Exhibit 4.4
Conformed Copy
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CREDIT AGREEMENT
dated as of April 18, 1997
among
DEL MONTE CORPORATION,
VARIOUS FINANCIAL INSTITUTIONS,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent,
BANKERS TRUST COMPANY,
as Documentation Agent,
and
THE FIRST NATIONAL BANK OF BOSTON,
CITICORP USA, INC.,
GENERAL ELECTRIC CAPITAL CORPORATION
and
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY,
as Co-Agents
Arranged by
BANCAMERICA SECURITIES, INC.
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms....................................1
1.2 Other Interpretive Provisions...........................33
1.3 Accounting Principles...................................34
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments........................34
(a) The Term A Credit...................................34
(b) The Term B Credit...................................35
(c) The Revolving Credit................................35
2.2 Loan Accounts...........................................35
2.3 Procedure for Borrowing.................................35
2.4 Conversion and Continuation Elections...................36
2.5 Swingline Loans.........................................37
2.6 Termination or Reduction of Revolving Commitments.......40
2.7 Optional Prepayments....................................41
2.8 Mandatory Prepayments of Loans..........................41
2.9 Repayment...............................................44
(a) The Term A Credit...................................44
(b) The Term B Credit...................................44
(c) The Revolving Credit................................44
2.10 Interest................................................44
2.11 Fees....................................................45
(a) Arranger and Agency Fees............................45
(b) Commitment Fees.....................................45
2.12 Computation of Fees and Interest........................46
2.13 Payments by the Company.................................46
2.14 Payments by the Lenders to the Administrative Agent.....47
2.15 Sharing of Payments, Etc................................47
2.16 Limitation on Offshore Rate Option......................48
ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility........................48
3.2 Issuance, Amendment and Extension of Letters of Credit..49
3.3 Risk Participations, Drawings and Reimbursements........51
3.4 Repayment of Participations.............................53
3.5 Role of the Issuing Lender..............................53
3.6 Obligations Absolute....................................54
3.7 Cash Collateral Pledge..................................55
3.8 Letter of Credit Fees...................................55
3.9 Uniform Customs and Practice............................56
3.10 Non-Dollar Letters of Credit............................56
3.11 Prior Letters of Credit.................................58
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes...................................................58
4.2 Illegality..............................................59
4.3 Increased Costs and Reduction of Return.................60
4.4 Funding Losses..........................................61
4.5 Inability to Determine Rates............................61
4.6 Certificates of Lenders.................................62
4.7 Substitution of Lenders.................................62
4.8 Survival................................................62
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions of Initial Credit Extensions.................62
(a) Credit Agreement and Notes.........................63
(b) Resolutions and Incumbency.........................63
(c) Organization Documents; Good Standing..............63
(d) DMFC Recapitalization..............................63
(e) Legal Opinions.....................................64
(f) Payment of Fees....................................64
(g) Security Agreements, etc...........................64
(h) Parent Guaranty....................................64
(i) Pledge Agreements..................................64
(j) Real Property......................................65
(k) Intellectual Property License......................65
(1) Certificate........................................65
(m) Other Documents....................................65
(n) Solvency Certificates..............................66
(o) Borrowing Base Certificate.........................66
(p) Environmental Indemnities..........................66
(q) Other Documents....................................66
5.2 Other Conditions to Initial Credit Extension............66
(a) Subordinated Notes.................................66
(b) Capitalization of TPG Acquisition..................66
5.3 Conditions to All Credit Extensions.....................66
(a) Notice, Application................................66
(b) Continuation of Representations and Warranties.....66
(c) No Existing Default................................67
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 Corporate Existence and Power...........................67
6.2 Corporate Authorization; No Contravention...............67
6.3 Governmental Authorization..............................68
6.4 Binding Effect..........................................68
6.5 Litigation..............................................68
6.6 No Default..............................................68
6.7 ERISA Compliance........................................69
6.8 Use of Proceeds; Margin Regulations.....................69
6.9 Title to Properties.....................................69
6.10 Taxes...................................................69
6.11 Financial Condition.....................................70
6.12 Regulated Entities......................................70
6.13 No Burdensome Restrictions..............................71
6.14 Copyrights, Patents, Trademarks and Licenses, etc.......71
6.15 Subsidiaries............................................71
6.16 Insurance...............................................71
6.17 Solvency, etc...........................................71
6.18 Merger, Subordinated Notes, etc.........................72
6.19 Real Property...........................................72
6.20 Swap Obligations........................................72
6.21 Senior Indebtedness.....................................73
6.22 Environmental Warranties................................73
6.23 Full Disclosure.........................................74
ARTICLE VII
AFFIRMATIVE COVENANTS
7.1 Financial Statements....................................74
7.2 Certificates; Other Information.........................75
7.3 Notices.................................................76
7.4 Preservation of Corporate Existence, Etc................77
7.5 Maintenance of Property.................................77
7.6 Insurance...............................................77
7.7 Payment of Obligations..................................77
7.8 Compliance with Laws....................................78
7.9 Compliance with ERISA...................................78
7.10 Inspection of Property and Books and Records............78
7.11 Interest Rate Protection................................78
7.12 Environmental Covenant..................................78
7.13 Use of Proceeds.........................................79
7.14 Further Assurances......................................79
ARTICLE VIII
NEGATIVE COVENANTS
8.1 Limitation on Liens.....................................81
8.2 Disposition of Assets...................................83
8.3 Consolidations and Mergers..............................84
8.4 Loans and Investments...................................84
8.5 Limitation on Indebtedness..............................86
8.6 Transactions with Affiliates............................87
8.7 Use of Proceeds.........................................87
8.8 Contingent Obligations..................................87
8.9 Joint Ventures..........................................88
8.10 Lease Obligations.......................................88
8.11 Minimum Fixed Charge Coverage...........................88
8.12 Minimum EBITDA..........................................89
8.13 Minimum Adjusted Net Worth..............................89
8.14 Maximum Senior Debt Ratio...............................90
8.15 Maximum Total Debt Ratio................................90
8.16 Maximum Capital Expenditures............................90
8.17 Restricted Payments.....................................91
8.18 ERISA...................................................92
8.19 Limitations on Sale and Leaseback Transactions..........92
8.20 Limitation on Restriction of Subsidiary
Dividends and Distributions.............................92
8.21 Inconsistent Agreements.................................93
8.22 Change in Business......................................93
8.23 Amendments to Certain Documents.........................93
8.24 Fiscal Year.............................................93
8.25 Limitation on Issuance of Guaranty Obligations..........93
ARTICLE IX
EVENTS OF DEFAULT
9.1 Event of Default........................................94
(a) Non-Payment........................................94
(b) Representation or Warranty.........................94
(c) Specific Defaults..................................94
(d) Other Defaults.....................................94
(e) Cross-Default......................................95
(f) Insolvency; Voluntary Proceedings..................95
(g) Involuntary Proceedings............................95
(h) ERISA..............................................96
(i) Monetary Judgments.................................96
(j) Non-Monetary Judgments.............................96
(k) Change of Control..................................96
(1) Guarantor Defaults.................................96
(m) Collateral Documents, etc..........................96
(n) Merger.............................................97
9.2 Remedies................................................97
9.3 Rights Not Exclusive....................................97
ARTICLE X
THE AGENTS
10.1 Appointment and Authorization...........................97
10.2 Delegation of Duties....................................98
10.3 Liability of Administrative Agent.......................98
10.4 Reliance by Administrative Agent........................99
10.5 Notice of Default.......................................99
10.6 Credit Decision.........................................99
10.7 Indemnification of Agents...............................100
10.8 Administrative Agent in Individual Capacity.............100
10.9 Successor Administrative Agent..........................101
10.10 Withholding Tax........................................101
10.11 Collateral Matters.....................................103
ARTICLE XI
MISCELLANEOUS
11.1 Amendments and Waivers..................................105
11.2 Notices.................................................106
11.3 No Waiver; Cumulative Remedies..........................107
11.4 Costs and Expenses......................................107
11.5 Company Indemnification.................................108
11.6 Payments Set Aside......................................108
11.7 Successors and Assigns..................................109
11.8 Assignments, Participations, etc........................109
11.9 Confidentiality.........................................111
11.10 Set-off................................................111
11.11 Automatic Debits of Fees...............................112
11.12 Notification of Addresses, Lending Offices, Etc........112
11.13 Counterparts...........................................112
11.14 Severability...........................................112
11.15 No Third Parties Benefited.............................112
11.16 Governing Law and Jurisdiction.........................112
11.17 Waiver of Jury Trial...................................113
11.18 Entire Agreement.......................................113
SCHEDULES
PRICING SCHEDULE
SCHEDULE 1.1 COMMITMENTS, TOTAL PERCENTAGES, REVOLVING
PERCENTAGES, TERM A PERCENTAGES, TERM B
PERCENTAGES
SCHEDULE 2.8 ASSETS HELD FOR SALE
SCHEDULE 3.11 PRIOR LETTERS OF CREDIT
SCHEDULE 5.1 DEBT TO BE REPAID
SCHEDULE 5.1(J) REAL PROPERTY TO BE MORTGAGED
SCHEDULE 6.5 LITIGATION
SCHEDULE 6.11 PERMITTED LIABILITIES
SCHEDULE 6.14 MATERIAL INTELLECTUAL PROPERTY
SCHEDULE 6.15(A) SUBSIDIARIES OF THE COMPANY
SCHEDULE 6.15(B) EQUITY INVESTMENTS OF THE COMPANY
SCHEDULE 6.16 INSURANCE MATTERS
SCHEDULE 6.19 REAL PROPERTY
SCHEDULE 6.22 ENVIRONMENTAL MATTERS
SCHEDULE 8.1 LIENS
SCHEDULE 8.4 PERMITTED INVESTMENTS
SCHEDULE 8.5(D) EXISTING INDEBTEDNESS
SCHEDULE 8.8 CONTINGENT OBLIGATIONS
SCHEDULE 11.2 LENDING OFFICES; ADDRESSES FOR NOTICES
EXHIBITS
EXHIBIT A FORM OF NOTICE OF BORROWING
EXHIBIT B FORM OF NOTICE OF CONVERSION/CONTINUATION
EXHIBIT C FORM OF COMPLIANCE CERTIFICATE
EXHIBIT D FORM OF PROMISSORY NOTE
EXHIBIT E-1 FORM OF SECURITY AGREEMENT (COMPANY AND PARENT)
EXHIBIT E-2 FORM OF SUBSIDIARY SECURITY AGREEMENT
EXHIBIT F-1 FORM OF PARENT GUARANTY
EXHIBIT F-2 FORM O SUBSIDIARY GUARANTY
EXHIBIT G-1 FORM OF PARENT PLEDGE AGREEMENT
EXHIBIT G-2 FORM OF COMPANY PLEDGE AGREEMENT
EXHIBIT G-3 FORM OF SUBSIDIARY PLEDGE AGREEMENT
EXHIBIT H-1 FORM OF COMPANY SOLVENCY CERTIFICATE
EXHIBIT H-2 FORM OF PARENT SOLVENCY CERTIFICATE
EXHIBIT I-1 FORM OF OPINION OF SPECIAL COUNSEL TO THE
COMPANY, PARENT AND XXXX MAC
EXHIBIT I-2 FORM OF OPINION OF XXXXXXX X. XXXXXXX, GENERAL
COUNSEL TO THE COMPANY, PARENT AND XXXX MAC
EXHIBIT J-1 FORM OF OPINION OF CALIFORNIA COUNSEL TO THE
COMPANY
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EXHIBIT J-2 FORM OF OPINION OF MARYLAND COUNSEL TO PARENT
EXHIBIT J-3 FORM OF OPINION OF WASHINGTON COUNSEL TO THE
ADMINISTRATIVE AGENT
EXHIBIT K FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT L FORM OF LENDER CERTIFICATE
EXHIBIT M FORM OF BORROWING BASE CERTIFICATE
EXHIBIT N FORM OF BAILEE'S CONSENT
EXHIBIT O FORM OF LANDLORD'S CONSENT
EXHIBIT P FORM OF WAREHOUSEMAN'S CONSENT
EXHIBIT Q INTERCREDITOR AGREEMENT
EXHIBIT R FORM OF INTELLECTUAL PROPERTY LICENSE
EXHIBIT S FORM OF ENVIRONMENTAL INDEMNITY
ii
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of April 18, 1997,
among DEL MONTE CORPORATION, the several financial institutions
from time to time party to this Agreement, BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as administrative agent
for the Lenders, BANKERS TRUST COMPANY, as documentation agent
for the Lenders, and THE FIRST NATIONAL BANK OF BOSTON, CITICORP
USA, INC., GENERAL ELECTRIC CAPITAL CORPORATION and THE LONG-TERM
CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY, as co-agents for
the Lenders.
WHEREAS, the Lenders have agreed to make available to the
Company term loans and a revolving credit facility with a letter
of credit subfacility upon the terms and conditions set forth in
this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms have the
following meanings:
Account Debtor means any Person who is obligated to
the Company or any Domestic Subsidiary under, with respect
to, or on account of an Account Receivable.
Account Receivable means, with respect to any Person,
any right of such person to payment for goods sold or
leased or for services rendered, whether or not evidenced
by an instrument or chattel paper and whether or not yet
earned by performance.
Acquired Indebtedness means mortgage Indebtedness or
Indebtedness with respect to capital leases of a Person
existing at the time such Person became a Subsidiary or
assumed by the Company or a Subsidiary in an Acquisition
permitted hereunder (and not created or incurred in
connection with or in anticipation of such Acquisition);
provided that such Indebtedness is purchase money
Indebtedness or Indebtedness with respect to a capital
lease, as the case may be, and was incurred by such Person
to finance the acquisition of property or, in either case,
such Indebtedness was incurred to refinance such
Indebtedness, and the principal amount of such Indebtedness
does not exceed the purchase price of such property.
Acquisition means any transaction or series of related
transactions for the purpose of, or resulting directly or
indirectly in, (a) the acquisition of all or substantially
all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of
50% of the capital stock, partnership interests, membership
interests or equity
of any Person, or otherwise causing any Person to become a
Subsidiary or (c) a merger or consolidation or any other
combination with another Person (other than a Person that
is a Subsidiary) provided that the Company or a Subsidiary
is the surviving entity.
Acquisition Prospect means each Person whose stock or
assets is intended to be acquired in an Acquisition
permitted under subsection 8.4(i) including, in each case,
the assets and the liabilities thereof.
Administrative Agent means BofA in its capacity as
administrative agent for the Lenders hereunder, and any
successor administrative agent arising under Section 10.9.
Affiliate means, as to any Person, any other Person
which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such
Person. A Person shall be deemed to control another Person
if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of
the management and policies of such other Person, whether
through the ownership of voting securities or membership
interests, by contract, or otherwise. Without limiting the
foregoing, any Person which is an officer, director or
shareholder of the Company, or a member of the immediate
family of any such officer, director or shareholder, shall
be deemed to be an Affiliate of the Company.
Agent-Related Persons means BofA and any successor
administrative agent arising under Section 10.9, BofA and
any successor Issuing Lender, BofA and any successor
Swingline Lender, together with their respective Affiliates
(including the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and
Affiliates.
Agent's Payment Office means the address for payments
set forth on Schedule 11.2 in relation to the
Administrative Agent, or such other address as the
Administrative Agent may from time to time specify.
Agents means the Administrative Agent, the
Documentation Agent and the Co- Agents.
Agreement means this Credit Agreement.
Agreement Currency - see subsection 3.10(f).
Applicable Base Rate Margin - see the Pricing Schedule.
Applicable Offshore Rate Margin - see the Pricing Schedule.
Arranger means BancAmerica Securities, Inc., a
Delaware corporation.
Assets Held For Sale means assets of the Company and
its Subsidiaries listed on Schedule 2.8.
2
Assignee - see subsection 11.8(a).
Assignment and Acceptance - see subsection 11.8(a).
Attorney Costs means and includes all reasonable fees
and disbursements of any law firm or other external counsel
and, without duplication of effort, the allocated cost of
internal legal services and all disbursements of internal
counsel.
Bailee's Consent means a document substantially in the
form of Exhibit N, with appropriate insertions, or such
other form as shall be acceptable to the Administrative
Agent or Required Revolving Lenders.
Bankruptcy Code means the Federal Bankruptcy Reform Act
of 1978 (11 U.S.C. ss.101, et seq.).
Base Rate means, for any day, the higher of: (a) 0.50%
per annum above the latest Federal Funds Rate; and (b) the rate
of interest in effect for such day as publicly announced from
time to time by BofA in San Francisco, California as its
"reference rate." (The "reference rate" is a rate set by BofA
based upon various factors including BofA's costs and desired
return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be
priced at, above or below such announced rate.) Any change in the
reference rate announced by BofA shall take effect at the opening
of business on the day specified in the public announcement of
such change.
Base Rate Loan means a Loan that bears interest based
on the Base Rate.
BofA means Bank of America National Trust and Savings
Association, a national banking association.
Borrowing means a borrowing hereunder consisting of
(a) Revolving Loans, Term A Loans or Term B Loans of the
same Type made to the Company on the same day by the
Lenders and, in the case of Offshore Rate Loans, having the
same Interest Period, or (b) a Swingline Loan made to the
Company by the Swingline Lender, in each case pursuant to
Article II..
Borrowing Base means an amount equal to the total of
(a) 85% of the unpaid amount (net of such reserves and
allowances as the Administrative Agent deems necessary in
its sole reasonable discretion) of all Eligible Accounts
Receivable plus (b) 70% of the value of all Eligible
Inventory consisting of finished goods (whether labeled or
unlabeled) or bulk tomato paste, valued at the lower of
cost or market (net of such reserves and allowances as the
Administrative Agent deems necessary in its sole reasonable
discretion) plus (c) 20% of the value of all other Eligible
Inventory, valued at the lower of cost or market (net of
such reserves and allowances as the Administrative Agent
deems necessary in its sole reasonable discretion) plus (d)
an amount equal to (x) the aggregate cash purchase price
paid by the Company and its Subsidiaries (including related
fees and expenses and amounts paid to refinance
Indebtedness in connection
3
therewith but excluding the amount of cash purchase price
funded with the proceeds of capital contributions to, or
new equity sold by, the Company) in Acquisitions permitted
under subsection 8.4(i) minus (y) an amount equal to the
average calendar month end amount of the value of accounts
receivable and inventory of the business acquired in such
Acquisition (to the extent the same would have been
eligible for inclusion in the Borrowing Base assuming such
Acquisition had occurred a year earlier) for the year
preceding such Acquisition, as it shall be reasonably
determined by a Responsible Officer, in each case
multiplied by the applicable advance rate, less (e) the net
aggregate payables owing to growers or other suppliers of
crops or produce at such time, to the extent that such
payables are subject to statutory liens, trusts or priority
claims (provided, that if the Company is holding any
Inventory at premises leased by the Company or with a
bailee or warehouseman and with respect to which the
Company shall not have obtained a Landlord's Consent,
Bailee's Consent or Warehouseman's Consent, as applicable,
the Company may request that a reserve equal to all rent
payable by the Company with respect to such property for
one year from the date of determination of the reserve (in
the case of leased premises) or such other reserve in
respect of storage, transportation and other charges as
shall be acceptable to the Administrative Agent or Required
Revolving Lenders (in the case of Inventory with a bailee
or warehouseman) be established, in which case such reserve
shall be, if any Inventory located at such premises is to
be included in the Borrowing Base, deducted from the
Borrowing Base and such Inventory shall not, solely by
virtue of clause (3) or clause (4) of the definition of
"Eligible Inventory," be deemed ineligible).
Borrowing Base Certificate means a certificate
substantially in the form of Exhibit M.
Borrowing Date means any date on which a Borrowing
occurs under Section 2.3.
BTCo. means Bankers Trust Company, a New York
banking corporation.
Business Day means any day other than a Saturday,
Sunday or other day on which commercial banks in New York
City or San Francisco are authorized or required by law to
close and, if the applicable Business Day relates to any
Offshore Rate Loan, means such a day on which dealings are
carried on in the applicable offshore Dollar interbank
market.
Capital Adequacy Regulation means any guideline,
request or directive of any central bank or other
Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each
case regarding capital adequacy of any bank or of any
Person controlling a bank.
Capital Expenditures means all expenditures which, in
accordance with GAAP, would be required to be capitalized
and shown on the consolidated balance sheet of the Company,
but excluding expenditures made in connection with the
replacement, substitution or restoration of assets to the
extent financed (i) from insurance proceeds (or other
similar recoveries) paid on account of the loss of or
damage to the assets being
4
replaced or restored or (ii) with awards of compensation
arising from the taking by eminent domain or condemnation
of the assets being replaced.
Cash Collateralize means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the
Administrative Agent, the Issuing Lender and the Revolving
Lenders, as additional collateral for the L/C Obligations,
cash or deposit account balances pursuant to documentation
in form and substance satisfactory to the Administrative
Agent and the Issuing Lender (which documents are hereby
consented to by the Lenders). Derivatives of such term
shall have corresponding meanings. The Company hereby
grants the Administrative Agent, for the benefit of the
Administrative Agent, the Issuing Lender and the Revolving
Lenders, a security interest in all such cash and deposit
account balances. Cash collateral shall be maintained in
blocked, non-interest bearing deposit accounts at BofA.
Cash Equivalent Investments shall mean (i) securities
issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof)
having maturities of not more than three years from the
date of acquisition, (ii) marketable direct obligations
issued by any State of the United States of America or any
local government or other political subdivision thereof
rated (at the time of acquisition of such security) at
least AA by Standard & Poor's Ratings Service, a division
of The XxXxxx-Xxxx Companies, Inc. ("S&P") or the
equivalent thereof by Xxxxx'x Investors Service, Inc.
("Moody's") having maturities of not more than one year
from the date of acquisition, (iii) time deposits
(including eurodollar time deposits), certificates of
deposit (including eurodollar certificates of deposit) and
bankers' acceptances of (x) any Lender or any Affiliate of
any Lender, (y) any commercial bank of recognized standing
either organized under the laws of the United States (or
any State or territory thereof) or another country (or a
political subdivision thereof) which is a member of the
Organization for Economic Cooperation and Development and
acting through a branch or agency located in the United
States, in either case having capital and surplus in excess
of $250,000,000 or (z) any bank whose short-term commercial
paper rating (at the time of acquisition of such security)
by S&P is at least A-1 or the equivalent thereof (any such
bank, an "Approved Bank"), in each case with maturities of
not more than six months from the date of acquisition, (iv)
commercial paper and variable or fixed rate notes issued by
any Lender or Approved Bank or by the parent company of any
Lender or Approved Bank and commercial paper and variable
rate notes issued by, or guaranteed by, any industrial or
financial company with a short-term commercial paper rating
(at the time of acquisition of such security) of at least
A-1 or the equivalent thereof by S&P or at least P-1 or the
equivalent thereof by Xxxxx'x, or guaranteed by any
industrial company with a long-term unsecured debt rating
(at the time of acquisition of such security) of at least
AA or the equivalent thereof by S&P or at least Aa or the
equivalent thereof by Xxxxx'x and in each case maturing
within one year after the date of acquisition and (v)
repurchase agreements with any Lender or any primary dealer
maturing within one year from the date of acquisition that
are fully collateralized by investment instruments that
would otherwise be Cash Equivalent Investments; provided
5
that the terms of such repurchase agreements comply with
the guidelines set forth in the Federal Financial
Institutions Examination Council Supervisory Policy - -
Repurchase Agreements of Depository Institutions With
Securities Dealers and Others, as adopted by
the Comptroller of the Currency on October 31, 1985.
CERCLA means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
CERCLIS means the Comprehensive Environmental Response Compensation
Liability Information System List.
Change of Control means (i) the failure of the holders
of capital stock of Parent immediately after the Merger
(collectively with (A) in the case of TPG Partners, any
other investment partnership, limited liability company or
other entity established for investment purposes and
controlled by the principals of TPG Partners, (B) in the
case of any other shareholder of Parent that is a
corporation, any other entity that owns, directly or
indirectly, at least 51% of the equity securities of such
shareholder ("majority ownership") or that is under common
majority ownership with such shareholder, (C) in the case
of any other shareholder of Parent that is an investment
partnership, limited liability company or other entity
established for investment purposes, the partners, members
or other owners thereof or another investment partnership,
limited liability company or other entity established for
investment purposes and controlled by such partners,
members or other owners, or an employee co-investment
partnership and (D) in the case of any other shareholder of
Parent that is an individual, any successor by death or
divorce) to own not less than 51% of the issued and
outstanding capital stock of the Parent free and clear of
all Liens (other than Permitted Liens of the type described
in subsection 8.1(b), (c) or (g), (ii) the failure of the
Parent to own 100% of the issued and outstanding capital
stock of the Company free and clear of all Liens (other
than Permitted Liens of the type described in subsection
8.1(b), (c) or (g) or (iii) while any Subordinated Notes or
Exchange Notes are outstanding, any "Change of Control" as
defined in the Subordinated Indenture or, while any
Qualified Notes are outstanding, any "Change of Control" as
defined in any Qualified Indenture or any other similar
event, regardless of how designated, if the occurrence of
such event would require the Company to redeem or
repurchase any Qualified Notes prior to their expressed
maturity.
Closing Date means the date on which all conditions
precedent set forth in Sections 5.1 and 5.2 are satisfied
or waived by all Lenders in their sole discretion (or, in
the case of subsection 5.1(f), waived by the Person
entitled to receive the applicable payment).
Co-Agents means The First National Bank of Boston,
Citicorp USA, Inc., General Electric Capital Corporation
and The Long-Term Credit Bank of Japan, Ltd., Los Angeles
Agency in their capacities as co-agents for the Lenders.
Code means the Internal Revenue Code of 1986.
6
Collateral means any property of Parent, the Company or any
Subsidiary upon which a security interest in favor of the
Administrative Agent for the benefit of the Lender Parties
is purported to be granted pursuant to any Collateral
Document.
Collateral Document means the Security Agreements,
each Copyright Security Agreement, the Intellectual
Property License, each Trademark Security Agreement, each
Patent Security Agreement, each Pledge Agreement, each
Mortgage and any other document pursuant to which
collateral securing the liabilities of the Company, Parent
or any Subsidiary under any Loan Document is granted or
pledged to the Administrative
Agent for the benefit of itself and the Lenders.
Commercial Letter of Credit means any Letter of Credit
which is drawable upon presentation of a sight draft and
other documents evidencing the sale or shipment of goods
purchased by the Company in the ordinary course of
business.
Commitment means, as to each Lender, such Lender's
Revolving Commitment, Term A Commitment or Term B
Commitment, as applicable.
Commitment Fee Rate - see the Pricing Schedule.
Common Stock means the common stock, par value $1.00
per share, of the Company.
Company means Del Monte Corporation, a New York
corporation and a Wholly-Owned Subsidiary of Parent.
Company Pledge Agreement - see subsection 5.1(i).
Compliance Certificate means a certificate
substantially in the form of Exhibit C.
Computation Period means, except as otherwise
expressly provided herein, any period of four consecutive
fiscal quarters and in any case ending on the last day of a
fiscal quarter.
Consolidated Net Income means, with respect to Parent
and its Subsidiaries for any period, the net income (or
loss) of Parent and its Subsidiaries on a consolidated
basis for such period.
Contingent Obligation means, as to any Person, any
direct or indirect liability of such Person, whether or not
contingent, with or without recourse: (a) with respect to
any Indebtedness, lease, dividend, letter of credit or
other obligation (the "primary obligation") of another
Person (the "primary obligor"), including any obligation of
such Person (i) to purchase, repurchase or otherwise
acquire such primary obligation or any security therefor,
(ii) to advance or provide funds for the payment or
discharge of any primary obligation, or to maintain working
capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any
balance sheet item, level of
7
income or financial condition of the primary obligor, (iii)
to purchase property, securities or services primarily for
the purpose of assuring the owner of any primary obligation
of the ability of the primary obligor to make payment of
such primary obligation, or (iv) otherwise to assure or
hold harmless the holder of any primary obligation against
loss in respect thereof (each, a "Guaranty Obligation");
(b) with respect to any Surety Instrument (other than any
Letter of Credit) issued for the account of such Person or
as to which such Person is otherwise liable for
reimbursement of drawings or payments; (c) to purchase any
materials, supplies or other property from, or to obtain
the services of, another Person if the relevant contract or
other related document or obligation requires that payment
for such materials, supplies or other property, or for such
services, shall be made regardless of whether delivery of
such materials, supplies or other property is ever made or
tendered, or such services are ever performed or tendered;
or (d) in respect of any Swap Contract. The amount of any
Contingent Obligation shall, (1) in the case of Guaranty
Obligations, be deemed equal to the stated or determinable
amount of the primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated
liability in respect thereof, (2) in the case of Swap
Contracts, be equal to the Swap Termination Value and (3)
in the case of other Contingent Obligations, be equal to
the maximum reasonably anticipated liability in respect
thereof.
Contractual Obligation means, as to any Person, any
provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed
of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its
property is bound.
Conversion/Continuation Date means any date on which,
under Section 2.4, the Company (a) converts Loans of one
Type to the other Type or (b) continues as Offshore Rate
Loans, but with a new Interest Period, Offshore Rate Loans
having Interest Periods expiring on such date.
Copyright Security Agreement means a copyright
security agreement in the form attached to a Security
Agreement.
Credit Extension means (a) the making of any Loan
hereunder and (b) the Issuance of any Letter of Credit
hereunder.
Debt to be Repaid means all Indebtedness listed on
Schedule 5.1.
Designated Proceeds - see subsection 2.8(a).
DMFC Recapitalization means, collectively, the Merger,
the repayment of the Debt to be Repaid, the issuance of the
Subordinated Notes, the issuance of capital stock by TPG
Acquisition to certain investors (including TPG Partners),
and the dividend by the Company to Parent permitted by
subsection 8.17(f).
8
DMFC Recapitalization Documents means the Merger Agreement, the
Subordinated Indenture, the Subordinated Note Purchase
Agreement and the subscription agreement pursuant to which
certain investors agree to purchase capital stock of
Parent.
Documentation Agent means BTCo., in its capacity as
documentation agent for the Lenders.
Dollar Amount means, in relation to any Indebtedness
(i) denominated in Dollars, the amount of such
Indebtedness, and (ii) denominated in a currency other than
Dollars, the Dollar Equivalent of the amount of such
Indebtedness on the last day of the immediately preceding
calendar month.
Dollar Equivalent means, in relation to an amount
denominated in a currency other than Dollars, the amount of
Dollars which could be purchased with such amount at the
prevailing foreign exchange spot rate.
Dollars and $ mean lawful money of the United States.
Domestic Subsidiary means each Subsidiary other than a
Foreign Subsidiary.
EBITDA means, for any Computation Period, the sum of
(a) Consolidated Net Income of Parent for such period
excluding, to the extent reflected in determining such
Consolidated Net Income, extraordinary gains and losses for
such period
plus,
(b) to the extent deducted in determining Consolidated
Net Income and without duplication, Interest Expense,
income tax expense, depreciation and amortization
(including amortization of goodwill and other intangible
assets) for such period, non-cash charges and losses from
sales of assets other than Inventory sold in the ordinary
course of business,
minus
(c) to the extent reflected in determining
Consolidated Net Income and without duplication, non-cash
credits and gains from sales of assets other than Inventory
sold in the ordinary course of business,
plus
(d) to the extent deducted in determining Consolidated
Net Income and without duplication, management incentive
payments in connection with the DMFC Recapitalization and
other fees and expenses in connection with the DMFC
Recapitalization.
9
Effective Amount means, (a) with respect to any Revolving
Loans, Swingline Loans and Term Loans on any date, the
aggregate outstanding principal amount thereof after giving
effect to any Borrowings and prepayments or repayments of
Revolving Loans, Swingline Loans and Term Loans occurring
on such date, and (b) with respect to any outstanding L/C
Obligations on any date (i) the amount of such L/C
Obligations on such date after giving effect to any
Issuances of Letters of Credit occurring on such date, (ii)
the amount of any undrawn Commercial Letters of Credit
which have expired less than 15 days prior to such date and
(iii) any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any
Letter of Credit or any reduction in the maximum amount
available for drawing under Letters of Credit taking effect
on such date.
Eligible Account Receivable means an Account
Receivable owing to the Company or any Domestic Subsidiary
which meets the following requirements:
(1) it arises from the sale of goods or the rendering
of services by the Company or such Domestic Subsidiary; and
if it arises from the sale of goods, (i) such goods comply
with such Account Debtor's specifications (if any) and have
been shipped to such Account Debtor (other than "xxxx and
hold" Accounts Receivable that are not ineligible under
clause (6)) and (ii) the Company has possession of, or if
requested by the Administrative Agent has delivered to the
Administrative Agent, shipping receipts evidencing such
shipment;
(2) it (a) is subject to a perfected Lien in favor of
the Administrative Agent and (b) is not subject to any
other assignment, claim or Lien (other than Permitted Liens
of the type described in subsections 8.1(c) and (g) and
statutory nonconsensual Liens in favor of growers);
(3) it is a valid, legally enforceable and
unconditional obligation of the Account Debtor with respect
thereto, and is not subject to any counterclaim, credit,
allowance, discount, rebate or adjustment by the Account
Debtor with respect thereto, or to any claim by such
Account Debtor denying liability thereunder in whole or in
part, and such Account Debtor has not refused to accept any
of the goods which are the subject of such Account
Receivable or offered or attempted to return any of such
goods;
(4) there is no Insolvency Proceeding by or against the
Account Debtor with respect thereto;
(5) the Account Debtor with respect thereto is a
resident or citizen of, and is located within, the United
States or a province of Canada in which the Personal
Property Security Act is in effect, unless (x) the sale of
goods giving rise to such Account Receivable is on letter
of credit, banker's acceptance or other credit support
terms reasonably satisfactory to the Administrative Agent
or (y) such Account Receivable is payable by Plaza
Provision, a Puerto Rico corporation, or such other Account
Debtors in Puerto Rico, or any other territory or
possession of the U.S. which has adopted Article 9
10
of the Uniform Commercial Code or as may be approved by the
Administrative Agent or Required Lenders;
(6) it is not an Account Receivable arising from a
"sale on approval," "sale or return," "consignment" or
"xxxx and hold" or subject to any other repurchase or
return agreement (provided, that "xxxx and hold" Accounts
Receivable shall not be ineligible solely by virtue of this
clause (6) if subject to a written agreement acceptable to
the Administrative Agent or Required Revolving Lenders to
the effect that the related Account Debtor's payment
obligation is irrevocable);
(7) it is not an Account Receivable with respect to
which possession and/or control of the goods sold giving
rise thereto is held, maintained or retained by the Company
or any Subsidiary (or by any agent or custodian of the
Company or any Subsidiary) for the account of or subject to
further and/or future direction from the Account Debtor
with respect thereto;
(8) it arises in the ordinary course of business of the
Company or such Domestic Subsidiary;
(9) if the Account Debtor is the United States or any
department, agency or instrumentality thereof, the Company
has assigned its right to payment of such Account
Receivable to the Administrative Agent pursuant to the
Assignment of Claims Act of 1940, provided, however, that
any Accounts Receivable arising out of business conducted
by the Company consistent with business conducted prior to
the Closing Date shall not be subject to this clause (9);
(10) if the Company or such Domestic Subsidiary
maintains a credit limit for an Account Debtor, the
aggregate dollar amount of Accounts Receivable due from
such Account Debtor, including such Account Receivable,
does not exceed such credit limit (provided, that the
Company may grant exceptions to such credit limits
consistent with past practice and in the ordinary course of
business);
(11) if the Account Receivable is evidenced by chattel
paper or an instrument, the originals of such chattel paper
or instrument shall have been endorsed and/or assigned and
delivered to the Administrative Agent in a manner
satisfactory to the Administrative Agent;
(12) such Account Receivable is not more than (a) 60
days past the due date thereof or (b) 120 days past the
original invoice date thereof, in each case according to
the original terms of sale;
(13) it is not an Account Receivable with respect to
an Account Debtor that is located in any jurisdiction which
has adopted a statute or other requirement with respect to
which any Person that obtains business from within such
jurisdiction must file a business activity report or make
any other required filings in a timely manner in order to
enforce its claims in such jurisdiction's courts unless
such business activity report has
11
been duly and timely filed or the Company is exempt from
filing such report and has provided the Administrative
Agent with satisfactory evidence of such exemption; and
(14) it is not owed by an Account Debtor if (x) 30% or
more of the aggregate Dollar amount of outstanding Accounts
Receivable owed at such time by such Account Debtor is
classified as ineligible under clause (12) of this
definition or (y) the aggregate Dollar amount of all
Accounts Receivable owed by the Account Debtor thereon
exceeds 20% of the aggregate amount of all Accounts
Receivable at such time (but only, in the case of this
clause (y), to the extent of such excess).
