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Exhibit (10)(iii)
364-DAY CREDIT AGREEMENT
Dated as of July 14, 1997
Among
▇▇▇▇▇▇, INC.
as Borrower,
▇▇▇▇▇▇ FOODS HOLDINGS CORPORATION
and
WISE HOLDINGS, INC.
as Affiliate Guarantors,
and
THE BANKS NAMED HEREIN
as Banks,
CITIBANK, N.A.
as Administrative Agent,
BANKERS TRUST COMPANY
THE CHASE MANHATTAN BANK
CITIBANK, N.A.
CREDIT SUISSE FIRST BOSTON
as Lead Managing Agents
and
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
CITICORP SECURITIES, INC.
CREDIT SUISSE FIRST BOSTON
as Arrangers
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T A B L E O F C O N T E N T S
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms............................................ 1
1.02. Computation of Time Periods...................................... 23
1.03. Accounting Terms................................................. 23
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. The Advances..................................................... 24
2.02. Making the Advances.............................................. 24
2.03. The Competitive Bid Advances..................................... 25
2.04. Repayment........................................................ 29
2.05. Reduction of the Commitments..................................... 29
2.06. Application of Certain Proceeds.................................. 30
2.07. Prepayments...................................................... 32
2.08. Interest......................................................... 33
2.09. Fees............................................................. 34
2.10. Conversion of Advances........................................... 34
2.11. Increased Costs, Etc............................................. 35
2.12. Payments and Computations........................................ 36
2.13. Taxes............................................................ 38
2.14. Sharing of Payments, Etc......................................... 40
2.15. Use of Proceeds.................................................. 41
2.16. Defaulting Lenders............................................... 41
2.17. Option to Replace Lenders........................................ 44
2.18. Extension of Revolver Termination Date........................... 44
2.19. Increase in the Aggregate Commitments............................ 46
ARTICLE III
CONDITIONS PRECEDENT
3.02. Conditions Precedent to Certain Borrowings....................... 50
3.03. Conditions Precedent to Each Competitive Bid Borrowing........... 50
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Obligated Parties.......... 51
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants............................................ 54
5.02. Negative Covenants............................................... 56
5.03. Reporting Requirements........................................... 62
5.04. Financial Covenants.............................................. 66
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default................................................ 67
ARTICLE VII
GUARANTY
7.02. Guaranty Absolute................................................ 71
7.03. Waivers.......................................................... 72
7.04. Subrogation...................................................... 72
7.05. Release and Termination.......................................... 73
ARTICLE VIII
THE AGENTS
8.01. Authorization and Action......................................... 74
8.02. Reliance, Etc.................................................... 74
8.03. Lead Managing Agents and Affiliates.............................. 75
8.04. Lender Credit Decision........................................... 76
8.05. Indemnification.................................................. 76
8.06. Successor Administrative Agent................................... 76
ARTICLE IX
MISCELLANEOUS
9.01. Amendments, Etc.................................................. 77
9.02. Notices, Etc..................................................... 78
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9.03. No Waiver; Remedies.............................................. 78
9.04. Costs and Expenses............................................... 78
9.05. Right of Set-Off................................................. 80
9.06. Binding Effect................................................... 81
9.07. Assignments and Participations................................... 81
9.08. Governing Law.................................................... 84
9.09. Execution in Counterparts........................................ 84
9.10. Confidentiality.................................................. 84
9.11. Redesign......................................................... 84
9.12. Waiver of Jury Trial............................................. 85
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364-DAY CREDIT AGREEMENT
DATED AS OF JULY 14, 1997
364-DAY CREDIT AGREEMENT dated as of July 14, 1997 among
▇▇▇▇▇▇, Inc., a New Jersey corporation (the "Borrower"), ▇▇▇▇▇▇ Foods Holdings
Corporation, a Delaware corporation ("Foods Holdings"), Wise Holdings, Inc., a
Delaware corporation ("Wise Holdings" and, together with Foods Holdings, the
"Affiliate Guarantors"), the banks (the "Banks") listed on the signature pages
hereof, Citibank, N.A. ("Citibank"), as administrative agent (together with any
successor appointed pursuant to Article VIII, the "Administrative Agent") for
the Lenders (as hereinafter defined), BT Securities Corporation ("BT
Securities"), Chase Securities Inc. ("Chase Securities"), Citicorp Securities,
Inc. and Credit Suisse First Boston ("Credit Suisse First Boston"), as arrangers
(the "Arrangers"), BT Securities and Chase Securities, as co-syndication agents,
and Credit Suisse First Boston, as documentation agent.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Acquired Entity" means any Person, business unit or assets of
any Person invested in or acquired by any Affiliate Guarantor, the
Borrower or any of their respective Subsidiaries.
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with
Citibank at its office at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. 3685 2248, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇.
"Advance" means a Working Capital Advance or a Competitive Bid
Advance.
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"Affiliate" means, as to any Person (other than a Subsidiary),
any other Person that, directly or indirectly, controls, is controlled
by or is under common control with such Person or is a director or
officer of such Person. For purposes of this definition, the term
"control" (including the terms "controlling," "controlled by" and
"under common control with") of a Person means the possession, direct
or indirect, of the power to vote 10% or more of the Voting Stock of
such Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock,
by contract or otherwise.
"Affiliate Assumption Agreement" means an agreement
substantially in the form of Exhibit E hereto.
"Affiliate Guarantors" means each of Foods Holdings, Wise
Holdings and, after any transfer of the Dairy Business to an Affiliate
that executes an Affiliate Assumption Agreement, such Affiliate, in
each case until it is released from its guarantee obligations under
Article VII in accordance with the provisions of Section 7.05.
"Affiliate Notes" means the senior notes issued by any
Affiliate Guarantor or any of its Subsidiaries to the Borrower as
consideration for the transfer of certain assets.
"Agents" means, collectively, the Administrative Agent, the
Lead Managing Agents and the Arrangers.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the
Administrative Agent as its Applicable Lending Office with respect to
such Competitive Bid Advance.
"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Performance Level in effect on
such date as set forth below:
========================================================
Applicable Margin for
Performance Margin for Eurodollar
========================================================
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========================================================
Base Rate Rate
Level Advances Advances
========================================================
Level 1 0% .25%
--------------------------------------------------------
▇▇▇▇▇ ▇ 0% .375%
--------------------------------------------------------
▇▇▇▇▇ ▇ 0% .50%
--------------------------------------------------------
▇▇▇▇▇ ▇ 0% .60%
--------------------------------------------------------
▇▇▇▇▇ ▇ 0% .875%
--------------------------------------------------------
▇▇▇▇▇ ▇ .125% 1.125%
--------------------------------------------------------
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Performance Level in effect on
such date as set forth below:
------------------------------------
Applicable
Performance Level Percentage
------------------------------------
Level 1 .10%
------------------------------------
▇▇▇▇▇ ▇ .10%
------------------------------------
▇▇▇▇▇ ▇ .10%
------------------------------------
▇▇▇▇▇ ▇ .10%
------------------------------------
▇▇▇▇▇ ▇ 12.5%
------------------------------------
Level 6 12.5%
------------------------------------
"Arrangers" has the meaning specified in the recital of
parties to this Agreement.
"Asset Proceeds" means the aggregate value received in
connection with the sale of assets or the sale of options to acquire
assets of the Affiliate Guarantors, the Borrower and any of their
respective Subsidiaries (other than Excluded Asset Sales) after
deducting therefrom only (a) the costs of sale including reasonable
brokerage commissions, underwriting fees and discounts, legal fees,
finder's fees, severance, legacy and similar costs and other similar
fees and commissions, (b) the amount of taxes paid or estimated to be
payable during the then current or next fiscal year in connection with
or as a result of such transaction and reasonable reserves associated
therewith (including such amounts paid or payable by direct or indirect
partners,
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members or other holders of direct or indirect equity or other
ownership interests in the assets or options subject to such sale), (c)
the amount of any Indebtedness related to such asset that, by the terms
of such transaction, is required to be repaid upon such disposition and
(d) any such other reasonable exit costs related to such transaction,
in each case to the extent, but only to the extent, that the amounts so
deducted are properly attributable to such transaction or to the asset
that is the subject thereof.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 9.07 and in
substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section
2.19(d).
"Assumption Agreement" has the meaning specified in Section
2.18(c).
"Attributable Share" means (a) with respect to any Person of
which an Obligated Party directly or indirectly owns or controls up to
50% of the equity interests, 0%, (b) with respect to any Person of
which an Obligated Party directly or indirectly owns or control more
than 50% but less than 90% of the equity interests, such percentage
equity interest directly or indirectly owned or controlled and (c) with
respect to any Person of which an Obligated Party directly or
indirectly owns or controls 90% or more of the equity interests, 100%.
"Bank" has the meaning specified in the recital of parties to
this Agreement.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%)
of (i) 1/2 of 1% per annum, plus
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(ii) the rate obtained by dividing (A) the latest three-week
moving average of secondary market morning offering rates in
the United States for three-month certificates of deposit of
major United States money market banks, such three-week moving
average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a
Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank on
the basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New
York or, if such publication shall be suspended or terminated,
on the basis of quotations for such rates received by Citibank
from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage
equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of
Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but
not limited to, any emergency, supplemental or other marginal
reserve requirement) for Citibank with respect to liabilities
consisting of or including (among other liabilities)
three-month U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such three-week
period of the annual assessment rates reasonably estimated by
Citibank for determining the then current annual assessment
payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar
deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.08(a)(i).
"▇▇▇▇▇▇ Holdings" means ▇▇▇▇▇▇ Holdings, Inc., a Delaware
corporation.
"▇▇▇▇▇▇ Holdings Notes" means the senior notes originally
issued by ▇▇▇▇▇▇ Holdings on September 29, 1995 in the original
aggregate principal amount of $614,368,775 in the form of Exhibit G
hereto.
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"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrowing" means a Competitive Bid Borrowing or a Working
Capital Borrowing.
"BT" means Bankers Trust Company.
"BT Securities" has the meaning specified in the recital of
parties to this Agreement.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings
are carried on in the London interbank eurodollar market.
"Capital Expenditures" means for any period, the aggregate of
all expenditures (whether paid in cash or accrued as liabilities and
including in all events all amounts expended or capitalized under
Capitalized Leases but excluding any amount representing capitalized
interest) by the Affiliate Guarantors, the Borrower and their
respective Subsidiaries during such period that, in conformity with
GAAP, are or are required to be included as additions during such
period to property, plant or equipment reflected in the Combined
balance sheet of the Affiliate Guarantors, the Borrower and their
respective Subsidiaries, provided that Capital Expenditures shall in
any event exclude (a) expenditures made in connection with the
replacement, substitution or restoration of assets (i) to the extent
financed from insurance proceeds paid on account of the loss of or
damage to the assets being replaced or restored or (ii) with awards of
compensation arising from the taking by eminent domain or condemnation
of the assets being replaced, (b) the purchase price of equipment that
is purchased simultaneously with the trade-in of existing equipment to
the extent that the gross amount of such purchase price is reduced by
the credit granted by the seller of such equipment for the equipment
being traded in at such time and (c) the purchase of plant, property
and equipment made within 270 days of the sale of a similar asset.
"Capitalized Leases" has the meaning specified in clause (e)
of the definition of Debt.
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"Cash Equivalents" means (i) securities issued or
unconditionally guaranteed by the United States Government or any
agency or instrumentality thereof, in each case having maturities of
not more than twelve months from the date of acquisition thereof; (ii)
securities issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality
thereof having maturities of not more than twelve months from the date
of acquisition thereof and, at the time of acquisition, having the
highest rating generally obtainable from either S&P or ▇▇▇▇▇'▇ (or, if
at any time neither S&P nor ▇▇▇▇▇'▇ shall be rating such obligations,
then from another nationally recognized rating service); (iii)
commercial paper issued by any Lender or any bank holding company
owning any Lender; (iv) commercial paper maturing no more than twelve
months after the date of creation thereof and, at the time of
acquisition, having a rating of at least A-1 or P-1 from either S&P or
▇▇▇▇▇'▇ (or, if at any time neither S&P nor ▇▇▇▇▇'▇ shall be rating
such obligations, then an equivalent rating from another nationally
recognized rating service); (v) domestic and eurodollar certificates of
deposit or bankers' acceptances maturing no more than one year after
the date of acquisition thereof issued by any Lender or any other bank
having combined capital and surplus of not less than $250,000,000 in
the case of domestic banks and $100,000,000 (or the dollar equivalent
thereof) in the foreign banks; (vi) repurchase agreements with a term
of not more than seven days for underlying securities of the type
described in clauses (i), (ii) and (v) above entered into with any bank
meeting the qualifications specified in clause (v) above or securities
dealers of recognized national standing; and (vii) other customarily
utilized high quality instruments in countries where the Borrower's or
any Affiliate Guarantor's foreign Subsidiaries are located.
"Chase" means The Chase Manhattan Bank.
"Chase Securities" has the meaning specified in the recital of
parties to this Agreement.
"Citibank" has the meaning specified in the recital of parties
to this Agreement.
"Combined" refers to the combination of accounts in accordance
with GAAP.
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"Commitment" means, with respect to any Lender at any time,
the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Commitment" or, if such Lender has become a Lender
hereunder pursuant to an Assumption Agreement, the amount set forth as
the Commitment of such Lender in such Assumption Agreement or, if such
Lender has entered into one or more Assignment and Acceptances, the
amount set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 9.07(c) as such Lender's
"Commitment," as such amount may be reduced pursuant to Sections 2.05
and 2.06.
"Commitment Date" has the meaning specified in Section
2.19(b).
"Commitment Increase" has the meaning specified in Section
2.19(a).
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
auction bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the auction bidding procedure
described in Section 2.03.
"Competitive Bid Note" means the promissory note of the
Borrower payable to the order of the Administrative Agent for the
benefit of each Lender making a Competitive Bid Advance, in
substantially the form of Exhibit A-3 hereto, evidencing the
indebtedness of the Borrower to the Lenders resulting from Competitive
Bid Advances made by the Lenders.
"Competitive Bid Register" has the meaning specified in
Section 2.03(a)(vi).
"Confidential Information" means information that the Borrower
or any Affiliate Guarantor furnishes to any Agent or any Lender in a
writing designated as confidential, but does not include any such
information that is or becomes generally available to the public or
that is or becomes
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available to such Agent or such Lender from a source other than the
Borrower or any Affiliate Guarantor.
"Consenting Lender" has the meaning specified in Section
2.18(c).
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Conversion," "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.10 or 2.11.
"Credit Suisse First Boston" has the meaning specified in the
recital of parties to this Agreement.
"Dairy Business" means the Dairy business of the Borrower as
reflected in the total adjusted balance sheet and statements of income
and cash flows of Meadow Gold Dairies West as of December 31, 1996,
with such changes as are related to the ordinary course of the
Borrower's Dairy business and including any additions to such business
permitted hereunder.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables and accrued expenses arising in the ordinary
course of business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
obligations of such Person created or arising under any conditional
sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations
of such Person as lessee under leases that have been, in accordance
with GAAP, recorded as capital leases ("Capitalized Leases") and (f)
all Debt referred to in clauses (a) through (e) above secured by any
Lien on property owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt, but only to the
extent that, in accordance with GAAP, such Debt would be reflected on
the financial statements of such Person.
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"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender at any
time, the amount of any Advance required to be made by such Lender to
the Borrower pursuant to Section 2.01 at or prior to such time which
has not been so made as of such time; provided, however, any Advance
made by the Administrative Agent for the account of such Lender
pursuant to Section 2.02(d) shall not be considered a Defaulted Advance
even if, at such time, such Lender shall not have reimbursed the
Administrative Agent therefor as provided in Section 2.02(d). In the
event that a portion of a Defaulted Advance shall be deemed made
pursuant to Section 2.16(a), the remaining portion of such Defaulted
Advance shall be considered a Defaulted Advance originally required to
be made pursuant to Section 2.01 on the same date as the Defaulted
Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender at any
time, any amount required to be paid by such Lender to the
Administrative Agent or any other Lender hereunder or under any other
Loan Document at or prior to such time which has not been so paid as of
such time, including, without limitation, any amount required to be
paid by such Lender to (a) the Administrative Agent pursuant to Section
2.02(d) to reimburse the Administrative Agent for the amount of any
Advance made by the Administrative Agent for the account of such
Lender, (b) any other Lender pursuant to Section 2.14 to purchase any
participation in Advances owing to such other Lender and (c) the
Administrative Agent pursuant to Section 8.05 to reimburse the
Administrative Agent for such Lender's ratable share of any amount
required to be paid by the Lenders to the Administrative Agent as
provided therein. In the event that a portion of a Defaulted Amount
shall be deemed paid pursuant to Section 2.16(b), the remaining portion
of such Defaulted Amount shall be considered a Defaulted Amount
originally required to be made hereunder or under any other Loan
Document on the same date as the Defaulted Amount so deemed paid in
part.
"Defaulting Lender" means, at any time, any Lender that, at
such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take or be the subject of any action or proceeding of a type
described in Section 6.01(f).
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"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and Acceptance, as the case may be, pursuant to which
it became a Lender, or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Administrative
Agent.
"EBITDA" means, for any period, net income (or net loss) plus
the sum, without duplication, of (a) Net Interest Expense, (b) income
tax expense, (c) depreciation expense, (d) amortization expense, (e)
extraordinary or unusual losses included in net income (net of taxes to
the extent not already deducted in determining such losses and net of
extraordinary or unusual gains included in net income) including,
without limitation, cumulative effects of accounting changes,
discontinued operations, restructuring charges and non-cash charges,
(f) amortization of deferred financing fees and debt discount, (g)
other non-cash charges, (h) gains or losses on asset sales (including
sales of accounts receivable), (i) severance and similar expenses, (j)
dividends accrued on securities other than common stock, in each case
determined in accordance with GAAP for such period and (k) any
deduction from such net income for minority interests held by
management for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means any of (i) a commercial bank
organized under the laws of the United States, or any State thereof,
and having a combined capital and surplus of at least $250,000,000;
(ii) a savings and loan association or savings bank organized under the
laws of the United States, or any State thereof, and having a combined
capital and surplus of at least $250,000,000; (iii) a commercial bank
organized under the laws of any other country that is a member of the
OECD or has concluded special lending arrangements with the
International Monetary Fund associated with its General Arrangements to
Borrow, or a political subdivision of any such country, and having a
combined capital and surplus of at least $250,000,000, so long as such
bank is acting through a branch or agency located in the United States
or in the country in which it is organized or another country that is
described in this clause (iii); (iv) the central bank of any country
that is a member of the
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OECD; and (v) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or other
entity) that is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and having a
combined capital and surplus of at least $100,000,000, in each case as
approved by the Arrangers and the Borrower, such approval not to be
unreasonably withheld or delayed; provided, however, that an Affiliate
or Subsidiary of the Borrower shall not qualify as an Eligible Assignee
under this definition.
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of non-compliance or violation, investigations or
proceedings relating in any way to any Environmental Law (hereafter
"Claims") or any permit issued under any such law, including without
limitation (a) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law
and (b) any and all Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from
alleged injury or threat or injury to health, safety or the
environment.
