving Credit Loans and
participate in Swing Line Loans and Letters of Credit, in an aggregate
principal and/or face amount not to exceed the amount set forth under
the heading "Revolving Credit Commitment" opposite such Lender's name
on Schedule 1.1A, as the same may be changed from time to time
pursuant to the terms hereof. The original amount of the Total
Revolving Credit Commitments is $200,000,000.
"Revolving Credit Commitment Period": the period from and
including the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Lender": each Lender which has a Revolving
Credit Commitment or which has made Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4.
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"Revolving Credit Percentage": as to any Revolving Credit
Lender at any time, the percentage which such Lender's Revolving
Credit Commitment then constitutes of the Total Revolving Credit
Commitments (or, at any time after the Revolving Credit Commitments
shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Revolving Credit Loans then
outstanding constitutes of the aggregate principal amount of the
Revolving Credit Loans then outstanding).
"Revolving Credit Termination Date": the earlier of (a) the
Scheduled Revolving Credit Termination Date and (b) the date on which
the Term Loans shall be paid in full.
"Revolving Extensions of Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Lender
then outstanding, (b) such Lender's Revolving Credit Percentage of the
L/C Obligations then outstanding and (c) such Lender's Revolving
Credit Percentage of the aggregate principal amount of Swing Line
Loans then outstanding.
"Scheduled Revolving Credit Termination Date": December 31,
2002.
"SEC": the Securities and Exchange Commission (or successors
thereto or an analogous Governmental Authority).
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement, the Mortgages, the Control
Agreement and all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any Property of any Person to
secure the obligations and liabilities of any Loan Party under any
Loan Document.
"Senior Note Indenture": the Indenture, dated as of October
15, 1992, between the Borrower and Texas Commerce Bank National
Association, as trustee (as the same may be amended, supplemented or
otherwise modified from time to time), pursuant to which the Senior
Notes were issued.
"Senior Notes": the 8-3/8% Senior Notes Due October 15, 1999,
issued by the Borrower.
"Senior Subordinated Note Indenture": the Indenture entered
into by the Borrower and certain of its Subsidiaries in connection
with the issuance of the Senior Subordinated Notes, together with all
instruments and other agreements entered into by the Borrower or such
Subsidiaries in connection therewith, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with Section 7.9.
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"Senior Subordinated Notes": the subordinated notes of the
Borrower issued on the Closing Date pursuant to the Senior
Subordinated Note Indenture.
"Shares": as defined in the recitals hereto.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that,
as of any date of determination, (a) the amount of the "present fair
saleable value" of the assets of such Person will, as of such date,
exceed the amount of all "liabilities of such Person, contingent or
otherwise", as of such date, as such quoted terms are determined in
accordance with applicable Federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be
greater than the amount that will be required to pay the liability of
such Person on its debts as such debts become absolute and matured,
(c) such Person will not have, as of such date, an unreasonably small
amount of capital with which to conduct its business, and (d) such
Person will be able to pay its debts as they mature.
"Specified Change of Control": a "Change of Control" as
defined in the Senior Subordinated Note Indenture.
"Subordinated Debt": any unsecured Indebtedness of the
Borrower or its Subsidiaries that is (i) stated to be fully
subordinated in payment or priority to the Obligations and any part
thereof and (ii) has no terms requiring or permitting any interim or
final maturity or repayment, repurchase, redemption or sinking fund
payment (including any requirement that the issuer thereof offer to
take any of the foregoing actions) prior to one year after the final
maturity of the Tranche B Term Loans.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership
or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower
and shall not include the Target or its Subsidiaries.
"Subsidiary Guarantor": each Subsidiary of the Borrower
(other than any Excluded Foreign Subsidiary or any Subsidiary listed
on Schedule 1.1C (subject to the provisions of the proviso to Section
6.10(c))) that guarantees the Obligations pursuant to the Guarantee
and Collateral Agreement.
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"Swing Line Commitment": the obligation of the Swing Line
Lender to make Swing Line Loans pursuant to Section 2.6 in an
aggregate principal amount at any one time outstanding not to exceed
$25,000,000.
"Swing Line Lender": ▇▇▇▇▇▇ Trust and Savings Bank, in its
capacity as the lender of Swing Line Loans.
"Swing Line Loans": as defined in Section 2.6.
"Swing Line Participation Amount": as defined in Section 2.7.
"Target": as defined in the recitals hereto.
"Tender Facilities": as defined in the recitals hereto.
"Tender Offer": as defined in the recitals hereto.
"Tender Offer Purchase": as defined in the recitals hereto.
"Term Loan Lenders": the collective reference to the Tranche
A Term Loan Lenders and the Tranche B Term Loan Lenders.
"Term Loans": the collective reference to the Tranche A Term
Loans and Tranche B Term Loans.
"Total Revolving Credit Commitments": at any time, the
aggregate amount of the Revolving Credit Commitments at such time.
"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the
Revolving Credit Lenders at such time.
"Tranche A Term Loan": as defined in Section 2.1.
"Tranche A Term Loan Commitment": as to any Lender, the
obligation of such Lender, if any, to make a Tranche A Term Loan to
the Borrower hereunder in a principal amount not to exceed the amount
set forth under the heading "Tranche A Term Loan Commitment" opposite
such Lender's name on Schedule 1.1A. The original aggregate amount of
the Tranche A Term Loan Commitments is $150,000,000.
"Tranche A Term Loan Lender": each Lender which has a Tranche
A Term Loan Commitment or which has made a Tranche A Term Loan.
"Tranche A Term Loan Percentage": as to any Tranche A Term
Loan Lender at any time, the percentage which such Lender's Tranche A
Term Loan Commitment then constitutes of the aggregate Tranche A Term
Loan Commitments (or, at any time after
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the Closing Date, the percentage which the aggregate principal amount
of such Lender's Tranche A Term Loans then outstanding constitutes of
the aggregate principal amount of the Tranche A Term Loans then
outstanding).
"Tranche B Term Loan": as defined in Section 2.1.
"Tranche B Term Loan Commitment": as to any Tranche B Term
Loan Lender, the obligation of such Lender, if any, to make a Tranche
B Term Loan to the Borrower hereunder in a principal amount not to
exceed the amount set forth under the heading "Tranche B Term Loan
Commitment" opposite such Lender's name on Schedule 1.1A. The
original aggregate amount of the Tranche B Term Loan Commitments is
$105,000,000.
"Tranche B Term Loan Lender": each Lender which has a Tranche
B Term Loan Commitment or which has made a Tranche B Term Loan.
"Tranche B Term Loan Percentage": as to any Tranche B Term
Loan Lender at any time, the percentage which such Lender's Tranche B
Term Loan Commitment then constitutes of the aggregate Tranche B Term
Loan Commitments (or, at any time after the Closing Date, the
percentage which the aggregate principal amount of such Lender's
Tranche B Term Loans then outstanding constitutes of the aggregate
principal amount of the Tranche B Term Loans then outstanding).
"Transaction Documentation": collectively, the Merger
Agreement, the Offer to Purchase (including all documents and
materials filed with the SEC in connection therewith), the Senior
Subordinated Note Indenture and all documentation executed in
connection with the Debt Tender Offer and the other transactions
contemplated thereby, in each case, including all schedules, exhibits,
certificates, documents and agreements entered into, executed or
delivered in connection therewith, and as each such agreement, filing,
schedule, exhibit, certificate or document may be amended,
supplemented or otherwise modified from time to time in accordance
with Section 7.9.
"Transferee": as defined in Section 10.15.
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"Wholly Owned Subsidiary": as to any Person, any other Person
all of the Capital Stock of which (other than directors' qualifying
shares required by law) is owned by such Person directly and/or
through other Wholly Owned Subsidiaries.
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"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor
that is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments. Subject to the terms and
conditions hereof, (a) each Tranche A Term Loan Lender severally agrees to make
a term loan (a "Tranche A Term Loan") to the Borrower on the Closing Date in
the amount of the Tranche A Term Loan Commitment of such Lender and (b) each
Tranche B Term Loan Lender severally agrees to make a term loan (a "Tranche B
Term Loan") to the Borrower on the Closing Date in the amount of the Tranche B
Term Loan Commitment of such Lender. The Term Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.2 and 2.13.
2.2 Procedure for Term Loan Borrowing. The Borrower shall
give the Administrative Agent irrevocable Notice of Borrowing (which notice
must be received by the Administrative Agent prior to 9:00 A.M., Chicago time,
one Business Day prior to the anticipated Closing Date, in the case of Base
Rate Loans, and three Business Days prior to the anticipated Closing Date, in
the case of Eurodollar Loans) requesting that the Term Loan Lenders make the
Term Loans on the Closing Date and specifying the amount to be borrowed. The
Term Loans made on the Closing Date shall initially be Base Rate Loans or
Eurodollar Loans (provided that the Borrower hereby agrees that its agreement
under Section 2.17 of the Tender Facilities shall constitute its agreement with
respect to all the Lenders and all Loans hereunder on the Closing Date). Upon
receipt of such notice the Administrative Agent shall promptly notify each Term
Loan Lender thereof. Not later than 11:00 A.M., Chicago time, on the Closing
Date each Term Loan Lender shall make available to the Administrative Agent at
the Funding Office an amount in immediately available funds equal to the Term
Loan or
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Term Loans to be made by such Lender. The Administrative Agent shall make
available to the Borrower with the aggregate of the amounts made available to
the Administrative Agent by the Term Loan Lenders in immediately available
funds not later than 1:00 P.M., Chicago time, on the Closing Date.
2.3 Repayment of Term Loans. (a) The Tranche A Term Loan of
each Tranche A Term Loan Lender shall mature in 24 consecutive quarterly
installments, commencing on March 31, 1998, each of which shall be in an amount
equal to such Lender's Tranche A Term Loan Percentage multiplied by the amount
set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
March 31, 1998 $1,375,000
June 30, 1998 1,375,000
September 30, 1998 1,375,000
December 31, 1998 1,375,000
March 31, 1999 1,750,000
June 30, 1999 1,750,000
September 30, 1999 1,750,000
December 31, 1999 1,750,000
March 31, 2000 1,750,000
June 30, 2000 1,750,000
September 30, 2000 1,750,000
December 31, 2000 1,750,000
March 31, 2001 2,250,000
June 30, 2001 2,250,000
September 30, 2001 2,250,000
December 31, 2001 2,250,000
March 31, 2002 2,250,000
June 30, 2002 2,250,000
September 30, 2002 2,250,000
December 31, 2002 77,250,000
March 31, 2003 9,375,000
June 30, 2003 9,375,000
September 30, 2003 9,375,000
December 31, 2003 9,375,000
(b) The Tranche B Term Loan of each Tranche B Lender shall
mature in 32 consecutive quarterly installments, commencing on March 31, 1998,
each of which shall be in an amount equal to such Lender's Tranche B Term Loan
Percentage multiplied by the amount set forth below opposite such installment:
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Installment Principal Amount
----------- ----------------
March 31, 1998 $25,000
June 30, 1998 25,000
September 30, 1998 25,000
December 31, 1998 25,000
March 31, 1999 25,000
June 30, 1999 25,000
September 30, 1999 25,000
December 31, 1999 25,000
March 31, 2000 25,000
June 30, 2000 25,000
September 30, 2000 25,000
December 31, 2000 25,000
March 31, 2001 25,000
June 30, 2001 25,000
September 30, 2001 25,000
December 31, 2001 25,000
March 31, 2002 25,000
June 30, 2002 25,000
September 30, 2002 25,000
December 31, 2002 25,000
March 31, 2003 25,000
June 30, 2003 25,000
September 30, 2003 25,000
December 31, 2003 25,000
March 31, 2004 13,050,000
June 30, 2004 13,050,000
September 30, 2004 13,050,000
December 31, 2004 13,050,000
March 31, 2005 13,050,000
June 30, 2005 13,050,000
September 30, 2005 13,050,000
December 31, 2005 13,050,000
2.4 Revolving Credit Commitments. (a) Subject to the terms
and conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Borrower from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding which, when added to such Lender's Revolving
Credit Percentage of (i) the L/C Obligations then outstanding and (ii) the
aggregate principal amount of the Swing Line Loans then outstanding, does not
exceed the amount of such Lender's Adjusted Revolving Credit Commitment.
During the Revolving Credit Commitment Period the Borrower may use the Adjusted
Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving
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Credit Loans may from time to time be Eurodollar Loans or Base Rate Loans, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.5 and 2.13, provided that no Revolving Credit Loan
shall be made as a Eurodollar Loan if the last day of the Interest Period with
respect thereto would occur on or after the Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit
Loans on the Revolving Credit Termination Date.
2.5 Procedure for Revolving Credit Borrowing. The Borrower
may borrow under the Adjusted Revolving Credit Commitments during the Revolving
Credit Commitment Period on any Business Day, provided that the Borrower shall
give the Administrative Agent irrevocable Notice of Borrowing (which notice
must be received by the Administrative Agent prior to 11:00 A.M., Chicago time,
(a) three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing
Date, in the case of Base Rate Loans), specifying (i) the amount and Type of
Revolving Credit Loans to be borrowed and, in the case of Eurodollar Loans, the
length of the initial Interest Period therefor and (ii) the requested Borrowing
Date. Any Revolving Credit Loans made on the Closing Date shall initially be
Base Rate Loans. Each borrowing under the Revolving Credit Commitments shall
be in an amount equal to (x) in the case of Base Rate Loans, $100,000 or a
whole multiple thereof (or, if the then aggregate Available Revolving Credit
Commitments are less than $100,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof;
provided, that the Swing Line Lender may request, on behalf of the Borrower,
borrowings under the Adjusted Revolving Credit Commitments which are Base Rate
Loans or Offered Rate Loans in other amounts pursuant to Section 2.7. Upon
receipt of any such notice from the Borrower, the Administrative Agent shall
promptly notify each Revolving Credit Lender thereof. Each Revolving Credit
Lender will make the amount of its Revolving Credit Percentage of each
borrowing available to the Administrative Agent for the account of the Borrower
at the Funding Office prior to 12:00 Noon, Chicago time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent in like funds as received by the Administrative Agent as
soon as practicable, in accordance with the Administrative Agent's normal
practice, after receipt thereof from the Lenders.
2.6 Swing Line Commitment. (a) Subject to the terms and
conditions hereof, the Swing Line Lender agrees to make a portion of the credit
otherwise available to the Borrower under the Adjusted Revolving Credit
Commitments from time to time during the Revolving Credit Commitment Period by
making swing line loans ("Swing Line Loans") to the Borrower; provided that (i)
the aggregate principal amount of Swing Line Loans outstanding at any time
shall not exceed the Swing Line Commitment then in effect (notwithstanding that
the Swing Line Loans outstanding at any time, when aggregated with the Swing
Line Lender's other outstanding Revolving Credit Loans hereunder, may exceed
the Swing Line Commitment or the Swing Line Lender's Adjusted Revolving Credit
Commitment then in effect) and (ii) the Borrower shall not request, and the
Swing Line Lender shall not make, any Swing Line Loan
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if, after giving effect to the making of such Swing Line Loan, the aggregate
amount of the Available Revolving Credit Commitments would be less than zero.
During the Revolving Credit Commitment Period, the Borrower may use the Swing
Line Commitment by borrowing, repaying and reborrowing, all in accordance with
the terms and conditions hereof. Swing Line Loans shall be Base Rate Loans or
Offered Rate Loans only.
(b) The Borrower shall repay all outstanding Swing Line Loans
on the Revolving Credit Termination Date.
2.7 Procedure for Swing Line Borrowing; Refunding of Swing
Line Loans. (a) Whenever the Borrower desires that the Swing Line Lender make
Swing Line Loans it shall give the Swing Line Lender irrevocable telephonic
notice confirmed promptly in writing (which telephonic notice must be received
by the Swing Line Lender not later than 12:00 Noon, Chicago time, in the case
of Base Rate Loans and 11:00 A.M., Chicago time, in the case of Offered Rate
Loans, on the proposed Borrowing Date), specifying (i) the amount to be
borrowed and (ii) the requested Borrowing Date (which shall be a Business Day
during the Revolving Credit Commitment Period). Each borrowing under the Swing
Line Commitment shall be in an amount equal to $100,000 or a whole multiple of
$100,000 in excess thereof. Not later than 2:00 P.M., Chicago time, on the
Borrowing Date specified in a notice in respect of Swing Line Loans, the Swing
Line Lender shall make available to the Administrative Agent at the Funding
Office an amount in immediately available funds equal to the amount of the
Swing Line Loan to be made by the Swing Line Lender. The Administrative Agent
shall make the proceeds of such Swing Line Loan available to the Borrower on
such Borrowing Date in immediately available funds.
(b) The Swing Line Lender, at any time and from time to time
in its sole and absolute discretion may, and, in respect of any Swing Line Loan
outstanding for five Business Days shall, on behalf of the Borrower (which
hereby irrevocably directs the Swing Line Lender to act on its behalf), on one
Business Day's notice given by the Swing Line Lender no later than 11:00 A.M.,
Chicago time, request each Revolving Credit Lender to make, and each Revolving
Credit Lender hereby agrees to make, a Revolving Credit Loan, in an amount
equal to such Revolving Credit Lender's Revolving Credit Percentage of the
aggregate amount of the Swing Line Loans (the "Refunded Swing Line Loans")
outstanding on the date of such notice, to repay the Swing Line Lender. Each
Revolving Credit Lender shall make the amount of such Revolving Credit Loan
available to the Administrative Agent at the Funding Office in immediately
available funds, not later than 9:00 A.M., Chicago time, one Business Day after
the date of such notice. The proceeds of such Revolving Credit Loans shall be
immediately applied by the Swing Line Lender to repay the Refunded Swing Line
Loans.