An Account Receivable which is at any time an Eligible
Account Receivable, but which subsequently fails to meet
any of the foregoing requirements, shall forthwith cease to
be an Eligible Account Receivable. Further, with respect to
any Account Receivable, if the Administrative Agent or the
Required Revolving Lenders at any time hereafter determine
in their reasonable discretion that the prospect of payment
or performance by the Account Debtor with respect thereto
is materially impaired for any reason whatsoever, such
Account Receivable shall cease to be an Eligible Account
Receivable after notice of such determination is given to
the Company.
Eligible Assignee means (i) an "accredited investor"
as such term is defined in Rule 501 (a) of Regulation D
under the Securities Act (other than the Company or an
Affiliate of the Company), (ii) a Lender, (iii) an
Affiliate of a Lender (provided such Affiliate is an
"accredited investor") or (iv) any fund that invests in
bank loans that is managed by the same investment adviser
as another Lender that is such a fund (provided such
assignee fund is an "accredited investor").
Eligible Inventory means Inventory which meets the
following requirements:
(1) it (a) is subject to a perfected Lien in favor of
the Administrative Agent and (b) is not subject to any
other assignment, claim or Lien (other than Permitted Liens
of the type described in subsections 8.1(c) and (g) and
statutory nonconsensual Liens in favor of growers)
(provided, that if the Company has not delivered any
Bailee's Consent, Warehouseman's Consent or Landlord's
Consent but the Administrative Agent has established
adequate reserves in respect thereof under the definition
of "Borrowing Base" any claim or Lien of the related
bailee, warehouseman or landlord, if it is a Permitted
Lien, shall not cause the Inventory kept at such location
to be ineligible solely by virtue of this clause (1));
(2) it is (except as the Required Revolving Lenders may
otherwise consent in writing) salable;
(3) except as provided in clause (4) below or as the
Required Revolving Lenders may otherwise consent, it is in
the possession and control of the Company or the relevant
Domestic Subsidiary and it is stored and held in facilities
owned by the Company or the relevant Domestic Subsidiary
or, if such facilities are not so owned, leased to the
Company or the relevant Domestic Subsidiary and with
respect to which the
12
Administrative Agent has received a Landlord's Consent
(unless a reserve with respect thereto has been established
by the Administrative Agent in accordance with the proviso
in the definition of "Borrowing Base") (provided that no
Landlord's Consents shall be required for the first 60 days
following the Closing Date);
(4) if it is in the possession or control of a bailee,
warehouseman or processor, the Administrative Agent is in
possession of a Bailee's Consent, Warehouseman's Consent or
such other agreements, instruments and documents as the
Administrative Agent may reasonably require in good faith,
including warehouse receipts in the Administrative Agent's
name covering such Inventory (unless a reserve with respect
thereto has been established by the Administrative Agent in
accordance with the proviso in the definition of "Borrowing
Base") (provided that no Bailee's Consents, Warehouseman's
Consents or other such agreements, instruments or documents
shall be required for the first 60 days following the
Closing Date);
(5) it is not Inventory produced in violation of the
Fair Labor Standards Act and subject to the "hot goods"
provisions contained in Title 29 U.S.C. ss.215;
(6) it is not subject to any agreement which would
restrict the Administrative Agent's ability to sell or
otherwise dispose of such Inventory (provided, that if the
Company has not delivered any Bailee's Consent,
Warehouseman's Consent or Landlord's Consent and has
established adequate reserves in respect thereof under the
definition of "Borrowing Base", any agreement entered into
in the ordinary course of business with such bailee,
warehouseman or landlord shall not render the Inventory
kept at such location to be ineligible solely by virtue of
this clause (6));
(7) it is located in the United States or in any
territory or possession of the United States that has
adopted Article 9 of the Uniform Commercial Code or as may
be approved by the Administrative Agent or Required
Revolving Lenders;
(8) it is not "in transit" to the Company or the
relevant Domestic Subsidiary or held by the Company or the
relevant Domestic Subsidiary on consignment; and
(9) the Administrative Agent (or Required Revolving
Lenders) shall not have determined (which determination
shall be effective upon notice to the Company) in its (or
their) discretion that it is unacceptable due to age, type,
category, quality, quantity and/or any other reason
whatsoever.
Inventory which is at any time Eligible Inventory but
which subsequently fails to meet any of the foregoing
requirements shall forthwith cease to be Eligible
Inventory.
Environmental Claims means all claims, however
asserted, by any Governmental Authority or other Person
alleging potential liability under any Environmental Law or
responsibility for violation of any Environmental Law, or
for release or injury to the environment.
13
Environmental Indemnity means an unsecured
environmental indemnity in the form of Exhibit S in favor of the
Administrative Agent.
Environmental Laws means CERCLA, the Resource
Conservation and Recovery Act and all other federal, state
or local laws, statutes, common law duties, rules,
regulations, ordinances and codes relating to pollution or
protection of public or employee health or the environment,
together with all administrative orders, consent decrees,
licenses, authorizations and permits of any Governmental
Authority implementing them.
ERISA means the Employee Retirement Income Security
Act of 1974.
ERISA Affiliate means any trade or business (whether
or not incorporated) under common control with the Company
within the meaning of Section 414(b) or (c) of the Code
(and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
ERISA Event means: (a) a Reportable Event with respect
to a Pension Plan; (b) a withdrawal by the Company or any
ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001 (a) (2) of ERISA) or a
substantial cessation of operations which is treated as
such a withdrawal; (c) a complete or partial withdrawal by
the Company or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to
terminate, the treatment of a Pension Plan amendment as a
termination under Section 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or
condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon
the Company or any ERISA Affiliate.
Event of Default means any of the events or
circumstances specified in Section 9.1.
Excess Cash Flow means, for any period, the remainder of
(a) EBITDA for such period,
less
(b) the sum, without duplication, of
(i) repayments of principal of Term Loans
pursuant to Section 2.9, regularly scheduled principal
payments arising with respect to any other long-term
Indebtedness of the Company and its Subsidiaries, and
the portion of any
14
regularly scheduled payments with respect to capital
leases allocable to principal, in each case made
during such period,
plus
(ii) voluntary prepayments of the Term Loans
pursuant to Section 2.7 during such period (other than
any such voluntary prepayments to the extent that the
same are applied during such period to the scheduled
unpaid principal installments of the Term Loans in
forward order of maturity pursuant to Section 2.7),
plus
(iii) cash payments made in such period with respect
to Capital Expenditures,
plus
(iv) all federal, state, local and foreign income
taxes paid by the Company and its Subsidiaries during such period,
plus
(v) cash Interest Expense of the Company and its
Subsidiaries during such period and, to the extent not
deducted in determining EBITDA, cash payments (other
than payments of principal) made by the Company in
connection with prepayments and repayments of Term
Loans under clauses (b) (i) and (b) (ii) above,
plus
(vi) cash payments made by the Company and its
Subsidiaries in respect of pension liability, workers'
compensation and other post-employment benefits to the
extent such payments exceed book expenses for such
items reflected in the calculation of EBITDA.
Exchange Act means the Securities Exchange Act of 1934.
Exchange Notes means the 12-1/4% Series B Senior
Subordinated Notes due April 15, 2007 of the Company to be
issued pursuant to the Subordinated Indenture in a
principal amount equal to the then outstanding principal
amount of the Subordinated Notes exchanged, as amended from
time to time in accordance with Section 8.23.
Excluded Taxes - see the definition of "Taxes."
Federal Funds Rate means, for any day, the rate set
forth in the weekly statistical release designated
H.15(519) as or any successor publication, published by the
Federal
15
Reserve Bank of New York (including any such successor,
"H.15(519)") on the preceding Business Day opposite the
caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Administrative Agent
of the rates for the last transaction in overnight Federal
funds arranged prior to 9:00 a.m. (New York City time) on
that day by each of three leading brokers of Federal funds
transactions in New York City selected by the
Administrative Agent.
Fee Letter - see subsection 2.11(a).
Fixed Charge Coverage Ratio means, for the Computation
Period most recently ended on or before such date, the
ratio of (a) EBITDA for such Computation Period to (b) the
sum of (i) Interest Expense for such Computation Period and
(ii) the scheduled installments of principal of the Term
Loans for such Computation Period (excluding therefrom the
last four scheduled installments of principal of Term B
Loans to the extent that such installments are refinanced
with Indebtedness maturing after, and having no mandatory
prepayments or sinking fund payments prior to, March 31,
2005 and giving effect to any reduction of such scheduled
installments by virtue of the application of any
prepayments or repayments made which reduce scheduled
installments pro rata or in inverse order of maturity
pursuant to Section 2.7 or 2.8); provided, however that
with respect to Computation Periods ending prior to March
31, 1998, Interest Expense and scheduled installments of
principal of the Term Loans shall be measured from the
period from April 1, 1997 through the end of any such
Computation Period and annualized as follows (x) with
respect to the Computation Period ending June 30, 1997,
Interest Expense and scheduled installments of principal on
the Term Loans during such Computation Period shall be
multiplied by four, (y) with respect to the Computation
Period ending September 28, 1997, Interest Expense and
scheduled installments of principal on the Term Loans
during such Computation Period shall be multiplied by two
and (z) with respect to the Computation Period ending
December 28, 1997, Interest Expense and scheduled
installments of principal on the Term Loans during such
Computation Period shall be multiplied by four-thirds.
Foreign Subsidiary shall mean each Subsidiary of the
Company organized under the laws of any jurisdiction other
than the United States or any state thereof.
FRB means the Board of Governors of the Federal
Reserve System, and any Governmental Authority succeeding
to any of its principal functions.
Further Taxes means any and all present or future
taxes, levies, assessments, imposts, duties, deductions,
fees, withholdings or similar charges (including net income
taxes and franchise taxes), and all liabilities with
respect thereto, imposed by any jurisdiction on account of
amounts paid or payable pursuant to Section 4.1.
GAAP means generally accepted accounting principles
set forth from time to time in the opinions and
pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and
statements and pronouncements
16
of the Financial Accounting Standards Board (or agencies
with similar functions of comparable stature and authority
within the U.S. accounting profession), which are
applicable to the circumstances as of the date of
determination.
Governmental Authority means any nation or government,
any state or other political subdivision thereof, any
central bank (or similar monetary or regulatory authority)
thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other
entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
Guarantor means Parent and each Subsidiary that from
time to time executes and delivers a counterpart of the
Subsidiary Guaranty.
Guaranty means the Parent Guaranty or the Subsidiary
Guaranty, as applicable.
Guaranty Obligation has the meaning specified in the
definition of Contingent Obligation.
Hazardous Material means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance within
the meaning of any other Environmental Law.
Honor Date - see subsection 3.3(b).
Indebtedness of any Person means, without duplication:
(a) all indebtedness of such Person for borrowed money; (b)
all obligations issued, undertaken or assumed by such
Person as the deferred purchase price of property or
services (other than trade payables entered into and
accrued expenses arising in the ordinary course of business
on ordinary terms); (c) all non-contingent reimbursement or
payment obligations with respect to Surety Instruments; (d)
all obligations of such Person evidenced by notes, bonds,
debentures or similar instruments; (e) all indebtedness of
such Person created or arising under any conditional sale
or other title retention agreement, or incurred as
financing, in either case with respect to property acquired
by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of
default are limited to repossession or sale of such
property); (f) all obligations of such Person with respect
to capital leases; (g) all indebtedness referred to in
clauses (a) through (f) above secured by (or for which the
holder of such Indebtedness has an
17
existing right, contingent or otherwise, to be secured by)
any Lien upon or in property (including Accounts Receivable
and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of
such Indebtedness; and (h) all Guaranty Obligations of such
Person in respect of indebtedness or obligations of others
of the kinds referred to in clauses (a) through (g) above.
Indemnified Liabilities - see Section 11.5.
Indemnified Person - see Section 11.5.
Independent Auditor - see subsection 7.1(a).
Insolvency Proceeding means, with respect to any
Person, (a) any case, action or proceeding with respect to
such Person before any court or other Governmental
Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors or (b) any general
assignment for the benefit of creditors, composition,
marshalling of assets for creditors, or other, similar
arrangement in respect of such Person's creditors generally
or any substantial portion of such creditors; in each case
undertaken under any U.S. Federal, State or foreign law,
including the Bankruptcy Code.
Intellectual Property - see Section 6.14.
Intellectual Property License means the Intellectual
Property License, substantially in the form of Exhibit R,
between the Company and the Administrative Agent dated as
of the Closing Date.
Intercreditor Agreement means the Amended and Restated
Intercreditor Agreement, dated as of December 5, 1989,
among certain Creditors (as therein defined), a copy of
which is attached hereto as Exhibit O.
Interest Expense means for any period the consolidated
interest expense of Parent and its Subsidiaries for such
period (including all imputed interest on capital leases)
excluding amortization or write-off of deferred financing
costs.
Interest Payment Date means (i) as to any Offshore
Rate Loan, the last day of each Interest Period applicable
to such Loan and, in the case of any Offshore Rate Loan
with a six-month Interest Period, the three-month
anniversary of the first day of such Interest Period, and
(ii) as to any Base Rate Loan, the last Business Day of
each fiscal quarter.
Interest Period means, as to any Offshore Rate Loan,
the period commencing on the Borrowing Date of such Loan or
on the Conversion/Continuation Date on which the Loan is
converted into or continued as an Offshore Rate Loan, and
ending one, two, three or six months thereafter, as
selected by the Company in its Notice of Borrowing or
Notice of Conversion/Continuation; provided that:
18
(i) if any Interest Period would otherwise end
on a day that is not a Business Day, such Interest Period
shall be extended to the following Business Day unless
the result of such extension would be to carry such
Interest Period into another calendar month, in which
event such Interest Period shall end on the preceding
Business Day;
(ii) any Interest Period that begins on the
last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period)
shall end on the last Business Day of the calendar
month at the end of such Interest Period;
(iii) no Interest Period applicable to a
Term A Loan or a Term B Loan or any portion of any
thereof shall extend beyond any date upon which is due
any scheduled principal payment in respect of the Term
A Loans or Term B Loans, as applicable, unless the
aggregate principal amount of Term A Loans or Term B
Loans, as applicable, represented by Base Rate Loans,
or by Offshore Rate Loans having Interest Periods that
will expire on or before such date, equals or exceeds
the amount of such principal payment; and
(iv) no Interest Period for any Revolving
Loan shall extend beyond the Revolving Termination
Date.
Inventory means any and all of the goods of the
Company or a Domestic Subsidiary, wheresoever located, that
are held for sale or held as raw materials, work in process
or materials used or consumed in the business of the
Company or the applicable Domestic Subsidiary.
IRS means the Internal Revenue Service, and any
Governmental Authority succeeding to any of its principal
functions under the Code.
Issuance Date - see subsection 3.1(a).
Issue means, with respect to any Letter of Credit, to
issue or amend such Letter of Credit; and the terms
"Issued," "Issuing" and "Issuance" have corresponding
meanings.
Issuing Lender means BofA in its capacity as issuer of
one or more Letters of Credit hereunder, together with any
replacement letter of credit issuer arising under
subsection 10.1(b) or Section 10.9, or any successor
thereto acceptable to the Company, the Administrative Agent
and the predecessor Issuing Lender.
Joint Venture means a corporation, partnership,
limited liability company, joint venture or other similar
legal arrangement (whether created by contract or conducted
through a separate legal entity) which is not a Subsidiary
of the Company or any of its Subsidiaries and which is now
or hereafter formed by the Company or any of its
Subsidiaries with another Person in order to conduct a
common venture or enterprise with such Person.
19
Judgment Currency - see subsection 3.10(f).
Landlord's Consent means a document substantially in
the form of Exhibit O, with appropriate insertions, or such
other form as shall be acceptable to the Administrative
Agent or Required Revolving Lenders.
L/C Advance means each Lender's participation in any
L/C Borrowing in accordance with its Revolving Percentage.
L/C Amendment Application means an application form
for amendment of an outstanding standby or commercial
documentary letter of credit as shall at any time be in use
at the Issuing Lender, as the Issuing Lender shall request.
L/C Application means an application form for
issuances of a standby or commercial documentary letter of
credit as shall at any time be in use at the Issuing
Lender, as the Issuing Lender shall request.
L/C Borrowing means an extension of credit resulting
from a drawing under any Letter of Credit which shall not
have been reimbursed on the date when made nor converted
into a Borrowing of Revolving Loans under subsection
3.3(c).
L/C Commitment means the commitment of the Issuing
Lender to Issue, and the commitments of the Lenders
severally to participate in, Letters of Credit from time to
time Issued or outstanding under Article III, in an
aggregate amount not to exceed on any date the lesser of
$70,000,000 and the amount of the aggregate amount of all
Revolving Commitments; it being understood that the L/C
Commitment is a part of the Revolving Commitments, rather
than a separate, independent commitment.
L/C Fee Rate - see the Pricing Schedule.
L/C Obligations means at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit then
outstanding, plus (b) the amount of all unreimbursed
drawings under all Letters of Credit, including all
outstanding L/C Borrowings.
L/C-Related Documents means the Letters of Credit, the
L/C Applications, the L/C Amendment Applications and any
other document relating to any Letter of Credit, including
any of the Issuing Lender's standard form documents for
letter of credit issuances.
Lenders means the several financial institutions from
time to time party to this Agreement. References to the
"Lenders" shall include BofA in its capacity as the Issuing
Lender and BofA in its capacity as Swingline Lender; for
purposes of clarification only, to the extent that the
Swingline Lender or the Issuing Lender may have any rights
or obligations in addition to those of the other Lenders
due to its status as Swingline Lender or Issuing Lender,
its status as such will be specifically referenced. For
purposes of
20
making any determination with respect to Citicorp USA, Inc.
under Section 4.2 or 4.3, "Lender" shall be deemed to include Citibank.
Lender Party means (i) any Lender or any Agent or (ii)
any Affiliate of any Lender that is party to a Swap
Contract with the Company.
Lending Office means, as to any Lender, the office or
offices of such Lender specified as its "Lending Office" or
"Domestic Lending Office" or "Offshore Lending Office", as
the case may be, on Schedule 11.2, or such other office or
offices as such Lender may from time to time specify to the
Company and the Administrative Agent.
Letters of Credit means any letters of credit (whether
standby letters of credit or commercial documentary letters
of credit) Issued by the Issuing Lender pursuant to Article
III.
Liabilities means (i) all Obligations owing by the
Company, Parent or any Subsidiary (including post-petition
interest) and (ii) all Permitted Swap Obligations (monetary
or otherwise) of the Company under any Swap Contract with a
Lender Party (other than Swap Contracts that, by their
terms, are unsecured); provided, however, that the term
"Liabilities" shall not include any obligations arising
under any Environmental Indemnity.
Lien means any security interest, mortgage, deed of
trust, pledge, hypothecation, assignment, charge or deposit
arrangement, encumbrance, lien (statutory or other) or
preferential arrangement of any kind or nature whatsoever
in respect of any property (including those created by,
arising under or evidenced by any conditional sale or other
title retention agreement, the interest of a lessor under a
capital lease, or any financing lease having substantially
the same economic effect as any of the foregoing, but not
including the interest of a lessor under an operating
lease).
Loan means an extension of credit by a Lender to the
Company under Article II or Article III in the form of a
Revolving Loan, Term Loan, Swingline Loan or L/C Advance.
Each Revolving Loan and each Term Loan may be divided into
tranches which are Base Rate Loans or Offshore Rate Loans
(each a "Type" of Loan).
Loan Documents means this Agreement, any Notes, the
Fee Letter, the L/C-Related Documents, the Guaranties, the
Collateral Documents and all other documents delivered to
the Administrative Agent or any Lender in connection
herewith or therewith.
Mandatory Prepayment Event - see subsection 2.8(a).
Margin Stock means "margin stock" as such term is
defined in Regulation G, T, U or X of the FRB.
Material Adverse Effect means: (a) a material adverse
change in, or a material adverse effect upon, the operations,
business, properties, condition (financial or
21
otherwise) or prospects of the Company and its Subsidiaries
taken as a whole; (b) a material impairment of the ability
of the Company, Parent or any Subsidiary to perform any of
its obligations under any Loan Document; (c) a material
adverse effect upon the legality, validity, binding effect
or enforceability against the Company, Parent or any
Subsidiary of any Loan Document; or (d) a material adverse
effect upon the Lien of any Collateral Document or a
material impairment of the rights, powers and remedies of
the Administrative Agent or any Lender under any Loan
Document.
Material Subsidiary means a Subsidiary of the Company
that meets any of the following criteria:
(i) the assets of such Subsidiary and its Subsidiaries
exceed 3% of the consolidated assets (giving effect to
intercompany eliminations) of the Company and its
Subsidiaries;
(ii) the revenues of such Subsidiary and its
Subsidiaries for any fiscal quarter exceed 3% of the
consolidated revenues (giving effect to intercompany
eliminations) of the Company and its Subsidiaries for such
period; or
(iii) the investments of the Company and its other
Subsidiaries in and advances to such Subsidiary and its
Subsidiaries exceed 3% of the consolidated assets (giving
effect to intercompany eliminations) of the Company and its
Subsidiaries.
Merger means the merger of TPG Acquisition with and
into Parent pursuant to the terms of the Merger Agreement.
Merger Agreement means the Agreement and Plan of
Merger, dated as of February 21, 1997, among TPG Partners,
TPG Acquisition and Parent, as amended and restated as of
April 14, 1997, and as amended from time to time in
accordance with Section 8.23.
Xxxx Mac means Xxxx Mac IHC, Inc., a Delaware
corporation and a Subsidiary.
Mortgage means a mortgage, leasehold mortgage, deed of
trust or similar document granting a Lien on real property
in appropriate form for filing or recording in the
applicable jurisdiction and otherwise reasonably
satisfactory to the Administrative Agent.
Multiemployer Plan means a "multiemployer plan",
within the meaning of Section 4001 (a) (3) of ERISA, with
respect to which the Company or any ERISA Affiliate may
have any liability.
Net Cash Proceeds means:
(a) with respect to the sale, transfer, or other disposition by
the Company or any Subsidiary of any asset (including any
stock of any Subsidiary or any Accounts
22
Receivable pursuant to a Permitted Receivables
Facility), the aggregate cash proceeds (including cash
proceeds received by way of deferred payment of
principal pursuant to a note, installment receivable
or otherwise, but only as and when received) received
by the Company or any Subsidiary pursuant to such
sale, transfer or other disposition, net of (i) the
direct costs relating to such sale, transfer or other
disposition (including sales commissions and legal,
accounting and investment banking fees), (ii) taxes
paid or reasonably estimated by the Company to be
payable as a result thereof (after taking into account
any available tax credits or deductions and any tax
sharing arrangements), (iii) amounts required to be
applied to the repayment of any Indebtedness secured
by a Lien on the asset subject to such sale, transfer
or other disposition (other than the Loans) and (iv)
appropriate amounts to be provided by the Company or
any Subsidiary, as the case may be, as a reserve, in
accordance with GAAP, against any liabilities
associated with such sale, transfer or other
disposition and retained by the Company or any
Subsidiary, as the case may be, after such sale,
transfer or other disposition, including pension and
other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under
any indemnification obligations associated with such
sale, transfer or other disposition; and
(b) with respect to any issuance of equity securities or
Other Debt, the aggregate cash proceeds received by
the Company or any Subsidiary pursuant to such
issuance, net of the direct costs relating to such
issuance (including sales and underwriter's
commissions, private placement fees and legal,
accounting and investment banking fees).
Net Worth means Parent's consolidated stockholders'
equity (without giving effect to any decrease in retained
earnings of Parent caused by a dividend on the TPG
Acquisition Preferred Stock that is paid in kind) plus,
without duplication, the liquidation preference of all
outstanding TPG Acquisition Preferred Stock (without giving
effect to any increase in such TPG Acquisition preferred
Stock caused by a dividend on the TPG Acquisition Preferred
Stock that is paid in kind).
Non-Dollar Letter of Credit - see Section 3.10.
Note means a promissory note executed by the Company
in favor of a Lender pursuant to subsection 2.2(b), in
substantially the form of Exhibit D.
Notice of Borrowing means a notice in substantially
the form of Exhibit A.
Notice of Conversion/Continuation means a notice in
substantially the form of Exhibit B.
Obligations means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan
Document owing by the Company, Parent or any Subsidiary to
any Lender, the Administrative Agent, or any Indemnified
Person, whether
23
direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due,
or now existing or hereafter arising; provided, that
"Obligations" shall not include any obligations under any
Environmental Indemnity.
Offshore Rate means, for any Interest Period, with
respect to Offshore Rate Loans comprising part of the same
Borrowing, the rate of interest per annum (rounded upward,
if necessary, to the next 1/16th of 1%) determined by the
Administrative Agent as follows:
Offshore Rate =________________IBOR________________
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for
any Interest Period the maximum reserve percentage
(expressed as a decimal, rounded upward, if necessary,
to the next 1/100th of 1%) in effect on such day
(whether or not applicable to any Lender) under
regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding
(currently referred to as "Eurocurrency liabilities");
and
"IBOR" means the rate of interest per annum determined
on the basis of the rate for deposits in Dollars for a
period equal to such Interest Period commencing on the
first day of such Interest Period appearing on Page
3750 of the Telerate screen as of 11:00 a.m., London
time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not
appear on Page 3750 of the Telerate Service (or
otherwise on such service), "IBOR" for purposes of
this definition shall be determined by the
Administrative Agent as the rate at which Dollar
deposits in the approximate amount of BofA's Offshore
Rate Loan for such Interest Period would be offered by
BofA's Grand Cayman Branch, Grand Cayman B.W.I. (or
such other office as may be designated for such
purpose by BofA), to major banks in the offshore
dollar interbank market at their request at
approximately 11:00 a.m. (New York City time) two
Business Days prior to the commencement of such
Interest Period.
The Offshore Rate shall be adjusted automatically as
to all Offshore Rate Loans then outstanding as of the
effective date of any change in the Eurodollar Reserve
Percentage.
Offshore Rate Loan means a Loan that bears interest
based on the Offshore Rate.
Organization Documents means, (a) for any domestic
corporation, the certificate or articles of incorporation,
the bylaws, any certificate of determination or instrument
relating to the rights of preferred shareholders of such
corporation, any shareholder rights agreement, and all
applicable resolutions of the board of directors (or any
committee
24
thereof) of such corporation and (b) for any foreign corporation,
the equivalent documents.
Other Debt means debt securities of Parent, the
Company and its Subsidiaries, other than as expressly
permitted by (i) Section 8.5 or, (ii) with respect to
Parent, the Parent Guaranty.
Other Taxes means any present or future stamp, court
or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made
hereunder or from the execution delivery, performance,
enforcement or registration of, or otherwise with respect
to, this Agreement or any other Loan Document.
Overnight Rate - see subsection 3.10(g).
Parent means Del Monte Foods Company, a Maryland corporation.
Parent Guaranty means the guaranty, substantially in
the form of Exhibit F-1, which will be executed by Parent
on the Closing Date.
Parent Pledge Agreement - see subsection 5.1(i).
Participant - see subsection 11.8(c).
Patent Security Agreement means a patent security
agreement in the form attached to a Security Agreement.
PBGC means the Pension Benefit Guaranty Corporation,
or any Governmental Authority succeeding to any of its
principal functions under ERISA.
Pension Plan means a pension plan (as defined in
Section 3(2) of ERISA) subject to Title IV of ERISA with
respect to which the Company or any ERISA Affiliate may
have any liability.
Permitted Liens - see Section 8.1.
Permitted Receivables Facility means any receivables
financing facility arrangement entered into by the Company
providing for the discount, sale or other transfer of its
Accounts Receivable on a nonrecourse basis for a transfer
price at least equivalent to the advance rate on such
Accounts Receivable hereunder and otherwise on terms and
conditions (including repurchase provisions) satisfactory
to the Required Lenders.
Permitted Security Agreements means the Intellectual
Property Security Agreements and Assignments between
the Company and Wafer Limited and the Company and Del Monte
Tropical Fruit Company, North America, each dated December
5, 1989, the Intellectual Property Security Agreement and
Assignment
25
dated as of January 9, 1990 between the Company and
Kikkoman Corporation, the Intellectual Property Security
Agreement and Assignment dated as of May 9, 1990 between
the Company and Del Monte Foods Limited, the Intellectual
Property Security Agreement and Assignment dated as of May
9, 1990 between the Company and Del Monte International,
Inc., and any other security agreements between the Company
and a licensee of Intellectual Property to secure the
damages, if any, of such licensee resulting from the
rejection of the license of such licensee in a bankruptcy,
reorganization or similar proceeding with respect to the
Company; provided that each such Permitted Security
Agreement shall be subject to the Intercreditor Agreement.
Permitted Swap Obligations means all obligations
(contingent or otherwise) of the Company or any Subsidiary
existing or arising under Swap Contracts, provided that
each of the following criteria is satisfied: (a) such
obligations are (or were) entered into by such Person in
the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments
or assets held or reasonably anticipated by such Person, or
changes in the value of securities issued by such Person in
conjunction with a securities repurchase program not
otherwise prohibited hereunder, and not for purposes of
speculation or taking a "market view;" and (b) such Swap
Contracts do not contain (i) any provision ("walk-away"
provision) exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to
the defaulting party or (ii) if the counterparty is not a
Lender Party, any provision creating or permitting the
declaration of an event of default, termination event or
similar event upon the occurrence of an Event of Default
hereunder (other than an Event of Default under subsection
9.1 (a)).
Person means an individual, partnership, corporation,
limited liability company, business trust, joint stock
company, trust, unincorporated association, joint venture
or Governmental Authority.
Plan means an employee benefit plan (as defined in
Section 3(3) of ERISA) with respect to which the Company
may have any liability.
Pledge Agreement means the Parent Pledge Agreement,
the Company Pledge Agreement and each Subsidiary Pledge
Agreement.
Prior Financing Agreements - see Section 5.1.
Public Offering means an offering of equity securities
or Indebtedness registered under the Securities Act of
1933.
Qualified Indenture means a trust indenture entered
into by the Company with an indenture trustee with terms
and provisions no more restrictive to the Company than the
Subordinated Indenture, and with terms no less advantageous
to the Lenders than the terms of the Subordinated
Indenture, as amended from time to time in accordance with
Section 8.23.
26
Qualified Notes means subordinated notes of the Company
which shall not require scheduled payments of principal prior to
April 15, 2007, which shall not require cash interest payments
thereon at a rate in excess of 12-1/4% per annum, and which are
issued pursuant to a Qualified Indenture, as such notes may be
amended from time to time in accordance with Section 8.23.
Qualified Refinancing means a refinancing of the
Subordinated Notes or the Exchange Notes with Qualified
Notes; provided, that the aggregate principal amount of
Qualified Notes issued in connection therewith does not
exceed the aggregate principal amount of the Indebtedness
so refinanced unless the excess is applied as set forth in
subsection 2.8 (a) (vi).
Release means a "release", as such term is defined in
CERCLA.
Replacement Lender - see Section 4.7.
Reportable Event means any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder,
other than any such event for which the 30-day notice
requirement under ERISA has been waived in regulations
issued by the PBGC or administrative pronouncements.
Required Lenders means, at any time, Lenders having an
aggregate Total Percentage of more than 50%.
Required Revolving Lenders means, at any time,
Revolving Lenders having an aggregate Revolving Percentage
of more than 50%.
Required Term A Lenders means, at any time, Term A
Lenders having an aggregate Term A Percentage of more than
50%.
Required Term B Lenders means, at any time, Term B
Lenders having an aggregate Term B Percentage of more than
50%.
Requirement of Law means, as to any Person, any law
(statutory or common), treaty, rule or regulation or
determination of an arbitrator or of a Governmental
Authority, in each case applicable to or binding upon
Person or any of its property or to which such Person of
its property is subject.
Resource Conservation and Recovery Act means the
Resource Conservation and Recovery Act, 42 U.S.C. Section
690, et seq.
Responsible Officer means the chief executive officer,
chief operating officer or the president of the Company, or
any other officer having substantially the same authority
and responsibility or the chief financial officer, the
treasurer or the chief accounting officer of the Company,
or any other officer having substantially the same
authority and responsibility.
27
Revolving Commitment means, as to any Lender, the
commitment of such Lender to make Revolving Loans pursuant to
subsection 2.1(c). The initial amount of each Revolving Lender's
Revolving Commitment is set forth across from such Lender's name
on Schedule 1.1.