"Environmental Law" means any federal, state, provincial or
local statute, law, rule, regulation, ordinance, code, policy or rule
of common law now or hereafter in effect and in each case as amended,
and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment,
relating to the environment, health, safety or Hazardous Materials.
"Equity Proceeds" means gross proceeds received by any
Affiliate Guarantor, the Borrower or any of their respective
Subsidiaries from (a) the sale or issuance of any equity security of
such Affiliate Guarantor, the Borrower or such Subsidiary whether by
means of any public offering or private placement or (b) cash capital
contributions to the Borrower or such Affiliate Guarantor from time to
time.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
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"ERISA Affiliate" means each person (as defined in Section
3(9) of ERISA) which together with the Borrower, any Affiliate
Guarantor or any Subsidiary of the Borrower or any Affiliate Guarantor
would be deemed to be a "single employer" within the meaning of Section
414 (b), (c), (m) or (o) of the Internal Revenue Code.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and Acceptance, as the case may be, pursuant to which
it became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may
from time to time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M. (London Time)
two Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurodollar Rate
Advance comprising part of such Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. The Eurodollar Rate for any Interest Period
for each Eurodollar Rate Advance comprising part of the same Borrowing
shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative Agent
from the Reference Banks two Business Days before the first day of such
Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.08(a)(ii).
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"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage if and to the extent actually applicable
two Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the reserve
requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for each Lender with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on Eurodollar
Rate Advances is determined) having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Asset Sales" means (i) sales of inventory or other
assets (including, without limitation, worn out or obsolete equipment)
in the ordinary course of business, (ii) sales of accounts receivable
pursuant to Section 5.02(d) and (iii) sales of plant, property and
equipment to the extent that the proceeds thereof are used to purchase
a similar asset within 270 days of such sale.
"Existing Credit Agreement" means the Credit Agreement dated
as of December 15, 1994, Amended and Restated as of May 7, 1996 among
the Borrower, Foods Holdings, Wise Holdings, the banks named therein,
Citibank, as administrative agent, BT Securities, Chase Securities,
Citicorp Securities and Credit Suisse, as arrangers, BT Securities and
Chase Securities, as co-syndication agents, and Credit Suisse, as
issuing bank and documentation agent, as amended prior to the date
hereof.
"Existing Indebtedness" means Indebtedness of the Borrower and
its Subsidiaries outstanding on the date of the Existing Credit
Agreement.
"Extension Date" has the meaning specified in Section 2.18(b).
"Facility" means, at any time, the aggregate amount of the
Lenders' Commitments at such time.
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"Fair Market Value" means, (a) with respect to any asset or
Option sold to any Person that is an Affiliate of any Obligated Party
for consideration of $10,000,000 or more, the fair market value of such
asset or Option as determined by the Board of Directors of the Borrower
and (b) with respect to any other asset sold for consideration of
$10,000,000 or more or Option, the value that the Board of Directors of
the Person owning such asset or the stock or assets subject to such
Option determines to be the fair market value of such asset or Option;
provided, in each case, that (i) the consideration so determined to
equal such fair market value may include notes or other evidence of
indebtedness and (ii) the fair market value of Options with respect to
the issuance of Options on assets to be held by ▇▇▇▇▇▇ Foods Holdings
Corporation and its Subsidiaries will be represented by ▇▇▇▇▇▇ Holdings
Notes in an aggregate principal amount of up to $95,000,000, unless,
subject to Section 9.11, the Borrower shall have obtained an appraisal
of the fair market value of such Option from a nationally recognized
investment banker selected by the Borrower.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Five-Year Credit Agreement" means the Credit Agreement dated
as of December 15, 1994, Amended and Restated as of July 14, 1997 among
the Borrower, Foods Holdings, Wise Holdings, the banks named therein,
Citibank, as administrative agent and swing line bank, BT Securities,
Chase Securities, Citicorp Securities and Credit Suisse First Boston,
as arrangers, BT Securities and Chase Securities, as co-syndication
agents, and Credit Suisse First Boston, as issuing bank and
documentation agent, as amended, supplemented or otherwise modified
from time to time.
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"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Foods Business" means the business of Foods Holdings and its
Subsidiaries.
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in Section
7.01.
"Hazardous Materials" means (a) petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could
become friable, urea formaldehyde foam insulation, transformers or
other equipment that contained electric fluid containing levels of
polychlorinated biphenyls and radon gas, (b) any chemicals, materials
or substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely
hazardous wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants," "contaminants" or "pollutants," or words of similar
import, under any applicable Environmental Law and (c) any other
chemical, material or substance, exposure to which is prohibited,
limited or regulated by any governmental authority.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Increase Date" has the meaning specified in Section 2.19(b).
"Increasing Lender" has the meaning specified in Section
2.19(a).
"Indebtedness" of any Person means, without duplication, (a)
all Debt of such Person, (b) all obligations, contingent or otherwise,
of such Person under acceptance, letter of credit or similar
facilities, (c) all obligations of such Person in respect of Hedge
Agreements and (d) all Indebtedness of others referred to in clauses
(a) through (c) above guaranteed directly or indirectly in any manner
by such Person, or in effect guaranteed directly or indirectly by such
Person through an
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agreement (i) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness, (ii) to
purchase, sell or lease (as lessee or lessor) property, or to purchase
or sell services, primarily for the purpose of enabling the debtor to
make payment of such Indebtedness or to assure the holder of such
Indebtedness against loss, (iii) to supply funds to or in any other
manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received
or such services are rendered) or (iv) otherwise to assure a creditor
against loss; provided, however, that amount so guaranteed shall not
include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any such guarantee
obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
guarantee obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming
such Person is required to perform thereunder) as determined by such
Person in good faith.
"Indemnified Party" has the meaning specified in Section
9.04(b).
"Information Memorandum" means the information memorandum
dated November 16, 1994 used by the Arrangers in connection with the
syndication of the Commitments.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three, six or, to the extent available in the reasonable
judgment of the Administrative Agent, nine or twelve months, as the
Borrower may, upon notice received by the Administrative Agent not
later than 11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided,
however, that:
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(a) the Borrower may not select any Interest Period
that ends after scheduled Revolver Termination Date then in
effect or, if the Advances have been converted to a term loan
pursuant to Section 2.04 prior to the time of such selection,
that ends after the Maturity Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Investment Grade Rating" means the Borrower's long term
senior unsecured public debt is rated at least BBB- by S&P or Baa3 by
Moody's.
"KKR" has the meaning specified in Section 5.01(h).
"Lead Managing Agents" means BT, Chase, Citibank and Credit
Suisse First Boston.
"Lenders" means the Banks listed on the signature pages
hereof, each Assuming Lender that shall become a party hereto pursuant
to Section 2.18 or Section 2.19 and each
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Eligible Assignee that shall become a party hereto pursuant to Section
9.07.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor.
"Loan Documents" means this Agreement and the Notes, as the
same may be amended, supplemented or otherwise modified from time to
time.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any change in the business,
condition (financial or otherwise), operations, performance or
properties of the Affiliate Guarantors, the Borrower and their
respective Subsidiaries taken as a whole that would materially
adversely affect the ability of the Borrower or any Affiliate Guarantor
to perform its obligations under this Agreement and the other Loan
Documents to which it is a party (taken as a whole).
"Material Adverse Effect" means a circumstance or condition
affecting the business, condition (financial or otherwise), operations,
performance or properties of the Affiliate Guarantors, the Borrower and
their respective Subsidiaries taken as a whole which would materially
adversely affect (a) the ability of the Borrower and the Affiliate
Guarantors, taken as a whole, to perform their obligations under this
Agreement, the Notes and the other Loan Documents to which any of them
is a party (taken as a whole) or (b) the rights and remedies of the
Administrative Agent or any Lender under this Agreement and the other
Loan Documents (taken as a whole).
"Material Subsidiary" means each Subsidiary of the Borrower or
any Affiliate Guarantor now existing or hereafter acquired or formed by
the Borrower or any Affiliate Guarantor which (x) for the most recent
fiscal year of the Borrower and the Affiliate Guarantors, accounted for
more than 3% of the Combined revenues of the Borrower and the Affiliate
Guarantors, taken as a whole, or (y) as at
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the end of such fiscal year, was the owner of more than 4% of the
Combined assets of the Borrower and the Affiliate Guarantors, taken as
a whole, in each case as shown on the Combined financial statements of
the Affiliate Guarantors, the Borrower and their respective
Subsidiaries for such fiscal year.
"Maturity Date" means the earlier of (a) July 13, 2002 and (b)
the date of termination in whole of the aggregate Commitments pursuant
to Section 2.05 or 6.01.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any
successor by merger or consolidation to its business.
"Net Interest Expense" means, for any fiscal period of the
Borrower, the aggregate of (a) interest expense on all Debt of the
Affiliate Guarantors, the Borrower and their respective Subsidiaries,
net of interest income, in accordance with GAAP (excluding, in any
event, interest expense, if any, on overdue tax assessments and
amortization of financing fees and debt discount) and (b) dividends
required to be paid on Preferred Stock permitted by Section
5.02(f)(ii).
"Non-Consenting Lender" has the meaning specified in Section
2.18(b).
"Note" means the Competitive Bid Note or a Working Capital
Note.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Obligated Parties" means the Borrower and, until it is
released from its guarantee obligations under Article VII in accordance
with the provisions of Section 7.05, each Affiliate Guarantor.
"OECD" means the Organization for Economic Cooperation and
Development.
"Option Exercise Proceeds" means the aggregate value received
in connection with the exercise of Options.
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"Options" means the options acquired by Persons other than
officers, directors and employees of the Affiliate Guarantors, the
Borrower and their respective Subsidiaries to acquire stock or certain
assets of the Affiliate Guarantors, the Borrower or their respective
Subsidiaries.
"Other Taxes" has the meaning specified in Section 2.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereof.
"Performance Level" means, as of any date of determination,
the numerically lowest level set forth below as then in effect, as
determined in accordance with the following provision of this
definition:
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ Ratio is less than 2.00:1.00;
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ Ratio is 2.00:1.00 or greater but
less than 2.50:1.00;
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ Ratio is 2.50:1.00 or greater but
less than 3.00:1.00;
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ Ratio is 3.00:1.00 or greater but
less than 3.50:1.00;
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ Ratio is 3:50:1.00 or greater but
less than 4:00:1.00;
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇ Ratio is 4:00:1.00 or greater;
provided, for purposes of this definition, the Performance Level shall
be determined as at the end of each of the first three fiscal quarters
of the Borrower and as of the end of the fiscal year of the Borrower,
based on the relevant financial statements delivered pursuant to
Section 5.03; changes in the Performance Level shall become effective
on the date such financial statements are delivered to the Lenders and
shall remain in effect until the next change to be effected pursuant to
this definition.
"Permitted Liens" means (a) Liens for taxes, assessments or
governmental charges or claims not yet due or
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which are being contested in good faith and by appropriate proceedings
for which appropriate reserves have been established in accordance with
GAAP; (b) Liens in respect of property or assets of any Affiliate
Guarantor, the Borrower or any of their respective Subsidiaries imposed
by law which are incurred in the ordinary course of business, such as
carriers', warehousemen's and mechanics' Liens and other similar Liens
arising in the ordinary course of business, and which do not
individually or in the aggregate have a Material Adverse Effect; (c)
Liens on assets of any Affiliate Guarantor, the Borrower or any of
their respective Subsidiaries existing on the date hereof securing
Indebtedness in an aggregate principal amount not to exceed $5,000,000
or arising pursuant to any of the Loan Documents; (d) Liens arising
from judgments or decrees in circumstances not constituting an Event of
Default under Section 6.01(g); (e) Liens incurred or deposits made in
connection with workers' compensation, unemployment insurance and other
types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of business; (f)
leases or subleases granted to others not interfering in any material
respect with the business of the Affiliate Guarantors, the Borrower and
their respective Subsidiaries taken as a whole; (g) ground leases in
respect of real property on which facilities owned or leased by any
Affiliate Guarantor, the Borrower or any of their respective
Subsidiaries are located; (h) easements, rights-of-way, restrictions,
minor defects or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the business
of the Affiliate Guarantors, the Borrower and their respective
Subsidiaries taken as a whole; (i) any interest or title of a lessor or
secured by a lessor's interest under any lease permitted by this
Agreement; (j) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; (k) Liens on goods the
purchase price of which is financed by a documentary letter of credit
issued for the account of any Affiliate Guarantor, the Borrower or any
of their respective Subsidiaries where such Lien secures the
obligations of such Affiliate Guarantor, the Borrower or such
Subsidiaries in respect of such letter of credit to the extent
permitted under Section 5.02(b); (l) Liens on assets permitted to be
acquired hereunder; provided that such Liens were existing at the time
of such acquisition and were not
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created in anticipation thereof; and (m) Liens granted in connection
with any foreign contract option, futures contract or similar agreement
designed to protect any Affiliate Guarantor, the Borrower or any of
their respective Subsidiaries from fluctuations in the price of
commodities, provided that such Liens attach solely to the commodities
which are the subject of such options, contracts or agreements.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"Plan" means any multiemployer or single-employer plan as
defined in Section 4001 of ERISA and which is covered by Title IV of
ERISA, which is maintained or contributed to (or to which there is an
obligation to contribute), by any Affiliate Guarantor, the Borrower,
any of their respective Subsidiaries or any ERISA Affiliate.
"Preferred Stock" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a
preference or priority over any other capital stock issued by such
corporation upon any distribution of such corporation's assets, whether
by dividend or upon liquidation.
"Pro Forma EBITDA" means, for any period, (a) the sum of (i)
EBITDA, (ii) from and after the making of any investment or acquisition
in or of an Acquired Entity during such period, the Obligated Parties'
Attributable Share of the EBITDA of each Acquired Entity so invested in
or acquired for such period (including the portion thereof accruing
prior to the date of such acquisition or investment and determined as
of the last day of such period) and (iii) an amount equal to 50% of the
increase or decrease in EBITDA of such Acquired Entity that the
Borrower in good faith projects will occur as a result of reasonably
identifiable and supportable net cost savings or additional net costs
that are projected to be realizable during such period by combining the
operations of such Acquired Entity with the operations of the Borrower,
an Affiliate Guarantor or any of their respective Subsidiaries;
provided that, so long as such net cost savings or additional net costs
are projected to be realizable at any time during such period it
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shall be assumed, for purposes of projecting such pro forma increase or
decrease in EBITDA of such Acquired Entity, that such net cost savings
or additional net costs will be realizable during the entire such
period; provided, further that any such pro forma increase or decrease
in EBITDA of such Acquired Entity shall be without duplication of any
net cost savings or additional net costs actually realized during such
period and already included in clause (ii) above; minus (b) from and
after the disposition outside of the ordinary course of business of any
assets constituting a business unit or any Subsidiary, (i) the
proportion of the EBITDA of such assets or Subsidiary so disposed of
for cash consideration and (ii) with respect to any such period of
determination ended on or after the last day of the next full fiscal
quarter following the date of such disposition, the proportion of the
EBITDA of such assets or Subsidiary so disposed of for consideration
other than cash. For purposes of the foregoing, clauses (a)(ii) and (b)
above shall not apply to any investment, acquisition or disposition
made prior to December 31, 1996.
"Ratable Share" of any amount means, with respect to any
Lender at any time, the product of (a) a fraction the numerator of
which is the amount of such Lender's Commitment at such time and the
denominator of which is the Facility at such time and (b) such amount.
"Real Property" of any Person means all of the right, title
and interest of such Person in and to land, improvements and fixtures,
including leaseholds.
"Receivables Financing Transaction" means any financing
secured by or based on the sale or transfer of, accounts receivable of
any Affiliate Guarantor, the Borrower or any of their respective
Subsidiaries on terms and conditions reasonably satisfactory to the
Required Lenders; provided that the aggregate program amount of
Receivable Financing Transactions shall not exceed $350,000,000.
"Redesign" means the restructuring of the businesses of the
Borrower, as more fully described on Schedule II hereto.
"Redesign Documents" means ▇▇▇▇▇▇ Holdings Notes held by the
Borrower, each Option Agreement for stock in substantially the form of
Exhibit K hereto, each Option Agreement for assets in substantially the
form of Exhibit L hereto, each Conveyance and Transfer Agreement in
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substantially the form of Exhibit I hereto and the Limited Partnership
Agreement of BFC Investments, L.P. in substantially the form of Exhibit
H hereto.
"Reference Banks" means BT, Chase, Citibank and Credit Suisse
First Boston.
"Register" has the meaning specified in Section 9.07(c).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Replacement Lender" has the meaning specified in Section
2.16.
"Reportable Event" means an event described in Section 4043(b)
of ERISA with respect to a Plan as to which the 30-day notice
requirement has not been waived by the PBGC.
"Required Lenders" means at any time Lenders having at least
51% of the Commitments or, if the Commitments have been terminated,
Lenders owed or holding at least 51% of the aggregate principal amount
of Advances outstanding at such time.
"Revolver Termination Date" means the earlier of (a) July 13,
1998, subject to the extension thereof pursuant to Section 2.18, and
(b) the date of termination in whole of the aggregate Commitments
pursuant to Section 2.05 or 6.01; provided, however, that the Revolver
Termination Date of any Lender that is a Non-Consenting Lender to any
requested extension pursuant to Section 2.18 shall be the Revolver
Termination Date in effect immediately prior to the applicable
Extension Date for all purposes of this Agreement.
"S&P" means Standard & Poor's Ratings Group or any successor
by merger or consolidation to its business.
"Scheduled Debt" means Debt of the Borrower listed on Schedule
1.01 hereto, to the extent that such Debt matures or is payable on or
before July 13, 2002 and any renewal, extension or refinancing thereof
that does not increase the amount thereof that becomes due and payable
on or before July 13, 2002.
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"Senior Bank Facilities" means this Agreement and the
Five-Year Credit Agreement.
"Subsidiary" of any Person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes having
by the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the
time stock of any class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency)
is at the time owned by such Person directly or indirectly through
Subsidiaries and (ii) any partnership, association, joint venture or
other entity in which such Person directly or indirectly through
Subsidiaries has more than a 50% equity interest at the time.
"Taxes" has the meaning specified in Section 2.13(a).
"Term Loan Conversion Date" means the Revolver Termination
Date on which all Advances outstanding on such date are converted into
a term loan pursuant to Section 2.04.
"Term Loan Election" has the meaning specified in Section
2.04.
"Total Debt" means, on any date of determination, (a) Debt of
the Affiliate Guarantors, the Borrower and their respective
Subsidiaries described in clauses (a) through (e) of the definition of
"Debt" herein minus (b) cash of the Affiliate Guarantors, the Borrower
and their respective Subsidiaries at such date in excess of
$75,000,000.
"Total Debt/EBITDA Ratio" means the ratio determined as of the
last day of each fiscal quarter for the twelve month period ended on
such day of (a) Combined Total Debt of the Affiliate Guarantors, the
Borrower and their Subsidiaries on such day to (b) to Combined Pro
Forma EBITDA of the Affiliate Guarantors, the Borrower and their
Subsidiaries for such period; provided, that for purposes of this
definition, Total Debt of any Subsidiary of any Obligated Party shall
be determined as such Obligated Party's Attributable Share of the Total
Debt of such Subsidiary.