(c) If prior to the time a Revolving Credit Loan would have
otherwise been made pursuant to Section 2.7(b), one of the events described in
Section 8(f) shall have occurred and be continuing with respect to the Borrower
or if for any other reason, as determined by the Swing Line Lender in its sole
discretion, Revolving Credit Loans may not be made as contemplated by Section
2.7(b), each Revolving Credit Lender shall, on the date such Revolving Credit
Loan was to have been made pursuant to the notice referred to in
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Section 2.7(b) (the "Refunding Date"), purchase for cash an undivided
participating interest in an amount equal to (i) its Revolving Credit
Percentage times (ii) the aggregate principal amount of Swing Line Loans then
outstanding which were to have been repaid with such Revolving Credit Loans
(the "Swing Line Participation Amount").
(d) Whenever, at any time after the Swing Line Lender has
received from any Revolving Credit Lender such Lender's Swing Line
Participation Amount, the Swing Line Lender receives any payment on account of
the Swing Line Loans, the Swing Line Lender will distribute to such Lender its
Swing Line Participation Amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded and, in the case of principal
and interest payments, to reflect such Lender's pro rata portion of such
payment if such payment is not sufficient to pay the principal of and interest
on all Swing Line Loans then due); provided, however, that in the event that
such payment received by the Swing Line Lender is required to be returned, such
Revolving Credit Lender will return to the Swing Line Lender any portion
thereof previously distributed to it by the Swing Line Lender.
(e) Each Revolving Credit Lender's obligation to make the
Loans referred to in Section 2.7(b) and to purchase participating interests
pursuant to Section 2.7(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Revolving Credit
Lender or the Borrower may have against the Swing Line Lender, the Borrower or
any other Person for any reason whatsoever; (ii) the occurrence or continuance
of a Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5; (iii) any adverse change in the condition
(financial or otherwise) of the Borrower; (iv) any breach of this Agreement or
any other Loan Document by the Borrower, any other Loan Party or any other
Revolving Credit Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
2.8 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of the appropriate Revolving Credit Lender or Term Loan Lender, as the
case may be, (i) the then unpaid principal amount of each Revolving Credit Loan
of such Revolving Credit Lender on the Revolving Credit Termination Date (or
such earlier date on which the Loans become due and payable pursuant to Section
8), (ii) the then unpaid principal amount of each Swing Line Loan of such Swing
Line Lender on the Revolving Credit Termination Date (or such earlier date on
which the Loans become due and payable pursuant to Section 8) and (iii) the
principal amount of each Term Loan of such Term Loan Lender in installments
according to the amortization schedule set forth in Section 2.3 (or on such
earlier date on which the Loans become due and payable pursuant to Section 8).
The Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
Section 2.15. Payments received by the Administrative Agent after 2:00 P.M.
Chicago time shall be deemed received on the next succeeding Business Day.
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(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower,
shall maintain the Register pursuant to Section 10.6(e), and a subaccount
therein for each Lender, in which shall be recorded (i) the amount of each Loan
made hereunder and any Note evidencing such Loan, the Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.8(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made
to such Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing any Term Loans,
Revolving Credit Loans or Swing Line Loans, as the case may be, of such Lender,
substantially in the forms of Exhibit G-1, G-2 or G-3, respectively, with
appropriate insertions as to date and principal amount.
2.9 Commitment Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Revolving Credit Lender, a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment
of such Lender during the period for which payment is made, payable quarterly
in arrears on the last day of each March, June, September and December and on
the Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof.
(b) The Borrower agrees to pay to the Syndication Agent the
fees in the amounts and on the dates from time to time agreed to in writing by
the Borrower and the Syndication Agent.
(c) The Borrower agrees to pay to the Administrative Agent
the fees in the amounts and on the dates from time to time agreed to in writing
by the Borrower and the Administrative Agent.
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2.10 Termination or Reduction of Revolving Credit
Commitments. The Borrower shall have the right, upon not less than two
Business Days' notice to the Administrative Agent, to terminate the Revolving
Credit Commitments or, from time to time, to reduce the amount of the Revolving
Credit Commitments; provided that no such termination or reduction of Revolving
Credit Commitments shall be permitted if, after giving effect thereto and to
any prepayments of the Revolving Credit Loans and Swing Line Loans made on the
effective date thereof, the Total Revolving Extensions of Credit would exceed
the Total Revolving Credit Commitments. Any such reduction shall be in an
amount equal to $1,000,000, or a whole multiple thereof, and shall reduce
permanently the Revolving Credit Commitments then in effect.
2.11 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent at least
three Business Days prior thereto in the case of Eurodollar Loans and at least
one Business Day prior thereto in the case of Base Rate Loans, which notice
shall specify the date and amount of prepayment and whether the prepayment is
of Eurodollar Loans or Base Rate Loans; provided, that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable
thereto, the Borrower shall also pay any amounts owing pursuant to Section
2.21. Upon receipt of any such notice the Administrative Agent shall promptly
notify each relevant Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified
therein, together with (except in the case of Revolving Credit Loans which are
Base Rate Loans and Swing Line Loans) accrued interest to such date on the
amount prepaid. Partial prepayments of Term Loans and Revolving Credit Loans
shall be in an aggregate principal amount of $1,000,000 or a whole multiple
thereof. Partial prepayments of Swing Line Loans shall be in an aggregate
principal amount of $100,000 or a whole multiple thereof.
2.12 Mandatory Prepayments and Commitment Reductions. (a)
Unless the Required Lenders shall otherwise agree, if any Capital Stock shall
be issued, or Indebtedness incurred, by the Borrower or any of its Subsidiaries
(excluding any Indebtedness incurred in accordance with Section 7.2), an amount
equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of
such issuance or incurrence toward the prepayment of the Term Loans and the
reduction of the Revolving Credit Commitments as set forth in Section 2.12(d).
(b) Unless the Required Lenders shall otherwise agree, if on
any date the Borrower or any of its Subsidiaries shall receive Net Cash
Proceeds from any Asset Sale or Recovery Event then, except, in the case of a
Recovery Event for which a Recovery Reinvestment Notice shall be delivered in
respect thereof, such Net Cash Proceeds shall be promptly applied toward the
prepayment of the Term Loans and the reduction of the Revolving Credit
Commitments as set forth in Section 2.12(d); provided, that, notwithstanding
the foregoing, (i) on each Recovery Reinvestment Prepayment Date, an amount
equal to the Recovery Reinvestment Prepayment Amount with respect to the
relevant Recovery Reinvestment Event shall be applied toward the prepayment of
the Term Loans and the reduction of the Revolving Credit Commitments as set
forth in Section 2.12(d) and (ii) the Net Cash Proceeds of the sale or other
disposition by the Borrower of marketable securities owned
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by it shall not be required to be applied to prepayments pursuant to this
Section 2.12(b) to the extent that such Net Cash Proceeds are applied
reasonably promptly to the reinvestment by the Borrower in other marketable
securities of the same general type and quality and such replacement securities
are pledged pursuant to the Guarantee and Collateral Agreement and the Control
Agreement.
(c) Unless the Required Lenders shall otherwise agree, if,
for any fiscal year of the Borrower commencing with the fiscal year ending
September 30, 1998, there shall be Excess Cash Flow, the Borrower shall, on the
relevant Excess Cash Flow Application Date, apply 75% of such Excess Cash Flow
toward the prepayment of the Term Loans and the reduction of the Revolving
Credit Commitments as set forth in Section 2.12(d). Each such prepayment and
commitment reduction shall be made on a date (an "Excess Cash Flow Application
Date") no later than five days after the earlier of (i) the date on which the
financial statements of the Borrower referred to in Section 6.1(a), for the
fiscal year with respect to which such prepayment is made, are required to be
delivered to the Lenders and (ii) the date such financial statements are
actually delivered.
(d) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to Section 2.12 shall be applied, first, to
the prepayment of the Term Loans in the order set forth in Section 2.18(b) and,
second, to reduce permanently the Revolving Credit Commitments. Any such
reduction of the Revolving Credit Commitments shall be accompanied by
prepayment of the Revolving Credit Loans and/or the Swing Line Loans to the
extent, if any, that the Total Revolving Extensions of Credit exceed the amount
of the Total Revolving Credit Commitments as so reduced, provided that if the
aggregate principal amount of Revolving Credit Loans and Swing Line Loans then
outstanding is less than the amount of such excess (because L/C Obligations
constitute a portion thereof), the Borrower shall, to the extent of the balance
of such excess, replace outstanding Letters of Credit and/or deposit an amount
in cash in a cash collateral account established with the Administrative Agent
for the benefit of the Lenders on terms and conditions satisfactory to the
Administrative Agent. The application of any prepayment pursuant to Section
2.12 shall be made first to Base Rate Loans and second to Eurodollar Loans.
Each prepayment of the Loans under Section 2.12 (except in the case of
Revolving Credit Loans that are Base Rate Loans and Swing Line Loans) shall be
accompanied by accrued interest to the date of such prepayment on the amount
prepaid and any amounts owing pursuant to Section 2.21.
2.13 Conversion and Continuation Options. (a) The Borrower
may elect from time to time to convert Eurodollar Loans to Base Rate Loans by
giving the Administrative Agent at least two Business Days' prior irrevocable
Notice of Borrowing containing such election, provided that any such conversion
of Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert Base Rate
Loans to Eurodollar Loans by giving the Administrative Agent at least three
Business Days' prior Notice of Borrowing containing such election (which notice
shall specify the length of the initial Interest Period therefor), provided
that no Base Rate Loan under a particular Facility may be converted into a
Eurodollar Loan (i) when any Event of Default has occurred and is continuing
and the Administrative Agent or the Majority Facility Lenders in
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respect of such Facility have determined in its or their sole discretion not to
permit such conversions or (ii) after the date that is one month prior to the
final scheduled termination or maturity date of such Facility. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable Notice of Borrowing to the Administrative Agent, in
accordance with the applicable provisions of the term "Interest Period" set
forth in Section 1.1, of the length of the next Interest Period to be
applicable to such Loans, provided that no Eurodollar Loan under a particular
Facility may be continued as such (i) when any Event of Default has occurred
and is continuing and the Administrative Agent has or the Majority Facility
Lenders in respect of such Facility have determined in its or their sole
discretion not to permit such continuations or (ii) after the date that is one
month prior to the final scheduled termination or maturity date of such
Facility, and provided, further, that if the Borrower shall fail to give any
required notice as described above in this paragraph or if such continuation is
not permitted pursuant to the preceding proviso such Loans shall be
automatically converted to Base Rate Loans on the last day of such then
expiring Interest Period. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof.
2.14 Minimum Amounts and Maximum Number of Eurodollar
Tranches. Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of Eurodollar
Loans hereunder and all selections of Interest Periods hereunder shall be in
such amounts and be made pursuant to such elections so that, (a) after giving
effect thereto, the aggregate principal amount of the Eurodollar Loans
comprising each Eurodollar Tranche shall be equal to $1,000,000 or a whole
multiple of $500,000 in excess thereof and (b) no more than fifteen Eurodollar
Tranches shall be outstanding at any one time.
2.15 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(c) Each Offered Rate Loan shall bear interest (computed on
the basis of a year of 365/366 days and actual days elapsed) on the unpaid
principal amount thereof from the date such Offered Rate Loan is made until the
last day of the Interest Period applicable thereto and at maturity (whether by
acceleration or otherwise) at the rate per annum quoted to the Borrower by the
Swing Line Lender for the Interest Period applicable thereto, payable on the
last day of each Interest Period and at maturity (whether by acceleration or
otherwise); provided, however that the Borrower understands and agrees that the
Swing Line Lender has no obligation to quote rates or to make any such Offered
Rate Loan and may refuse to make any such Offered Rate Loan after receiving a
request therefor from the Borrower; provided,
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further that if an Event of Default has occurred and is continuing, the Offered
Rate Loans will automatically be converted to Base Rate Loans. The Borrower
acknowledges and agrees that the interest rate quoted by the Swing Line Lender
for any Offered Rate Loan may not be the best or lowest rate offered to other
customers of the Swing Line Lender and may not be the same rate offered to
other customers of the Swing Line Lender for loans of similar amounts and
maturities, but is the rate at which the Swing Line Lender in its sole
discretion is willing to make such Loan to the Borrower for the specified
amount and maturity.
(d) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), all of such outstanding Loans
and Reimbursement Obligations shall bear interest at a rate per annum which is
equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section 2.15
plus 2% or (y) in the case of Reimbursement Obligations, the rate applicable to
Base Rate Loans under the Revolving Credit Facility plus 2%, and (ii) if all or
a portion of any interest payable on any Loan or Reimbursement Obligation or
any commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the rate applicable to
Base Rate Loans under the relevant Facility plus 2% (or, in the case of any
such other amounts that do not relate to a particular Facility, the Base Rate
plus 4%), in each case, with respect to clauses (i) and (ii) above, from the
date of such non-payment until such amount is paid in full (as well after as
before judgment).
(e) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (d) of this
Section 2.15 shall be payable from time to time on demand.
2.16 Computation of Interest and Fees. (a) Interest, fees
and commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base
Rate Loans the rate of interest on which is calculated on the basis of the
Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of each determination of a Eurodollar Rate. Any change in the
interest rate on a Loan resulting from a change in the Base Rate or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the relevant Lenders
of the effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the
Borrower, deliver to the Borrower a statement showing the quotations used by
the Administrative Agent in determining any interest rate pursuant to Section
2.15(a).
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2.17 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Facility Lenders in respect of the relevant Facility that
the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrower and the relevant Lenders as soon as practicable thereafter. If
such notice is given (x) any Eurodollar Loans under the relevant Facility
requested to be made on the first day of such Interest Period shall be made as
Base Rate Loans, (y) any Loans under the relevant Facility that were to have
been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as Base Rate Loans and (z) any outstanding Eurodollar Loans
under the relevant Facility shall be converted, on the first day of such
Interest Period, to Base Rate Loans. Until such notice has been withdrawn by
the Administrative Agent which notice shall be withdrawn promptly upon notice
to the Administrative Agent confirming the termination of the events
precipitating same, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Borrower have the right to
convert Loans under the relevant Facility to Eurodollar Loans.
2.18 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on
account of any commitment fee and any reduction of the Commitments of the
Lenders shall be made pro rata according to the respective Tranche A Term Loan
Percentages, Tranche B Term Loan Percentages or Revolving Credit Percentages,
as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Term Loans shall be made pro
rata according to the respective outstanding principal amounts of the Term
Loans then held by the Term Loan Lenders (except as otherwise provided in
Section 2.18(d)). The amount of each principal prepayment of the Term Loans
shall be applied to reduce the then remaining installments of the Tranche A
Term Loans and Tranche B Term Loans, as the case may be, pro rata based upon
the then remaining principal amount thereof. Amounts prepaid on account of the
Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Revolving Credit Loans shall be
made pro rata according to the
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respective outstanding principal amounts of the Revolving Credit Loans then
held by the Revolving Credit Lenders.
(d) Notwithstanding anything to the contrary in Sections
2.11, 2.12 or 2.18, so long as any Tranche A Term Loans are outstanding, each
Tranche B Term Loan Lender may, at its option, irrevocably decline any
mandatory prepayment applicable to the Tranche B Term Loans of such Lender;
accordingly, with respect to the amount of any mandatory prepayment described
in Section 2.12 that is allocated to Tranche B Term Loans (such amounts, the
"Tranche B Prepayment Amount"), at any time when Tranche A Term Loans remain
outstanding, the Borrower will, in the case of any mandatory prepayment
required to be made pursuant to Section 2.12, in lieu of applying such amount
to the prepayment of Tranche B Term Loans, as provided in Section 2.12(d), on
the date specified in Section 2.12 for such prepayment, give the Administrative
Agent telephonic notice (promptly confirmed in writing) requesting that the
Administrative Agent prepare and provide to each Tranche B Term Loan Lender a
notice (each, a "Prepayment Option Notice") as described below. As promptly as
practicable after receiving such notice from the Borrower, the Administrative
Agent will send to each Tranche B Lender a Prepayment Option Notice, which
shall be in the form of Exhibit I, and shall include an offer by the Borrower
to prepay on the date (each a "Prepayment Date") that is 10 Business Days after
the date of the Prepayment Option Notice, the relevant Tranche B Term Loans of
such Lender by an amount equal to the portion of the Tranche B Prepayment
Amount indicated in such Lender's Prepayment Option Notice as being applicable
to such Lender's Tranche B Term Loans. On the Prepayment Date, (i) the
Borrower shall pay to the Administrative Agent the aggregate amount necessary
to prepay that portion of the outstanding relevant Term Loans in respect of
which Tranche B Term Loan Lenders have accepted prepayment as described above
(such Lenders, the "Accepting Lenders"), and such amount shall be applied to
reduce the Tranche B Repayment Amounts with respect to each Accepting Lender,
(ii) the Borrower shall pay to the Administrative Agent an amount equal to 50%
of the portion of the Tranche B Prepayment Amount not accepted by the Accepting
Lenders, and such amount shall be applied to the prepayment of the Tranche A
Term Loans, and (iii) the Borrower shall be entitled to retain the remaining
50% of the portion of the Tranche B Prepayment Amount not accepted by the
Accepting Lenders. Each Term Loan Lender other than an Accepting Lender shall
receive its portion of any mandatory prepayment as set forth in Sections 2.12
and 2.18.
(e) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 11:00 A.M., Chicago time, on the due date thereof to the Administrative
Agent, for the pro rata account of the Lenders, at the Payment Office, in
Dollars and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the Eurodollar
Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day unless
the result of such extension would be to extend such payment into another
calendar
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month, in which event such payment shall be made on the immediately preceding
Business Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be payable at
the then applicable rate during such extension.