Revolving Lender means, at any time, a Lender with a
Revolving Commitment at such time or which then holds any
Revolving Loan.
Revolving Loan - see subsection 2.1(c).
Revolving Percentage means, as to any Lender, the
percentage which (a) prior to the termination of the
Revolving Commitments, (x) the amount of such Lender's
Revolving Commitment is of (y) the aggregate amount of the
Revolving Lenders' Revolving Commitments and (b) after the
termination of the Revolving Commitments, (x) amount of
such Lender's Revolving Loans is of (y) the aggregate
amount of all Revolving Loans of all Revolving Lenders.
Revolving Termination Date means the earlier to occur of:
(a) March 31, 2003; and
(b) the date on which the Revolving Commitments
terminate in accordance with the provisions of
this Agreement.
SEC means the Securities and Exchange Commission, or
any Governmental Authority succeeding to any of its
principal functions.
Security Agreement means either the Security Agreement
(Company and Parent) or the Subsidiary Security Agreement.
Security Agreement (Company and Parent) - see
subsection 5.1(g).
Senior Debt Ratio means for each Computation Period the ratio of
(i) the quotient of (A) the sum of the aggregate
outstanding principal amount of all Total Debt (other
than Subordinated Debt) as of the last day of each of
the last twelve fiscal months divided by (B) twelve
to
(ii) EBITDA for such Computation Period most recently
ended on or before such date;
provided, however, that (x) with respect to the Computation
Period ending June 30, 1997, clause (i) shall be the
quotient of (1) the sum of the aggregate outstanding
principal amount of all Total Debt (other than Subordinated
Debt) as of the last day of the last three fiscal months
divided by (2) three, (y) with respect to the Computation
Period ending
28
September 28, 1997, clause (i) shall be the quotient of (1)
the sum of the aggregate outstanding principal amount of
all Total Debt (other than Subordinated Debt) as of the
last day of the last six fiscal months divided by (2) six
and (z) with respect to the Computation Period ending
December 28, 1997, clause (i) shall be the quotient of (1)
the sum of the aggregate outstanding principal amount of
all Total Debt (other than Subordinated Debt) as of the
last day of the last nine fiscal months divided by (2)
nine.
Standby Letter of Credit means any Letter of Credit
that is not a Commercial Letter of Credit.
Subordinated Debt means the Subordinated Notes, the
Exchange Notes and any Qualified Notes and all other
unsecured Indebtedness of the Company for borrowed money
which is subject to, and is only entitled to the benefits
of, terms and provisions (including maturity, amortization,
acceleration, interest rate, sinking fund, covenant,
default and subordination provisions) satisfactory in form
and substance to the Required Lenders, as evidenced by
their written approval thereof (which may be granted or
withheld in their sole discretion).
Subordinated Debt Proceeds means, at any time, the
lesser of (x) the aggregate original principal amount of,
or (y) the gross proceeds received by the Company (before
deduction of underwriting discounts, placement fees and all
other related fees and expenses) upon issuance of, all
outstanding Subordinated Notes, Exchange Notes or Qualified
Notes of the Company at such time.
Subordinated Indenture means the indenture governing
the Subordinated Notes and the Exchange Notes, as amended
from time to time in accordance with Section 8.23.
Subordinated Note Purchase Agreement means the
Purchase Agreement dated as of April 15, 1997 relating to
the Subordinated Notes, as amended from time to time in
accordance with Section 8.23.
Subordinated Notes means the 12-1/4% Senior
Subordinated Notes due April 15, 2007 of the Company issued
under the Subordinated Indenture, as amended from time to
time in accordance with Section 8.23.
Subsidiary of a Person means any corporation,
association, partnership, limited liability company, joint
venture or other business entity of which more than 50% of
the voting stock, membership interests or other equity
interests is owned or controlled directly or indirectly by
such Person, or one or more of the Subsidiaries of such
Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a
"Subsidiary" refer to a Subsidiary of the Company.
Subsidiary Guaranty means the guaranty, substantially
in the form of Exhibit F-2, which may be executed from time
to time by certain Subsidiaries of the Company.
29
Subsidiary Pledge Agreement - see subsection 5.1(i);
such pledge agreement may be joined after the Closing Date by
other Subsidiaries.
Subsidiary Security Agreement means the security
agreement, substantially in the form of Exhibit E-2, which
may be executed from time to time by certain Subsidiaries
of the Company.
Surety Instruments means all letters of credit
(including standby and commercial), banker's acceptances,
bank guaranties, surety bonds and similar instruments.
Swap Contract means any agreement, whether or not in
writing, relating to any transaction that is a rate swap,
basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap or option,
bond, note or xxxx option, interest rate option, forward
foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap,
swaption, currency option or any other, similar transaction
(including any option to enter into any of the foregoing)
or any combination of the foregoing, and, unless the
context otherwise clearly requires, any master agreement
relating to or governing any or all of the foregoing.
Swap Termination Value means, in respect of any one or
more Swap Contracts, after taking into account the effect
of any legally enforceable netting agreement relating to
such Swap Contracts, (a) for any date on or after the date
such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the
date referenced in clause (a) the amount(s) determined as
the xxxx-to-market value(s) for such Swap Contracts, as
determined based upon one or more mid-market or other
readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include any
Lender).
Swingline Lender means BofA in its capacity as lender
of Swingline Loans together with any replacement lender of
Swingline Loans arising under Section 10.9.
Swingline Loan has the meaning specified in subsection
2.5(a).
Tax Sharing Agreement means the Tax Sharing Agreement
dated as of January 9, 1990 by and between Parent and the
Company, as the same may be amended from time to time in
accordance with Section 8.23.
Taxes means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, charges
or withholdings, fees or similar charges and all
liabilities with respect thereto, excluding, in the case of
each Lender and the Administrative Agent, such taxes
(including income taxes, branch profit taxes or franchise
taxes) as are imposed on or measured by such Lender's or
the Administrative Agent's, as the case may be, net income
by the jurisdiction (or any political subdivision thereof)
under the laws of which such Lender or the Administrative
Agent, as the case may be, is organized, maintains a
lending office or conducts business (collectively,
"Excluded Taxes").
30
Term A Commitment means, as to any Lender, the
commitment of such Lender to make a Term A Loan pursuant to
subsection 2.1(a). The initial amount of each Term A Lender's
Term A Commitment is set forth across from such Lender's name on
Schedule 1.1.
Term A Lender means, at any time, a Lender with a Term
A Commitment at such time or which then holds any Term A
Loan.
Term A Loan - see subsection 2.1 (a).
Term A Percentage means, as to any Lender, the
percentage which (a) the Term A Commitment of such Lender
(or, after the making of the Term A Loans, the principal
amount of such Lender's Term A Loan) is of (b) the
aggregate amount of Term A Commitments (or after the making
of the Term A Loans, the aggregate principal amount of all
Term A Loans). The initial Term A Percentage of each Lender
is set forth across from such Lender's name on Schedule
1.1.
Term B Commitment means, as to any Lender, the
commitment of such Lender to make a Term B Loan pursuant to
subsection 2.1(b). The initial amount of each Term B
Lender's Term B Commitment is set forth across from such
Lender's name on Schedule 1.1.
Term B Lender means, at any time, a Lender with a Term
B Commitment at such time or which then holds any Term B
Loan.
Term B Loan - see subsection 2.1(b).
Term B Percentage means, as to any Lender, the
percentage which (a) the Term B Commitment of such Lender
(or, after the making of the Term B Loans, the principal
amount of such Lender's Term B Loan) is of (b) the
aggregate amount of Term B Commitments (or after the making
of the Term B Loans, the aggregate principal amount of all
Term B Loans). The initial Term B Percentage of each Lender
is set forth across from such Lender's name on Schedule
1.1.
Term Loan means a Term A Loan or a Term B Loan.
Total Debt means (i) total Indebtedness of Parent and
its Subsidiaries at the time of determination less (ii)
Indebtedness of the type described in clause (c) of the
definition of "Indebtedness" in respect of Surety
Instruments under which Parent or any Subsidiary has only
unmatured payment obligation determined at such time less
(iii) Indebtedness of the type described in clauses (g) and
(h) of the definition of "Indebtedness" in respect of
Indebtedness at such time described in clause (ii) above.
Total Debt Ratio means as of June 30 of each year the ratio of
31
(i) the aggregate outstanding principal amount
of all Total Debt as of such day
to
(ii) EBITDA for the fiscal year ended on such date.
Total Percentage means, as to any Lender, the
percentage which (a) the aggregate amount of such (i)
Lender's Revolving Commitment plus (ii) such Lender's Term
A Commitment (or, after the making of the Term A Loans, the
outstanding principal amount of such Lender's Term A Loans)
plus (iii) such Lender's Term B Commitment (or, after the
making of the Term B Loans, the outstanding principal
amount of such Lender's Term B Loans) is of (b) the
aggregate amount of (i) the Revolving Commitments of all
Lenders plus (ii) the Term A Commitments of all Lenders
(or, after the making of the Term A Loans, the outstanding
principal amount of all Term A Loans) plus (iii) the Term B
Commitments of all Lenders (or, after the making of the
Term B Loans, the outstanding principal amount of all Term
B Loans); provided that, after the Revolving Commitments
have been terminated, "Total Percentage" shall mean as to
any Lender the percentage which the aggregate principal
amount of such Lender's Loans is of the aggregate principal
amount of all Loans. The initial Total Percentage of each
Lender is set forth opposite such Lender's name on Schedule
1.1.
TPG Acquisition means TPG Shield Acquisition
Corporation, a Maryland corporation.
TPG Acquisition Preferred Stock means the 14% Series A
and Series B Redeemable Preferred Stock, liquidation
preference $1,000 per share, of TPG Acquisition and, after
the effectiveness of the Merger, shall include the
corresponding class of preferred stock of Parent.
TPG Agreements means (i) the Management Advisory
Agreement, dated as of April 18, 1997, between the Company
and TPG Partners and (ii) the Transaction Advisory
Agreement, dated as of April 18, 1997, between the Company
and TPG Partners, in each case as amended from time to time
in accordance with Section 8.23.
TPG Partners means TPG Partners, L.P., a Delaware
limited partnership.
Trademark Security Agreement means a trademark
security agreement in the form attached to a Security
Agreement.
Type has the meaning specified in the definition of "Loan."
Unfunded Pension Liability means the excess of a
Pension Plan's accumulated benefit obligations over the
current value of such Pension Plan's assets, determined in
accordance with SFAS No. 87 as of the Company's most recent
fiscal year end prior to the date of determination.
32
United States and U.S. each means the United States of America.
Unmatured Event of Default means any event or
circumstance which, with the giving of notice, the lapse of
time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
Warehouseman's Consent means a document substantially
in the form of Exhibit P, with appropriate insertions, or
such other form as shall be acceptable to the
Administrative Agent or Required Revolving Lenders.
Wholly-Owned Subsidiary means any corporation in which
(other than director's qualifying shares or due to native
ownership requirements) 100% of the capital stock of each
class is owned beneficially and of record by the Company or
by one or more other Wholly-Owned Subsidiaries.
1.2 Other Interpretive Provisions.
(a) The meanings of defined terms are equally
applicable to the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and
similar words refer to this Agreement as a whole and not to any
particular provision of this Agreement; and subsection, Section,
Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(c) (i) The term "documents" includes any and all
instruments, documents, agreements, certificates,
indentures, notices and other writings, however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from
a specified date to a later specified date, the word "from"
means "from and including"; the words "to" and "until" each
mean "to but excluding"; and the word "through" means "to
and including."
(d) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement) and other
contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto, but only to the
extent such amendments and other modifications are not prohibited
by the terms of any Loan Document and (ii) references to any
statute or regulation are to be construed as including all
statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are
for convenience of reference only and shall not affect the
interpretation of this Agreement.
33
(f) This Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate
the same or similar matters. All such limitations, tests and
measurements are cumulative and shall each be performed in
accordance with their terms. Unless otherwise expressly provided
herein, any reference to any action of the Administrative Agent,
the Lenders, the Required Lenders, the Required Term A Lenders,
the Required Term B Lenders or the Required Revolving Lenders by
way of consent, approval or waiver shall be deemed modified by
the phrase "in its/their sole discretion."
(g) This Agreement and the other Loan Documents are
the result of negotiations among and have been reviewed by
counsel to the Agents, the Company and the other parties, and are
the products of all parties. Accordingly, they shall not be
construed against the Lenders or the Agents merely because of the
Lenders' or the Agents' involvement in their preparation.
1.3 Accounting Principles.
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement
shall be made, in accordance with GAAP, consistently applied;
provided that if the Company notifies the Administrative Agent
that the Company wishes to amend any covenant in Article VIII or
any corresponding definition to eliminate the effect of any
change in GAAP after the date hereof on the operation of such
covenant (or if the Administrative Agent notifies the Company
that the Required Lenders wish to amend Article VIII or any
corresponding definition for such purpose), then the Company's
compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Company and
the Required Lenders.
(b) References herein to "fiscal year" and "fiscal
quarter" refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments. (a) The Term A
Credit. Each Term A Lender severally agrees, on the terms and
conditions set forth herein, to make a single loan to the Company
(each such loan, a "Term A Loan") on the Closing Date in an
amount not to exceed such Term A Lender's Term A Percentage of
$200,000,000. Amounts borrowed as Term A Loans which are repaid
or prepaid by the Company may not be reborrowed. The Term A
Commitments shall expire concurrently with the making of the Term
A Loans on the Closing Date.
34
(b) The Term B Credit. Each Term B Lender severally agrees,
on the terms and conditions set forth herein, to make a single loan to the
Company (each such loan, a "Term B Loan") on the Closing Date in
an amount not to exceed such Term B Lender's Term B Percentage of
$180,000,000. Amounts borrowed as Term B Loans which are repaid
or prepaid by the Company may not be reborrowed. The Term B
Commitments shall expire concurrently with the making of the Term
B Loans on the Closing Date.
(c) The Revolving Credit. Each Revolving Lender
severally agrees, on the terms and conditions set forth herein,
to make loans to the Company (each such loan, a "Revolving
Loan"), from time to time on any Business Day during the period
from the Closing Date to the Revolving Termination Date, in an
aggregate amount not to exceed at any time outstanding such
Revolving Lender's Revolving Percentage of the aggregate amount
of the Revolving Commitments; provided that, after giving effect
to any Borrowing of Revolving Loans, (x) the sum of the Effective
Amount of all Revolving Loans plus the Effective Amount of all
Swingline Loans plus the Effective Amount of all L/C Obligations
shall not exceed (y) the lesser of (1) the aggregate amount of
the Revolving Commitments and (2) the Borrowing Base; and
provided, further, the amount of all Revolving Loans and
Swingline Loans made on the Closing Date shall not exceed
$160,000,000. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Company may borrow under
this subsection 2.1(c), prepay under Section 2.7 and reborrow
under this subsection 2.1(c).
2.2 Loan Accounts. (a) The Loans made by each Lender and
the Letters of Credit Issued by the Issuing Lender shall be
evidenced by one or more accounts or records maintained by such
Lender or the Issuing Lender, as the case may be, in the ordinary
course of business. The accounts or records maintained by the
Administrative Agent, the Issuing Lender and each Lender shall be
conclusive (absent manifest error) as to the amount of the Loans
made by the Lenders to the Company and the Letters of Credit
Issued for the account of the Company, and the interest and
payments thereon. Any failure to record or any error in doing so
shall not, however, limit or otherwise affect the obligation of
the Company hereunder to pay any amount owing with respect to any
Loan or any Letter of Credit.
(b) Upon the request of any Lender made through the
Administrative Agent, the Loans made by such Lender may be
evidenced by one or more Notes in addition to loan accounts. Each
such Lender shall endorse on the schedules annexed to its Note(s)
the date, amount and maturity of each Loan made by it and the
amount of each payment of principal made by the Company with
respect thereto. Each such Lender is irrevocably authorized by
the Company to endorse its Note(s) and each Lender's record shall
be conclusive absent manifest error; provided that the failure of
a Lender to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the
obligations of the Company hereunder or under any Note to such
Lender.
2.3 Procedure for Borrowing. (a) Each Borrowing shall be
made upon the Company's irrevocable written notice delivered to
the Administrative Agent in the form of a Notice of Borrowing
(which notice must be received by the Administrative Agent (i)
prior to 11:00 a.m. (Chicago time) three Business Days prior to
the requested Borrowing Date, in the
35
case of Offshore Rate Loans and (ii) prior to 11:00 a.m. (Chicago
time) one Business Day prior to the requested Borrowing Date, in
the case of Base Rate Loans), specifying:
(A) the amount of the Borrowing, which shall be in an amount
of $5,000,000 or a higher integral multiple of $100,000;
(B) the requested Borrowing Date, which shall be a Business
Day;
(C) the Type of Loans comprising the Borrowing
(subject to Section 2.16); and
(D) in the case of Offshore Rate Loans, the
duration of the Interest Period applicable to such
Loans included in such notice.
(b) The Administrative Agent will promptly notify each
Lender of its receipt of any Notice of Borrowing and of the
amount of such Lender's share of the related Borrowing based upon
such Lender's Revolving Percentage, Term A Percentage or Term B
Percentage, as applicable.
(c) Each Lender will make the amount of its share of
each Borrowing available to the Administrative Agent for the
account of the Company at the Agent's Payment Office by 1:00 p.m.
(Chicago time) on the Borrowing Date requested by the Company in
funds immediately available to the Administrative Agent. The
proceeds of all Loans will then be made available to the Company
by the Administrative Agent at such office by crediting the
account of the Company on the books of BofA with the aggregate of
the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative
Agent.
(d) After giving effect to any Borrowing, there may
not be more than twelve different Interest Periods in effect.
2.4 Conversion and Continuation Elections. (a) Subject
to Section 2.16, the Company may, upon irrevocable written notice
to the Administrative Agent in accordance with subsection 2.4(b):
(i) elect to convert, on any Business Day, any Base
Rate Loans (in an aggregate amount of $5,000,000 or a
higher integral multiple of $100,000) into Offshore Rate
Loans;
(ii) elect to convert, on the last day of the
applicable Interest Period, any Offshore Rate Loans (or any
part thereof in an aggregate amount of $5,000,000 or a
higher integral multiple of $100,000) into Base Rate Loans;
or
(iii) elect to continue, as of the last day of the
applicable Interest Period, any Offshore Rate Loans having
Interest Periods expiring on such day (or any part thereof
in an aggregate amount of $5,000,000 or a higher integral
multiple of $100,000);
36
provided that if at any time the aggregate amount of Offshore
Rate Loans in respect of any Borrowing shall have been reduced,
by payment, prepayment or conversion of part thereof, to be less
than $5,000,000, such Offshore Rate Loans shall automatically
convert into Base Rate Loans.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Administrative
Agent not later than (i) 11:00 a.m. (Chicago time) at least three
Business Days in advance of the Conversion/Continuation Date, if
the Loans are to be converted into or continued as Offshore Rate
Loans and (ii) not later than 11:00 a.m. (Chicago time) one
Business Day prior to the Conversion/Continuation Date, if the
Loans are to be converted into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate principal amount of Loans to be converted or
continued;
(C) the Type of Loans resulting from the proposed conversion
or continuation; and
(D) in the case of conversions into Offshore Rate
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period
applicable to Offshore Rate Loans, the Company has failed to
select timely a new Interest Period to be applicable to such
Offshore Rate Loans, the Company shall be deemed to have elected
to convert such Offshore Rate Loans into Base Rate Loans
effective as of the expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify
Lender of its receipt of a Notice of Conversion/Continuation if
no timely notice is provided by the Company, the Administrative
Agent will promptly notify each Lender of the details of any
automatic conversion. All conversions and continuations shall be
made ratably according to the respective outstanding principal
amounts of the Loans held by each Lender with respect to which
the notice was given.
(e) Unless the Required Lenders otherwise agree,
during the existence of an Event of Default or Unmatured Event of
Default, the Company may not elect to have a Loan converted into
or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or
continuation of Loans, there may not be more than twelve
different Interest Periods in effect.
2.5 Swingline Loans.
(a) Subject to the terms and conditions hereof, the
Swingline Lender may, in its sole discretion (subject to
subsection 2.5(b)), make a portion of the Revolving Commitments
37
available to the Company by making swingline loans (each such
loan, a "Swingline Loan") to the Company on any Business Day
during the period from the Closing Date to the Revolving
Termination Date in accordance with the procedures set forth in
this Section 2.5 in an aggregate principal amount at any one time
outstanding not to exceed the lesser of (x) the lesser of (1) the
aggregate available amount of the Revolving Commitments and (2)
the Borrowing Base and (y) $25,000,000, notwithstanding the fact
that such Swingline Loans, when aggregated with the Swingline
Lender's outstanding Revolving Loans, may exceed the Swingline
Lender's Revolving Percentage of the aggregate amount of the
Revolving Commitments; provided that at no time shall the sum of
the Effective Amount of all Swingline Loans, Revolving Loans and
L/C Obligations exceed the lesser of (1) the aggregate amount of
the Revolving Commitments and (2) the Borrowing Base. Subject to
the other terms and conditions hereof, the Company may borrow
under this subsection 2.5(a), prepay pursuant to subsection
2.5(d) and reborrow pursuant to this subsection 2.5(a) from time
to time; provided that the Swingline Lender shall not be
obligated to make any Swingline Loan.
(b) The Company shall provide the Administrative Agent
and the Swingline Lender irrevocable written notice (or notice by
a telephone call confirmed promptly by facsimile) of any
Swingline Loan requested hereunder (which notice must be received
by the Swingline Lender and the Administrative Agent prior to
12:00 p.m. (Chicago time) on the requested Borrowing Date)
specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date, which must be a Business Day. Upon receipt of
such notice, the Swingline Lender will promptly confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such notice from the
Company and, if not, the Swingline Lender will provide the
Administrative Agent with a copy thereof. If and only if the
Administrative Agent notifies the Swingline Lender on the
proposed Borrowing Date that it may make available to the Company
the amount of the requested Swingline Loan, then, subject to the
terms and conditions hereof, the Swingline Lender may make the
amount of the requested Swingline Loan available to the Company
by crediting the account of the Company on the books of BofA with
the amount of such Swingline Loan. The Administrative Agent will
not so notify the Swingline Lender if the Administrative Agent
has knowledge that (A) the limitations set forth in the proviso
set forth in the first sentence of subsection 2.5(a) are being
violated or would be violated by such Swingline Loan or (B) one
or more conditions specified in Article V is not then satisfied.
Each Swingline Loan shall be in an aggregate principal amount
equal to $500,000 or a higher integral multiple of $100,000. The
Swingline Lender will promptly notify the Administrative Agent of
the amount of each Swingline Loan.
(c) Principal of and accrued interest on each
Swingline Loan shall be due and payable (i) on demand made by the
Swingline Lender at any time upon one Business Day's prior notice
to the Company with a copy to the Administrative Agent furnished
at or before 10:45 a.m. (Chicago time), and (ii) in any event on
the Revolving Termination Date. Interest on Swingline Loans shall
be for the sole account of the Swingline Lender (except to the
extent that the other Lenders have funded the purchase of
participations therein pursuant to subsection 2.5(e)).
38
(d) The Company may, from time to time on any Business
Day, make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of any Swingline Loan, without
incurring any premium or penalty; provided that
(i) each such voluntary prepayment shall require prior
written notice given to the Administrative Agent and the
Swingline Lender no later than 1:00 p.m. (Chicago time) on
the day on which the Company intends to make a voluntary
prepayment, and
(ii) each such voluntary prepayment shall be in an
amount equal to $500,000 or a higher integral multiple of
$100,000 (or, if less, the aggregate outstanding principal
amount of all Swingline Loans then outstanding).
Voluntary prepayments of Swingline Loans shall be made
by the Company to the Swingline Lender at such office as the
Swingline Lender may designate by notice to the Company from time
to time. All such payments shall be made in Dollars and in
immediately available funds no later than 4:00 p.m. (Chicago
time) on the date specified by the Company pursuant to clause (i)
above (and any payment received later than such time shall be
deemed to have been received on the next Business Day). The
Swingline Lender will promptly notify the Administrative Agent of
the amount of each prepayment of Swingline Loans.
(e) If (i) any Swingline Loan shall remain outstanding
at 11:00 a.m. (Chicago time) on the Business Day immediately
prior to a Business Day on which Swingline Loans are due and
payable pursuant to subsection 2.5(c) and by such time on such
Business Day the Administrative Agent shall have received neither
(A) a Notice of Borrowing delivered pursuant to Section 2.3
requesting that Revolving Loans be made pursuant to subsection
2.1(c) on such following Business Day in an amount at least equal
to the aggregate principal amount of such Swingline Loans, nor
(B) any other notice indicating the Company's intent to repay
such Swingline Loans with funds obtained from other sources, or
(ii) any Swingline Loans shall remain outstanding during the
existence of an Unmatured Event of Default or Event of Default
and the Swingline Lender shall in its sole discretion notify the
Administrative Agent that the Swingline Lender desires that such
Swingline Loans be converted into Revolving Loans, then the
Administrative Agent shall be deemed to have received a Notice of
Borrowing from the Company pursuant to Section 2.3 requesting
that Base Rate Loans be made pursuant to subsection 2.1(c) on the
following Business Day in an amount equal to the aggregate amount
of such Swingline Loans, and the procedures set forth in
subsections 2.3(b) and 2.3(c) shall be followed in making such
Base Rate Loans; provided that such Base Rate Loans shall be made
notwithstanding the Company's failure to comply with Section 5.3;
and provided, further, that if a Borrowing of Revolving Loans
becomes legally impracticable and if so required by the Swingline
Lender at the time such Revolving Loans are required to be made
by the Revolving Lenders in accordance with this subsection
2.5(e), each Revolving Lender agrees that in lieu of making
Revolving Loans as described in this subsection 2.5(e), such
Revolving Lender shall purchase a participation from the
Swingline Lender in the applicable Swingline Loans in an amount
equal to such Revolving Lender's Revolving Percentage of such
Swingline Loans, and the procedures set forth in subsections
2.3(b) and 2.3(c) shall be followed in connection with the
purchases of such participations. The proceeds of such Base Rate
Loans (or participations
39
purchased) shall be delivered by the Administrative Agent to the
Swingline Lender to repay such Swingline Loans (or as payment for
such participations). A copy of each notice given by the
Administrative Agent to the Revolving Lenders pursuant to this
subsection 2.5(e) with respect to the making of Loans, or the
purchases of participations, shall be promptly delivered by the
Administrative Agent to the Company. Each Revolving Lender's
obligation in accordance with this Agreement to make the
Revolving Loans, or purchase the participations, as contemplated
by this subsection 2.5(e), shall be absolute and unconditional
and shall not be affected by any circumstance, including (1) any
set-off, counterclaim, recoupment, defense or other right which
such Revolving Lender may have against the Swingline Lender, the
Company or any other Person for any reason whatsoever, (2) the
occurrence or continuance of an Unmatured Event of Default, an
Event of Default or a Material Adverse Effect or (3) any other
circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
2.6 Termination or Reduction of Revolving Commitments.
(a) The Company may, upon not less than three Business
Days' prior written notice to the Administrative Agent,
permanently reduce the Revolving Commitments to an amount which
is not less than the sum of the Effective Amount of all Revolving
Loans plus the Effective Amount of all Swingline Loans plus the
Effective Amount of all L/C Obligations. Any such reduction shall
be in an aggregate amount of $10,000,000 or a higher integral
multiple of $5,000,000. The Company may at any time on like
notice terminate the Revolving Commitments upon payment in full
of all Revolving Loans and Swingline Loans and Cash
Collateralization in full of all L/C Obligations.
(b) In addition, after (and to the extent not applied
to) the payment in full of all Term Loans pursuant to subsection
2.8(a), upon the occurrence of any Mandatory Prepayment Event,
the Revolving Commitments shall be reduced by the amount of all
Designated Proceeds resulting from such Mandatory Prepayment
Event, with each such reduction effective at the time required in
subsection 2.8(a) for a prepayment of Term Loans resulting from
such Mandatory Prepayment Event; provided, that upon any
Mandatory Prepayment Event arising from the transfer of Accounts
Receivable under a Permitted Receivables Facility under clause
(viii) of subsection 2.8(a), (i) the Revolving Loans shall be
repaid in an amount equal to the Designated Proceeds from such
transfer, (ii) the Revolving Commitments shall be reduced by the
full amount of all Designated Proceeds from such transfer until
the Revolving Commitments have been reduced to zero and (iii) no
such Designated Proceeds shall be applied to the Term Loans until
the Revolving Commitments have so been reduced to zero.
(c) Once reduced in accordance with this Section, the
Revolving Commitments may not be increased. Any reduction of the
Revolving Commitments shall be applied to the Revolving
Commitment of each Revolving Lender according to its Revolving
Percentage. All accrued commitment fees to, but not including,
the effective date of any reduction or termination of the
Revolving Commitments shall be paid on the effective date of such
reduction or termination.
40
2.7 Optional Prepayments.
(a) Subject to Section 4.4, (i) the Company may, from
time to time, upon irrevocable written notice to the
Administrative Agent (which notice must be received by 11:00 a.m.
(Chicago time) one Business Day prior to the requested day of
prepayment in the case of Base Rate Loans and 11:00 a.m. (Chicago
time) three Business Days prior to the date of prepayment in the
case of Offshore Rate Loans), prepay any Borrowing of Revolving
Loans in whole or in part, without premium or penalty, in an
aggregate amount of $5,000,000 or a higher integral multiple of
$100,000 and (ii) the Company may, from time to time, upon not
less than three Business Days' irrevocable notice to the
Administrative Agent, prepay any Borrowing of Term Loans in whole
or in part, without premium or penalty, in an aggregate amount of
$5,000,000 or a higher integral multiple of $100,000.
(b) Each notice of prepayment shall specify the date
and amount of such prepayment and the Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its
receipt of any such notice and of such Lender's share of such
prepayment based upon such Lender's Revolving Percentage, in the
case of a prepayment of Revolving Loans, Term A Percentage, in
the case of a prepayment of Term A Loans or Term B Percentage, in
the case of a prepayment of Term B Loans. If any such notice is
given by the Company, the Company shall make such prepayment and
the payment amount specified in such notice shall be due and
payable on the date specified therein, together with accrued
interest to such date on the amount prepaid and any amounts
required pursuant to Section 4.4. Each prepayment of Revolving
Loans shall be applied to each Revolving Lender's Revolving Loans
according to such Revolving Lender's Revolving Percentage. Each
prepayment of Term Loans shall be applied pro rata to the Term A
Loans and Term B Loans; provided, that if the Company elects to
provide the holders of Term B Loans with the option to waive
their right to accept any such voluntary prepayment, and any such
Lender notifies the Administrative Agent of such Lender's waiver
of such prepayment not later than two Business Days prior to the
date of prepayment, 50% of the portion of any such prepayment
which would have been applied to such Lender's Term B Loans shall
be applied pro rata to the remaining installments of the Term A
Loans of all Lenders and the remaining 50% may be retained by the
Company; provided, further, that once the Term A Loans shall have
been fully repaid, such remaining prepayment amounts, if any,
shall be applied pro rata to the Term B Loans. All prepayments of
the Term Loans pursuant to this Section 2.7 shall be applied pro
rata to the unpaid installments of each of the Term A Loans and
Term B Loans; provided, however, that, at the Company's option, a
portion of any such prepayment may be applied to unpaid
installments of the Term A Loans in forward order of maturity,
but the amount so applied in any period of four consecutive
fiscal quarters may not exceed 50% of the amount of the scheduled
installments of the Term A Loans during such period (without
giving effect to any reduction to such scheduled installments as
a result of mandatory or voluntary prepayments).
2.8 Mandatory Prepayments of Loans. (a) The Company (or, in
the case of clause (iii), if the Administrative Agent is holding
the proceeds of insurance or condemnation as additional
Collateral pursuant to the terms of a Security Agreement or any
Mortgage, the Administrative Agent) shall make a prepayment of
the Term Loans upon the occurrence of any
41
of the following (each a "Mandatory Prepayment Event") at the
following times and in the following amounts (such applicable
amounts being referred to as "Designated Proceeds")
(i) Within 120 days after any sale, transfer or other
disposition by the Company or any Subsidiary of any asset
(other than assets described in clause (ii) below), other
than sales of Inventory, Assets Held for Sale and transfers
of Accounts Receivable pursuant to a Permitted Receivables
Facility and dispositions of obsolete, unused, surplus or
unnecessary equipment, in each case in the ordinary course
of business, to a Person other than the Company or a
Subsidiary, in an amount equal to 100% of the Net Cash
Proceeds of such sale, transfer or other disposition;
provided that the foregoing shall not apply (x) to sales,
transfers or other dispositions of such assets the proceeds
(or an amount equal to anticipated proceeds) of which are
used or committed to be used by the Company for the
financing of the replacement or substitution of such assets
being sold prior to or within 120 days after any such sale
or (y) to the extent that the Net Cash Proceeds of all such
sales, transfers or other dispositions in any fiscal year
is less than $5,000,000.
(ii) Within 30 days after any sale, transfer or other
disposition (including by way of merger or consolidation)
by the Company or any Subsidiary of any of the capital
stock of any of the Company's operating Subsidiaries to a
Person other than the Company or a Subsidiary, in an amount
equal to 100% of the Net Cash Proceeds of such sale.
(iii) Within 120 days after the receipt of any
insurance or condemnation proceeds (or other similar
recoveries) by Parent, the Company or any Subsidiary or by
the Administrative Agent (to the extent the Administrative
Agent is holding the insurance or condemnation proceeds as
additional Collateral pursuant to Section 6 of a Security
Agreement or any provision of any Mortgage) from any
casualty loss incurred by Parent, the Company or any
Subsidiary or condemnation of property, in an amount equal
to 100% of such insurance or condemnation proceeds (or
other similar recoveries) net of any collection expenses;
provided that no such prepayment shall be required (x) to
the extent
such proceeds (or an amount equal to anticipated proceeds)
are used by the Company, or will be so used prior to or
within 120 days after the date of receipt of such proceeds
for the financing of the replacement, substitution or
restoration of the assets sustaining such casualty loss or
condemnation or (y) to the extent that all such insurance
or condemnation proceeds received in any fiscal year is
less than $1,000,000.
(iv) Concurrently with the receipt of any Net Cash
Proceeds from any issuance of equity securities of Parent,
the Company or any Subsidiary (including a Public Offering,
but excluding (x) any issuance of shares of capital stock
pursuant to any employee or director stock option program,
benefit plan or compensation program and (y) any such Net
Cash Proceeds from equity issuances of Parent to the extent
used to redeem the TPG Acquisition Preferred Stock), in an
amount equal to 50% of such Net Cash Proceeds.