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"Type" refers to the distinction between Advances bearing
interest by reference to the Base Rate and Advances bearing interest by
reference to the Eurodollar Rate.
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the present value of the accrued benefits under such Plan
as of the close of its most recent plan year, based upon the actuarial
assumptions which would be required to be used by such Plan's actuary
in connection with the determination of such Plan's accrued benefits
pursuant to its termination, exceeds the fair market value of the
assets allocable thereto, determined in accordance with Section 412 of
the Internal Revenue Code.
"Unused Commitment" means, with respect to any Lender at any
time, (a) such Lender's Commitment at such time minus (b) the sum of
(i) the aggregate principal amount of all Advances made by such Lender
and outstanding at such time, plus, without duplication, (ii) such
Lender's Ratable Share of the aggregate principal outstanding amount of
Competitive Bid Advances.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even though the right so to vote has been suspended by the
happening of such a contingency (but excluding in any event convertible
or exchangeable Preferred Stock prior to conversion or exchange, as the
case may be).
"Working Capital Advance" has the meaning specified in Section
2.01.
"Working Capital Borrowing" means a borrowing consisting of
simultaneous Working Capital Advances of the same Type made by the
Lenders.
"Working Capital Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from the Working Capital Advances made by such Lender.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified
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date to a later specified date, the word "from" means "from and including" and
the words "to" and "until" each mean "to but excluding."
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make advances ("Working
Capital Advances") to the Borrower from time to time on any Business Day during
the period from the date hereof until the Revolver Termination Date in an amount
for each such Advance not to exceed such Lender's Unused Commitment on such
Business Day. Each Working Capital Borrowing shall be in an aggregate amount not
less than $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and shall consist of Working Capital Advances of the same Type made on the same
day by the Lenders ratably according to their respective Commitments. Within the
limits of each Lender's Unused Commitment in effect from time to time, the
Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.07 and
reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.02(b), each Borrowing shall be made on notice, given not
later than 11:00 A.M. (New York City time) (i) on the third Business Day prior
to the date of the proposed Borrowing in the case of Eurodollar Rate Borrowings
and (ii) on the same Business Day in the case of Base Rate Borrowings, by the
Borrower to the Administrative Agent, which shall give to each Lender prompt
notice thereof by telex, telecopier or cable. Each such notice of a Borrowing (a
"Notice of Borrowing") shall be by telephone, telex, telecopier or cable,
confirmed immediately in writing, in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Type of
Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing and
(iv) in the case of a Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Advance. In the case of a proposed Borrowing
comprised of Eurodollar Rate Advances, the Administrative Agent shall promptly
notify each Lender of the
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applicable interest rate under Section 2.08(a)(ii). Each Lender shall, before
12:00 noon (New York City time) on the date of such Borrowing, make available
for the account of its Applicable Lending Office to the Administrative Agent at
the Administrative Agent's Account, in same day funds, such Lender's ratable
portion of such Borrowing in accordance with the respective Commitments of such
Lender and the other Lenders. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
the initial Borrowing hereunder or for any Borrowing if the aggregate amount of
such Borrowing is less than $10,000,000 or if the obligation of the Lenders to
make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.11
and (ii) the Working Capital Advances made on any date as Eurodollar Rate
Advances may not be outstanding as part of more than 20 separate Working Capital
Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Lender, after receipt of a written request by such Lender
(which request shall set forth in reasonable detail the basis for such amount)
against any loss, cost or expense actually incurred by such Lender (excluding
loss of anticipated profits) as a result of any failure to fulfill on or before
the date specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss,
cost or expense reasonably incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Advance to be
made by such Lender as part of such Borrowing when such Advance, as a result of
such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the time of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such
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assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such ratable
portion available to the Administrative Agent, such Lender and the Borrower
severally agree to repay or pay to the Administrative Agent forthwith on demand
such corresponding amount and to pay interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount is
repaid or paid to the Administrative Agent, at (i) in the case of the Borrower,
the interest rate applicable at such time under Section 2.08 to Advances
comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. If such Lender shall pay to the Administrative Agent such corresponding
amount, such amount so paid shall constitute such Lender's Advance as part of
such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring seven days prior to the Revolver
Termination Date in the manner set forth below; provided that, following the
making of each Competitive Bid Borrowing, no prepayment shall be required
pursuant to Section 2.07(b)(i).
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Administrative Agent, by
telecopier or telex, confirmed immediately in writing, a notice of a
Competitive Bid Borrowing (a "Notice of Competitive Bid Borrowing"), in
substantially the form of Exhibit B-2 hereto, together with a
processing fee of $4,000 for each Notice of Competitive Bid Borrowing,
specifying therein (v) the date of such proposed Competitive Bid
Borrowing, (w) the aggregate amount of such proposed Competitive Bid
Borrowing, (x) the maturity date for repayment of each Competitive Bid
Advance to be made as part of such Competitive Bid Borrowing (which
maturity date may not be earlier than the date occurring seven days
after the date of such Competitive Bid Borrowing
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or later than the Revolver Termination Date), (y) the interest payment
date or dates relating thereto, and (z) any other terms to be
applicable to such Competitive Bid Borrowing, not later than 10:00 A.M.
(New York City time) (A) at least one Business Day prior to the date of
the proposed Competitive Bid Borrowing, if the Borrower shall specify
in the Notice of Competitive Bid Borrowing that the rates of interest
to be offered by the Lenders shall be fixed rates per annum (the
Advances comprising any such Competitive Bid Borrowing being referred
to herein as "Fixed Rate Advances") and (B) at least four Business Days
prior to the date of the proposed Competitive Bid Borrowing, if the
Borrower shall instead specify in the Notice of Competitive Bid
Borrowing the basis to be used by the Lenders in determining the rates
of interest to be offered by them (the Advances comprising such
Competitive Bid Borrowing being referred to herein as "LIBO Rate
Advances"). The Administrative Agent shall in turn promptly notify each
Lender of each request for a Competitive Bid Borrowing received by it
from the Borrower by sending such Lender a copy of the related Notice
of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Administrative Agent (which shall give
prompt notice thereof to the Borrower), before 10:00 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, of the minimum amount and maximum
amount of each Competitive Bid Advance which such Lender would be
willing to make as part of such proposed Competitive Bid Borrowing
(which amounts may, subject to the proviso to the first sentence of
this Section 2.03(a), exceed such Lender's Commitment), the rate or
rates of interest therefor and such Lender's Applicable Lending Office
with respect to such Competitive Bid Advance; provided that if the
Administrative Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify the Borrower
of such offer before 9:00 A.M. (New York City time) on the date on
which notice of such election is to be given to the Administrative
Agent by the other Lenders. If
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any Lender shall elect not to make such an offer, such Lender shall so
notify the Administrative Agent, before 10:00 A.M. (New York City time)
on the date on which notice of such election is to be given to the
Administrative Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any Competitive Bid Advance as part
of such Competitive Bid Borrowing; provided that the failure by any
Lender to give such notice shall not cause such Lender to be obligated
to make any Competitive Bid Advance as part of such proposed
Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 11:00 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 1:00 P.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
either:
(x) cancel such Competitive Bid Borrowing by giving
the Administrative Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, by giving
notice to the Administrative Agent of the amount of each
Competitive Bid Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by the Administrative
Agent on behalf of such Lender for such Competitive Bid
Advance pursuant to paragraph (ii) above) to be made by each
Lender as part of such Competitive Bid Borrowing, and reject
any remaining offers made by Lenders pursuant to paragraph
(ii) above by giving the Administrative Agent notice to that
effect.
(iv) If the Borrower notifies the Administrative Agent that
such Competitive Bid Borrowing is cancelled pursuant to paragraph
(iii)(x) above, the Administrative Agent shall give prompt notice
thereof to the Lenders and such Competitive Bid Borrowing shall not be
made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, the
Administrative Agent shall in turn promptly
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notify (A) each Lender that has made an offer as described in paragraph
(ii) above, of the date and aggregate amount of such Competitive Bid
Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the Borrower,
(B) each Lender that is to make a Competitive Bid Advance as part of
such Competitive Bid Borrowing, of the amount of each Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, upon receipt, that
the Administrative Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a Competitive Bid Advance as part of such Competitive
Bid Borrowing shall, before 12:00 noon (New York City time) on the date
of such Competitive Bid Borrowing specified in the notice received from
the Administrative Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice
from the Administrative Agent pursuant to clause (C) of the preceding
sentence, make available for the account of its Applicable Lending
Office to the Administrative Agent at the Administrative Agent's
Account, in same day funds, such Lender's portion of such Competitive
Bid Borrowing. Upon fulfillment of the applicable conditions set forth
in Article III and after receipt by the Administrative Agent of such
funds, the Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's address referred to in Section
9.02. Promptly after each Competitive Bid Borrowing the Administrative
Agent will notify each Lender of the amount of such Competitive Bid
Borrowing.
(vi) The Administrative Agent shall maintain at its address
referred to in Section 9.02 a copy of each Notice of Competitive Bid
Borrowing delivered pursuant to subsection (a)(i) above and a register
for the recordation of the date, amount, maturity, interest rate,
interest payment dates, other terms and Lender of each Competitive Bid
Advance accepted by the Borrower from time to time pursuant to this
subsection (a) (the "Competitive Bid Register"). The entries in the
Competitive Bid Register shall be conclusive and binding for all
purposes, absent demonstrable error, and the Borrower, the
Administrative Agent and the Lenders may treat the entries recorded in
the Competitive Bid Register as evidence of Competitive Bid Advances
made pursuant to this Section 2.03. The Competitive Bid Register shall
be
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available for inspection by the Borrower, or by any Lender as to its
Competitive Bid Advances, at any reasonable time and from time to time
upon reasonable prior notice.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrower shall
be in compliance with the limitation set forth in the proviso to the first
sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Administrative Agent for
the account of each Lender that has made a Competitive Bid Advance, on the
maturity date of each Competitive Bid Advance (such maturity date being that
specified by the Borrower for repayment of such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and recorded in the Competitive Bid Register with respect to such
Competitive Bid Advance), the then unpaid principal amount of such Competitive
Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by the Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) above, as recorded in the Competitive Bid Register
with respect to such Competitive Bid Advance.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a master Competitive Bid Note of the Borrower
payable to the order of the Administrative Agent for the benefit of the Lender
making such Competitive Bid Advance.
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SECTION 2.04. Repayment. The Borrower shall, subject to the
next succeeding sentence, repay to each Lender on the Revolver Termination Date
the aggregate principal amount of the Advances owing to such Lender on such
date. The Borrower may, upon not less than 15 days' notice to the Administrative
Agent, elect (the "Term Loan Election") to convert all of the Advances
outstanding on the Revolver Termination Date in effect at such time into a term
loan which the Borrower shall repay in full ratably to the Lenders on the
Maturity Date; provided that no Default has occurred and is continuing on the
date of notice of the Term Loan Election or on the Term Loan Conversion Date on
which such election is to be effected.
SECTION 2.05. Reduction of the Commitments. (a) Optional. The
Borrower may, upon at least one Business Day's notice to the Administrative
Agent, terminate in whole or reduce in part the Unused Commitments; provided,
however, that each partial reduction of the Commitments (i) shall be in an
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and (ii) shall be made ratably among the Lenders in accordance with
their Commitments.
(b) Mandatory. On the Revolver Termination Date, if the
Borrower has made the Term Loan Election in accordance with Section 2.04 prior
to such date, and from time to time thereafter upon each prepayment of the
Advances, the aggregate Commitments of the Lenders under this Agreement shall be
automatically and permanently reduced on a pro rata basis by an amount equal to
the amount by which the aggregate Commitments of the Lenders under this
Agreement immediately prior to such reduction exceeds the aggregate unpaid
principal amount of the Advances outstanding at such time.
SECTION 2.06. Application of Certain Proceeds. (a) The
Borrower shall reduce the aggregate Commitments under the Senior Bank Facilities
or pay or prepay Scheduled Debt by an amount equal to, and upon receipt of,
Asset Proceeds and Option Exercise Proceeds by the Affiliate Guarantors, the
Borrower and their respective Subsidiaries other than the following, without
duplication:
(i) Asset Proceeds paid to the Borrower for the initial
transfer of the Dairy Business to an Affiliate and its Subsidiaries at
the time, if any, such Affiliate becomes an Affiliate Guarantor;
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(ii) Asset Proceeds from, without duplication, (A) the sale of
the Borrower's Dairy Business, (B) the sale of Foods Businesses other
than the pasta, soups and related businesses, (C) Option Exercise
Proceeds, (D) an amount equal to the portion, if any, of the amount of
the excess of (x) in the case of the exercise of an Option with a
substantially contemporaneous sale of the stock or assets the subject
of such Option, the actual sale price of such stock or assets or, in
each other case, the fair market value (as determined by the board of
directors of the Borrower) over (y) the exercise price of such Options
(the "Option Differential"), which is contributed to the equity of the
Borrower or the Affiliate Guarantors, upon the exercise of such Option,
(E) an amount equal to the portion, if any, of the amount of the
appreciation of trademarks the benefit of which accrues to ▇▇▇▇▇▇ Foods
Holdings, L.L.C. (the "Trademark Appreciation") which is contributed to
the equity of the Borrower or the Affiliate Guarantors, upon the sale
of any trademarks used in the Foods Business, (F) an amount equal to
the portion, if any, of the Affiliate Guarantor Stock Sale Proceeds (as
defined in Section 2.06(d)) contributed as equity to the Borrower or
the Affiliate Guarantors and (G) the sale of $1,000,000,000 of assets
not otherwise described in this clause (iii) and not including
consideration described in clauses (b), (c) and (d) below;
(iii) Asset Proceeds in the form of notes, property and other
consideration other than cash received other than pursuant to
transactions described in clause (ii) above from entities that are not
Affiliates of the Borrower or the Affiliate Guarantors, to the extent
that the amount thereof outstanding at any time (after giving effect to
monetization, payment or other cash realization thereof) does not
exceed $200,000,000;
(iv) Asset Proceeds from the sale, transfer or other
disposition of non-cash consideration to the extent an amount equal to
such non-cash consideration was required to be and was applied in
accordance with this Section 2.06(a) (including pursuant to the
exceptions described therein);
(v) Asset Proceeds from the sale, transfer or other
disposition of assets between or among (x) the Borrower and its
Subsidiaries or (y) the Affiliate Guarantors and their respective
Subsidiaries (including as an Affiliate
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Guarantor, for purposes of this clause (vi), the Dairy Business); and
(vi) Asset Proceeds from sales of stock of, or equity
interests in, any Affiliate Guarantor to any Obligated Party or any
Subsidiary of any Obligated Party, any Subsidiary thereof or any
employee of any Obligated Party or any Subsidiaries by the exercise of
stock options or otherwise, provided that the aggregate amount of such
sales made to such employees (other than in respect of the exercise of
stock options issued to employees before the Restatement Date) with
respect to any Affiliate Guarantor or Subsidiary of any Obligated Party
shall not exceed the greater of $10,000,000 and 15% of the equity
interests of such Affiliate Guarantor or Subsidiary of an Obligated
Party.
(vii) Asset Proceeds applied pursuant to clauses (b), (c) and
(d) below, to the extent that Commitments under the Senior Bank
Facilities have been reduced or Scheduled Debt has been paid or prepaid
pursuant to clauses (b), (c), (d) and (e) below, as applicable.
(b) The Borrower shall reduce the aggregate Commitments under
the Senior Bank Facilities or pay or prepay Scheduled Debt upon receipt of
Option Exercise Proceeds, by an amount equal to the portion of the Option
Differential not contributed to the equity of the Borrower or the Affiliate
Guarantors.
(c) The Borrower shall reduce the aggregate Commitments under
the Senior Bank Facilities or pay or prepay Scheduled Debt upon the sale of any
trademarks the benefit of which sale accrues to ▇▇▇▇▇▇ Foods Holdings, L.L.C.,
by an amount equal to the portion of the Trademark Appreciation not contributed
to the equity of the Borrower or the Affiliate Guarantors.
(d) The Borrower shall reduce the aggregate Commitments under
the Senior Bank Facilities or pay or prepay Scheduled Debt on the date of each
Guarantee Release Event (as defined in Section 7.05) in an amount equal to the
portion of the "Affiliate Guarantor Stock Sale Proceeds" (as defined below) in
respect thereof not contributed to the equity of the Borrower or the Affiliate
Guarantors. "Affiliate Guarantor Stock Sale Proceeds" means, in respect of any
Affiliate Guarantor, (i) in the event of a sale of all of the common stock of
such Affiliate Guarantor, the amount of Asset Proceeds of such sale received by
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the holders of such common stock (or by such Affiliate Guarantor if a primary
issuance and sale) or (ii) in the event of a sale of less than all of the common
stock of such Affiliate Guarantor, the amount equal to the product of (x) the
Asset Proceeds per share of common stock received by the holders thereof in such
partial sale (or by such Affiliate Guarantor, if a primary issuance and sale)
and (y) the total number of shares of common stock of such Affiliate Guarantor
outstanding after giving effect to such partial sale.
(e) The payments and commitment reductions required by
Sections 2.06(a), (b), (c) and (d) shall be made as the Borrower may direct.
(f) For purposes of this Section 2.06, the Borrower and the
Affiliate Guarantors shall be deemed to have received Asset Proceeds on the last
day of the fiscal year following the date of an asset sale transaction in an
amount equal to the excess of the reserve for taxes payable or estimated to be
payable in connection with or as a result of such transaction over taxes
actually paid in connection with or as a result of such transaction on or before
the last day of such fiscal year. The Borrower shall apply an amount equal to
such deemed Asset Proceeds in accordance with the terms of this Section 2.06.
(g) The Borrower may apply proceeds as required by this
Section 2.06 on the last day of any Interest Period next ending after receipt
or, in the case of Asset Proceeds, deemed receipt, of such proceeds; provided
that the Borrower shall apply such proceeds on or before 30 days after such
receipt or deemed receipt; provided further that in the case of Asset Proceeds
resulting from the sale of an asset located outside the United States, such 30
days after such receipt or deemed receipt shall be extended to 90 days after
such receipt or deemed receipt.
(h) All prepayments of Senior Bank Facilities under this
Section 2.06 shall be made together with accrued interest to the date of such
prepayment on the principal amount prepaid.
SECTION 2.07. Prepayments. (a) Optional. The Borrower may,
upon (i) at least one Business Day's notice in the case of Base Rate Borrowings
and (ii) at least three Business Days' notice in the case of Eurodollar Rate
Borrowings, in each case to the Administrative Agent stating the proposed date
and aggregate principal amount of the prepayment, and if such notice is given
the Borrower shall, prepay the outstanding aggregate principal amount of the
Advances comprising part of the same
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Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the aggregate principal amount prepaid; provided,
however, that each partial prepayment shall be in an aggregate principal amount
of $10,000,000 or an integral multiple of $1,000,000 in excess thereof.
(b) Mandatory. (i) The Borrower shall, on each Business Day,
prepay an aggregate principal amount of the Working Capital Advances comprising
part of the same Borrowings equal to the amount by which the (x) sum of
aggregate principal amount of the Working Capital Advances and Competitive Bid
Advances then outstanding exceeds (y) the Facility.
