REVOLVING CREDIT AGREEMENT
by and among
XXXXXX FOODS, INC.,
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
NATIONSBANK OF TEXAS, N.A.,
CAISSE NATIONALE DE CREDIT AGRICOLE,
XXXXXX TRUST AND SAVINGS BANK,
SUNTRUST BANK, ATLANTA,
BOATMEN'S FIRST NATIONAL BANK OF KANSAS CITY
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH, as Agent
and
NATIONSBANK OF TEXAS, N.A., as Documentation Agent
dated as of
April 30, 1996
TABLE OF CONTENTS
Section Page
ARTICLE I - COMMITTED ADVANCES, BID RATE ADVANCES
AND CERTAIN FEES....................................1
1.01 The Facilities....................................................1
1.02 Agency Fee........................................................2
1.03 Facility Fee......................................................2
ARTICLE II - TERMS OF THE ADVANCES...............................2
2.01 The Advances......................................................2
2.02 Making the Committed Advances.....................................2
2.03 Bid Rate Credits..................................................3
ARTICLE III- REPAYMENT AND PREPAYMENT OF THE ADVANCES............3
3.01 Repayment, Optional Prepayment and Application of
Credit Payments...................................................4
3.02 Interest..........................................................6
3.03 Increased Costs.... ..............................................8
3.04 Changes in Law Rendering Certain LIBOR Rate Advances
Unlawful..........................................................8
3.05 Payments and Computations.........................................9
3.06 Payment on Non-Business Days......................................9
3.07 Pro Rata Committed Advances.......................................9
3.08 Maximum Amount Limitation.........................................9
3.09 Notation on Schedule.............................................10
ARTICLE IV - CONDITIONS PRECEDENT...............................10
4.01 Conditions Precedent to Initial Advances.........................10
4.02 Conditions Precedent to All Advances.............................11
4.03 Failure to Provide Certificate...................................12
ARTICLE V - REPRESENTATIONS AND WARRANTIES.....................12
5.01 Representations and Warranties of the Borrower...................12
ARTICLE VI - COVENANTS OF THE BORROWER..........................15
6.01 Affirmative Covenants............................................15
6.02 Negative Covenants...............................................19
ARTICLE VII- EVENTS OF DEFAULT..................................22
7.01 Events of Default................................................22
ARTICLE VIII- DEFINITIONS........................................24
8.01 Certain Defined Terms............................................24
8.02 Construction.....................................................32
8.03 Currency.........................................................32
ARTICLE IX - THE AGENT..........................................33
9.01 Authorization and Action.........................................33
9.02 Duties and Obligations...........................................33
9.03 Agent and Affiliates.............................................33
9.04 Bank Credit Decision.............................................34
9.05 Indemnification..................................................34
9.06 Resignation of Agent.............................................34
9.07 Exchange of Information..........................................35
9.08 Benefit of the Banks Only........................................35
ARTICLE X - MISCELLANEOUS......................................35
10.01 Amendments, Etc..................................................35
10.02 Notices, Etc.....................................................35
10.03 No Waiver; Remedies..............................................36
10.04 Accounting Terms.................................................36
10.05 Costs, Expenses and Taxes........................................36
10.06 Right of Set-off.................................................37
10 07 Indemnification..................................................37
10.08 Severability of Provisions.......................................38
10.09 Binding Effect; Successors and Assigns; Participations...........38
10.10 Consent to Jurisdiction..........................................39
10.11 Governing Law....................................................39
10.12 Banks' Obligations Several, Not Joint............................39
10.13 Execution in Counterparts........................................39
10.14 Waiver of Jury Trial.............................................39
10.15 No Oral Agreements...............................................40
10.16 No Effect on Certain Other Rights and Obligations................40
10.17 Amendment and Restatement........................................40
LIST OF SCHEDULES AND EXHIBITS
Schedule 6.02(a) Description of Certain Liens, Lease Obligations, Etc.
Schedule 6.02(d) Description of Liabilities
Schedule 8.01 Subordinated Debt
Exhibit A Form of Promissory Note
Exhibit B Form of Guaranty
Exhibit C Form of Legal Opinion
Exhibit D Form of Notice of Committed Borrowing
Exhibit E Form of Request for Bids
Exhibit F Form of Outstandings Report
REVOLVING CREDIT AGREEMENT
Dated as of April 30, 1996
XXXXXX FOODS, INC., a Delaware corporation (the "Borrower"),
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW
YORK BRANCH ("Rabobank") and the other commercial, banking and financial
institutions whose signatures appear on the signature pages hereof or which
hereafter become parties hereto pursuant to Section 10.09 (Rabobank and such
other additional commercial, banking or financial institutions are sometimes
referred to hereinafter collectively as the "Banks" and individually as a
"Bank"), Rabobank, as agent for the Banks hereunder (in such agency capacity,
the "Agent"), and NationsBank of Texas, N.A., as documentation agent, agree as
follows:
ARTICLE I
COMMITTED ADVANCES, BID RATE ADVANCES
AND CERTAIN FEES
SECTION 1.01. The Facilities. (a) Each Bank agrees, severally and not
jointly, on the terms and conditions hereinafter set forth, to extend credit to
the Borrower during the period from the date hereof to the Termination Date
(this and certain other capitalized terms are defined in Section 8.01) by making
advances (the "Committed Advances") to the Borrower on a revolving basis from
time to time; provided that at no time shall any Bank be obligated to make a
Committed Advance in any amount which would exceed the lesser of (i) such Bank's
Available Commitment at such time, or (ii) such Bank's Available Commitment
Share of the Committed Borrowing pertaining to such Committed Advance. Within
the foregoing limit, and subject to the terms and conditions hereunder set
forth, the Borrower may borrow pursuant to this Section 1.01(a), prepay pursuant
to Section 3.01(b), and reborrow in accordance with this Section 1.01(a).
(b) Each Bank may, severally and not jointly, on the terms and
conditions hereinafter set forth, extend credit to the Borrower during the
period from the date hereof to the Termination Date by making advances (the "Bid
Rate Advances") to the Borrower or otherwise extending Bid Rate Credit to the
Borrower from time to time; provided (i) that at no time shall any Bank make a
Bid Rate Advance or otherwise extend any Bid Rate Credit in any amount which
would exceed the amount of such Bank's Available Commitment at such time and
(ii) at no time shall (A) the sum of (I) the outstanding Bid Rate Advances and
(II) the outstanding Bid Rate Credits (other than Bid Rate Credits consisting of
Bid Rate Advances) exceed (B) fifty percent (50%) of the Total Commitment.
(c) The Borrower shall have the right, upon at least five (5) Business
Days' notice to a Bank, to terminate in whole or reduce in part such Bank's
Available Commitment (which shall include the termination in whole or the
reduction in part of the obligation of such Bank to make Advances to the
Borrower in the amount specified in Section 1.01(a) in the event of such
termination or reduction), provided, however, that each partial reduction shall
be in the amount of $5,000,000 or an integral multiple thereof.
(d) So long as no Event of Default shall have occurred and be
continuing at such time, the Borrower may request, at least sixty (60) days
prior to each anniversary of the date hereof, Agent and the Banks to extend the
Termination Date to the third anniversary date next following the date of such
determination. Such request shall be in writing to Agent and each Bank. Within
the thirty (30) day period immediately following its receipt of such request,
each Bank shall notify the Borrower in writing whether it elects to so extend
the Termination Date. Any failure by a Bank to so notify the Borrower shall be
deemed a decision by such Bank to not extend the Termination Date. No Bank shall
be obligated to extend the Termination Date, and if less than all of the Banks
elect to extend the Termination Date pursuant to this Section 1.01(d), the
Termination Date shall not be extended.
SECTION 1.02. Agency Fee. The Borrower agrees to pay to the Agent,
for its account, an annual agency fee (the "Agency Fee") in an amount determined
jointly by the Borrower and the Agent from time to time and set forth in a
separate letter agreement between the Borrower and Agent (the "Agency Fee
Letter").
SECTION 1.03. Facility Fee. The Borrower agrees to pay to each Bank a
facility fee on the amount of such Bank's Commitment (as such Commitment may be
reduced from time to time pursuant to Section 1.01(c)) from the date hereof
until the Termination Date at a rate of one-quarter of one percent (0.25%) per
annum, payable in arrears on the last day of each calendar quarter during the
term of such Bank's Commitment, commencing on the last day of the calendar
quarter first occurring after the date hereof, and on the Termination Date (the
"Facility Fee").
ARTICLE II
TERMS OF THE ADVANCES
SECTION 2.01 The Advances. Each Advance shall be in an amount of
$500,000 or a greater amount which is an integral multiple of $50,000.
SECTION 2.02. Making the Committed Advances. (a) Each Committed
Advance shall be made, to the extent that a Bank is so obligated under Section
1.01, on notice from the Borrower in writing in the form of Exhibit D hereto (a
"Notice of Committed Borrowing") to the Agent delivered before 11:00 A.M. (New
York City time) on, (i) in the case of a LIBOR Rate Advance, a Business Day
which is at least two (2) Business Days prior to the first day of the Interest
Period for such Committed Borrowing and (ii) in the case of a Base Rate Advance,
on the first day of the Interest Period for such Committed Borrowing, containing
the representations and other information contemplated in Exhibit D hereto and
accompanied by a duly executed Outstandings Report dated as of the first day of
the Interest Period for such Committed Borrowing. The Agent shall in turn
promptly notify each Bank by telephone (confirmed immediately by telex, cable or
facsimile), telex, cable or facsimile of the aggregate amount of, and the
initial Interest Period for, such Borrowing and such Bank's ratable portion of
such Borrowing. Each Bank shall, not later than 1:00 P.M. (New York City time)
on the date of such Borrowing specified in the notice received from the Agent
pursuant to the preceding sentence, deposit such Bank's ratable portion of such
Borrowing in same day funds to the Agent's Depository Account and include in a
communication accompanying such deposit a reference that such funds pertain to a
Committed Borrowing by the Borrower under this Agreement. Not later than 3:00
P.M. (New York City time) on the later of the date of such Borrowing specified
in such notice or the first Business Day thereafter upon which the applicable
conditions set forth in Article IV have been fulfilled, Agent will make such
Advance available, to the extent that Agent is so obligated under Section 1.01,
to the Borrower in same day funds at Agent's address referred to in Section
10.02.
(b) Each Notice of Committed Borrowing shall be irrevocable and
binding on the Borrower and, in respect of the Committed Borrowing specified in
such Notice of Committed Borrowing, the Borrower shall indemnify each Bank
against any loss or expense incurred by such Bank as a result of any failure to
fulfill on or before the date specified for such Borrowing the applicable
conditions set forth in Article IV, including, without limitation, any loss
(including loss of Anticipated Profits) or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by the Bank to
fund the Advance to be made by such Bank as part of such Committed Borrowing
when such Advance, as a result of such failure, is not made on such date.
Provided that notice shall have been given to Borrower of the reasons therefor,
determinations by a Bank for purposes of this Section 2.02(b) shall be
conclusive, provided that such determinations are made reasonably and in good
faith.
(c) Unless the Agent shall have received notice from a Bank prior to
the date of any Committed Borrowing that such Bank will not make available to
the Agent such Bank's ratable portion of such Borrowing, the Agent may assume
that such Bank has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent such Bank shall not have so
made such ratable portion available to the Agent, Rabobank may, in its sole
discretion, make such ratable portion so available, in which case such portion
shall constitute an additional Committed Advance made by Rabobank in connection
with such Committed Borrowing, and Rabobank's Commitment in connection with such
Committed Borrowing shall be deemed increased to the extent required in order
for Rabobank to make such portion so available.
(d) The failure of a Bank to make the Committed Advance to be made by
it as part of any Borrowing shall not relieve any other Bank of its obligation,
if any, hereunder to make its Committed Advance on the date of such Committed
Borrowing, but no Bank shall be responsible for the failure of any other Bank to
make the Committed Advance to be made by such other Bank on the date of any
Borrowing.
SECTION 2.03. Bid Rate Credits. From time to time, Borrower may
request of any one or more of the Banks, and any one or more such Banks may in
their sole and absolute discretion agree, to extend credit to the Borrower in
the form of Advances, Acceptances, Letters of Credit or otherwise to the
Borrower in such amount, at such pricing and on such other terms and conditions
as are agreed to by the Borrower and such Bank from time to time and are not
inconsistent with the terms and provisions of this Agreement (each, a "Bid Rate
Credit" and collectively, the "Bid Rate Credits"). Such requests shall be made
telephonically to such Banks as Borrower may select in its sole discretion and
confirmed promptly in writing by delivery of completed Requests for Bids in the
form of Exhibit E hereto. Each Request For Bids shall be for an amount not less
than $500,000 (or, if greater, an integral multiple of $500,000). No Bank shall
be obligated to make any Bid Rate Credit at any time unless such Bank in its
sole and absolute discretion then chooses to do so. Any and all Bid Rate Credits
made by any Bank(s) pursuant to this Section 2.03 shall be entitled to all of
the rights, protections, and benefits of this Agreement and each of the other
Loan Documents.
ARTICLE III
REPAYMENT AND PREPAYMENT OF THE ADVANCES
SECTION 3.01. Repayment, Optional Prepayment and Application of
Certain Payments. (a) The Borrower shall repay the aggregate unpaid principal
amount of all Committed Advances of each Bank in accordance with the terms of
the promissory notes of the Borrower, in substantially the form of Exhibit A
hereto (the "Notes"), evidencing the indebtedness resulting from such Advances
and delivered to the Bank pursuant to Article IV or Section 10.08. All payments
of principal of, or interest, premium or other amounts on, the Committed
Advances shall be made by the Borrower to the Agent in immediately available
funds for the account of the holders of the relevant Notes. All payments of
principal of, or interest, premium or other amounts on, the Bid Rate Credits
shall be made by the Borrower to the respective Bank or Banks which extended
such Bid Rate Credits in accordance with the terms and conditions agreed upon
between the Borrower and respective Bank or Banks with respect thereto. All
payments of the Facility Fee shall be made by the Borrower to the Banks by a
check payable to the order of each such Bank which is duly honored upon the
presentment thereof, or in immediately available funds, in each case, pro rata
according to their respective Commitments. All payments of the fees described in
the Agency Fee Letter shall be made by the Borrower to the Agent by check for
the account of Rabobank as Agent. Payments shall be made to the Agent and/or
Banks at their respective addresses specified in Section 10.02 (or at such other
addresses as they may have specified for such purposes in written notices to the
Borrower) not later than 1:00 p.m. (New York City time) on the due date (or such
time as is agreed upon by the Borrower and the Agent and/or Banks, as the case
may be, on the date due. The Agent shall promptly remit to each Bank in
immediately available funds such Bank's share of all such payments received by
the Agent for the account of such Bank. All payments by the Borrower of
principal, interest, fees, indemnities and other amounts payable to any
recipient hereunder shall be made without setoff or counterclaim and free and
clear of, and without withholding or deduction for or on account of, any present
or future taxes now or hereafter imposed on such recipient or its income,
property, assets or franchise.