42
(v) Concurrently with the receipt of any Net Cash
Proceeds from the issuance of any Other Debt of Parent, the
Company or any Subsidiary in an amount equal to 100% of such Net
Cash Proceeds.
(vi) If the net proceeds of the Subordinated Notes
exceeds the net proceeds the Company would have received on
issuance of $150,000,000 of Subordinated Notes, or if the
net proceeds received on issuance of any Qualified Notes
exceeds the net proceeds received by the Company in the
issuance of the Subordinated Notes or on any prior issuance
of Qualified Notes, concurrently with the receipt of the
proceeds of such notes by the Company in an amount equal to
such excess.
(vii) Within 95 days after the end of each fiscal year
(commencing with the fiscal year ending June 30, 1998), in
an amount equal to 75% of Excess Cash Flow for such fiscal
year; provided that if the aggregate unpaid principal
amount of the Term Loans as of the end of such fiscal year
is less than $190,000,000, hen the amount of the required
prepayment shall be 50% of Excess Cash Flow.
(viii) Subject to the proviso to subsection 2.6(b),
immediately following any transfer by the Company or any
Subsidiary of Accounts Receivable pursuant to a Permitted
Receivables Facility, in an amount equal to the Net Cash
Proceeds of such transfer (provided, that if the Permitted
Receivables Facility is a revolving program, the Designated
Proceeds available for application to the Loans and/or
Revolving Commitments from such Permitted Receivables
Facility under this clause (viii) shall not exceed the
maximum outstanding amount of such Permitted Receivables
Facility (without giving effect to any reduction in such
amount but giving effect to any increase in such amount)).
All prepayments of Term Loans pursuant to this subsection
2.8(a) shall be applied to the prepayment of the Term Loans pro
rata among the Term A Loans and Term B Loans, with application to
the remaining installments of each (x) in inverse order of
maturity, in the case of prepayments pursuant to clauses (v) and
(vi) and (y) pro rata, in the case of prepayments pursuant to
clauses (i), (ii), (iii), (iv), (vii) and (viii); provided, that
Designated Proceeds arising under clause (viii) shall only be
applied to the Term Loans after the Revolving Commitments have
been reduced to zero pursuant to subsection 2.6(b); provided,
further, that, if the Company offers to any Lender holding Term B
Loans the right to waive any such prepayment, and any such Lender
notifies the Administrative Agent of such Lender's waiver of such
prepayment not later than two Business Days prior to the date
upon which such prepayment is due, 50% of the portion of any
prepayment which would have been applied to such Lender's Term B
Loans shall be applied pro rata to the remaining installments of
the Term A Loans of all Lenders and the remaining 50% may be
retained by the Company; and provided, further, that once the
Term A Loans shall have been fully prepaid, such remaining
prepayment amounts, if any, shall be applied pro rata to the Term
B Loans.
(b) If on any day the Effective Amount of all
Revolving Loans plus the Effective Amount of all Swingline Loans
plus the Effective Amount of all LIC Obligations
43
exceeds the lesser of (x) the Borrowing Base and (y) the
Revolving Commitments, the Company shall immediately prepay
Revolving Loans and/or Swingline Loans or Cash Collateralize the
outstanding Letters of Credit, or do a combination of the
foregoing, in an amount sufficient to eliminate such excess.
(c) If on any date the Effective Amount of L/C
Obligations exceeds the amount of the L/C Commitment, the Company
shall Cash Collateralize on such date the outstanding Letters of
Credit in an amount equal to the excess of the L/C Obligations
over the amount of the L/C Commitment.
2.9 Repayment. (a) The Term A Credit. The Company shall
repay the Term A Loans in quarterly installments on the last
Business Day of each fiscal quarter, commencing on September 25,
1998, in the amount set forth opposite the period below in which
such quarterly date occurs:
Quarterly
Period Amounts
9/25/98 through 6/30/99 $ 7,500,000
7/01/99 through 6/30/00 $ 8,750,000
7/01/00 through 6/30/01 $10,000,000
7/01/01 through 6/30/02 $11,250,000
7/01/02 through 12/31/02 $16,666,666.66
1/01/03 through 3/31/03 $16,666,666.68.
(b) The Term B Credit. The Company shall repay the
Term B Loans in quarterly installments on the last Business Day
of each fiscal quarter, commencing on March 27, 1998, in the
amount set forth opposite the period below in which such
quarterly date occurs:
Quarterly
Period Amounts
3/27/98 through 3/31/04 $ 450,000
4/01/04 through 3/31/05 $42,187,500.
(c) The Revolving Credit. The Company shall pay to the
Administrative Agent, for the account of the Lenders, on the
Revolving Termination Date the aggregate principal amount of all
Revolving Loans outstanding on such date.
2.10 Interest. (a) Each Revolving Loan and Term Loan
shall bear interest on the outstanding principal amount thereof
from the applicable Borrowing Date at a rate per annum
44
equal to the Offshore Rate or the Base Rate, as the case may be
(and subject to the Company's right to convert to the other Type
of Loans under Section 2.4), plus the Applicable Offshore Rate
Margin or Applicable Base Rate Margin, as the case may be. Each
Swingline Loan shall bear interest on the outstanding principal
amount thereof from the applicable Borrowing Date at a rate per
annum equal to the Base Rate plus 1% per annum.
(b) Interest on each Loan shall be paid in arrears on
each Interest Payment Date therefor. Interest shall also be paid
on the date of any prepayment of Offshore Rate Loans under
Section 2.7 or 2.8 for the portion of the Loans so prepaid and
upon payment (including prepayment) in full thereof.
(c) Notwithstanding subsection 2.10(a), during the
existence of any Event of Default, the Company shall pay interest
(after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all outstanding
Loans and, to the extent permitted by applicable law, on any
other amount payable hereunder or under any other Loan Document,
at a rate per annum equal to the rate otherwise applicable
thereto pursuant to the terms hereof or such other Loan Document
(or, if no such rate is specified, the Base Rate plus the
Applicable Base Rate Margin then in effect for Revolving Loans)
plus 2%. All such interest shall be payable on demand.
(d) Anything herein to the contrary notwithstanding,
the obligations of the Company to any Lender hereunder shall be
subject to the limitation that payments of interest shall not be
required for any period for which interest is computed hereunder
to the extent (but only to the extent) that contracting for or
receiving such payment by such Lender would be contrary to the
provisions of any law applicable to such Lender limiting the
highest rate of interest that may be lawfully contracted for,
charged or received by such Lender, and in such event the Company
shall pay such Lender interest at the highest rate permitted by
applicable law.
2.11 Fees. In addition to certain fees described in Section 3.8:
(a) Arranger and Agency Fees. The Company shall pay
fees to the Arranger and BT Securities Corporation for their own
accounts and agency fees to the Administrative Agent for the
Administrative Agent's own account, in each case as required by
the letter agreement (the "Fee Letter") among the Company, the
Arranger, Bankers Trust Company and the Administrative Agent
dated April 14, 1997.
(b) Commitment Fees. The Company shall pay to the
Administrative Agent for the account of each Revolving Lender a
commitment fee calculated at a rate per annum equal to the
Commitment Fee Rate on the average daily unused portion of such
Revolving Lender's Revolving Commitment, computed on a quarterly
basis in arrears on the last Business Day of each fiscal quarter
based upon the daily utilization for that quarter as calculated
by the Administrative Agent. For purposes of calculating
utilization under this subsection, the Revolving Commitments
shall be deemed used to the extent of the Effective Amount of all
Revolving Loans then outstanding (but Swingline Loans shall not
constitute usage of any Revolving Lender's Revolving Commitment)
plus the Effective Amount of all L/C Obligations then
outstanding. Such commitment fee shall accrue from the Closing
Date to the Revolving
45
Termination Date and shall be due and payable quarterly in
arrears on the last Business Day of each fiscal quarter, with the
final payment to be made on the Revolving Termination Date. The
commitment fees provided in this subsection shall accrue at all
times after the Closing Date, including at any time during which
one or more conditions in Article V are not met.
2.12 Computation of Fees and Interest. (a) All computations
of interest for Base Rate Loans when the Base Rate is determined
by BofA's "reference rate" shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed.
All other computations of interest and fees shall be made on the
basis of a 360-day year and actual days elapsed. Interest and
fees shall accrue during each period during which interest or
such fees are computed from the first day thereof to the last day
thereof.
(b) Each determination of an interest rate by the
Administrative Agent shall be conclusive and binding on the
Company and the Lenders in the absence of manifest error. The
Administrative Agent will, at the request of the Company or any
Lender, deliver to the Company or such Lender, as the case may
be, a statement showing the quotations used by the Administrative
Agent in determining any interest rate and the resulting interest
rate.
2.13 Payments by the Company. (a) All payments to be made
by the Company shall be made without set-off, recoupment or
counterclaim. Except as otherwise expressly provided herein, all
payments by the Company shall be made to the Administrative Agent
for the account of the Lenders at the Agent's Payment Office, and
shall be made in Dollars and in immediately available funds, no
later than 1:00 p.m. (Chicago time) on the date specified herein.
Except as expressly provided herein, the Administrative Agent
will promptly distribute, in like funds as received, to each
Lender its Revolving Percentage of any portion of such payment
related to the Revolving Loans, its Term A Percentage of any
portion of such payment relating to the Term A Loans or its Term
B Percentage of any portion of such payment relating to the Term
B Loans. Any payment received by the Administrative Agent later
than 1:00 p.m. (Chicago time) shall be deemed to have been
received on the following Business Day and any applicable
interest or fee shall continue to accrue.
(b) Whenever any payment is due on a day other than a
Business Day, such payment shall be made on the preceding
Business Day, and such shortening of time shall in such case be
reflected in the computation of interest or fees, as the case may
be.
(c) Unless the Administrative Agent receives notice
from the Company prior to the date on which any payment is due to
the Lenders that the Company will not make such
payment in full as and when required, the Administrative Agent
may assume that the Company has made such payment in full to the
Administrative Agent on such date in immediately available funds
and the Administrative Agent may (but shall not be so required),
in reliance upon such assumption, distribute to each Lender on
such due date an amount equal to the amount then due such Lender.
If and to the extent the Company has not made such payment in
full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such
Lender, together with interest thereon at the Federal Funds Rate
for each day from the date such amount is distributed to such
Lender until the date repaid.
46
2.14 Payments by the Lenders to the Administrative
Agent. (a) Unless the Administrative Agent receives notice from a
Lender on or prior to the Closing Date, or, with respect to any
Borrowing after the Closing Date, at least one Business Day prior
to the date of such Borrowing, that such Lender will not make
available as and when required hereunder to the Administrative
Agent for the account of the Company the amount of such Lender's
Revolving Percentage, Term A Percentage or Term B Percentage, as
applicable, of such Borrowing, the Administrative Agent may
assume that each Lender has made such amount available to the
Administrative Agent in immediately available funds on the
Borrowing Date and the Administrative Agent may (but shall not be
required to), in reliance upon such assumption, make available to
the Company on such date a corresponding amount. If and to the
extent any Lender shall not have made its full amount available
to the Administrative Agent in immediately available funds and
the Administrative Agent in such circumstances has made available
to the Company such amount, such Lender shall on the Business Day
following such Borrowing Date make such amount available to the
Administrative Agent, together with interest at the Federal Funds
Rate for each day during such period. A notice of the
Administrative Agent submitted to any Lender with respect to
amounts owing under this subsection (a) shall be conclusive,
absent manifest error. If such amount is so made available, such
payment to the Administrative Agent shall constitute such
Lender's Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to the
Administrative Agent on the Business Day following the Borrowing
Date, the Administrative Agent will notify the Company of such
failure to fund and, upon demand by the Administrative Agent, the
Company shall pay such amount to the Administrative Agent for the
Administrative Agent's account, together with interest thereon
for each day elapsed since the date of such Borrowing, at a rate
per annum equal to the interest rate applicable at the time to
the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any
Borrowing Date shall not relieve any other Lender of any
obligation hereunder to make a Loan on such Borrowing Date, but
no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on any
Borrowing Date.
2.15 Sharing of Payments, Etc. If, other than as expressly
provided elsewhere herein, any Lender shall obtain on account of
the Loans made by it any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) in
excess of its ratable share of such payment (determined in
accordance with the provisions of this Agreement), such Lender
shall immediately (a) notify the Administrative Agent of such
fact and (b) purchase from the other Lenders such participations
in the Loans made by them as shall be necessary to cause such
purchasing Lender to share the excess payment pro rata with each
other Lender; provided that if all or any portion of such excess
payment is thereafter recovered from the purchasing Lender, such
purchase shall to that extent be rescinded and each other Lender
shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender's
ratable share (according to the proportion of (i) the amount of
such paying Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the
total amount so recovered. The Company agrees that any Lender so
purchasing a participation from another Lender may, to the
fullest extent permitted by law, exercise all its rights of
payment
47
(including the right of set-off, but subject to Section 11.10)
with respect to such participation as fully as if such Lender
were the direct creditor of the Company in the amount of such
participation. The Administrative Agent will keep records (which
shall be conclusive and binding in the absence of manifest error)
of participations purchased under this Section and will in each
case notify the Lenders following any such purchases or
repayments.
2.16 Limitation on Offshore Rate Option. Notwithstanding
anything to the contrary herein, until the earlier to occur of
(x) the fifth Business Day after the Closing Date and (y) the
Arranger giving notice to the Company that it has completed
syndication of the Loans and Commitments, the Company may not
borrow Offshore Rate Loans or convert Base Rate Loans into
Offshore Rate Loans.
ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility. (a) On the terms and
conditions set forth herein: (i) the Issuing Lender agrees, (A)
from time to time on any Business Day during the period from the
Closing Date to the Revolving Termination Date to issue Letters
of Credit for the account of the Company, and to amend Letters of
Credit previously issued by it, in accordance with subsections
3.2(c) and 3.2(d), and (B) to honor drawings which comply with
the terms of the Letters of Credit issued by it; and (ii) the
Revolving Lenders severally agree to participate in Letters of
Credit Issued for the account of the Company; provided that the
Issuing Lender shall not be obligated to Issue, and no Revolving
Lender shall be obligated to participate in, any Letter of Credit
if as of the date of Issuance of such Letter of Credit (the
"Issuance Date") (1) the sum of the Effective Amount of all L/C
Obligations plus the Effective Amount of all Revolving Loans plus
the Effective Amount of all Swingline Loans exceeds the lesser of
(x) the aggregate amount of all Revolving Commitments and (y) the
Borrowing Base, (2) the Effective Amount of all L/C Obligations
exceeds the amount of the L/C Commitment or (3) with respect to
any particular Revolving Lender, the sum of the participation of
such Revolving Lender in the Effective Amount of all L/C
Obligations plus the outstanding principal amount of the
Revolving Loans of such Revolving Lender shall exceed such
Revolving Lender's Revolving Commitment. Within the foregoing
limits, and subject to the other terms and conditions hereof, the
Company's ability to obtain Letters of Credit shall be fully
revolving, and, accordingly, the Company may, during the
foregoing period, obtain Letters of Credit to replace Letters of
Credit which have expired or which have been drawn upon and
reimbursed.
(b) The Issuing Lender shall not be under any
obligation to Issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to
enjoin or restrain the Issuing Lender from Issuing such
Letter of Credit, or any Requirement of Law applicable to
the Issuing Lender or any request or directive (whether or
not having the force of law) from any Governmental
Authority with jurisdiction over the Issuing Lender shall
prohibit, or request that the Issuing Lender refrain from,
the Issuance of letters of credit generally or such Letter
of Credit in
48
particular or shall impose upon the Issuing Lender with
respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the Issuing Lender is not
otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the Issuing Lender any
unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which the Issuing Lender in good
xxxxx xxxxx material to it;
(ii) the Issuing Lender has received written notice
from any Lender, the Administrative Agent or the Company,
on or prior to the Business Day prior to the requested date
of Issuance of such Letter of Credit, that one or more of
the applicable conditions contained in Article V is not
then satisfied;
(iii) the expiry date of such Letter of Credit is
after the Revolving Termination Date, or, in the case of a
Commercial Letter of Credit, the expiry date of such Letter
of Credit is less than 15 days prior to the Revolving
Termination Date, unless all of the Revolving Lenders have
approved such expiry date in writing;
(iv) such Letter of Credit does not provide for
drafts, or is not otherwise in form and substance
acceptable to the Issuing Lender, or the Issuance of such
Letter of Credit shall violate any applicable policies of
the Issuing Lender; or
(v) such Letter of Credit is denominated in a currency
other than Dollars.
3.2 Issuance, Amendment and Extension of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the irrevocable
written request of the Company received by the Issuing Lender and
the Administrative Agent at least four Business Days (or such
shorter time as the Issuing Lender and the Administrative Agent
may agree in a particular instance in their sole discretion)
prior to the proposed date of issuance. Each such request for
issuance of a Letter of Credit shall be by facsimile, confirmed
immediately in an original writing, in the form of an L/C
Application, and shall specify in form and detail satisfactory to
the Issuing Lender: (i) the face amount of the Letter of Credit;
(ii) the expiry date of the Letter of Credit; (iii) the name and
address of the beneficiary thereof; (iv) the documents to be
presented by the beneficiary of the Letter of Credit in case of
any drawing thereunder; (v) the full text of any certificate to
be presented by the beneficiary in case of any drawing
thereunder; and (vi) such other matters as the Issuing Lender may
require.
(b) At least two Business Days prior to the Issuance
of any Letter of Credit, the Issuing Lender will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of the L/C Application
or L/C Amendment Application from the Company and, if not, the
Issuing Lender will provide the Administrative Agent with a copy
thereof. If and only if the Administrative Agent notifies the
Issuing Lender on or before the Business Day immediately
preceding the proposed date of Issuance of a Letter of Credit
that the Issuing Lender may Issue such Letter of Credit, then,
subject to the terms and conditions hereof, the Issuing Lender
shall, on the requested date, Issue such Letter of Credit for the
account of the Company in accordance with the Issuing Lender's
usual and customary business practices. The Administrative Agent
shall not give such notice if the Administrative Agent has
knowledge that (A) such Issuance is not then permitted under
subsection 3.1(a) as a
49
result of the limitations set forth in clause (1) or (2) thereof or (B)
the Issuing Lender has received a notice described in subsection 3.1(b) (ii).
The Administrative Agent will promptly notify the Lenders of any Letter of
Credit Issuance hereunder.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Revolving Termination Date, the
Issuing Lender will, upon the written request of the Company
received by the Issuing Lender (with a copy sent by the Company
to the Administrative Agent) at least four Business Days (or such
shorter time as the Issuing Lender and the Administrative Agent
may agree in a particular instance in their sole discretion)
prior to the proposed date of amendment, amend any Letter of
Credit issued by it. Each such request for amendment of a Letter
of Credit shall be made by facsimile, confirmed immediately in an
original writing, made in the form of an L/C Amendment
Application and shall specify in form and detail satisfactory to
the Issuing Lender: (i) the Letter of Credit to be amended; (ii)
the proposed date of amendment of such Letter of Credit (which
shall be a Business Day); (iii) the nature of the proposed
amendment; and (iv) such other matters as the Issuing Lender may
require. The Issuing Lender shall not have any obligation to
amend any Letter of Credit if the Issuing Lender would have no
obligation at such time to Issue such Letter of Credit in its
amended form under the terms of this Agreement.
(d) The Issuing Lender and the Lenders agree that,
while a Letter of Credit is outstanding and prior to the
Revolving Termination Date, at the option of the Company and upon
the written request of the Company received by the Issuing Lender
(with a copy sent by the Company to the Administrative Agent) at
least four Business Days (or such shorter time as the Issuing
Lender and the Administrative Agent may agree in a particular
instance in their sole discretion) prior to the proposed date of
notification of extension, the Issuing Lender shall be entitled,
with the approval of the Administrative Agent, to authorize the
automatic extension of any Letter of Credit issued by it. Each
such request for extension of a Letter of Credit shall be made by
facsimile, confirmed immediately in an original writing, in the
form of an L/C Amendment Application, and shall specify in form
and detail satisfactory to the Issuing Lender: (i) the Letter of
Credit to be extended; (ii) the proposed date of notification of
extension of such Letter of Credit (which shall be a Business
Day); (iii) the revised expiry date of such Letter of Credit
(which, unless all Lenders otherwise consent in writing, shall
be, in the case of Standby Letters of Credit, prior to the
Revolving Termination Date and, in the case of Commercial Letters
of Credit, shall be prior to the date which is 15 days prior to
the Revolving Termination Date); and (iv) such other matters as
the Issuing Lender may require. The Issuing Lender shall not be
under any obligation to extend any Letter of Credit if: (A) the
Issuing Lender would have no obligation at such time to issue or
amend such Letter of Credit in its extended form under the terms
of this Agreement; or (B) the beneficiary of such Letter of
Credit does not accept the proposed extension of such Letter of
Credit. If any outstanding Letter of Credit shall provide that it
shall be automatically extended unless the beneficiary thereof
receives notice from the Issuing Lender that such Letter of
Credit shall not be extended, and if at the time of extension the
Issuing Lender would be entitled to authorize the automatic
extension of such Letter of Credit in accordance with this
subsection 3.2(d) upon the request of the Company but the Issuing
Lender shall not have received any L/C Amendment Application from
the Company with respect to such extension or other written
direction by the Company with respect thereto, the Issuing Lender
50
shall nonetheless be permitted to allow such Letter of Credit to
extend, subject to the approval of the Administrative Agent, and
the Company and the Lenders hereby authorize such extension, and,
accordingly, the Issuing Lender shall be deemed to have received
an L/C Amendment Application from the Company requesting such
extension.
(e) The Issuing Lender may, at its election (or as
required by the Administrative Agent at the direction of the
Required Lenders), deliver any notices of termination or other
communications to any Letter of Credit beneficiary or transferee,
and take any other action as necessary or appropriate, at any
time and from time to time, in order to cause the expiry date of
such Letter of Credit to be, in the case of Standby Letters of
Credit, a date not later than the Revolving Termination Date, and
in the case of Commercial Letters of Credit, a date not later
than 15 days prior to the Revolving Termination Date.
(f) This Agreement shall control in the event of any
conflict with any L/C-Related Document (other than any Letter of
Credit).
(g) The Issuing Lender will deliver to the
Administrative Agent, concurrently or promptly following its
delivery of a Letter of Credit, or amendment to or extension of a
Letter of Credit, to an advising bank or a beneficiary, a true
and complete copy of each such Letter of Credit or amendment to
or extension of a Letter of Credit.
(h) The Issuing Lender shall deliver to the
Administrative Agent, on the last day of each calendar month (or,
if such day is not a Business Day, the next succeeding Business
Day) and upon the date of each payment by the Company of the
letter of credit fee referred to in subsection 3.8(a), a report
setting forth as of such day the aggregate Effective Amount of
all Letters of Credit outstanding on such date, and the
Administrative Agent shall promptly forward copies of such report
to all Revolving Lenders.
3.3 Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of
Credit, each Revolving Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the
Issuing Lender a participation in such Letter of Credit and each
drawing thereunder in an amount equal to the product of (i) such
Revolving Lender's Revolving Percentage times (ii) the maximum
amount available to be drawn under such Letter of Credit and the
amount of such drawing, respectively.
(b) In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the
Issuing Lender will promptly notify the Company and the
Administrative Agent. The Company shall reimburse the Issuing
Lender on each date that any amount is paid by the Issuing Lender
under any Letter of Credit (each such date, an "Honor Date") in
an amount equal to the amount so paid by the Issuing Lender. If
the Company fails to reimburse the Issuing Lender for the full
amount of any drawing under any Letter of Credit on the Honor
Date, the Issuing Lender will promptly notify the Administrative
Agent and the Administrative Agent will promptly notify each
Revolving Lender thereof, and the Company shall be deemed to have
requested that Base Rate Loans be made by the Revolving Lenders
to be
51
disbursed on the Honor Date under such Letter of Credit, subject
to the amount of the unutilized portion of the Revolving
Commitments and subject to the conditions set forth in Section
5.3 other than subsection 5.3(a). Any notice given by the Issuing
Lender or the Administrative Agent pursuant to this subsection
3.3(b) may be oral if immediately confirmed in writing (including
by facsimile); provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding
effect of such notice.
(c) Each Revolving Lender shall upon any notice
pursuant to subsection 33(b) make available to the Administrative
Agent for the account of the Issuing Lender an amount in Dollars
and in immediately available funds equal to its Revolving
Percentage of the amount of the drawing, whereupon the
participating Revolving Lenders shall (subject to subsection
3.3(d)) each be deemed to have made a Revolving Loan consisting
of a Base Rate Loan to the Company in such amount. If any
Revolving Lender so notified fails to make available to the
Administrative Agent for the account of the Issuing Lender the
amount of such Revolving Lender's Revolving Percentage of the
amount of such drawing by no later than 1:00 p.m. (Chicago time)
on the Honor Date, then interest shall accrue on such Revolving
Lender's obligation to make such payment, from the Honor Date to
the date such Revolving Lender makes such payment, at a rate per
annum equal to the Federal Funds Rate in effect from time to time
during such period. The Administrative Agent will promptly give
notice of the occurrence of the Honor Date, but failure of the
Administrative Agent to give any such notice on the Honor Date or
in sufficient time to enable any Revolving Lender to effect such
payment on such date shall not relieve such Revolving Lender from
its obligations under this Section 3.3.
(d) With respect to any unreimbursed drawing that is
not converted into Revolving Loans consisting of Base Rate Loans
in whole or in part, because of the Company's failure to satisfy
the conditions set forth in Section 5.3 (other than subsection
5.3(a), which need not be satisfied) or for any other reason, the
Company shall be deemed to have incurred from the Issuing Lender
an L/C Borrowing in the amount of such drawing, which L/C
Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at a rate per annum equal to
the Base Rate plus the Applicable Base Rate Margin then in effect
for Revolving Loans plus 2% per annum, and each Revolving
Lender's payment to the Issuing Lender pursuant to subsection
3.3(c) shall be deemed payment in respect of its participation in
such L/C Borrowing and shall constitute an L/C Advance from such
Revolving Lender in satisfaction of its participation obligation
under this Section 3.3.
(e) Each Revolving Lender's obligation in accordance
with this Agreement to make Revolving Loans or L/C Advances, as
contemplated by this Section 3.3, as a result of a drawing under
a Letter of Credit, shall be absolute and unconditional and
without recourse to the Issuing Lender and shall not be affected
by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Lender
may have against the Issuing Lender, the Company or any other
Person for any reason whatsoever, (ii) the occurrence or
continuance of an Event of Default, an Unmatured Event of Default
or a Material Adverse Effect or (iii) any other circumstance,
happening or event whatsoever, whether or not similar to any of
the foregoing; provided that each Revolving Lender's obligation
to make Revolving Loans under this Section 3.3 is subject to the
conditions set forth in Section 5.3.
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3.4 Repayment of Participations. (a) Upon (and only
upon) receipt by the Administrative Agent for the account of the
Issuing Lender of immediately available funds from the Company
(i) in reimbursement of any payment made by the Issuing Lender
under a Letter of Credit with respect to which any Revolving
Lender has paid the Administrative Agent for the account of the
Issuing Lender for such Revolving Lender's participation in such
Letter of Credit pursuant to Section 3.3 or (ii) in payment of
interest thereon, the Administrative Agent will pay to each
Revolving Lender, in like funds as those received by the
Administrative Agent for the account of the Issuing Lender, the
amount of such Revolving Lender's Revolving Percentage of such
funds, and the Issuing Lender shall receive the amount of the
Revolving Percentage of such funds of any Revolving Lender that
did not so pay the Administrative Agent for the account of the
Issuing Lender.
(b) If the Administrative Agent or the Issuing Lender
is required at any time to return to the Company, or to a
trustee, receiver, liquidator or custodian, or to any official in
any Insolvency Proceeding, any portion of any payment made by the
Company to the Administrative Agent for the account of the
Issuing Lender pursuant to subsection 3.4(a) in reimbursement of
a payment made under a Letter of Credit or interest or fee
thereon, each Revolving Lender shall, on demand of the
Administrative Agent, forthwith return to the Administrative
Agent or the Issuing Lender the amount of its Revolving
Percentage of any amount so returned by the Administrative Agent
or the Issuing Lender plus interest thereon from the date such
demand is made to the date such amount is returned by such
Revolving Lender to the Administrative Agent or the Issuing
Lender, at a rate per annum equal to the Federal Funds Rate in
effect from time to time.
3.5 Role of the Issuing Lender. (a) Each Lender and the
Company agree that, in honoring any drawing under a Letter of
Credit, the Issuing Lender shall not have any responsibility to
obtain any document (other than any sight draft and certificate
expressly required by such Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such
document.
(b) No Agent-Related Person, Issuing Lender nor any of
their respective correspondents, participants or assignees shall
be liable to any Lender for: (i) any action taken or omitted in
connection herewith at the request or with the approval of the
Lenders (including the Required Lenders, as applicable); (ii) any
action taken or omitted in the absence of gross negligence or
willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its
use of any Letter of Credit; provided that this assumption is not
intended to, and shall not, preclude the Company's pursuing such
rights and remedies as it may have against the beneficiary or
transferee at law or under this Agreement or any other agreement.
No Agent-Related Person, Issuing Lender nor any of their
respective correspondents, participants or assignees shall be
liable or responsible for any of the matters described in clauses
iii through (vii) of Section 3.6; provided that, anything in such
clauses to the contrary notwithstanding, the Company may have a
claim against the Issuing Lender, and the
53
Issuing Lender may be liable to the Company, to the extent, but
only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Company which the Company
proves were caused by the Issuing Lender's willful misconduct or
gross negligence or the Issuing Lender's willful failure to pay
under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of such Letter of Credit.
In furtherance and not in limitation of the foregoing: (i) the
Issuing Lender may accept documents that appear on their face to
be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; and (ii)
the Issuing Lender shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
3.6 Obligations Absolute. The obligations of the Company
under this Agreement and any L/C-Related Document to reimburse
the Issuing Lender for a drawing under a Letter of Credit, and to
repay any L/C Borrowing and any drawing under a Letter of Credit
converted into Revolving Loans, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement and each such other L/C-Related Document
under all circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement
or any L/C-Related Document;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
obligations of the Company in respect of any Letter of
Credit or any other amendment or waiver of or any consent
to departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or
other right that the Company may have at any time against
any beneficiary or any transferee of any Letter of Credit
(or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Lender or any other
Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C-Related
Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
or any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under any
Letter of Credit;
(v) any payment by the Issuing Lender under any Letter
of Credit against presentation of a draft or certificate
that does not strictly comply with the terms of such Letter
of Credit; or any payment made by the Issuing Lender under
any Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for
the benefit of creditors, liquidator, receiver or other
representative of or successor to any
54
beneficiary or any transferee of any Letter of Credit, including any
arising in connection with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or
consent to departure from any guarantee, for all or any of
the obligations of the Company in respect of any Letter of
Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including
any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Company or a
guarantor.
3.7 Cash Collateral Pledge. If any Letter of Credit remains
outstanding and partially or wholly undrawn as of the Revolving
Termination Date, then the Company shall immediately Cash
Collateralize the L/C Obligations in an amount equal to the
maximum amount then available to be drawn under all Letters of
Credit.
3.8 Letter of Credit Fees. (a) The Company shall pay to the
Administrative Agent for the account of each Revolving Lender a
letter of credit fee with respect to each Letter of Credit equal
to the L/C Fee Rate per annum of the daily maximum amount
available to be drawn on such Letter of Credit, computed for each
day such Letter of Credit is outstanding in arrears on the last
Business Day of each fiscal quarter; provided that, during the
existence of any Event of Default, the L/C Fee Rate shall be
increased by 2% per annum. Such letter of credit fee shall be due
and payable quarterly in arrears on the last Business Day of each
fiscal quarter during which Letters of Credit are outstanding,
commencing on the first such quarterly date to occur after the
Closing Date, to the Revolving Termination Date (or such later
date upon which all outstanding Letters of Credit shall expire or
be fully drawn), with the final payment to be made on the
Revolving Termination Date (or such later date).
(b) The Company shall pay to the Issuing Lender a
letter of credit fronting fee for each Letter of Credit Issued
equal to 0.25% per annum of the daily maximum amount available to
be drawn on such Letter of Credit, computed for each day such
Letter of Credit is outstanding, on the last Business Day of each
fiscal quarter and on the Revolving Termination Date (or such
later date on which such Letter of Credit shall expire or be
fully drawn).
(c) The letter of credit fees payable under subsection
3.8(a) and the fronting fees payable under subsection 3.8(b)
shall be due and payable quarterly in arrears on the last
Business Day of each fiscal quarter during which Letters of
Credit are outstanding, commencing on the first such quarterly
date to occur after the Closing Date, to the Revolving
Termination Date (or such later date upon which all outstanding
Letters of Credit shall expire or be fully drawn), with the final
payment to be made on the Revolving Termination Date (or such
later date). For purposes of calculating the fees payable under
subsection 3.8(a) and subsection 3.8(b), any undrawn Commercial
Letters of Credit shall be considered outstanding and available
to be drawn upon for 15 days after their expiry date.
55
(d) The Company shall pay to the Issuing Lender from
time to time on demand the normal issuance, payment, amendment
and other processing fees, and other standard costs and charges,
of the Issuing Lender relating to letters of credit as from time
to time in effect.
3.9 Uniform Customs and Practice. The Uniform Customs and
Practice for Documentary Credits as published by the
International Chamber of Commerce most recently at the time of
issuance of any Letter of Credit shall (unless otherwise
expressly provided in such Letter of Credit) apply to each Letter
of Credit.
3.10 Non-Dollar Letters of Credit. The Company, the
Administrative Agent, the Issuing Lender and all of the Lenders
(i) agree that, upon the request of the Company, the Issuing
Lender may (in its sole discretion) issue Letters of Credit
("Non-Dollar Letters of Credit") in currencies other than Dollars
and (ii) further agree as follows with respect to such Non-Dollar
Letters of Credit:
(a) The Company agrees that its reimbursement
obligation under subsection 3.3(b) and any resulting L/C
Borrowing, in each case in respect of a drawing under any
Non-Dollar Letter of Credit, (a) shall be payable in
Dollars at the Dollar Equivalent of such obligation in the
currency in which such Non-Dollar Letter of Credit was
issued (determined on the date of payment) and (b) shall
bear interest at a rate per annum equal to the sum of the
Overnight Rate plus the Applicable Offshore Rate Margin for
Revolving Loans plus 3% for each day from and including the
Honor Date to but excluding the date such obligation is
paid in full (it being understood that any payment received
after 10:30 a.m., Chicago time, on any day shall be deemed
received on the following Business Day).