(ii) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
SECTION 2.08. Interest. (a) Ordinary Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(A) the Base Rate in effect from time to time plus (B) the Applicable
Margin in effect from time to time, payable in arrears quarterly on the
first day of each January, April, July, and October during such periods
and on the date such Base Rate Advance shall be Converted or paid in
full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Interest Period for such Advance plus (B)
the Applicable Margin in effect on each day during such Interest
Period, payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months
from the first day of such Interest Period.
(b) Default Interest. Overdue principal and interest in
respect of each Advance shall bear interest at a rate per
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annum equal to the Base Rate in effect from time to time plus the sum of (i) 2%
and (ii) the Applicable Margin; provided that each Eurodollar Rate Advance and
Competitive Bid Advance shall bear interest after maturity (whether by
acceleration or otherwise) until the end of the Interest Period then applicable
thereto at a rate per annum equal to 2% in excess of the rate of interest
applicable thereto at maturity.
SECTION 2.09. Fees. (a) Commitment Fee. The Borrower shall
pay to the Administrative Agent for the account of the Lenders a commitment fee
on each Lender's average daily Unused Commitment, computed without regard to
clause (ii) of the definition of Unused Commitment, minus the aggregate amount
of Competitive Bid Advances made by such Lender from the date hereof until the
Revolver Termination Date at the Applicable Percentage, payable in arrears
quarterly on the first Business Day of each January, April, July and October,
commencing October 3, 1997, and on the Revolver Termination Date; provided,
however, that any commitment fee accrued with respect to any of the Commitments
of a Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the Borrower
so long as such Lender shall be a Defaulting Lender except to the extent that
such commitment fee shall otherwise have been due and payable by the Borrower
prior to such time; and provided further that no commitment fee shall accrue on
any of the Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.
(b) Administrative Agent's and Arrangers' Fees. The Borrower
shall pay to the Administrative Agent and the Arrangers for their own respective
account such fees as may from time to time be agreed between the Borrower and
the Administrative Agent and the Arrangers.
SECTION 2.10. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Section
2.11, Convert all or any portion of the Working Capital Advances of one Type
comprising the same Borrowing into Advances of the other Type; provided,
however, that any Conversion of Base Rate Advances into Eurodollar Rate Advances
shall be in an amount not less than the minimum amount specified in Section
2.02(b) and no Conversion of any Advances shall result in more separate
Borrowings than permitted under Section 2.02(b). Each such notice of Conversion
shall, within the restrictions specified above, specify (i) the
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date of such Conversion, (ii) the Advances to be Converted and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Advances.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $10,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders,
whereupon each such Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance.
SECTION 2.11. Increased Costs, Etc. (a) If, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation after the date hereof or (ii) the compliance with any guideline or
request made after the date hereof from any central bank or other governmental
authority (whether or not having the force of law), there shall be any increase
in the cost to any Lender of agreeing to make or of making, funding or
maintaining Eurodollar Rate Advances or LIBO Rate Advances, then the Borrower
shall from time to time, upon demand by such Lender (with a copy of such demand
to the Administrative Agent), pay to the Administrative Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost; provided, however, that each Lender agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office or take other
steps if to do so would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. A certificate as to the amount of such
increased cost accompanied by a statement setting forth in reasonable detail the
basis for, and amount of, such increased cost, submitted to the Borrower by such
Lender, shall be conclusive and binding for all purposes, absent demonstrable
error.
(b) If, after the date hereof, (i) the introduction of or any
change in any applicable law or regulation regarding capital adequacy or any
change after the date hereof in the
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interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or (ii) the compliance by a Lender or its parent with any directive or
request made after the date hereof regarding capital adequacy from any central
bank or other governmental authority (whether or not having the force of law),
has the effect of reducing the rate of return on such Lender's or its parent's
capital or assets as a consequence of such Lender's commitment to lend hereunder
or other obligations hereunder to a level below that which such Lender or its
parent would have achieved but for such introduction, change or compliance
(taking into consideration such Lender's or its parent's policies with respect
to capital adequacy), then, upon demand by such Lender (with a copy of such
demand to the Administrative Agent), the Borrower shall pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender for such reduction, it being understood and agreed, however, that such
Lender shall not be entitled to such compensation as a result of such Lender's
compliance with, or pursuant to any directive or request to comply with, any
such law or regulation as in effect on the date hereof; provided, however, that
each Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office or take other steps if to do so would avoid the need
for, or reduce the amount of, such compensation and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such Lender. A
certificate as to such amounts accompanied by a statement setting forth in
reasonable detail the basis for, and amount of, such increased cost submitted to
the Borrower by such Lender, shall be conclusive and binding for all purposes,
absent demonstrable error.
(c) If, with respect to any Eurodollar Rate Advances, the
Administrative Agent shall have determined that on any date for determining the
Eurodollar Rate for any Interest Period for such Advances that, by reason of
changes arising after the date hereof affecting the London interbank market,
adequate and fair means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of Eurodollar Rate (i) each
such Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify
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the Borrower that such Lenders have determined that the circumstances causing
such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if
after the date hereof the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful or impracticable,
or any central bank or other governmental authority shall assert that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or LIBO Rate Advances or
to continue to fund or maintain Eurodollar Rate Advances or LIBO Rate Advances
hereunder, then, on notice thereof and demand therefor by such Lender to the
Borrower through the Administrative Agent, (i) each Eurodollar Rate Advance
under which such Lender has a Commitment or LIBO Rate Advance, as the case may
be, will automatically, upon such demand, Convert into a Base Rate Advance or an
Advance that bears interest at the rate set forth in Section 2.08(a)(i), as the
case may be, and (ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
circumstances causing such suspension no longer exist; provided, however, that
such Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office or take other steps if to do so would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(e) If the Required Lenders shall so determine, upon the
occurrence and during the continuance of any Default, the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
SECTION 2.12. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the Administrative
Agent at the Administrative Agent's Account in same day funds. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrower is in respect of principal, interest,
commitment fees or any other obligation then payable hereunder and under the
Notes to more than one Lender, to such Lenders for the account of their
respective Applicable Lending Offices ratably in accordance with the amounts
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of such respective obligations then payable to such Lenders and (ii) if such
payment by the Borrower is in respect of any obligation then payable hereunder
to one Lender, to such Lender for the account of its Applicable Lending Office,
in each case to be applied in accordance with the terms of this Agreement. Upon
any Assuming Lender's becoming a Lender hereunder as a result of an extension of
the Revolver Termination Date pursuant to Section 2.18 or as a result of a
Commitment Increase pursuant to Section 2.19, and upon the Administrative
Agent's receipt of such Lender's Assumption Agreement and recording of the
information contained therein in the Register, from and after the applicable
Extension Date or Increase Date, as the case may be, the Administrative Agent
shall make all payments hereunder and under the Notes issued in connection
therewith in respect of the interest assumed thereby to the Assuming Lender.
Upon its acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section 9.07(d), from
and after the effective date of such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee thereunder, and
the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) All computations of interest and fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable. Each determination by the Administrative Agent of an interest rate, fee
or commission hereunder shall be conclusive and binding for all purposes, absent
demonstrable error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any
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payment is due to any Lender hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each such Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent the Borrower shall not have so made
such payment in full to the Administrative Agent, each such Lender shall repay
to the Administrative Agent forthwith on demand such amount distributed to such
Lender together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
(e) If the Administrative Agent receives funds for application
to the obligations under the Loan Documents under circumstances for which the
Loan Documents do not specify the Advances to which, or the manner in which,
such funds are to be applied, the Administrative Agent shall apply such funds to
prepay Working Capital Advances (but not reduce the Commitments).
SECTION 2.13. Taxes. (a) Any and all payments by any
Obligated Party hereunder or under the Notes shall be made, in accordance with
Section 2.12, free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Administrative Agent, net income taxes and franchise taxes (imposed in lieu of
net income taxes) that are imposed by the United States or any political
subdivision or taxing authority thereof or therein or by a foreign jurisdiction
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having
executed, enforced, delivered or performed its obligations or received a payment
under this Agreement) (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If any Obligated Party shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.13) such Lender or the
Administrative Agent (as
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the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Obligated Party shall make such
deductions and (iii) such Obligated Party shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, each Obligated Party shall pay any present or
future stamp, documentary, excise, property or similar taxes, charges or levies
that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) Each Obligated Party shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes, and for the
full amount of taxes imposed by any jurisdiction on amounts payable under this
Section 2.13, paid by such Lender or the Administrative Agent (as the case may
be) and any liability (including penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto. The Administrative Agent or
such Lender shall provide the applicable Obligated Party with appropriate
receipts for any payments or reimbursements made to such Obligated Party
pursuant to this Section 2.13. This indemnification shall be made within 45 days
from the date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor.
(d) Within 45 days after the date of any payment of Taxes,
each Obligated Party shall furnish to the Administrative Agent, at its address
referred to in Section 9.02, the original receipt of payment thereof or a
certified copy of such receipt. In the case of any payment hereunder or under
the Notes by any Obligated Party through an account or branch outside the United
States or on behalf of such Obligated Party by a payor that is not a United
States person, if such Obligated Party determines that no Taxes are payable in
respect thereof, such Obligated Party shall furnish, or shall cause such payor
to furnish, to the Administrative Agent, at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (d) and subsection (e), the terms "United
States" and "United States person" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States shall, on or prior to the
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date of its execution and delivery of this Agreement in the case of each Bank,
and on the date of the Assumption Agreement or the Assignment and Acceptance
pursuant to which it became a Lender in the case of each other Lender, and from
time to time thereafter if requested in writing by any Obligated Party or the
Administrative Agent (but only so long thereafter as such Lender remains
lawfully able to do so), provide the Administrative Agent and each Obligated
Party with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Lender is entitled to benefits under an income tax treaty to which the United
States is a party that reduces the rate of withholding tax on payments under
this Agreement or the Notes or certifying that the income receivable pursuant to
this Agreement or the Notes is effectively connected with the conduct of a trade
or business in the United States. If the form provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, if at the date of
the Assumption Agreement or the Assignment and Acceptance, as the case may be,
pursuant to which a Lender assignee becomes a party to this Agreement, the
Lender assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to such
Lender assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof
by Internal Revenue Service form 1001 or 4224, that the applicable Lender
reasonably considers to be confidential, such Lender shall give notice thereof
to the Obligated Parties and shall not be obligated to include in such form or
document such confidential information.
(f) For any period with respect to which a Lender has failed
to provide the Obligated Parties with the appropriate form described in
subsection (e) (other than if such failure is due to a change in law occurring
after the date on which a form originally was required to be provided or if such
form otherwise is not required under subsection (e)), such Lender shall not be
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entitled to indemnification under subsection (a) or (c) with respect to Taxes
imposed by the United States; provided, however, that should a Lender become
subject to Taxes because of its failure to deliver a form required hereunder,
each Obligated Party shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.13 shall use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office or to take other steps if to do so
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) (a) on account of obligations
due and payable to such Lender hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such obligations due and payable to such Lender at such time to (ii) the
aggregate amount of the obligations due and payable to all Lenders hereunder and
under the Notes at such time) of payments on account of the obligations due and
payable to all Lenders hereunder and under the Notes at such time obtained by
all the Lenders at such time or (b) on account of obligations owing (but not due
and payable) to such Lender hereunder and under the Notes at such time in excess
of its ratable share (according to the proportion of (i) the amount of such
obligations owing to such Lender at such time to (ii) the aggregate amount of
the obligations owing (but not due and payable) to all Lenders hereunder and
under the Notes at such time) of payments on account of the obligations owing
(but not due and payable) to all Lenders hereunder and under the Notes at such
time obtained by all the Lenders at such time, such Lender shall forthwith
purchase from the Lenders such participations in the obligations due and payable
or owing to them, as the case may be, as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each other
Lender shall be rescinded and such other Lender shall repay to the purchasing
Lender the purchase price to the extent of such other Lender's ratable share
(according to the
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proportion of (i) the purchase price paid to such Lender to (ii) the aggregate
purchase price paid to all Lenders) of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such other Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.14 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.15. Use of Proceeds. The proceeds of the Advances
shall be available to pay transaction fees and expenses, for acquisitions and
general corporate purposes of the Borrower and its Subsidiaries and for making
advances to the Affiliate Guarantors and their Subsidiaries for acquisitions and
general corporate purposes of the Affiliate Guarantors and their Subsidiaries.
SECTION 2.16. Defaulting Lenders. (a) In the event that, at
any one time, (i) any Lender shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then the Borrower may, so long
as no Default shall occur or be continuing at such time and to the fullest
extent permitted by applicable law, set off and otherwise apply the obligation
of the Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that the Borrower shall so set off and otherwise apply the
obligation of the Borrower to make any such payment against the obligation of
such Defaulting Lender to make any such Defaulted Advance on any date, the
amount so set off and otherwise applied by the Borrower shall constitute for all
purposes of this Agreement and the other Loan Documents an Advance by such
Defaulting Lender made on such date. Such Advance shall bear interest at a rate
equal to the Base Rate (without giving effect to the Applicable Margin) and
shall be considered, for all purposes of this Agreement, to comprise part of the
Borrowing in connection with which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01, even if the other Advances
comprising such
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Borrowing shall be Eurodollar Rate Advances on the date such Advance is deemed
to be made pursuant to this subsection (a). The Borrower shall notify the
Administrative Agent at any time the Borrower reduces the amount of the
obligation of the Borrower to make any payment otherwise required to be made by
it hereunder or under any other Loan Document as a result of the exercise by the
Borrower of its right set forth in this subsection (a) and shall set forth in
such notice (A) the name of the Defaulting Lender and the Defaulted Advance
required to be made by such Defaulting Lender and (B) the amount set off and
otherwise applied in respect of such Defaulted Advance pursuant to this
subsection (a). Any portion of such payment otherwise required to be made by the
Borrower to or for the account of such Defaulting Lender which is paid by the
Borrower, after giving effect to the amount set off and otherwise applied by the
Borrower pursuant to this subsection (a), shall be applied by the Administrative
Agent as specified in subsection (b) or (c) of this Section 2.16.
(b) In the event that, at any one time, (i) any Lender shall
be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount
to the Administrative Agent or any of the other Lenders and (iii) the Borrower
shall make any payment hereunder or under any other Loan Document to the
Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lenders and
to the fullest extent permitted by applicable law, apply at such time the amount
so paid by the Borrower to or for the account of such Defaulting Lender to the
payment of each such Defaulted Amount to the extent required to pay such
Defaulted Amount. In the event that the Administrative Agent shall so apply any
such amount to the payment of any such Defaulted Amount on any date, the amount
so applied by the Administrative Agent shall constitute for all purposes of this
Agreement and the other Loan Documents payment, to such extent, of such
Defaulted Amount on such date. Any such amount so applied by the Administrative
Agent shall be retained by the Administrative Agent or distributed by the
Administrative Agent to such other Lenders, ratably in accordance with the
respective portions of such Defaulted Amounts payable at such time to the
Administrative Agent and such other Lenders and, if the amount of such payment
made by the Borrower shall at such time be insufficient to pay all Defaulted
Amounts owing at such time to the Administrative Agent and the other Lenders, in
the following order of priority:
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(i) first, to the Administrative Agent for any Defaulted
Amount then owing to the Administrative Agent; and
(ii) second, to any other Lenders for any Defaulted Amounts
then owing to such other Lenders, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lenders.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.16.
(c) In the event that, at any one time, (i) any Lender shall
be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, the Administrative Agent
or any other Lender shall be required to pay or distribute any amount hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrower or such other Lender shall pay such amount to the
Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow under
this subsection (c) shall be deposited by the Administrative Agent in an
interest-bearing account with Citibank, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection (c). The
terms applicable to such account, including the rate of interest payable with
respect to the credit balance of such account from time to time, shall be
Citibank's standard terms applicable to escrow accounts maintained with it. Any
interest credited to such account from time to time shall be held by the
Administrative Agent in escrow under, and applied by the Administrative Agent
from time to time in accordance with the provisions of, this subsection (c). The
Administrative Agent shall, to the fullest extent permitted by applicable law,
apply all funds so held in escrow from time to time to the extent necessary to
make any Advances required to be made by such Defaulting Lender and to pay any
amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent or any other Lender, as and when such
Advances or amounts are required to be made or paid and, if the amount so held
in escrow shall at any time be insufficient to
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make and pay all such Advances and amounts required to be made or paid at such
time, in the following order of priority:
(i) first, to the Administrative Agent for any amount then due
and payable by such Defaulting Lender to the Administrative Agent
hereunder;
(ii) second, to any other Lenders for any amount then due and
payable by such Defaulting Lender to such other Lenders hereunder,
ratably in accordance with such respective amounts then due and payable
to such other Lenders; and
(iii) third, to the Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to the Commitments of such
Defaulting Lender.
In the event that such Defaulting Lender shall, at any time, cease to be a
Defaulting Lender, any funds held by the Administrative Agent in escrow at such
time with respect to such Defaulting Lender shall be distributed by the
Administrative Agent to such Defaulting Lender and applied by such Defaulting
Lender to the obligations owing to such Lender at such time under this Agreement
and the other Loan Documents ratably in accordance with the respective amounts
of such obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.16 are in addition to other rights and remedies which the
Borrower may have against such Defaulting Lender with respect to any Defaulted
Advance and which the Administrative Agent or any Lender may have against such
Defaulting Lender with respect to any Defaulted Amount.
SECTION 2.17. Option to Replace Lenders. If any Lender shall
request the Borrower to pay any amounts, or shall assert any other special
rights, under Section 2.11 or 2.13 or if a Lender is a Defaulting Lender, the
Borrower may request one or more other Lenders or other financial institutions,
each of which is an Eligible Assignee (each a "Replacement Lender") to take over
all or the affected portion of such Lender's then outstanding Advances and to
assume all or the affected portion of such Lender's Commitments and obligations
hereunder. If one or more Replacement Lenders shall so agree, the Advances and
Commitments of the Lender to be replaced shall, at the direction of the
Borrower, be assigned to such Replacement Lenders in
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accordance with Section 9.07, in such amounts as the Borrower may designate.
SECTION 2.18. Extension of Revolver Termination Date. (a) At
least 45 days but not more than 60 days prior to the Revolver Termination Date
in effect at any time, the Borrower, by written notice to the Administrative
Agent, may request an extension of the Revolver Termination Date in effect at
such time for a period of 364 days from its then scheduled expiration; provided,
however, that the Borrower shall not have made the Term Loan Election for
Advances outstanding on such Revolver Termination Date prior to the then
scheduled Revolver Termination Date. The Administrative Agent shall promptly
notify each Lender of such request, and each Lender shall in turn, in its sole
discretion, not earlier than 30 days but at least 20 days prior to such Revolver
Termination Date, notify the Borrower and the Administrative Agent in writing as
to whether such Lender will consent to such extension. If any Lender shall fail
to notify the Administrative Agent and the Borrower in writing of its consent to
any such request for extension of the Revolver Termination Date at least 20 days
prior to the scheduled occurrence thereof at such time, such Lender shall be
deemed to be a Non-Consenting Lender with respect to such request. The
Administrative Agent shall notify the Borrower not later than 15 days prior to
the scheduled Revolver Termination Date in effect at such time of the decision
of the Lenders regarding the Borrower's request for an extension of the Revolver
Termination Date.