(b) The Borrower may, upon at least one (1) Business Day's notice to
the Agent and the Banks, and if such notice is given the Borrower shall, prepay
the outstanding amount of any Advances in whole or in part (pro rata among the
Banks after and during the continuance of an Event of Default), with accrued
interest to the date of such prepayment on the amount prepaid and any and all
amounts payable in respect thereof hereunder; provided, however, that any
prepayment of any Advance shall be made on, and only on, the last day of an
Interest Period for such Advance and, in the event that any Bank receives
payment of the principal of any Advance other than on the last day of the
Interest Period relating to such Advance (whether due to prepayments made by the
Borrower, or due to acceleration of the Bank Obligations, or due to any other
reason), the Borrower shall pay to such Bank on demand any amounts required to
compensate the Bank for any additional losses, costs or expenses which it may
incur as a result of such payment. Provided that notice shall have been given to
Borrower of the reasons therefor, determinations of such losses, costs or
expenses by a Bank for purposes of this Section 3.01(b) shall be conclusive,
provided that such determinations are made reasonably and in good faith. All
payments of principal made pursuant to this Section 3.01(b) shall be applied to
the outstanding balance in inverse order of maturity.
(c) Prior to the occurrence and continuation of an Event of Default,
each payment of principal shall be applied to such of the maturing Committed
Advances or Bid Rate Credits as the Borrower shall direct; provided, that (i)
any Advances of the Borrower maturing the same day shall be paid pro rata among
such Advances and (ii) any payments in respect of a Committed Advance shall be
paid to the Agent for the account of the holders of the Notes, which payments
shall be remitted to such holders. Concurrently with each remittance to any Bank
of its share of any such payment in respect of a Committed Advance, the Agent
shall advise each Bank as to the application of such payment. Following the
occurrence and during the continuation of an Event of Default, the Agent and the
Banks shall apply all collections and recoveries of the Advances and the other
Bank Obligations hereunder to payment of outstanding Bank Obligations on a pro
rata basis to each Bank based on the respective amount of such Bank Obligations
owed to each Bank (whether or not mature and currently payable). Without
limiting the foregoing, in the case of payments of principal made following the
occurrence and during the continuation of an Event of Default while there are
Bank Obligations consisting of Letter of Credit Liabilities and Acceptances then
outstanding, each Bank primarily or contingently liable with respect thereto
may, at its option, require the Borrower to deposit with such Bank funds equal
to the amount of payment of principal that such Bank would have received with
respect thereto had the undrawn face amount thereof been an outstanding Advance
(and if the Borrower fails to promptly make such deposit, such Bank may advance
such amount as a Committed Advance). Any such deposit or advance described in
the immediately preceding sentence shall be held by such Bank as a reserve to
fund future payments by such Bank on such Letter of Credit Liabilities and
Acceptances, at such time as all of such Bank Obligations have been drawn upon
or expired any remaining amounts in such reserve shall be applied to the other
remaining Bank Obligations. The Agent shall endeavor to promptly notify the
Borrower and each Bank of the occurrence of an Event of Default; provided,
however, that a failure by the Agent to give such a notice shall not impair the
rights of the Agent or any Bank with respect to any such Event of Default or
result in any liability to the Agent. The Banks and Agent agree that if any
distribution shall be made by the Agent contrary to this Section 3.01(c)
(whether because the Agent shall not, at the time of distribution, have been
aware of the occurrence of any Event of Default or otherwise), the Banks shall
cooperate with the Agent to redistribute payments, collections or recoveries in
accordance with this Section 3.01(c).
SECTION 3.02. Interest. (a) The Borrower shall pay interest on the
unpaid principal amount of each Advance from the date of such Advance until such
principal is paid in full at the Applicable Rate (as hereinafter defined) as set
forth below.
(b) The period between the date of each Advance and the date of
payment in full of such Advance shall be divided into successive periods, each
such period being an "Interest Period" for such Advance. Notwithstanding the
duration of the applicable Interest Period, interest on the unpaid amount of
each Advance shall be due and payable in accordance with Section 3.02(c) below
and the other applicable provisions of this Agreement. The initial Interest
Period for each Advance shall begin on the date of such Advance and end on the
last day of such period as selected by the Borrower, and thereafter, each
subsequent Interest Period for such Advance shall begin on the last day of the
immediately preceding Interest Period for such Advance and end on the last day
of such period as selected by the Borrower in accordance with the terms hereof.
The duration of each such Interest Period for each Advance shall be the period
commencing on (and including) the date upon which such Advance is made and (x)
in regards to LIBOR Rate Advances and those Base Rate Advances made for periods
of one month or greater, ending on (but excluding) the day numerically
corresponding to such date one month or three months thereafter, in each case as
selected by the Borrower in the relevant Notice of Committed Borrowing, (y) in
regards to Base Rate Advances made for periods of less than one month, ending on
the date on which the principal amount of such Base Rate Advance becomes due and
payable and (z) in regards to Bid Rate Credits, ending on such date as is agreed
to between the Borrower and each Bank which makes such Bid Credit available to
the Borrower; provided, however, that:
(i) the duration of any Interest Period for any Advance that commences
before the Termination Date and otherwise ends after the Termination Date shall
end on the Termination Date;
(ii) the duration of Interest Periods shall be the same for all
Committed Advances comprising a Committed Borrowing;
(iii) any Interest Period which would otherwise end on a day which is
not a Business Day shall continue to and end on the next succeeding Business
Day, unless the result would be that such Interest Period would be extended to
the next succeeding calendar month in which case such Interest Period shall end
on the next preceding Business Day;
(iv) if there exists no numerically corresponding day in such month,
such Interest Period shall end on the last Business Day of such month; and
(v) if the Borrower fails to select the duration of any Interest
Period for an Advance, the duration of such Interest Period shall be one month
or such other duration as shall be required in order to comply with the
provisions hereof.
(c) The Borrower shall pay interest on the unpaid principal amount of
each Advance from the date of such Advance until such principal amount is due,
payable on (x) in the case of Advances during any Interest Period with respect
to which interest is payable hereunder at the Base Rate (other than those made
for periods of less than one month), the last day of each calendar month and on
the Termination Date, and (y) in all other cases, on the last day of each
Interest Period for such Advance, at an interest rate per annum equal at all
times during such Interest Period for such Advance to the Applicable Rate (as
defined below); provided, however, that for any Advance having an Interest
Period of three months, interest thereon shall be due and payable monthly in
arrears, commencing on the day one month after the first day of such Interest
Period, and on the last day of such Interest Period. The term "Applicable Rate",
as used herein, shall mean an interest rate per annum equal at all times during
the Interest Period then applicable to such Advance to whichever of the
following rates is selected by the Borrower:
(i) in the case of Committed Advances, either (A) in the case of Base
Rate Advances, the Base Rate, as the same shall from time to time change as and
when the Base Rate changes; or (B) in the case of LIBOR Rate Advances, (I) if
the Borrower's Adjusted Leverage Ratio as of the last day of the most recently
preceding fiscal quarter for which Borrower has delivered financial statments
described in Section 6.01(e)(iv) is less than 0.35 to 1, a rate equal to
one-quarter of one percent (0.25%) in excess of the LIBOR Rate in effect on the
first day of such Interest Period, (II) if the Borrower's Adjusted Leverage
Ratio as of the last day of the most recently preceding fiscal quarter for which
Borrower has delivered financial statments described in Section 6.01(e)(iv) is
0.35 to 1 or greater but less than 0.45 to 1, a rate equal to two-fifths of one
percent (0.40%) in excess of the LIBOR Rate in effect on the first day of such
Interest Period or (III) if the Borrower's Adjusted Leverage Ratio as of the
last day of the most recently preceding fiscal quarter for which Borrower has
delivered financial statments described in Section 6.01(e)(iv) is 0.45 to 1 or
greater, a rate equal to one-half of one percent (0.50%) in excess of the LIBOR
Rate in effect on the first day of such Interest Period; or
(ii) in the case of Bid Rate Advances, the Bid Rate in effect on the
first day of such Interest Period of such Bank as is making such Bid Rate
Advance; provided, however, that if any Bank is unable to acquire the funds upon
which the interest rate described in clause (i)(B) or (ii) immediately above is
based for such Interest Period or the Borrower fails to select an interest rate
in accordance with the terms hereof, then the Applicable Rate for such Interest
Period will be the Base Rate; provided, further, that in no event shall the
Applicable Rate exceed the maximum nonusurious interest rate, if any, that at
any time, or from time to time, may be contracted for, taken, reserved, charged,
or received under applicable state or federal laws (the "Maximum Rate"). The
term "Adjusted Leverage Ratio," as used herein, means the quotient (expressed as
a ratio) of (I) the sum of (A) indebtedness with maturities greater than one
year (including all current portions thereof), plus (B) subordinated debt,
divided by (II) the sum of (A) indebtedness with maturities greater than one
year (including all current portions thereof), plus (B) subordinated debt, plus
(C) book equity, plus (D) long-term deferred taxes attributable to Borrower's
prior use of cash accounting, plus (E) deferred taxes attributable to Borrower's
use of the "farm price" method of accounting for deferred taxes. For purposes of
calculating the Adjusted Leverage Ratio in connection with this Section 3.02(c),
all Advances shall be considered indebtedness with a maturity greater than one
year.
(d) All past due principal and, to the extent permitted by applicable
law, interest, fees and other amounts owing hereunder upon the Advances, shall
bear interest, from the date such amount becomes due to the date such amount is
paid in full, at the Default Rate (as defined below) and shall be due and
payable upon demand. The term "Default Rate", as used herein, means the lesser
of (i) the Maximum Rate, or (ii) the rate per annum which shall from day-to-day
be equal to two percent (2%) in excess of the Base Rate.
SECTION 3.03. Increased Costs. (a) If either (i) the introduction of
or any change (including, without limitation, any change by way of imposition or
increase of reserve requirements) in or in the interpretation of any law or
regulation or (ii) the compliance by any Bank with any guideline or request from
any central bank or other governmental authority (whether or not having the
force of law), shall result in any increase in the cost to any Bank of making,
funding or maintaining any Advance, then the Borrower shall from time to time,
upon demand by such Bank, pay to such Bank additional amounts sufficient to
indemnify such Bank against such increased cost. A certificate as to the amount
of such increased cost, submitted to the Borrower by such Bank, shall, in the
absence of manifest error, be conclusive and binding for all purposes, provided
that the determination of such increased costs shall have been made in good
faith.
(b) If either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) compliance by any Bank with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by any Bank and any Bank
determines that the amount of such capital is increased by or based upon the
existence of such Bank's commitment to lend hereunder and other commitments of
this type, then, upon demand by such Bank, the Borrower shall immediately pay to
such Bank, from time to time as specified by such Bank, additional amounts
sufficient to compensate such Bank in the light of such circumstances, to the
extent that any Bank reasonably determines such increase in capital to be
allocable to the existence of such Bank's commitment to lend hereunder. A
certificate as to such amounts, submitted to the Borrower by such Bank, shall,
in the absence of manifest error, be conclusive and binding for all purposes,
provided that the determination of such amounts shall have been made in good
faith.
SECTION 3.04 Changes in Law Rendering Certain LIBOR Rate Advances
Unlawful. In the event that any change in any applicable law (including the
adoption of any new applicable law) or any change in the interpretation of any
applicable law by any judicial, governmental or other regulatory body charged
with the interpretation, implementation or administration thereof, should make
it (or in the good-faith judgment of an affected Bank should raise a substantial
question as to whether it is) unlawful for such affected Bank to make, maintain
or fund LIBOR Rate Advances of a certain type, then (a) such affected Bank shall
promptly notify each of the other parties hereto, (b) the obligation of all
Banks to make LIBOR Rate Advances of such type shall, upon the effectiveness of
such event, be suspended for the duration of such unlawfulness, and (c) if the
affected Bank so requests, the Borrower shall, on such date as may be required
by the relevant applicable law, repay, prepay or convert to Base Rate Advances
all then outstanding LIBOR Rate Advances of such type made to the Borrower by
such affected Bank together with accrued interest thereon and all amounts then
due, if any, hereunder, other than amounts that would otherwise be payable under
Section 10.05(b).
SECTION 3.05. Payments and Computations. The Borrower shall make each
payment hereunder and under the Notes not later than 2:00 P.M. (New York City
time) on the day when due in lawful money of the United States of America to
each Bank and/or the Agent, as the case may be at its address referred to in
Section 10.02 in same day funds. The Borrower hereby authorizes each Bank, if
and to the extent payment of any amount is not made when due under any Loan
Document, to charge from time to time against any account of the Borrower with
such Bank any amount so due. All computations of interest accrued at the
Applicable Rate (but not the Base Rate or Maximum Rate) hereunder and under the
Notes and commitment fee hereunder shall be made by each Bank on the basis of a
year of 360 days for the actual number of days (including the first day but
excluding the last day) elapsed, and all computations of interest accrued at the
Base Rate or Maximum Rate shall be based upon a year with 365 or 366 days, as
appropriate).
SECTION 3.06. Payment on Non-Business Days. Whenever any payment to
be made hereunder or under the Notes shall be stated to be due, on a day which
is not a Business Day, such payment may be made on the next succeeding Business
Day (subject to Section 3.02(b)(iii) hereof), and such extension of time shall
in such case be included in the computation of payment of interest, commitment
fee or other fee, as the case may be.
SECTION 3.07. Pro Rata Committed Advances. The Borrower and the Banks
acknowledge and agree that all Committed Advances made on or after the date
hereof, and all increases and decreases thereof, are to be made and incurred pro
rata by the Banks in accordance with such Bank's Available Commitment Share or
in such other manner as the Banks among themselves may agree from time to time,
except as otherwise required by Section 2.02(c) or Section 3.01(c); and each
Bank's actual outstanding Committed Advances shall be adjusted from time to time
by each Bank purchasing or selling at par from or to the other Banks, as the
case may be, a portion of these Committed Advances simultaneously with each such
increase or decrease, such that each Bank's position in each shall equal such
Bank's Available Commitment Share at all times.
SECTION 3.08. Maximum Amount Limitation. Anything in this Agreement
or the other Loan Documents to the contrary notwithstanding, neither Borrower
nor any other Person liable for the Bank Obligations shall ever be required to
pay unearned interest on any Note or any of the Bank Obligations, or ever be
required to pay interest on any Note or any of the Obligations at a rate in
excess of the Maximum Rate, if any. If the effective rate of interest which
would otherwise be payable under this Agreement, any Note or any of the other
Loan Documents would exceed the Maximum Rate, if any, then the rate of interest
which would otherwise be contracted for, charged, or received under this
agreement, any Note or any of the other Loan Documents shall be reduced to the
Maximum Rate, if any, provided, however, that if at any time thereafter such
effective rate of interest shall be less than the Maximum Rate, if any, the rate
of interest contracted for, charged, or received under this Agreement, any Note
or any of the other Loan Documents shall be the Maximum Rate until each Bank
shall have received the interest or discount it otherwise would have received
but for such limitation to the Maximum Rate. If any unearned interest or
discount or property that is deemed to constitute interest (including, without
limitation, to the extent that any of the fees payable by Borrower, or any other
Person liable for the Bank Obligations to any Bank under this Agreement, any
Note, or any of the other Loan Documents are deemed to constitute interest) is
contracted for, charged, or received in excess of the Maximum Rate, if any, then
such interest in excess of the Maximum Rate shall be deemed a mistake and
canceled, shall not be collected or collectible, and if paid nonetheless, shall,
at the option of the holder of such Note, be either refunded to Borrower or
other Person, or credited on the principal of such Note. It is further agreed
that, without limitation of the foregoing and to the extent permitted by
applicable law, all calculations of the rate of interest or discount contracted
for, charged or received by any Bank under its Note, or under any of the Loan
Documents, that are made for the purpose of determining whether such rate
exceeds the Maximum Rate applicable to such Bank, if any, shall be made, to the
extent permitted by applicable laws (now or hereafter enacted), by amortizing,
prorating and spreading during the period of the full terms of the Advances
evidenced by the Note, and any renewals thereof all interest at any time
contracted for, charged or received by such Bank in connection therewith. This
Section 3.08 shall control every other provision of all agreements among the
parties to this Agreement pertaining to the transactions contemplated by or
contained in the Loan Documents, and the terms of this Section 3.08 shall be
deemed to be incorporated in every Loan Document and communication related
thereto.