(b) Each Lender agrees that its obligation to make
Revolving Loans under subsection 3.3(b) and to make L/C
Advances for any unpaid reimbursement obligation or L/C
Borrowing in respect of a drawing under any Non-Dollar
Letter of Credit shall be payable in Dollars at the Dollar
Equivalent of such obligation in the currency in which such
Non-Dollar Letter of Credit was issued (calculated on the
date of payment) (and any such amount which is not paid
when due shall bear interest at a rate per annum equal to
the Overnight Rate plus, beginning on the third Business
Day after such amount was due, the Applicable Offshore Rate
Margin for Revolving Loans).
(c) For purposes of determining whether there is
availability for the Company to request, continue or
convert any Loan, or request, extend or increase the face
amount of any Letter of Credit, the Dollar Equivalent of
the Effective Amount of each Non-Dollar Letter of Credit
shall be calculated on the date such Loan is to be made,
continued or converted or such Letter of Credit is to be
issued, extended or increased.
(d) For purposes of determining (i) the amount of the
unused portion of the Revolving Commitments under
subsection 2.11(b), (ii) the letter of credit fee under
subsection 3.8(a) and (iii) the letter of credit fronting
fee under subsection 3.8(b), the Dollar Equivalent of the
Effective Amount of any Non-Dollar Letter of Credit shall
be determined on each of (1) the date of an issuance,
extension or change in the face amount
56
of such Non-Dollar Letter of Credit, (2) the date of any
payment by the Issuing Lender in respect of a drawing under
such Non-Dollar Letter of Credit, (3) the last day of each
calendar month and (4) each day on which the aggregate
amount of the Revolving Commitments and/or L/C Commitment
is reduced.
(e) If, on the last day of any calendar month or any
day on which the aggregate amount of the Revolving
Commitments and/or L/C Commitment is reduced, the sum of
the Effective Amount of all Revolving Loans plus the
Effective Amount of all Letters of Credit plus the
Effective Amount of all Swingline Loans (valuing the
Effective Amount of, and all reimbursement obligations and
L/C Borrowings of the Company in respect of, any Non-Dollar
Letter of Credit at the Dollar Equivalent thereof as of
such day) would exceed the aggregate amount of the
Revolving Commitments, then the Company will immediately
eliminate such excess by prepaying Revolving Loans and/or
Swingline Loans and/or causing one or more Letters of
Credit to be reduced or terminated.
(f) If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due in respect of
any Non-Dollar Letter of Credit in one currency into
another currency, the rate of exchange used shall be that
at which in accordance with normal banking procedures the
Issuing Lender could purchase the first currency with such
other currency on the Business Day preceding that on which
final judgment is given. The obligation of the Company in
respect of any such sum due from it to the Administrative
Agent, the Issuing Lender or any Lender hereunder shall,
notwithstanding any judgment in a currency (the "Judgment
Currency") other than that in which such sum is denominated
in accordance with the applicable provisions of the
applicable Non-Dollar Letter of Credit (the "Agreement
Currency"), be discharged only to the extent that on the
Business Day following receipt by the Issuing Lender of any
sum adjudged to be so due in the Judgment Currency, the
Issuing Lender may in accordance with normal banking
procedures purchase the Agreement Currency with the
Judgment Currency. If the amount of the Agreement Currency
so purchased is less than the sum originally due to the
Issuing Lender in the Agreement Currency, the Company
agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Administrative Agent, the
Issuing Lender or the Lender to whom such obligation was
owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally
due to the Issuing Lender in such currency, the Issuing
Lender agrees to return the amount of any excess to the
Company (or to any other Person who may be entitled thereto
under applicable law).
(g) For purposes of this Section, "Overnight Rate"
means, for any day, the rate of interest per annum at which
overnight deposits in the applicable currency, in an amount
approximately equal to the amount with respect to which
such rate is being determined, would be offered for such
day by the London Branch of BofA to major banks in the
London or other applicable offshore interbank market. The
Overnight Rate for any day which is not a Business Day (or
on which dealings are not carried on in the
57
applicable offshore interbank market) shall be the
Overnight Rate for the immediately preceding Business Day.
3.11 Prior Letters of Credit. The Company, the Issuing
Lender, the Lenders and the Administrative Agent agree that, on
the Closing Date, the letters of credit issued by BofA and listed
on Schedule 3.11 shall be deemed to be, and constitute, Letters
of Credit Issued by the Issuing Lender hereunder. Without
limiting the generality of the foregoing, each Revolving Lender
shall be deemed to have purchased from the Issuing Lender a
participation in such Letters of Credit on the Closing Date
pursuant to subsection 3.3(a). BofA represents to the Lenders
that all participations in such Letters of Credit under the Prior
Financing Agreements will be terminated on the Closing Date. The
letter of credit fees payable under subsection 3.8(a) and the
fronting fees payable under subsection 3.8(b) with respect to
such Letters of Credit shall accrue from the Closing Date. The
Company shall be deemed to have satisfied the condition precedent
to issuance of such Letters of Credit set forth in subsection
5.3(a) by virtue of its agreements set forth in this Section
3.11.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes. (a) Any and all payments by the Company to each
Lender or the Administrative Agent under this Agreement and any
other Loan Document shall be made free and clear of, and without
deduction or withholding for, any Taxes. In addition, the Company
shall pay all Other Taxes.
(b) Subject to subsection 4.1(g), the Company agrees
to indemnify and hold harmless each Lender and the Administrative
Agent for the full amount of Taxes, Other Taxes and Further Taxes
paid by such Lender in the amount necessary to preserve the
after-tax yield such Lender would have received if such Taxes,
Other Taxes or Further Taxes had not been imposed, and any
liability (including penalties, interest, additions to tax and
reasonable out-of-pocket expenses) arising therefrom or with
respect thereto, whether or not such Taxes, Other Taxes or
Further Taxes were correctly or legally asserted; provided,
however, that the Company shall not have to indemnify any Lender
or the Administrative Agent for Taxes, Other Taxes, Further
Taxes, penalties, additions to tax or expenses arising as a
result of the gross negligence or willful misconduct of such
Person. Payment under this subsection 4.1(b) shall be made within
30 days from the date such Lender or the Administrative Agent
makes written demand therefor.
(c) If the Company shall be required by law to deduct
or withhold any Taxes, Other Taxes or Further Taxes from or in
respect of any sum payable hereunder to any Lender or the
Administrative Agent, then:
(i) the sum payable shall be increased as necessary so
that, after making all required deductions and withholdings
(including deductions and withholdings applicable to
additional sums payable under this Section), such Lender or
the Administrative Agent, as the case may be, receives and
retains an amount equal to the sum it would have received
and retained had no such deductions or withholdings been
made;
58
(ii) the Company shall make such deductions and withholdings; and
(iii) the Company shall pay the full amount deducted
or withheld to the relevant taxing authority or other
authority in accordance with applicable law.
(d) Within 10 days after the date the Company receives
any receipt for the payment of Taxes, Other Taxes or Further
Taxes, the Company shall furnish to the Administrative Agent the
original or a certified copy of such receipt evidencing payment
thereof, or other evidence of payment satisfactory to the
Administrative Agent and the Administrative Agent will promptly
provide a copy thereof to all interested Lenders.
(e) If the Company is required to pay additional
amounts to any Lender or the Administrative Agent pursuant to
subsection (b) of this Section or Section 4.3, then such Lender
shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its
Lending Office so as to reduce or eliminate any such additional
payment by the Company which may thereafter accrue, if such
change in the sole judgment of such Lender is not otherwise
disadvantageous to such Lender.
(f) If any Lender or the Administrative Agent receives
a refund in respect of any Taxes, Other Taxes or Further Taxes as
to which it has been indemnified by the Company pursuant to this
Section 4.1, it shall repay such refund (to the extent of amounts
that have been paid by the Company under this Section 4.1 with
respect to such refund and not previously reimbursed) to the
Company, net of all out-of-pocket expenses of such Lender or the
Administrative Agent and without any interest.
(g) The Company shall not be required to pay
additional amounts to the Administrative Agent or any Lender
pursuant to this Section 4.1 to the extent that the obligation to
pay such additional amounts would not have arisen but for a
failure by the Administrative Agent or such Lender to comply with
Section 10.10.
4.2 Illegality. (a) After the date hereof, if any Lender
determines that the introduction of any Requirement of Law, or
any change in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful,
or that any central bank or other Governmental Authority has
asserted that it is unlawful, for such Lender or its applicable
Lending Office to make Offshore Rate Loans, then, on notice
thereof by the Lender to the Company through the Administrative
Agent, any obligation of such Lender to make Offshore Rate Loans
shall be suspended until such Lender notifies the Administrative
Agent and the Company that the circumstances giving rise to such
determination no longer exist.
(b) After the date hereof, if a Lender determines that
it is unlawful to maintain any Offshore Rate Loan, the Company
shall, upon its receipt of notice of such fact and demand from
such Lender (with a copy to the Administrative Agent), prepay in
full such Offshore Rate Loan, together with interest accrued
thereon and any amount required under Section 4.4, either on the
last day of the Interest Period thereof, if such Lender may
lawfully continue to maintain such Offshore Rate Loan to such
day, or on such earlier date on which such Lender may no longer
lawfully continue to maintain such Offshore Rate Loan (as
determined by such Lender).
59
If the Company is required to so prepay any Offshore Rate Loan,
then concurrently with such prepayment, the Company shall borrow
from the affected Lender, in the amount of such repayment, a Base
Rate Loan.
(c) If the obligation of any Lender to make or
maintain Offshore Rate Loans has been terminated or suspended
pursuant to subsection (a) or (b) above, all Loans which would
otherwise be made by such Lender as Offshore Rate Loans shall be
instead Base Rate Loans.
(d) Before giving any notice to the Administrative
Agent or demand upon the Company under this Section, the affected
Lender shall designate a different Lending Office with respect to
its Offshore Rate Loans if such designation will avoid the need
for giving such notice or making such demand and will not, in the
sole judgment of such Lender, be illegal or otherwise
disadvantageous to such Lender.
4.3 Increased Costs and Reduction of Return. (a) After the
date hereof, if any Lender determines that, due to either (i) the
introduction of or any change (other than any change by way of
imposition of or increase in reserve requirements included in the
calculation of the Offshore Rate) in or in the interpretation of
any law or regulation or (ii) compliance by such Lender with any
guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall
be any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining any Offshore Rate Loan or
participating in Letters of Credit or, in the case of the Issuing
Lender, any increase in the cost to the Issuing Lender of
agreeing to issue, issuing or maintaining any Letter of Credit or
of agreeing to make or making, funding or maintaining any unpaid
drawing under any Letter of Credit, then the Company shall be
liable for, and shall from time to time, upon demand (with a copy
of such demand to be sent to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender,
additional amounts as are sufficient to compensate such Lender
for such increased costs.
(b) After the date hereof, if any Lender shall have
determined that (i) the introduction of any Capital Adequacy
Regulation, (ii) any change in any Capital Adequacy Regulation,
(iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or
administration thereof or (iv) compliance by such Lender (or its
Lending Office) or any corporation controlling such Lender with
any Capital Adequacy Regulation, affects or would affect the
amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and (taking
into consideration such Lender's or such corporation's policies
with respect to capital adequacy and such Lender's desired return
on capital) determines that the amount of such capital is
increased as a consequence of any of its Commitments, Loans,
credits or obligations under this Agreement, then, upon demand of
such Lender to the Company through the Administrative Agent, the
Company shall pay to such Lender, from time to time as specified
by such Lender, additional amounts sufficient to compensate such
Lender for such increase.
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(c) This Section 4.3 shall not require the Company to
reimburse the Administrative Agent or any Lender for any Taxes
which are otherwise covered by the indemnity set forth in Section
4.1 or any Excluded Taxes.
4.4 Funding Losses. The Company shall reimburse each Lender
and hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of:
(a) the failure of the Company to make on a timely basis
any payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or
convert a Loan after the Company has given (or is deemed to have
given) a Notice of Borrowing or a Notice of
Conversion/Continuation;
(c) the failure of the Company to make any prepayment in
accordance with any notice delivered under Section 2.7;
(d) the prepayment (including pursuant to Section 2.8)
or other payment (including after acceleration thereof) of an
Offshore Rate Loan on a day that is not the last day of the
relevant Interest Period; or
(e) the automatic conversion under subsection 2.4(a)
of any Offshore Rate Loan to a Base Rate Loan on a day that is
not the last day of the relevant Interest Period; including any
such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or
from fees payable to terminate the deposits from which such funds
were obtained. For purposes of calculating amounts payable by the
Company to the Lenders under this Section and under subsection
4.3(a), each Offshore Rate Loan made by a Lender (and each
related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the IBOR used in
determining the Offshore Rate for such Offshore Rate Loan by a
matching deposit or other borrowing in the interbank eurodollar
market for a comparable amount and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded.
4.5 Inability to Determine Rates. If the Administrative
Agent determines that for any reason adequate and reasonable
means do not exist for determining the Offshore Rate for any
requested Interest Period with respect to a proposed Offshore
Rate Loan, or the Required Lenders determine (and notify the
Administrative Agent) that the Offshore Rate applicable pursuant
to subsection 2.10(a) for any requested Interest Period with
respect to a proposed Offshore Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such Loan, the
Administrative Agent will promptly so notify the Company and each
Lender. Thereafter, the obligation of the Lenders to make or
maintain Offshore Rate Loans hereunder shall be suspended until
the Administrative Agent, with the consent of the Required
Lenders, revokes such notice in writing. Upon receipt of such
notice, the Company may revoke any Notice of Borrowing or Notice
of Conversion/Continuation then submitted by it. If the Company
does not revoke such Notice, the Lenders shall make, convert or
continue the Loans, as proposed by the Company, in
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the amount specified in the applicable notice submitted by the
Company, but such Loans shall be made, converted or continued as
Base Rate Loans instead of Offshore Rate Loans.
4.6 Certificates of Lenders. Any Lender claiming
reimbursement or compensation under this Article IV shall deliver
to the Company (with a copy to the Administrative Agent) a
certificate setting forth in reasonable detail the basis for such
claim and a calculation of the amount payable to such Lender and
such certificate shall be conclusive and binding on the Company
in the absence of manifest error.
4.7 Substitution of Lenders. In the event the Company
becomes obligated to pay additional amounts to any Lender
pursuant to Section 4.3, the Company may designate another Lender
(with such other Lender's consent) which is acceptable to the
Administrative Agent, the Issuing Lender and the Swingline Lender
in their sole discretion (such other Lender being herein called a
"Replacement Lender") to purchase the Loans of such Lender and
such Lender's rights hereunder, without recourse to or warranty
by, or expense to, such Lender for a purchase price equal to the
outstanding principal amount of the Loans payable to such Lender
plus any accrued but unpaid interest on such Loans and accrued
but unpaid commitment fees in respect of such Lender's
Commitments and any other amounts payable to such Lender under
this Agreement, and to assume all the obligations of such Lender
hereunder, and, upon such purchase, such Lender shall no longer
be a party hereto or have any rights hereunder (other than
indemnities and other similar rights applicable to such Lender
prior to the date of such assignment and assumption) and shall be
relieved from all obligations to the Company hereunder, and the
Replacement Lender shall succeed to the rights and obligations of
such Lender hereunder; without limiting the generality of the
foregoing, the Replacement Lender or the Company shall bear the
processing fee referred to in subsection 11.8(a) in any such
substitution.
4.8 Survival. The agreements and obligations of the Company
in this Article IV shall survive the payment of all other
Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions of Initial Credit Extensions. The obligation
of each Lender to make its initial Credit Extension is subject to
the conditions (in addition to the conditions set forth in
Sections 5.2 and 5.3) that (i) the Company shall have submitted
evidence reasonably satisfactory to the Administrative Agent that
all Debt to be Repaid has been (or concurrently with the initial
Borrowing will be) paid in full, that all agreements and
instruments governing the Debt to be Repaid (including (A) the
Senior Subordinated Guaranteed PIK Notes due 2002 of the Company,
guaranteed by Parent, issued pursuant to the Indenture, dated as
of September 1, 1996, among the Company, Parent and Bankers Trust
Company, (B) the Amended and Restated Revolving Loan and Security
Agreement, dated as of June 15, 1995, among the Company, various
lenders and BankAmerica Business Credit, Inc., as agent, as
amended, and (C) the Term Loan and Security Agreement dated as of
June 15, 1995 among the Company, various lenders, and General
Electric Capital Corporation, as agent, as amended (collectively
the "Prior Financing Agreements")) and that all Liens securing
such Debt to be Repaid have been (or concurrently with the
initial
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Borrowing will be) terminated and (ii) the Administrative Agent
shall have received all of the following, in form and substance
satisfactory to each Agent and each Lender, and (except for the
Notes) in sufficient copies for the Administrative Agent and each
Lender:
(a) Credit Agreement and Notes. This Agreement and the Notes
executed by each party thereto.
(b) Resolutions and Incumbency.
(i) Copies of resolutions of the board of directors of
the Company, Parent and Xxxx Mac authorizing the transactions
contemplated hereby, certified as of the Closing Date by the
Secretary or an Assistant Secretary of such Person; and
(ii) A certificate of the Secretary or an Assistant
Secretary of the Company, Parent and Xxxx Mac certifying the
names and true signatures of the officers of such Person
authorized to execute, deliver and perform this Agreement and all
other Loan Documents to be delivered by it hereunder.
(c) Organization Documents; Good Standing. Each of the following
documents:
(i) for the Company, Parent and Xxxx Mac, the articles
or certificate of incorporation and the bylaws of each such
Person, as the case may be, as in effect on the Closing Date,
certified by the Secretary or Treasurer of such Person, as of the
Closing Date; and
(ii) a good standing certificate for the Company,
Parent and Xxxx Mac from the Secretary of State (or similar
applicable Governmental Authority) of the jurisdiction of its
organization.
(d) DMFC Recapitalization. (i) Copies of each of the DMFC
Recapitalization Documents fully executed by the parties thereto
and of all material instruments, agreements and other documents
required to be delivered or furnished thereunder or in connection
therewith (including, in the case of opinions of counsel, if any,
reliance letters expressly permitting the Administrative Agent
and the Lenders to rely thereon as if such opinions had been
addressed thereto) and, except as expressly permitted by the
Administrative Agent and the Lenders, none of the material terms
of the DMFC Recapitalization (including any condition precedent
to Parent's performance thereof or obligation to consummate the
DMFC Recapitalization) shall have been amended, waived or
otherwise modified in any material respect.
(ii) Evidence that, after giving effect to the Loans
and other Credit Extensions to be made hereunder on the Closing
Date and the application thereof by the Company, the
DMFC Recapitalization has been or will be duly consummated in
accordance with the DMFC Recapitalization Documents without
amendment, waiver or other modification thereof unless the
Administrative Agent and the Lenders shall have expressly
consented thereto in writing.
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(e) Legal Opinions.
(i) An opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx,
special counsel to the Company, Parent and Xxxx Mac,
substantially in the form of Exhibit 1-1, and
(ii) An opinion of Xxxxxxx X. Xxxxxxx, General Counsel to the
Company, Parent and Xxxx Mac, substantially in the form of Exhibit 1-2,
(iii) opinions of local counsel to the Company, Xxxx
Mac and/or Parent in California and Maryland, substantially
in the forms of Exhibits X-x and J-2 hereto, and
(iv) An opinion of local counsel to the Administrative
Agent in the State of Washington, substantially in the form
of Exhibit J-3 hereto.
(f) Payment of Fees. Evidence of payment by the
Company of all accrued and unpaid fees, costs and expenses to the
extent then due and payable on the Closing Date, together with
Attorney Costs of the Administrative Agent, the Documentation
Agent and the Arranger to the extent invoiced at least three
Business Days prior to the Closing Date, plus such additional
amounts of Attorney Costs as shall constitute such Agents'
reasonable estimate of Attorney Costs incurred or to be incurred
by them or the Arranger through the closing proceedings (provided
that such estimate shall not thereafter preclude final settling
of accounts between the Company and such Agents), including any
such costs, fees and expenses arising under or referenced in
Section 2.11 or 11.4.
(g) Security Agreements, etc. (1) A security
agreement, substantially in the form of Exhibit E-l (the
"Security Agreement (Company and Parent)"), executed by the
Company and Parent, together with evidence, satisfactory to the
Administrative Agent that all filings and recordings necessary to
perfect the Lien granted to the Administrative Agent (for the
benefit of itself and the Lenders) on any Collateral granted
under such Security Agreement have been duly made and are in full
force and effect; (2) a Trademark Security Agreement, issued by
the Company; (3) a Patent Security Agreement, issued by the
Company; and (4) a Copyright Security Agreement, issued by the
Company.
(h) Parent Guaranty. The Parent Guaranty executed by Parent.
(i) Pledge Agreements. A pledge agreement,
substantially in the form of Exhibit G-l, issued by the Parent
(the "Parent Pledge Agreement") with respect to its pledge of
100% of the stock of the Company and all intercompany
Indebtedness owing to Parent; a pledge agreement, substantially
in the form of Exhibit G-2, issued by the Company (the "Company
Pledge Agreement") with respect to its pledge of 100% of the
stock of each Subsidiary owned by it and all intercompany
Indebtedness owing to the Company; a pledge agreement,
substantially in the form of Exhibit G-3, issued by Xxxx Mac (the
"Subsidiary Pledge Agreement"), with respect to its pledge of all
intercompany Indebtedness owing to such Subsidiary; in each case
together with the stock certificates (if any) to be pledged
thereunder and undated stock powers, or other instruments of
transfer in form and substance satisfactory to the Administrative
Agent, duly
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executed in blank and all intercompany notes (if any) to be
pledged thereunder, duly endorsed to the order of the
Administrative Agent.
(j) Real Property. With respect to each parcel of real
property owned or leased by the Company or any Subsidiary and
listed on Schedule 5.1(1), a duly executed Mortgage providing for
a fully perfected Lien, in favor of the Administrative Agent for
the benefit of the Agents and the Lenders, in all right, title
and interest of the Company and each Subsidiary to the real
property subject to such Mortgage, superior in right to any Lien
(other than Permitted Liens), existing or future, which the
Company or any Subsidiary or any creditors thereof or purchasers
therefrom, or any other Person, may have against such real
property, together with:
(A) an ALTA (or other form acceptable to the
Administrative Agent) mortgagee policy of title insurance
or a binder issued by a title insurance company
satisfactory to the Administrative Agent insuring (or
undertaking to insure, in the case of a binder) that the
Mortgage creates and constitutes a valid first mortgage
Lien against such real property in favor of the
Administrative Agent, subject only to exceptions acceptable
to the Administrative Agent, with such endorsements and
affirmative insurance as the Administrative Agent or the
Required Lenders may reasonably request;
(B) copies of all documents of record concerning such
parcel as shown on the commitment for the ALTA Loan Title
Insurance Policy referred to above; and
(C) original or certified copies of all insurance
policies required to be maintained with respect to such
real property by this Agreement, any Mortgage or any other
Loan Document.
(k) Intellectual Property License. The Intellectual
Property License executed by the Company.
(1) Certificate. A certificate signed by a Responsible Officer,
dated as of the Closing Date, stating that:
(i) the representations and warranties contained in
Article VI are true and correct in all material respects on
and as of such date, as though made on and as of such date;
(ii) no Event of Default or Unmatured Event of Default
exists or will result from the initial Credit Extension; and
(iii) no event or circumstance has occurred since
December 31, 1996 that has resulted, or would reasonably be
expected to result, in a Material Adverse Effect.
(m) Other Documents. A copy, certified as true and
correct by the Secretary or the Treasurer of the Company, of each
of (a) the Subordinated Indenture, (b) the Subordinated Note
Purchase Agreement, (c) the registration rights agreement
executed by the Company in
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connection with the issuance of the Subordinated Notes, (d) the
Intercreditor Agreement, (e) the Tax Sharing Agreement and (f)
the TPG Agreements.
(n) Solvency Certificates. A Solvency Certificate,
substantially in the form of Exhibit H-l, executed by the chief
financial officer of the Company and a Solvency Certificate,
substantially in the form of Exhibit H-2, executed by the chief
financial officer of Parent.
(o) Borrowing Base Certificate. A Borrowing Base
Certificate dated as of March 31, 1997, appropriately completed.
(p) Environmental Indemnities. An Environmental
Indemnity from the Company with respect to all Mortgages in
California, Minnesota, New Jersey and Washington.
(q) Other Documents. Such other approvals, opinions, documents or
materials as any Agent or any Lender may reasonably request.
5.2 Other Conditions to Initial Credit Extension. The
obligation of each Lender to make its initial Credit Extension
is, in addition to the conditions precedent specified in Sections
5.1 and 5.3, subject to the following conditions precedent:
(a) Subordinated Notes. The Company shall have issued
the Subordinated Notes on terms and conditions satisfactory to
the Administrative Agent for gross proceeds of not less than
$146,850,000.
(b) Capitalization of TPG Acquisition. The
Administrative Agent shall have received evidence that TPG
Acquisition has received a $161,000,000 cash equity investment
from TPG Partners and others on terms and conditions satisfactory
to the Administrative Agent. Without limiting the generality of
the foregoing, not more than $35,000,000 of such cash equity
investment shall be in the form of TPG Acquisition Preferred
Stock and each share of such TPG Acquisition Preferred Stock
shall have been issued for not less than the liquidation
preference thereof.
5.3 Conditions to All Credit Extensions. The obligation of
each Lender to make any Loan to be made by it and the obligation
of the Issuing Lender to Issue any Letter of Credit is subject to
the satisfaction of the following conditions precedent on the
relevant Borrowing Date or Issuance Date:
(a) Notice, Application. In the case of any Loan, the
Administrative Agent shall have received a Notice of Borrowing
and, in the case of any Issuance of any Letter of Credit, the
Issuing Lender and the Administrative Agent shall have received
an L/C Application or L/C Amendment Application, as required
under Section 3.2.
(b) Continuation of Representations and Warranties.
The representations and warranties in Article VI shall be true
and correct in all material respects on and as of such Borrowing
Date or Issuance Date with the same effect as if made on and as
of such Borrowing
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Date or Issuance Date (except to the extent such representations
and warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date)
(c) No Existing Default. No Event of Default or
Unmatured Event of Default shall exist or shall result from such
Borrowing or Issuance.
Each Notice of Borrowing and L/C Application or L/C
Amendment Application submitted by the Company hereunder shall
constitute a representation and warranty by the Company
hereunder, as of the date of such notice and as of the applicable
Borrowing Date or Issuance Date, that the conditions in this
Section 5.3 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each Agent and each
Lender that:
6.1 Corporate Existence and Power. Parent, the Company and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental
licenses, authorizations, consents and approvals (i) to own its
assets and to carry on its business and (ii) to execute, deliver
and perform its obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation and is
licensed and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the
conduct of its business requires such qualification or license;
and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in clause (b) (i), (c) or (d),
to the extent that the failure to do so would not reasonably be
expected to have a Material Adverse Effect.
6.2 Corporate Authorization; No Contravention. The
execution and delivery by the Company of this Agreement and each
other Loan Document to which it is a party, the Borrowings
hereunder, the execution and delivery by Parent and each
Subsidiary of each Loan Document to which it is a party and the
performance by each of the Company, Parent and each Subsidiary of
its obligations under each Loan Document to which it is a party
(i) are within the corporate powers of the Company, Parent and
each Subsidiary, as applicable, (ii) have been duly authorized by
all necessary corporate action on the part of the Company, Parent
and each Subsidiary (including any necessary shareholder action)
and (iii) do not and will not:
(a) contravene the terms of any of the Organization Documents
of the Company, Parent or any Subsidiary;
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(b) conflict with or result in a breach or
contravention of, or the creation of any Lien (other than Liens
in favor of the Administrative Agent) under, any document
evidencing any Contractual Obligation to which the Company,
Parent or any Subsidiary is a party or any order, injunction,
writ or decree of any Governmental Authority to which the
Company, Parent, any Subsidiary or any of their properties are
subject; or
(c) violate any Requirement of Law.
6.3 Governmental Authorization. No approval, consent,
exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority is necessary or required
in connection with the execution, delivery or performance by, or
enforcement against, (i) the Company of this Agreement or any
other Loan Document to which it is a party or (ii) Parent or any
Subsidiary with respect to each Loan Document to which it is a
party, except, in each case, for filings required to perfect
Liens in favor of the Administrative Agent granted under the Loan
Documents.
6.4 Binding Effect. This Agreement and each other Loan
Document to which the Company is a party constitutes the legal,
valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating
to enforceability; and with respect to Parent and each
Subsidiary, each Loan Document to which such Person is a party
constitutes the legal, valid and binding obligation of such
Person, enforceable against such Person in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally and by equitable principles
relating to enforceability.
6.5 Litigation. Except as specifically disclosed in
Schedule 6.5, there are no actions, suits, proceedings, claims or
disputes pending or, to the best knowledge of the Company,
threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, against Parent, the Company or
any Subsidiary or any of their respective properties which: (a)
purport to affect or pertain to this Agreement or any other Loan
Document, or any of the transactions contemplated hereby or
thereby; or (b) would reasonably be expected to have a Material
Adverse Effect. No injunction, writ, temporary restraining order
or other order of any nature has been issued by any court or
other Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Agreement or any other
Loan Document, or directing that the transactions provided for
herein or therein not be consummated as herein or therein
provided.
6.6 No Default. No Event of Default or Unmatured Event of
Default exists or would result from the incurring of any
Obligations by the Company. As of the Closing Date, neither the
Company nor any Subsidiary is in default under or with respect to
any Contractual Obligation in any respect which, individually or
together with all such defaults, would reasonably be expected to
have a Material Adverse Effect, or that would, if such default
had occurred after the Closing Date, create an Event of Default
under subsection 9.1(e).
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6.7 ERISA Compliance.
(a) Each Plan is in compliance in all material
respects with the applicable provisions of ERISA, the Code and
other federal or state law. To the best knowledge of the Company,
nothing has occurred which would cause any Plan which is intended
to qualify under Section 401 (a) of the Code to fail to be so
qualified. The Company and each ERISA Affiliate has made all
required contributions to any Plan subject to Section 412 of the
Code, and no application for a funding waiver or an extension of
any amortization period pursuant to Section 412 of the Code has
been made within the last five years with respect to any Plan.
(b) There are no pending or, to the best knowledge of
the Company, threatened claims, actions or lawsuits, or actions
by any Governmental Authority, with respect to
any Plan which has resulted or would reasonably be expected to
result in a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules
with respect to any Plan which has resulted or would reasonably
be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur that would reasonably be expected to have a
Material Adverse Effect; (ii) no contribution failure has
occurred with respect to a Pension Plan sufficient to give rise
to a Lien under Section 302(f) of ERISA; and (iii) neither the
Company nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability to the PBGC under Title IV of
ERISA with respect to any Pension Plan.
6.8 Use of Proceeds; Margin Regulations. The proceeds of
the Loans are to be used solely for the purposes set forth in and
permitted by Sections 7.13 and 8.7. Neither the Company nor any
Subsidiary is generally engaged in the business of purchasing or
selling Margin Stock or extending credit for the purpose of
purchasing or carrying Margin Stock.
6.9 Title to Properties. Each of the Company and each
Subsidiary has good record and marketable title in fee simple to,
or a valid leasehold interest in, all real property necessary or
used in the ordinary conduct of its businesses, except for such
defects in title as would not, individually or in the aggregate,
have a Material Adverse Effect. Each of the Company and each
Subsidiary has good title to all their other respective material
properties and assets (except for those assets disposed of not in
violation of this Agreement and the other Loan Documents and
except for encumbrances and title defects that would not be
reasonably likely to have a Material Adverse Effect). As of the
Closing Date, the property of the Company and its Subsidiaries is
subject to no Liens, other than Permitted Liens.
6.10 Taxes. Parent, the Company and its Subsidiaries have
filed all Federal and State income tax returns and all other
material tax returns and reports required to be filed, and have
paid all Federal and State income taxes and all other material
taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise
due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves
have been provided in accordance with GAAP. There is no proposed
tax assessment against Parent, the Company or any Subsidiary that
would,
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if made, have a Material Adverse Effect. The Tax Sharing
Agreement is the only agreement among Parent, the Company and its
Subsidiaries regarding tax sharing, tax reimbursement or tax
indemnification.
6.11 Financial Condition. (a) The audited consolidated
financial statements of Parent dated June 30, 1994, June 30, 1995
and June 30, 1996, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for the
fiscal periods ended on such dates:
(i) were prepared in accordance with GAAP consistently
applied throughout the periods covered thereby, except as
otherwise expressly noted therein;
(ii) present fairly the financial condition of Parent
and its Subsidiaries as of the dates thereof and results of
operations for the periods covered thereby; and
(iii) except as specifically disclosed in Schedule
6.11, show all material indebtedness and other liabilities,
direct or contingent, of Parent and its Subsidiaries as of
the date thereof, including liabilities for taxes, material
commitments and Contingent Obligations.
(b) The Company has furnished to each Agent and each
Lender an estimated consolidated pro forma balance sheet of
Parent and its Subsidiaries as of March 31, 1997 (giving effect
to the Merger, the refinancing of the Debt to be Repaid, the
incurrence of the Obligations and the Subordinated Notes and the
consummation of all other transactions contemplated to occur on
the Closing Date, assuming all such transactions had occurred on
March 31, 1997), prepared by the Company and certified as true
and correct in all material respects by the Chief Financial
Officer of the Company.
(c) The Company has furnished to each Agent and each
Lender financial projections dated the Closing Date and covering
the period from March 31, 1997 to June 30, 2006. Such projections
were prepared by the Company and its Subsidiaries in good faith
on the basis of information and assumptions that the Company and
its senior management believed to be reasonable as of the date of
such projections and such assumptions are reasonable as of the
Closing Date (it being understood that projections are subject to
significant uncertainties and contingencies, many of which are
beyond the Company's control, and that no assurance can be given
that the projections will be realized).
(d) Since December 31, 1996 there has been no Material Adverse
Effect.
6.12 Regulated Entities. None of Parent, the Company or any
Subsidiary is an "investment company" within the meaning of the
Investment Company Act of 1940. None of Parent, the Company or
any Subsidiary is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any
other Federal or state statute or regulation limiting its ability
to incur Indebtedness.
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6.13 No Burdensome Restrictions. None of Parent, the
Company nor any Subsidiary is a party to or bound by any
Contractual Obligation or subject to any restriction in any
Organization Document or any Requirement of Law which would
reasonably be expected to have a Material Adverse Effect.