(b) If all of the Lenders consent in writing to any such
request in accordance with subsection (a) of this Section 2.18, the Revolver
Termination Date shall, effective as at the Revolver Termination Date otherwise
in effect at such time (the "Extension Date"), be extended for a period of 364
days from such Extension Date; provided that on each Extension Date, no Default
shall have occurred and be continuing, or shall occur as a consequence thereof.
If Lenders holding at least a majority in interest of the aggregate Commitments
at such time consent in writing to any such request in accordance with
subsection (a) of this Section 2.18, the Revolver Termination Date in effect at
such time shall, effective as at the applicable Extension Date, be extended as
to those Lenders that so consented (each a "Consenting Lender") but shall not be
extended as to any other Lender (each a "Non-Consenting Lender"). To the extent
that the Revolver Termination Date is not extended as to any Lender pursuant to
this Section 2.18 and the Commitment of such Lender is not assumed in accordance
with subsection (c) of this Section
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2.18 on or prior to the applicable Extension Date, the Commitment of such
Non-Consenting Lender shall automatically terminate in whole on such unextended
Revolver Termination Date without any further notice or other action by the
Borrower, such Lender or any other Person; provided that such Non-Consenting
Lender's rights under Sections 2.11, 2.13 and 9.04, and its obligations under
Section 8.05, shall survive the Revolver Termination Date for such Lender as to
matters occurring prior to such date. It is understood and agreed that no Lender
shall have any obligation whatsoever to agree to any request made by the
Borrower for any requested extension of the Revolver Termination Date.
(c) If Lenders holding at least a majority in interest of the
aggregate Commitments at any time consent to any such request pursuant to
subsection (a) of this Section 2.18, the Borrower may arrange for one or more
Consenting Lenders or other Eligible Assignees as Assuming Lenders to assume,
effective as of the Extension Date, any Non-Consenting Lender's Commitment and
all of the obligations of such Non-Consenting Lender under this Agreement
thereafter arising, without recourse to or warranty by, or expense to, such
Non-Consenting Lender; provided, however, that the amount of the Commitment of
any such Assuming Lender as a result of such substitution shall in no event be
less than $10,000,000 unless the amount of the Commitment of such Non-Consenting
Lender is less than $10,000,000, in which case such Assuming Lender shall assume
all of such lesser amount; and provided further that:
(i) any such Consenting Lender or Assuming Lender shall have
paid to such Non-Consenting Lender (A) the aggregate principal amount
of, and any interest accrued and unpaid to the effective date of the
assignment on, the outstanding Advances, if any, of such Non-Consenting
Lender plus (B) any accrued but unpaid facility fees owing to such
Non-Consenting Lender as of the effective date of such assignment;
(ii) all additional costs reimbursements, expense
reimbursements and indemnities payable to such Non-Consenting Lender,
and all other accrued and unpaid amounts owing to such Non-Consenting
Lender hereunder, as of the effective date of such assignment shall
have been paid to such Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 9.07(a) for such
assignment shall have been paid;
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provided further that such Non-Consenting Lender's rights under Sections 2.11,
2.13 and 9.04, and its obligations under Section 8.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date, (A) each such Assuming Lender,
if any, shall have delivered to the Borrower and the Administrative Agent an
assumption agreement, in form and substance satisfactory to the Borrower and the
Administrative Agent (an "Assumption Agreement"), duly executed by such Assuming
Lender, such Non-Consenting Lender, the Borrower and the Administrative Agent,
(B) any such Consenting Lender shall have delivered confirmation in writing
satisfactory to the Borrower and the Administrative Agent as to the increase in
the amount of its Commitment and (C) each Non-Consenting Lender being replaced
pursuant to this Section 2.18 shall have delivered to the Administrative Agent
the Note or Notes held by such Non-Consenting Lender. Upon the payment or
prepayment of all amounts referred to in clauses (i), (ii) and (iii) of the
immediately preceding sentence, each such Consenting Lender or Assuming Lender,
as of the Extension Date, will be substituted for such Non-Consenting Lender
under this Agreement and shall be a Lender for all purposes of this Agreement,
without any further acknowledgment by or the consent of the other Lenders, and
the obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
(d) If all of the Lenders (after giving effect to any
assignments pursuant to subsection (b) of this Section 2.18) consent in writing
to a requested extension (whether by execution or delivery of an Assumption
Agreement or otherwise) not later than one Business Day prior to such Extension
Date, the Administrative Agent shall so notify the Borrower, and, so long as no
Default shall have occurred and be continuing as of such Extension Date, or
shall occur as a consequence thereof, the Revolver Termination Date then in
effect shall be extended for the 364-day period described in subsection (a) of
this Section 2.18, and all references in this Agreement, and in the Notes to the
"Revolver Termination Date" shall, with respect to each Consenting Lender and
each Assuming Lender for such Extension Date, refer to the Revolver Termination
Date as so extended. Promptly following each Extension Date, the Administrative
Agent shall notify the Lenders (including, without limitation, each Assuming
Lender) of the extension of the scheduled Revolver Termination Date in effect
immediately prior thereto and shall thereupon record in the Register the
relevant information with respect to each such Consenting Lender and each such
Assuming Lender.
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SECTION 2.19. Increase in the Aggregate Commitments. (a) The
Borrower may, at any time but in any event not more than once prior to the
Revolver Termination Date, by notice to the Administrative Agent, request that
the aggregate amount of the Commitments be increased by an amount of $50,000,000
or an integral multiple of $5,000,000 in excess thereof (each a "Commitment
Increase") to be effective as of a date that is at least 90 days prior to the
scheduled Revolver Termination Date then in effect (the "Increase Date") as
specified in the related notice to the Administrative Agent; provided, however,
that (i) in no event shall the aggregate amount of the Commitments at any time
exceed $250,000,000, (ii) no Default shall have occurred and be continuing as of
the date of such request or as of the applicable Increase Date, or shall occur
as a result thereof and (iii) the aggregate amount of the Commitments and of the
"Commitments" under the Five-Year Credit Agreement shall not exceed
$1,200,000,000.
(b) The Administrative Agent shall promptly notify the Lenders
of a request by the Borrower for a Commitment Increase, which notice shall
include (i) the proposed amount of such requested Commitment Increase, (ii) the
proposed Increase Date and (iii) the date by which Lenders wishing to
participate in the Commitment Increase must commit to an increase in the amount
of their respective Commitments (the "Commitment Date"). Each Lender that is
willing to participate in such requested Commitment Increase (each an
"Increasing Lender") shall give written notice to the Administrative Agent on or
prior to the Commitment Date of the amount by which it is willing to increase
its Commitment. If the Lenders notify the Administrative Agent that they are
willing to increase the amount of their respective Commitments by an aggregate
amount that exceeds the amount of the requested Commitment Increase, the
requested Commitment Increase shall be allocated among the Lenders willing to
participate therein in such amounts as are agreed between the Borrower and the
Administrative Agent.
(c) Promptly following each Commitment Date, the
Administrative Agent shall notify the Borrower as to the amount, if any, by
which the Lenders are willing to participate in the requested Commitment
Increase. If the aggregate amount by which the Lenders are willing to
participate in any requested Commitment Increase on any such Commitment Date is
less than the requested Commitment Increase, then the Borrower may extend offers
to one or more Eligible Assignees to participate in any portion of the requested
Commitment Increase that has not been committed to by the Lenders as of the
applicable Commitment Date;
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provided, however, that the Commitment of each such Eligible Assignee shall be
in an amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(d) On each Increase Date, each Eligible Assignee that accepts
an offer to participate in a requested Commitment Increase in accordance with
Section 2.19(c) (each such Eligible Assignee and each Eligible Assignees that
agrees to an extension of the Revolver Termination Date in accordance with
Section 2.18(c), an "Assuming Lender") shall become a Lender party to this
Agreement as of such Increase Date and the Commitment of each Increasing Lender
for such requested Commitment Increase shall be so increased by such amount (or
by the amount allocated to such Lender pursuant to the last sentence of Section
2.19(b)) as of such Increase Date; provided, however, that the Administrative
Agent shall have received on or before such Increase Date the following, each
dated such date:
(i) an Assumption Agreement from each Assuming Lender, duly
executed by such Eligible Assignee, the Administrative Agent and the
Borrower; and
(ii) confirmation from each Increasing Lender of the increase
in the amount of its Commitment in a writing satisfactory to the
Borrower and the Administrative Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.19(d), the Administrative Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or
telex, of the occurrence of the Commitment Increase to be effected on such
Increase Date and shall record in the Register the relevant information with
respect to each Increasing Lender and each Assuming Lender on such date.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions of Effectiveness. This Agreement
shall become effective as of the date first above written (the "Effective Date")
when, and only when, the following conditions precedent have been satisfied:
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(a) There shall have occurred no Material Adverse Change since
December 31, 1996.
(b) The representations and warranties contained in each Loan
Document are correct in all material respects on and as of the
Effective Date, as though made on and as of such date (other than any
such representations or warranties that, by their terms, are made as of
a date other than the Effective Date).
(c) No event shall have occurred and be continuing that
constitutes a Default.
(d) There is no action, suit, investigation, litigation or
proceeding affecting any Affiliate Guarantor, the Borrower or any of
their respective Subsidiaries pending or, to the best of any of their
knowledge, threatened before any court, governmental agency or
arbitrator that (i) except as disclosed in the Borrower's Annual Report
on Form 10-K for the fiscal year ended December 31, 1996, would be
likely to have a Material Adverse Effect or (ii) would be likely to
materially adversely affect the legality, validity or enforceability of
this Agreement and the other Loan Documents (taken as a whole) or the
consummation of the transactions contemplated hereby.
(e) The Borrower shall have paid such fees as have been agreed
to in writing to be payable in connection herewith and expenses of the
Administrative Agent, the Arrangers and the Lenders (including the
reasonable fees and expenses of counsel to the Administrative Agent and
the Arrangers).
(f) The Administrative Agent shall have received, on or before
the Effective Date, the following, each dated such day (unless
otherwise specified), in form and substance satisfactory to the
Administrative Agent (unless otherwise specified) and in sufficient
copies (other than the Notes) for each Lender:
(i) The Notes to the order of such Lender.
(ii) Certified copies of the resolutions of the Board
of Directors of the Borrower and each Affiliate Guarantor
approving this Agreement and each Loan Document to which it is
or is to be a party, and of all documents evidencing other
necessary corporate action
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and governmental approvals, if any, with respect to this
Agreement and each Loan Document to which it is a party.
(iii) A certificate of each Obligated Party, signed
on behalf of such Obligated Party by its President or a Vice
President and its Secretary or any Assistant Secretary, dated
the Effective Date (the statements made in which certificate
shall be true on and as of the Effective Date), certifying as
to (A) a true and correct copy of the charter of such
Obligated Party as in effect on the Effective Date, (B) a true
and correct copy of the bylaws of such Affiliate Guarantor as
in effect on the Effective Date, (C) the due incorporation and
good standing of such Affiliate Guarantor as a corporation
organized under the laws of the State of the jurisdiction of
its incorporation and the absence of any proceeding for the
dissolution or liquidation of such Affiliate Guarantor (D) the
truth or the representations and warranties contained in the
Loan Documents as though made on and as of the Effective Date
(other than any such representations or warranties that, by
their terms, are made as of a date other than the Effective
Date) and (E) the absence of any event continuing on the
Effective Date that constitutes a Default.
(iv) A certificate of the Secretary or an Assistant
Secretary of each Obligated Party certifying the names and
true signatures of the officers of such Obligated Party
authorized to sign this Agreement and each Loan Document to
which it is or is to be a party and the other documents to be
delivered hereunder and thereunder.
(v) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, special New York counsel to the Borrower and the
Affiliate Guarantors, and a favorable opinion of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇., Senior Vice President and General Counsel of the
Borrower, in substantially the forms of Exhibits D-1 and D-2,
respectively.
(vi) A favorable opinion of Shearman & Sterling,
counsel for the Lead Managing Agents and the Administrative
Agent, in form and substance reasonably satisfactory to the
Lead Managing Agents and the Administrative Agent.
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SECTION 3.02. Conditions Precedent to Certain Borrowings. The
obligation of each Lender to make an Advance on the occasion of each Borrowing
that would cause the aggregate amount of Advances outstanding or to be
outstanding at the close of business on such date to exceed the aggregate amount
of all Advances outstanding (including any Advances to be paid on the date of
such Borrowing) outstanding immediately prior to the making of such Advance
shall be subject to the further conditions precedent that on the date of such
Borrowing the following statements shall be true (and each of the giving of the
Notice of Borrowing and the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing such statements are true):
(a) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of the date of
such Borrowing, before and after giving effect to such Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date (other than any such representations or warranties that, by
their terms, are made as of a date other than the date of such
Borrowing); and
(b) no event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom,
that constitutes a Default.
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (a) the Administrative Agent shall have received the
written confirmatory Notice of Competitive Bid Borrowing with respect thereto
and (b) on or before the date of such Competitive Bid Borrowing, but prior to
such Competitive Bid Borrowing, the Administrative Agent shall have received for
recordation in the Competitive Bid Register information as to each of the one or
more Competitive Bid Advances to be made by the Lenders as part of such
Competitive Bid Borrowing, the principal amount of each such Competitive Bid
Advance and such other terms as were agreed to for each such Competitive Bid
Advance in accordance with Section 2.03.
ARTICLE IV
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REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Obligated
Parties. Each Obligated Party represents and warrants as follows:
(a) Such Obligated Party (i) is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which
it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to so
qualify or be licensed would not be likely to have a Material Adverse
Effect and (iii) has all requisite corporate power and authority to own
or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Material Subsidiaries of the Obligated Parties as
of the date of this Agreement, showing as of the date of this Agreement
(as to each such Subsidiary) the jurisdiction of its incorporation and
percentage of the outstanding shares of each such class owned (directly
or indirectly) by each Obligated Party. Each such Material Subsidiary
(i) is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, except where the failure
thereof would not be likely to have a Material Adverse Effect, (ii) is
duly qualified and in good standing as a foreign corporation in each
other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except
where the failure to so qualify or be licensed would not be likely to
have a Material Adverse Effect and (iii) has all requisite corporate
power and authority to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted
except where the failure to have such power would not be likely to have
a Material Adverse Effect.
(c) The execution, delivery and performance by each Obligated
Party of this Agreement, the Notes and each other Loan Document to
which it is or is to be a party, and the consummation of the
transactions contemplated hereby or thereby are within such Obligated
Party's corporate powers,
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have been duly authorized by all necessary corporate action, and do not
(i) contravene such Obligated Party's charter or by-laws, (ii) violate
any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award, the consequences of which would be likely to
have a Material Adverse Effect, (iii) conflict with or result in the
breach of, or constitute a default under, any loan agreement,
indenture, mortgage, deed of trust, lease or other instrument in each
case involving Debt obligations of the Borrower and the Affiliate
Guarantors of $1,000,000 or more or (iv) result in or require the
creation or imposition of any Lien upon or with respect to any of the
properties of the Affiliate Guarantors, the Borrower and their
respective Subsidiaries, other than Liens permitted by Section 5.02.
None of any Affiliate Guarantor, the Borrower or any of their
respective Subsidiaries is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award or in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument, the violation or
breach of which would be likely to have a Material Adverse Effect.
(d) All necessary material governmental and third party
approvals required for (i) the due execution, delivery, recordation,
filing or performance by each Obligated Party of this Agreement, the
Notes or any other Loan Document to which it is a party or (ii) to the
extent obtainable on or prior to the date hereof, the exercise by the
Administrative Agent or any Lender of its rights under the Loan
Documents, have been duly obtained, taken, given or made and are in
full force and effect.
(e) This Agreement has been, and each of the Notes and each
other Loan Document to which each Obligated Party is a party when
delivered hereunder will have been, duly executed and delivered by such
Obligated Party. This Agreement is, and each of the Notes and each
other Loan Document to which the Borrower or any Affiliate Guarantor is
a party when delivered hereunder will be, the legal, valid and binding
obligation of the Obligated Parties party thereto, enforceable against
each such Obligated Party in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or limiting
creditors' rights or by equitable principles generally.
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(f) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1996, and the related Consolidated
statement of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Deloitte &
Touche LLP, independent public accountants, and the Consolidated
balance sheet of the Borrower and its Subsidiaries as at March 31,
1997, and the related Consolidated statement of income and cash flows
of the Borrower and its Subsidiaries for the three months then ended,
duly certified by the chief financial officer of the Borrower, copies
of which have been furnished to each Lender, fairly present, subject,
in the case of said balance sheet as at March 31, 1997, and said
statements of income and cash flows for the three months then ended, to
year-end audit adjustments, the Consolidated financial condition of the
Borrower and its Subsidiaries as at such date and the Consolidated
results of the operations of the Borrower and its Subsidiaries for the
periods ended on such dates, all in accordance with generally accepted
accounting principles applied on a consistent basis. Since December 31,
1996, there has been no Material Adverse Change.
(g) Neither the Information Memorandum nor any assertion of
fact of the Obligated Parties contained in any other written
information, exhibit or report furnished by the Obligated Parties to
the Administrative Agent or any Lender in connection with the
negotiation of the Loan Documents or pursuant to the terms of the Loan
Documents contained, as of its date, any untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements made in the Information Memorandum and such other
information, exhibits and reports (taken as a whole) not misleading.
(h) There is no action, suit, investigation, litigation or
proceeding affecting any Affiliate Guarantor, the Borrower or any of
their respective Subsidiaries pending or, to the best of any of their
knowledge, threatened before any court, governmental agency or
arbitrator that (i) except as disclosed in the Borrower's Annual Report
on Form 10-K for the fiscal year ended December 31, 1996, would be
likely to have a Material Adverse Effect or (ii) would be likely to
materially adversely affect the legality, validity or enforceability of
this Agreement and the other Loan Documents (taken as a whole) or the
consummation of the transactions contemplated hereby.
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(i) No proceeds of any Advance will be used to acquire any
equity security of a class that is registered pursuant to Section 12 of
the Securities Exchange Act of 1934.
(j) Neither the making of any Advance hereunder, nor the use
of the proceeds thereof, will violate the provisions of Regulation G,
T, U or X of the Board of Governors of the Federal Reserve System.
(k) Each Plan is in substantial compliance with ERISA and the
Internal Revenue Code; no Reportable Event has occurred with respect to
a Plan; no Plan is insolvent or in reorganization; no Plan has an
accumulated or waived funding deficiency, has permitted decreases in
its funding standard account or has applied for an extension of any
amortization period within the meaning of Section 412 of the Internal
Revenue Code; none of any Affiliate Guarantor, the Borrower, any of
their respective Subsidiaries or any ERISA Affiliate has incurred or
reasonably expects to incur any liability to or on account of a Plan
pursuant to ERISA or the Internal Revenue Code; no proceedings have
been instituted by the PBGC to terminate any Plan; no condition exists
which presents a material risk to any Affiliate Guarantor, the
Borrower, any of their respective Subsidiaries or any ERISA Affiliate
of incurring a liability to or on account of a Plan pursuant to ERISA
or the Internal Revenue Code; no lien imposed under the Internal
Revenue Code or ERISA on the assets of any Affiliate Guarantor, the
Borrower, any of their respective Subsidiaries or any ERISA Affiliate
exists or is likely to arise on account of any Plan; where, with
respect to any of the foregoing representations in this Section
4.01(k), the liability for or the lien which would arise as a result
of, the particular circumstance or event which is the subject of the
representation, would be likely to result in a Material Adverse Effect.