SECTION 3.09. Notation on Schedule. Each Bank shall, and is hereby
authorized by Borrower to place appropriate notations on the schedule to each
Bank's Note evidencing the date, amount, interest date and maturity of each
Advance and the amount of each payment of principal; provided, however, that the
failure of a Bank to make such notation shall not limit or otherwise affect the
obligations of Borrower under the Notes or this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.01. Conditions Precedent to Initial Advances. The
effectiveness of this Agreement and the obligation of each of the Banks to make
its initial Advance is subject to the condition precedent that the Agent shall
have received at least two (2) Business Days before the day of such Advance the
following, each dated the day of such Advance, in form and substance
satisfactory to the Agent and the Banks:
(a) This Agreement and the Notes,
(b) Certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, listing all effective financing statements which
name the Borrower (under its present name and any previous name) as debtor and
which are filed in the office of the Arkansas Secretary of State, together with
copies of such financing statements,
(c) Copies, certified by the Secretary, Assistant Secretary, or Chief
Financial Officer of each Loan Party of the resolutions of the Board of
Directors of such Loan Party approving each Loan Document to which it is a
party, and of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to such Loan Document, including,
without limitation, certificates of good standing and certified copies of each
Loan Party's Certificate of Incorporation and Bylaws,
(d) A certificate of the Secretary, Assistant Secretary or Chief
Financial Officer of Borrower, dated as of the date of the initial Advance,
certifying (i) that no Event of Default exists on the date of, or will exist as
a result of, the initial Advance; (ii) that the representations and warranties
in Section 5.01 are true and correct as of and immediately after the initial
Advance; (iii) that the Borrower has performed and complied with all agreements
and conditions required to be performed or complied with it prior to or on the
date of the initial Advance; and (iv) the names and true signatures of the
officers of Borrower authorized to sign each Loan Document to which it is a
party and the other documents to be delivered by it hereunder,
(e) A favorable opinion of Messrs. Xxxxxx, Xxxxxxx & Xxxxxxxx, counsel
for the Loan Parties, in substantially the form of Exhibit C and as to such
other matters as the Banks may reasonably request, and
(f) The Agency Fee Letter, duly executed and delivered by the Borrower
to the Agent.
SECTION 4.02. Conditions Precedent to All Advances. The obligation of
the Banks to make each Advance (including the initial Advance) shall be subject
to the further conditions precedent that on the date of such Advance:
(a) the following statements shall be true (and the receipt by the
Borrower of the proceeds of such Advance shall be deemed to constitute a
representation and warranty by the Borrower that such statements are true on
such date):
(i) The representations and warranties contained in Section 5.01 of
this Agreement and in Section 5 of the Guaranty (if any subsidiary of Borrower
has executed a Guaranty pursuant to Section 6.02(m)) are correct on and as of
the date of such Advance as though made on and as of such date,
(ii) No event has occurred and is continuing, or would result from
such Advance, which constitutes an Event of Default (as defined in Section 7.01
hereof) or would constitute an Event of Default but for the requirement that
notice be given or time elapse or both; and
(iii) Borrower on such date is in compliance with the compliance
criteria set forth in each of the financial covenants contained in subparagraphs
(f), (g), (h) and (i) of Section 6.01 as if the Borrower's compliance therewith
was to be measured as of such date and for such periods ended on such date
(rather than on the measured dates specified therein).
(b) the Banks shall have received such other approvals, opinions or
documents, including guarantees executed by any or all of Borrower's Affiliates,
as the Banks may reasonably request.
SECTION 4.03. Failure to Provide Certificate. Notwithstanding the
conditions precedent in Sections 4.01 and 4.02 requiring the delivery of the
certificates set forth therein, any request by Borrower for an Advance or Letter
of Credit will be deemed to be a representation by Borrower, as to the facts set
forth in each of said Sections whether or not the certificate required therein
is delivered.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower. The Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of the jurisdiction
indicated at the beginning of this Agreement. The Borrower has no subsidiaries
which are not a Guarantor, except (i) Xxxx Transportation, Inc., a Kansas
corporation, (ii) Xxxxxx Foods Poland s.p. zo.o., a Polish limited liability
company, (iii) Xxxxxx Development Corporation, an Arkansas corporation and (iv)
Xxxxxx Foods Foreign Sales, Inc., a United States Virgin Islands corporation.
(b) The Loan Documents. The execution, delivery and performance by the
Borrower of each Loan Document to which it is or will be a party are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, do not contravene (i) the Borrower's charter or by-laws or
(ii) any law or any contractual restriction binding on or affecting the
Borrower, and do not result in or require the creation of any lien, security
interest or other charge or encumbrance (other than pursuant hereto) upon or
with respect to any of its properties.
(c) Governmental Approvals. No authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
the Borrower of any Loan Document to which it is or will be a party.
(d) Enforceability. This Agreement is, and each other Loan Document to
which the Borrower will be a party when delivered hereunder will be, legal,
valid and binding obligations of the Borrower enforceable against the Borrower
in accordance with their respective terms.
(e) Financial Condition and Operations. The balance sheets of the
Borrower and its subsidiaries as at December 30, 1995, and the related
statements of income and cash flows of the Borrower and its subsidiaries for the
fiscal period then ended, copies of which have been furnished to the Bank,
fairly present the financial condition of the Borrower and its subsidiaries as
at such date and the results of the operations of the Borrower and its
subsidiaries for the period ended on such date, all in accordance with generally
accepted accounting principles consistently applied, and since December 30,
1995, there has been no material adverse change in such condition or operations.
(f) Litigation. There is no pending or threatened action or proceeding
affecting the Borrower or any of its subsidiaries before any court, governmental
agency or arbitrator, which may materially adversely affect the financial
condition or operations of the Borrower or any subsidiary.
(g) Use of Proceeds of Advances, Etc. (i) No proceeds of any Committed
Advance or Bid Rate Credit will be used to acquire any security in any
transaction which is subject to Sections 13 and 14 of the Securities Exchange
Act of 1934; (ii) the Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal Reserve
System); and (iii) no proceeds of any Committed Advance or Bid Rate Credit will
be used to purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock; following application of
the proceeds of each Committed Advance or Bid Rate Credit, not more than
twenty-five percent (25%)of the value of the assets (either of the Borrower only
or of the Borrower and its subsidiaries on a consolidated basis) subject to the
provisions of Section 6.02(a) will be margin stock (within the meaning of
Regulation U).
(h) ERISA. (i) All members of any Controlled Group have complied with
all applicable minimum funding requirements and all other applicable and
material requirements of ERISA and the Code applicable to each Plan, and there
are no existing conditions that would give rise to material liability
thereunder, (ii) with respect to each Plan, all members of any Controlled Group
have made all material contributions or payments to or under each Plan required
by law, by the terms of such Plan or the terms of any contract or agreement,
(iii) no Termination Event has occurred nor is reasonably expected to occur with
respect to any Plan, and there are no unfunded benefit liabilities, as defined
in Section 4001(a)(18) of ERISA, with respect to any Plan which pose a risk of
causing a lien to be created on the assets of the Borrower or any of its
subsidiaries or which will result in the occurrence of a Reportable Event, (iv)
no material liability to the PBGC has been, or is expected to be, incurred by
any member of any Controlled Group, (v) no member of any Controlled Group has
been required to contribute to a Multiemployer Plan or has incurred or
reasonably expects to incur any withdrawal liability under ERISA to any
Multiemployer Plan, and (vi) no prohibited transaction under ERISA or the Code
has occurred with respect to any Plan which could reasonably be expected to have
a material adverse effect on the condition, financial or otherwise, of any Plan.
(i) Solvency. The Borrower and each of its subsidiaries is and, after
giving effect to the initial Advance, will be solvent, that the execution,
delivery and performance of any of the Loan Documents to which the Borrower or
any of its subsidiaries is a party does not and will not render such Person
insolvent, that any property remaining with such Person after execution,
delivery and performance of the Loan Documents to which it is a party is not an
unreasonably small capital for the conduct of its business and that each
execution, delivery and performance is not intended to and will not hinder,
delay or defraud any Person to which the Borrower or any of its subsidiaries
was, is or may be liable.
(j) Taxes. The Borrower and each subsidiary has filed all federal,
state and other income tax returns which are required to be filed and has paid
all taxes as shown on said returns, and all taxes due or payable without returns
and all assessments received to the extent that such taxes or assessments have
become due. All tax liabilities of the Borrower and each subsidiary are
adequately provided for on the books of the Borrower and each subsidiary
(including interest and penalties pertaining thereto to the extent that the same
are estimable). No income tax liability of a material nature has been asserted
by taxing authorities for taxes in excess of those already paid, and federal,
state and other income tax returns of Borrower and each subsidiary have been
examined and reported on by the taxing authorities or closed by applicable laws
and satisfied for all years prior to and including the 1989 tax year.
(k) Environmental Matters. Except as disclosed in the Borrower's Form
10-K Annual Report for its fiscal year ended September 30, 1995 and except with
respect to matters the effect of which would not be material and adverse to the
properties, business, prospects, profits or condition (financial or otherwise)
of the Borrower or any of its subsidiaries: (i) neither the Borrower nor any of
its subsidiaries has generated, transported or disposed of any Hazardous
Substance; (ii) neither the Borrower nor any of its subsidiaries is currently
generating, transporting or disposing of any Hazardous Substance; (iii) neither
the Borrower nor any of its subsidiaries has knowledge, based upon diligent
inquiry, that (A) any of its fixed assets (whether owned, leased or otherwise
directly or indirectly controlled) has been used for the disposal of or has been
contaminated by any Hazardous Substance, or (B) any of its business operations
have contaminated lands or waters of others with any Hazardous Substance; (iv)
neither the Borrower nor any of its subsidiaries, nor any of their respective
assets, are subject to any liability under Environmental Law nor, to the best of
the Borrower's and each subsidiary's knowledge following diligent inquiry any
threatened liability under any Environmental Law; (v) neither the Borrower nor
any of its subsidiaries has received any notice of or otherwise learned of any
governmental investigation evaluating whether any remedial action is necessary
to respond to a release or a threatened release of any Hazardous Substance for
which either the Borrower or any of its subsidiaries is or may be liable; (vi)
to the best of the Borrower's and each subsidiary's knowledge, following
diligent inquiry, neither the Borrower nor any of its subsidiaries is in
violation of any Environmental Law; and (vii) neither the Borrower nor any of
its subsidiaries has failed to obtain any permits or licenses required by any
Environmental Law.
ARTICLE VI
COVENANTS OF THE BORROWER
SECTION 6.01. Affirmative Covenants. So long as any amount payable
hereunder or under the Notes shall remain unpaid or any Bank shall have any
commitment hereunder, the Borrower will, unless Agent, after obtaining the
approval of the Majority Banks, shall otherwise consent in writing:
(a) Payment of Taxes and Claims. Cause to be paid and discharged all
lawful taxes, assessments or governmental charges imposed upon the income,
profits or property of the Borrower and its subsidiaries before the same shall
be in default, and all lawful claims for labor, rentals, materials and supplies
which, if unpaid, might become a lien upon Borrower's or its subsidiaries'
property or any part thereof; provided, however, that the Borrower and its
subsidiaries shall not be required to cause to be paid or discharged any such
tax, assessment, governmental charge or claim so long as the validity thereof
shall be contested in good faith by appropriate proceedings, and adequate book
reserves shall be established with respect thereto, and the Borrower shall, and
shall cause each subsidiary to, pay such tax, charge or claim before any
property subject thereto shall be sold to satisfy a lien.
(b) Compliance with Applicable Laws. Comply, and cause each of its
subsidiaries to comply, with the requirements of all applicable laws and orders,
except where contested in good faith and by proper proceedings, and obtain any
licenses, permits, franchises or other governmental authorizations necessary to
the ownership of its properties or to the conduct of its business and those of
its subsidiaries.
(c) Preservation of Property. Keep, and cause each of its subsidiaries
to keep, its properties which are useful in their respective businesses, whether
owned in fee or otherwise, or leased, in good operating condition, ordinary wear
and tear excepted, and comply with, and cause each subsidiary to comply with,
all leases to which it or any subsidiary is a party or under which it or any
subsidiary occupies property so as to prevent any loss or forfeiture thereunder.
(d) Visitation Rights. At any reasonable time and from time to time,
permit the Agent or any Bank, or any agents or representatives thereof, to
examine and make copies of and abstracts from the records and books of account
of and visit the properties of, and, upon and during the continuance of an Event
of Default, to do so at the expense of Borrower and any of its subsidiaries, and
to discuss the affairs, finances and accounts of the Borrower and any of its
subsidiaries with any of their respective officers or directors.
(e) Reporting Requirements. Furnish to the Agent and each Bank: (i) as
soon as available and in any event within thirty (30) days after the end of each
month, unaudited consolidated balance sheets and unaudited consolidated
statements of income of the Borrower and its subsidiaries as of the end of such
month certified by the Chief Financial Officer, Secretary or Treasurer of the
Borrower; (ii) as soon as available and in any event within ninety (90) days
after the end of each fiscal year of the Borrower, a copy of the audited
consolidated financial statements for such year for the Borrower and its
subsidiaries, certified in a manner acceptable to the Agent by Coopers & Xxxxxxx
or other independent public accountants acceptable to the Agent; (iii) promptly
after the filing or receiving thereof, copies of all reports and notices which
the Borrower or Guarantor files under ERISA with the Internal Revenue Service or
the Pension Benefit Guaranty Corporation or the U.S. Department of Labor, or
which the Borrower or Guarantor receives therefrom; (iv) as soon as available
and in any event within forty-five (45) days after the end of each fiscal
quarter, unaudited consolidated financial statements for such quarter for the
Borrower and its subsidiaries, certified by the Chief Financial Officer,
Secretary or Treasurer of the Borrower, and a compliance certificate in form and
substance satisfactory to Agent, showing the calculation of each financial
covenant as of such quarter-end, executed by the Chief Financial Officer,
Secretary or Treasurer of Borrower; (v) promptly, upon the occurrence of an
Event of Default or an event that but for the passage of time or the giving of
notice or both would constitute an Event of Default, notice of such Event of
Default or event; (vi) weekly Outstandings Reports in the form of Exhibit F
hereto setting forth the amounts and types of Advances made and Bid Rate Credits
extended by each Bank; (vii) promptly after the filing or receiving thereof,
copies of all reports and notices which the Borrower or Guarantor files with the
Securities and Exchange Commission or similar state regulatory body, or which
the Borrower or Guarantor receives therefrom; and (viii) such other information
respecting the condition or operations, financial or otherwise, of the Borrower
or the Guarantor as the Agent or any Bank may from time to time reasonably
request.