6.14 Copyrights, Patents, Trademarks and Licenses, etc. The
Company and its Subsidiaries own or are licensed or otherwise
have the right to use all of the patents, trademarks, service
marks, trade names, copyrights, trade secrets and other similar
rights ("Intellectual Property") that are necessary for the
operation of their respective businesses, without conflict with
the rights of any other Person except for Intellectual Property
the failure of which to own or be licensed or otherwise have the
right to use, individually or in the aggregate, would not be
reasonably likely to have a Material Adverse Effect. All of such
Intellectual Property is subsisting, valid and enforceable,
except to the extent that the failure to be subsisting, valid and
enforceable would not be reasonably expected to have a Material
Adverse Effect. Except to the extent set forth on Schedule 6.14,
there is no individual item of Intellectual Property the loss of
which would reasonably be expected to have a Material Adverse
Effect. To the best knowledge of the Company, no slogan or other
advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed,
by the Company or any Subsidiary infringes upon any rights held
by any other Person except for any infringement which,
individually or in the aggregate, would not reasonably likely to
have a Material Adverse Effect. Except as specifically disclosed
on Schedule 6.5, no claim or litigation regarding any of the
foregoing is pending or threatened against the Company or any
Subsidiary, and no patent, invention, device, application,
principle or any statute, law, rule, regulation, standard or
code, relating in each case to Intellectual Property, is, to the
knowledge of the Company, pending or proposed, which, in either
case, would reasonably be expected to have a Material Adverse
Effect.
6.15 Subsidiaries. As of the Closing Date, the Company has
no Subsidiaries other than those specifically disclosed in part
(a) of Schedule 6.15 hereto and has no equity investments in any
other corporation or entity other than those specifically
disclosed in part (b) of Schedule 6.15. As of the Closing Date,
the Company has no Material Subsidiaries.
6.16 Insurance. Except as specifically disclosed in
Schedule 6.16, the properties of the Company and its Subsidiaries
are insured with financially sound and reputable insurance
companies not Affiliates of the Company, in such amounts, with
such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning
similar properties in localities where the Company or such
Subsidiary operates.
6.17 Solvency, etc. On the Closing Date (or, in the case of
any Person that becomes a party to any Loan Document after the
Closing Date, on the date such Person becomes such a party), and
immediately prior to and after giving effect to the Issuance of
each Letter of Credit and each Borrowing hereunder and the use of
the proceeds thereof, (a) each of the Company, Parent and each
Material Subsidiary will not have an unreasonably small capital,
(b) each of the Company's, Parent's and each Material
Subsidiary's assets will exceed its liabilities, (c) each of the
Company, Parent and each Material Subsidiary will be
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solvent, will be able to pay its liabilities as they mature and
(d) both the fair value and fair saleable value of the assets of
the Company, Parent and each Material Subsidiary exceeds the
liabilities, respectively, of each of the Company, Parent and
each Material Subsidiary.
6.18 Merger, Subordinated Notes, etc.
(a) As of the consummation thereof, the Merger has
been consummated in accordance with the terms of the Merger
Agreement, without waiver of any of the conditions thereof.
(b) As of the consummation thereof, the Merger and
the issuance and sale of the Subordinated Notes complied with all
Requirements of Law (including the Securities Act of 1933), and
all necessary governmental, regulatory, shareholder and other
consents and approvals required for the consummation of the
Merger and the issuance and sale of the Subordinated Notes were,
prior to the consummation thereof, duly obtained and in full
force and effect. All applicable waiting periods with respect to
the Merger and the issuance and sale of the Subordinated Notes
have expired without any action being taken by any competent
Governmental Authority which restrains, prevents or imposes
material adverse conditions upon the consummation of any such
transaction.
(c) The execution and delivery of the Merger
Agreement and the issuance and sale of the Subordinated Notes did
not, and the consummation of the Merger will not, violate any
Requirement of Law, or result in a breach of, or constitute a
default under, any Contractual Obligation affecting the Company
or any of its Subsidiaries which, individually or in the
aggregate, is reasonably likely to have a Material Adverse
Effect.
(d) There does not exist any judgment, order or
injunction prohibiting or imposing material adverse conditions
upon the consummation of the Merger and the issuance and sale of
the Subordinated Notes.
(e) All of the representations and warranties of the
Company contained in the Merger Agreement are true and correct in
all material respects as of the date hereof.
(f) All of the representations and warranties of the
Company set forth in the Subordinated Note Purchase Agreement are
true and correct in all material respects as of the date hereof.
6.19 Real Property. Set forth on Schedule 6.19 is a
complete and accurate list, as of the date of this Agreement, of
the address and legal description of any real property owned by
the Company or any Subsidiary.
6.20 Swap Obligations. Neither the Company nor any of
its Subsidiaries has incurred any outstanding obligations under
any Swap Contracts, other than Permitted Swap Obligations. The
Company has undertaken its own independent assessment of its
consolidated assets, liabilities and commitments and has
considered appropriate means of mitigating and managing
72
risks associated with such matters and has not relied on any swap
counterparty or any Affiliate of any swap counterparty in
determining whether to enter into any Swap Contract.
6.21 Senior Indebtedness. The Company's obligation to pay
the Obligations, including interest thereon and all fees, costs,
expenses and indemnities related thereto, constitutes "Designated
Senior Debt" of the Company as such term is defined in the
Subordinated Indenture. Parent's obligation to pay its Guaranty
Obligations under the Parent Guaranty constitutes "Guarantor
Senior Debt" of Parent as such term is defined in the
Subordinated Indenture. The Company acknowledges that the Lenders
and the Administrative Agent have entered into this Agreement,
and have extended Commitments, in reliance upon the subordination
provisions in the Subordinated Notes and the Subordinated
Indenture. If any Qualified Notes are outstanding, the foregoing
representation and warranty shall be deemed made with respect to
Qualified Notes and the related Qualified Indenture to the same
extent made with respect to Subordinated Notes and the
Subordinated Indenture.
6.22 Environmental Warranties. Except as set forth in Schedule 6.22:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Company or any of its
Subsidiaries are in compliance with all Environmental Laws,
except for such non-compliance as would not reasonably be
expected to result in a Material Adverse Effect;
(b) there are no pending or threatened Environmental
Claims, except for such Environmental Claims that are not
reasonably likely, either singly or in the aggregate, to result
in a Material Adverse Effect;
(c) there have been no Releases of Hazardous Materials
at, on or under any property now or, to the best of the Company's
knowledge, previously owned or leased by the Company or any of
its Subsidiaries that, singly or in the aggregate, have, or may
reasonably be expected to have, a Material Adverse Effect;
(d) the Company and its Subsidiaries have been issued
and are in compliance with all permits, certificates, approvals,
licenses and other authorizations relating to environmental
matters and necessary or desirable for their businesses, except
to the extent that the failure to have or comply with such
permits, certificates, approvals, licenses and other
authorizations relating to environmental matters would not be
reasonably likely to have a Material Adverse Effect;
(e) no property now or, to the best of the Company's
knowledge, previously owned or leased by the Company or any of
its Subsidiaries is listed or proposed for listing (with respect
to owned property only) on the National Priorities List pursuant
to CERCLA, or, to the best of the Company's knowledge, is on the
CERCLIS or on any similar state list of sites requiring
investigation or clean-up, except, in each case, for any such
listing that, singly or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect; and
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(f) to the best of the Company's knowledge, neither the
Company nor any Subsidiary of the Company has directly
transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or proposed
for listing on the National Priorities List pursuant to CERCLA,
or which is the subject of Federal, state or local enforcement
actions or other investigations which may lead to Environmental
Claims against the Company or such Subsidiary except, in each
case, to the extent that the foregoing would not reasonably be
expected to have a Material Adverse Effect.
6.23 Full Disclosure. None of the representations or
warranties made by Parent, the Company or any Subsidiary in the
Loan Documents as of the date such representations and warranties
are made or deemed made and none of the written statements
contained in any exhibit, report, statement or certificate
furnished by or on behalf of Parent, the Company or any
Subsidiary in connection with the Loan Documents, considering
each of the foregoing and in the context in which it was made and
together with all other representations, warranties and written
statements theretofore furnished by Parent, the Company and its
Subsidiaries to the Administrative Agent and the Lenders in
connection with the Loan Documents, contains any untrue statement
of a material fact or omits any material fact required to be
stated therein or necessary to make such representation, warranty
or written statement, in light of the circumstances under which
it is made, not misleading as of the time when made or delivered;
provided that the Company's representation and warranty as to any
forecast, projection or other statement regarding future
performance, future financial results or other future development
is limited to the fact that such forecast, projection or
statement was prepared in good faith on the basis of information
and assumptions that the Company believed to be reasonable as of
the date such material was provided (it being understood that
projections are subject to significant uncertainties and
contingencies, many of which are beyond the Company's control,
and that no assurance can be given that the projections will be
realized).
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder,
or any Loan or other Obligation shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding,
unless the Required Lenders waive compliance in writing:
7.1 Financial Statements. The Company shall deliver to the
Administrative Agent (which shall promptly provide copies to each
Lender), in form and detail satisfactory to the Required Lenders:
(a) as soon as available, but not later than 90 days
after the end of each fiscal year, a copy of the audited
consolidated balance sheet of Parent and its Subsidiaries as at
the end of such year and the related consolidated statements of
income or operations, shareholders' equity and cash flows for
such year, setting forth in each case in comparative form the
figures for the previous fiscal year, and accompanied by (i) the
opinion of a nationally-recognized independent public accounting
firm (the "Independent Auditor"), which report (x) shall state
that such consolidated financial statements present fairly the
consolidated financial position of Parent
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and its Subsidiaries for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years and (y) shall
not be qualified or limited because of a restricted or limited
examination by the Independent Auditor of any material portion of
Parent's or any of its Subsidiary's records and (ii) a comparison
with the budget for such fiscal year;
(b) Promptly when available, and in any event within
30 days after the end of each month that is not the end of a
fiscal quarter, and within 45 days after the end of each month
that is the end of a fiscal quarter (other than the last month of
each fiscal year), a copy of the unaudited consolidated balance
sheet of Parent and its Subsidiaries as of the end of such month
and the related consolidated statements of income, shareholders'
equity and cash flows for the period commencing on the first day
and ending on the last day of such month, including a comparison
with the corresponding month and period of the previous fiscal
year and a comparison with the budget for such month and for such
period of the current fiscal year, together with a certificate of
a Responsible Officer of the Company that each such statement
fairly presents the financial condition and results of operations
(subject to normal year-end audit adjustments) of Parent and its
Subsidiaries and has been prepared in accordance with GAAP
consistently applied; and
(c) Not later than 60 days after the end of each
fiscal year, a copy of the projections of Parent of the
consolidated operating budget and cash flow budget of Parent and
its Subsidiaries for the succeeding fiscal year (including an
explanation of the assumptions used in preparing such budgets),
such projections to be accompanied by a certificate of a
Responsible Officer of the Company to the effect that (i) such
projections were prepared by the Company in good faith, (ii) the
Company has a reasonable basis for the assumptions contained in
such projections and (iii) such projections have been prepared
according to such assumptions.
7.2 Certificates; Other Information. The Company shall
furnish to the Administrative Agent (and the Administrative Agent
will promptly distribute copies of the same to the Lenders):
(a) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a), a certificate of the
Independent Auditor stating that in making the examination
necessary therefor no knowledge was obtained of any Event of
Default or Unmatured Event of Default, except as specified in
such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a) and each set of
quarterly statements referred to in subsection 7.1(b), a
Compliance Certificate executed by a Responsible Officer;
(c) promptly, copies of all financial statements and
regular, periodic or special reports (including Forms 10K, 10Q
and 8K) that Parent, the Company or any Subsidiary may make to,
or file with, the SEC;
(d) promptly from time to time, any notices (including
notices of default or acceleration thereunder) received from any
holder or trustee of, under or with respect to any Subordinated
Debt of the Company;
75
(e) forthwith upon any Qualified Refinancing, a copy of
the related Qualified Indenture, certified as true and correct by
the Secretary or an Assistant Secretary of the Company;
(f) within 30 days of the end of each month, a
Borrowing Base Certificate dated as of the end of such month and
executed by a Responsible Officer (provided that (i) the Company
may deliver a Borrowing Base Certificate more frequently if it
chooses and (ii) after an Event of Default shall have occurred
and be continuing, the Required Revolving Lenders may request
that the Company deliver Borrowing Base Certificates more
frequently); and
(g) promptly, such additional information regarding
the business, financial or corporate affairs of Parent, the
Company or any Subsidiary as the Administrative Agent, at the
request of any Lender, may from time to time reasonably request.
7.3 Notices. Promptly upon a Responsible Officer obtaining
knowledge thereof, the Company shall notify the Administrative
Agent (and the Administrative Agent will promptly distribute such
notice to the Lenders) of:
(a) the occurrence of any Event of Default or Unmatured
Event of Default;
(b) any matter that has resulted or would reasonably
be expected to result in a Material Adverse Effect, including, if
applicable, (i) any breach or non-performance of, or any default
under, a Contractual Obligation of the Company or any Subsidiary,
(ii) any dispute, litigation, investigation, proceeding or
suspension between the Company or any Subsidiary and any
Governmental Authority or (iii) the commencement of, or any
material development in, any litigation or proceeding affecting
the Company or any Subsidiary.
(c) the occurrence of any of the following events
affecting the Company or any ERISA Affiliate (but in no event
more than ten days after such event), and deliver to the
Administrative Agent (which shall promptly deliver to each Lender
a copy thereof) a copy of any notice with respect to such event
that is filed with a Governmental Authority and any notice
delivered by a Governmental Authority to the Company or any ERISA
Affiliate with respect to such event:
(i) an ERISA Event; or
(ii) a contribution failure with respect to a Pension
Plan sufficient to give rise to a Lien under Section 302(f)
of ERISA;
(d) any material change in accounting policies or financial reporting
practices by the Company or any of its consolidated Subsidiaries;
(e) any Mandatory Prepayment Event;
(f) any proposed payment of principal of Subordinated Debt prior
to the making thereof; and
76
(g) upon the request from time to time of the
Administrative Agent, the Swap Termination Values, together with
a description of the method by which such values were determined,
relating to any then-outstanding Swap Contracts to which the
Company or any of its Subsidiaries is party.
Each notice under this Section shall be accompanied by a
written statement by a Responsible Officer setting forth details
of the occurrence referred to therein and stating what action the
Company or any affected Subsidiary proposes to take with respect
thereto and at what time. Each notice under subsection 7.3(a)
shall describe with particularity any and all clauses or
provisions of this Agreement or any other Loan Document that have
been breached or violated.
7.4 Preservation of Corporate Existence, Etc. The Company shall, and
shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state
or jurisdiction of incorporation except a Subsidiary need not be
in compliance with the foregoing to the extent such Subsidiary is
sold pursuant to Section 8.2 or merged or consolidated into
another Person pursuant to Section 8.3;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits,
licenses and franchises, in each case which are material and
which are necessary or desirable in the normal conduct of its
business except in connection with transactions permitted by
Section 8.3 and dispositions of assets permitted by Section 8.2;
and
(c) preserve or renew all of its registered patents,
copyrights, trademarks, trade names and service marks, the
non-preservation of which would reasonably be expected to have a
Material Adverse Effect.
7.5 Maintenance of Property. The Company shall, and shall
cause each Subsidiary to, maintain and preserve all property
material to the normal conduct of its business in good working
order and condition, ordinary wear and tear excepted, other than
obsolete, worn out or surplus equipment.
7.6 Insurance. The Company shall, and shall cause each
Subsidiary to, maintain with financially sound and reputable
independent insurers, insurance with respect to its properties
and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons.
7.7 Payment of Obligations. The Company shall, and shall
cause each Subsidiary to, pay and discharge as the same shall
become due and payable, unless the same are being contested in
good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company or such
Subsidiary in respect thereof, all of its obligations and
liabilities, including:
77
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets; and
(b) all lawful claims which, if unpaid, would by law become a Lien
upon its property.
7.8 Compliance with Laws. The Company shall, and shall
cause each Subsidiary to, comply in all material respects with
all Requirements of Law of any Governmental Authority having
jurisdiction over it or its business (including the Federal Fair
Labor Standards Act), except such as may be contested in good
faith or as to which a bona fide dispute may exist.
7.9 Compliance with ERISA. The Company shall, and shall
cause each of its ERISA Affiliates to: (a) maintain each Plan in
compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state law; (b)
cause each Plan which is qualified under Section 401 (a) of the
Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Code.
7.10 Inspection of Property and Books and Records. The
Company shall, and shall cause each Subsidiary to, maintain
proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied
shall be made of all financial transactions and matters involving
the assets and business of the Company and such Subsidiary. The
Company shall permit, and shall cause each Subsidiary to permit,
representatives and independent contractors of the Administrative
Agent or any Lender (a) to visit and inspect any of their
respective properties, to examine their respective corporate,
financial and operating records, and to make copies thereof or
abstracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective directors, officers,
and independent public accountants and (b) to inspect any of
their Inventory and equipment, to perform appraisals of any of
their equipment, and to inspect, audit, check and make copies
and/or extracts from the books, records, computer data and
records, computer programs, journals, orders, receipts,
correspondence and other data relating to Inventory, Accounts
Receivable, contract rights, general intangibles, equipment and
any other Collateral, or relating to any other transactions
between the parties hereto; at such reasonable times during
normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Company; provided, however,
that when an Event of Default exists, the Administrative Agent or
any Lender may do any of the foregoing without advance notice.
After the occurrence and during the continuance of an Event of
Default, any such inspection shall be at the Company's expense.
7.11 Interest Rate Protection. The Company shall, not later
than 90 days after the Closing Date, enter into one or more
Permitted Swap Obligations, each with a term of at least three
years, on an ISDA standard form with one or more Lenders or
Affiliates thereof or with counterparties reasonably acceptable
to the Administrative Agent with respect to not less than
$235,000,000 of the principal amount of the Loans in form and
substance reasonably satisfactory to the Administrative Agent.
7.12 Environmental Covenant. The Company will, and will cause each
of its Subsidiaries to,
78
(a) use and operate all of its facilities and
properties in material compliance with all Environmental Laws,
keep all necessary permits, approvals, certificates, licenses and
other authorizations relating to environmental matters in effect
and remain in material compliance therewith, and handle all
Hazardous Materials in material compliance with all applicable
Environmental Laws;
(b) promptly notify the Administrative Agent and
provide copies of all written material Environmental Claims, and
shall act in a diligent and prudent fashion to address such
Environmental Claims, including Environmental Claims that allege
that the Company or any of its Subsidiaries is not in compliance
with Environmental Laws; and
(c) provide such information and certifications which
the Administrative Agent may reasonably request from time to time
to evidence compliance with this Section 7.12.
7.13 Use of Proceeds. The Company shall use the proceeds of
the Loans and the Letters of Credit (i) to finance the Merger,
(ii), to repay Debt to be Repaid, (iii) to pay fees and expenses
related to the DMFC Recapitalization and (iv) for working capital
and other general corporate purposes not in contravention of any
Requirement of Law or of any Loan Document; provided that
Revolving Loans may be used to finance Acquisitions permitted in
accordance with subsection 8.4(i).
7.14 Further Assurances. (a) After the Merger has been
consummated, the Company shall cause to be delivered to the
Agents and Lenders evidence of such consummation, in form and
substance satisfactory to the Administrative Agent.
(b) The Company shall, and shall cause each Subsidiary
to, execute, acknowledge, deliver, record, re-record, file,
refile, register and re-register, any and all such further acts,
deeds, conveyances, security agreement, mortgages, assignments,
estoppel certificates, financing statements and continuations
thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments the
Administrative Agent or the Required Lenders, as the case may be,
may reasonably request from time to time in order (1) to ensure
that (i) the obligations of the Company hereunder and under the
other Loan Documents are secured by substantially all assets of
the Company (provided, that unless otherwise reasonably required
by the Required Lenders, the pledge of the capital stock of a
Foreign Subsidiary shall be limited to 65% of the outstanding
capital stock of such Subsidiary) and guaranteed, pursuant to the
Guaranties, by Parent and all Domestic Subsidiaries that are
Material Subsidiaries (including, promptly upon the acquisition
or creation thereof, any Material Subsidiary created or acquired
after the date hereof) and (ii) the obligations of the Company
under the Loan Documents are secured by substantially all of the
assets of Parent and each Domestic Subsidiary that is a Material
Subsidiary (provided, that unless reasonably required by the
Required Lenders, the pledge of the capital stock of a Foreign
Subsidiary shall be limited to 65% of the outstanding capital
stock of such Subsidiary), (2) to perfect and maintain the
validity, effectiveness and priority of any of the Collateral
Documents and the Liens intended to be created thereby and (3) to
better assure, convey, grant, assign, transfer, preserve, protect
and confirm to the Administrative Agent and the Lenders the
rights granted or now or hereafter
79
intended to be granted to the Administrative Agent and the
Lenders under any Loan Documents or under any other document
executed in connection therewith. Contemporaneously with the
execution and delivery of any document referred to above, the
Company shall, and shall cause each Subsidiary to, deliver all
resolutions, opinions and corporate documents as the
Administrative Agent or the Required Lenders may reasonably
request to confirm the enforceability of such document and the
perfection of the security interest created thereby, if
applicable. The Company shall, and shall cause its Subsidiaries
to, use best efforts to obtain consents of landlords to the
granting of security interests in favor of the Administrative
Agent for the benefit of the Lender Parties in (i) the Company's
leasehold interests in real property in Dallas (#228), Stockton
(#222), Xxxxxxxxx, California (Warehouse #28), Xxxxxxxxx
California (Nebraska and Chestnut), San Xxxx (#3), California,
San Xxxx (#4), California, Modesto (4318 Yosemite), California,
Sleepy Eye, Minnesota, and Plover (Warehouse #115) , Wisconsin,
and (ii) all leasehold interests of the Company or any Subsidiary
of real property that is used for distribution or warehousing and
has aggregate improvements of 100,000 square feet or greater and
such other leased properties as the Administrative Agent may
reasonably request; provided, however, that such best efforts
obligation shall not require the Company or any Subsidiary to
make any payment of money or property.
(c) If at any time (x) there are Subsidiaries that are
not parties to the Subsidiary Security Agreement or the
Subsidiary Guaranty and (y) (i) the aggregate assets of such
Subsidiaries exceed 5% of the consolidated assets of the Company
and its Subsidiaries, (ii) the aggregate revenues of such
Subsidiaries for any fiscal quarter exceed 5% of the consolidated
revenues of the Company and its Subsidiaries for such period or
(iii) the aggregate investments of the Company and its other
Subsidiaries in and advances to such Subsidiaries exceed 5% of
the consolidated assets of the Company and its Subsidiaries, then
the Company shall cause one or more Subsidiaries that are not
then parties to the Subsidiary Security Agreement and/or the
Subsidiary Guaranty to execute and deliver to the Administrative
Agent counterparts to such agreements and become parties thereto
such that the circumstances described in the foregoing clauses
(y)(ii), (y) (ii) and (y) (iii) do not exist, and in connection
with such execution and delivery the Company shall cause to be
delivered to the Administrative Agent such opinions of counsel
and other supporting documentation in respect thereof as the
Administrative Agent shall reasonably request.
(d) Subject to the following sentence, within 30 days
after the Closing Date, the Company shall cause each financial
institution at which Parent, the Company or any Domestic
Subsidiary maintains any lockbox, deposit account or other
similar account to deliver to the Administrative Agent and the
Company a writing, in form and substance satisfactory to the
Administrative Agent, acknowledging and consenting to the
security interest of the Administrative Agent in such lockbox or
account and all cash, checks, drafts and other instruments or
writings for the payment of money from time to time therein,
confirming such financial institution's agreement to follow the
instructions of the Administrative Agent with respect to all such
cash, checks, drafts and other instruments or writings for the
payment of money following the occurrence of any Event of Default
or Unmatured Event of Default of the type specified in subsection
9.1(f) or (g) and waiving all rights of setoff and banker's lien
on all items held in any such lockbox or account. With respect to
each of the Company's accounts at
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Xxxxx Fargo Bank, Mellon Bank East and The Northern Trust Company
which are listed on Schedule V of the Security Agreement (Company
and Parent), the Company shall have 120 days after the Closing
Date (A) to obtain an agreement from the related bank covering
such account and satisfying the requirements of the prior
sentence or (B) to close such account, and, with respect to each
of the accounts held at First State Bank Xxxx Xxxxxxx and listed
on Schedule V of the Security Agreement (Company and Parent), the
Company shall not be obligated to obtain an agreement from such
bank covering such account and satisfying the requirements of the
prior sentence so long as the amount in such account is less than
$5,000; provided, however, that notwithstanding the foregoing,
upon the occurrence of an Event of Default or Unmatured Event of
Default or at the request of Administrative Agent, the Company
shall have 30 days to obtain an agreement covering each of the
accounts referred to in this sentence and satisfying the
requirements of the prior sentence.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder,
or any Loan or other Obligation shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding,
unless the Required Lenders waive compliance in writing:
8.1 Limitation on Liens. The Company shall not, and shall
not permit Parent or any Subsidiary to, directly or indirectly,
make, create, incur, assume or suffer to exist any Lien upon or
with respect to any part of its property, whether now owned or
hereafter acquired, other than the following ("Permitted Liens"):
(a) any Lien existing on property of the Company or
any Subsidiary on the Closing Date and set forth on Schedule 8.1
securing Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable
without penalty, or to the extent that non-payment thereof is
permitted by Section 7.7, provided that no notice of lien has
been filed or recorded under the Code;
(d) growers', carriers', warehousemen's, mechanics',
landlords', materialmen's, repairmen's or other similar Liens
arising in the ordinary course of business which are not
delinquent or which are being contested in good faith and by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property subject
thereto;
(e) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the ordinary course
of business in connection with workers' compensation,
unemployment insurance and other social security legislation;
81
(f) Liens on property of the Company or any Subsidiary
securing (i) the non-delinquent performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, (ii) surety bonds (excluding appeal bonds and other
bonds posted in connection with court proceedings or judgments)
and (iii) other non-delinquent obligations of a like nature, in
each case, incurred in the ordinary course of business, provided
that all such Liens in the aggregate would not (even if enforced)
cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial
attachment Liens and Liens securing contingent obligations on
appeal bonds and other bonds posted in connection with court
proceedings or judgments, provided that the enforcement of such
Liens is effectively stayed;
(h) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the
property subject thereto or interfere with the ordinary conduct
of the businesses of the Company and its Subsidiaries;
(i) purchase money security interests on any property
acquired by the Company or any Subsidiary in the ordinary course
of business, securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring
such property, provided that (i) any such Lien attaches to such
property concurrently with or within 45 days after the
acquisition thereof, (ii) such Lien attaches solely to the
property so acquired in such transaction, (iii) the principal
amount of the Indebtedness secured thereby does not exceed 100 of
the cost of such property and (iv) the principal amount of the
Indebtedness secured by all such purchase money security
interests shall not at any time exceed $20,000,000;
(j) Liens securing obligations in respect of capital
leases on assets subject to such leases, provided that such
capital leases are otherwise permitted hereunder;
(k) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of
set-off or similar rights and remedies as to deposit accounts or
other funds maintained with a creditor depository institution,
provided that (i) such deposit account is not a dedicated cash
collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations
promulgated by the FRB and (ii) such deposit account is not
intended by the Company or any Subsidiary to provide collateral
to the depository institution;
(1) Liens in connection with a Permitted Receivables Facility;
(m) Liens under Permitted Security Agreements;
(n) Liens securing Acquired Indebtedness permitted by
subsection 8.5(k), provided that such Liens were in existence
prior to the contemplation of the related Acquisition and do not
extend to any assets other than the property financed with such
Acquired Indebtedness;
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(o) Liens, defects and other matters specifically
disclosed on the title insurance policies delivered to and
accepted by the Administrative Agent on the Closing Date in
connection with properties subjected to a Mortgage on the Closing
Date;
(p) extensions, renewals and replacements of Liens
referred to in clauses (a) through (o) above, provided that any
such extension, renewal or replacement Lien is limited to the
property or assets covered by the Lien extended, renewed or
replaced and does not secure any Indebtedness in addition to that
secured immediately prior to such extension, renewal or
replacement; and
(q) Liens securing other Indebtedness of the Company
and its Subsidiaries not expressly permitted by clauses (a)
through (p) above; provided that the aggregate amount of the
Indebtedness secured by Liens permitted pursuant to this clause
(p) does not exceed $5,000,000 in the aggregate outstanding at
any time.
8.2 Disposition of Assets. The Company shall not, and shall
not permit any Subsidiary to, directly or indirectly, sell,
assign, lease, convey, transfer or otherwise dispose of (whether
in one or a series of transactions) any property (including
accounts and notes receivable, with or without recourse) or enter
into any agreement to do any of the foregoing, except:
(a) dispositions of Inventory, or worn-out or surplus
equipment, all in the ordinary course of business;
(b) the sale of equipment to the extent that such
equipment is exchanged for credit against the purchase price of
similar replacement equipment, or the proceeds of such sale are
reasonably promptly applied to the purchase price of such
replacement equipment, unless such equipment is not needed in the
Company's or such Subsidiary's business;
(c) transfers of Accounts Receivable under a Permitted
Receivables Facility;
(d) dispositions not otherwise permitted hereunder
(including the disposition of all of the capital stock of any
operating Subsidiary by sale of stock or by merger of such
Subsidiary with or into another Person and including a
disposition pursuant to a sale and lease-back transaction) which
are made for fair market value if the fair market value of all
assets so disposed of by the Company and its Subsidiaries under
this clause (d) does not exceed $25,000,000 in the aggregate;
provided that (i) at the time of any disposition, no Event of
Default or Unmatured Event of Default shall exist or will result
from such disposition, (ii) at least 75% of the consideration
received by the Company or such Subsidiary from such disposition
is in cash or Cash Equivalent Investments and (iii) the proceeds
thereof are applied as provided in subsection 2.8(a),
(e) mergers expressly permitted by clauses (i) and
(ii) of Section 8.3 or transfers by any Wholly-Owned Subsidiary
of the Company of its assets upon its liquidation to the Company
or any of its Wholly-Owned Subsidiaries;
83
(f) dispositions of Assets Held for Sale which are made
for fair market value; and
(g) dispositions of assets not exceeding $2,000,000 in
any fiscal year for non- cash consideration.
8.3 Consolidations and Mergers. The Company shall not,
and shall not permit any Subsidiary to, merge or consolidate with
or into any other Person, except that (i) any Subsidiary may
merge with the Company (provided that the Company shall be the
continuing or surviving corporation) or with any one or more
Wholly-Owned Subsidiaries (provided that a Wholly-Owned
Subsidiary shall be the continuing or surviving corporation),
(ii) any Wholly-Owned Subsidiary may acquire by merger any Person
in an Acquisition permitted by subsection 8.4(i) (provided that
such Wholly-Owned Subsidiary is the survivor of such merger) and
(iii) any Subsidiary may be merged with or into any other Person
in a transaction permitted by subsection 8.2(d).
8.4 Loans and Investments. The Company shall not, and shall
not permit any Subsidiary to, purchase or acquire, or make any
commitment to purchase or acquire, any capital stock, equity
interest or other obligations or securities of, or any interest
in, any other Person, or make or commit to make any Acquisition,
or make or commit to make any advance, loan, extension of credit
or capital contribution to or any other investment in, any other
Person, except for:
(a) investments in Cash Equivalent Investments;
(b) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease of
goods or services in the ordinary course of business;
(c) investments by the Company in its Wholly-Owned
Subsidiaries or by any Subsidiary in any Wholly-Owned Subsidiary,
in the form of contributions to capital or loans or advances;
provided that, immediately before and after giving effect to such
investment, no Event of Default or Unmatured Event of Default
shall have occurred and be continuing and the aggregate amount
invested in Foreign Subsidiaries after the Closing Date shall not
exceed $10,000,000;
(d) loans or advances made by any Subsidiary to the Company;
(e) loans and advances to employees in the ordinary
course of business (such as travel advances) in an aggregate
amount not at any time exceeding $5,000,000;
(f) investments by the Company and its Subsidiaries in
Joint Ventures in the form of contributions of capital, loans,
advances or Contingent Obligations; provided that, immediately
before and after giving effect to such investment, (x) no Event
of Default or Unmatured Event of Default shall have occurred and
be continuing, including pursuant to Section 8.9, and (y) the
aggregate amount of all investments pursuant to this clause (f)
shall not exceed $20,000,000 in the aggregate (with all such
investments valued at the time of investment
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at the cash amount thereof, if in cash, the fair market value
thereof as determined by the board of directors of the Company,
if in property, and at the maximum amount thereof if in
Contingent Obligations);
(g) investments constituting Permitted Swap
Obligations or payments or advances under Swap Contracts relating
to Permitted Swap Obligations;
(h) other investments in an aggregate amount not
exceeding $5,000,000 during the term of this Agreement (with all
such investments valued at the time of investment at the cash
amount thereof, if in cash, the fair market value thereof as
determined by the board of directors of the Company, if in
property, and at the maximum amount thereof if in Contingent
Obligations);
(i) Acquisitions, provided that
(i) the Company shall have delivered to the
Administrative Agent evidence in form and substance
satisfactory to the Administrative Agent that the
financial conditions referred to in clause (ii) below
with respect to such Acquisition will be satisfied,
together with a statement of a Responsible Officer of
the Company detailing all amounts required to
consummate the prospective Acquisition and a business
description and summary of terms of the prospective
Acquisition,
(ii) the Company shall be in compliance with all
financial covenants in Sections 8.11, 8.12, 8.14 and
8.15 on a pro forma basis for the period of four
consecutive fiscal quarters ending on the last day of
the last completed fiscal quarter immediately
preceding the proposed date of consummation of the
prospective Acquisition (on the assumption such
Acquisition occurred on the first day of such four
fiscal quarter period and using historical results of
the Company and its Subsidiaries and the related
Acquisition Prospect for such period, without giving
effect to any adjustment for expected cost savings or
other synergies),
(iii) such Acquisition shall be consummated in
accordance with all Requirements of Law and the
Company and its Subsidiaries shall have obtained all
consents and approvals necessary or desirable to such
consummation and the business operations of such
Acquisition Prospect after such Acquisition, including
governmental and contractual approvals,
(iv) no Event of Default or Unmatured Event of
Default shall exist at the time of consummation
thereof or would result therefrom,
(v) the Person to be acquired (or its Board of
Directors or equivalent governing body) has not (A)
announced it will oppose such Acquisition or (B)
commenced any action which alleges that such
Acquisition violates, or will violate, any Requirement
of Law, and
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(vi) the total consideration for all such Acquisitions
(including cash and noncash purchase price,
liabilities assumed, deferred or financed purchase
price, purchase price characterized as noncompetition
payments and the like), together with the amount of
all investments made pursuant to subsection 8.4(k),
does not exceed in the aggregate during the term of
this Agreement an amount equal to the sum of (x)
$75,000,000 plus (y) an amount equal to the aggregate
amount received by the Company as capital
contributions from Parent after the Closing Date;
(j) investments existing on the Closing Date and set
forth on Schedule 8.4; and
(k) investments in Subsidiaries acquired in
Acquisitions permitted under subsection 8.4(i) that are not
Wholly-Owned Subsidiaries, provided that the amount of all such
investments, together with the aggregate total consideration paid
in connection with all Acquisitions permitted by subsection
8.4(i) (calculated in the manner set forth in subsection
----------------- ---------- 8.4(i) (vi)), does not exceed in the
aggregate during the term of this Agreement an amount equal
----------- to the sum of (x) $75,000,000 plus (y) an amount
equal to the aggregate amount received by the ---- Company as
capital contributions from Parent after the Closing Date.
8.5 Limitation on Indebtedness. The Company shall not, and
shall not permit any Subsidiary to, create, incur, assume, suffer
to exist, or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement, the
Subsidiary Guaranty and the other Loan Documents;
(b) the Subordinated Notes and the Exchange Notes and
any Qualified Notes issued in a Qualified Refinancing and related
Guaranty Obligations by Subsidiaries of the Company;
(c) Indebtedness consisting of Contingent Obligations
permitted pursuant to Section 8.8;
(d) Indebtedness existing on the Closing Date, as set
forth in Schedule 8.5(d), and extensions, renewals or
replacements of such Indebtedness to the extent that the
principal amount of such Indebtedness is not increased;
(e) Indebtedness of Subsidiaries to the Company or
Wholly-Owned Subsidiaries; provided, that the aggregate amount of
all such Indebtedness of Foreign Subsidiaries and other
investments by the Company and its Subsidiaries in Foreign
Subsidiaries shall not exceed $25,000,000;
(f) Indebtedness up to $20,000,000 outstanding at any
time secured by Liens permitted by subsection 8.1(i);
86
(g) Indebtedness incurred in connection with leases permitted pursuant to
Section 8.10;
(h) Indebtedness of the Company or any Subsidiary of
the Company in connection with guaranties resulting from
endorsement of negotiable instruments in the ordinary course of
business;
(i) surety bonds and appeal bonds required in the
ordinary course of business or in connection with the enforcement
of rights or claims of the Company or in connection with
judgments that do not result in an Unmatured Event of Default or
an Event of Default;
(j) any Indebtedness arising under a Permitted Receivables
Facility;
(k) up to $20,000,000 of Acquired Indebtedness assumed in
Acquisitions permitted under subsection 8.4(i); and
(l) other Indebtedness in an aggregate amount not at any time
exceeding $5,000,000.
It is understood that any Indebtedness borrowed in a foreign
currency shall continue to be permitted under this Section,
notwithstanding any fluctuation in the Dollar Amount of such
Indebtedness, as long as the outstanding principal balance of
such Indebtedness (denominated in its original currency) does not
exceed the maximum amount of such Indebtedness (denominated in
such currency) permitted to be outstanding on the date such
Indebtedness was incurred.
8.6 Transactions with Affiliates. The Company shall not,
and shall not permit any Subsidiary to, enter into any
transaction with any Affiliate of the Company (other than a
Material Subsidiary), except upon fair and reasonable terms no
less favorable to the Company or such Subsidiary than would be
obtainable in a comparable arm's-length transaction with a Person
not an Affiliate of the Company; provided that the TPG
Agreements, the Tax Sharing Agreement and payments (not exceeding
$900,000) to Citicorp Venture Capital and its Affiliates in
connection with the DMFC Recapitalization shall not violate this
Section.
8.7 Use of Proceeds. The Company shall not, and shall not
permit any Subsidiary to, use any portion of the proceeds of any
Loan or any Letter of Credit, directly or indirectly, (i) to
purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of the Company or others incurred to
purchase or carry Margin Stock, (iii) to extend credit for the
purpose of purchasing or carrying any Margin Stock or (iv) to
acquire any security in any transaction that is subject to
Section 13 or 14 of the Exchange Act.
8.8 Contingent Obligations. The Company shall not, and
shall not permit any Subsidiary to, create, incur, assume or
suffer to exist any Contingent Obligation except:
(a) endorsements for collection or deposit in the
ordinary course of business;
(b) Permitted Swap Obligations;
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(c) Contingent Obligations of the Company and its
Subsidiaries existing as of the Closing Date and listed in
Schedule 8.8 and Guaranty Obligations by the Company relating to
Indebtedness of Wholly-Owned Subsidiaries, provided, that all
Contingent Obligations permitted by this subsection 8.8(c) shall
not exceed $10,000,000 at any one time;
(d) Contingent Obligations arising under the Loan Documents;
(e) Guaranty Obligations described in subsection 8.5(b); and
(f) Contingent Obligations with respect to Joint
Ventures to the extent permitted by Section 8.9.
8.9 Joint Ventures. The Company shall not, and shall not
permit any Subsidiary to, enter into any Joint Venture, except
that the Company or any Subsidiary may enter into any Joint
Venture so long as the aggregate amount invested by the Company
and its Subsidiaries in all Joint Ventures in any form (including
by capital contribution, incurrence of Indebtedness by any such
Joint Venture to the Company or any Subsidiary or the incurrence
of Contingent Obligations by the Company or any Subsidiary with
respect to any such Joint Venture), during the term of this
Agreement does not exceed $20,000,000; provided, however, that
for purposes of determining the aggregate amount invested in
Joint Ventures hereunder (x) any return of principal or equity
received in cash on any amount invested hereunder and (y) the
fair market value of any other property received in exchange for
any amount invested hereunder shall be deducted.
8.10 Lease Obligations. The Company shall not, and shall
not permit any Subsidiary to, create or suffer to exist any
obligations for the payment of rent for any property under lease
or agreement to lease, except for:
(a) leases of the Company and its Subsidiaries in
existence on the Closing Date and any renewal, extension or
refinancing thereof;
(b) operating leases entered into by the Company or any
Subsidiary after the Closing Date in the ordinary course of
business; and
(c) capital leases entered into by the Company or any
Subsidiary; provided that no Event of Default or Unmatured Event
of Default has occurred and is continuing or will result from the
incurrence of the obligations of the Company contemplated
thereby.
8.11 Minimum Fixed Charge Coverage. The Company will not
permit the Fixed Charge Coverage Ratio for any Computation Period
to be less than the ratio set forth below opposite the period in
which such Computation Period ends:
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Period Ratio
6/30/97 - 9/26/99 1.20:1.0
12/26/99 - 3/26/00 1.25:1.0
6/30/00 - 4/01/01 1.30:1.0
6/30/01 - 6/30/03 1.35:1.0
9/28/03 1.40:1.0
12/26/03 - 3/28/04 1.45:1.0
6/30/04 and 1.50:1.0.
thereafter
8.12 Minimum EBITDA. The Company will not permit EBITDA for any
Computation Period to be less than the amount set forth below
opposite the period in which such Computation Period ends:
Period EBITDA
6/30/97 - 3/29/98 $95,000,000
6/30/98 - 9/27/98 $100,000,000
12/27/98 - 3/28/99 $105,000,000
6/30/99 - 3/26/00 $110,000,000
6/30/00 - 4/01/01 $120,000,000
6/30/01 - 3/31/02 $130,000,000
6/30/02 and thereafter $140,000,000
8.13 Minimum Adjusted Net Worth. The Company will not
permit at any time (i) Net Worth at such time plus
Subordinated Debt Proceeds at such time plus the initial
principal amount of the Term Loans to be less than (ii) (a)
$115,000,000, plus (b) 80% of cumulative Consolidated Net
Income for the period beginning on the Closing Date and ending
on the date of calculation (provided that if Consolidated Net
Income is less than zero for any fiscal year, or for the
completed portion of the then-current fiscal year,
Consolidated Net Income for such fiscal year or portion shall
be deemed to be zero); provided that no Event of Default shall
arise by reason of clause (i) above being less than clause
(ii) above if, within ten days of the occurrence of any such
deficiency, Parent receives a capital contribution from its
shareholders at least equal to
89
the amount of such deficiency and Parent in turn makes a
capital contribution of such amount to the Company.
8.14 Maximum Senior Debt Ratio. The Company will not permit
the Senior Debt Ratio for any Computation Period to exceed the
ratio set forth below opposite the period in which such
Computation Period ends:
Period Ratio
6/30/97 - 3/29/98 5.25:1.0
6/30/98 - 3/28/99 5.00:1.0
6/30/99 - 3/26/00 4.25:1.0
6/30/00 - 4/01/01 3.75: 1.0
6/30/01 - 3/31/02 3.25:1.0
6/30/02 - 3/30/03 2.75:1.0
6/30/03 and thereafter 2.25:1.0.
8.15 Maximum Total Debt Ratio. The Company will not permit
the Total Debt Ratio on the last day of any fiscal year to
exceed the ratio set forth below opposite such fiscal year:
Fiscal Year Ending Ratio
6/30/97 6.50:1.0
6/30/98 6.25:1.0
6/30/99 5.50:1.0
6/30/00 5.00:1.0
6/30/01 4.50:1.0
6/30/02 4.00:1.0
6/30/03 and each fiscal year thereaft3.50:1.0.
8.16 Maximum Capital Expenditures. The Company will not
permit the aggregate amount of all Capital Expenditures made by
the Company and its Subsidiaries for any fiscal year to exceed
the amount set forth below opposite such fiscal year (it being
understood that with respect to the line item below for June 30,
1997, such expenditures shall be measured from the Closing Date
to June 30, 1997):
90
Fiscal Year Amount
ending 6/30/97 $15,000,000
ending 6/30/98 $55,000,000
ending 6/30/99 $50,000,000
ending 6/30/00 $45,000,000
ending 6/30/01 and each fiscal year $40,000,000;
thereafter
provided, however, that to the extent Capital Expenditures
actually made in any fiscal year are less than the amount
permitted to be made in such fiscal year (without giving effect
to any carryforward), the lesser of (x) the amount of the
difference and (y) 50% (100% with respect to the fiscal period
ending June 30, 1997) of the amount of Capital Expenditures
permitted to be made in such year as set forth in the table above
may be carried forward and used to make Capital Expenditures in
the next succeeding fiscal year; provided, further, however, that
in any period the Company and its Subsidiaries may only use a
carryforward to such period if the entire amount set forth in the
table above for such period has been utilized.
8.17 Restricted Payments. The Company shall not, and shall
not permit any Subsidiary to, (1) declare or make any dividend
payment or other distribution of assets, properties, cash,
rights, obligations or securities on account of any shares of any
class of its capital stock, or purchase, redeem or otherwise
acquire for value any shares of its capital stock or any
warrants, rights or options to acquire such shares, now or
hereafter outstanding, or (2) make any redemptions, prepayments,
defeasances or repurchases of any Subordinated Debt except that:
(a) any Subsidiary may declare and pay dividends to the Company
or a Wholly-Owned Subsidiary;
(b) the Company may declare and make dividend payments or other
distributions payable solely in Common Stock;
(c) the Subordinated Notes may be exchanged for the
Exchange Notes pursuant to the terms of the Subordinated Note
Purchase Agreement and the Exchange Notes or the Subordinated
Notes may be repaid using the Net Cash Proceeds of a Qualified
Refinancing;
(d) the Company or any of its Subsidiaries may
purchase (or may pay a dividend to Parent to enable Parent to
purchase) capital stock or options with respect to capital stock
held by employees or management of Parent or any of its
Subsidiaries in connection with the termination of employment of
any such employees or management, provided that any such payments
do not exceed $2,000,000 in any fiscal year or $10,000,000 in the
aggregate;
(e) upon an initial Public Offering of the Company or
Parent, the Company may repurchase or redeem Subordinated Notes,
Exchange Notes or Qualified Notes with the Net Cash Proceeds of
such initial Public Offering, provided that no more than
$52,500,000 principal
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amount of Subordinated Debt may be repurchased or redeemed
pursuant to this clause (e) and provided further that any such
application of the proceeds of such Public Offering to repurchase
Subordinated Debt may only be made following the making of any
mandatory prepayment required under subsection 2.8(a) in
connection with such Public Offering;
(f) the Company may pay a dividend to Parent on the
Closing Date in an amount not exceeding $265,000,000 to finance
Parent's payment consideration for the Merger to its shareholders
pursuant to the terms of the Merger Agreement and related fees
and expenses, provided that such funds are actually used by
Parent to pay such Merger consideration and such fees and
expenses within 30 days of the payment of such dividend;
(g) the Company may make payments to Parent at the times and in
the amounts provided in the Tax Sharing Agreement;
(h) the Company may make payments to TPG Partners of fees and
expenses at the times and in the amounts provided in the TPG Agreements; and
(i) the Company may make payments to Parent in amounts
not to exceed $1,000,000 per fiscal year to reimburse Parent for
expenses incurred by Parent in the ordinary course of business.
8.18 ERISA. The Company shall not, and shall not permit any
of its ERISA Affiliates to: (a) engage in a prohibited
transaction or violation of the fiduciary responsibility rules
with respect to any Plan which has resulted or would reasonably
be expected to result in a Material Adverse Effect; or (b) engage
in a transaction that could be subject to Section 4069 or 4212(c)
of ERISA.
8.19 Limitations on Sale and Leaseback Transactions. The
Company shall not, and shall not permit any Subsidiary to, enter
into any arrangement with any Person providing for the leasing by
the Company or any Subsidiary of any real or personal property,
which property is or has been sold or transferred by the Company
or any Subsidiary to such Person in contemplation of taking back
a lease thereof to the extent the fair market value of the
property sold or transferred is in an aggregate amount in excess
of $25,000,000.
8.20 Limitation on Restriction of Subsidiary Dividends and
Distributions. The Company will not, and will not permit any
Subsidiary to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any encumbrance or
restriction on the ability of any Subsidiary to (a) pay dividends
or make other distributions on its capital stock owned by the
Company or any Subsidiary, or pay any Indebtedness owed to the
Company or any Subsidiary, (b) make loans or advances to the
Company or (c) transfer any of its assets or properties to the
Company, except for such encumbrances or restrictions existing by
reason of or under (i) applicable law, (ii) this Agreement and
the other Loan Documents, (iii) prior to the termination thereof
on the Closing Date, the Prior Financing Agreements, (iv)
customary non-assignment provisions of any contract or lease
governing a leasehold or ownership interest of any Subsidiary,
(v) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to any Person, or
the properties or assets of any Person, other than the
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Person or the properties or assets of the Person so acquired,
(vi) customary net worth provisions contained in leases and other
agreements entered into by a Subsidiary in the ordinary course of
business, (vii) customary restrictions with respect to a
Subsidiary pursuant to an agreement that has been entered into
for the sale or disposition of all or substantially all of the
capital stock of such Subsidiaries, (viii) customary provisions
in joint venture agreements and other similar agreements relating
solely to the securities, assets and revenues of such joint
venture or other business venture and (ix) an agreement governing
Indebtedness incurred to refinance the Indebtedness issued,
assumed or incurred pursuant to an agreement referred to in
clause (v) above; provided, however, that the provisions relating
to such encumbrance or restriction contained in any such
Indebtedness are not, in the aggregate, materially less favorable
to the Company as determined by the Board of Directors of the
Company in its reasonable and good faith judgment than the
provisions relating to such encumbrance or restriction contained
in the agreements referred to in such clause (v).
8.21 Inconsistent Agreements. The Company will not, and
will not permit any Subsidiary to, enter into any agreement
containing any provision which would be violated or breached by
any borrowing by the Company hereunder or by the performance by
the Company or any Subsidiary of their respective obligations
hereunder or under any other Loan Document. The Company will not,
and will not permit any of its Subsidiaries to, enter into any
agreement (other than this Agreement and the other Loan
Documents) prohibiting the creation or assumption of any Lien
upon its properties, revenues or assets, whether now owned or
hereafter acquired, or the ability of the Company and its
Subsidiaries to amend or modify this Agreement or any other Loan
Document.
8.22 Change in Business. The Company shall not, and shall
not permit any Subsidiary to, engage in any material business
other than production, processing and related distribution of
food and beverage products and other related businesses.
8.23 Amendments to Certain Documents. The Company shall not
make or agree to any amendment to or modification of, or waive
any of its rights under, any of the terms of (a) the Merger
Agreement, (b) the Subordinated Note Purchase Agreement, (c) the
Subordinated Indenture, (d) any Qualified Indenture, (d) any
other instrument evidencing Subordinated Debt, (e) the Tax
Sharing Agreement or (f) the TPG Agreements, unless any such
amendment, modification or waiver is not adverse in any respect
to the Lenders.
8.24 Fiscal Year. The Company shall not, and shall not
permit any Subsidiary to, change the fiscal year of the Company
or of any Subsidiary; provided, that any Subsidiary acquired in
an Acquisition permitted hereunder may change its fiscal year to
end on June 30.
8.25 Limitation on Issuance of Guaranty Obligations. The
Company will not permit any Subsidiary to create, incur, assume,
suffer to exist, or otherwise become or remain directly or
indirectly liable with respect to any Guaranty Obligation of such
Subsidiary relating to any Indebtedness of the Company unless
(i) such Subsidiary, if it is not already a party to
the Subsidiary Guaranty, simultaneously executes and delivers to
the Administrative Agent a counterpart to the
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Subsidiary Guaranty, together with such supporting
documentation as the Administrative Agent may reasonably
request, notwithstanding Section 7.14,
(ii) if such Indebtedness is by its terms subordinated
to the Obligations, any such assumption, guaranty or other
liability of such Subsidiary with respect to such
Indebtedness shall be subordinated, in form and substance
satisfactory to the Administrative Agent, to such
Subsidiary's Guaranty Obligation with respect to the
Obligations to the same extent as such Indebtedness is
subordinated to the Obligations (provided that such
Subsidiary's Guaranty Obligation of such Indebtedness of
the Company shall be subordinated to the full amount of
such Subsidiary's Guaranty Obligation under the Subsidiary
Guaranty without giving effect to any reduction thereto
necessary to render the Guaranty Obligation of such
Subsidiary thereunder not voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer),
and
(iii) such Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any right
of reimbursement, indemnity or subrogation or any other rights
against the Company or any other Subsidiary as a result of any
payment by such Subsidiary under such Guaranty Obligation unless
and until payment in full in cash is made of such Indebtedness of
the Company.
ARTICLE IX
EVENTS OF DEFAULT
9.1 Event of Default. Any of the following shall
constitute an "Event of Default":
(a) Non-Payment. The Company fails to pay, when and as
required to be paid herein, any amount of principal of any Loan
or of any L/C Obligation, or, within three days after the same
becomes due, any amount of interest or any fees or other amounts
payable hereunder or under any other Loan Document.
(b) Representation or Warranty. Any representation or
warranty by Parent, the Company or any Subsidiary made or deemed
made herein or in any other Loan Document, or which is contained
in any certificate, document or financial or other statement by
Parent, the Company, any Subsidiary or any Responsible Officer
furnished at any time under this Agreement or any other Loan
Document, is incorrect in any material respect on or as of the
date made or deemed made.
(c) Specific Defaults. The Company fails to perform or
observe any term, covenant or agreement contained in any of
Section 7.3 or Article VIII (other than Section 8.1, 8.5, 8.6,
8.17(1) or 8.19).
(d) Other Defaults. The Company fails to perform or
observe any term or covenant contained in Section 8.1, 8.5, 8.6,
8.17(1) or 8.19 (or the Parent shall fail to perform its
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agreement in the Parent Guaranty to comply with Section 8.1), and
such default shall continue unremedied for a period of 10 days
after the earlier of (i) the date upon which a Responsible
Officer knew or reasonably should have known of such failure or
(ii) the date upon which written notice thereof is given to the
Company by the Administrative Agent or any Lender; or the
Company, Parent or any Subsidiary fails to perform or observe any
term or covenant contained in this Agreement (other than Section
7.3 or Article VIII) or any other Loan Document, and such default
shall continue unremedied for a period of 30 days after the
earlier of (x) the date upon which a Responsible Officer knew or
reasonably should have known of such failure or (y) the date upon
which written notice thereof is given to the Company by the
Administrative Agent or any Lender.
(e) Cross-Default. (i) The Company, Parent or any
Subsidiary (A) fails to make any payment in respect of any
Indebtedness or Contingent Obligation (other than in respect of
Swap Contracts) having an aggregate principal amount (including
undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit
arrangement) of more than $10,000,000 when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or
otherwise but subject to any applicable grace period) or (B)
fails to perform or observe any other condition or covenant, or
any other event shall occur or condition shall exist, under any
agreement or instrument relating to any such Indebtedness or
Contingent Obligation, if the effect of such failure, event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness
(or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, such Indebtedness to be
declared to be due and payable prior to its stated maturity, or
such Contingent Obligation to become payable, or cash collateral
in respect thereof to be demanded or (ii) there occurs under any
Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap
Contract as to which the Company or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) as to which the Company or any
Subsidiary is an Affected Party (as so defined), and, in either
event, the Swap Termination Value owed by the Company or such
Subsidiary as a result thereof is greater than $5,000,000.
(f) Insolvency; Voluntary Proceedings. The Company,
Parent or any Material Subsidiary: (i) ceases or fails to be
solvent, or generally fails to pay, or admits in writing its
inability to pay, its debts as they become due; (ii) voluntarily
ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or
(iv) takes any action to effectuate or authorize any of the
foregoing.
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the Company,
Parent or any Material Subsidiary, or any writ, judgment, warrant
of attachment, warrant of execution or similar process is issued
or levied against a substantial part of the Company's, Parent's
or any Material Subsidiary's properties, and such proceeding or
petition shall not be dismissed, or such writ, judgment, warrant
of attachment, warrant of execution or similar process shall not
be released, vacated or fully bonded within 60 days after
commencement, filing or levy; (ii) the Company, Parent or any
Material Subsidiary admits the material allegations of a petition
against it in any Insolvency Proceeding,
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or an order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) the Company,
Parent or any Material Subsidiary acquiesces in the appointment
of a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor) or other similar
Person for itself or a substantial portion of its property or
business.
(h) ERISA. (i) One or more ERISA Events shall occur
with respect to a Pension Plan or Multiemployer Plan which has
resulted or could reasonably be expected to result in liability
of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess
of $10,000,000; (ii) a contribution failure shall have occurred
with respect to a Pension Plan sufficient to give rise to a Lien
under Section 302(f) of ERISA; or (iii) the Company or any ERISA
Affiliate shall fail to pay when due, after the expiration of any
applicable grace period, one or more installment payments with
respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan which results in an aggregate
withdrawal liability in excess of $10,000,000.
(i) Monetary Judgments. One or more judgments, orders,
decrees or arbitration awards is entered against the Company,
Parent or any Subsidiary involving in the aggregate a liability
(to the extent not covered by independent third-party insurance
as to which the insurer does not dispute coverage), as to any
single or related series of transactions, incidents or
conditions, of $10,000,000 or more, and the same shall remain
undischarged, unvacated and unstayed pending appeal for a period
of 30 days after the entry thereof, or the Company, Parent or any
Subsidiary shall enter into any agreement to settle or compromise
any pending or threatened litigation, as to any single or related
series of claims, involving payment by the Company, Parent or any
Subsidiary of $10,000,000 or more.
(j) Non-Monetary Judgments. Any non-monetary judgment,
order or decree is entered against the Company, Parent or any
Subsidiary which has or would reasonably be expected to have a
Material Adverse Effect, and there shall be any period of 30
consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect.
(k) Change of Control. Any Change of Control occurs.
(1) Guarantor Defaults. Any Guaranty shall cease to be
in full force and effect with respect to any Guarantor (other
than as expressly permitted hereunder), any Guarantor shall fail
to comply with or to perform any applicable provision of any
Guaranty, or any Guarantor (or any Person acting by, through or
on behalf of such Guarantor) shall contest in any manner the
validity, binding nature or enforceability of any Guaranty with
respect to such Guarantor.
(m) Collateral Documents, etc. Any Collateral Document
shall cease to be in full force and effect with respect to the
Company, Parent or any Subsidiary (other than pursuant to its
terms or as expressly permitted hereunder), or the Company,
Parent or any Subsidiary (or any Person acting by, through or on
behalf of the Company, Parent or any Subsidiary) shall contest in
any manner the validity, binding nature or enforceability of any
Collateral Document.
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(n) Merger. The Merger shall not have become effective
within three Business Days of the Closing Date.
9.2 Remedies. If any Event of Default occurs, the
Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders do any or all of the following:
(a) declare the commitment of each Lender to make
Loans and any obligation of the Issuing Lender to Issue Letters
of Credit to be terminated, whereupon such commitments and
obligations shall be terminated (provided, that if any Event of
Default occurs after the making of the Term Loans, the Revolving
Commitments shall, at the request of, or may, with the consent
of, the Required Revolving Lenders (and not the Required
Lenders), be terminated);
(b) declare an amount equal to the maximum aggregate
amount that is or at any time thereafter may become available for
drawing under any outstanding Letter of Credit (whether or not
any beneficiary shall have presented, or shall be entitled at
such time to present, the drafts or other documents required to
draw under such Letter of Credit) to be immediately due and
payable, and declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon, and
all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Lenders all
rights and remedies available to it and the Lenders under the
Loan Documents or applicable law;
provided, however, that upon the occurrence of any Event of
Default specified in subsection 9.1(f) or , the obligation of
each Lender to make Loans and the obligation of the Issuing
Lender to Issue Letters of Credit shall automatically terminate
and the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically
become due and payable without further act of the Administrative
Agent, the Issuing Lender or any other Lender.
9.3 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies
provided by law or in equity, or under any other instrument,
document or agreement now existing or hereafter arising.
ARTICLE X
THE AGENTS
10.1 Appointment and Authorization. (a) Each Lender hereby
irrevocably (subject to Section 10.9) appoints, designates and
authorizes the Administrative Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as
are expressly delegated to it by the terms of this Agreement or
any other Loan Document, together with such powers as are
reasonably incidental thereto. Each Lender hereby appoints BTCO,
as Documentation Agent for the Lenders and The
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First National Bank of Boston, Citicorp USA, Inc., General
Electric Capital Corporation and The Long-Term Credit Bank of
Japan, Ltd., Los Angeles Agency as Co-Agents for the Lenders. The
Documentation Agent and the Co-Agents, in their capacities as
such, shall have no rights or duties hereunder or under any other
Loan Document. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan
Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor
shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent. Without
limiting the generality of the foregoing sentence, the use of the
term "agent" in this Agreement and in the other Loan Documents
with reference to the Administrative Agent is not intended to
connote any fiduciary or other implied (or express) obligation
arising under agency doctrine of any applicable law. Instead,
such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship
between independent contracting parties.
(b) The Issuing Lender shall act on behalf of the
Lenders with respect to any Letters of Credit Issued by it and
the documents associated therewith until such time and except for
so long as the Administrative Agent may agree at the request of
the Required Lenders to act for the Issuing Lender with respect
thereto; provided, however, that the Issuing Lender shall have
all of the benefits and immunities (i) provided to the
Administrative Agent in this Article X with respect to any acts
taken or omissions suffered by the Issuing Lender in connection
with Letters of Credit Issued by it or proposed to be Issued by
it and the applications and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term
"Administrative Agent", as used in this Article X, included the
Issuing Lender with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the
Issuing Lender.
10.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
10.3 Liability of Administrative Agent. None of the
Agent-Related Persons shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with
this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or
willful misconduct) or (b) be responsible in any manner to any of
the Lenders for any recital, statement, representation or
warranty made by the Company or any Subsidiary or Affiliate of
the Company, or any officer thereof, contained in this Agreement
or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or
received by the Administrative Agent under or in connection with,
this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or the existence, creation,
validity, attachment, perfection, enforceability, value or
sufficiency of any collateral security for the Obligations or for
any failure of the Company or any other party to any Loan
98
Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the
properties, books or records of the Company or any of the
Company's Subsidiaries or Affiliates.
10.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to the Company),
independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it
deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of
the Required Lenders and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the
Lenders.
10.5 Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any
Event of Default or Unmatured Event of Default, except with
respect to defaults in the payment of principal, interest and
fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall
have received written notice from a Lender or the Company
referring to this Agreement, describing such Event of Default or
Unmatured Event of Default and stating that such notice is a
"notice of default". The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative
Agent shall take such action with respect to such Event of
Default or Unmatured Event of Default as may be requested by the
Required Lenders in accordance with Article IX; provided,
however, that unless and until the Administrative Agent has
received any such request, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Event of Default or
Unmatured Event of Default as it shall deem advisable or in the
best interest of the Lenders.
10.6 Credit Decision. Each Lender acknowledges that none of
the Agent-Related Persons has made any representation or warranty
to it, and that no act by the Administrative Agent hereafter
taken, including any review of the affairs of the Company and its
Subsidiaries, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Lender. Each Lender
represents to the Administrative Agent that it has, independently
and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition
and creditworthiness of the Company and its Subsidiaries, and all
applicable bank regulatory laws relating to the transactions
99
contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Company hereunder. Each
Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and
other documents expressly herein required to be furnished to the
Lenders by the Administrative Agent, the Administrative Agent
shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Company which may come into the
possession of any of the Agent-Related Persons.
10.7 Indemnification of Agents. Whether or not the
transactions contemplated hereby are consummated, the Lenders
shall indemnify upon demand the Agents and the Agent-Related
Persons (to the extent not reimbursed by or on behalf of the
Company and without limiting the obligation of the Company to do
so), pro rata, from and against any and all Indemnified
Liabilities incurred by the Agents or the Agent-Related Persons
in their capacities as such; provided, however, that no Lender
shall be liable for the payment to any Agent or Agent-Related
Person of any portion of the Indemnified Liabilities resulting
solely from such Person's gross negligence or willful misconduct.
Without limitation of the foregoing, to the extent the same are
not reimbursed by the Company, each Lender shall reimburse each
Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by
such Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities
under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that such
Agent is not reimbursed for such expenses by or on behalf of the
Company. The undertaking in this Section shall survive the
payment of all Obligations hereunder and the resignation or
replacement of any Agent.
10.8 Administrative Agent in Individual Capacity. BofA and
its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though BofA were not the
Administrative Agent hereunder and without notice to or consent
of the Lenders. The Lenders acknowledge that, pursuant to such
activities, BofA or its Affiliates may receive information
regarding the Company or its Affiliates (including information
that may be subject to confidentiality obligations in favor of
the Company or such Affiliates) and acknowledge that the
Administrative Agent shall be under no obligation to provide such
information to them. With respect to its Loans, BofA and any
Affiliate thereof shall have the same rights and powers under
this Agreement as any other Lender and may exercise the same as
though BofA were not the Administrative Agent.
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10.9 Successor Administrative Agent. The Administrative
Agent may, and at the request of the Required Lenders shall,
resign as Administrative Agent upon 30 days' notice to the
Lenders and the Company. If the Administrative Agent resigns
under this Agreement, the Required Lenders shall have the right,
with the consent of the Company so long as no Event of Default or
Unmatured Event of Default has occurred and is continuing (which
consent shall not be unreasonably withheld or delayed), to
appoint from among the Lenders a successor agent for the Lenders.
If no successor agent is appointed prior to the effective date of
the resignation of the Administrative Agent, the Administrative
Agent may appoint, after consulting with the Lenders and the
Company, a successor agent from among the Lenders. Upon the
acceptance of its appointment as successor agent hereunder, such
successor agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term
"Administrative Agent" shall mean such successor agent and the
retiring Administrative Agent's appointment, powers and duties as
Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Article X and Sections 11.4 and
11.5 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under
this Agreement. If no successor agent has accepted appointment as
Administrative Agent by the date which is 30 days following a
retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of
the duties of the Administrative Agent hereunder until such time,
if any, as the Required Lenders appoint a successor agent as
provided for above. Notwithstanding the foregoing, however, BofA
may not be removed as the Administrative Agent at the request of
the Required Lenders unless BofA and any Affiliate thereof acting
as the Issuing Lender or Swingline Lender hereunder shall also
simultaneously be replaced as the Issuing Lender and Swingline
Lender pursuant to documentation in form and substance reasonably
satisfactory to BofA (and, if applicable, such Affiliate).
10.10 Withholding Tax. (a) If any Lender is a "foreign
corporation, partnership or trust" within the meaning of the Code
and such Lender claims exemption from, or a reduction of, U.S.
withholding tax under Section 1441 or 1442 of the Code, such
Lender shall deliver to the Administrative Agent and the Company:
(i) if such Lender claims an exemption from, or a
reduction of, withholding tax under a United States tax
treaty, properly completed IRS Forms 1001 and W-8 before
the payment of any interest in the first calendar year and
before the payment of any interest in each third succeeding
calendar year during which interest may be paid under this
Agreement;
(ii) if such Lender claims that interest paid under
this Agreement is exempt from United States withholding tax
because it is effectively connected with a United States
trade or business of such Lender, two properly completed
and executed copies of IRS Form 4224 before the payment of
any interest is due in the first taxable year of such
Lender and in each succeeding taxable year of such Lender
during which interest may be paid under this Agreement, and
IRS Form W-9;
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(iii) if such Lender is not a "bank" within the
meaning of Section 881(c) (3) (A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224,
such Lender shall deliver (A) a certificate substantially
in the form of Exhibit L and (B) two properly completed and
signed copies of Internal Revenue Service Form W-8
certifying that such Lender is entitled to an exemption
from United States withholding tax with respect to payments
of interest to be made under this Agreement and any Note;
and
(iv) such other form or forms as may be required under
the Code or other laws of the United States as a condition
to exemption from, or reduction of, United States
withholding tax.
Each such Lender agrees to promptly notify the Administrative
Agent and the Company of any change in circumstances which would
modify or render invalid any claimed exemption or reduction.