All representations and warranties made with respect to any Plan which
is a Multiemployer Plan shall be made to the best knowledge of the
Borrower and the Affiliate Guarantors.
(l) Each Affiliate Guarantor, the Borrower and each of their
respective Subsidiaries are in material compliance with all material
laws and regulations relating to pollution and environmental control or
employee safety in all domestic jurisdictions in which the Affiliate
Guarantors, the Borrower and their respective Subsidiaries are
presently doing business, other than those the non-compliance with
which would not be likely to have a Material Adverse Effect.
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(m) Each Affiliate Guarantor, the Borrower and each of their
respective Subsidiaries has filed, has caused to be filed or has been
included in all tax returns (Federal, state, local and foreign)
required to be filed and has paid all taxes shown thereon to be due,
together with applicable interest and penalties, except where the
failure to so file or pay would not be likely to have a Material
Adverse Effect or as disclosed on the Borrower's Annual Report on Form
10-K for the fiscal year ended December 31, 1994.
(n) None of any Affiliate Guarantor, the Borrower or any of
their respective Subsidiaries is an "investment company," or a company
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, each
Obligated Party will, unless the Required Lenders shall otherwise consent in
writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations
and orders except to the extent the failure to do so would not be
likely to have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
in excess of $15,000,000 individually or $30,000,000 in the aggregate
for the Obligated Parties and their respective Subsidiaries that, if
unpaid, would by law become a Lien (other than a Permitted Lien) upon
its property; provided, however, that no Obligated Party or any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by appropriate proceedings for which appropriate reserves have been
established in accordance with GAAP.
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(c) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries to comply, with all material laws and regulations
relating to pollution and environmental control or employee safety
which may be imposed in the future in jurisdictions in which any
Obligated Party or any of its Subsidiaries may then be doing business,
other than those the non-compliance with which would not be likely to
have a Material Adverse Effect; and if required to do so under any
applicable Environmental Law, undertake, and cause each of its
Subsidiaries to undertake, any cleanup, removal, remedial or other
action necessary to remove and clean up any Hazardous Materials from
any Real Property in accordance with the requirements of all such
applicable Environmental Laws and in accordance with orders and
directives of all governmental authorities; provided that no Obligated
Party or any of its Subsidiaries shall be required to take any such
action where the failure to do so would not have a Material Adverse
Effect.
(d) Maintenance of Insurance. Maintain, and cause each of its
Material Subsidiaries to maintain, insurance with reputable insurance
companies or associations in such amounts, with such retention and
deductibles, and covering such risks as are in accordance with normal
industry practice.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Material Subsidiaries to preserve and
maintain, its corporate existence, rights (charter and statutory) and
franchises except to the extent that the failure to do so would not be
likely to have a Material Adverse Effect; provided, however, that the
Obligated Parties and their Subsidiaries may consummate any transaction
permitted under Section 5.02(c); and provided further that no Obligated
Party or any of its Subsidiaries shall be required to preserve any
right or franchise if the Board of Directors of such Obligated Party or
such Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of the business of such Obligated Party
or such Subsidiary, as the case may be, and that the loss thereof is
not disadvantageous in any material respect to such Obligated Party,
such Subsidiary or the Lenders.
(f) Visitation Rights. At any reasonable time and upon prior
notice, permit the Administrative Agent or any of the Lenders or any
agents or representatives thereof, to
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examine and make copies of and abstracts from the records and books of
account of, and visit the properties of, such Obligated Party and any
of its Subsidiaries, and to discuss the affairs, finances and accounts
of such Obligated Party and any of its Subsidiaries with any of their
officers or, if reasonably requested by the Administrative Agent or any
Lender, through the officers of such Obligated Party or such Subsidiary
and with their independent certified public accountants.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted, and
do, or cause to be done, all things necessary to preserve and keep in
full force and effect its material licenses, permits, copyrights,
patents, trademarks, service marks, tradenames and rights with respect
thereto, except in each case to the extent that the failure to do so
would not be likely to have a Material Adverse Effect.
(h) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions with any of their
Affiliates (other than the Borrower and its Subsidiaries) on terms that
are substantially as favorable to such Obligated Party or such
Subsidiary as it would obtain in a comparable arm's-length transaction
with a Person not an Affiliate; provided that the foregoing
restrictions shall not apply to (i) customary annual fees paid to
Kohlberg Kravis ▇▇▇▇▇▇▇ & Co. ("KKR") and its Affiliates for
management, consulting and financial services rendered to such
Obligated Party and its Subsidiaries, and customary investment banking
fees paid to KKR and its Affiliates for services rendered to such
Obligated Party and its Subsidiaries in connection with divestitures,
acquisitions, financings and certain other transactions; (ii) customary
fees paid to members of the Board of Directors of such Obligated Party
and its Subsidiaries; (iii) loans and advances made by the Borrower to
any of its Subsidiaries or any Affiliate Guarantor; and (iv) the
consummation of the Redesign in accordance with the terms set forth in
Section 9.11.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any
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Commitment hereunder, no Obligated Party will, at any time, without the written
consent of the Required Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character whether now owned or hereafter acquired other than:
(i) Permitted Liens;
(ii) Liens securing Indebtedness permitted by
Sections 5.02(b)(viii), (ix) and (xi);
(iii) Liens, if any, arising under, financing
statements filed in connection with, and assignments of
accounts pursuant, to a Receivables Financing Transaction;
(iv) other Liens securing Indebtedness outstanding in
an aggregate principal amount for the Obligated Parties and
their respective Subsidiaries not to exceed $200,000,000 at
any time;
(v) purchase money Liens upon or in any capital
assets acquired or held by the Borrower, any Affiliate
Guarantor or any of their respective Subsidiaries in the
ordinary course of business to secure the purchase price of
such asset or to secure Debt incurred solely for the purpose
of financing the acquisition, construction or improvement of
such asset, or Liens existing on such asset at the time of its
acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to
finance the acquisition of such asset) or extensions, renewals
or replacements of any of the foregoing for the same or a
lesser amount, provided, however, that no such Lien shall
extend to or cover any properties of any character other than
the asset being acquired, and no such extension, renewal or
replacement shall extend to or cover any properties not
theretofore subject to the Lien being extended, renewed or
replaced, provided further that the aggregate principal amount
of the indebtedness secured by the Liens referred to in this
clause (v) shall not exceed $100,000,000 at any time
outstanding.
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(vi) the replacement, extension or renewal of any
Lien permitted by clauses (i) through (v) above upon or in the
same property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Indebtedness
secured thereby.
(b) Indebtedness. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Indebtedness other than:
(i) Indebtedness arising under the Loan Documents;
(ii) Indebtedness with no principal or sinking fund
payment due prior to December 31, 2002 with covenants (taken
as a whole) customary in United States unsecured public debt
financings or private placements (other than bank financings)
for comparably rated issuers and in any event no more onerous
than those contained in this Agreement (taken as a whole);
(iii) unsecured Indebtedness incurred in the ordinary
course of business for borrowed money, maturing within one
year from the date incurred, evidenced by commercial paper or
comparable instruments customary for evidencing similar
obligations in jurisdictions other than the United States in
an aggregate principal amount not exceeding the Unused
Commitments of the Lenders;
(iv) Indebtedness in respect of acceptance, trade
letter of credit, warehouse receipt or similar facilities and
non-trade letters of credit issued outside the United States
not supporting Debt entered into in the ordinary course of
business;
(v) Indebtedness, if any, arising under a Receivables
Financing Transaction;
(vi) Guaranties in respect of Indebtedness otherwise
permitted hereunder;
(vii) Guaranties in the ordinary course of business
in respect of obligations of suppliers, customers, franchisees
and licensees of such Obligated Party and its Subsidiaries;
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(viii) Indebtedness of the Subsidiaries of any
Obligated Party organized outside the United States in an
aggregate principal amount for the Obligated Parties and their
respective Subsidiaries not exceeding at any time the excess
of $250,000,000 over the proceeds of sales of accounts
receivable by such Subsidiaries;
(ix) Indebtedness arising under Capitalized Leases in
an aggregate principal amount for the Obligated Parties and
their respective Subsidiaries not exceeding $100,000,000 at
any time;
(x) Indebtedness in respect of Hedge Agreements in an
aggregate notional amount for the Obligated Parties and their
respective Subsidiaries not to exceed $2,500,000,000 at any
time outstanding;
(xi) Indebtedness of any Obligated Party or any of
its Subsidiaries owed to any Obligated Party or any of its
Subsidiaries;
(xii) Indebtedness secured by Liens permitted by
Section 5.02(a)(v).
(xiii) Guaranties in respect of Indebtedness listed
on Schedule 5.02(b) hereto;
(xiv) additional Indebtedness not contemplated by
clauses (i)-(xii) above in an aggregate principal amount for
the Obligated Parties and their respective Subsidiaries not
exceeding $300,000,000 at any time;
(xv) any renewal, extension or refinancing of the
foregoing Indebtedness in an amount not exceeding the amount
outstanding at the time of such renewal, extension or
refinancing and, in the case of any renewal, extension or
refinancing of the Indebtedness specified in clauses (ii) and
(iii) above, otherwise in compliance with the limitations set
forth in clauses (ii) and (iii), respectively; and
(xvi) the Existing Indebtedness, and any Indebtedness
extending the maturity of, or refunding or refinancing, in
whole or in part, any Existing Indebtedness, provided that the
terms of any such extending, refunding or refinancing
Indebtedness, and of any agreement entered into and of any
instrument
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issued in connection therewith, are otherwise permitted by the
Loan Documents and certain covenants that are no more onerous
than the stricter of those covenants of this Agreement (taken
as a whole) or those covenants applicable to such Existing
Indebtedness on the date hereof and further provided that the
principal amount of such Existing Indebtedness shall not be
increased above the principal amount thereof outstanding
immediately prior to such extension, refunding or refinancing
(including additional Indebtedness to the extent necessary to
finance the payment of premiums, make-wholes or similar
payments incurred in connection with such extension, refunding
or refinancing), and the direct and contingent obligors
therefor shall not be changed, as a result of or in connection
with such extension, refunding or refinancing.
(c) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries
to do so, except that (i) any Subsidiary of any Obligated Party may
merge into or consolidate with, or transfer all or a portion of its
assets to, any Person, provided that, in the case of any such merger or
consolidation, the Person formed by such merger or consolidation, or
the Person to which all or a portion of such assets were transferred,
shall be a Subsidiary of an Obligated Party, (ii) any Subsidiaries of
an Obligated Party may merge into, or transfer all or a portion of its
assets to, any Obligated Party, provided that in the case of any such
merger, such Obligated Party is the surviving corporation, (iii) the
Borrower may merge into a wholly owned Subsidiary of the Borrower that
(A) is incorporated under the laws of any of the States of Delaware,
New York or Ohio and (B) has no material assets or liabilities, for the
sole purpose of changing the state of incorporation of the Borrower if
the surviving corporation shall expressly assume the liabilities of the
Borrower under the Loan Documents and (iv) any Subsidiary of any
Obligated Party may merge into any Person pursuant to a transaction not
prohibited by Section 5.02(d); provided, however, that in each case,
immediately after giving effect thereto, no event shall occur and be
continuing that constitutes a Default.
(d) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of any assets of such Obligated Party and its Subsidiaries for
less than Fair Market Value, provided, that the foregoing shall not
apply to (i) sales of inventory
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and other assets (including, without limitation, worn out and obsolete
equipment) in the ordinary course of business, (ii) dispositions of
assets conducted on an arm's length basis for a consideration of less
than $10,000,000 and (iii) dispositions of assets between or among an
Obligated Party and any of its Subsidiaries; sell, lease, transfer or
otherwise dispose of all or substantially all of the assets of the
Obligated Parties and their Subsidiaries taken as a whole, except in a
transaction authorized by subsection (c) of this Section; or sell or
grant Options except that the Obligated Parties and their Subsidiaries
may sell or grant Options (i) pursuant to terms and conditions
substantially similar to those set forth in Exhibits K and L hereto,
(ii) for Fair Market Value and (iii) in an aggregate amount of proceeds
thereof not to exceed $101,000,000 after June 30, 1997; provided,
however, that with respect to any sale, lease, transfer or other
disposition of Options or any assets (other than Excluded Asset Sales)
including pursuant to Options, immediately after giving effect thereto,
no event shall occur and be continuing that constitutes an Event of
Default under Sections 6.01(a), (b), (c) or (f).
(e) Dividends, Etc. Declare or pay any dividends (other than
dividends payable only in common stock or Preferred Stock permitted by
clause (ii) below of the Borrower), purchase, redeem, retire, defease
or otherwise acquire for value any of its capital stock or any
warrants, rights or options to acquire such capital stock, now or
hereafter outstanding, return any capital to its stockholders as such,
make any distribution of assets, capital stock, warrants, rights,
options, obligations or securities to its stockholders as such or issue
or sell any capital stock (other than common stock) or any warrants,
rights or options to acquire such capital stock (other than common
stock), or permit any of its Subsidiaries to purchase, redeem, retire,
defease or otherwise acquire for value any capital stock of the
Borrower or any Affiliate Guarantor or any warrants, rights or options
to acquire such capital stock or to issue or sell any capital stock
(other than common stock) or any warrants, rights or options to acquire
such capital stock (other than common stock), except that, so long as
no Default described in Sections 6.01(a) or (f) and no Event of Default
shall have occurred and be continuing, (i) any Obligated Party or its
Subsidiaries may repurchase capital stock, or any warrants, rights or
options to acquire such capital stock held by its officers, directors
and employees, (ii) the Borrower may issue
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Preferred Stock and pay dividends thereon, provided that such Preferred
Stock (A) shall not obligate the Borrower to redeem at a fixed or
determinable date prior to January 1, 2000, whether by operation of a
sinking fund or otherwise, or upon the occurrence of a condition not
solely within the control of this issuer and (B) shall not be
redeemable at the option of the holder prior to January 1, 2000, (iii)
the Borrower may pay dividends on its common stock to the extent that
such dividends are paid to the Borrower as interest on the notes issued
by ▇▇▇▇▇▇ Holdings then held by the Borrower or its Subsidiaries; (iv)
the Borrower may pay dividends on its common stock at any time when the
ratio of Combined Total Debt to Combined EBITDA of the Affiliate
Guarantors, the Borrower, and their respective Subsidiaries for the
period of four consecutive fiscal quarters most recently ended is less
than 3.00:1.00, in an amount not to exceed 25% of the Borrower's net
income for the fiscal year most recently ended; and (v) any Subsidiary
of any Obligated Party may issue Preferred Stock to such Obligated
Party and pay dividends thereon; (vi) the Borrower may make non-cash
dividends after the Effective Date in an aggregate amount not to exceed
$50,000,000; (vii) the Borrower may make a non-cash dividend of its
▇▇▇▇▇▇ Services division; and (viii) any Affiliate Guarantor may make
and pay dividends or distributions in amounts necessary to pay taxes
paid or payable in connection with any sale or disposition of assets by
such Affiliate Guarantor or its Subsidiaries.
(f) Change in Nature of Business. Make any material change in
the nature of its business taken as a whole as carried on at the date
of the Existing Credit Agreement, other than as a result of (i)
dispositions of assets or businesses approved by the Board of Directors
of the applicable Obligated Party or (ii) business activities engaged
in by any Obligated Party or its Subsidiaries on or prior to such date
and other similar or related activities.
(g) Accounting Changes. Make or permit, or permit any of its
Material Subsidiaries to make or permit, any change in its fiscal year
or any significant change in accounting policies or reporting
practices, except as required or permitted by generally accepted
accounting principles.
(h) Amendment, Etc. of Redesign Documents. After the execution
and delivery of any Redesign Document, cancel or terminate such
Redesign Document or consent to, permit or accept such cancellation or
termination thereof, amend,
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modify or change in any manner any term or condition of such Redesign
Document or give any consent, waiver or approval thereunder, waive any
default under or any breach of any term or condition of such Redesign
Document, agree in any manner to any other amendment, modification or
change of any term or condition of such Redesign Document or take any
other action in connection with such Redesign Document, or permit any
of its Subsidiaries to do so, except to the extent that after giving
effect to any such action, the applicable Redesign Document contains
terms substantially the same as those set forth in Exhibits G through
L, as applicable, provided that after giving effect to any such action
the Amended and Restated Agreement of Limited Partnership of BFC
Investments, L.P. shall contain provisions strictly complying with
those set forth in Exhibit H as (i) the defined term "Percentage
Interest" and (ii) Section 5.3(b).
5.03. Reporting Requirements. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will, unless the Required Lenders shall otherwise consent in writing, furnish to
the Lenders:
(a) Default Notice. As soon as possible and in any event
within three Business Days after any officer of the Borrower obtains
knowledge of each Default continuing on the date of such statement, a
statement of the chief financial officer of the Borrower setting forth
details thereof and the action that the Borrower has taken and proposes
to take with respect thereto.
(b) Quarterly Financials. As soon as available and in any
event within 45 days after the end of each of the first three quarters
of each fiscal year of the Obligated Parties, a Consolidated balance
sheet of (x) the Borrower and its Subsidiaries, (y) each Affiliate
Guarantor and its Subsidiaries and (z) ▇▇▇▇▇▇ Holdings and its
Subsidiaries, respectively, and a Combined balance sheet of the
Affiliate Guarantors, the Borrower and their respective Subsidiaries,
in each case as of the end of such quarter and Consolidated statements
of income and cash flows of (x) the Borrower and its Subsidiaries, (y)
each Affiliate Guarantor and its Subsidiaries and (z) ▇▇▇▇▇▇ Holdings
and its Subsidiaries, respectively, and Combined statements of income
and cash flows of the Affiliate Guarantors, the Borrower and their
respective Subsidiaries, in each case for the period commencing at the
end of the previous fiscal year and ending
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with the end of such quarter, setting forth in each case in comparative
form the corresponding figures for the corresponding date or period of
the preceding fiscal year, certified (subject to year-end audit
adjustments) by the chief financial officer of the Borrower as having
been prepared in accordance with GAAP, together with (i) a certificate
of said officer stating that, to the knowledge of such officer, no
Default has occurred and is continuing or, if a Default has occurred
and is continuing, a statement as to the nature thereof and the action
that the Borrower has taken and proposes to take with respect thereto
and (ii) a schedule setting forth in reasonable detail the computations
used by the Borrower in determining compliance with the covenants
contained in Section 5.04. To the extent that a Combined financial
statement is required to be delivered under this Section, if
Consolidated statements of the Affiliate Guarantors, the Borrower and
their respective Subsidiaries are filed with the Securities and
Exchange Commission in lieu of Combined statements, delivery of such
Consolidated statements shall satisfy the requirements of this Section.