(f) Working Capital. Maintain as of the last day of each fiscal
quarter (i) a ratio of current assets to current liabilities (exclusive of
current deferred taxes) of not less than 1.5 to 1.0, and (ii) an excess of
current assets over current liabilities (exclusive of current deferred taxes) of
not less than $60,000,000; and the calculation thereof shall be on a basis which
in all respects is consistent with the provisions of Section 10.04.
(g) Net Worth. Maintain as of the last day of each fiscal quarter a
Tangible Net Worth (as hereinafter defined) of not less than the sum of (i)
$232,148,622, plus (ii) the amount of all proceeds of any issuance of capital
stock of Borrower, plus (iii) the amount of any Subordinated Debt which is
converted into capital stock of Borrower, plus (iv) in the case of each fiscal
quarter ending on or after October 1, 1995, the Applicable Net Income Carryover
(as hereinafter defined). "Tangible Net Worth" means the excess of total assets
over total liabilities, total assets and total liabilities each to be determined
in accordance with generally accepted accounting principles consistent with
those applied in the preparation of the financial statements referred to in
Section 6.01(e), excluding, however, from the determination of total assets (i)
goodwill, organizational expenses, research and development expenses,
trademarks, trade names, copyrights, patents, patent applications, licenses and
rights in any thereof, and other similar intangibles, (ii) treasury stock, (iii)
securities which are not readily marketable, (iv) cash held in a sinking or
other analogous fund established for the purpose of redemption, retirement or
prepayment of capital stock, (v) any write-up in the book value of any asset
resulting from a revaluation thereof subsequent to the date hereof, and (vi) any
items not included in clauses (i) through (v) above which are treated as
intangibles in conformity with generally accepted accounting principles.
"Applicable Net Income Carryover" at any time that any determination thereof is
to be made means an amount equal to sixty percent (60%) of the Borrower's net
income for each and every fiscal year ending on or after October 1, 1995 which
has ended on or before the date such determination of Applicable Net Income
Carryover is to be made; provided, however, that in the event that the
Borrower's net income for any fiscal year described above is less than zero, the
Borrower's net income for such fiscal year shall be deemed to be zero for
purposes of calculating Applicable Net Income Carryover.
(h) Maximum Leverage Ratio. Maintain as of the last day of each fiscal
quarter a Leverage Ratio of not more than 0.5 to 1.0. "Leverage Ratio," as used
herein, means, for any period of determination thereof, the quotient (expressed
as a ratio) of (I) the sum of (A) indebtedness with maturities greater than one
year (including all current portions thereof), plus (B) subordinated debt,
divided by (II) the sum of (A) indebtedness with maturities greater than one
year (including all current portions thereof), plus (B) subordinated debt, plus
(C) book equity, plus (D) long-term deferred taxes attributable to Borrower's
prior use of cash accounting, plus (E) deferred taxes attributable to Borrower's
use of the "farm price" method of accounting for deferred taxes. For purposes of
calculating the Leverage Ratio in connection with this Section 6.01(h), all
Advances shall be considered indebtedness with a maturity less than one year.
(i) Cash Flow Ratio. Maintain as of the last day of each fiscal
quarter a Cash Flow Coverage Ratio of not less than 1.3 to 1.0 on a rolling
eight fiscal quarter basis. "Cash Flow Coverage Ratio" means for any period of
determination thereof, the quotient (expressed as a ratio) of (I) the sum of (A)
earnings before taxes, plus (B) interest expense, plus (C) lease expenses, plus
(D) depreciation and amortization, divided by (II) the sum of (A) interest
expense, plus (B) lease expenses, plus (C) principal payments on long term debt
and capital leases other than Qualifying Balloon Payments (as hereinafter
defined), plus (D) dividends, purchases or other acquisitions by the Borrower or
any of its subsidiaries of any stock of the Borrower and distributions of assets
to the Borrower's stockholders as such. "Qualifying Balloon Payments" at any
time that any determination thereof is made means the Balloon Portion (as
hereinafter defined) of the final principal payment due on the final maturity
date of any long term debt or capital lease having a final maturity date during
such fiscal quarter; provided, however, that no such Balloon Portion shall
constitute a Qualifying Balloon Payment if (a) the Agent determines in good
faith that it is unlikely that the Borrower will be able to refinance the
Balloon Portion when due or within sixty (60) days thereafter with Qualifying
Replacement Financing (as defined below) or (b) the Agent determines in good
faith that the Borrower is not diligently pursuing reasonable efforts to
accomplish a refinancing of the Balloon Portion when due or within sixty (60)
days thereafter with Qualifying Replacement Financing or (c) more than sixty
(60) days have elapsed since the Balloon Portion became due and the Borrower did
not prior to expiration of such period refinance the Balloon Portion with
Qualifying Replacement Financing. "Balloon Portion" at any time that any
determination thereof is to be made means the portion of a final principal
payment due on the final maturity date of any long term debt or capital lease
which exceeds the average scheduled pre-maturity annual principal amortization
under such long term debt or capital lease. "Qualified Replacement Financing"
means long term debt or capital lease financing of the Company that does not (or
would not if entered into) result in a Default or an Event of Default.
(j) Insurance. Maintain, and cause each subsidiary to maintain, in
force with financially sound and reputable insurers, policies with respect to
its property and business against such casualties and contingencies (including
public liability, larceny, embezzlement or other criminal misappropriation
insurance) and in such amounts as is customary in the case of corporations
engaged in the same or similar lines of business or comparable size and
financial strength.
(k) Environmental Notice and Inspection.
(i) Notify the Agent and the Banks in writing, promptly upon any
executive officer or the Borrower or any of its subsidiaries learning of any of
the following which is reasonably likely to result in liability in excess of Two
Million Dollars ($2,000,000): (A) any Environmental Claim which the Borrower or
any of its subsidiaries receives, including one to take or pay for any remedial,
removal, response, clean-up or other action with respect to any Hazardous
Substances located on any property, whether or not owned by Borrower or any of
its subsidiaries; (B) any notice of any alleged violation of or knowledge by the
Borrower or any of its subsidiaries of a condition which has a reasonable
potential of resulting in a claim for a violation of any Requirement of Law
involving environmental, health or safety matters; and (C) any commencement or
threatened commencement of any judicial or administrative proceeding or
investigation alleging a violation of any Requirement of Law involving
environmental, health or safety matters.
(ii) Permit and cause each of its subsidiaries to permit the Agent,
any Bank and any agent or representative thereof access in accordance with
Section 6.01(d), to inspect any documents, property or operations, and interview
any employees, representatives or agents, of the Borrower or any of its
subsidiaries pertaining to the areas of environmental compliance hazard or
liability.
(iii) Submit and cause each of its subsidiaries to submit, upon
written request of the Agent or any Bank, to the Agent or such Bank, at
reasonable intervals, a report providing an update of the status of any
environmental, health or safety compliance, hazard or liability issue identified
in any notice or report required pursuant to this Section 6.01(k) and any other
environmental, health or safety compliance obligation, remedial obligation or
liability, that might, individually or in the aggregate, result in liability in
excess of Two Million Dollars ($2,000,000).
(l) Further Assurances. On request of any Bank or the Agent, promptly
correct any defect, error or omission which may be discovered in the contents of
any of the Loan Documents or in the execution or acknowledgment thereof, and
will execute, acknowledge and deliver such further instruments and do such
further acts as may be necessary or as may be requested by any Bank or the Agent
to carry out more effectively the purposes of this Agreement and the Loan
Documents.
SECTION 6.02. Negative Covenants. So long as any amount payable
hereunder or under the Notes shall remain unpaid or any Bank shall have any
Commitment hereunder, the Borrower will not, unless Agent, after obtaining the
approval of the Majority Banks, shall otherwise consent in writing:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
subsidiaries to create or suffer to exist, any lien, security interest or other
charge or encumbrance, or any other type of preferential arrangement, upon or
with respect to any of its properties, whether now owned or hereafter acquired,
or assign, or permit any of its subsidiaries to assign, any right to receive
income, in each case to secure any Indebtedness (as defined below) of any person
or entity, other than (i) those described on Schedule 6.02(a) hereto, and
renewals and extensions thereof on the same or substantially the same terms and
conditions (ii) purchase money liens or purchase money security interests upon
or in any fixed assets acquired or held by the Borrower or any subsidiary in the
ordinary course of business to secure the purchase price of such fixed assets or
to secure indebtedness incurred solely for the purpose of financing the
acquisition of such fixed assets, (iii) liens or security interests existing on
such fixed assets at the time of their acquisition, (iv) liens and security
interests on previously acquired fixed assets, the fair value of which assets
does not exceed by more than one hundred percent (100%) the amount of
indebtedness secured thereby, all as determined by the Agent in its sole, good
faith discretion or (v) obligations for capital and operating leases of real or
personal fixed assets acquired or held by the Borrower in the ordinary course of
business which are secured only by the fixed assets the subject of the lease,
provided, however, that the aggregate principal amount of the indebtedness
secured by the liens or security interests referred to in clauses (ii), (iii)
and (iv) above plus the aggregate amount of capitalized payment obligations
under the leases referred to in clause (v) above plus the amount of any increase
in the indebtedness referred to in clause (i) above shall not exceed $25,000,000
at any time outstanding.
(b) Dividends, Etc. Declare or pay any dividends, purchase or
otherwise acquire for value any of its capital stock now or hereafter
outstanding, or make any distribution of assets to its stockholders as such, or
permit any of its subsidiaries to purchase or otherwise acquire for value any
stock of the Borrower which in the aggregate exceeds $2,750,000 during any
fiscal year.
(c) Lease Obligations. Create or suffer to exist, or permit any of its
subsidiaries to create or suffer to exist, any obligations for the payment of
rent for any property under leases or agreements to lease, which do or would
constitute operating leases, which in the aggregate have annual rental payments
in excess of seven and one-half percent (7.5%) of Borrower's Net Tangible
Assets; provided, however, that leases for rolling stock shall be excluded from
the foregoing calculation. "Net Tangible Assets" means total assets less
intangibles less current liabilities (exclusive of current deferred taxes).
(d) Indebtedness, etc. Create, incur, assume or suffer to exist any
indebtedness, liabilities or obligations, whether matured or unmatured,
liquidated or unliquidated, direct or contingent, joint or several, except: (i)
the liabilities of the Borrower permitted under Section 6.02(a); (ii)
liabilities of the Borrower to the Agent and the Banks hereunder or otherwise;
(iii) short-term indebtedness of the Borrower to parties other than the Agent
and Banks hereunder, provided that such indebtedness shall at no time exceed
$20,000,000.00 in the aggregate; (iv) other long-term indebtedness, and (v)
those liabilities listed on Schedule 6.02(d) hereto.
(e) Capital Expenditures, etc. Make any capital expenditures in any
one fiscal year in excess of twenty-five percent (25%) of the Borrower's
stockholders' equity at the end of the immediately preceding fiscal year (such
calculation also to include the gross purchase price of assets or stock, as the
case may be, acquired in connection with any merger, consolidation, asset
acquisition, stock purchase or similar transaction except for the portion of
such gross purchase price which was paid for by the Borrower solely with shares
of the Borrower's capital stock); provided, however, that the amount of capital
expenditures incurred in fiscal years 1996 and 1997 in connection with
Borrower's planned construction of a new processing facility in Kentucky shall
be excluded from the calculation of this covenant.
(f) Loans, Guarantees, etc. Make any loans or advances to or
investments in any person, or directly or indirectly guaranty or otherwise
assure a creditor against loss in respect of any indebtedness, obligations or
liabilities (contingent or otherwise) of any person unless any such amounts have
been included as indebtedness in making calculations with respect to each
representation, warranty and covenant herein.
(g) Payment of Subordinated Debt. Make any prepayments of principal on
any existing or future Subordinated Debt of the Borrower.
(h) Merger and Consolidation.
(i) Directly or indirectly, consolidate with or merge into any other
Person, or permit any other Person to consolidate with or merge into it, unless
(A) Borrower is the surviving legal entity, (B) immediately upon the
consummation of such consolidation or merger there shall be no Default or Event
of Default and (C) any additional documentation required by the Agent shall be
delivered to the Agent.
(ii) Allow any subsidiary, directly or indirectly, to consolidate with
or merge into any other subsidiary, unless (A) immediately upon the consummation
of such consolidation or merger, there shall be no Default or Event of Default
and (B) any additional documentation required by the Agent shall be delivered to
the Agent.
(i) Business. Engage, directly or through other Persons, in any
business other than the business now carried on, and other businesses directly
related thereto.
(j) Transactions With Affiliates. Notwithstanding any other provision
of this Agreement, enter into any transaction with any Affiliate of the Borrower
(other than a merger permitted under Section 6.02(h) hereof) except in the
ordinary course of Borrower's business, and on fair and reasonable terms no less
favorable to Borrower than it would obtain in a comparable arm's length
transaction with a Person not an Affiliate.
(k) Sale of Assets. Sell, lease, transfer, or otherwise dispose of
assets, except (i) in the ordinary course of business and for full and fair
consideration or (ii) assets which Borrower or its subsidiary determines in good
faith are obsolete.
(l) Use of Proceeds. Use the proceeds of any Advances or Letters of
Credit for any purpose other than the financing of the integrated broiler,
turkey and food processing and marketing operations of Borrower or for general
corporate purposes including acquisitions to the extent permitted under Section
6.02.
(m) Subsidiaries. Form or otherwise acquire any subsidiary corporation
(including subsidiary corporations of the Borrower), unless (i) the Borrower
gives each Bank and the Agent prior written notice thereof and (ii) such
subsidiary executes and delivers to each Bank and the Agent (A) its guaranty of
debt with respect to this Agreement in form substantially similar to the form of
guaranty attached hereto as Exhibit B (the "Guaranty") and (B) such other
documents and amendments to the Loan Documents as the Majority Banks shall
require.
(n) Accounting Methods. Change its methods of accounting, unless
required by GAAP.
(o) Fiscal Year End. Change its fiscal year.
(p) Compliance with ERISA. (i) Terminate any Plan so as to result in
any material (in the opinion of the Majority Banks) liability of the Borrower or
any of its subsidiaries to the PBGC, or (ii) permit to exist any occurrence of
any Reportable Event, or any other event or condition, which presents a material
(in the opinion of the Majority Banks) risk of such a termination by the PBGC of
any Plan.
(q) Restricted Investments. Make any investments (including loans or
other advances to or for the benefit of any subsidiary of the Borrower) except
(i) investments in readily marketable obligations of the United States of
America maturing within one year from date of purchase, (ii) investments in
prime (by recognized United States financial standards) commercial paper
maturing within one year from date of purchase, (iii) investment in fully
insured domestic certificates of deposit and certificates of deposit issued by
any Bank (provided such Bank's outstanding long-term debt securities are rated
at least A by Standard & Poor's Corporation or at least A-1 by Xxxxx'x Investors
Service, Inc.) maturing within one year, (iv) endorsements of negotiable
instruments for collection in the ordinary course of business, (v) investments
in other comparable prudent investments, including investments in or issued by
any Bank, reported to the Banks monthly in conjunction with the Borrower's
monthly reports required by Section 6.01(e) (together with a copy of the
Borrower's then-current investment policy) and (vi) investments in the
Borrower's subsidiaries that have complied with the requirements of Section
6.02(m); provided, however, that this Section 6.02(q) shall not be deemed to
prohibit the Borrower from creating accounts receivable from any subsidiary of
the Borrower as a result of the sale of inventory in accordance with Section
6.02(j).
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any amount payable hereunder or
under the Notes when due; or
(b) Any representation or warranty made by the Borrower (or any of its
officers) or any Guarantor under or in connection with any Loan Document shall
prove to have been incorrect in any material respect when made; or
(c) The Borrower shall fail to perform or observe the covenants in
Sections 6.01(a), (e) or (j) hereof and any such failure shall remain unremedied
for 10 days after written notice thereof shall have been given to the Borrower
by the Agent or any Bank, or the Borrower shall otherwise have acquired
knowledge thereof; or
(d) The Borrower or any Guarantor shall fail to perform or observe any
other term, covenant or agreement contained in any Loan Document on their
respective parts to be performed or observed; or
(e) The Borrower or any of its subsidiaries shall fail to pay any
indebtedness (excluding indebtedness evidenced by the Notes) of the Borrower or
such subsidiary (as the case may be), or any interest or premium thereon, when
due (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 default under any agreement or instrument relating to any such
indebtedness, or any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if
the effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such indebtedness; or any such indebtedness
shall be declared to be due and payable, or required to be prepaid (other than
by a regularly scheduled required prepayment), prior to the stated maturity
thereof; or
(f) The Borrower or any of its 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 the Borrower or
any of its 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)
either such proceeding shall remain undismissed or unstayed for a period of 30
days or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against it or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property) shall occur; or the Borrower or any of its
subsidiaries shall take any corporate action to authorize any of the actions set
forth above in this subsection (e); or
(g) Any judgment or order for the payment of money in excess of
$5,000,000 shall be rendered against the Borrower or any of its subsidiaries and
either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(h) Any provision of the Guaranty after delivery thereof shall for any
reason cease to be valid and binding on any Guarantor, or any Guarantor shall so
state in writing; or
(i) Xxxxx X. Xxxxxx and his immediate family cease to own of record at
least 51% of the aggregate outstanding voting power of Borrower; or
(j) (I) Any Termination Event with respect to a Plan shall have
occurred, and, thirty days after notice thereof shall have been given to
Borrower by the Agent or any Bank, (A) such Termination Event (if correctable)
shall not have been corrected and (B) the then present value of such Plan's
vested benefits exceeds the then current value of assets accumulated in such
Plan by more than the amount of $500,000 (or in the case of a Termination Event
involving the withdrawal of a "substantial employer" (as defined in Section
4001(a)(2) of ERISA), the withdrawing employer's proportionate share of such
excess shall exceed such amount, or (II) the Borrower or any of its
subsidiaries, as an employer under a Multiemployer Plan, shall have made a
complete or partial withdrawal from such Multiemployer Plan and the plan sponsor
of such Multiemployer Plan shall have notified such withdrawing employer that
such employer has incurred a withdrawal liability in an annual amount exceeding
$100,000; then, and in any such event, the Agent, with the consent of the
Majority Banks (i) may, by notice to the Borrower, declare the obligation of the
Banks to make Committed Advances to be terminated, whereupon the same shall
forthwith terminate, and (ii) may, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement 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 the Borrower or any
subsidiary under the Federal Bankruptcy Code, (x) the obligation of the Banks to
make Committed Advances shall automatically be terminated and (y) the Notes, all
such interest and all such amounts shall automatically become due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VIII
DEFINITIONS
SECTION 8.01. 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):
"Acceptance" means a draft drawn on a Bank by the Borrower and
accepted and discounted by such Bank pursuant to
Section 2.03.
"Adjusted Leverage Ratio" shall have the meaning specified in Section
3.02(c).
"Advances" and "Advance" respectively mean (a) all advances (including
Committed Advances and Bid Rate Advances) made by the Banks or any single Bank
(as the context requires) to the Borrower pursuant to Article I, and (b) a
single such advance made by any Bank.
"Affiliate" means (i) the Borrower or (ii) the Guarantor or (iii) any
corporation or entity of which either the Borrower or the Guarantor owns,
directly or indirectly through one or more intermediaries, 10% or more of the
outstanding capital stock of such corporation or entity.
"Agency Fee" shall have the meaning specified in Section 1.02.
"Agency Fee Letter" shall have the meaning specified in Section 1.02.
"Agent's Depository Account" means the Agent's Account No. 8026002533
maintained at The Bank of New York in New York City, ABA Reference No.
000000000, or such other account as shall be designated by the Agent in a
written notice to the Banks.
"Aggregate Outstanding Liabilities" means, as of any date, the sum of
the then outstanding Advances, Bid Rate Credits and Letter of Credit
Liabilities.
"Anticipated Profits" at any time that any determination thereof is to
be made means an amount equal to the excess, if any, of (i) the amount of
interest that the Agent or a Bank, as the case may be, determines in good faith
that it would have realized on any Advance which was made, or any Advance that
was requested by the Borrower to be made pursuant to a Notice of Committed
Borrowing as if such requested Advance had been made, and remained outstanding
for the duration of the Interest Period pertaining thereto, over (ii) the
Agent's or a Bank's, as the case may be, cost of obtaining the funds for any
such Advance made, or any such requested Advance, for the Interest Period
pertaining thereto.
"Applicable Net Income Carryover" shall have the meaning specified in
Section 6.01(g).
"Applicable Rate" shall have the meaning specified in Section 3.02(c).
"Available Commitment" at the time any determination thereof is to be
made means, with respect to any Bank, an amount equal to the excess, if any, of
such (i) Bank's Commitment over (ii) the Aggregate Outstanding Liabilities then
owing to such Bank.
"Available Commitment Share" when used with reference to any Bank at
the time any determination thereof is to be made means a fraction, expressed as
a percentage, the numerator of which shall be the amount of such Bank's
Available Commitment then in effect and the denominator of which shall be the
amount of the Available Total Commitment then in effect.
"Available Total Commitment" at the time any determination thereof is
to be made means the aggregate sum of the Available Commitments of the Banks at
such times.
"Balloon Portion" shall have the meaning specified in Section 6.01(i).
"Bank Obligations" means all obligations of any Loan Party to the
Agent or the Banks, or any of them, howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, joint or several, or now or
hereafter existing, or due or to become due, under or in connection with this
Agreement, the Notes or any other Loan Documents.
"Bank Supplement" shall have the meaning specified in Section 10.09.
"Base Rate" means the higher of (i) the fluctuating rate of interest
announced publicly by Rabobank in New York, New York, from time to time, as
Rabobank's base rate, or (ii) the fluctuating rate of interest per annum equal
to one-half of one percent (0.5%) in excess of the rate of interest per annum at
which Rabobank, as a federally licensed branch of a foreign bank, can acquire
overnight federal funds in the interbank overnight federal funds market in New
York City through brokers of recognized standing one Business Day prior to such
date in the amount of such Advance. Rabobank may make commercial loans or other
loans at rates of interest at, above, or below its base rate.
"Bid Rate" for any Interest Period for any Advance of any Bank means
an interest rate per annum at all times equal during such Interest Period to the
rate per annum which such Bank offers to the Borrower in writing from time to
time in response to a request from the Borrower or an interest rate quotation
regarding a specific proposed Bid Rate Advance for a specific amount to be made
on a specific date for a specific period.
"Bid Rate Advance" shall have the meaning specified in Section
1.01(b).
"Bid Rate Credits" shall have the meaning specified in Section 2.03.
"Borrowing Date" means the date on which a Borrowing is, or is to be,
consummated, as the context requires.
"Business Day" means (a) in the case of a Business Day which relates
to fees, a day upon which the Agent is open at its address specified in or
pursuant to the provisions of Section 10.02 for the purpose of conducting
commercial banking business, (b) in the case of a Business Day which relates to
a LIBOR Rate Advance, a day on which the requirements of clause (a) of this
definition are met and, in addition, dealings are carried out in the interbank
eurodollar market and banks are open for business in New York, (c) in the case
of a Business Day which relates to a Letter of Credit, a day on which the
relevant issuer and the Agent are each open at their respective addresses
specified in or pursuant to Section 10.02 for purposes of conducting commercial
banking business, and (d) in the case of Bid Credits and Base Rate Advances, a
day on which the requirements of clause (a) of this definition are met and, in
addition, banks are open for business in New York.
"Cash Flow Coverage Ratio" shall have the meaning specified in Section
6.01(i).
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" with respect to any Bank means the amount set forth
opposite such Bank's name on the signature page hereof (or on the signature page
of the then most recent Bank Supplement to which such Bank is a party, if any),
as amended from time to time, as such amount may be reduced from time to time
pursuant to Section 1.01(c).
"Committed Advances" shall have the meaning specified in Section
1.01(a).
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Advances from the Banks (or any of them) pursuant to Section 2.02.
"Controlled Group" means, as to any Person, all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) which are under common control with such Person and which,
together with such Person, are treated as a single employer under Section
4001(a)(14) of ERISA or Section 4.14(b), (c), (m), (n) or (o) of the Code.
"Default" means any of the events specified in Section 7.01, whether
or not there has been satisfied any requirement in connection with such event
for the giving of notice, or the lapse of time, or the happening of any further
condition, event or act.
"Default Rate" shall have the meaning specified in Section 3.02(d).
"Environmental Claim" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability for
violation of any Environmental Law or for release or injury to the environment
or threat to public health, personal injury (including sickness, disease or
death), property damage, natural resources, damage, or otherwise alleging
liability for damages, punitive damages, cleanup costs, removal costs, remedial
costs, response costs, restitution, civil or criminal penalties, injunctive
relief, or other type of relief, resulting from or based upon (a) the presence,
placement, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental placement, spill, leaks, discharges, emissions or releases) of
any Hazardous Substances at, in or from property, whether or not owned by the
Borrower or any of its subsidiaries, or (b) any other circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means (i) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
42 U.S.C. ss. 9601 et seq., (ii) the Resource Conservation and Recovery Act, as
amended from time to time, 42 U.S.C. ss. 6901 et seq., (iii) the Clean Air Act,
as amended from time to time, 42 U.S.C. ss. 7401 et seq., (iv) the Clean Water
Act of 1977, as amended from time to time, 33 U.S.C. ss. 1251 et seq., (v) the
Toxic Substances Control Act, as amended from time to time, 15 U.S.C. ss. 2601
et seq., (vi) the Hazardous Materials Transportation Act, as amended from time
to time, 49 U.S.C. ss. 1801 et seq., and (vii) all other federal, state and
local laws relating to air pollution, water pollution, noise control and/or the
handling, discharge, disposal or recovery of on-site or off-site Hazardous
Substances, as each of the foregoing may be amended from time to time.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Events of Default" shall have the meaning specified in Section 7.01.
"Facility Fee" shall have the meaning specified in Section 1.03.
"GAAP" means generally accepted accounting principles as in effect
from time to time as set forth in the opinions, statements and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public
Accountants, the Financial Accounting Standards Board and such other Persons who
shall be approved by a significant segment of the accounting profession and
concurred in by the independent certified public accountants certifying any
audited financial statements of the Borrower.
"Guarantor" shall mean any entity which executes a Guaranty as
contemplated in Section 6.02(m).
"Guaranty" shall have the meaning specified in Section 6.02(m).
"Hazardous Substances" means one or more of the following substances:
(i) those substances included within the definitions of "hazardous
substances", hazardous materials", "toxic substances", or "solid waste" in any
Environmental Laws;
(ii) those substances listed in the United States Department of
Transportation Table (49 CFR 172.101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CFR Part 302 and amendments thereto);
(iii) such other substances, materials and wastes which are or become
regulated under any Environmental Laws or regulation, or which are classified as
hazardous or toxic; and
(iv) any material, waste or substance which is asbestos, explosives or
radioactive.
"Indebtedness" with respect to any Person means, without duplication,
(a) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property acquired by, or services rendered to, such Person,
(b) all indebtedness of such Person created or arising under any conditional
sale or other title retention agreement with respect to any property acquired by
such Person, (c) the present value determined in accordance with GAAP of all
obligations of such Person under leases which shall have been or should be
recorded as capitalized leases in accordance with GAAP, (d) all indebtedness or
for the deferred purchase price of property or services secured by any lien upon
or in any property owned by such Person whether or not such Person has assumed
or become liable for the payment of such indebtedness, (e) indebtedness arising
under acceptance facilities, in connection with surety or other similar bonds,
and the undrawn maximum face amount of all outstanding letters of credit issued
for the account of such Person and, without duplication, the outstanding amount
of all drafts drawn thereunder, (f) obligations of such Person with respect to
interest rate protection agreements, (g) all liabilities in respect of unfunded
vested benefits under Plans and all asserted withdrawal liability of such Person
or a commonly controlled entity to a Multiemployer Plan, as such term is defined
under Section 3(37) of ERISA, and (h) all direct or indirect guarantees by such
Person of indebtedness described in this definition of any other Person;
provided, that, for purposes of this definition, Trade Debt shall not be
included.
"Interest Period" shall have the meaning specified in Section 3.02(b).
"Letter of Credit" means each letter of credit, as defined in the
Uniform Commercial Code, issued to, for the account of, or for the benefit of
the Borrower by a Bank or by another financial institution upon a Bank's
guaranty.
"Letter of Credit Liabilities" means, at any time, the sum of (a) the
aggregate maximum amount that thereafter could be drawn under all Letters of
Credit plus (b) all amounts drawn, but unreimbursed, under Letters of Credit.
"Leverage Ratio" shall have the meaning specified in Section 6.01(h).
"LIBOR Interest Period" means an Interest Period for a particular
LIBOR Rate Advance.
"LIBOR Office" with respect to any Bank means the office, branch or
affiliate of such bank designated as its address on the signature pages hereto
or such other office(s), branch(es) or affiliate(s) of such Bank (as designated
from time to time by notice from such Bank to the Borrower and the Agent) which
shall be making or maintaining the LIBOR Rate Advances of such Bank hereunder.
"LIBOR Rate Advance" means any Advance which bears interest as a rate
determined by reference to the LIBOR Rate.
"LIBOR Rate" for any LIBOR Interest Period for any Advance means an
interest rate per annum equal at all times during such Interest Period to the
quotient of (i) the rate per annum conclusively determined by Rabobank for such
LIBOR Interest Period at which deposits in U.S. dollars in immediately available
funds are offered, which appear on Telerate page 3750 as of 11:00 A.M. (London
time) on the LIBOR Business Day that is two (2) London banking days preceding
the first day of such Interest Period, for delivery on the first day of such
LIBOR Interest Period in an amount equal to the principal amount of the Advance
outstanding on the first day of such LIBOR Interest Period for a period equal to
such LIBOR Interest Period divided by (ii) the remainder of one (1) minus the
applicable LIBOR Reserve Percentage.