(b) If any Lender claims exemption from, or reduction
of, withholding tax under a United States tax treaty by providing
IRS Form 1001 and such Lender sells, assigns, grants a
participation in, or otherwise transfers all or part of the
Obligations of the Company to such Lender, such Lender agrees to
notify the Administrative Agent and the Company of the percentage
amount in which it is no longer the beneficial owner of
Obligations of the Company to such Lender. To the extent of such
percentage amount, the Administrative Agent and the Company will
treat such Lender's IRS Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United
States withholding tax by filing IRS Form 4224 with the
Administrative Agent and the Company sells, assigns, grants a
participation in, or otherwise transfers all or part of the
Obligations of the Company to such Lender, such Lender agrees to
undertake sole responsibility for complying with the withholding
tax requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the
applicable withholding tax, the Administrative Agent or the
Company, as the case may be, may withhold from any interest
payment to such Lender an amount equivalent to the applicable
withholding tax after taking into account such reduction. If the
forms or other documentation required by subsection (a) of this
Section are not timely delivered to the Administrative Agent, or
the Company, as the case may be, then the Administrative Agent or
the Company, as the case may be, may withhold from any interest
payment to such Lender not providing such forms or other
documentation an amount equivalent to the applicable withholding
tax without reduction.
(e) If the IRS or any other Governmental Authority of
the United States or other jurisdiction asserts a claim that the
Administrative Agent or the Company did not properly withhold tax
from amounts paid to or for the account of any Lender (because
the appropriate form was not delivered or was not properly
executed, or because such Lender failed to notify the
Administrative Agent or the Company of a change in circumstances
which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Lender shall
indemnify the Administrative Agent or the Company, as the case
may be, fully for all amounts paid, directly or indirectly, by
the Administrative Agent or the Company, as the case
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may be, as Tax or otherwise, including penalties and interest,
and including any Taxes imposed by any jurisdiction on the
amounts payable to the Administrative Agent or the Company, as
the case may be, under this Section, together with all costs and
expenses (including Attorney Costs). The obligation of the
Lenders under this subsection shall survive the payment of all
Obligations and the resignation or replacement of the
Administrative Agent.
(f) If any Lender claims exemption from, or reduction
of, withholding tax under the Code by providing IRS Form W-8 and
a certificate in the form of Exhibit L and such Lender sells,
assigns, grants a participation in, or otherwise transfers all or
part of the Obligations of the Company to such Lender, such
Lender agrees to notify the Administrative Agent and the Company
of the percentage amount in which it is no longer the beneficial
owner of Obligations of the Company to such Lender. To the extent
of such percentage amount, the Administrative Agent and the
Company will treat such Lender's IRS Form W-8 and certificate in
the form of Exhibit L as no longer valid.
10.11 Collateral Matters. (a) The Administrative Agent is
authorized on behalf of all the Lenders, without the necessity of
any notice to or further consent from the Lenders, from time to
time to take any action with respect to any Collateral or the
Collateral Documents which may be necessary to perfect and
maintain perfected the security interest in and Liens upon the
Collateral granted pursuant to the Collateral Documents.
(b) The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, to
release any Lien granted to or held by the Administrative Agent
upon any Collateral: (i) upon termination of the Commitments and
payment in full of all Loans and all other obligations known to
the Administrative Agent and payable under this Agreement or any
other Loan Document; (ii) constituting property sold or to be
sold or disposed of as part of or in connection with any
disposition permitted hereunder; (iii) constituting property in
which the Company or any Subsidiary owned no interest at the time
the Lien was granted or at any time thereafter; (iv) constituting
property leased to the Company or any Subsidiary under a lease
which has expired or been terminated in a transaction permitted
under this Agreement or is about to expire and which has not
been, and is not intended by the Company or such Subsidiary to
be, renewed or extended; (v) consisting of an instrument
evidencing Indebtedness or other debt instrument, if the
indebtedness thereby has been paid in full; or (vi) if approved,
authorized or ratified in writing by the Required Lenders or, if
required by subsection 11.1(g), all the Lenders. Upon request by
the Administrative Agent at any time, the Lenders will confirm in
writing the Administrative Agent's authority to release
particular types or items of Collateral pursuant to this
subsection 10.11(b).
(c) Each Lender agrees with and in favor of each other
(which agreement shall not be for the benefit of the Company or
any Subsidiary) that any security interest in real property
collateral received by a Lender in connection with the extension
of any loan or financial commitment between such Lender and the
Company or any of its Affiliates and not related to the
transactions contemplated hereby shall not constitute collateral
for the Company's obligations under this Agreement or any other
Loan Document.
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(d) (i) Any and all proceeds of disposition or other
realization on the Collateral or from any realization on any
Guaranty received by the Administrative Agent in connection with
any enforcement, sale, collection (including judicial or
non-judicial foreclosure) or similar proceedings with respect to
the Collateral or a demand or other enforcement or collection
with respect to any Guaranty shall be applied by the
Administrative Agent, as follows:
FIRST: To the payment of the reasonable costs and
expenses of such disposition, collection or other realization,
including Attorney Costs, and all reasonable expenses,
liabilities and advances made or incurred by the Administrative
Agent in connection therewith;
SECOND: To the ratable payment of the Liabilities then
due and owing to the Lender Parties; provided that with
respect to Liabilities consisting of the undrawn amounts of
outstanding Letters of Credit, payment shall be made to the
Administrative Agent, to be retained as Cash Collateral,
for the ratable portion of the Liabilities consisting of
such undrawn amount of outstanding Letters of Credit
(provided that (A) if any such Letter of Credit is drawn
upon, the Administrative Agent shall distribute (ratably in
accordance with subsection 3.4(a)) the Cash Collateral
therefor which is allocable to the amount drawn upon such
Letter of Credit to the Issuing Lender and, if any
Revolving Lenders have paid the Administrative Agent for
the account of the Issuing Lender for such Revolving
Lender's participation in such Letter of Credit in
accordance with Section 3.3, the Revolving Lenders entitled
to receive such distribution and (B) if and to the extent
that any such Letter of Credit shall expire or terminate,
the amount of Cash Collateral therefor shall be applied in
accordance with this subsection 10.11(d) (i)), calculated
in accordance with the provisions of subsection 10.11(d)
(ii); and
THIRD: After payment in full of all Liabilities, any
surplus then remaining from such proceeds shall be paid to
the Company or to whomsoever may be lawfully entitled to
receive the same or paid as a court of competent
jurisdiction may direct.
Until such proceeds are so applied, the Administrative
Agent shall hold such proceeds in its custody in accordance with
its regular procedures for handling deposited funds.
(ii) Payment of proceeds of Collateral or of any
realization on any Guaranty to any Lender Party shall be based
upon the proportion which the amount of such Liabilities of such
Lender Party bears to the total amount of all Liabilities of all
such Lender Parties. For purposes of determining the
proportionate amounts of all Liabilities sharing in any such
distribution, (A) the amount of the outstanding Obligations shall
be deemed to be the Effective Amount of the Loans and Letters of
Credit and all accrued interest, fees and costs with respect
thereto and (B) the amount under any outstanding Swap Contract
shall be deemed to be the amount of the Permitted Swap
Obligations then due and payable (including early termination
payments then due) in connection therewith and all accrued
interest and fees with respect thereto, after giving effect to
any netting of payments to which the Company is entitled with
respect to such Swap Contract vis-a-vis the Company's
counterparty to such Swap Contract.
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(iii) Payments of proceeds of Collateral or of any
realization on any Guaranty by the Administrative Agent in
respect of (i) the Obligations shall be made to the
Administrative Agent for distribution to the Lenders pro rata and
(ii) any Swap Contract shall be made as directed by the Lender
Party to which the same is owed.
ARTICLE XI
MISCELLANEOUS
11.1 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no
consent with respect to any departure by the Company therefrom,
shall be effective unless the same shall be in writing and signed
by the Required Lenders and the Company and acknowledged by the
Administrative Agent, and then any such waiver or consent shall
be effective only if in writing and in the specific instance and
for the specific purpose for which given; provided that:
(a) no such waiver, amendment or consent shall
increase or extend any Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 9.2) without the
written consent of such Lender;
(b) no such waiver, amendment or consent shall
postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of regularly scheduled principal or
interest on any Loan without the written consent of the Lender
holding such Loan (provided, that any date fixed for repayment of
principal of any Term A Loan may be postponed or delayed (but not
beyond March 31, 2003) with the consent of Term A Lenders with an
aggregate Term A Percentage of at least 66-2/3%);
(c) no such waiver, amendment or consent relating to
the definition of "Mandatory Prepayment Event" or to any
provision of this Agreement or any other Loan Document which
would result in any increased or decreased mandatory prepayment
of any Loan, or any increased or decreased mandatory reduction of
any Commitment, shall be made without the written consent of the
Required Revolving Lenders, Required Term A Lenders and Required
Term B Lenders;
(d) no such waiver, amendment or consent shall reduce
the principal of, or the rate of interest specified herein on,
any Loan without the written consent of the Lender holding such
Loan;
(e) no such waiver, amendment or consent shall
(subject to clause (m) below) reduce any fees payable hereunder
or under any other Loan Document, or postpone or delay any date
fixed by this Agreement or any other Loan Document for the
payment of fees or any other amounts due to any Lender hereunder
or under any other Loan Document, without the written consent of
the Lender to whom such fee or other amount is owing;
(f) no such waiver, amendment or consent shall (w)
change the aggregate percentage of the Total Percentage which is
required for the Lenders or any of them to take any
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action hereunder without the written consent of all Lenders, (x)
amend the definition of "Required Revolving Lenders" without the
written consent of all Revolving Lenders, (y) amend the
definition of "Required Term A Lenders" without the written
consent of all Term A Lenders or (z) amend the definition of
"Required Term B Lenders" without the written consent of all Term
B Lenders;
(g) no such waiver, amendment or consent shall release
any Guaranty or Parent or any Subsidiary from its respective
obligations under the Loan Documents to which it is a party or
release all or substantially all of the collateral securing the
Obligations without the written consent of all Lenders;
(h) no such waiver, amendment or consent shall amend
or waive any provision of this Section or Section 2.15, or any
other provision herein providing for consent or other action by
all Lenders, without the written consent of all Lenders;
(i) after the making of the Term Loans, Sections 2.3,
2.4 (as it relates to conversions and continuations of Revolving
Loans), 2.6, 2.7 (as it relates to an optional prepayment of
Revolving Loans), 2.8(b) or 2.9(c) or Article III may be amended,
or the rights or privileges thereunder waived, with the written
consent of the Required Revolving Lenders (or, in the case of
Section 2.9(c), all of the Revolving Lenders), the Company and
the acknowledgment of the Administrative Agent;
(j) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Lender in addition to the
Required Lenders or all Lenders, as the case may be, affect the
rights or duties of the Issuing Lender under this Agreement or
any L/C-Related Document relating to any Letter of Credit Issued
or to be Issued by it;
(k) no amendment, waiver or consent shall, unless in
writing and signed by the Swingline Lender in addition to the
Required Lenders or all Lenders, as the case may be, affect the
rights and duties of the Swingline Lender under this Agreement;
(1) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the
Required Lenders or all Lenders, as the case may be, affect the
rights or duties of the Administrative Agent under this Agreement
or any other Loan Document; and
(m) the Fee Letter may be amended, or rights or
privileges thereunder waived, in writing executed by the parties
thereto.
11.2 Notices. (a) All notices, requests and other
communications hereunder shall be in writing (including, unless
the context expressly otherwise provides, by facsimile
transmission, provided that any matter transmitted by the Company
by facsimile (i) shall be immediately followed by a telephone
call to the recipient at the number specified on Schedule 11.2,
and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered to the address
or facsimile number specified for notices on Schedule 11.2; or,
as directed to the Company or the Administrative Agent, to such
other address as shall be
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designated by such party in a written notice to the other
parties, and as directed to any other party, at such other
address as shall be designated by such party in a written notice
to the Company and the Administrative Agent.
(b) All such notices, requests and communications
shall, when transmitted by overnight delivery, or faxed, be
effective when delivered, or transmitted in legible form by
facsimile machine, respectively, or if mailed, upon the third
Business Day after the date deposited into the U.S. mail, return
receipt requested; except that notices to the Administrative
Agent pursuant to Article II, III or X shall not be effective
until actually received by the Administrative Agent, and notices
pursuant to Article III to the Issuing Lender shall not be
effective until actually received by the Issuing Lender at the
address specified for the "Issuing Lender" on Schedule 11.2.
(c) Any agreement of the Administrative Agent and the
Lenders herein to receive certain notices by telephone or
facsimile is solely for the convenience and at the request of the
Company. The Administrative Agent and the Lenders shall be
entitled to rely on the authority of any Person purporting to be
a Person authorized by the Company to give such notice and the
Administrative Agent and the Lenders shall not have any liability
to the Company or any other Person on account of any action taken
or not taken by the Administrative Agent or the Lenders in
reliance upon such telephonic or facsimile notice. The obligation
of the Company to repay the Loans and L/C Obligations shall not
be affected in any way or to any extent by any failure of the
Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt
by the Administrative Agent and the Lenders of a confirmation
which is at variance with the terms understood by the
Administrative Agent and the Lenders to be contained in the
telephonic or facsimile notice.
11.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative
Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
11.4 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated
hereby are consummated, pay or reimburse the Administrative
Agent, the Documentation Agent and the Arranger and their
Affiliates (including BofA in its capacities as Swingline Lender
and Issuing Lender) within five Business Days after demand
therefor (subject to subsection 5.1(f)) for all reasonable and
documented costs and expenses incurred by such Agents and the
Arranger and their Affiliates in connection with the preparation,
delivery, administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or
not consummated), this Agreement, any Loan Document and any other
document prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby,
including Attorney Costs incurred by such Agents and the Arranger
with respect thereto; and
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(b) pay or reimburse the Administrative Agent and each
Lender within five Business Days after demand therefor (subject
to subsection 5.1(f)) for all costs and expenses (including
Attorney Costs) incurred by them in connection with the
enforcement, attempted enforcement or preservation of any right
or remedy under this Agreement or any other Loan Document during
the existence of an Event of Default or after acceleration of the
Loans (including in connection with any "workout" or
restructuring regarding the Loans and including in any Insolvency
Proceeding or appellate proceeding).
11.5 Company Indemnification. Whether or not the
transactions contemplated hereby are consummated, the Company
shall indemnify and hold the Agent-Related Persons, each Agent
and each Lender and each of their respective Affiliates,
officers, directors, employees, counsel, agents and
attorneys-in-fact (each an "Indemnified Person") harmless from
and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, charges,
expenses and disbursements (including Attorney Costs) of any kind
or nature whatsoever which may at any time (including, at any
time following repayment of the Loans, the termination of the
Letters of Credit and the termination, resignation or replacement
of the Administrative Agent or replacement of any Lender) be
imposed on, incurred by or asserted against any such Person in
any way relating to or arising out of this Agreement or any
document contemplated by or referred to herein, or the
transactions contemplated hereby or thereby, or any action taken
or omitted by any such Person under or in connection with any of
the foregoing, including with respect to any investigation,
litigation or proceeding (including any Insolvency Proceeding or
appellate proceeding or any investigation, litigation or
proceeding related to any environmental cleanup, audit,
compliance or other matter relating to the protection of the
environment or the Release by the Company or any of its
Subsidiaries of any Hazardous Material) related to or arising out
of this Agreement or the Loans or Letters of Credit or the use of
the proceeds thereof, whether or not any Indemnified Person is a
party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that the Company shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified
Liabilities resulting solely from the gross negligence or willful
misconduct of such Indemnified Person. The agreements in this
Section shall survive payment of all other Obligations. Each
Agent-Related Person and each Lender agrees that in the event
that any investigation, litigation or proceeding is asserted or
threatened in writing or instituted against it or any other
Indemnified Person, or any remedial, removal or response action
which is requested of it or any other Indemnified Person, for
which any Agent-Related Person or Lender may desire indemnity or
defense hereunder, such Agent-Related Person or such Lender shall
notify the Company in writing of such event; provided that
failure to so notify the Company shall not affect the right of
any Agent-Related Person or Lender to seek indemnification under
this Section.
11.6 Payments Set Aside. To the extent that the Company
makes a payment to the Administrative Agent or the Lenders, or
the Administrative Agent or the Lenders exercise their right of
set-off, and such payment or the proceeds of such set-off or any
part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Administrative
Agent or such Lender in its discretion) to be repaid to a trustee
or receiver, or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of
such recovery, the obligation or part
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thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not
been made or such set-off had not occurred and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand
its pro rata share of any amount so recovered from or repaid by
the Administrative Agent.
11.7 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns,
except that the Company may not assign or transfer any of its
rights or obligations under this Agreement without the prior
written consent of the Administrative Agent and each Lender.
11.8 Assignments, Participations, etc. (a) Any Lender may,
with the written consent of the Company at all times other than
during the existence of an Event of Default and with the written
consents of the Administrative Agent and, in case of an
assignment of a Revolving Commitment or L/C Obligations, the
Issuing Lender and the Swingline Lender, which consents shall not
be unreasonably withheld or delayed, at any time assign and
delegate to one or more Eligible Assignees (provided that no
written consent of the Company, the Administrative Agent, the
Issuing Lender or the Swingline Lender shall be required in
connection with any assignment and delegation by a Lender to a
Person described in clause (ii), (iii) or (iv) of the definition
of Eligible Assignee) (each, an "Assignee") all, or any part, of
the Loans, the Revolving Commitment, the L/C Obligations and the
other rights and obligations of such Lender hereunder, in a
minimum amount of $5,000,000 (or, if less, all of such Lender's
remaining rights and obligations hereunder or all of such
Lender's rights and obligations with respect to Revolving
Commitment and Revolving Loans, Term A Loans or Term B Loans) or
such lesser amount as may be approved by the Company and the
Administrative Agent (provided that such minimum amount shall not
apply to assignments by a Lender to Persons described in clause
(ii), (iii) or (iv) of the definition of Eligible Assignee)
provided, however, that (A) the Company, the Administrative
Agent, the Issuing Lender and the Swingline Lender may continue
to deal solely and directly with such Lender in connection with
the interest so assigned to an Assignee until (i) written notice
of such assignment, together with payment instructions, addresses
and related information with respect to the Assignee shall have
been given to the Company and the Administrative Agent by such
Lender and the Assignee, (ii) such Lender and the Assignee shall
have delivered to the Company and the Administrative Agent an
Assignment and Acceptance in the form of Exhibit K (an
"Assignment and Acceptance") together with any Note or Notes
subject to such assignment and (iii) the assignor Lender or the
Assignee has paid to the Administrative Agent a processing fee in
the amount of $3,500 and (B) the Company shall not, as a result
of any assignment by any Lender to any of such Lender's
Affiliates, incur any increased liability for Taxes, Other Taxes
or Further Taxes pursuant to Section 4.1. The Company designates
the Administrative Agent as its agent for maintaining a book
entry record of ownership identifying the Lenders, their
respective addresses and the amount of the respective Loans and
Notes which they own. The foregoing provisions are intended to
comply with the registration requirements in Treasury Regulation
Section 5f.103-1 so that the Loans and Notes are considered to be
in "registered form" pursuant to such regulation.
(b) From and after the date that the Administrative
Agent notifies the assignor Lender that it has provided its
consent, and received the consents of the Swingline Lender, the
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Issuing Lender and (if applicable) the Company, with respect to
an executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) the Assignee thereunder
shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations
of a Lender under the Loan Documents, and (ii) the assignor
Lender shall, to the extent that rights and obligations hereunder
and under the other Loan Documents have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Loan Documents.
(c) Any Lender may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company
(a "Participant") participating interests in any Loan, the
Revolving Commitment of such Lender and the other interests of
such Lender (the "originating Lender") hereunder and under the
other Loan Documents; provided, however, that (i) the originating
Lender's obligations under this Agreement shall remain unchanged,
(ii) the originating Lender shall remain solely responsible for
the performance of such obligations, (iii) the Company, the
Swingline Lender, the Issuing Lender and the Administrative Agent
shall continue to deal solely and directly with the originating
Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents and
(iv) no Lender shall transfer or grant any participating interest
under which the Participant has rights to approve any amendment
to, or any consent or waiver with respect to, this Agreement or
any other Loan Document, except to the extent such amendment,
consent or waiver would require unanimous consent of the Lenders
or the consent of a particular Lender or the consent of the
Required Revolving Lenders, Required Term A Lenders or Required
Term B Lenders, in each case as described in clauses (a) through
(h) of the proviso to Section 11.1. In the case of any such
participation, the Participant shall be entitled to the benefit
of Sections 4.1, 4.3 and 11.5 as though it were also a Lender
hereunder (provided, with respect to Sections 4.1 and 4.3, the
Company shall not be required to pay any amount which it would
not have been required to pay if no participating interest had
been sold), and if amounts outstanding under this Agreement are
due and unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, the
Participant shall be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender
under this Agreement. Each Lender which sells a participation
will maintain a book entry record of ownership identifying the
Participant(s) and the amount of such participation(s) owned by
such Participant(s). Such book-entry record of ownership shall be
maintained by the Lender as agent for the Company and the
Administrative Agent. This provision is intended to comply with
the registration requirements in Treasury Regulation Section
5f.103-1 so that the Loans and Notes are considered to be in
"registered form" pursuant to such regulation. Each Lender may
furnish any information concerning the Company and its
Subsidiaries in the possession of such Lender from time to time
to participants and prospective participants and may furnish
information in response to credit inquiries consistent with
general banking practice.
(d) Notwithstanding any other provision in this
Agreement, (i) any Lender may at any time assign all or any
portion of its rights under and interest in this Agreement and
any Note held by it to any Affiliate of such Lender that is an
"Eligible Assignee" or create a
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security interest in, or pledge all or any portion of its rights
under and interest in this Agreement and any Note held by it in
favor of any Federal Reserve Bank in accordance with Regulation A
of the FRB or U.S. Treasury Regulation 31 ss. CFR 203.14, and
such Federal Reserve Bank may enforce such pledge or security
interest in any manner permitted under applicable law and (ii)
any Lender which is a fund may, with the consent of the Company,
the Administrative Agent, and in the case of an assignment of a
Revolving Commitment or L/C Obligations, the Issuing Lender and
the Swingline Lender, pledge all or any portion of its Loans and
Notes to its trustee in support of its obligations to its
trustee.
11.9 Confidentiality. Each Lender agrees to take, and to
cause its Affiliates to take, normal and reasonable precautions
and exercise due care to maintain the confidentiality of all
nonpublic information provided to it by the Company or any
Subsidiary, or by the Administrative Agent on the Company's or
any Subsidiary's behalf, under this Agreement or any other Loan
Document, and neither such Lender nor any of its Affiliates shall
use any such information other than in connection with or in
enforcement of this Agreement and the other Loan Documents or in
connection with other business now or hereafter existing or
contemplated with the Company or any Subsidiary, except to the
extent such information (i) was or becomes generally available to
the public other than as a result of disclosure by such Lender or
(ii) was or becomes available on a non-confidential basis from a
source other than the Company (provided that such source is not
bound by a confidentiality agreement with the Company or any
Subsidiary known to such Lender); provided, however, that any
Lender may disclose such information (A) at the request or
pursuant to any requirement of any Governmental Authority to
which such Lender is subject or in connection with an examination
of such Lender by any such authority, (B) pursuant to subpoena or
other court process, (C) when required to do so in accordance
with the provisions of any applicable Requirement of Law, (D) to
the extent reasonably required in connection with any litigation
or proceeding to which the Administrative Agent or any Lender or
any of their respective Affiliates may be party, (E) to the
extent reasonably required in connection with the exercise of any
remedy hereunder or under any other Loan Document, (F) to such
Lender's independent auditors and other professional advisors,
(G) to any Participant or Assignee, actual or potential, or to
direct or indirect contractual counterparties to swap agreements
or such contractual counterparties' professional advisors
provided that such Person or contractual counterparty or
professional advisor to such contractual counterparty agrees in
writing to keep such information confidential to the same extent
required of the Lenders hereunder, (H) as to any Lender or its
Affiliate, as expressly permitted under the terms of any other
document or agreement regarding confidentiality to which the
Company or any Subsidiary is party or is deemed party with such
Lender or such Affiliate, (I) to its Affiliates and (J) to the
National Association of Insurance Commissioners or any similar
organization or, with the consent of the Company (not to be
unreasonably withheld or delayed), any nationally recognized
rating agency that requires access to information about such
Lender's investment portfolio in connection with ratings issued
to such Lender.
11.10 Set-off. In addition to any right or remedy of the
Lenders provided by law, if an Event of Default exists, or the
Loans have been accelerated, each Lender is authorized at any
time and from time to time, without prior notice to the Company,
any such notice being waived by the Company to the fullest extent
permitted by law, to set off and apply any and all deposits
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(general or special, time or demand, provisional or final) at any
time held by, and other indebtedness at any time owing by, such
Lender or any Affiliate of such Lender to or for the credit or
the account of the Company against any and all Obligations owing
to such Lender, now or hereafter existing, irrespective of
whether or not the Administrative Agent or such Lender shall have
made demand under this Agreement or any other Loan Document and
although such Obligations may be contingent or unmatured and each
Affiliate of such Lender is hereby irrevocably authorized to
permit such set-off and application. Each Lender agrees promptly
to notify the Company and the Administrative Agent after any such
set-off and application made by such Lender; provided that the
failure to give such notice shall not affect the validity of such
set-off and application.
11.11 Automatic Debits of Fees. With respect to any
commitment fee, arrangement fee, agency fee, letter of credit fee
or other fee, or any other cost or expense (including Attorney
Costs) due and payable to the Administrative Agent, the Swingline
Lender or the Issuing Lender under the Loan Documents, the
Company hereby irrevocably authorizes BofA to debit any deposit
account of the Company with BofA in an amount such that the
aggregate amount debited from all such deposit accounts does not
exceed such fee or other cost or expense. If there are
insufficient funds in such deposit accounts to cover the amount
of the fee or other cost or expense then due, such debits will be
reversed (in whole or in part, in BofA's sole discretion) and
such amount not debited shall be deemed to be unpaid. No such
debit under this Section shall be deemed a set-off.
11.12 Notification of Addresses, Lending Offices, Etc. Each
Lender shall notify the Administrative Agent in writing of any
change in the address to which notices to such Lender should be
directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the
Administrative Agent shall reasonably request.
11.13 Counterparts. This Agreement may be executed in any
number of separate counterparts, each of which, when so executed,
shall be deemed an original, and all of which taken together
shall constitute but one and the same instrument.
11.14 Severability. The illegality or unenforceability of
any provision of this Agreement or any instrument or agreement
required hereunder shall not in any way affect or impair the
legality or enforceability of the remaining provisions of this
Agreement or such instrument or agreement.
11.15 No Third Parties Benefited. This Agreement is made
and entered into for the sole protection and legal benefit of the
Company, the Lenders, the Administrative Agent and the Agent
Related Persons, and their permitted successors and assigns, and
no other Person shall be a direct or indirect legal beneficiary
of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any other Loan Document.
11.16 Governing Law and Jurisdiction. (a) THIS
AGREEMENT AND ANY NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF NEW YORK;
PROVIDED THAT THE
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ADMINISTRATIVE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT AND
THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH OF THE
COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR
ANY DOCUMENT RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE
AGENT AND THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY NEW YORK LAW.
11.17 Waiver of Jury Trial. THE COMPANY, THE LENDERS AND
THE ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN
ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED
PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT
CLAIMS, TORT CLAIMS OR OTHERWISE. THE COMPANY, THE LENDERS AND
THE ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE
OF ACTION SHALL BE TRIED BY A COURT WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENT, RENEWAL, SUPPLEMENT OR MODIFICATION TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.18 Entire Agreement. This Agreement, together with the
other Loan Documents, embodies the entire agreement and
understanding among the Company, the Lenders and the Agents, and
supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
113
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
DEL MONTE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Treasurer
S-1
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent
By: /s/ Xxxx X. Xxxxxxxx
Title: Managing Director
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Issuing Lender
By: /s/ Xxxx X. Xxxxxxxx
Title: Managing Director
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Swingline Lender
By: /s/ Xxxx X. Xxxxxxxx
Title: Managing Director
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Lender
By: /s/ Xxxx X. Xxxxxxxx
Title: Managing Director
S-2
BANKERS TRUST COMPANY, as
Documentation Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
S-3
CITICORP USA, INC., as Co-Agent and as a
Lender
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Attorney-in-fact and Vice President
S-4
THE FIRST NATIONAL BANK OF BOSTON,
as Co-Agent and as a Lender
By: /s/ Xxxxx X. Xxxxx
Title: Managing Director
S-5
GENERAL ELECTRIC CAPITAL
CORPORATION, as Co-Agent and as a
Lender
By: /s/ Xxxxxxx XxXxxxxxx
Title:
S-6
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY,
as Co-Agent and as a Lender
By: /s/ Xxxx X. Xxxxxxxx
Title: Deputy General Manager
S-7
ABN AMRO BANK N.V., as a Lender
By: /s/ [signature illegible]
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxx
Title: AVP
S-8
BHF-BANK AKTIENGESELLSCHAFT, as a
Lender
By: /s/ Xxxxxxx Xxxxxx
Title: Assistant Treasurer
By: /s/ Xxxx XxXxxxxxx
Title: Vice President
S-9
CREDIT LYONNAIS LOS ANGELES
BRANCH, as a Lender
By: /s/ Xxxxx Xxxxxx
Title: Vice President
S-10
THE FIRST NATIONAL BANK OF
CHICAGO, as a Lender
By: /s/ Xxxxxxxxxx Xxxxxxx
Title: Authorized Agent
S-11
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxxx Xxxxx
Title: AVP
S-12
XXXXXXX XXXXX CREDIT PARTNERS
L.P., as a Lender
By: /s/ Xxxxxx X. Xxxxx
Title: Authorized Signatory
S-13
MARINE MIDLAND BANK, as a Lender
By: /s/ X.X. Xxxxx
Title: Senior Vice President
S-14
XXXXXX BANK LTD., NEW YORK
BRANCH as a Lender
By: /s/ X. Xxxxxx
Title: VP
By: /s/ [signature illegible]
Title: VP
S-15
MITSUI LEASING (U.S.A.) INC., as a Lender
By: /s/ Xxxxx Xxxxxx
Title: Senior Vice President
S-16
NATIONAL CITY BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
Title: Vice President
S-17
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND" NEW
YORK BRANCH, as a Lender
By: /s/ Xxx Xxxxx
Title: Vice President & Manager
By: /s/ M. Xxxxxxxxx Xxxxxx
Title: Vice President
X-00
XXX XXXX XX XXX XXXX, as a Lender
By: /s/ Xxxxxxxx Xxxxxxx
Title: Assistant Vice President
X-00
XXX XXXX XX XXXX XXXXXX, as a Lender
By: /s/ Xxxx Xxxxx
Title: Sr. Relationship Manager
S-20
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR, as a Lender
By: /s/ Xxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxx Touffu
Title: 1st Vice President and Regional
Manager
S-21
CITY NATIONAL BANK, as a Lender
By: /s/ Xxx X. Xxxxxxx
Title: Senior Vice President
S-22
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE, as a Lender
By: /s/ Xxxx Xxxxxxx
Title: First Vice President
By: /s/ Xxxxxxx Xxxxxx
Title: Senior Vice President and Deputy
General Manger
X-00
XXXXXXXX XXXX XX, XXX XXXX
BRANCH AND GRAND CAYMAN
BRANCH, as a Lender
By: /s/ Xxxx. X. Xxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
Title: Assistant Treasurer
s-24
XXXXXX FINANCIAL, INC., as a Lender
By: /s/ Xxxxx X. Xxxxxx
Title: Assistant Vice President
S-25
IMPERIAL BANK, a California banking
corporation, as a Lender
By:/s/ Xxxxx X. Xxxxxx
Title: Vice President
S-26
THE INDUSTRIAL BANK OF JAPAN,
Limited, Los Angeles Agency, as a Lender
By: /s/ Xxxx-Xxxx Xxxxxxxxx
Title: SVP & Senior Manager
S-27
THE MITSUBISHI TRUST AND BANKING
CORPORATION, Los Angeles Agency, as a
Lender
By: /s/ Xxxxxxx Xxxxxx
Title: Deputy General Manager
S-28
SANWA BUSINESS CREDIT CORP., as a
Lender
By: /s/ Xxxxxxxx X. Xxxxx
Title: Vice President
S-29
TRANSAMERICA BUSINESS CREDIT
CORPORATION, as a Lender
By: /s/ [signature illegible]
Title: SVP
X-00
XXXXX XXXX XX XXXXXXXXXX, N.A., as a
Lender
By: /s/ Xxxxxx Xxxxxxxx
Title: Vice President
S-31
KZH HOLDING CORPORATION, as a Lender
By: /s/ Xxxxxx Xxxxxxx
Title: Authorized Agent
S-32
METROPOLITAN LIFE INSURANCE
COMPANY, as a Lender
By: /s/ Xxxxx X. Xxxxxxx
Title: Assistant Vice President
S-33
NEW YORK LIFE INSURANCE COMPANY,
as a Lender
By: /s/ Xxxx Xxxxxxx
Title: Managing Director
S-34
OAK HILL SECURITIES FUND, L.P., as a
Lender
By: Oak Hill Securities GenPar, L.P., its
General Partner
By: Oak Hill Securities MGP, Inc., its
General Partner
By: /s/ Xxxxx X. August
Title: President
S-35
XXXXXX XXXXXXX SENIOR FUNDING,
INC., as a Lender
By: /s/ Xxxxxxxxxxx Xxxxxxx
Title: Vice President
S-36
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST, as a
Lender
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
S-37
ALLSTATE LIFE INSURANCE COMPANY,
as a Lender
By: /s/ [signature illegible]
Title: Authorized Signatory
By: /s/ [signature illegible]
Title: Authorized Signatory
S-38
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
By: ING Capital Advisors, Inc., as
Investment Advisor, as a Lender
By: /s/ Xxxxxxx X. Xxxxx
Title: Vice President & Portfolio Manager
S-39
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Managing Director
S-40
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a Unit of The Chase
Manhattan Bank), as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
Title: Managing Director
S-41
PILGRIM AMERICA PRIME RATE TRUST,
as a Lender
By: /s/ Xxxxxx Tiffen
Title: Senior Vice President
S-42
ORIX USA Corporation, as a Lender
By: /s/ [signature illegible]
Title: Senior Vice President
S-43
PPM AMERICA, INC., as attorney in fact, on
behalf of Xxxxxxx National Life Insurance
Company
By: /s/ Xxxxxxx Di Re
Title: Managing Director
S-44
TCW ASSET MANAGEMENT COMPANY as
Attorney-in-Fact for Integon Life Insurance
Corporation, as a Lender
By: /s/ Xxxxxx Xxxxxxxx
Title: SVP
S-45
TCW ASSET MANAGEMENT COMPANY as
Attorney-in-Fact for United Companies Life
Insurance Company, as a Lender
By: /s/ Xxxxxx Xxxxxxxx
Title: SVP
S-46