(f) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make
the amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to
the Administrative Agent by the required time on the Borrowing Date therefor,
such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this Section
2.18(e) shall be conclusive in the absence of manifest error. If such Lender's
share of such borrowing is not made available to the Administrative Agent by
such Lender within three Business Days of such Borrowing Date, the
Administrative Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to Base Rate Loans under the
relevant Facility, on demand, from the Borrower.
(g) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment being made
hereunder that the Borrower will not make such payment to the Administrative
Agent, the Administrative Agent may assume that the Borrower is making such
payment, and the Administrative Agent may, but shall not be required to, in
reliance upon such assumption, make available to the Lenders their respective
pro rata shares of a corresponding amount. If such payment is not made to the
Administrative Agent by the Borrower within three Business Days of such
required date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing herein
shall be deemed to limit the rights of the Administrative Agent or any Lender
against the Borrower.
2.19 Requirements of Law. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority in all cases made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
Application or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 2.20 and changes in the rate of
tax on the overall net income of such Lender);
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(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes
entitled to claim any additional amounts pursuant to this Section 2.19, it
shall promptly notify the Borrower (with a copy to the Administrative Agent) of
the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority in all cases made subsequent to the date hereof shall have the effect
of reducing the rate of return on such Lender's or such corporation's capital
as a consequence of its obligations hereunder or under or in respect of any
Letter of Credit to a level below that which such Lender or such corporation
could have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time, after submission by such Lender to the Borrower (with a copy to
the Administrative Agent) of a written request therefor, the Borrower shall
promptly pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction.
(c) A certificate as to any additional amounts payable
pursuant to this Section 2.19 shall be submitted by the relevant Lender to the
Borrower (with a copy to the Administrative Agent) and shall set forth in
detail the reason for such compensation together with a computation of the
amount claimed shall be conclusive in the absence of manifest error. The
obligations of the Borrower pursuant to this Section 2.19 shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder for a period of one year.
2.20 Taxes. (a) All payments made by the Borrower under
this Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in
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lieu of net income taxes) imposed on any Agent or any Lender as a result of a
present or former connection between such Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from such Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") or Other Taxes are required to be withheld from any
amounts payable to any Agent or any Lender hereunder, the amounts so payable to
such Agent or such Lender shall be increased to the extent necessary to yield
to such Agent or such Lender (after payment of all Non-Excluded Taxes and Other
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement, provided, however, that the Borrower
shall not be required to increase any such amounts payable to any Lender with
respect to any Non-Excluded Taxes (i) that are attributable to such Lender's
failure to comply with the requirements of paragraph (d) or (e) of this
subsection or (ii) that are United States withholding taxes imposed on amounts
payable to such Lender at the time the Lender becomes a party to this
Agreement, except to the extent that such Lender's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
Borrower with respect to such Non-Excluded Taxes pursuant to Section 2.20(a).
(b) In addition, the Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law upon
receipt of a written request complying with Section 2.19(c).
(c) Whenever any Non-Excluded Taxes or Other Taxes are
payable by the Borrower, as promptly as possible thereafter the Borrower shall
send to the Administrative Agent for the account of the relevant Agent or
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Agents the required receipts or other
required documentary evidence, the Borrower shall indemnify the Administrative
Agent and the Lenders for any incremental taxes, interest or penalties that may
become payable by any Agent or any Lender as a result of any such failure. The
agreements in this Section 2.20 shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder for a
period of one year.
(d) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under the laws of the United States of
America (or any jurisdiction thereof), or any estate or trust that is subject
to federal income taxation regardless of the source of its income (a "Non-U.S.
Lender") shall deliver to the Borrower and the Administrative Agent (or, in the
case of a Participant, to the Lender from which the related participation shall
have been purchased) two copies of either U.S. Internal Revenue Service Form
1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming exemption from
U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest" a statement substantially
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in the form of Exhibit H and a Form W-8, or any subsequent versions thereof or
successors thereto properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or a reduced rate of, U.S. federal
withholding tax on all payments by the Borrower under this Agreement and the
other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on
or before the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation). In addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered
by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the
Borrower at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this Section 2.20(d), a Non-U.S. Lender
shall not be required to deliver any form pursuant to this Section 2.20(d) that
such Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in
which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate,
provided that such Lender is legally entitled to complete, execute and deliver
such documentation and in such Lender's reasonable judgment such completion,
execution or submission would not materially prejudice the legal position of
such Lender.
2.21 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if
any, of (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to
the last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included
therein, if any) over (ii) the amount of interest (as reasonably determined by
such Lender) which would have accrued to such Lender on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. A certificate as to any amounts payable pursuant
to this Section 2.21 submitted to the Borrower by any Lender and shall set
forth in detail the reason for such compensation together with a
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computation of the amount claimed shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
2.22 Change of Lending Office; Claims Certificate. (a) Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of Section 2.19 or 2.20(a) with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any
Loans affected by such event with the object of avoiding the consequences of
such event; provided that such designation is made on terms that, in the sole
judgment of such Lender, cause such Lender and its lending office(s) to suffer
no economic, legal or regulatory disadvantage, and provided, further, that
nothing in this Section 2.22 shall affect or postpone any of the obligations of
the Borrower or the rights of any Lender pursuant to Section 2.19 or 2.20(a).
(b) In the event any Lender gives a notice to the Borrower
pursuant to Section 2.19, or any Lender is one of the Lenders notifying the
Agent pursuant to Section 2.17(d), or is unable to deliver the forms as
required by Section 2.20(d), or with respect to whom the Borrower is required
to pay additional amounts pursuant to Section 2.20 or any Lender is unable to
make Eurodollar Loans or cancels its commitment to make Eurodollar Loans
pursuant to Section 2.24, the Borrower may give notice in response, with copies
to the Administrative Agent, that it wishes to seek one or more financial
institutions to replace such Lender in accordance with the provisions set forth
in Section 10.6. Each Lender giving such a notice agrees that, at the request
of the Borrower, it will assign all of its interests thereunder and under the
Notes and the Commitment to a designated Assignee for the full amount then
owing to it, all in accordance with Section 10.6. Thereafter, said assignee
shall have all of the rights hereunder and obligations of the assigning Lender
(except as otherwise expressly set forth herein) and such Lender shall have no
further obligations to the Borrower hereunder.
(c) Any notice given pursuant to this Section 2.22 shall be
deemed to contain a representation by the Lender issuing such notice that: (i)
such Lender has used reasonable efforts to minimize said costs or charges but
cannot, in its sole judgment, do so at reasonable expense, and (ii) the
increased costs and charges are common to substantially all of the comparable
loan customers of such Lender and are not unique to the Borrower.
2.23 Margin Regulations. (a) The Loans made by each Lender
shall at all times be treated for purposes of Regulation G and Regulation U as
two separate extensions of credit (the "A Credit" and the "B Credit" of such
Lender and, collectively, the "A Credits" and the "B Credits"), as follows:
(i) the aggregate amount of the A Credit of such Lender
shall be an amount equal to such Lender's pro rata share (based on the
amount of its Loan Percentage) of the maximum loan value (as
determined in accordance with Regulation G and Regulation U), of all
Margin Stock Collateral; and
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(ii) the aggregate amount of the B Credit of such Lender
shall be an amount equal to such Lender's pro rata share (based on the
amount of its Loan Percentage) of all Loans outstanding hereunder
minus such Lender's A Credit.
In the event that any Margin Stock Collateral is acquired or sold, the amount
of the A Credit of such Lender shall be adjusted (if necessary), including, to
the extent necessary, by prepayment, to an amount equal to such Lender's pro
rata share (based on the amount of its Loan Percentage) of the maximum loan
value (determined in accordance with Regulation G and Regulation U) as of the
date of such acquisition or sale) of the Margin Stock Collateral immediately
after giving effect to such acquisition or sale. Nothing contained in this
subsection 2.23(a) shall be deemed to permit any sale of Margin Stock
Collateral in violation of any other provisions of this Agreement.
(b) Each Lender will maintain its records to identify the A
Credit of such Lender and the B Credit of such Lender, and, solely for the
purposes of complying with Regulation G and Regulation U, the A and B Credits
shall be treated as separate extensions of credit. Each Lender hereby
represents and warrants that the loan value of the Other Collateral is
sufficient for such Lender to lend its pro rata share of the B Credit.
(c) The benefits of the direct and indirect security in
Margin Stock Collateral created by any provisions of this Agreement and the
other Loan Documents shall be allocated first to the benefit and security of
the payment of the principal of and interest on the A Credits of the Lenders
and of all other amounts payable by the Borrower under this Agreement in
connection with the A Credits (collectively, the "A Credit Amounts") and
second, only after the payment in full of the A Credit Amounts, to the benefit
and security of the payment of the principal of and interest on the B Credits
of the Lenders and of all other amounts payable by the Borrower under this
Agreement in connection with the B Credits (collectively, the "B Credit
Amounts"). The benefits of the direct and indirect security in Other Collateral
created by any provisions of this Agreement and the other Loan Documents, shall
be allocated first to the benefit and security of the payment of the B Credit
Amounts and second, only after the payment in full of the B Credit Amounts, to
the benefit and security of the payment of the A Credit Amounts.
(d) The Borrower shall furnish to each Lender at the time of
each acquisition and sale of Margin Stock Collateral such information and
documents as the Administrative Agent or such Lender may require to determine
the A and B Credits, and at any time and from time to time, such other
information and documents as the Administrative Agent or such Lender may
reasonably require to determine compliance with Regulation U or Regulation G,
as applicable.
(e) Each Lender shall be responsible for its own compliance
with and administration of the provisions of this Section 2.23 and Regulation G
and Regulation U, and the Agents shall have no responsibility for any
determinations or allocations made or to be made by any Lender as required by
such provisions.
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2.24 Illegality. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall
forthwith be cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect
to such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of
the then current Interest Period with respect thereto, the Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to subsection
2.21.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other
Revolving Credit Lenders set forth in Section 3.4(a), agrees to issue letters
of credit ("Letters of Credit") for the account of the Borrower on any Business
Day during the Revolving Credit Commitment Period in such form as may be
approved from time to time by the Issuing Lender; provided that the Issuing
Lender shall have no obligation to issue any Letter of Credit if, after giving
effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment or (ii) the aggregate amount of the Available Revolving Credit
Commitments would be less than zero. Each Letter of Credit shall (i) be
denominated in Dollars and (ii) expire no later than the earlier of (x) the
first anniversary of its date of issuance and (y) the date which is five
Business Days prior to the Revolving Credit Termination Date, provided that any
Letter of Credit with a one-year term may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above).
(b) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(c) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed
by, any applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at its address for notices specified herein
an Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing
Lender will process such Application and the certificates, documents and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and shall promptly issue the Letter of Credit
requested thereby (but in no event shall the Issuing Lender be required to
issue any Letter of Credit earlier than three Business Days after
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its receipt of the Application therefor and all such other certificates,
documents and other papers and information relating thereto) by issuing the
original of such Letter of Credit to the beneficiary thereof or as otherwise
may be agreed to by the Issuing Lender and the Borrower. The Issuing Lender
shall furnish a copy of such Letter of Credit to the Borrower promptly
following the issuance thereof. The Issuing Lender shall promptly furnish to
the Administrative Agent, which shall in turn promptly furnish to the Lenders,
notice of the issuance of each Letter of Credit (including the amount thereof).
3.3 Commissions, Fees and Other Charges. (a) The Borrower
will pay a commission on all outstanding Letters of Credit at a per annum rate
equal to the Applicable Margin then in effect with respect to Eurodollar Loans
under the Revolving Credit Facility, shared ratably among the Revolving Credit
Lenders and payable quarterly in arrears on each L/C Fee Payment Date after the
issuance date.
(b) In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the Issuing Lender for such normal and
customary costs and expenses as are incurred or charged by the Issuing Lender
in issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit.
3.4 L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Lender, on the terms and conditions hereinafter stated, for such
L/C Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in the Issuing Lender's obligations
and rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Revolving Credit Percentage of the amount of such draft,
or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to the Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, the
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with
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interest thereon calculated from such due date at the rate per annum applicable
to Base Rate Loans under the Revolving Credit Facility. A certificate of the
Issuing Lender submitted to any L/C Participant with respect to any amounts
owing under this Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant
its pro rata share of such payment in accordance with Section 3.4(a), the
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise, including proceeds of collateral
applied thereto by the Issuing Lender), or any payment of interest on account
thereof, the Issuing Lender will distribute to such L/C Participant its pro
rata share thereof; provided, however, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing
Lender, such L/C Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Lender in connection with such payment. Each such
payment shall be made to the Issuing Lender at its address for notices
specified herein in lawful money of the United States of America and in
immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by the Borrower under this Section from the date such amounts
become payable (whether at stated maturity, by acceleration or otherwise) until
payment in full at the rate set forth in Section 2.15(c). Each drawing under
any Letter of Credit shall (unless an event of the type described in clause (i)
or (ii) of Section 8(f) shall have occurred and be continuing with respect to
the Borrower, in which case the procedures specified in Section 3.4 for funding
by L/C Participants shall apply) constitute a request by the Borrower to the
Administrative Agent for a borrowing pursuant to Section 2.5 of Base Rate Loans
(or, at the option of the Administrative Agent and the Swing Line Lender in
their sole discretion, a borrowing pursuant to Section 2.7 of Swing Line Loans)
in the amount of such drawing. The Borrowing Date with respect to such
borrowing shall be the date of such drawing.
3.6 Obligations Absolute. The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Lender, any
beneficiary of a Letter of Credit or any other Person. The Borrower also
agrees with the Issuing Lender that the Issuing Lender shall not be responsible
for, and the Borrower's Reimbursement Obligations under Section 3.5 shall not
be affected by, among other things, the validity or genuineness of documents or
of any endorsements thereon, even though such documents shall in fact prove to
be invalid, fraudulent or forged, or any dispute between or among the Borrower
and any beneficiary of any Letter of Credit or any other party to which such
Letter of Credit may be transferred or any claims whatsoever of the Borrower
against any beneficiary of such Letter of Credit or any such transferee. The
Issuing Lender
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shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions resulting from the gross negligence or willful misconduct of the
Issuing Lender. The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards or care specified in the
Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing Lender to the
Borrower.
3.7 Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the Issuing Lender shall
promptly notify the Borrower of the date and amount thereof. The
responsibility of the Issuing Lender to the Borrower in connection with any
draft presented for payment under any Letter of Credit shall, in addition to
any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered
under such Letter of Credit in connection with such presentment are
substantially in conformity with such Letter of Credit.
3.8 Reductions and Reinstatements. The Borrower and the L/C
Participants recognize, acknowledge and agree that (i) each Bond Letter of
Credit provides, or may provide, for automatic reductions and reinstatements as
set forth in the provisions of such Bond Letter of Credit, and (ii) each Bond
Letter of Credit provides, or may provide, for the beneficiary thereof to
reduce from time to time the amounts available to be drawn thereon.
3.9 Documents and Reports. The Issuing Lender agrees to
deliver to the L/C Participants promptly upon receipt thereof copies of all
documents and reports delivered to the Issuing Lender pursuant to any Bond
Document.
3.10 Amendments. The Issuing Lender may enter into any
amendment or modification of, or may waive compliance with the terms of any
Bond Document (other than an Indenture) without the consent of any L/C
Participants; provided (a) that without the consent of the Required L/C
Participants, the Issuing Lender shall not execute any instrument agreeing to
any amendment or modification of, or waiver of compliance with any Bond
Document, which would waive any "Event of Default" arising under any Bond
Document, and (b) without the consent of all of the L/C Participants, the
Issuing Lender shall not execute any instrument agreeing to any amendment or
modification of, or waiver of compliance with any Bond Document, (i) which
would (A) reduce the principal of, or interest on, any Reimbursement
Obligation, (B) postpone the due date for any payment of principal of, or
interest on, any Reimbursement Obligation, (C) extend the stated expiration
date of the Bond Letter of Credit, (D) increase in any material manner (in the
reasonable opinion of the Issuing Lender) the obligations of the L/C
Participants or, in any event, increase the obligations of the L/C Participants
the effect of which shall cause any such L/C Participant's Revolving Extensions
of Credit to exceed such L/C Participant's Revolving Credit Commitment, or (E)
release or otherwise adversely affect the interests of the L/C Participants in
any collateral granted under any Bond Document, or (ii) after the occurrence of
a default or event of default.
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3.11 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to each Agent and each
Lender that:
4.1 Financial Condition. (a) Unaudited pro forma
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at September 30, 1997 (including the notes thereto) (the "Pro Forma Balance
Sheet"), copies of which have heretofore been furnished to each Lender, have
been prepared giving effect (as if such events had occurred on such date) to
(i) the consummation of the Merger, (ii) the Loans to be made and the Senior
Subordinated Notes to be issued on the Closing Date and the use of proceeds
thereof, (iii) the other transactions contemplated hereby and (iv) the payment
of fees and expenses in connection with the foregoing. The Pro Forma Balance
Sheet has been prepared based on the best information available to the Borrower
as of the date of delivery thereof, and presents fairly on a pro forma basis
the estimated financial position of Borrower and its consolidated Subsidiaries
as at September 30, 1997, assuming that the events specified in the preceding
sentence had actually occurred at such date and based upon good faith estimates
and assumptions believed by management of the Borrower to be reasonable at the
time made, it being recognized by the Lenders that such financial information
as it relates to future events is not viewed as fact and that actual results
during the period or periods covered by such financial information may differ
from the projected results set forth therein by a material amount.
(b) The audited consolidated balance sheets of the Borrower
as at March 31, 1995, March 31, 1996 and March 31, 1997, and the related
consolidated statements of income and of cash flows for the fiscal years ended
on such dates, reported on by and accompanied by an unqualified report from
Deloitte & Touche LLP, present fairly the consolidated financial condition of
the Borrower as at such date, and the consolidated results of its operations
and its consolidated cash flows for the respective fiscal years then ended.
The unaudited consolidated balance sheet of the Borrower as at September 30,
1997, and the related unaudited consolidated statements of income and cash
flows for the six-month period ended on such date, present fairly the
consolidated financial condition of the Borrower as at such dates, and the
consolidated results of its operations and its consolidated cash flows for the
six-month period then ended (including all adjustments consisting only of
normal recurring accruals necessary for fair presentation of such interim
periods). All such financial statements, including the related schedules and
notes thereto, if any, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). The Borrower and
its Subsidiaries do not have any material Guarantee Obligations, contingent
liabilities and liabilities for taxes,
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or any long-term leases or unusual forward or long-term commitments, including,
without limitation, any interest rate or foreign currency swap or exchange
transaction or other obligation in respect of derivatives, which are not
reflected in the most recent financial statements referred to in this paragraph
(b). During the period from March 31, 1997 to and including the date hereof
there has been no Disposition by the Borrower or its Subsidiaries of any
material part of its business or Property or any transfer of Capital Stock to
any Person other than a Wholly Owned Subsidiary Guarantor.
(c) The audited consolidated balance sheets of the Target as
at October 2, 1994, October 1, 1995 and September 29, 1996 and the related
consolidated statements of income and of cash flows for the fiscal years ended
on such dates, reported on by and accompanied by an unqualified report from
Price Waterhouse LLP, present fairly the consolidated financial condition of
the Target as at such dates, and the consolidated results of its operations and
its consolidated cash flows for the respective fiscal years then ended. All
such financial statements, including the related schedules and notes thereto,
if any, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). The Target and its Subsidiaries do not
have any material Guarantee Obligations, contingent liabilities and liabilities
for taxes, or any long-term leases or unusual forward or long-term commitments,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, which are
not reflected in the most recent financial statements referred to in this
paragraph (c). During the period from September 30, 1996 to and including the
date hereof there has been no Disposition by the Target or its Subsidiaries of
any material part of its business or Property.
4.2 No Change. Since March 31, 1997 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of the
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of Property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law except, in the case of clauses (c) and (d), to the extent that the failure
to so qualify, be in good standing or comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and, in the
case of the Borrower, to borrow hereunder. Each Loan Party has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Loan Documents to which it is a party and, in the case of the Borrower,
to authorize the borrowings on the terms and conditions of this
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Agreement. No consent or authorization of, filing with, notice to or other act
by or in respect of, any Governmental Authority or any other Person is required
in connection with the Merger or the financing transactions contemplated hereby
and the borrowings hereunder or with the execution, delivery, performance,
validity or enforceability of this Agreement or any of the Loan Documents,
except (i) consents, authorizations, filings and notices which have been
obtained or made and are in full force and effect and (ii) the filings referred
to in Section 4.18(b). Each Loan Document has been duly executed and delivered
on behalf of each Loan Party party thereto. This Agreement constitutes, and
each other Loan Document upon execution will constitute, a legal, valid and
binding obligation of each Loan Party party hereto and thereto, enforceable
against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof will not violate
any Requirement of Law or any Contractual Obligation of the Borrower or any of
its Subsidiaries and will not result in, or require, the creation or imposition
of any Lien on any of their respective material properties or revenues pursuant
to any Requirement of Law or any such Contractual Obligation (other than the
Liens created by the Security Documents). No Requirement of Law or Contractual
Obligation applicable to the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of their respective properties or revenues
(a) with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) which if adversely determined could
reasonably be expected to have a Material Adverse Effect.
4.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to (i) any of its Contractual
Obligations in any respect which could reasonably be expected to have a
Material Adverse Effect or (ii) the Tender Facilities. No Default or Event of
Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Borrower and
its Subsidiaries has indefeasible title to, or a valid leasehold interest in,
all its material real property necessary for the conduct of its business as
currently conducted, and good title to, or a valid leasehold interest in, all
its other material Property necessary for the conduct of its business as
currently conducted, and none of such Property is subject to any Lien except as
permitted by Section 7.3.
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4.9 Intellectual Property. The Borrower and each of its
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
to conduct its business as currently conducted. No material claim has been
asserted and is pending by any Person challenging or questioning the use of any
Intellectual Property or the validity or effectiveness of any Intellectual
Property. The use of Intellectual Property by the Borrower and its
Subsidiaries does not infringe on the rights of any Person in any material
respect.
4.10 Taxes. Each of the Borrower and each of its
Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns which are required to be filed and has paid all taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its Property and all other taxes, fees or other charges imposed on
it or any of its Property by any Governmental Authority (other than amounts the
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of the Borrower or its Subsidiaries, as the case may
be); no material tax Lien has been filed, and, to the knowledge of the
Borrower, no material claim is being asserted, with respect to any such tax,
fee or other charge.
4.11 Federal Regulations. Assuming compliance by the Lenders
with Section 2.23 and the accuracy of the representations in Section 2.23(b),
no part of the proceeds of any Loans will be used for any purpose which
violates the provisions of Regulations G, T, U or X of the Board.
4.12 ERISA. Except for the Merger of Spreckels Sugar
Company, Inc. into ▇▇▇▇▇ Sugar Company on March 31, 1997, neither a Reportable
Event nor an "accumulated funding deficiency" (within the meaning of Section
412 of the Code or Section 302 of ERISA) has occurred during the five-year
period prior to the date on which this representation is made or deemed made
with respect to any Plan, and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code. No termination of a
Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan
has arisen, during such five-year period. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the
date on which this representation is made or deemed made, exceed the value of
the assets of such Plan allocable to such accrued benefits by an amount
material in light of such amounts and related circumstances. Neither the
Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan which has resulted or could reasonably
be expected to result in a material liability under ERISA, and neither the
Borrower nor any Commonly Controlled Entity would become subject to any
material liability under ERISA if the Borrower or any such Commonly Controlled
Entity were to withdraw completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which this representation is
made or deemed made. No such Multiemployer Plan is in Reorganization or
Insolvent.
4.13 Investment Company Act; Other Regulations. No Loan
Party is an "investment company", or a company "controlled" by an "investment
company", within the
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meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
4.14 Subsidiaries. The Subsidiaries listed on Schedule 4.14
constitute all the Subsidiaries of the Borrower at the date hereof.
4.15 Use of Proceeds. (a) The proceeds of the Term Loans
shall be used (i) to refinance a portion of the borrowings of the Borrower
under the Tender Facilities, (ii) to refinance certain indebtedness of Target
outstanding after the Merger, (iii) to finance the remaining cash consideration
to be paid on the Closing Date pursuant to the Merger Agreement to stockholders
of Target and (iv) to finance the payment of the fees and expenses of the
Merger and the Tender Offer and the transactions contemplated thereby.
(b) The proceeds of the Revolving Credit Loans and the Swing
Line Loans shall be used (i) to refinance a portion of the borrowings of the
Borrower under the Tender Facilities and (ii) for working capital purposes and
other general corporate purposes of the Borrower and its Subsidiaries. Letters
of Credit shall be used to provide credit support for general corporate
requirements of the Borrower and its Subsidiaries.
4.16 Environmental Matters. Other than exceptions to any of
the following that could not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect or the payment of a Material
Environmental Amount:
(a) The Borrower and its Subsidiaries: (i) are, and within
the period of all applicable statutes of limitation have been, in compliance
with all applicable Environmental Laws; (ii) hold all Environmental Permits
(each of which is in full force and effect) required for any of their current
operations or for any property owned, leased, or otherwise operated by any of
them; (iii) are, and within the period of all applicable statutes of limitation
have been, in compliance with all of their Environmental Permits; and (iv)
reasonably believe that there are no pending changes in applicable
Environmental Laws.
(b) Materials of Environmental Concern are not present at, on,
under, in, or about any real property now or formerly owned, leased or operated
by the Borrower or any of its Subsidiaries or, to the Borrower's knowledge, at
any other location (including, without limitation, any location to which
Materials of Environmental Concern have been sent for re-use or recycling or
for treatment, storage, or disposal) which could reasonably be expected to (i)
give rise to liability of the Borrower or any Subsidiary, or (ii) interfere
with the Borrower's or any Subsidiary's continued operations, or (iii) impair
the fair saleable value, as a component of a going business, of any real
property owned or leased by the Borrower or any Subsidiary.
(c) There is no judicial, administrative, or arbitral
proceeding (including any notice of violation or alleged violation) under or
relating to any Environmental Law to which the Borrower or any of its
Subsidiaries is, or to the knowledge of the Borrower will be, named as a party
that is pending or, to the knowledge of the Borrower, threatened.
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(d) Neither the Borrower nor any of its Subsidiaries has
received any written request for information, or been notified that it is a
potentially responsible party under or relating to the federal Comprehensive
Environmental Response, Compensation, and Liability Act or any similar
Environmental Law, or with respect to any Materials of Environmental Concern.
(e) Neither the Borrower nor any of its Subsidiaries has
entered into or agreed to any consent decree, order, or settlement or other
agreement, nor is subject to any judgment, decree, or order or other agreement,
in any judicial, administrative, arbitral, or other forum, relating to
compliance with or liability under any Environmental Law.
(f) Neither the Borrower nor any of its Subsidiaries has
assumed or retained, by contract or operation of law, any liabilities of any
kind, fixed or contingent, known or unknown, under any Environmental Law or
with respect to any Material of Environmental Concern.
Notwithstanding the qualification as to the Borrower's knowledge set forth in
the foregoing subsection 4.16(b), for purposes of Section 8(b) the
representations contained in such subsection 4.16(b) shall be deemed to be
made, or have been made, as the case may be, without giving effect to such
qualification.
4.17 Accuracy of Information, etc. No statement or
information when taken as a whole contained in this Agreement, any other Loan
Document or any other document, certificate or statement furnished to the
Administrative Agent or the Lenders or any of them, by or on behalf of any Loan
Party for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished, any untrue statement of
a material fact or omitted to state a material fact necessary in order to make
the statements contained herein or therein not misleading. The projections and
pro forma financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projected results set forth
therein by a material amount. As of the date hereof, the representations and
warranties contained in the Transaction Documentation are true and correct in
all material respects. There is no fact known to any Loan Party that could
reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents or in any other
documents, certificates and statements furnished to the Administrative Agent
and the Lenders for use in connection with the transactions contemplated hereby
and by the other Loan Documents.
4.18 Security Documents. (a) The Guarantee and Collateral
Agreement is effective to create in favor of the Collateral Agent, for the
benefit of the Agents and the Lenders, a legal, valid and enforceable security
interest in the Collateral described therein and proceeds thereof. In the case
of the Pledged Stock described in the Guarantee and Collateral
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Agreement, when stock certificates representing such Pledged Stock are
delivered to the Administrative Agent and in the case of the other Collateral
described in the Guarantee and Collateral Agreement, when financing statements
in appropriate form are filed in the offices specified on Schedule 4.18(a), the
Guarantee and Collateral Agreement shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Loan Parties in
such Collateral and, subject to compliance with applicable law, the proceeds
thereof, as security for the Obligations (as defined in the Guarantee and
Collateral Agreement), in each case prior and superior in right to any other
Person (other than Liens expressly permitted by Section 7.3).
(b) Each of the Mortgages is effective to create in favor of
the Collateral Agent, for the benefit of the Agents and the Lenders, a legal,
valid and enforceable Lien on the Mortgaged Properties described therein and
proceeds thereof, and when the Mortgages are filed in the offices specified on
Schedule 4.18(b), each such Mortgage shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the Loan Parties
in the Mortgaged Properties and the proceeds thereof, as security for the
Obligations (as defined in the relevant Mortgage), in each case prior and
superior in right to any other Person except for (i) Liens expressly permitted
by Section 7.3 hereof and (ii) all matters set forth in Schedule B to the
mortgagees title insurance policy delivered to the Administrative Agent in
accordance with Section 5.1(n)(iii) herein.
4.19 Solvency. Each Loan Party is, and after giving effect
to the Merger and the other transactions contemplated hereby and the incurrence
of all Indebtedness and obligations being incurred in connection herewith and
therewith will be and will continue to be, Solvent.
4.20 Regulation H. No Mortgage encumbers improved real
property which is located in an area that has been identified by the Secretary
of Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood
Insurance Act of 1968 except as set forth on Schedule 4.20.
4.21 Senior Indebtedness. The Obligations constitute "Senior
Indebtedness" of the Borrower under and as defined in the Senior Subordinated
Note Indenture. The obligations of each Subsidiary Guarantor under the
Guarantee and Collateral Agreement constitute "Guarantor Senior Indebtedness"
of such Subsidiary Guarantor under and as defined in the Senior Subordinated
Note Indenture.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement
of each Lender to make the initial extension of credit requested to be made by
it is subject to the satisfaction, prior to or concurrently with the making of
such extension of credit on the Closing Date, of the following conditions
precedent:
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(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower, (ii) the Guarantee and Collateral
Agreement, executed and delivered by a duly authorized officer of the
Borrower and each Subsidiary Guarantor, (iii) each of the Mortgages,
executed and delivered by a duly authorized officer of each party
thereto, (iv) for the account of each relevant Lender, Notes
conforming to the requirements hereof and executed and delivered by a
duly authorized officer of the Borrower and (v) the Control Agreement,
executed and delivered by a duly authorized officer of each party
thereto.
(b) Public Filings. The documents and materials filed
publicly by the Borrower, IHK Merger Sub and Target in connection with
the Tender Offer and the Merger shall have been furnished to the
Administrative Agent and the Syndication Agent and shall be reasonably
satisfactory in form and substance to the Syndication Agent.
(c) Merger; etc. The following transactions shall have been
consummated, in each case, on terms and conditions reasonably
satisfactory to the Syndication Agent:
(i) The Merger shall have been, or shall be
concurrently, consummated pursuant to the Merger Agreement and
all required stockholder approval to effect the Merger shall
have been obtained; and the Merger Agreement shall have
remained in full force and effect and shall not have been
amended, supplemented, waived or otherwise modified in any
material respect without the prior written consent of the
Syndication Agent;
(ii) The sources and uses of funds for the Tender
Offer and the Merger shall be as set forth on Schedule 5.1(c);
and
(iii) The Borrower shall have issued and sold
$250,000,000 in aggregate principal amount of the Senior
Subordinated Notes on terms and conditions satisfactory to the
Syndication Agent.
(d) Tender Facilities. (i) The Tender Facilities shall have
closed and the conditions thereto shall have been satisfied or waived.
(ii) No default or event of default under the Tender
Facilities shall have occurred and be continuing.
(iii) On the Closing Date, all obligations of the
Borrower under the Tender Facilities shall have been
refinanced with the proceeds of the Facility and the Senior
Subordinated Notes.
(e) Fees. The Lenders, the Syndication Agent and the
Administrative Agent shall have received all fees required to be paid,
and all expenses for which invoices have been presented, on or before
the Closing Date.
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(f) Approvals. All governmental (including compliance with
the H-S-R Act in respect of the Merger), stockholder and third party
approvals (including debtholders', landlords' and other consents)
reasonably necessary in connection with the Tender Offer, the Merger,
the financing contemplated hereby and the continuing operations of the
Borrower and its Subsidiaries after the Merger shall have been
obtained and be in full force and effect, and all applicable waiting
periods shall have expired or been extended without any action being
taken or threatened by any Governmental Authority which would
restrain, prevent or otherwise impose adverse conditions on Tender
Offer or the Merger.
(g) Proceedings. There shall exist no judgment, order,
injunction or other restraint which would prevent or delay the
consummation of, or impose materially adverse conditions upon, the
Tender Offer or the Merger, and there shall exist no claim, action,
suit, investigation, litigation or proceeding (including, without
limitation, shareholder or derivative litigation) pending or
threatened in any court or before any arbitrator or governmental
instrumentality which relates to the Tender Offer or the Merger which
has any reasonable likelihood of having a material adverse effect on
(i) the financial condition, operations, business or properties of
either the Borrower or the Target and their respective subsidiaries
taken as a whole, (ii) the Tender Offer, the Merger, or the financing
thereof or (iii) the rights and remedies of the Administrative Agent,
the Syndication Agent or the Lenders under the Loan Documents or on
the ability of the Borrower and its subsidiaries to perform their
respective obligations thereunder.
(h) Marketable Securities. The Syndication Agent shall be
reasonably satisfied that the Borrower's portfolio of marketable
securities shall have remained substantially equivalent (other than
changes resulting from changes in market value thereof) to that
previously described in writing to the Syndication Agent prior to the
Commitment Letter Date.
(i) Regulations of Board. The Lenders shall be satisfied
that the Merger and the financing thereof comply with Regulation G, T,
U and X of the Board. Each Lender shall have received a duly
completed and executed Form G-3 or Form FR U-1, as applicable, of the
Board, demonstrating such compliance.
(j) Closing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of each
Loan Party, dated the Closing Date, substantially in the form of
Exhibit C, with appropriate insertions and attachments.
(k) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions:
(i) the legal opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇
L.L.P., counsel to the Borrower and its Subsidiaries,
substantially in the form of Exhibit F-1;
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(ii) the legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
general counsel of the Borrower and its Subsidiaries,
substantially in the form of Exhibit F-2;
(iii) to the extent consented to by the relevant
counsel, each legal opinion, if any, delivered in connection
with the Merger Agreement, accompanied by a reliance letter in
favor of the Lenders;
(iv) the legal opinion of local counsel in each
of California, Florida, Georgia, Louisiana, Michigan,
Missouri, Montana, Ohio and Wyoming and of such other special
and local counsel as may be required by the Syndication Agent;
and
(v) the legal opinion of Hunter, MacLean, ▇▇▇▇▇
& ▇▇▇▇, P.C., substantially in the form of Exhibit F-3.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Syndication Agent
may reasonably require.
(l) Pledged Stock; Stock Powers; Pledged Notes. The
Collateral Agent shall have received (i) the certificates representing
the shares of Capital Stock pledged pursuant to the Guarantee and
Collateral Agreement, together with an undated stock power for each
such certificate executed in blank by a duly authorized officer of the
pledgor thereof and (ii) each promissory note pledged to the
Collateral Agent pursuant to the Guarantee and Collateral Agreement
endorsed (without recourse) in blank (or accompanied by an executed
transfer form in blank satisfactory to the Syndication Agent) by the
pledgor thereof. The Borrower shall have pledged 100% of the Shares
of the Target pursuant to the Guarantee and Collateral Agreement.
(m) Filings, Registrations and Recordings. Each document
(including, without limitation, any Uniform Commercial Code financing
statement) required by the Security Documents or under law or
reasonably requested by the Collateral Agent to be filed, registered
or recorded in order to create in favor of the Collateral Agent, for
the benefit of the Agents and the Lenders, a perfected Lien on the
Collateral described therein, prior and superior in right to any other
Person (other than with respect to Liens expressly permitted by
Section 7.3), shall be in proper form for filing, registration or
recordation. The Syndication Agent shall have received the results of
a recent lien, tax and judgment search in each of the jurisdictions
and offices where assets of each of the Borrower, Target and their
subsidiaries are located or recorded, and such search shall reveal no
material liens on any of their assets except for liens permitted by
this Agreement or liens to be discharged substantially concurrently
with the Closing Date.
(n) Mortgages, etc. (i) The Syndication Agent shall have
received a Mortgage with respect to each Mortgaged Property, executed
and delivered by a duly authorized officer of each party thereto.
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(ii) If requested by the Syndication Agent, the
Administrative Agent shall have received, and the title insurance
company issuing the policy referred to in Section 5.1(n)(iii) (the
"Title Insurance Company") shall have received, maps or plats of an
as-built survey of the sites of the Mortgaged Properties certified to
the Administrative Agent and the Title Insurance Company in a manner
satisfactory to the Title Insurance Company and the Syndication Agent,
dated a date satisfactory to the Syndication Agent and the Title
Insurance Company by an independent professional licensed land
surveyor satisfactory to the Syndication Agent and the Title Insurance
Company, which maps or plats and the surveys on which they are based
shall be made in accordance with the Minimum Standard Detail
Requirements for Land Title Surveys jointly established and adopted by
the American Land Title Association and the American Congress on
Surveying and Mapping in 1992, and, without limiting the generality of
the foregoing, there shall be surveyed and shown on such maps, plats
or surveys the following: (A) the locations on such sites of all the
buildings, structures and other improvements and the established
building setback lines; (B) the lines of streets abutting the sites
and width thereof; (C) all access and other easements appurtenant to
the sites; (D) all roadways, paths, driveways, easements,
encroachments and overlapping improvements and similar encumbrances
affecting the site, whether recorded, apparent from a physical
inspection of the sites or otherwise known to the surveyor; (E) any
encroachments on any adjoining property by the building structures and
improvements on the sites; (F) if the site is described as being on a
filed map, a legend relating the survey to said map; and (G) the flood
zone designations, if any, in which the Mortgaged Properties are
located.
(iii) The Administrative Agent shall have received in
respect of each Mortgaged Property a mortgagee's title insurance
policy (or policies) or marked up unconditional binder for such
insurance or, in the case of Mortgaged Property located in the State
of Texas, an effective commitment in respect thereof. Each such
policy shall (A) be in an amount satisfactory to the Syndication
Agent; (B) be issued at ordinary rates; (C) insure that the Mortgage
insured thereby creates a valid first Lien on such Mortgaged Property
free and clear of all defects and encumbrances, except (i) as
disclosed therein and (ii) those Liens expressly permitted by Section
7.3 hereof; (D) name the Administrative Agent for the benefit of the
Lenders as the insured thereunder; (E) be in the form of ALTA Loan
Policy (or equivalent policies); (F) contain such endorsements and
affirmative coverage as the Syndication Agent may reasonably request
and (G) be issued by title companies satisfactory to the Syndication
Agent (including any such title companies acting as co-insurers or
reinsurers, at the option of the Syndication Agent). The Syndication
Agent shall have received evidence satisfactory to it that all
premiums in respect of each such policy, all charges for mortgage
recording tax, and all related expenses, if any, have been paid.
(iv) If requested by the Syndication Agent, the
Administrative Agent shall have received (A) a policy of flood
insurance which (1) covers any parcel of improved real property which
is encumbered by any Mortgage (2) is written in an amount not less
than the outstanding principal amount of the indebtedness secured by
such Mortgage
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which is reasonably allocable to such real property or the maximum
limit of coverage made available with respect to the particular type
of property under the National Flood Insurance Act of 1968, whichever
is less, and (3) has a term ending not later than the maturity of the
Indebtedness secured by such Mortgage and (B) confirmation that the
Borrower has received the notice required pursuant to Section
208(e)(3) of Regulation H of the Board.
(v) The Administrative Agent shall have received a copy
of all recorded documents referred to, or listed as exceptions to
title in, the title policy or policies referred to in Section
5.1(n)(iii) and a copy of all other material documents affecting the
Mortgaged Properties.
(vi) The Lenders shall have received environmental
information with respect to the real property owned or leased by the
Borrower or its Subsidiaries satisfactory to the Syndication Agent.
(o) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of Section 6.5 and
Section 5.3 of the Guarantee and Collateral Agreement. The
Syndication Agent shall be reasonably satisfied that satisfactory
insurance relating to the Borrower, Target and their Subsidiaries
shall be in place after the Merger.
(p) Indebtedness, Liens or Preferred Stock. Neither the
Borrower nor its Subsidiaries shall have any outstanding Indebtedness,
Liens or preferred Capital Stock after giving effect to the Merger
other than such Indebtedness, Liens or preferred Capital Stock
permitted by Sections 7.2 and 7.3.
5.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it on any
date (including, without limitation, its initial extension of credit) is
subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made in all material respects by any
Loan Party in or pursuant to the Loan Documents shall be true and
correct on and as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
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5.3 Conditions to Issuance of Bond Letters of Credit. The
agreement of the Issuing Lender to issue any Bond Letter of Credit requested to
be issued by it on any date is subject to the satisfaction of the following
conditions precedent:
(a) The Issuing Lender shall have received, in form and
substance satisfactory to it:
(i) evidence that the issuer of the Bonds
supported by such Bond Letter of Credit has authorized the
execution and delivery of such Bonds and the related Bond
Documents;
(ii) executed originals of each of the Bond
Documents and all legal opinions and certificates relating to
the applicable Bonds; and
(iii) evidence that the issuer of such Bonds shall
have executed, issued and delivered the Bonds to the Bond
Trustee therefor and the bond registrar for such Bonds shall
have duly authenticated the Bonds and delivered the Bonds
against payment therefor.
Each issuance of a Bond Letter of Credit on behalf of the Borrower hereunder
shall constitute a representation and warranty by the Borrower as of the date
of such issuance that the conditions contained in this Section 5.3 have been
satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or any Agent hereunder, the Borrower shall and
shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to each Agent and each
Lender:
(a) as soon as available, but in any event within 100 days
after the end of each fiscal year of the Borrower, a copy of the
audited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such year and the related
audited consolidated statements of income and of cash flows for such
year, setting forth in each case in comparative form the figures for
the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by Deloitte & Touche LLP or other independent certified
public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 50
days after the end of each of the first three quarterly periods of
each fiscal year of the Borrower, the unaudited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end
of such quarter and the related unaudited consolidated statements of
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income for such quarter and the portion of the fiscal year through the
end of such quarter and an unaudited consolidated statement of cash
flow for the portion of the fiscal year through the end of such
quarter, setting forth in each case in comparative form the figures
for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (including all adjustments
consisting only of normal recurring accruals necessary for fair
presentation of such interim periods);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to each Agent
and each Lender, or, in the case of clause (g), to the relevant Lender:
(a) concurrently with the delivery of the financial
statements referred to in Section 6.1(a), a certificate of the
independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except
as specified in such certificate;
(b) concurrently with the delivery of any financial
statements pursuant to Sections 6.1(a) and (b), (i) a certificate of a
Responsible Officer stating that, to the best of each such Responsible
Officer's knowledge, each Loan Party during such period has observed
or performed all of its covenants and other agreements, and satisfied
every condition, contained in this Agreement and the other Loan
Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Default or Event of Default except as specified in
such certificate and (ii) (x) a Compliance Certificate containing all
information and calculations necessary for determining compliance by
the Borrower and its Subsidiaries with the provisions of this
Agreement referred to therein as of the last day of the fiscal quarter
or fiscal year of the Borrower, as the case may be, and (y) to the
extent not previously disclosed to the Administrative Agent, a listing
of any county or state within the United States where any Loan Party
keeps inventory or equipment and of any Intellectual Property acquired
by any Loan Party since the date of the most recent list delivered
pursuant to this clause (y) (or, in the case of the first such list so
delivered, since the Closing Date);
(c) as soon as available, and in any event no later than 60
days after the end of each fiscal year of the Borrower, a detailed
consolidated budget for the following fiscal year (including a
projected consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of the following fiscal year, and the
related consolidated statements of projected cash flow, projected
changes in financial position and projected income), and, as soon as
available, significant revisions, if any, of such budget and
projections with respect to such fiscal year (collectively, the
"Projections"), which
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Projections shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Projections are based on
reasonable estimates, information and assumptions and that such
Responsible Officer has no reason to believe that such Projections are
incorrect or misleading in any material respect;
(d) within 50 days after the end of each fiscal quarter of
the Borrower, a narrative discussion and analysis of the financial
condition and results of operations of the Borrower and its
Subsidiaries for such fiscal quarter and for the period from the
beginning of the then current fiscal year to the end of such fiscal
quarter, as compared to the comparable periods of the previous year;
(e) no later than 10 Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed material
amendment, supplement, waiver or other modification with respect to
the Senior Subordinated Note Indenture or the Merger Agreement;
(f) promptly after the same are sent, copies of all financial
statements and reports which the Borrower sends to the holders of any
class of its debt securities or public equity securities and within
five days after the same are filed, copies of all financial statements
and reports which the Borrower may make to, or file with, the
Securities and Exchange Commission or any successor or analogous
Governmental Authority; and
(g) promptly, such additional financial and other information
as any Agent or any Lender may from time to time reasonably request
through the Administrative Agent.
6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature (including, without
limitation, tax obligations), except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Borrower or its Subsidiaries, as the case may be.
6.4 Conduct of Business and Maintenance of Existence, etc.
(a) (i) Continue to engage in business of the same general type as now
conducted by it and business related thereto, all as set forth in subsection
7.15, (ii) preserve, renew and keep in full force and effect its corporate
existence except that the Borrower shall not be required to preserve, renew or
keep in full force and effect the corporate or other existence of any
Subsidiary, if the Board of Directors of the Borrower shall determine in the
exercise of its business judgment that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or any Subsidiary and
that abandonment of any such right shall not have a Material Adverse Effect and
(iii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 7.4 and except, in the
case of clause (iii) above, to the extent that failure
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to do so could not reasonably be expected to have a Material Adverse Effect and
(b) comply with all Contractual Obligations and Requirements of Law except to
the extent that failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all
Property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted and (b) maintain with financially
sound and reputable insurance companies insurance or by means of self insurance
with adequate provisions made for the funding therefor on all its Property in
at least such amounts and against at least such risks (but including in any
event public liability, product liability and business interruption) as are
usually insured against in the same general area by companies engaged in the
same or a similar business.
6.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities and
(b) permit representatives of the Administrative Agent and any Lender
(coordinated, to the extent reasonable, through the Administrative Agent) to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time during normal business hours
and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Borrower and
its Subsidiaries with officers and employees of the Borrower and its
Subsidiaries and with its independent certified public accountants. If an
Event of Default has occurred and is continuing, Borrower will pay for all such
examinations; prior thereto the examining Lender will pay for same.
6.7 Notices. Promptly upon a Responsible Officer becoming
aware thereof, give notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or
any of its Subsidiaries in which the amount involved is $10,000,000 or
more and not covered by insurance or in which injunctive or similar
relief is sought which if adversely determined could be reasonably
expected to cause a Material Adverse Effect;
(d) the following events, as soon as possible and in any
event within 30 days after the Borrower knows or has reason to know
thereof: (i) the occurrence of any Reportable Event with respect to
any Plan, a failure to make any required contribution
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to a Plan, the creation of any Lien in favor of the PBGC or a Plan or
any withdrawal from, or the termination, Reorganization or Insolvency
of, any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Borrower or any
Commonly Controlled Entity or any Multiemployer Plan with respect to
the withdrawal from, or the termination, Reorganization or Insolvency
of, any Plan; and
(e) any development or event which has had or could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary
proposes to take with respect thereto.
6.8 Environmental Laws. (a)(i) Comply with all Environmental
Laws applicable to it, and obtain, comply with and maintain any and all
Environmental Permits necessary for its operations as conducted and as planned;
and (ii) take reasonable efforts to ensure that all of its tenants, subtenants,
contractors, subcontractors, and invitees comply with all Environmental Laws,
and obtain, comply with and maintain any and all Environmental Permits,
applicable to any of them insofar as any failure to so comply, obtain or
maintain reasonably could be expected to adversely affect the Borrower or any
of its Subsidiaries. For purposes of this 6.8(a), noncompliance by the
Borrower or any of its Subsidiaries with any applicable Environmental Law or
Environmental Permit shall be deemed not to constitute a breach of this
covenant so long as (x) upon learning of any actual or suspected noncompliance,
the Borrower and any affected Subsidiary shall promptly undertake reasonable
efforts to achieve compliance, and (y) in any case, such non-compliance, and
any other noncompliance with Environmental Law, individually or in the
aggregate, could not reasonably be expected to give rise to a Material Adverse
Effect or materially and adversely affect the value of the Mortgaged Property,
taken as a whole.
(b) Promptly comply with all enforceable requirements of all
Governmental Authorities regarding Environmental Laws, other than such
enforceable requirements as to which appropriate proceedings have been timely
and properly taken in good faith so long as the pendency of any and all such
proceedings could not reasonably be expected to give rise to a Material Adverse
Effect or the payment of a Material Environmental Amount.
(c) Prior to acquiring any ownership or leasehold interest in
real property, or other interest in any real property (x) involving aggregate
value for such property (including improvements thereof) of $2,000,000 or more
and (y) that could give rise to Borrower being found an owner, operator, or
otherwise subject to potential liability under any Environmental Law (or any
entity with such interests in any real property): (i) obtain a written report
by an environmental consulting firm reasonably acceptable to the Syndication
Agent (an "Environmental Consultant") of the Environmental Consultant's
assessment of the presence or potential presence of significant levels of any
Materials of Environmental Concern on, in, under, or about such property, or of
other conditions that could give rise to potentially
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significant liability under or violations of Environmental Law relating to such
acquisition, and notify the Agents of such potential acquisition; and (ii) if
requested by the Syndication Agent after learning of such potential
acquisition, provide such Report to the Administrative Agent, provided that in
the event that the Borrower is contractually prohibited from providing any such
requested Report prior to the consummation of the applicable acquisition, such
Report shall be delivered promptly upon such consummation. The Syndication
Agent shall have the right, but shall not have any duty, to obtain any such
report.
(d) Promptly upon the Syndication Agent's request if there
has occurred or the Syndication Agent reasonably anticipates an Event of
Default, permit an environmental consultant whom the Syndication Agent in its
discretion designates to perform an environmental assessment (including,
without limitation: reviewing documents; interviewing knowledgeable persons;
and sampling and analyzing soil, air, surface water, groundwater, and/or other
media in or about property owned or leased by the Borrower or any of its
Subsidiaries, or on which operations of the Borrower or any of its Subsidiaries
otherwise take place.) Such environmental assessment shall be in form, scope,
and substance satisfactory to the Syndication Agent. The Borrower and its
Subsidiaries shall cooperate fully in the conduct of such environmental
assessment, and Borrower shall pay the costs of such environmental assessment
immediately upon written demand by the Administrative Agent. The Syndication
Agent shall have the right, but shall not have any duty, to request and/or
obtain such environmental assessment.
6.9 Interest Rate Protection. In the case of the Borrower,
within 60 days after the Closing Date, enter into Interest Rate Protection
Agreements to the extent necessary to provide that at least 50% of the
aggregate principal amount of the Senior Subordinated Notes and the Term Loans
is subject to either a fixed interest rate or interest rate protection for a
period of not less than three years, which Interest Rate Protection Agreements
shall have terms and conditions reasonably satisfactory to the Syndication
Agent.
6.10 Additional Collateral, etc. (a) With respect to any
Property acquired after the Closing Date by the Borrower or any of its
Subsidiaries (other than (x) any Property described in paragraph (b), (c) or
(d) below and (y) any Property subject to a Lien expressly permitted by Section
7.3(g)) as to which the Collateral Agent, for the benefit of the Agents and the
Lenders, does not have a perfected Lien, promptly (i) execute and deliver to
the Administrative Agent such amendments to the Guarantee and Collateral
Agreement or such other documents as the Administrative Agent deems necessary
or advisable in order to grant to the Collateral Agent, for the benefit of the
Agents and the Lenders, a security interest in such Property and (ii) take all
actions necessary or advisable to grant to the Collateral Agent, for the
benefit of the Agents and the Lenders, a perfected first priority security
interest in such Property, including without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required
by the Guarantee and Collateral Agreement or by law or as may be requested by
the Administrative Agent.