(c) Annual Financials. As soon as available and in any event
within 90 days after the end of each fiscal year of the Obligated
Parties, a copy of the annual audit report for such year for (w) the
Borrower and its Subsidiaries, the Affiliate Guarantors and their
Subsidiaries, (y) each Affiliate Guarantor and its Subsidiaries and (z)
▇▇▇▇▇▇ Holdings and its Subsidiaries, respectively, including therein a
Consolidated balance sheet of (x) the Borrower and its Subsidiaries,
(y) each Affiliate Guarantor and its Subsidiaries and (z) ▇▇▇▇▇▇
Holdings and its Subsidiaries, respectively, and a Combined balance
sheet of the Affiliate Guarantors, the Borrower and their respective
Subsidiaries, in each case as of the end of such fiscal year and
Consolidated statements of income and cash flows of (x) the Borrower
and its Subsidiaries, (y) each Affiliate Guarantor and its Subsidiaries
and (z) ▇▇▇▇▇▇ Holdings and its Subsidiaries, respectively (or audited
combining statements including the Borrower and the Affiliate
Guarantors if combining statements are filed with the Securities and
Exchange Commission in lieu of such separate consolidating statements),
and Combined statements of income and cash flows of the Affiliate
Guarantors, the Borrower and their respective Subsidiaries for such
fiscal year, in each case accompanied by either an unqualified opinion,
or an opinion acceptable to the Required Lenders, of Deloitte & Touche
LLP
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or other independent public accountants of recognized standing
acceptable to the Required Lenders, together with (i) a certificate of
such accounting firm to the Lenders stating that in the course of the
regular audit of the business of (w) the Borrower and its Subsidiaries,
(x) the Borrower, the Affiliate Guarantors and their Subsidiaries, (y)
each Affiliate Guarantor and its Subsidiaries and (z) ▇▇▇▇▇▇ Holdings
and its Subsidiaries, respectively, which audit was conducted by such
accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that a
Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default has occurred and is continuing, a statement
as to the nature thereof (provided that in no event shall such
accountants be liable as a result of this Agreement by reason of any
failure to obtain knowledge of any Default that would not be disclosed
in the course of their audit examination), (ii) a schedule setting
forth in reasonable detail the computations used by such accountants in
determining, as of the end of such fiscal year, compliance with the
covenants contained in Section 5.04 and (iii) a certificate of the
chief financial officer of the Borrower stating that, to the knowledge
of such officer, no Default has occurred and is continuing or, if a
Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower has taken and proposes to take
with respect thereto. To the extent that a Combined financial statement
is required to be delivered under this Section, if Consolidated
statements of the Affiliate Guarantors, the Borrower and their
respective Subsidiaries are filed with the Securities and Exchange
Commission in lieu of Combined statements, delivery of such
Consolidated statements shall satisfy the requirements of this Section.
(d) Budgets; Etc. Not more than 60 days after the commencement
of each fiscal year of the Obligated Parties, budgets of each Obligated
Party on a Consolidated basis in reasonable detail for each of the four
fiscal quarters of such fiscal year as customarily prepared by
management for its internal use setting forth, with appropriate
discussion, the principal assumptions upon which such budgets are
based.
(e) ERISA. As soon as possible and, in any event, within 10
days after any Affiliate Guarantor, the Borrower, any of their
respective Subsidiaries or any ERISA Affiliate knows of the occurrence
of any of the following events
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which, in the aggregate would be likely to have a Material Adverse
Effect, the Borrower will deliver to each of the Lenders a certificate
of the chief financial officer or other authorized officer of the
Borrower setting forth details as to such occurrence and such action,
if any, which such Affiliate Guarantor, the Borrower, such Subsidiary,
such ERISA Affiliate, the PBGC, a Plan participant or the Plan
administrator with respect thereto: that a Reportable Event has
occurred; that an accumulated funding deficiency has been incurred or
an application is reasonably likely to be or has been made to the
Secretary of the Treasury for a waiver or modification of the minimum
funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Internal
Revenue Code with respect to a Plan; that a Plan has been or is
reasonably likely to be terminated, reorganized, partitioned or
declared insolvent under Title IV of ERISA; that a Plan has an Unfunded
Current Liability giving rise to a lien under ERISA or the Internal
Revenue Code; that proceedings are reasonably likely to be or have been
instituted to terminate a Plan; that a proceeding has been instituted
pursuant to Section 515 of ERISA to collect a delinquent contribution
to a Plan; or that any Affiliate Guarantor, the Borrower, any of their
respective Subsidiaries or any ERISA Affiliate will or is reasonably
likely to incur any liability (including any contingent or secondary
liability) to or on account of the termination of or withdrawal from a
Plan under Section 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or
with respect to a Plan under Section 4971 or 2975 of the Internal
Revenue Code or Section 409 or 502(i) or 502(l) of ERISA.
(f) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign,
affecting any Affiliate Guarantor, the Borrower or any of their
respective Subsidiaries which the Borrower reasonably believes would be
likely to have a Material Adverse Effect.
(g) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports that any Affiliate Guarantor, the Borrower or any of their
respective Subsidiaries sends to the public stockholders of the
Borrower or any Affiliate Guarantor and copies of all reports on Forms
10-Q, 10-K
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and 8-K that any Affiliate Guarantor, the Borrower or any of their
respective Subsidiaries files with the Securities and Exchange
Commission or any governmental authority that may be substituted
therefor.
(h) Environmental Matters. Promptly after obtaining knowledge
of any of the following environmental matters, unless such
environmental matters would not, individually or when aggregated with
all other such matters, be likely to have a Material Adverse Effect,
written notice of (i) any pending or threatened material Environmental
Claim against any Affiliate Guarantor, the Borrower or any of their
respective Subsidiaries or any Real Property; (ii) any condition or
occurrence on any Real Property that (x) results in material
noncompliance by any Affiliate Guarantor, the Borrower or any of their
respective Subsidiaries with any applicable Environmental Law or (y)
would be likely to form the basis of a material Environmental Claim
against any Affiliate Guarantor, the Borrower or any of their
respective Subsidiaries or any Real Property; (iii) any condition or
occurrence on any material Real Property that could reasonably be
anticipated to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of
such Real Property under any Environmental Law; and (iv) the taking of
any material removal or remedial action in response to the actual or
alleged presence of any Hazardous Material on any Real Property. All
such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and such Affiliate Guarantor's or the Borrower's response
thereto.
(i) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Affiliate Guarantor, the Borrower or any
of their respective Subsidiaries as any Lender through the
Administrative Agent may from time to time reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Obligated Parties will, unless the Required Lenders otherwise consent in
writing:
(a) EBITDA/Net Interest Expense. Maintain a ratio of Combined
EBITDA of the Affiliate Guarantors, the Borrower
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and their respective Subsidiaries to Combined Net Interest Expense of
not less than the amount set forth below for each period of four
consecutive fiscal quarters ended at the dates set forth below:
QUARTER ENDING RATIO
-------------- -----
June 30, 1997 2.25:1.00
September 30, 1997 2.35:1.00
December 31, 1997 2.50:1.00
March 31, 1998 2.50:1.00
June 30, 1998 2.50:1.00
September 30, 1998 2.60:1.00
December 31, 1998 2.75:1.00
March 31, 1999 2.75:1.00
June 30, 1999 2.75:1.00
September 30, 1999 2.85:1.00
December 31, 1999 3.00:1.00
and thereafter
(b) Total Debt/EBITDA Ratio. Maintain a Total Debt/EBITDA
Ratio of not more than the amount set forth below for each period of
four consecutive fiscal quarters ended at the dates set forth below:
QUARTER ENDING RATIO
-------------- -----
June 30, 1997 4.50:1.00
September 30, 1997 4.50:1.00
December 31, 1997 4.50:1.00
March 31, 1998 4.50:1.00
June 30, 1998 4.50:1.00
September 30, 1998 4.50:1.00
December 31, 1998 4.50:1.00
March 31, 1999 4.00:1.00
June 30, 1999 4.00:1.00
September 30, 1999 4.00:1.00
December 31, 1999 4.00:1.00
March 31, 2000 3.90:1.00
and thereafter
(c) Capital Expenditures. Not make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause the
aggregate of all such Capital Expenditures made by the Affiliate
Guarantors, the Borrower and their respective Subsidiaries to exceed
$275,000,000 in fiscal year 1997 or $250,000,000 in any fiscal year
thereafter,
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plus for the first year following any acquisition or investment by the
Borrower, any Affiliate Guarantor or their respective Subsidiaries, an
amount equal to 10% of the sales attributable to the Person or assets
acquired or investment made for the period of twelve consecutive
calendar months ended immediately prior to the date of determination,
plus for each year following the first anniversary of any acquisition,
an amount equal to 7.5% of such acquisition's target's sales for the
period of twelve consecutive calendar months ended immediately prior to
the date of determination and plus for any fiscal year Equity Proceeds
received by the Borrower or any Affiliate Guarantor on or after March
31, 1997; provided that any Capital Expenditure permitted but not made
in a prior year (commencing with the year 1997) may be carried forward
and added to the amounts set forth above; provided further that for
purposes of this Section 5.04(c) "Capital Expenditures" shall not
include any portion of any acquisition made outside of the ordinary
course of business.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) the Borrower shall fail to pay when due any principal of
any Advance, or the Borrower shall fail to pay any interest or other
amount due under any Loan Document and such failure shall continue for
five or more days; or
(b) any representation or warranty made by any Obligated Party
under or in connection with any Loan Document shall prove to have been
incorrect in any material respect when made; or
(c) any Obligated Party shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(e), 5.02 or 5.04;
or
(d) any Obligated Party shall fail to perform any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30
days after written
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notice thereof shall have been received by the Borrower from the
Administrative Agent or the Required Lenders; or
(e) any Obligated Party or any of its Subsidiaries shall
default in any payment with respect to any Indebtedness in excess of
$15,000,000 individually or $30,000,000 in the aggregate (but excluding
Indebtedness outstanding hereunder) of such Obligated Party and its
Subsidiaries, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Indebtedness; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such
Indebtedness and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Indebtedness or otherwise to cause, or to permit
the holder thereof to cause, such Indebtedness to mature; or any such
Indebtedness shall be declared to be due and payable or required to be
prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Indebtedness shall be required
to be made, in each case prior to the stated maturity thereof; or
(f) any Obligated Party or any of its Material Subsidiaries
shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any Obligated Party or any
of its Material Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted
by it) that is being diligently contested by it in good faith, either
such proceeding shall remain undismissed or unstayed for a period of 60
days or
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any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or any substantial part of its property) shall occur; or any
Obligated Party or any of its Material Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in
this subsection (f); or
(g) any judgment or order for the payment of money in excess
of $15,000,000 individually or $30,000,000 in the aggregate (to the
extent not paid or fully covered by insurance provided by a carrier
that has acknowledged coverage) shall be rendered against any Obligated
Party or any of its Subsidiaries and any such judgment or order shall
not have been vacated, discharged, satisfied or stayed or bonded
pending appeal within 60 days from the entry thereof; or
(h) (i) KKR and its Affiliates or Subsidiaries shall cease to
have beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of the Borrower and each
Affiliate Guarantor that has not been released in accordance with
Section 7.05 (or other Securities convertible into such Voting Stock)
representing 50.1% or more of the combined voting power of all Voting
Stock of the Borrower and each such Affiliate Guarantor, provided that
the percentage required by this subsection (i) shall be reduced to 35%
or more provided that the Borrower maintains an Investment Grade
Rating; or (ii) individuals selected by KKR and its Affiliates or
Subsidiaries (other than the Borrower or an Affiliate Guarantor that
has not been released in accordance with Section 7.05) shall fail to
constitute a majority of the Board of Directors of the Borrower or such
Affiliate Guarantor; or
(i) (i) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such
standard or extension of any amortization period is sought or granted
under Section 412 of the Internal Revenue Code; any Plan is, shall have
been or is likely to be terminated or the subject of termination
proceedings under ERISA; any Plan shall have an Unfunded Current
Liability; or any Affiliate Guarantor, the Borrower, any of their
respective Subsidiaries or any ERISA Affiliate
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has incurred or is likely to incur a liability to or on account of a
Plan under Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069,
4201 or 4204 of ERISA or Section 4971 or 4975 of the Internal Revenue
Code; and (ii) there shall result from any such event or events
referred to in clause (i) above the imposition of a lien, the granting
of a security interest, or a liability or a material risk of incurring
a liability, on the part of any Affiliate Guarantor, the Borrower, any
of their respective Subsidiaries or any ERISA Affiliate, which in each
case would be likely to have a Material Adverse Effect;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to any Obligated Party under the Federal Bankruptcy
Code, (x) the obligation of each Lender to make Advances shall automatically be
terminated and (y) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE VII
GUARANTY
SECTION 7.01. Unconditional Guaranty; Limitation of Liability.
(a) Each Affiliate Guarantor hereby absolutely and unconditionally guarantees
the punctual payment when due, whether at stated maturity, by acceleration or
otherwise, of all obligations of each other Obligated Party now or hereafter
existing under the Loan Documents whether for principal, interest, fees,
expenses or otherwise (such obligations being the "Guaranteed Obligations"), and
agrees to pay any and all reasonable expenses (including reasonable counsel fees
and
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expenses) incurred by the Administrative Agent or any Lender in enforcing any
rights under this Article VII. Without limiting the generality of the foregoing,
each Affiliate Guarantor's liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be owed by any Obligated Party to
the Administrative Agent or any Lender under the Loan Documents but for the fact
that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving such Obligated Party.
(b) The aggregate liability of each Affiliate Guarantor under this
Article VII and under guaranties by such Affiliate Guarantor permitted by
Section 5.02(b)(xii) shall not exceed the greater of (i) the net benefit
realized by such Affiliate Guarantor from the proceeds of the Advances made from
time to time by the Borrower to such Affiliate Guarantor or any Subsidiary of
such Affiliate Guarantor and (ii) the greater of (x) 95% of the Adjusted Net
Assets of such Affiliate Guarantor on the date of delivery hereof and (y) 95% of
the Adjusted Net Assets of such Affiliate Guarantor on the date of any payment
hereunder. "Adjusted Net Assets" of any Affiliate Guarantor at any date means
the lesser of (x) the amount by which the fair value of the property of such
Affiliate Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities, but excluding liabilities under this Article
VII and liabilities under guaranties by such Affiliate Guarantor permitted by
Section 5.02(b)(xii), of such Affiliate Guarantor at such date and (y) the
amount by which the present fair salable value of the assets of such Affiliate
Guarantor at such date exceeds the amount that will be required to pay the
probable liability of such Affiliate Guarantor on its debts, excluding debt in
respect of this Article VII and debt in respect of guaranties by such Affiliate
Guarantor permitted by Section 5.02(b)(xii), as they become absolute and
matured.
SECTION 7.02. Guaranty Absolute. Each Affiliate Guarantor
guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Loan Documents, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of the Administrative Agent or any Lender with respect thereto. The
obligations of each Affiliate Guarantor under this Article VII are independent
of the Guaranteed Obligations, and a separate action or actions may be brought
and prosecuted against each Affiliate Guarantor to enforce this Article VII,
irrespective of whether any action is brought against the Borrower or any other
Affiliate Guarantor or whether the Borrower
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or any other Affiliate Guarantor is joined in any such action or actions. The
liability of each Affiliate Guarantor under this Article VII shall be absolute
and unconditional irrespective of:
(a) any lack of validity or enforceability of any Loan
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from any Loan
Document other than this Article VII, including, without limitation,
any increase in the Guaranteed Obligations resulting from the extension
of additional credit to the Borrower or otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other assets of the Borrower or any other
Obligated Party or any of their respective Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of the Borrower or any other Obligated Party or
any of their respective Subsidiaries; or
(f) any other circumstance (including, without limitation, any
statute of limitations) that might otherwise constitute a defense
available to, or a discharge of, the Borrower, any other Obligated
Party or a guarantor.
This guaranty shall continue to be effective or shall be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the Administrative Agent or any
Lender upon the insolvency, bankruptcy or reorganization of the Borrower, any
other Obligated Party or otherwise, all as though such payment had not been
made.
SECTION 7.03. Waivers. Each Affiliate Guarantor hereby waives
to the extent permitted by applicable law:
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(a) promptness, diligence, notice of acceptance and any other
notice with respect to any of the Guaranteed Obligations and this
Article VII;
(b) any requirement that the Administrative Agent, any Lender
or any other Person protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action
against the Borrower, any Affiliate Guarantor or any other Person or
any collateral;
(c) any defense arising by reason of any claim or defense
based upon an election of remedies by the Administrative Agent or any
Lender that in any manner impairs, reduces, releases or otherwise
adversely affects its subrogation, contribution or reimbursement rights
or other rights to proceed against the Borrower, any Affiliate
Guarantor or any other Person or any collateral; and
(d) any duty on the part of the Administrative Agent or any
Lender to disclose to such Affiliate Guarantor any matter, fact or
thing relating to the business, operation or condition of any Obligated
Party and its assets now or hereafter known by the Administrative Agent
or such Lender, as the case may be.
SECTION 7.04. Subrogation. No Affiliate Guarantor will
exercise any rights that it may now or hereafter acquire against the Borrower,
any other Obligated Party or any other insider guarantor that arise from the
existence, payment, performance or enforcement of such Affiliate Guarantor's
obligations under this Article VII or any other Loan Document, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of the Administrative Agent or any Lender against the Borrower, any other
Obligated Party or any other insider guarantor or any collateral, whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Borrower, any other Obligated Party or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Article VII shall have been paid in full in cash and the Commitments shall have
expired or terminated. If any amount
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shall be paid to any Affiliate Guarantor in violation of the preceding sentence
at any time prior to the later of the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Article VII and the
Revolver Termination Date, or, if the Term Loan Election shall have been made in
accordance with Section 2.04, the Maturity Date, such amount shall be held in
trust for the benefit of the Administrative Agent and the Lenders and the
beneficiaries of guaranties made by the Affiliate Guarantors as permitted by
Section 5.02(b)(xii) and shall forthwith be paid to the Administrative Agent and
such other beneficiaries, and if delivered to the Administrative Agent shall be
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Article VII, whether matured or unmatured, in accordance with the
terms of the Loan Documents, or held as collateral for any Guaranteed
Obligations or other amounts payable under this Article VII thereafter arising.
If (i) any Affiliate Guarantor shall make payment to the Administrative Agent or
any Lender of all or any part of the Guaranteed Obligations, (ii) all of the
Guaranteed Obligations and all other amounts payable under this Article VII
shall be paid in full in cash and (iii) the Revolver Termination Date or, if the
Term Loan Election shall have been made in accordance with Section 2.04, the
Maturity Date shall have occurred, the Administrative Agent and the Lenders
will, at such Affiliate Guarantor's request and expense, execute and deliver to
such Affiliate Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
such Affiliate Guarantor of an interest in the Guaranteed Obligations resulting
from such payment by such Affiliate Guarantor.