"Loan Documents" and "Loan Document" means this Agreement, the Notes,
any Guaranty, the Agency Fee Letter, and all other documents, instruments, and
certificates delivered to the Agent and/or any Bank by any Loan Party under this
Agreement or in connection herewith, including, without limitation, all
documents, instruments and certificates delivered in connection with the
extension of Bid Rate Credits by any Bank hereunder and all letters of credit
and supporting documents described in Section 10.17 as being deemed to be Loan
Documents.
"Loan Parties" means, collectively, the Borrower and any Guarantor.
"LIBOR Reserve Percentage" means, with respect to each LIBOR Interest
Period, a percentage (expressed as a decimal) equal to the daily average during
such LIBOR Interest Period of the percentages in effect on each day of such
LIBOR Interest Period, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor thereto), for determining the maximum reserve
requirements applicable to "Eurocurrency Liabilities" pursuant to Regulation D
of the Board of Governors of the Federal Reserve System or any other then
applicable regulation of the Board of Governors which prescribes reserve
requirements applicable to "Eurocurrency Liabilities" as presently defined in
Regulation D.
"Majority Banks" at the time any determination thereof is to be made
and for any specific purpose means a Bank or Banks having a combined Pro Rata
Share aggregating sixty percent (60%) or more.
"Maximum Rate" shall have the meaning specified in Section 3.02(c).
"Multiemployer Plan" means, with respect to any Person, at any time, a
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which such Person or any member of its controlled group is making, or is
obligated to make contributions or has made, or been obligated to make,
contributions.
"Net Tangible Assets" shall have the meaning specified in Section
6.02(c).
"Net Worth" means the excess of total assets over total liabilities,
total assets and total liabilities each to be determined in accordance with
generally accepted accounting principles consistent with those applied in the
preparation of the financial statements referred to in Section 6.01(e).
"Notes" shall have the meaning specified in Section 3.01.
"Notice of Committed Borrowing" shall have the meaning specified in
Section 2.02.
"Original Banks" means the commercial, banking and financial
institutions whose signatures appear on the signature pages of the Prior
Revolving Credit Agreement.
"Outstandings Report" means a duly executed and completed report of
the Borrower, substantially in the form of Exhibit F hereto.
"Person" shall mean any individual or entity.
"PBGC" means the Pension Benefit Guaranty Corporation established
under ERISA.
"Plan" means any plan subject to Title IV of ERISA and maintained for
employees of the Borrower or any of its subsidiaries, or of any member of a
Controlled Group, of which the Borrower or any of its subsidiaries is a part.
"Prior Revolving Credit Agreement" means that certain Revolving Credit
Agreement, dated as of April 26, 1994, by and among the Borrower, Rabobank and
the Original Banks, as amended by (i) that certain Amendment to Revolving Credit
Agreement dated as of April 17, 1995 and executed by and among the Borrower,
Rabobank and the Original Banks and (ii) those certain letter amendments to the
Revolving Credit Agreement dated as of October 18, 1995 and executed by and
between the Borrower and the Original Banks.
"Pro Rata Share" when used with reference to any Bank at the time any
determination thereof is to be made means a fraction, expressed as a percentage,
the numerator of which shall be the amount of such Bank's Commitment then in
effect and the denominator of which shall be the Total Commitment then in
effect; provided, that if the respective Commitments of the Banks, and the Total
Commitment, have then been terminated, the numerator of such fraction shall be
the principal amount of the Aggregate Outstanding Liabilities then owing to such
Bank and the denominator of such fraction shall be the principal amount of the
Aggregate Outstanding Liabilities then owing to all of the Banks.
"Qualifying Balloon Payments" shall have the meaning specified in
Section 6.01(i).
"Qualifying Replacement Financing" shall have the meaning specified in
Section 6.01(i).
"Reportable Event" means a reportable event as defined in Section
4043(b) of Title IV of ERISA.
"Request for Bids" shall mean a telephonic request for one or more Bid
Rate Credits which is confirmed in a writing substantially in the form of
Exhibit E.
"Requirement of Law" means, with respect to any Person, the charter
and by-laws or other organizational or governing documents of such Person, and
any law, rule or regulation (including Environmental Laws and ERISA) or order,
decree or other determination of an arbitrator or a court or other such
governmental authority applicable to or binding upon such Person or any property
or to which such Person or any of its property is subject.
"Secured Credit Agreement" means that certain Amended and Restated
Credit Agreement, dated as of September 23, 1992, by and among the Borrower, the
Guarantor, and the Banks, and Bank of America National Trust and Savings
Association, as collateral agent.
"Subordinated Debt" means, without duplication, all unsecured
Indebtedness of the Borrower which is made subordinate and junior in right of
payment to the Bank Obligations of the Borrower by the inclusion in the
instrument evidencing or creating such Indebtedness or the indenture or other
instrument under which such Indebtedness is issued of subordination provisions
no more favorable to the Persons extending or purchasing such Indebtedness than
the terms of subordination found in the documents evidencing the Subordinated
Debt outstanding as of the date hereof set forth on Schedule 8.01 hereof.
"Tangible Net Worth" shall have the meaning specified in Section
6.01(g).
"Termination Date" means the earlier of June 30, 1999 (or anniversary
thereof as may be determined in accordance with Section 1.01(d) hereof) or the
date of termination in whole or in part of the Commitment pursuant to Section
1.01(c) or Section 7.01.
"Termination Event" means (a) a Reportable Event described in Section
4043 of ERISA and the regulations issued thereunder (other than a Reportable
Event not subject to the provision for 30-day notice to the PBGC under such
regulations), or (b) the withdrawal of Borrower or any Subsidiary from a Plan
during a plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, or (c) the filing of a notice of intent to
terminate a Plan or the treatment of Plan amendment as termination under Section
4041 of ERISA, or (d) the institution of proceedings to terminate a Plan by the
PBGC, or (e) any other event or condition which might constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan.
"Total Commitment" at the time any determination thereof is to be made
means the sum of the then existing Commitments of the Banks.
"Trade Debt" means trade accounts payable incurred in the ordinary
course of business with an original maturity of not greater than 180 days (and
which are not overdue for more than 30 days).
SECTION 8.02. Construction. Wherever herein the singular number is
used, the same shall include the plural where appropriate, and words of any
gender shall include each other gender where appropriate. The headings, captions
or arrangements used in any of the Loan Documents are, unless specified
otherwise, for convenience only and shall not be deemed to limit, amplify or
modify the terms of the Loan Documents, nor affect the meaning thereof.
SECTION 8.03. Currency. All Advances and Bid Rate Credits shall be
denominated in United States Dollars.
ARTICLE IX
THE AGENT
SECTION 9.01. Authorization and Action. Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the 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 Majority Banks; provided,
however, that the Agent shall not be required to take any action which exposes
the Agent to personal liability or which is contrary to this Agreement or
applicable law.
SECTION 9.02. Duties and Obligations. Neither the Agent nor any of its
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 this Agreement
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent (i) may treat the payee
of any Note as the holder thereof unless and until the Agent receives written
notice of the assignment thereof signed by such payee and the Agent receives the
written agreement of the assignee that such assignee is bound hereby as it would
have been if it had been an original Bank party hereto, in each case in form
satisfactory to the Agent, (ii) may consult with legal counsel (including
counsel for the Borrower), 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, and (iii) shall incur no liability under or in respect
of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, cable, telex or facsimile)
believed by it to be genuine and signed or sent by the proper party or parties
or by acting upon any representation or warranty of the Borrower made or deemed
to be made hereunder. Further, the Agent (A) makes no warranty or representation
to any Bank or shall not be responsible to any Bank for the accuracy or
completeness of any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement, (B) 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 this Agreement on the part of the Borrower
or to inspect the property (including the books and records) of the Borrower,
and (C) shall not be responsible to any Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto.
SECTION 9.03. Agent and Affiliates. With respect to its Commitment,
the Advances made by it and the Note issued to it, the Agent shall have the same
rights and powers under this Agreement as the other Banks and may exercise the
same as though it were not the Agent; and the term "Bank" or "Banks" shall,
unless otherwise expressly indicated, include the Agent in its capacity as Bank.
Rabobank and its affiliates may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind of business with,
the Borrower, all as if Rabobank were not the Agent hereunder and without any
duty to account therefor to the Banks.
SECTION 9.04. Bank Credit Decision. It is understood and agreed by
each Bank that it has itself been, and will continue to be, solely responsible
for making its own independent appraisal of and investigations into the
financial condition, creditworthiness, condition, affairs, status and nature of
the Borrower. Accordingly, each Bank confirms to the Agent that such Bank has
not relied, and will not hereafter rely, on the Agent (i) to check or inquire on
its behalf into the adequacy, accuracy or completeness of any information
provided by the Borrower under or in connection with this Agreement or the
transactions herein contemplated (whether or not such information has been or is
hereafter distributed to such Bank by the Agent), or (ii) to assess or keep
under review on its behalf the financial condition, creditworthiness, condition,
affairs, status or nature of the Borrower. Each Bank acknowledges that a copy of
this Agreement and a copy of the Exhibits and Schedules hereto have been made
available to it and to its individual legal counsel for review and such Bank
acknowledges that it is satisfied with the form and substance of this Agreement
and the Exhibits and Schedules hereto.
SECTION 9.05. Indemnification. The Banks agree to indemnify the Agent
(to the extent not reimbursed by the Borrower), ratably according to their
respective Pro Rata Shares, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgment, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement, provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limiting the generality of the foregoing, each Bank
agrees to reimburse the Agent promptly upon demand for its ratable share of any
reasonable out-of-pocket expenses (including reasonable counsel fees) incurred
by the Agent in connection with the preservation of any rights of the Agent or
the Banks under, or the enforcement of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower.
SECTION 9.06. Resignation of Agent. The Agent may resign at any time
by giving written notice thereof to the Banks and the Borrower. If no successor
Agent shall have been appointed by the Banks, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be either a Bank or a bank organized under the laws
of the United States or of any state thereof, or any affiliate of such bank, and
having a combined capital and surplus of at least $50,000,000, provided,
however, that the appointment of any successor Agent shall require the prior
written consent of the Borrower, which consent shall not be unreasonably
withheld, and that if the Borrower shall not have consented to the appointment
of any of the Banks, then any Bank may be appointed as a successor Agent in
accordance with the terms of this Section 9.06 without the consent of the
Borrower. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation hereunder as Agent, the
provision of this Article IX shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement.
SECTION 9.07. Exchange of Information. Each Bank and the Agent shall
freely exchange with the other(s) of them any information relating to the
condition, financial or otherwise, of any Loan Party, and the Borrower hereby
consents any and all prior, present or future such exchanges.
SECTION 9.08. Benefit of the Banks Only. The terms and provisions of
this Article IX are for the sole and exclusive benefit of the Agent and the
Banks, and not for the benefit of the Borrower, the Guarantors or any other Loan
Party.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver of any
provision of any Loan Document, 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 Majority Banks 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 any modification of, or waiver of compliance with
any of the provisions of, this Section 10.01, the Guaranty, the definition of
Majority Bank or any terms affecting the maturity of or any other dates for
payment or the amounts of any Commitments, the Advances, or interest on the
Advances shall require the written agreement of the Borrower, the Agent and each
of the Banks.
SECTION 10.02. Notices, Etc. All notices and other communications
provided for under any Loan Document shall be in writing (including telegraphic,
telex or cable communication) and mailed, telegraphed, telexed, cabled or
delivered, if to the Borrower, at its address at 0000 Xxxxxx Xxxx, Xxxxxx, XX
00000, Attention: Xxxxxxx X. Xxxxxxxxxxxx and Xxxxx X. Xxxxxxxx; and if to the
Agent, at its address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Services Department, and at its address at 00000 Xxxx Xxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxxx X. Xxxxx; and if to a Bank, at its
address or addresses, as the case may be, set forth on the signature page of
this Agreement or the then most recent Bank Supplement to which such Bank is a
party; or, as to each party, at such other address as shall be designated by
such party in a written notice to the other party. All such notices and
communications shall, when mailed, telegraphed, telexed or cabled, be effective
when deposited in the mails, delivered to the telegraph company, confirmed by
telex answerback or delivered to the cable company, respectively, except that
notices to the Agent or any Bank pursuant to the provisions of Article II shall
not be effective until received by the Agent or such Bank, as the case may be.
Notwithstanding the other provisions of this Section 10.02, the Agent may accept
oral borrowing notices pursuant to Article II hereof, provided that the Agent
shall incur no liability to the Borrower in acting on any such communication
that the Agent believes in good faith to have been given by a person authorized
to give such notice on behalf of the Borrower. Any confirmation sent by the
Agent or any Bank to the Borrower of any borrowing under this Agreement shall,
in the absence of manifest error, be conclusive and binding for all purposes.
SECTION 10.03. No Waiver; Remedies. No failure on the part of the
Agent or any Bank to exercise, and no delay in exercising, any right under any
Loan Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under any Loan Document preclude any other or further
exercise thereof or the exercise of any other right. The remedies provided in
the Loan Documents are cumulative and not exclusive of any remedies provided by
law.
SECTION 10.04. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistently applied, except as otherwise stated herein.
The Borrower agrees to furnish to the Agent and each Bank concurrently with each
delivery of the items referred to in Section 6.01(e)(i) and Section 6.01(e)(ii),
a calculation of the Borrower's compliance or noncompliance with the covenants
contained in Sections 6.01(f), (g), (h) and (i) and a calculation and
reconciliation of the adjustments contemplated in this Section 10.04, each in
form and detail satisfactory to the Agent, and certified by such person and in
such manner as is prescribed in Sections 6.01(f) (g), (h) and (i), as the case
may be, as to the other items referred to therein.
SECTION 10.05. Costs, Expenses and Taxes. (a) The Borrower agrees to
pay on demand all costs and expenses in connection with the preparation,
execution, delivery, filing, recording and administration of the Loan Documents
and the other documents to be delivered under the Loan Documents, including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Agent and each Bank (who may be in-house counsel for the Agent or such
Bank), and local counsel who may be retained by said counsel, with respect
thereto and with respect to advising the Agent and such Bank as to its rights
and responsibilities under the Loan Documents and all costs and expenses
(including reasonable counsel fees and expenses) in connection with the
enforcement of the Loan Documents and the other documents to be delivered under
the Loan Documents. In addition, the Borrower agrees to pay on demand the
expenses described in Section 6.01(d), subject to the limitations on amount
specified therein. In addition, the Borrower shall pay any and all stamp and
other taxes and fees payable or determined to be payable in connection with the
execution, delivery, filing and recording of the Loan Documents and the other
documents to be delivered under the Loan Documents, and agrees to hold the Agent
and the Banks harmless from and against any and all liabilities with respect to
or resulting from any delay in paying or omission to pay such taxes and fees.
(b) If, due to payments made by the Borrower pursuant to Section 3.01
or due to acceleration of the maturity of the Advances pursuant to Section 7.01
or due to any other reason, the Agent or any Bank receives payments of principal
of any Advance other than on the last day of an Interest Period relating to such
Advance, the Borrower shall pay to the Agent or the Bank on demand any amounts
required to compensate the Agent or such Bank, as the case may be, for any
additional losses, costs or expenses which it may incur as a result of such
payment, including, without limitation, any loss (including loss of Anticipated
Profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by the Agent or such Bank, as the case may
be, to fund or maintain such Advance.
SECTION 10.06. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default the Agent and each Bank are hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply, on a pro rata basis according to each Bank's Pro Rata
Share, 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 the Agent
and/or such Bank 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 any
Loan Document, irrespective of whether or not such Bank shall have made any
demand under such Loan Document and although deposits, indebtedness or such
obligations may be unmatured or contingent; provided, however, that each Bank
and the Agent may first set off and apply such funds to obligations other than
Bank Obligations. The Agent and each Bank, as the case may be, agrees promptly
to notify the Borrower after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Bank under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which the Agent and the Banks may have.
SECTION 10.07 Indemnification. Borrower agrees to, and does indemnify
and hold harmless the Agent and each Bank and their respective officers,
directors, agents, employees, attorneys and shareholders against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims (whether made or threatened), costs, expenses and disbursements of any
kind or nature whatsoever (including without limitation, the reasonable fees and
expenses of counsel (including the allocated cost of staff counsel)) which may
be imposed on or incurred by the Agent or any Bank or their respective officers,
directors, agents, employees, attorneys and shareholders in any way relating to,
or arising out of, (a) any of the Loan Documents, (b) the breach of any
representation or warranty as set forth herein regarding Environmental Laws, (c)
the failure of the Borrower or any of its subsidiaries to perform any obligation
required herein or in any of the Loan Documents to be performed pursuant to
Environmental Laws, or (d) any other act, omission, event or other transaction
contemplated in any of the Loan Documents, to the extent that any of the same
result, directly or indirectly, from any claims (whether made or threatened) or
actions, suits or proceedings (whether made or threatened) by or on behalf of
any Person other than a Bank. Without limiting the generality of the foregoing,
such indemnity shall extend to any and all costs and expenses whatsoever
incurred by the Agent and each Bank and their respective officers, directors,
agents, employees, attorneys and shareholders (including, without limitation,
the reasonable fees and expenses of counsel (including the allocated cost of
staff counsel)), in connection with investigating, preparing for or defending
against or providing evidence, producing documents or taking any action with
respect to any such action, claim (whether made or threatened and whether or not
the Agent, any Bank or other indemnified person is a party to such action or
claim), suit, liability, damage or loss, whether or not resulting in any
liability. The Agent and each Bank may select its own legal counsel in
connection with any matters indemnified against hereunder. The obligation of
Borrower under this Section 10.07 shall survive execution, delivery,
consummation and any termination of this Agreement. Borrower's obligations under
this Section 10.07 are and shall remain absolute and unconditional, enforceable
against each of them whether or not any Advance is ever made, any Letter of
Credit is ever issued, any Acceptance is ever created or any other obligation
ever arises or any conditions of lending are ever met and without regard to any
act, omission, breach, knowledge or event by, attributable to, or in any manner
involving the Agent or any Bank or their respective officers, directors, agents,
employees, attorneys and shareholders. Payment by Borrower in respect of a claim
made by the Agent or any Bank or their respective officers, directors, agents,
employees, attorneys and shareholders pursuant to this Section 10.07 shall be
made within thirty days after demand therefor. If and to the extent that the
foregoing undertaking may be unenforceable for any reason, Borrower hereby
agrees to make the maximum contribution to the payment and satisfaction of each
of the foregoing amounts which is permissible under applicable law.
SECTION 10.08. Severability of Provisions. Any provision of this
Agreement or of any other Loan Document which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or thereof or affecting the validity or unenforceability of
such provision in any other jurisdiction.
SECTION 10.09. Binding Effect; Successors and Assigns; Participations.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Agent and the Banks and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Agent and each
Bank. Each Bank shall have the right at any time, to assign, negotiate,
hypothecate, or grant participations in this Agreement or in any of its
commitments, Advances, Notes and rights under this Agreement and any of the
other Loan Documents, and in the event of the exercise of such right shall
promptly notify the Agent and the other Banks thereof; provided, however, that
no assignment shall be made to a third party without the prior consent of the
Borrower, which consent shall not be unreasonably withheld. Each Bank assigning
or transferring any of its commitments, Advances, Notes, rights and security
under this Agreement or any of the other Loan Documents shall, promptly upon
request by the Agent, execute and deliver such documents and instruments
reasonably requested by the Agent (collectively, a "Bank Supplement") to
evidence such assignment or transfer and to substitute the assignee or
transferee as a Bank on all of the Loan Documents. The Borrower hereby
acknowledges and agrees that any assignment or transfer described in this
Section 10.09 will give rise to a direct obligation of the Borrower to the
buyer, assignee or transferee, as the case may be, but not a participant, and
such person (other than a participant) shall be considered a Bank and rely on,
and possess all rights under, all opinions, certificates or other instruments
delivered under or in connection with this Agreement or any other Loan Document.
The Borrower shall accord full recognition to any such assignment or transfer,
and all rights and remedies of such Bank in connection with the interest so
assigned shall be as fully enforceable by such assignee as they were by the
assignor Bank thereof before such assignment. In connection with any proposed
assignment, negotiation, hypothecation or granting of a participation, the Agent
and any such Bank or Banks, as the case may be, may disclose to the proposed
assignee or participant any information that the Borrower is required to deliver
to the Agent and/or the Banks pursuant to this Agreement or the other Loan
Documents, and the Borrower hereby agrees to cooperate fully with the Agent and
the Banks, as the case may be, in providing any such information to any proposed
assignee or participant. If requested by the Agent, any assignor or transferor
Bank, or any assignee or transferee, Borrower shall execute and deliver (a) to
such assignor or transferor Bank a promissory note or substitute promissory
note, as the case may be, in substantially the form of Exhibit A, payable to the
order of such assignor or transferor Bank in the principal amount of the
retained Commitment, if any, of such assignee or transferor Bank in respect of
such assignment or transfer and (b) to such assignee or transferee a promissory
note, in substantially the form of Exhibit A, payable to the order of the
assignee or transferee in the principal amount of the assigned or transferred
Commitment of such assignee or transferee in respect of such assignment or
transfer.
SECTION 10.10. Consent to Jurisdiction. (a) The Borrower hereby
irrevocably submits to the jurisdiction of any New York State or Federal court
sitting in New York City in any action or proceeding arising out of or relating
to this Agreement or any of the other Loan Documents to which the Borrower is a
party, and the Borrower hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in such New York State
court or in such Federal court. The Borrower hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum to
the maintenance of such action or proceeding. The Borrower irrevocably consents
to the service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding by the mailing of copies of
such process to the Borrower at its address specified in Section 10.02. The
Borrower agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
(b) Nothing in this Section 10.10 shall affect the right of the Bank
to serve legal process in any other manner permitted by law or affect the right
of the Bank to bring any action or proceeding against the Borrower or its
property in the courts of other jurisdictions.
SECTION 10.11. Governing Law. THIS AGREEMENT AND THE NOTE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 10.12. Banks' Obligations Several, Not Joint. The obligations
of the Banks under this Agreement and the other Loan Documents are several, and
are not joint. No Bank or the Agent shall be responsible or liable in any way
for the failure or refusal of any other Bank to make any Advance to be made by
any other Bank, or for any other obligations of any other Bank.
SECTION 10.13. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together shall constitute
but one and the same agreement.
SECTION 10.14. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT
AND THE BANKS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENT TO WHICH IT IS A PARTY OR ANY INSTRUMENT OR DOCUMENT DELIVERED
THEREUNDER.
SECTION 10.15. NO ORAL AGREEMENTS. THIS AGREEMENT, TOGETHER WITH THE
AGREEMENTS, DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
SECTION 10.16. No Effect on Certain Other Rights and Obligations.
Notwithstanding anything to the contrary contained in this Agreement or any
other Loan Document, nothing contained in this Agreement or any other Loan
Document is intended to affect, nor shall it affect, in any way any rights or
obligations of any Person arising under or in connection with (a) that certain
Note Purchase Agreement dated as of August 27, 1992 by and among the Borrower,
Pierre Frozen Foods, Inc., Rabobank, Metropolitan Life Insurance Company and
Xxxx Xxxxxxx Mutual Life Insurance Company (as amended, the "Pierre Foods
Facility Note Purchase Agreement") or any of the Transaction Documents (as
defined in the Pierre Foods Facility Note Purchase Agreement) or (b) that
certain Term Loan Agreement dated as of July 18, 1985, by and among the Borrower
and Rabobank (as amended, the "Springfield Facility Loan Agreement"), or any of
the Loan Documents (as defined in the Springfield Facility Loan Agreement).
SECTION 10.17. Amendment and Restatement. Upon the execution and
delivery of this Agreement and the other Loan Documents, this Agreement shall
immediately thereupon constitute an amendment, restatement, renewal and
extension (but not a novation, extinguishment or satisfaction) of the Prior
Revolving Credit Agreement and the other Loan Documents (as defined therein),
except that letters of credit issued by any one or more of the Original Banks
under the Prior Revolving Credit Agreement which remained outstanding as of
April 30, 1996 (which, together with all supporting documents delivered by the
Borrower or the Guarantor in connection therewith, shall thereafter be deemed to
be Loan Documents under this Agreement) shall not be terminated or affected
thereby, and any indemnification or other provisions of the Prior Revolving
Credit Agreement or any other Loan Documents executed in connection therewith
which were expressly intended to survive the termination of the Prior Revolving
Credit Agreement, shall not be terminated or otherwise affected thereby. With
respect to matters relating to the period prior to the date hereof, all of the
provisions of the Prior Revolving Credit Agreement are hereby ratified and
confirmed and shall remain in force and effect.
[REMAINDER OF THIS PAGE INTENTIONALLY BLANK]
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.
XXXXXX FOODS, INC.
By:
Name:
Title:
Commitment: $40,000,000.00 COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"Rabobank Nederland", New York Branch
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By:
Authorized Officer
By:
Authorized Officer
Commitment: $40,000,000.00 NATIONSBANK OF TEXAS, N.A.
Address: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
By:
Name:
Title:
Commitment: $30,000,000.00 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
By:
Name:
Title:
Commitment: $30,000,000.00 CAISSE NATIONALE DE CREDIT
AGRICOLE
Address: 00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
By:
Name:
Title:
Commitment: $30,000,000.00 XXXXXX TRUST AND SAVINGS BANK
Address: 000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
By:
Name:
Title:
Commitment: $15,000,000.00 SUNTRUST BANK, ATLANTA
Address: 00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
By:
Name:
Title:
By:
Name:
Title:
Commitment: $15,000,000.00 BOATMEN'S FIRST NATIONAL BANK
OF KANSAS CITY
Address: 00xx & Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
By:
Name:
Title:
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"Rabobank Nederland", New York Branch,
as Agent for the Banks
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By:
Authorized Officer
By:
Authorized Officer
NATIONSBANK OF TEXAS, N.A.,
as documentation agent
Address: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
By:
Name:
Title:
SCHEDULE 6.02(a)
Description of Certain Liens, Lease Obligations, Etc.
[See attachment.]
SCHEDULE 6.02(d)
Description of Liabilities
[See attachment.]
A-2
SCHEDULE 8.01
Subordinated Debt
[See attachment.]
EXHIBIT A
PROMISSORY NOTE
$____________ Dated: April 30, 1996
FOR VALUE RECEIVED, the undersigned, XXXXXX FOODS, INC. (the
"Borrower"), a Delaware corporation, HEREBY PROMISES TO PAY to the order of
___________________ (the "Bank") on the Termination Date (as defined in the
Credit Agreement referred to below) the principal sum of _____________________
Dollars ($_________) or, if less, the aggregate unpaid principal amount of all
Advances (as defined below) made by the Bank to the Borrower outstanding on the
Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to the Bank at ____________________ or at such other location
as may specified by the Bank or to the Agent (as defined in the Credit
Agreement) as may be required under the Credit Agreement, in same day funds. All
Advances made by the Bank to the Borrower and all payments made on account of
principal hereof shall be recorded by the Bank and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Revolving Credit Agreement dated as of April
30, 1996 (the "Credit Agreement") among the Borrower and the Bank, and other
commercial, banking and financial institutions party thereto and the Guaranty
referred to therein. The Credit Agreement, among other things, (i) provides for
the making of advances (the "Advances") by the Bank to the Borrower from time to
time in an aggregate amount not to exceed at any time outstanding the amount
first above mentioned and (ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
XXXXXX FOODS, INC.
By:
Name:
Title:
B-1
ADVANCES, BID RATE CREDITS AND PRINCIPAL PAYMENTS
@@
-----------------------------------------------------------------------------------------------------------------------------------
Type of
Advance or Bid
Amount of Rate Credit and
Advance or Bid Applicable Amount of Unpaid
Rate Credit Made Interest Rate Interest Period Principal Repaid Principal Balance Notation Made By
Date
@@
-----------------------------------------------------------------------------------------------------------------------------------
The aggregate unpaid principal amount shown on this grid shall be rebuttable
presumptive evidence of the principal amount owing and unpaid on this Note. The
failure to record the date and amount of any Advance or Bid Rate Credit on this
schedule shall not, however, limit or otherwise affect the Borrower's
obligations under the Credit Agreement or under this Note to repay the principal
amount of the Advances and Bid Rate Credits together with all interest accruing
thereon, nor shall such failure affect the Borrower's or any other Loan Party's
obligations under any other Loan Document.
C-6
EXHIBIT B
GUARANTY
GUARANTY, dated ___________, 19__ made by __________________, a
[corporation] organized and existing under the laws of ________ (the
"Guarantor"), in favor of COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"Rabobank Nederland", New York Branch, individually and as Agent for itself and
the Banks (as such term is defined in the "Credit Agreement" defined below (the
"Agent").
PRELIMINARY STATEMENT. The Agent and one or more of the Banks have
entered into a Revolving Credit Agreement dated as of April 30, 1996 (said
Agreement, as it may hereafter be amended or otherwise modified from time to
time, being the "Credit Agreement," the terms defined therein and not otherwise
defined herein being used herein as therein defined) with Xxxxxx Foods, Inc., a
corporation organized and existing under the laws of Delaware (the "Borrower").
It is a condition precedent to the making of Advances and extension of Bid Rate
Credits by the Agent and/or the Banks under the Credit Agreement that the
Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to
induce Agent and/or the Banks to make Advances under the Credit Agreement, the
Guarantor hereby agrees as follows:
SECTION 1. Guaranty. The Guarantor hereby unconditionally guarantees
the punctual payment when due, whether at stated maturity, by acceleration or
otherwise, of all obligations of the Borrower now or hereafter existing under
the Credit Agreement, the Notes and the other Loan Documents to which the
Borrower is a party and any other agreement or instrument relating thereto,
whether for Committed Advances, Bid Rate Advances, Bid Rate Credits, principal,
interest, fees, expenses or otherwise (such obligations being the
"Obligations"), and agrees to pay any and all expenses (including counsel fees
and expenses) incurred by the Agent and/or the Banks in enforcing any rights
under this Guaranty.
SECTION 2. Guaranty Absolute. The Guarantor guarantees that the
Obligations will be paid strictly in accordance with the terms of the Credit
Agreement, the Notes and the other 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 Agent and/or the Banks with respect thereto.
The liability of the Guarantor under this Guaranty shall be absolute and
unconditional irrespective of:
(i) any lack of validity or enforceability of the Credit Agreement,
the Notes, any other Loan Document or any other agreement or instrument relating
thereto;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to departure from the Credit Agreement, the Notes or any other
Loan Document and any other agreement or instrument relating thereto;
(iii) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Obligations; or
(iv) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Borrower or a guarantor. This Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment of any of the Obligations is rescinded or must otherwise be
returned by the Banks upon the insolvency, bankruptcy or reorganization of the
Borrower or otherwise, all as though such payment had not been made.
SECTION 3. Waiver. The Guarantor hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Obligations
and this Guaranty and any requirement that the Agent or any of the Banks
protect, secure, perfect or insure any security interest or lien or any property
subject thereto or exhaust any right or take any action against the Borrower or
any other person or entity or any collateral.
SECTION 4. No Right of Subrogation, Etc. Notwithstanding anything to
the contrary contained herein, the Guarantor shall not have any right, claim or
action, now or hereafter, against the Borrower arising out of or in connection
with this Guaranty or any other document evidencing the Obligations, including,
without limitation, any right or claim of subrogation, contribution,
reimbursement, exoneration, or indemnity, all such rights and claims being
hereby expressly and absolutely waived. If any amount shall be paid to the
Guarantor on account of Guarantor having made a payment under this Guaranty at
any time when any Obligations shall not have been finally and indefeasibly paid
in full, such amount shall be held in trust for the benefit of the Agent and the
Banks and shall forthwith be paid to the Agent to be credited and applied upon
the Obligations, whether matured or unmatured, in accordance with the terms of
the Credit Agreement.
SECTION 5. Representations and Warranties. The Guarantor hereby
represents and warrants as follows:
(a) The Guarantor is a corporation duly incorporated, validly existing
and in good standing under the laws of the jurisdiction indicated at the
beginning of this Guaranty.
(b) The execution, delivery and performance by the Guarantor of this
Guaranty are within its corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene (i) the Guarantor's charter or
by-laws or (ii) any law or any contractual restriction binding on or affecting
the Guarantor.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Guarantor of this Guaranty.
(d) This Guaranty is a legal, valid and binding obligation of the
Guarantor enforceable against it in accordance with its terms.
(e) The balance sheet for the Borrower and its subsidiaries (including
the Guarantor) as at _______________, 19__, and the related statement of income
of the Borrower and its subsidiaries (including the Guarantor) for the fiscal
period then ended, copies of which have been furnished to the Bank, fairly
present the financial condition of the Borrower and its subsidiaries (including
the Guarantor) as at such date and the results of the operations of the Borrower
and its subsidiaries (including the Guarantor) for the period ended on such
date, all in accordance with generally accepted accounting principles
consistently applied, and since ______________, 19__, there has been no material
adverse change in such condition or operations.
(f) There is no pending or threatened action or proceeding affecting
the Guarantor before any court, arbitrator or governmental agency, which may
materially adversely affect the financial condition or operations of the
Guarantor or which purports to affect the legality, validity or enforceability
of this Guaranty.
SECTION 6. Covenants. The Guarantor covenants and agrees that, so long
as any part of the Obligations shall remain unpaid or unperformed or the Agent
or any of the Banks shall have any Commitment, the Guarantor will, unless the
Agent shall otherwise consent in writing:
(a) Reporting Requirements. Furnish to the Bank:
(i) as soon as available and in any event within thirty (30) days
after the end of each month of each fiscal year of the Borrower, the balance
sheet of the Borrower and its subsidiaries (including the Guarantor) as of the
end of such month and the statement of income of the Borrower and its
subsidiaries (including the Guarantor) for the period commencing at the end of
the previous fiscal year and ending with the end of such month, certified by the
Chief Financial Officer, Secretary or Treasurer of the Guarantor;
(ii) as soon as available and in any event within ninety (90) days
after the end of each fiscal year of the Borrower, a copy of the financial
statements for the Borrower and its subsidiaries (including the Guarantor) for
such year certified in a manner acceptable to the Agent by Coopers & Xxxxxxx or
other independent public accountants acceptable to the Agent; and
(iii) such other information respecting the condition or operations,
financial or otherwise, of the Guarantor or any of its subsidiaries as the Agent
may from time to time reasonably request.
SECTION 7. Amendments, Etc. No amendment or waiver of any provision
of this Guaranty nor consent to any departure by the Guarantor therefrom shall
in any event be effective unless the same shall be in writing and signed by the
Agent, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 8. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telex or cable communication) and mailed, telegraphed, telexed,
cabled or delivered, if to the Guarantor, at its address at
_______________________________, Attention: __________________, if to the Agent,
at its address specified in the Credit Agreement, or as to each party at such
other address as shall be designated by such party in a written notice to the
other party. All such notices and other communications shall, when mailed,
telegraphed, telexed or cabled, be effective when deposited in the mails,
delivered to the telegraph company, confirmed by telex answerback or delivered
to the cable company, respectively.
SECTION 9. No Waiver; Remedies. No failure on the part of the Agent
or any of the Banks to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder 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 10. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default the Agent and each of the Banks are hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by the Agent or such Bank to or for the credit or the account of the
Guarantor against any and all of the obligations of the Guarantor now or
hereafter existing under this Guaranty, irrespective of whether or not the Agent
or such Bank shall have made any demand under this Guaranty and although such
deposits, indebtedness or obligations may be unmatured or contingent. The Agent
or such Bank, as the case may be, severally (but not jointly) agrees to notify
the Guarantor promptly after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Agent and each of the Banks under this Section 10
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which the Agent and each of the Banks may have.
SECTION 11. Continuing Guaranty; Transfer of Note. This Guaranty is a
continuing guaranty and shall (i) remain in full force and effect until the
later of payment in full of the Obligations and all other amounts payable under
this Guaranty or the Termination Date, (ii) be binding upon the Guarantor, its
successors and assigns and (iii) inure to the benefit of and be enforceable by
the Agent and its successors, transferees and assigns. Without limiting the
generality of the foregoing clause (iii), the Agent and each of the Banks may
assign or otherwise transfer the Notes to any other person or entity, and such
other person or entity shall thereupon become vested with all the rights in
respect thereof granted to the Agent or such Bank, as the case may be, herein or
otherwise.
SECTION 12. Consent to Jurisdiction. (a) The Guarantor hereby
irrevocably submits to the jurisdiction of any New York State or Federal court
sitting in New York City in any action or proceeding arising out of or relating
to this Guaranty, and the Guarantor hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such New
York State court or in such Federal court. The Guarantor hereby irrevocably
waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding. The
Guarantor irrevocably consents to the service of copies of the summons and
complaint and any other process which may be served in any such action or
proceeding by the mailing of copies of such process to the Guarantor to its
address specified in Section 8. The Guarantor agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Nothing in this Section 12 shall affect the right of the Bank to
serve legal process in any other manner permitted by law or affect the right of
the Agent to bring any action or proceeding against the Guarantor or its
property in the courts of any other jurisdictions.
SECTION 13. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS GUARANTY.
[REMAINDER OF THIS PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
[GUARANTOR]
By:
Name:
Title:
D-2
EXHIBIT C
[Date of Initial Advance]
[To the Agent and the Banks]
Re: Xxxxxx Foods, Inc.
Gentlemen:
We have acted as counsel to Xxxxxx Foods, Inc. (the "Borrower") in
connection with the Revolving Credit Agreement dated as of April 30, 1996 (the
"Credit Agreement") among the Borrower, Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch,
individually and as Agent, and the other commercial, banking and financial
institutions party thereto (collectively, the "Banks" and individually, a
"Bank"). This opinion is delivered to you pursuant to Section 4.01(f) of the
Credit Agreement. Capitalized terms not otherwise defined herein are used herein
as defined in the Loan Documents (as such term is defined in the Credit
Agreement).
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined such corporate documents and records of the Loan
Parties, certificates of public officials and other documents and (iii) received
such information from officers and representatives of the Loan Parties, as we
have deemed necessary or appropriate for the purposes of this opinion. We have
examined, among other documents, the following documents:
(a) the Credit Agreement; and
(b) the Notes; and
In our examination of the documents referred to above, we have
assumed the due authorization, execution and delivery of the Credit Agreement by
the Bank, the authenticity of all documents submitted to us as original
documents, and the conformity to original documents of all documents submitted
to us as copies thereof. In our examination of the certificates referred to in
clause (ii) above, we have assumed that all financing statements in which the
Borrower is named as debtor, have been properly filed and indexed in the
appropriate filing offices in the State, that such certificates are accurate and
complete, and that the Bank has no knowledge of the contents of any other
financing statement.
Based upon and subject to the foregoing and the further
qualifications set forth below, we are of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of Delaware.
2. The execution, delivery and performance by the Loan Parties of the
Loan Documents to which they are parties are within the Loan Parties' respective
powers, have been duly authorized by all necessary corporate action, and do not
contravene (i) the Loan Parties' respective charters or by-laws or (ii) any law,
rule or regulation applicable to the Loan Parties (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System) or (iii) any contractual or legal restriction binding on or affecting
the Loan Parties. The Loan Documents have been duly executed and delivered on
behalf of the Loan Parties.
3. No authorization, order, license, franchise, consent or approval or
other action by, and no notice to or registration or filing with, any
governmental authority or regulatory body is required for (i) the due execution,
delivery, recordation, filing or performance by the Loan Parties of any Loan
Document to which they are a party, or (ii) the exercise by the Bank of its
rights under any Loan Document.
4. In any action or proceeding arising out of or relating to any Loan
Document in any court in the State of Arkansas, such court would recognize and
give effect to the provisions of such Loan Document wherein the parties thereto
agree that such Loan Document shall be governed by, and construed in accordance
with, the law of the State of New York. If the law of the State of Arkansas were
applied to determine the contractual rights and liabilities created by such Loan
Document, such Loan Document would be the legal, valid and binding obligation of
the Borrower enforceable against the Borrower in accordance with its terms,
subject, however, to (a) the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and (b) the effect of general principles of equity (regardless whether such
enforceability is considered in a proceeding in equity or at law).
5. There is no pending or, to the best of our knowledge after due
inquiry, threatened action or proceeding against either Loan Party before any
court, governmental agency or arbitrator which is likely to have a materially
adverse effect upon the financial condition or operations of either Loan Party.
Very truly yours,
E-2
EXHIBIT D
NOTICE OF COMMITTED BORROWING
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Services Department
Re: Revolving Credit Agreement, dated as of April 30, 1996, as amended or
modified and in effect from time to time, the "Credit Agreement", among XXXXXX
FOODS, INC. (the "Borrower"), the various financial institutions party thereto
and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. "Rabobank Nederland",
New York Branch, individually and as Agent, terms not otherwise expressly
defined herein shall have the same meanings set forth in the Credit Agreement.
Gentlemen/Ladies:
A. Loans and Letter of Credit. The Borrower hereby requests that on
__________, 199__, Committed Advances be made to the Borrower in the aggregate
principal amount of $__________ and be comprised of
[ ] Base Rate Loans in the aggregate principal amount of $__________
and/or
[ ] LIBOR Rate Loans in the aggregate principal amount of $__________
with Interest Period(s) of
[ ] 1 month in the amount of $__________,
[ ] 3 months in the amount of $__________,
B. Representations and Warranties. The Borrower hereby expressly
confirms that the representations and warranties contained in Section 5.01 of
the Credit Agreement [and Section 5 of the Guaranty, if applicable] are correct
on and as of the date specified in Section A above as though made on and as of
such date.
C. Outstandings Report. Attached hereto as Exhibit A is an
Outstandings Report dated the date hereof, which Outstandings Report is
complete, true and accurate in all respects.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
executed and delivered by its duly authorized officer this _____ day of
_________________, 19___.
XXXXXX FOODS, INC.
By:
Name:
Title:
F-1
EXHIBIT E
REQUEST FOR BIDS
====================================================
Attention:__________________________________________
Facsimile:
Telephone:
___________This instrument constitutes a Request for Bids under, and as defined
by, the Revolving Credit Agreement dated as of April 30, 1996 (as amended or
modified and in effect from time to time, the "Credit Agreement") among the
undersigned XXXXXX FOODS, INC. (the "Borrower"), the various financial
institutions party thereto, and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "Rabobank Nederland, New York Branch, individually and as Agent. Terms not
otherwise expressly defined herein shall have the meanings set forth in the
Credit Agreement.
___________The Borrower hereby requests Bid Rate Credit(s), subject to the terms
of the Credit Agreement, as follows:
(a)________Bid Rate Credit Borrowing Date: ______________, 19___.
(b)________Aggregate principal amount of Bid Rate Credits requested:
$__________.
(c)________Number of Bid Rate Credits requested and principal amounts
thereof: _________ Bid Rate Credits in the amounts of $_________, $__________
and $__________, respectively.
(d)________Interest Period(s) and its/their maturity date(s):
@@
Principal Amount Maturity Date Interest Period
$ days
$ days
$ days
@@
(e)________Applicable Rate: __________
(f)________Deposit to Account #____________ at _________________________.
___________A. Representations and Warranties.
___________ (i) The Borrower hereby expressly confirms that the representations
and warranties contained in Section 5.01 of the Credit Agreement [and Section 5
of the Guaranty, if applicable] are correct on and as of the date specified in
Section (a) above as though made on and as of such date.
___________ (ii) The Borrower hereby expressly represents and warrants that
after giving effect to the Bid Rate Credit(s) requested herein (a) the sum of
(I) the outstanding Bid Rate Advances and (II) the outstanding Bid Rate Credits
(other than Bid Rate Credits consisting of Bid Rate Advances) does not exceed
(b) fifty percent (50%) of the Total Commitment.
___________B. Outstandings Report. Attached hereto as Exhibit A is an
Outstandings Report dated the date hereof, which Outstandings Report is
complete, true and accurate in all respects.
___________The Borrower agrees that if prior to the time a Bid Rate Credit is
made in relation hereto, any matter certified to, confirmed, represented or
warranted herein by it will not be true and correct at such time as if then
made, it will immediately so notify the Agent.
___________IN WITNESS WHEREOF, the Borrower has caused this Request for Bids to
be executed and delivered by its duly authorized officer this _______ day of
_______________, 19____.
XXXXXX FOODS, INC.
By:
Name:
Title:
EXHIBIT F
-------------------------------------------------------------------------------------------------------
OUTSTANDINGS REPORT
Bid Advances with the Bank
Committed Advances Bid Advances and LCs Group - Outside the
Outstanding Outstanding RLOC
-------------------------------------------------------------------------------------------------------
Rabobank Nederland
-------------------------------------------------------------------------------------------------------
Bank of America
-------------------------------------------------------------------------------------------------------
NationsBank
-------------------------------------------------------------------------------------------------------
Credit Agricole
-------------------------------------------------------------------------------------------------------
Xxxxxx Trust and Savings Bank
-------------------------------------------------------------------------------------------------------
SunTrust Bank, Atlanta
-------------------------------------------------------------------------------------------------------
Boatmen's First National
-------------------------------------------------------------------------------------------------------
Other Banks Outside the Bank Group
Not to Exceed $20,000,000