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(b) With respect to any fee interest in any real estate
having a value (together with improvements thereof) of at least $2,000,000
acquired after the Closing Date by the Borrower or any of its Subsidiaries
(other than any such real estate subject to a Lien expressly permitted by
Section 7.3(g)), promptly (i) execute and deliver a first priority mortgage or
deed of trust, as the case may be, in favor of the Collateral Agent, for the
benefit of the Agents and the Lenders, covering such real estate, in form and
substance reasonably satisfactory to the Administrative Agent, (ii) if
requested by the Administrative Agent, provide the Lenders with (x) title and
extended coverage insurance covering such real estate in an amount at least
equal to the purchase price of such real estate (or such other amount as shall
be reasonably specified by the Administrative Agent) as well as a current ALTA
survey thereof, together with a surveyor's certificate and (y) any consents or
estoppels reasonably deemed necessary or advisable by the Administrative Agent
in connection with such mortgage or deed of trust, each of the foregoing in
form and substance reasonably satisfactory to the Administrative Agent and
(iii) if requested by the Administrative Agent, deliver to the Agents legal
opinions relating to the matters described above, which opinions shall be in
form and substance substantially similar to the relevant opinions delivered on
the Closing Date and otherwise reasonably satisfactory to the Administrative
Agent, and from counsel reasonably satisfactory to the Administrative Agent.
(c) With respect to any new Subsidiary (other than an
Excluded Foreign Subsidiary) created or acquired after the Closing Date (which,
for the purposes of this paragraph (c), shall include any existing Subsidiary
that ceases to be an Excluded Foreign Subsidiary), by the Borrower or any of
its Subsidiaries, promptly (i) execute and deliver to the Administrative Agent
such amendments to the Guarantee and Collateral Agreement as the Administrative
Agent deems necessary or advisable in order to grant to the Collateral Agent,
for the benefit of the Agents and the Lenders, a perfected first priority
security interest in the Capital Stock of such new Subsidiary which is owned by
the Borrower or any of its Subsidiaries, (ii) deliver to the Collateral Agent
the certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
Borrower or such Subsidiary, as the case may be, (iii) cause such new
Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and
(B) to take such actions necessary or advisable to grant to the Collateral
Agent for the benefit of the Agents and the Lenders a perfected first priority
security interest in the Collateral described in the Guarantee and Collateral
Agreement with respect to such new Subsidiary, including, without limitation,
the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement or
by law or as may be requested by the Administrative Agent, and (iv) if
requested by the Administrative Agent, deliver to the Administrative Agent
legal opinions relating to the matters described above, which opinions shall be
in form and substance substantially similar to the relevant opinions delivered
on the Closing Date and otherwise reasonably satisfactory to the Administrative
Agent, and from counsel reasonably satisfactory to the Administrative Agent.
Notwithstanding the foregoing, the provisions of this Section 6.10(c) shall not
apply to (i) ▇▇▇▇▇ Finance Company and HSC Export Corporation, (ii) Pioneer
Trading Corporation, Michigan Sugar (Canada Ltd.) and Refined Sugar Trading
Institute so long as the aggregate value of the total assets of such entities
is not in excess of $1,000,000 and (iii) Savannah
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International Company, Savannah Packaging Company, Savannah Total Invert
Company and Savannah Molasses & Specialties Company so long as each such entity
has no assets or liabilities.
(d) With respect to any new Excluded Foreign Subsidiary
created or acquired after the Closing Date by the Borrower or any of its
Subsidiaries, promptly (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement as the Administrative
Agent deems necessary or advisable in order to grant to the Collateral Agent,
for the benefit of the Agents and the Lenders, a perfected first priority
security interest in the Capital Stock of such new Subsidiary which is owned by
the Borrower or any of its Subsidiaries (provided that in no event shall more
than 65% of the total outstanding Capital Stock of any such new Subsidiary be
required to be so pledged), (ii) deliver to the Collateral Agent the
certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
Borrower or such Subsidiary, as the case may be and (iii) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(e) Within 30 days after the Closing Date, the Borrower shall
(i) cause to be released any Liens in favor of those secured parties described
on Schedule 7.3(g) that are letter of credit issuers securing Indebtedness of
the Borrower and its Subsidiaries described on Schedule 7.2(e) in respect of
the Bonds, pursuant to documentation in form and substance satisfactory to the
Administrative Agent, (ii) take all actions as the Administrative Agent
reasonably deems necessary or advisable in order to cause the release of such
Liens and (iii) take all such actions described in Section 6.10(b) with respect
to the properties originally subject to such Liens.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or any Agent hereunder, the Borrower shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Total Leverage Ratio. Permit the
Consolidated Total Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower (or, if less, the number of full
fiscal quarters subsequent to the Closing Date) ending with any fiscal quarter
set forth below to exceed the ratio set forth below opposite such fiscal
quarter:
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Consolidated Total
Fiscal Quarter Leverage Ratio
-------------- --------------
March 31, 1998 5.40 to 1.00
June 30, 1998 5.40 to 1.00
September 30, 1998 5.40 to 1.00
December 31, 1998 5.20 to 1.00
March 31, 1999 5.00 to 1.00
June 30, 1999 5.00 to 1.00
September 30, 1999 5.00 to 1.00
December 31, 1999 4.75 to 1.00
March 31, 2000 4.75 to 1.00
June 30, 2000 4.75 to 1.00
September 30, 2000 4.75 to 1.00
December 31, 2000 4.50 to 1.00
March 31, 2001 4.50 to 1.00
June 30, 2001 4.50 to 1.00
September 30, 2001 4.50 to 1.00
December 31, 2001 4.00 to 1.00
Thereafter 4.00 to 1.00
(b) Consolidated Senior Leverage Ratio. Permit the
Consolidated Senior Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower (or, if less, the number of full
fiscal quarters subsequent to the Closing Date) ending with any fiscal quarter
set forth below to exceed the ratio set forth below opposite such fiscal
quarter:
Consolidated Senior
Fiscal Quarter Leverage Ratio
-------------- --------------
March 31, 1998 3.00 to 1.00
June 30, 1998 3.00 to 1.00
September 30, 1998 3.00 to 1.00
December 31, 1998 2.75 to 1.00
March 31, 1999 2.75 to 1.00
June 30, 1999 2.75 to 1.00
September 30, 1999 2.75 to 1.00
December 31, 1999 2.50 to 1.00
March 31, 2000 2.50 to 1.00
June 30, 2000 2.50 to 1.00
September 30, 2000 2.50 to 1.00
December 31, 2000 2.25 to 1.00
March 31, 2001 2.25 to 1.00
June 30, 2001 2.25 to 1.00
September 30, 2001 2.25 to 1.00
December 31, 2001 2.00 to 1.00
Thereafter 2.00 to 1.00
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(c) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of the Borrower (or, if less, the number of full fiscal quarters
subsequent to the Closing Date) ending with any fiscal quarter set forth below
to be less than the ratio set forth below opposite such fiscal quarter:.
Consolidated Interest
Fiscal Quarter Coverage Ratio
-------------- ---------------------
March 31, 1998 2.00 to 1.00
June 30, 1998 2.00 to 1.00
September 30, 1998 2.00 to 1.00
December 31, 1998 2.00 to 1.00
March 31, 1999 2.00 to 1.00
June 30, 1999 2.00 to 1.00
September 30, 1999 2.00 to 1.00
December 31, 1999 2.00 to 1.00
March 31, 2000 2.00 to 1.00
June 30, 2000 2.00 to 1.00
September 30, 2000 2.00 to 1.00
December 31, 2000 2.30 to 1.00
March 31, 2001 2.30 to 1.00
June 30, 2001 2.30 to 1.00
September 30, 2001 2.30 to 1.00
December 31, 2001 2.30 to 1.00
March 31, 2002 2.30 to 1.00
June 30, 2002 2.30 to 1.00
September 30, 2002 2.30 to 1.00
December 31, 2002 2.50 to 1.00
Thereafter 2.50 to 1.00
(d) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower (or, if less, the number of full fiscal
quarters subsequent to the Closing Date) to be less than 1.00 to 1.00.
(e) Adjusted Consolidated Working Capital. Permit Adjusted
Consolidated Working Capital to be less than $250,000,000 on the last day of
any fiscal quarter of the Borrower.
(f) Maintenance of Net Worth. Permit Consolidated Net Worth
as of the last day of any fiscal quarter of the Borrower to be less than the
sum of (i) $300,000,000 and (ii) an amount equal to the aggregate of 80% of
Consolidated Net Income for each fiscal quarter of
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the Borrower commencing after the Closing Date for which Consolidated Net
Income is positive.
7.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist (in each case, to "Incur") any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
(b) Indebtedness of the Borrower to any Subsidiary and of any
Wholly Owned Subsidiary Guarantor to the Borrower or any other
Subsidiary;
(c) Indebtedness secured by Liens permitted by Section 7.3(g)
in an aggregate principal amount not to exceed, when added to the
Capital Lease Obligations permitted under paragraph (d) of this
Section 7.2, $30,000,000 at any one time outstanding;
(d) Capital Lease Obligations in an aggregate principal
amount not to exceed, when added to the Indebtedness permitted under
paragraph (c) of this Section 7.2, $30,000,000 at any one time
outstanding;
(e) Indebtedness outstanding on the date hereof and listed on
Schedule 7.2(e) and any refinancings, refundings, renewals or
extensions thereof (without any increase in the principal amount
thereof);
(f) guarantees made in the ordinary course of business by the
Borrower or any of its Subsidiaries of obligations of any Wholly Owned
Subsidiary Guarantor;
(g) Indebtedness under any Interest Rate Protection
Agreements entered into to protect the Borrower or any of its
Subsidiaries against fluctuations in interest rates and not for
speculative purposes;
(h) other Indebtedness (contingent or direct) not to exceed
$6,000,000 outstanding at any one time in respect of letters of credit
issued for the account of the Borrower or any of its Subsidiaries in
the conduct of their business in the ordinary course and any Guarantee
Obligations thereof;
(i) Indebtedness of the Borrower under the remaining Senior
Notes outstanding upon the consummation of the Debt Tender Offer in an
aggregate principal amount not to exceed $6,000,000 at any time
outstanding;
(j) renewals and extensions (in the same or lesser principal
amount on similar terms and conditions and in any case no less
favorable to the interests of the Lenders) of any Indebtedness listed
in the foregoing clauses;
(k) Indebtedness of the Borrower and its Subsidiaries to
Commodity Credit Corporation in an aggregate principal amount not to
exceed the lesser of (i)
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$50,000,000 and (ii) 80% of the fair market value of the Property
securing such Indebtedness pursuant to Section 7.3(f) at any one time
outstanding;
(l) Indebtedness of ▇▇▇▇▇ Finance Company not to exceed
$15,000,000 in aggregate principal amount outstanding at any time;
(m) other unsecured Indebtedness not to exceed $10,000,000 in
aggregate principal amount outstanding at any time; and
(n) (i) Indebtedness of the Borrower in respect of the Senior
Subordinated Notes in an aggregate principal amount not to exceed
$250,000,000 and (ii) Guarantee Obligations of any Subsidiary
Guarantor in respect of such Indebtedness; provided that such
Guarantee Obligations are subordinated to the same extent as the
obligations of the Borrower in respect of the Senior Subordinated
Notes.
7.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like nonconsensual Liens imposed by operation of
law, arising in the ordinary course of business which are not overdue
for a period of more than 30 days or which are being contested in good
faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions, minor
irregularities in title, and other similar encumbrances incurred in
the ordinary course of business which, in the aggregate, are not
material in amount and which do not in any case materially detract
from the value of the Property subject thereto or materially interfere
with the ordinary conduct of the business of the Borrower or any of
its Subsidiaries and all such title matters described in the
Mortgages;
(f) Liens securing Indebtedness of the Borrower and any of
its Subsidiaries incurred pursuant to Section 7.2(k); provided that
(i) such Indebtedness provides no recourse to the Borrower and any of
its Subsidiaries and (ii) such Liens do not at any
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time encumber any Property other than the specific sugar or
sugar-related products financed by such Indebtedness;
(g) Liens in existence on the date hereof listed on Schedule
7.3(g), securing Indebtedness permitted by Section 7.2(e), provided
that no such Lien is spread to cover any additional Property after the
Closing Date and that the amount of Indebtedness secured thereby is
not increased;
(h) Liens securing Indebtedness of the Borrower and any of
its Subsidiaries incurred pursuant to Section 7.2(c) or (d) to finance
the acquisition or lease of fixed or capital assets, provided that (i)
such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at
any time encumber any Property other than the Property financed by
such Indebtedness and (iii) the amount of Indebtedness secured thereby
is not increased;
(i) Liens created pursuant to the Security Documents;
(j) any interest or title of a lessor under any lease entered
into by the Borrower or any Subsidiary of the Borrower in the ordinary
course of its business and covering only the assets so leased;
(k) Liens securing judgments which do not constitute an Event
of Default;
(l) Liens on Cash Equivalents to secure letter of credit
reimbursement obligations permitted under Section 7.2(h) in an
aggregate amount not to exceed $6,000,000;
(m) Liens securing Indebtedness of ▇▇▇▇▇ Finance Company
permitted under subsection 7.2(k) on notes payable to ▇▇▇▇▇ Finance
Company in respect of loans made by it in the ordinary course of its
business to growers;
(n) additional Liens securing obligations in an aggregate
amount not to exceed $5,000,000; and
(o) rights of lessees of equipment owned by the Borrower or
any of its Subsidiaries not interfering with the normal conduct of the
Borrower's business.
7.4 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or Dispose of, all or substantially
all of its Property or business, or make any material change in its present
method of conducting business, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
Wholly Owned Subsidiary Guarantor (provided that the
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Wholly Owned Subsidiary Guarantor shall be the continuing or surviving
corporation); and
(b) any Subsidiary of the Borrower may Dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to the
Borrower or any Wholly Owned Subsidiary Guarantor.
7.5 Limitation on Sale of Assets. Dispose of any of its
Property or business (including, without limitation, receivables and leasehold
interests), whether now owned or hereafter acquired, or, in the case of any
Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any
Person, except:
(a) the Disposition of surplus, obsolete or worn out property
in the ordinary course of business (including the expiration or
termination of leasehold interests related to receiving station
leases);
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(b);
(d) Dispositions in the normal course of the Borrower's
business of non-operating assets unnecessary for the continued
operation of the Borrower's business;
(e) Dispositions of assets to the extent such assets are
replaced with assets providing the same function for the Borrower and
its Subsidiaries as such replaced assets provided; provided that the
fair market value of all such Dispositions (determined at the time
thereof) shall not exceed (i) $10,000,000 in any year and (ii)
$50,000,000 in the aggregate on a cumulative basis after the Closing
Date;
(f) Disposition of the real property, improvements and
equipment associated with the non operating facilities at ▇▇▇▇▇▇▇▇
City, California and Santa Barbara, California;
(g) the sale or issuance of any Subsidiary's Capital Stock to
the Borrower or any Wholly Owned Subsidiary Guarantor;
(h) the sale or other disposition of any portion of the
Borrower's portfolio of marketable securities; provided that the
proceeds of such sale are applied as set forth in Section 2.12(b); and
(i) additional Dispositions not to exceed $5,000,000 in the
aggregate on a cumulative basis after the Closing Date.
7.6 Limitation on Dividends. Declare or pay any dividend
(other than dividends payable solely in common stock of the Person making such
dividend) on, or make
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any payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other acquisition
of, any shares of any class of Capital Stock of the Borrower or any Subsidiary
or any warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
the Borrower or any Subsidiary (collectively, "Restricted Payments"), except
that (a) any Subsidiary may make Restricted Payments to the Borrower or any
Wholly Owned Subsidiary Guarantor and (b) so long as no Event of Default has
occurred and is continuing, the Borrower may continue to pay dividends on its
common stock in accordance with past practice and in amounts per share not in
excess of recent such amounts.
7.7 Limitation on Capital Expenditures. Make or commit to
make (by way of the acquisition of securities of a Person or otherwise) any
Capital Expenditure or Capitalized Refurbishment Expenditure, except (i)
Capitalized Refurbishment Expenditures of the Borrower and its Subsidiaries in
the ordinary course of business not to exceed $50,000,000 in any fiscal year
and (ii) other Capital Expenditures of the Borrower and its Subsidiaries in the
ordinary course of business not to exceed (A) $60,000,000 in the fiscal year
ending September 30, 1998, or (b) $45,000,000 in any fiscal year thereafter;
provided that any portion of the amount specified in clause (ii) for any fiscal
year that is not expended in such fiscal year may be carried over to increase
the amount of Capital Expenditures permitted under clause (ii) for the
immediately succeeding fiscal year.
7.8 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit (by way of guaranty or otherwise) or capital
contribution to, or purchase any stock, bonds, notes, debentures or other
securities of or any assets constituting all or a material part of a business
unit of, or make any other investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to employees of the Borrower or its
Subsidiaries in the ordinary course of business (including, without
limitation, for travel, entertainment and relocation expenses) in an
aggregate amount for the Borrower and its Subsidiaries not to exceed
$250,000 at any one time outstanding;
(e) the Merger;
(f) investments by the Borrower or any of its Subsidiaries in
the Borrower or any Person that, prior to such investment, is a Wholly
Owned Subsidiary Guarantor;
(g) investments and reinvestments in the Borrower's portfolio
of marketable securities in the ordinary course of business;
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(h) Loans by ▇▇▇▇▇ Finance Company or ▇▇▇▇▇ Sugar Corporation
in the ordinary course of business not to exceed $15,000,000 in the
aggregate outstanding at any time;
(i) investments made by the Borrower or any of its
Subsidiaries with the proceeds of any Recovery Reinvestment Deferred
Amount;
(j) advances, loans, extensions of credit existing on the
date hereof and listed on Schedule 7.8(j);
(k) investments by the Borrower or any of its Subsidiaries
constituting contributions of amounts the fair market value of which
at the time of the making thereof does not exceed, in the aggregate,
an amount equal to 5% of Consolidated Tangible Assets as reflected in
the financial statements most recently delivered pursuant to Section
6.1(a) or (b) prior to such time (with the fair market value of each
such investment being measured at the time made and without giving
effect to subsequent changes in value); provided that such investments
are in joint venture arrangements of the Borrower or any of its
Subsidiaries with entities that are raw material suppliers or that are
related to the primary business of the Borrower;
(l) investments made by the Borrower or any of its
Subsidiaries in ▇▇▇▇▇ Finance Company in an aggregate amount
outstanding at any one time not to exceed $3,000,000; and
(m) any other loans or investments not otherwise permitted
under this Section 7.8 having an aggregate amount at any time not in
excess of $10,000,000 (determined at any time as the aggregate initial
amount of such investment or loan less returns or repayments of such
investments at or prior to such time).
7.9 Limitation on Optional Payments and Modifications of Debt
Instruments, etc. (a) Make or offer to make any payment, prepayment,
repurchase or redemption of or otherwise defease or segregate funds with
respect to the Senior Subordinated Notes (other than scheduled interest
payments required to be made in cash), (b) amend, modify, waive or otherwise
change, or consent or agree to any material amendment, modification, waiver or
other change to, any of the terms of the Senior Subordinated Notes (other than
any such amendment, modification, waiver or other change which (i) would extend
the maturity or reduce the amount of any payment of principal thereof or which
would reduce the rate or extend the date for payment of interest thereon and
(ii) does not involve the payment of a consent fee), (c) designate any
Indebtedness as "Designated Senior Indebtedness" for the purposes of the Senior
Subordinated Note Indenture (other than the Indebtedness incurred under this
Agreement) or (d) amend any terms of any capitalization or organizational
documents (including in respect of Capital Stock) in any manner determined by
the Administrative Agent to be adverse to the Lenders without the prior written
consent of the Required Lenders; provided, however, that this Section 7.9 shall
not prohibit the Borrower or any of its Affiliates from acquiring, from time to
time, any of the Senior Notes which remain
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outstanding following consummation or expiration of the Debt Tender Offer in
accordance with the terms thereof and with the terms of the Senior Note
Indenture.
7.10 Limitation on Transactions with Affiliates. Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than the
Borrower or any Wholly Owned Subsidiary Guarantor) unless such transaction is
(a) not prohibited under this Agreement and (b) upon fair and reasonable terms
no less favorable to the Borrower or such Subsidiary, as the case may be, than
it would obtain in a comparable arm's length transaction with a Person which is
not an Affiliate. Notwithstanding the foregoing, the Tender Offer and the
Merger may be consummated.
7.11 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Borrower or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or such
Subsidiary, other than any arrangements otherwise expressly permitted
hereunder.
7.12 Limitation on Changes in Fiscal Periods. Permit the
fiscal year of the Borrower to end on a day other than September 30 or change
the Borrower's method of determining fiscal quarters, provided that the
Borrower may make one election after the Closing Date to change its fiscal year
end, if the Borrower enters into such amendments to this Agreement as the
Syndication Agent shall request to reflect such change, including modifications
to Section 7, such that the covenants affected by such change shall have the
same effect (or, in any case, be substantively no less favorable to the
Lenders, in the determination of the Syndication Agent) after giving effect
thereto as if such change were not made. The Lenders hereby authorize the
Syndication Agent and the Administrative Agent to enter into such amendments to
effect such modifications, if any, in accordance with the provisions of this
subsection.
7.13 Limitation on Negative Pledge Clauses. Enter into or
suffer to exist or become effective any agreement which prohibits or limits the
ability of the Borrower or any of its Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of its Property or revenues, whether now
owned or hereafter acquired, other than (a) this Agreement and the other Loan
Documents, (b) any agreements governing any purchase money Liens or Capital
Lease Obligations otherwise permitted hereby (in which case, any prohibition or
limitation shall only be effective against the assets financed thereby) and (c)
the Senior Subordinated Note Indenture.
7.14 Limitation on Restrictions on Subsidiary Distributions.
Enter into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary of the Borrower to (a) pay
dividends or make any other distributions in respect of any Capital Stock of
such Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any
other Subsidiary of the Borrower, (b) make loans or advances to the
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Borrower or any other Subsidiary of the Borrower or (c) transfer any of its
assets to the Borrower or any other Subsidiary of the Borrower, except for such
encumbrances or restrictions existing under or by reason of (i) any
restrictions existing under the Loan Documents, (ii) any restriction existing
under the Senior Subordinated Note Indenture and (iii) any restrictions with
respect to a Subsidiary imposed pursuant to an agreement which has been entered
into in connection with the Disposition of all or substantially all of the
Capital Stock or assets of such Subsidiary.
7.15 Limitation on Lines of Business. Enter into any
business, either directly or through any Subsidiary, except for (a) those
businesses in which the Borrower or any of its Subsidiaries are engaged on the
date of this Agreement and (b) businesses reasonably related thereto, the
revenues of which do not exceed 10% of the Borrower's consolidated gross
revenues.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan
or Reimbursement Obligation when due in accordance with the terms
hereof; or the Borrower shall fail to pay any interest on any Loan or
Reimbursement Obligation, or any other amount payable hereunder or
under any other Loan Document, within five Business Days after any
such interest or other amount becomes due in accordance with the terms
hereof; or
(b) Any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or which is contained
in any certificate, document or financial or other statement furnished
by it at any time under or in connection with this Agreement or any
such other Loan Document shall prove to have been inaccurate in any
material respect on or as of the date made or deemed made; or
(c) (i) Any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of
Section 6.4(a) (with respect to the Borrower only), Section 6.7(a),
Section 7, or Section 5 of the Guarantee and Collateral Agreement or
(ii) an "Event of Default" under and as defined in any Mortgage shall
have occurred and be continuing; or
(d) Any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through
(c) of this Section), and such default shall continue unremedied for a
period of 30 days after notice to the Borrower from the Administrative
Agent or the Required Lenders; or
(e) The Borrower or any of its Subsidiaries shall (i) default
in making any payment of any principal of any Indebtedness (including,
without limitation, any
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Guarantee Obligation, but excluding the Loans) on the scheduled or
original due date with respect thereto; or (ii) default in making any
payment of any interest on any such Indebtedness beyond the period of
grace, if any, provided in the instrument or agreement under which
such Indebtedness was created; or (iii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the
case of any such Indebtedness constituting a Guarantee Obligation) to
become payable; provided, that a default, event or condition described
in clause (i), (ii) or (iii) of this paragraph (e) shall not at any
time constitute an Event of Default under this Agreement unless, at
such time, one or more defaults, events or conditions of the type
described in clauses (i), (ii) and (iii) of this paragraph (e) shall
have occurred and be continuing with respect to Indebtedness the
outstanding principal amount of which exceeds in the aggregate
$10,000,000; or
(f) (i) The Borrower or any of its Subsidiaries (other than
▇▇▇▇▇ Finance Company) shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of
a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the
Borrower or any of its Subsidiaries (other than ▇▇▇▇▇ Finance Company)
shall make a general assignment for the benefit of its creditors; or
(ii) there shall be commenced against the Borrower or any of its
Subsidiaries (other than ▇▇▇▇▇ Finance Company) any case, proceeding
or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication
or appointment or (B) remains undismissed, undischarged or unbonded
for a period of 60 days; or (iii) there shall be commenced against the
Borrower or any of its Subsidiaries (other than ▇▇▇▇▇ Finance Company)
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order
for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof;
or (iv) the Borrower or any of its Subsidiaries (other than ▇▇▇▇▇
Finance Company) shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) the
Borrower or any of its Subsidiaries (other than ▇▇▇▇▇ Finance Company)
shall generally not, or shall be unable to, or shall admit in writing
its inability to, pay its debts as they become due; or
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(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan or any Lien in favor of
the PBGC or a Plan shall arise on the assets of the Borrower or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed,
or a trustee shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion
of the Required Lenders, likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the Borrower or
any Commonly Controlled Entity shall, or in the reasonable opinion of
the Required Lenders is likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries (other than ▇▇▇▇▇ Finance
Company) involving in the aggregate a liability (to the extent not
paid or fully covered by insurance as to which the relevant insurance
company has acknowledged coverage) of $10,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 30 days from the entry thereof;
or
(i) Any of the Security Documents shall cease, for any
reason, to be in full force and effect, or any Loan Party or any
Affiliate of any Loan Party shall so assert, or any Lien created by
any of the Security Documents shall cease to be enforceable and
substantially of the same effect and priority purported to be created
thereby; or
(j) The guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason, to be in full force
and effect or any Loan Party or any Affiliate of any Loan Party shall
so assert; or
(k) (i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), (A) shall become, or obtain rights
(whether by means or warrants, options or otherwise) to become, the
"beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the
Exchange Act), directly or indirectly, of more than 40% of the
outstanding common stock of the Borrower or (B) shall obtain the right
or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the
Borrower; (ii) the board of directors of the Borrower shall cease to
consist of a majority of Continuing Directors; or (iii) a Specified
Change of Control shall occur; or
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(l) The Senior Subordinated Notes or the guarantees thereof
shall cease, for any reason, to be validly subordinated to the
Obligations or the obligations of the Subsidiary Guarantors under the
Guarantee and Collateral Agreement, as the case may be, as provided in
the Senior Subordinated Note Indenture, or any Loan Party, any
Affiliate of any Loan Party, the trustee in respect of the Senior
Subordinated Notes or the holders of at least 25% in aggregate
principal amount of the Senior Subordinated Notes shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Majority Revolving Credit Facility Lenders,
the Administrative Agent may, or upon the request of the Majority Revolving
Credit Facility Lenders, the Administrative Agent shall, by notice to the
Borrower declare the Revolving Credit Commitments to be terminated forthwith,
whereupon the Revolving Credit Commitments shall immediately terminate; and
(ii) with the consent of the Required Lenders, the Administrative Agent may, or
upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the other Loan
Documents (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit
shall have presented the documents required thereunder) to be due and payable
forthwith, whereupon the same shall immediately become due and payable. With
respect to all Letters of Credit with respect to which presentment for honor
shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit. Amounts held in such
cash collateral account shall be applied by the Administrative Agent to the
payment of drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay other obligations of the Borrower
hereunder and under the other Loan Documents. After all such Letters of Credit
shall have expired or been fully drawn upon, all Reimbursement Obligations
shall have been satisfied and all other obligations of the Borrower hereunder
and under the other Loan Documents shall have been paid in full, the balance,
if any, in such cash collateral account shall be returned to the Borrower (or
such other Person as may be lawfully entitled thereto).
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates
and appoints the Agents as the agents of such Lender under this Agreement and
the other Loan Documents, and each such Lender irrevocably authorizes each
Agent, in such capacity, to take such action on
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its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to such Agent by the terms of this Agreement and the other Loan Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, no
Agent shall have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist
against any Agent.
9.2 Delegation of Duties. Each Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
9.3 Exculpatory Provisions. Neither any Agent, the Issuing
Lender nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Loan Document (except to the extent that any of the
foregoing are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from its or such Person's own gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
any Loan Party or any officer thereof contained in this Agreement, any other
Loan Document or any Bond Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agents under
or in connection with, this Agreement, any other Loan Document or any Bond
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement, any other Loan Document or any Bond Document
or for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. Neither the Agents nor the Issuing Lender 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, any other Loan Document or any Loan Document, or to inspect
the properties, books or records of any Loan Party. Without limiting the
generality of the foregoing, the Collateral Agent shall not be responsible to
any of the Agents or any of the Lenders for the existence, creation,
attachment, perfection or priority of any lien or security interest in the
Collateral or any part thereof or for the existence of any liens, security
interests or other encumbrances or charges thereon.
9.4 Reliance by Administrative Agent. Each Agent and the
Issuing Lender shall be entitled to rely, and shall be fully protected in
relying, upon any instrument, writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including, without limitation,
counsel to the Loan Parties), independent accountants and other experts
selected by the Administrative Agent. The Agents
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may deem and treat the payee of any Note as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall
have been filed with the Administrative Agent. Each Agent and the Issuing
Lender shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document (or in the case of the Issuing
Lender, any Bond Document) unless it shall first receive such advice or
concurrence of the Required Lenders (or, if so specified by this Agreement, all
Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Each Agent and the Issuing Lender shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents (or, in the case of the Issuing Lender, any Bond Document) in
accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all Lenders), and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans.
9.5 Notice of Default. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". The Issuing Lender shall
not be deemed to have knowledge or notice of the occurrence of any default or
event of default under any Bond Document, unless the Issuing Lender shall have
received written notice from the Borrower or any other party to a Bond
Document. In the event that the Administrative Agent or the Issuing Lender
receives such a notice, the Administrative Agent or the Issuing Lender, as
applicable, shall give notice thereof to the Lenders. The Administrative Agent
and the Collateral Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or,
if so specified by this Agreement, all Lenders); provided that unless and until
the Administrative Agent or the Collateral Agent, as the case may be, shall
have received such directions, the Administrative Agent and the Collateral
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as such
Agent shall deem advisable in the best interests of the Lenders. The Issuing
Lender shall take such action with respect to such default or event of default
under the Bond Documents as shall be required pursuant to Section 8 hereof;
provided that unless and until the Issuing Lender shall have received direction
under Section 8, the Issuing Lender may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such default
or event of default as it shall deem advisable and in the best interest of the
L/C Participants, except any action resulting in the acceleration or redemption
of any Bonds.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereinafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance upon any Agent or any other Lender,
and based on such documents and
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information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their affiliates and
made its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon any Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and
their affiliates. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder,
no Agent shall have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of any Loan
Party or any affiliate of a Loan Party which may come into the possession of
such Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify each
Agent (and the Revolving Credit Lenders agree to indemnify the Issuing Lender)
in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective aggregate Revolving Credit Percentages, Tranche A Term Loan
Percentages and Tranche B Term Loan Percentages (and in the case of the Issuing
Lender, ratably according to their respective Revolving Credit Percentages) in
effect on the date on which indemnification is sought under this Section 9.7
(or, if indemnification is sought after the date upon which the Commitments
shall have terminated and the Loans shall have been paid in full, ratably in
accordance with such Percentages immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Loans or the termination of any Bond Letter of
Credit) be imposed on, incurred by or asserted against such Agent or the
Issuing Lender, as applicable, in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements which are found by a final and nonappealable decision of a court
of competent jurisdiction to have resulted from such Agent's or the Issuing
Lender's, as the case may be, gross negligence or willful misconduct or, in the
case of the Issuing Lender, for the fees and expenses of counsel in connection
with the preparation, execution, delivery, administration or modification of
any Bond Document or any amendments thereto. The agreements in this Section
9.7 shall survive the payment of the Loans and all other amounts payable
hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Loan
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Party as though such Agent was not an Agent. With respect to its Loans made or
renewed by it and with respect to any Letter of Credit issued or participated
in by it, each Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise the same as though
it were not an Agent, and the terms "Lender" and "Lenders" shall include each
Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent
under this Agreement and the other Loan Documents, then the Required Lenders
shall appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or Section
8(f) with respect to the Borrower shall have occurred and be continuing) be
approved by the Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers
and duties of the Administrative Agent, and the term "Administrative Agent"
shall mean such successor agent effective upon such appointment and approval,
and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. If no successor agent has accepted
appointment as Administrative Agent by the date that 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 assume and 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. The Syndication Agent or the
Collateral Agent, as the case may be, may, at any time, by notice to the
Lenders and the Administrative Agent, resign as Syndication Agent or Collateral
Agent (as applicable), hereunder, whereupon the duties, rights, obligations and
responsibilities hereunder shall automatically be assumed by, and inure to the
benefit of, the Administrative Agent, without any further act by the
Syndication Agent, the Collateral Agent, the Administrative Agent or any
Lender; provided that in the case of a resignation by the Collateral Agent, the
Collateral Agent shall (i) assign and deliver to the Administrative Agent any
Collateral pledged to the Collateral Agent, for the benefit of the Agents and
the Lenders, (ii) execute and deliver to the Administrative Agent any
amendments to the Security Documents or such other documents as the Syndication
Agent deems necessary or advisable in order to continue the security interest
of the Lenders in the Collateral and (iii) take all other actions necessary or
advisable to continue the security interest of the Lenders in the Collateral
(including, without limitation, the execution and delivery of amendments to the
Uniform Commercial Code financing statements filed, registered or recorded in
order to create in favor of the Collateral Agent, for the benefit of the Agents
and the Lenders, the perfected, first priority Lien on the Collateral). After
any retiring Agent's resignation as Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement and the other Loan Documents.
9.10 Authorization to Release Liens. The Administrative
Agent is hereby irrevocably authorized by each of the Lenders to release any
Lien covering any Property of the Borrower or any of its Subsidiaries that is
the subject of a Disposition which is permitted by this Agreement or which has
been consented to in accordance with Section 10.1.
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9.11 The Arranger. The Arranger, in its capacity as such,
shall have no duties or responsibilities, and shall incur no liability, under
this Agreement and the other Loan Documents.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 10.1. The Required Lenders and each Loan Party party to the relevant
Loan Document may, or (with the written consent of the Required Lenders) the
Syndication Agent, the Administrative Agent and each Loan Party party to the
relevant Loan Document may, from time to time, (a) enter into written
amendments, supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Loan
Parties hereunder or thereunder or (b) waive, on such terms and conditions as
the Required Lenders, or the Agents, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification
shall (i) forgive the principal amount or extend the final scheduled date of
maturity of any Loan, extend the scheduled date of any amortization payment in
respect of any Term Loan, reduce the stated rate of any interest, fee or letter
of credit commission payable hereunder or extend the scheduled date of any
payment thereof, or increase the amount or extend the expiration date of any
Lender's Revolving Credit Commitment, in each case without the consent of each
Lender directly affected thereby; (ii) amend, modify or waive any provision of
this Section 10.1 or reduce any percentage specified in the definition of
Required Lenders, consent to the assignment or transfer by the Borrower of any
of its rights and obligations under this Agreement and the other Loan
Documents, release all or substantially all of the Collateral or release all or
substantially all of the Subsidiary Guarantors from their obligations under the
Guarantee and Collateral Agreement, in each case without the written consent of
all Lenders; (iii) amend, modify or waive any condition precedent to any
extension of credit under the Revolving Credit Facility set forth in Section
5.2 (including, without limitation, in connection with any waiver of an
existing Default or Event of Default) without the written consent of the
Majority Revolving Credit Facility Lenders; (iv) reduce the percentage
specified in the definition of Majority Facility Lenders without the written
consent of all Lenders under each affected Facility; (v) amend, modify or waive
any provision of Section 9 without the written consent of the Agents; (vi)
amend, modify or waive any provision of Section 2.6 or 2.7 without the written
consent of the Swing Line Lender; (vii) amend, modify or waive any provision of
Section 3 without the written consent of the Issuing Lender; or (viii) amend,
modify or waive any provision of Section 2.18(d) without the written consent of
the Majority Facility Lenders of the Tranche B Term Loans; provided, further,
notwithstanding the provisions set forth above, no Lender consent shall be
required in connection with the release
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of any Liens on Property sold by the Borrower or its Subsidiaries if such sale
is permitted pursuant to Section 7.5. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Loan Parties, the Lenders, the Administrative Agent and all
future holders of the Loans. In the case of any waiver, the Loan Parties, the
Lenders and the Administrative Agent shall be restored to their former position
and rights hereunder and under the other Loan Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice,
when received, addressed as follows in the case of the Borrower, the
Syndication Agent, the Collateral Agent and the Administrative Agent, and as
set forth in an administrative questionnaire delivered to the Administrative
Agent in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:
The Borrower: Imperial ▇▇▇▇▇ Corporation
One Imperial Square, Suite 200
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇-▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Syndication Agent: ▇▇▇▇▇▇ Commercial Paper Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Collateral Agent and ▇▇▇▇▇▇ Trust and Savings Bank
the Administrative Agent: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agribusiness Division
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon any Agent or the Lenders
shall not be effective until received.
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10.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of either Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
10.5 Payment of Expenses. The Borrower agrees (a) to pay or
reimburse the Agents for all their reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents (except for any costs or expenses specifically excluded in the
commitment letter executed by the Borrower and the Syndication Agent in respect
of the credit facilities provided for herein) and any other documents prepared
in connection herewith or therewith, and the consummation and administration of
the transactions contemplated hereby and thereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent, (b) to pay or reimburse each Lender and the Agents for
all its costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including, without limitation, the reasonable fees
and disbursements of counsel (including the allocated fees and expenses of
in-house counsel) to each Lender and of counsel to the Agents, (c) to pay,
indemnify, and hold each Lender and the Agents harmless from, any and all
recording and filing fees or any amendment, supplement or modification of, or
any waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender and the Agents and their respective officers, directors, trustees,
investment advisors, employees, affiliates, agents and controlling persons
(each, an "indemnitee") harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Loan Documents and any such other documents,
including, without limitation, any of the foregoing relating to the use of
proceeds of the Loans or the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Borrower any
of its Subsidiaries or any of the Properties (all the foregoing in this clause
(d), collectively, the "indemnified liabilities"), provided, that the Borrower
shall have no obligation hereunder to any indemnitee with respect to
indemnified liabilities to the extent such indemnified liabilities resulted
from the gross negligence or willful misconduct of such indemnitee. Without
limiting the foregoing, and to the extent permitted by applicable law, the
Borrower agrees not to assert and hereby waives, and shall cause each of its
Subsidiaries not to assert and to waive, all rights of contribution or any
other rights of recovery with respect to all
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claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws,
that any of them might have by statute or otherwise against any Indemnitee.
The agreements in this Section 10.5 shall survive repayment of the Loans and
all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Agents, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the
prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks,
financial institutions or other entities (each, a "Participant") participating
interests in any Loan owing to such Lender, any Commitment of such Lender or
any other interest of such Lender hereunder and under the other Loan Documents.
In the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other
Loan Documents, and the Borrower and the Agents shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. In no event
shall any Participant under any such participation have any right to approve
any amendment or waiver of any provision of any Loan Document, or any consent
to any departure by any Loan Party therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on, the
Loans or any fees payable hereunder, or postpone the date of the final maturity
of the Loans, in each case to the extent subject to such participation. The
Borrower agrees that if amounts outstanding under this Agreement and the Loans
are due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall, to
the maximum extent permitted by applicable law, be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to
have agreed to share with the Lenders the proceeds thereof as provided in
Section 10.7(a) as fully as if it were a Lender hereunder. The Borrower also
agrees that each Participant shall be entitled to the benefits of Sections
2.19, 2.20 and 2.21 with respect to its participation in the Commitments and
the Loans outstanding from time to time as if it was a Lender; provided that,
in the case of Section 2.20, such Participant shall have complied with the
requirements of said Section and provided, further, that no Participant shall
be entitled to receive any greater amount pursuant to any such Section than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
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(c) Any Lender (an "Assignor") may, in accordance with
applicable law, at any time and from time to time, subject to the consent of
the Syndication Agent (which shall not be unreasonably withheld), assign to any
Lender or any affiliate thereof or any Approved Fund or, with the consent of
the Borrower and the Agents (which, in each case, shall not be unreasonably
withheld or delayed) (provided that no such consent need be obtained for
assignments involving the Syndication Agent or its Affiliates), to an
additional bank, financial institution or other entity (an "Assignee") all or
any part of its rights and obligations under this Agreement pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit E, executed by
such Assignee, such Assignor, the Syndication Agent and the Administrative
Agent (and, where the consent of the Borrower is required pursuant to the
foregoing provisions, by the Borrower) and delivered to the Administrative
Agent for its acceptance and recording in the Register; provided that no such
assignment to an Assignee (other than any Lender or any affiliate thereof or an
Approved Fund) shall be in an aggregate principal amount of less than
$5,000,000 (other than in the case of an assignment of all of a Lender's
interests under this Agreement), unless otherwise agreed by the Borrower, the
Syndication Agent and the Administrative Agent. Any such assignment need not
be ratable as among the Facilities. Upon such execution, delivery, acceptance
and recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with a Commitment and/or Loans as set
forth therein, and (y) the Assignor thereunder shall, to the extent provided in
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of an
Assignor's rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto). Notwithstanding any provision of this
Section 10.6, the consent of the Borrower shall not be required for any
assignment which occurs at any time when any of the events described in Section
8(f) shall have occurred and be continuing. For purposes of this Section 10.6,
"Approved Fund" shall mean, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans which is
managed or advised by the same investment advisor as such Lender or by an
affiliate of such investment advisor.
(d) The Administrative Agent shall maintain at its address
referred to in Section 10.2 a copy of each Assignment and Acceptance delivered
to it and a register (the "Register") for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time and any Notes evidencing such
Loans. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders
shall treat each Person whose name is recorded in the Register as the owner of
the Loan and any Note evidencing such Loan recorded therein for all purposes of
this Agreement. Any assignment of any Loan whether or not evidenced by a Note
shall be effective only upon appropriate entries with respect thereto being
made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment
or transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Acceptance, and thereupon one or more new Notes in the same
aggregate principal amount shall be issued to the
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designated Assignee and the old Notes shall be returned by the Administrative
Agent to the Borrower marked "cancelled". The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time
to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender, an Assignee and the Syndication Agent (and, in the case
of an Assignee that is not then a Lender or an affiliate thereof or a Person
under common management with such Lender, by the Borrower, the Administrative
Agent and the Issuing Lender) together with payment to the Administrative Agent
of a registration and processing fee of $3,500 (except that no such
registration and processing fee shall be payable in connection with certain
assignments involving the Syndication Agent related to the primary syndication
hereof, and in the case of an assignment to an Assignee that is a Lender or an
affiliate thereof or an Approved Fund, such fee shall be reduced to $1,000; and
except that in the case of contemporaneous assignments by a Lender to more than
one fund managed by the same investment advisor (which funds are not then
Lenders hereunder, affiliates thereof or Approved Funds), only a single fee of
$3,500 shall be payable for all such contemporaneous assignments), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such
acceptance and recordation to the Lenders and the Borrower. On or prior to
such effective date, the Borrower, at its own expense, upon request, shall
execute and deliver to the Administrative Agent (in exchange for the Revolving
Credit Note and/or Term Notes, as the case may be, of the assigning Lender) a
new Revolving Credit Note and/or Term Notes, as the case may be, to the order
of such Assignee in an amount equal to the Revolving Credit Commitment and/or
applicable Term Loans, as the case may be, assumed or acquired by it pursuant
to such Assignment and Acceptance and, if the assigning Lender has retained a
Revolving Credit Commitment and/or Term Loans, as the case may be, upon
request, a new Revolving Credit Note and/or Term Notes, as the case may be, to
the order of the assigning Lender in an amount equal to the Revolving Credit
Commitment and/or applicable Term Loans, as the case may be, retained by it
hereunder. Such new Notes shall be dated the Closing Date and shall otherwise
be in the form of the Note replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 10.6 concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
10.7 Adjustments; Setoff. (a) Except to the extent that
this Agreement provides for payments to be allocated to the Lenders under a
particular Facility, if any Lender (a "Benefitted Lender") shall at any time
receive any payment of all or part of its Loans or the Reimbursement
Obligations owing to it, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by setoff, pursuant to
events or proceedings of the nature referred to in Section 8(f), or otherwise),
in a greater proportion than any such payment to or collateral received by any
other Lender, if any, in respect of such other Lender's Loans or the
Reimbursement Obligations owing to such other Lender, or interest thereon, such
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Benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Loan and/or
of the Reimbursement Obligations owing to each such other Lender, or shall
provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to setoff and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such setoff and application.
(c) Notwithstanding the foregoing, no Lender shall institute
or commence any proceeding to collect any amounts owed to it hereunder or shall
otherwise exercise any remedies (including setoff) with respect to the amounts
owed to it unless such Lender shall provide at least five Business Days' (or
such shorter period as may be consented to by the Collateral Agent) prior
written notice thereof to the Collateral Agent.
10.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan
Documents represent the entire agreement of the Borrower, the Administrative
Agent and the Lenders with respect to the subject matter hereof, and there are
no promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof not expressly set forth
or referred to herein or in the other Loan Documents.
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10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action
or proceeding relating to this Agreement and the other Loan Documents
to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate
courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in Section 10.2 or
at such other address of which the Administrative Agent shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this Section 10.12 any special, exemplary,
punitive or consequential damages.
10.13 Acknowledgements. The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
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(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
10.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.15 Confidentiality. Each of the Agents and each Lender
agrees to keep confidential all non-public information provided to it by any
Loan Party pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent any Agent or any
Lender from disclosing any such information (a) to the Administrative Agent,
any other Lender or any affiliate of any Lender, (b) to any Participant or
Assignee (each, a "Transferee") or prospective Transferee which agrees to
comply with the provisions of this Section 10.15, (c) to the employees,
directors, agents, attorneys, accountants and other professional advisors of
such Lender or its affiliates, (d) upon the request or demand of any
Governmental Authority having jurisdiction over the such Agent or such Lender,
(e) in response to any order of any court or other Governmental Authority or as
may otherwise be required pursuant to any Requirement of Law, (f) if requested
or required to do so in connection with any litigation or similar proceeding,
provided that such Agent will use commercially reasonable efforts to give
notice to the Borrower thereof, (g) which has been publicly disclosed other
than in breach of this Section 10.15, (h) to the National Association of
Insurance Commissioners or any similar organization or any nationally
recognized rating agency that requires access to information about a Lender's
investment portfolio in connection with ratings issued with respect to such
Lender, or (i) in connection with the exercise of any remedy hereunder or under
any other Loan Document.
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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.
IMPERIAL ▇▇▇▇▇ CORPORATION
By:
------------------------------------
Name:
Title:
104
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as
Administrative Agent, Collateral Agent,
Issuing Lender and as a Lender
By:
------------------------------------
Name:
Title:
105
▇▇▇▇▇▇ COMMERCIAL PAPER INC., as
Syndication Agent and as a
Lender
By:
------------------------------------
Name:
Title:
106
WACHOVIA BANK, N.A.
By:
------------------------------------
Name:
Title:
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
By:
------------------------------------
Name:
Title:
108
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND" NEW YORK BRANCH
By:
------------------------------------
Name:
Title:
109
▇▇▇▇▇ FARGO BANK (TEXAS), N.A.
By:
------------------------------------
Name:
Title:
110
CREDIT AGRICOLE INDOSUEZ
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
111
FBS AG CREDIT, INC.
By:
------------------------------------
Name:
Title:
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By:
------------------------------------
Name:
Title:
113
THE FROST NATIONAL BANK
By:
------------------------------------
Name:
Title:
114
ST. ▇▇▇▇ BANK FOR COOPERATIVES
By:
------------------------------------
Name:
Title:
115
ING HIGH INCOME PRINCIPAL
PRESENTATION FUND HOLDINGS, LDC
c/o ING CAPITAL ADVISORS, INC.
By:
------------------------------------
Name:
Title:
116
111
PRIME INCOME TRUST
By:
------------------------------------
Name:
Title:
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PRIME RATE TRUST
By:
------------------------------------
Name:
Title:
118
METROPOLITAN LIFE INSURANCE
COMPANY
By:
------------------------------------
Name:
Title:
119
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE
FUND
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P.,
as Investment Advisor
By:
------------------------------------
Name:
Title:
120
THE TRAVELERS INSURANCE COMPANY
By:
------------------------------------
Name:
Title:
121
PEOPLES SECURITY LIFE INSURANCE
COMPANY
By:
------------------------------------
Name:
Title:
122
GCB INVESTMENT PORTFOLIO
By:
------------------------------------
Name:
Title:
123
Annex A
PRICING GRID FOR REVOLVING CREDIT LOANS, SWING LINE LOANS,
TRANCHE A TERM LOANS AND COMMITMENT FEES
---------------------------------------------------------------------------------------------------------
Consolidated Total Applicable Margin Applicable Margin for Commitment Fee Rate
Leverage Ratio for Eurodollar Loans Base Rate Loans
---------------------------------------------------------------------------------------------------------
Greater than or equal 2.00% 1.00% 0.375%
to 4.00 to 1.00
---------------------------------------------------------------------------------------------------------
Less than 4.00 to 1.00 1.75% 0.75% 0.375%
but greater than or
equal to 3.50 to 1.00
---------------------------------------------------------------------------------------------------------
Less than 3.50 to 1.00 1.50% 0.50% 0.375%
but greater than or
equal to 3.00 to 1.00
---------------------------------------------------------------------------------------------------------
Less than 3.00 to 1.00 1.25% 0.25% 0.250%
---------------------------------------------------------------------------------------------------------
PRICING GRID FOR
TRANCHE B TERM LOANS
---------------------------------------------------------------------------------------------------------
Consolidated Total Leverage Applicable Margin Applicable Margin for Base
Ratio for Eurodollar Loans Rate Loans
---------------------------------------------------------------------------------------------------------
Greater than or equal to 3.00 2.00% 1.00%
to 1.00
---------------------------------------------------------------------------------------------------------
Less than 3.00 to 1.00 1.75% 0.75%
---------------------------------------------------------------------------------------------------------
Changes in the Applicable Margin with respect to Tranche A Term Loans, Tranche
B Term Loans, Revolving Credit Loans, Swing Line Loans or in the Commitment Fee
Rate resulting from changes in the Consolidated Total Leverage Ratio shall
become effective on the date (the "Adjustment Date") on which financial
statements are delivered to the Lenders pursuant to Section 6.1 (but in any
event not later than the 50th day after the end of each of the first three
quarterly periods of each fiscal year or the 100th day after the end of each
fiscal year, as the case may be) and shall remain in effect until the next
change to be effected pursuant to this paragraph. If any financial statements
referred to above are not delivered within the time periods specified above,
then, until such financial statements are delivered, the Consolidated Total
Leverage Ratio as at the end of the fiscal period that would have been covered
thereby shall for the purposes of this definition be deemed to be greater than
4.00 to 1.00. In addition,
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at all times while an Event of Default shall have occurred and be continuing,
the Consolidated Total Leverage Ratio shall for the purposes of this definition
be deemed to be greater than 4.00 to 1.00. Each determination of the
Consolidated Total Leverage Ratio pursuant to this definition shall be made
with respect to the period of four consecutive fiscal quarters of the Borrower
ending at the end of the period covered by the relevant financial statements.
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SCHEDULES 1.1A
COMMITMENTS: LENDING OFFICES AND ADDRESSES
Commitments
-----------
Name of Lender and Revolving Tranche A Tranche B
Information for Notices Credit Term Loan Term Loan
------ --------- ---------
126
SCHEDULE 1.1B
MORTGAGED PROPERTY
127
SCHEDULE 4.4
CONSENTS, AUTHORIZATIONS, FILINGS AND NOTICES
128
SCHEDULE 4.14
SUBSIDIARIES
129
SCHEDULE 4.18(a)
UCC FILING JURISDICTIONS
130
SCHEDULE 4.18(b)
MORTGAGE FILING JURISDICTIONS
131
SCHEDULE 7.2(e)
EXISTING INDEBTEDNESS
132
SCHEDULE 7.3(f)
EXISTING LIENS