SECTION 7.05. Release and Termination. (a) Upon the sale,
transfer or other disposition of all or any portion of the common stock of any
Affiliate Guarantor (including through the primary issuance and sale of shares
of common stock) that the Borrower elects by notice to the Administrative Agent
to designate as a "Guarantee Release Event", the Administrative Agent will, at
the Borrower's expense, execute and deliver to such Affiliate Guarantor such
documents as such Affiliate Guarantor shall reasonably request to evidence the
release of such Affiliate Guarantor from its obligations under this Agreement,
provided, that (i) at the time of such designation and such release no Default
shall have occurred and be continuing, (ii) such sale, transfer or disposition
is in compliance with Section 5.02(d) and (iii) the proceeds of such sale,
transfer or
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disposition required to be applied pursuant to Section 2.06 shall be so applied.
(b) Upon the payment in full of the Guaranteed Obligations (on
or after the Revolver Termination Date or, if the Term Loan Election shall have
been made in accordance with Section 2.04, the Maturity Date), the
Administrative Agent will, at the Borrower's expense, execute and deliver to
each Affiliate Guarantor such documents as such Affiliate Guarantor shall
reasonably request to evidence the termination of the obligations of such
Affiliate Guarantor under this Agreement.
(c) Upon the earlier of the occurrence of a "Guarantee Release
Event" in accordance with subsection (a) above or the termination of obligations
pursuant to subsection (b) above, the applicable Affiliate Guarantor shall be
released from the guaranty of such Affiliate Guarantor under this Article VII
and from all other obligations of such Affiliate Guarantor under this Agreement
and each other Loan Document and such Affiliate Guarantor shall cease to be an
"Affiliate Guarantor" or an "Obligated Party" hereunder.
ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement and
the other Loan Documents as are delegated to the Administrative Agent by the
terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
the Loan Documents (including, without limitation, enforcement or collection of
the Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action that exposes the
Administrative Agent to personal liability or that is contrary to this Agreement
or applicable law. The Administrative Agent agrees to give to each Lender prompt
notice
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of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
SECTION 8.02. Reliance, Etc. (a) None of the Administrative
Agent, any Lead Managing Agent or any Arranger or any of their respective
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Administrative Agent:
(i) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assumption Agreement entered into
by an Assuming Lender as provided in Section 2.18, or an Assignment and
Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
(ii) may consult with legal counsel (including counsel for any Obligated Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations made in or in
connection with the Loan Documents; (iv) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions of any Loan Document on the part of any Obligated Party or to inspect
the property (including the books and records) of any Obligated Party; (v) shall
not be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any Lien created or purported to be created under or in connection
with, any Loan Document or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of any Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telegram, telecopy, cable or telex) believed by it to
be genuine and signed or sent by the proper party or parties.
(b) The Lead Managing Agents and the Arrangers, as such, shall
have no duties or obligations whatsoever with respect to this Agreement, the
Notes or any other document or any matter related thereto.
SECTION 8.03. Lead Managing Agents and Affiliates. With
respect to their respective Commitments, the Advances made
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by them and the Notes issued to them, each of the Lead Managing Agents shall
have the same rights and powers under the Loan Documents as any other Lender and
may exercise the same as though it or its Affiliate were not the Administrative
Agent, a Lead Managing Agent or an Arranger, as the case may be; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include each
of the Lead Managing Agents in its individual capacity. Each of the Lead
Managing Agents and its respective affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, any
Obligated Party, any of its Subsidiaries and any Person who may do business with
or own securities of any Obligated Party or any such Subsidiary, all as if such
Lead Managing Agent or any of its respective Affiliates were not the
Administrative Agent, a Lead Managing Agent or an Arranger, as the case may be,
and without any duty to account therefor to the Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent,
the Lead Managing Agents, any Arranger or any other Lender and based on the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, the Lead
Managing Agents, any Arranger or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement.
SECTION 8.05. Indemnification. Each Lender severally agrees to
indemnify each Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender's ratable share of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against such Agent in any way relating to or
arising out of the Loan Documents or any action taken or omitted by such Agent
under the Loan Documents; provided, however, that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse each Agent promptly upon demand for
its
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ratable share of any costs and expenses payable by the Borrower under Section
9.04, to the extent that such Agent is not promptly reimbursed for such costs
and expenses by the Borrower. For purposes of this Section 8.05, the Lenders'
respective Ratable Shares of any amount shall be determined, at any time,
according to the sum of (a) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lenders and (b) their
respective Unused Commitments at such time. In the event that any Defaulted
Advance shall be owing by any Defaulting Lender at any time, such Lender's
Commitment with respect to the Advance under which such Defaulted Advance was
required to have been made shall be considered to be unused for purposes of this
Section 8.05 to the extent of the amount of such Defaulted Advance. The failure
of any Lender to reimburse any Agent promptly upon demand for its ratable share
of any amount required to be paid by the Lenders to such Agent as provided
herein shall not relieve any other Lender of its obligation hereunder to
reimburse such Agent for its ratable share of such amount, but no Lender shall
be responsible for the failure of any other Lender to reimburse such Agent for
such other Lender's ratable share of such amount.
SECTION 8.06. Successor Administrative Agent. The
Administrative Agent may resign as to all of the Facilities at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Required Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $250,000,000. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent as to all of the Facilities, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Article VIII shall inure to its benefit as to any actions
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taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by each Lender affected thereby (other than any
Lender which is, at such time, a Defaulting Lender) directly: (i) reduce the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the number of Lenders, that shall be required for the Lenders or any
of them to take any action hereunder, (ii) amend this Section 9.01, (iii) extend
the scheduled time of payment of any interest or commitment fee owing to such
Lender, (iv) increase the aggregate amount of the Commitments of such Lender,
(v) reduce the stated rate of interest borne by the Advances owing to such
Lender (other than as a result of waiving the applicability of any post-default
increase in interest rates), forgive all or any part of the principal amount
thereof or reduce the stated rate for calculating any commitment fee owing to
such Lender, (vi) extend the final scheduled maturity of any Advance owing to
such Lender or (vii) release any Affiliate Guarantor from its obligations under
Article VII except as expressly provided in Section 7.05; provided further that
no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note.
SECTION 9.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy, telex or cable communication) and mailed, telegraphed,
telecopied, telexed, cabled or delivered, if to the Borrower, at its address at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Vice President and
Treasurer; if to Foods Holdings, at its address at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; if to Wise Holdings, at its address at ▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; if to
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any Bank, at its Domestic Lending Office specified opposite its name on Schedule
I hereto; if to any other Lender, at its Domestic Lending Office specified in
the Assumption Agreement or the Assignment and Acceptance pursuant to which it
became a Lender, as the case may be; and if to the Administrative Agent, at its
address at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, with a copy to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇; or, as to the Borrower or the Administrative
Agent, at such other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such other address
as shall be designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telecopied, telexed or cabled, be effective when deposited in the
mails, delivered to the telegraph company, transmitted by telecopier, confirmed
by telex answerback or delivered to the cable company, respectively, except that
notices and communications to the Administrative Agent pursuant to Article II,
III or VIII shall not be effective until received by the Administrative Agent.
SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Lender, any Arranger or the Administrative Agent to exercise, and no delay
in exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand (i) all reasonable and documented costs and out-of-pocket expenses
of each Agent in connection with the preparation, execution, delivery and
amendment of the Loan Documents (including, without limitation, (A) all due
diligence, syndication (including printing, distribution and bank meetings),
transportation, computer, telecommunications, duplication, audit, insurance,
consultant, search, filing and recording fees and all other out-of-pocket
expenses in an aggregate amount agreed to by the Arrangers and the Borrower and
(B) the reasonable and documented fees and out-of-pocket expenses of counsel for
the Lead Managing Agents and the Arrangers) with respect thereto, with respect
to advising the Administrative Agent as to its rights and responsibilities, or
the perfection, protection or preservation of rights or interests, under the
Loan Documents, with respect to negotiations with any Obligated Party or with
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other creditors of any Obligated Party or any of its Subsidiaries arising out of
any Default or any events or circumstances that may give rise to a Default and
with respect to presenting claims in or otherwise participating in or monitoring
any bankruptcy, insolvency or other similar proceeding involving creditors'
rights generally and any proceeding ancillary thereto), (ii) all reasonable and
documented costs and out-of-pocket expenses of the Administrative Agent in
connection with the administration of the Loan Documents and (iii) all
reasonable and documented costs and out-of-pocket expenses of the Administrative
Agent and the Lenders in connection with the enforcement of the Loan Documents,
whether in any action, suit or litigation, any bankruptcy, insolvency or other
similar proceeding affecting creditors' rights generally or otherwise
(including, without limitation, the reasonable and documented fees and
out-of-pocket expenses of counsel for the Administrative Agent and each Lender
with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless each
Agent and each Lender and each of their respective Affiliates and their
respective officers, directors, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable and
documented fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of, or in connection with the preparation for a
defense of, any investigation, litigation or proceeding arising out of, related
to or in connection with this Agreement (including, without limitation, the
Notes and any of the transactions contemplated herein or in any other Loan
Document or the actual or proposed use of the proceeds of the Advances) whether
or not such investigation, litigation or proceeding is brought by any Obligated
Party, its directors, shareholders or creditors or an Indemnified Party or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense results from such Indemnified Party's
gross negligence or willful misconduct. The Borrower also agrees not to assert
any claim against any Agent or any Lender or any of their respective Affiliates
or any of their respective directors, officers, employees, attorneys and agents,
on any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Notes, this Agreement, any
of the transactions contemplated herein or in any other Loan Document or the
actual or proposed use of the proceeds of the Advances.
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Each Indemnified Party agrees to notify the Borrower, promptly
after obtaining actual knowledge thereof, of the assertion against it or any
other Person of any claim or the commencement of any action or proceeding
relating to this Agreement (including, without limitation, the Notes and any of
the transactions contemplated herein or in any other Loan Document or the actual
or proposed use of the proceeds of the Advances) which such Indemnified Party
considers to be a claim, action or proceeding with respect to which it is
entitled to indemnification hereunder, but failure to so notify will not relieve
the Borrower from any liability under this Section 9.04(b). Each Indemnified
Party will be entitled to defend any such claim, action or proceeding, and may
employ or retain counsel to represent it in, and to defend, such claim, action
or proceeding and the Borrower will pay the reasonable and documented fees and
out-of-pocket expenses of such counsel; provided, however, that the Indemnified
Parties shall, to the extent practicable, choose one counsel to act on their
behalf at the Borrower's expense, which counsel, at the request of the Borrower,
shall also represent and defend the Borrower in such claim, action or proceeding
unless an Indemnified Party reasonably determines based on an opinion of outside
counsel that having common counsel would present such counsel with a conflict of
interest. In the event of such determination, such Indemnified Party or Parties
shall not be required to share counsel and shall be entitled to full
indemnification for such counsel's fees and expenses as otherwise provided
herein.
(c) If any payment of principal of, or Conversion of, or
failure to Convert as a result of a withdrawn notice of Conversion, any
Eurodollar Rate Advance, LIBO Rate Advance or Fixed Rate Advance is made by the
Borrower to or for the account of a Lender other than on the last day of the
Interest Period for such Advance, as a result of a payment or Conversion
pursuant to Section 2.07, 2.10(b)(i) or 2.11(d), acceleration of the maturity of
the Notes pursuant to Section 6.01 or for any other reason, the Borrower shall,
after receipt of a written request by such Lender (which request shall set forth
in reasonable detail the basis for requesting such amount and shall also be sent
upon demand by such Lender (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment, including,
without limitation, any loss cost or expense (excluding loss of anticipated
profits) actually incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such Advance.
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(d) Without prejudice to the survival of any other agreement
of the Borrower and each other Obligated Party hereunder, the agreements and
obligations of the Borrower contained in Sections 2.11, 2.13 and 9.04 shall
survive the payment in full of the principal and interest hereunder and under
the Notes.
SECTION 9.05. Right of Set-Off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its branches and agencies is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and otherwise apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender, its branches or agencies to or
for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Notes held by such Lender, irrespective of whether such Lender shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Lender, its branches or agencies under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) that such Lender, its branches or agencies may have.
SECTION 9.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower, the Affiliate
Guarantors and the Administrative Agent and when the Administrative Agent shall
have been notified by each Bank that such Bank has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
or obligations hereunder or any interest herein without the prior written
consent of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender
(x) may assign to one or more of its Affiliates or Subsidiaries and (y) may with
the prior consent of the Administrative Agent and the Borrower (such consents
not to be unreasonably withheld or delayed) assign to one or more banks or other
entities, all or a portion of its rights and obligations
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under this Agreement (including, without limitation, all or a portion of its
Commitments, the Advances owing to it and the Notes held by it); provided,
however, that such assignment or any activity intended to give rise to an
assignment shall not be initiated prior to the receipt by the Lenders of notice
from the Arrangers that the syndication of this Agreement has been completed;
provided further, however, that (i) each such assignment shall be of a uniform,
and not a varying, percentage of all such Lender's rights and obligations under
and in respect of the Facility (other than any right to make Competitive Bid
Advances or Competitive Bid Advances owing to it), (ii) except in the case of an
assignment to a Person that immediately prior to such assignment was a Lender or
an assignment of all of a Lender's rights and obligations under this Agreement
the amount of the Commitments of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than $10,000,000,
(iii) each such assignment shall be to a Lender, an Eligible Assignee or to an
Affiliate or Subsidiary of the assignor, and (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment, and a processing and recordation fee
of $3,000 for each assignment completed after the notice referred to in the
first proviso of this Section 9.07 has been received. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in such Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality,
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validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any Lien created or purported to be created under or
in connection with, this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower or any other Obligated Party or the performance or observance by the
Borrower or any other Obligated Party of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Administrative
Agent, such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is a Lender, an Eligible Assignee or an Affiliate of
the assignor; (vi) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 9.02 a copy of each Assumption Agreement and each
Assignment and Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Advances owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, together with
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any Note or Notes subject to such assignment, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes a new Note or
Notes to the order of such assignee in an amount equal to the Commitment assumed
by it pursuant to such Assignment and Acceptance and, if the assigning Lender
has retained a Commitment hereunder, new Notes to the order of the assigning
Lender in an aggregate amount equal to the aggregate Commitments retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A-1 hereto.
(e) Each Lender may sell participations in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of such Note or Notes for all purposes
of this Agreement, (iv) the Borrower, the Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no participant
under any such participation and no sub-participant of such participation shall
have any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by the Borrower therefrom, except to
the extent that such amendment, waiver or consent would directly: reduce the
stated rate of interest borne by the Advances owing to such participant (other
than as a result of waiving the applicability of any post-default increase in
interest rates), forgive all or any part of the principal amount thereof, reduce
the stated rate for calculating any commitment fee owing to the Lenders or
extend the final scheduled maturity of any Advance owing to such participant, in
each case to the extent subject to such participation.
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(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided, however, that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall have executed a confidentiality agreement substantially in the form of
Exhibit F hereto and returned to same to such Lender and the Borrower.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 9.08. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 9.09. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.10. Confidentiality. Each Lender has heretofore
executed a confidentiality agreement in the form of Exhibit F hereto and
returned a copy thereof to the Borrower. Each Lender shall hold all non-public
information obtained pursuant to this Agreement in accordance with the terms of
such confidentiality agreement and in accordance with safe and sound banking
practices and, subject to Section 9.07, may make disclosure reasonably requested
by any bona fide transferee in connection with the contemplated transfer of any
Advances or participation therein or as required or requested by any
governmental authority or pursuant to legal process; provided that each such
transferee shall have previously signed and returned to such Lender a
confidentiality agreement in the form of Exhibit F, and such Lender agrees to
send to the Borrower promptly a copy of each such confidentiality agreement
executed by such transferee.
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SECTION 9.11. Redesign. The Lenders hereby agree that, in
accordance with Section 5.01(h), the Borrower, its Subsidiaries, the Affiliate
Guarantors and their Subsidiaries may enter into the Redesign Documents on the
following terms and conditions:
(a) Trademarks. The Borrower and its Subsidiaries may transfer
trademarks to be used by ▇▇▇▇▇▇ Foods Holdings, LLC and its
Subsidiaries to a partnership organized pursuant to terms substantially
the same as those set forth in Exhibit H hereto, provided that the
executed Amended and Restated Agreement of Limited Partnership of BFC
Investments, L.P. shall contain provisions strictly conforming to those
set forth in Exhibit H as (i) the defined term "Percentage Interest"
and (ii) Section 5.3(b).
(b) Dairy Business. The Borrower and its Subsidiaries may
transfer the Dairy Business to an Affiliate Guarantor and any of such
Affiliate Guarantor's Subsidiaries having a structure substantially the
same as that of Wise Holdings, Inc. and its Subsidiaries, pursuant to
terms substantially the same as those set forth in the form of
Conveyance and Transfer Agreement attached as Exhibit I hereto,
provided that (i) the consideration for the transfer of the subject
assets shall not be less than Fair Market Value and (ii) upon the
consummation of such transfer the Borrower and such Affiliate Guarantor
shall deliver to the Administrative Agent a certificate in the form of
Exhibit J hereto.
(c) Options on Assets. The initial Options granted in respect
of certain of the assets of ▇▇▇▇▇▇ Foods Holdings Corporation and its
Subsidiaries shall be issued pursuant to terms substantially the same
as those set forth in the form of Option Agreement attached as Exhibit
L hereto, provided that the consideration for the issuance of such
Options shall not exceed $95,000,000 in the aggregate, which may
consist of ▇▇▇▇▇▇ Holdings Notes in whole or in part.
SECTION 9.12. Waiver of Jury Trial. Each of the Borrower, the
Agents and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to any of the Loan Documents, the Advances
or the actions of any Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
▇▇▇▇▇▇, INC.
By ________________________________
Name:
Title:
▇▇▇▇▇▇ FOODS HOLDINGS CORPORATION
By ________________________________
Name:
Title:
WISE HOLDINGS, INC.
By ________________________________
Name:
Title:
CITIBANK, N.A., as Administrative
Agent
By ________________________________
Name:
Title:
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ARRANGERS
BT SECURITIES CORPORATION,
as Arranger
By_________________________________
Name:
Title:
CHASE SECURITIES INC.,
as Arranger
By_________________________________
Name:
Title:
CITICORP SECURITIES, INC.,
as Arranger
By_________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as Arranger
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
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BANKS
LEAD MANAGING AGENTS
BANKERS TRUST COMPANY
By ______________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By ______________________________
Name:
Title:
CITIBANK, N.A.
By ______________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By ______________________________
Name:
Title:
By ______________________________
Name:
Title:
SENIOR MANAGING AGENTS
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NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By ___________________________________
Name:
Title:
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By ___________________________________
Name:
Title:
NATIONSBANK, N.A.
By ___________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By ___________________________________
Name:
Title:
MANAGING AGENTS
THE BANK OF NEW YORK
By ___________________________________
Name:
Title:
BANK OF TOKYO - MITSUBISHI
TRUST COMPANY
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By ___________________________________
Name:
Title:
THE FIRST NATIONAL BANK
OF CHICAGO
By ___________________________________
Name:
Title:
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THE FUJI BANK, LIMITED
By ___________________________________
Name:
Title: