EXHIBIT 10.22
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 9, 1997
among
JP FOODSERVICE DISTRIBUTORS, INC.
THE LENDERS PARTY HERETO,
NATIONSBANK, N.A.,
as Administrative Agent,
THE CHASE MANHATTAN BANK,
as Syndication Agent and Co-Arranger,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent
TABLE OF CONTENTS
ARTICLE I DEFINITIONS...............................................................................1
SECTION 1.01. Defined Terms................................................................1
SECTION 1.02. Accounting Terms, Etc.......................................................32
SECTION 1.03. Terms Generally.............................................................32
SECTION 1.04. Directly or Indirectly......................................................32
ARTICLE II. THE LOANS..............................................................................33
SECTION 2.01. Revolving Loans.............................................................33
SECTION 2.02. Swingline Loan Subfacility..................................................35
SECTION 2.03. Letter of Credit Subfacility................................................38
SECTION 2.04 Competitive Loan Subfacility................................................42
SECTION 2.05. Termination and Reduction of Commitments....................................45
SECTION 2.06. Fees........................................................................45
ARTICLE III. ADDITIONAL PROVISIONS REGARDING LOANS.................................................47
SECTION 3.01. Default Rate................................................................47
SECTION 3.02. Prepayments.................................................................47
SECTION 3.03. Extension and Conversion....................................................49
SECTION 3.04. Alternate Rate of Interest..................................................50
SECTION 3.05. Reserve Requirements; Change in Circumstances...............................50
SECTION 3.06. Change in Legality..........................................................52
SECTION 3.07. Indemnity...................................................................52
SECTION 3.08. Mandatory Assignment; Commitment Termination................................53
ARTICLE IV. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; U.S. TAXES; EVIDENCE OF LOANS..............54
SECTION 4.01. Payments and Computations...................................................54
SECTION 4.02. Pro Rata Treatment..........................................................54
SECTION 4.03. Sharing of Payments.........................................................55
SECTION 4.04. Net Payments................................................................56
SECTION 4.05. U.S. Taxes..................................................................56
SECTION 4.06. Evidence of Loans...........................................................58
ARTICLE V. CONDITIONS PRECEDENT....................................................................59
SECTION 5.01. [INTENTIONALLY OMITTED].....................................................59
SECTION 5.02. [INTENTIONALLY OMITTED].....................................................59
SECTION 5.03. Each Extension of Credit....................................................59
SECTION 5.04. Conditions to Restatement Date..............................................60
ARTICLE VI. FINANCIAL STATEMENTS; INFORMATION......................................................61
SECTION 6.01. Reporting Requirements......................................................61
ARTICLE VII. INSPECTION OF PROPERTIES AND BOOKS....................................................66
SECTION 7.01. Inspection Rights of Administrative Agent and Lenders.......................66
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ARTICLE VIII. COVENANTS............................................................................67
SECTION 8.01. Maintenance of Certain Financial Conditions.................................67
SECTION 8.02. Debt Incurrence; Restricted Subsidiary Debt.................................67
SECTION 8.03. Liens.......................................................................69
SECTION 8.04. Sale Leasebacks.............................................................72
SECTION 8.05. Restricted Payments; Restricted Investments.................................72
SECTION 8.06. Subsidiary Stock and Debt...................................................74
SECTION 8.07. Consolidation, Merger, Sale of Assets, etc..................................75
SECTION 8.08. Transactions with Affiliates; Tax Consolidation.............................78
SECTION 8.09. Nature of Business..........................................................79
SECTION 8.10. Books and Records; Fiscal Year..............................................79
SECTION 8.11. Corporate Existence; Licenses...............................................79
SECTION 8.12. Payment of Taxes, Claims for Labor and Materials, etc.......................80
SECTION 8.13. Maintenance of Properties...................................................80
SECTION 8.14. Insurance...................................................................80
SECTION 8.15. Compliance with Laws........................................................81
SECTION 8.16. Environmental Matters.......................................................81
SECTION 8.17. Maintenance of Office.......................................................82
SECTION 8.18. Future Restricted Subsidiaries..............................................82
ARTICLE IX. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.........................................83
SECTION 9.01. Organization and Authority of the Borrower, etc.............................83
SECTION 9.02. Subsidiaries................................................................83
SECTION 9.03. Qualification...............................................................84
SECTION 9.04. Financial Statement.........................................................84
SECTION 9.05. Changes, etc................................................................84
SECTION 9.06. Compliance with Laws, Other Instruments, etc................................84
SECTION 9.07. Consents and Approvals......................................................85
SECTION 9.08. Debt, etc...................................................................85
SECTION 9.09. Title to Property; Leases; Investments; Existing Affiliate Agreements.......86
SECTION 9.10. Litigation..................................................................87
SECTION 9.11. Taxes.......................................................................87
SECTION 9.12. Compliance with ERISA.......................................................87
SECTION 9.13. Use of Loan Proceeds; Margin Regulations....................................88
SECTION 9.14. Licenses, Patents, Trademarks, Authorizations, etc..........................89
SECTION 9.15. Status Under Certain Statutes; Other Regulations............................89
SECTION 9.16. Labor Matters...............................................................90
SECTION 9.17. Full Disclosure.............................................................90
SECTION 9.18. Environmental Matters.......................................................90
SECTION 9.19. Solvency....................................................................91
ARTICLE X. EVENTS OF DEFAULT.......................................................................91
SECTION 10.01. Events of Default..........................................................91
SECTION 10.02. Acceleration; Remedies.....................................................95
ARTICLE XI. ADMINISTRATIVE AGENT...................................................................96
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SECTION 11.01. Appointment and Authorization..............................................96
SECTION 11.02. General Immunity...........................................................96
SECTION 11.03. Consultation with Professionals............................................96
SECTION 11.04. Documents..................................................................96
SECTION 11.05. Rights as a Lender.........................................................97
SECTION 11.06. Responsibility of Administrative Agent.....................................97
SECTION 11.07. Action by Administrative Agent.............................................97
SECTION 11.08. Notices of Event of Default, Etc...........................................98
SECTION 11.09. Indemnification of Administrative Agent....................................98
SECTION 11.10. No Representations.........................................................98
SECTION 11.11. Resignation; Removal.......................................................99
SECTION 11.12. Syndication Agent, Documentation Agent, Co-Arranger and Co-Agent..........100
ARTICLE XII. MISCELLANEOUS........................................................................100
SECTION 12.01. Notices...................................................................100
SECTION 12.02. Survival of Agreement.....................................................101
SECTION 12.03. Binding Effect............................................................101
SECTION 12.04. Benefit of Agreement......................................................101
SECTION 12.05. No Waiver; Remedies Cumulative............................................103
SECTION 12.06. Payment of Expenses, Etc..................................................103
SECTION 12.07. Amendments, Waivers and Consents..........................................104
SECTION 12.08. Counterparts..............................................................104
SECTION 12.09. Headings..................................................................105
SECTION 12.10. Survival of Indemnification...............................................105
SECTION 12.11. Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial....105
SECTION 12.12. Severability..............................................................106
SECTION 12.13. Term......................................................................106
SECTION 12.14. Entirety..................................................................106
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SCHEDULES
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Schedule I Lenders, Lender Addresses and Commitment Percentages
Schedule II Existing Letters of Credit
Schedule III Form of Guarantor Joinder Agreement
Schedule IV Form of Guaranty Agreement
Schedule V Form of Notice of Borrowing
Schedule VA-1 Form of Competitive Bid Request
Schedule VA-2 Form of Notice of Receipt of Competitive Bid Request
Schedule VA-3 Form of Competitive Bid Request
Schedule VA-4 Form of Competitive Bid Accept/Reject Letter
Schedule VI Form of Notice of Extension/Conversion
Schedule VII Existing Investments of the Borrower and Subsidiaries
Schedule VIII Information Concerning Subsidiaries and Qualification
Schedule IX Existing Debt of the Borrower and Subsidiaries
Schedule X Existing Affiliate Agreements
Schedule XI Environmental Matters
Schedule XII Approvals
Schedule XIII Existing Leases of the Borrower and Subsidiaries
Schedule XIV Form of Lender Assignment Agreement
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THIS AMENDED AND RESTATED CREDIT AGREEMENT (as amended from time to time, the
"Agreement"), dated as of June 9, 1997, is made by and among JP FOODSERVICE
DISTRIBUTORS, INC., a Delaware corporation formerly known as JP Foodservice,
Inc. (the "Borrower"); the lenders listed in Schedule I (the "Lenders");
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NATIONSBANK, N.A., a national banking association, as administrative agent for
the Lenders (in such capacity, the "Administrative Agent"); THE CHASE MANHATTAN
BANK, a New York state banking association, as Syndication Agent and
Co-Arranger; THE FIRST NATIONAL BANK OF CHICAGO, as Documentation Agent and PNC
BANK, NATIONAL ASSOCIATION, as Co-Agent.
WHEREAS, a $110 million credit facility has been established in favor of the
Borrower pursuant to the terms of that Credit Agreement dated as of November 10,
1994 (as amended and modified, the "Existing Credit Agreement") among the
Borrower, the lenders identified therein, NationsBank of North Carolina, N.A.,
as Administrative Agent, and The Chase Manhattan Bank, N.A., as Syndication
Agent and Co-Arranger;
WHEREAS, the Borrower has requested that such credit facility be increased and
otherwise modified;
WHEREAS, the Lenders have agreed to the requested increase and modification of
the credit facility pursuant to the terms of this Amended and Restated Credit
Agreement; and
WHEREAS, this Agreement is given in amendment to, restatement of and
substitution for the Existing Credit Agreement and, subject to the terms of this
Agreement, on the Restatement Date all loans, letters of credit and other
obligations of the Borrower outstanding as of such date under the Existing
Credit Agreement shall be deemed to be loans and obligations outstanding under
this Agreement;
NOW, THEREFORE, upon the terms and subject to the conditions and relying on the
representations and warranties contained in this Agreement, the parties hereto
hereby (i) agree that the Existing Credit Agreement is hereby amended, restated
in its entirety to read as provided for in this Agreement, and reaffirmed as of
the Restatement Date, (ii) further agree that all terms and provisions of the
Existing Credit Agreement are of no further force and effect except as
specifically restated herein, (iii) agree that on the Restatement Date all
loans, Existing Letters of Credit and other obligations of the Borrower to the
Lenders outstanding as of the Restatement Date under the Existing Credit
Agreement shall be renewed and deemed to be Loans, Letters of Credit, and other
obligations outstanding hereunder, and (iv) further agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
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As used in this Agreement, the following terms shall have the meanings
specified below:
"Additional Portion" shall have the meaning assigned to such term in
Section 8.07(f)(ii).
"Administrative Agent" shall have the meaning assigned to such term in
the heading hereof.
"Administrative Agent's Fee Letter" means that letter agreement dated
as of March 7, 1997 between the Borrower and the Administrative Agent, as
amended and modified.
"Affiliate" shall mean, with respect to any designated Person, any
other Person (a) directly or indirectly, through one or more intermediaries,
controlling or controlled by or under direct or indirect common control with
such designated Person, (b) which beneficially owns or holds 5% or more of the
shares of any class of Voting Stock (or in the case of a Person which is not a
corporation, 5% or more of the equity interest) of such designated Person, or
(c) 5% or more of any class of the Voting Stock (or in the case of a Person
which is not a corporation, 5% or more of the equity interest) of which is
beneficially owned or held by such designated Person; provided, however, that
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none of the Lenders shall be deemed to be an Affiliate of the Borrower or any of
its Subsidiaries solely by reason of ownership of any obligations of the
Borrower to such Lender hereunder and under the other Credit Documents or by
reason of having the benefits of any agreements or covenants of the Borrower
contained in this Agreement. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of Voting Stock (or other equity interest) or by contract or
otherwise.
"Agents' Fees" shall have the meaning assigned to such term in Section
2.06(c).
"Agreement" shall have the meaning assigned to such term in the heading
hereof.
"Alternative Assets" shall mean, in connection with any proposed sale
of assets constituting an Excluded Sale, fixed assets (whether new, additional
or replacement assets but exclusive of assets acquired in the course of regular
upkeep and maintenance) which (a) are similar in nature or purpose to other
assets owned or leased by the Borrower and/or its Restricted Subsidiaries prior
to or at the time of the acquisition of such fixed assets and useful in the
conduct of the business of the Borrower and its Restricted Subsidiaries as
permitted to be conducted pursuant to Section 8.09 and (b) have a fair market
value at least equal to the amount required pursuant to subdivision (f)(ii) of
Section 8.07 to be applied to the purchase or acquisition or construction
thereof.
"Applicable Margin" shall mean, for purposes of calculating (i) the
applicable interest rate for any day for any Eurodollar Loan, (ii) the
applicable rate for the Facility Fee for any day for purposes of Section 2.06(a)
or (iii) the Standby Letter of Credit Fee for any standby Letter of Credit for
purposes of Section 2.06(b)(i), the applicable margin corresponding to the Total
Debt Ratio described below in effect as of the most recent Determination Date:
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Applicable
Applicable Margin
Margin Applicable for
for Margin Standby
Pricing Total Debt Eurodollar for Letters of
Level Ratio Loans Facility Fee Credit
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V Greater than 3.5 to 1.0 42.5 bps 17.5 bps 42.5 bps
IV Equal to or less than 3.5 to 1.0 32.5 bps 15.0 bps 32.5 bps
but greater than 3.25 to 1.0
III Equal to or less than 3.25 to 1.0 27.5 bps 12.5 bps 27.5 bps
but greater than 2.75 to 1.0
II Equal to or less than 2.75 to 1.0 22.5 bps 10.0 bps 22.5 bps
but greater than 2.25 to 1.0
I Equal to or less than 2.25 to 1.0 17.5 bps 7.5 bps 17.5 bps
Determination of the appropriate Applicable Margins based on the Total Debt
Ratio shall be made as of each Determination Date. The Total Debt Ratio to in
effect as of a Determination Date shall establish the Applicable Margins that
shall be effective as of the date designated by the Administrative Agent as the
Applicable Margin Change Date. The Administrative Agent shall determine the
Applicable Margins as of each Determination Date occurring after the Closing
Date and shall promptly notify the Borrower and the Lenders of the Applicable
Margins so determined and of the related Applicable Margin Change Date. Such
determinations by the Administrative Agent of the Applicable Margin shall be
rebuttably presumptive evidence thereof absent manifest error. As of the
Restatement Date and until the first Applicable Margin Change Date, (a) the
Applicable Margin for purposes of calculating the applicable interest rate for
any Eurodollar Loan shall be 27.5 bps, (b) the Applicable Margin for purposes of
calculating the Facility Fee shall be 12.5 bps and (c) the Applicable Margin for
purposes of calculating the Standby Letter of Credit Fee shall be 27.5 bps.
"Applicable Margin Change Date" shall mean, with respect to any
Determination Date, a date designated by the Administrative Agent that is not
more than five (5) Business Days after receipt by the Administrative Agent of
the Required Financial Information for such Determination Date.
"Application Period" shall have the meaning assigned to such term in
Section 8.07(f)(ii).
"Approvals" shall have the meaning assigned to such term in Section
5.01(f).
"Arranger" shall mean NationsBanc Capital Markets, Inc.
"Attributable Debt" shall mean, with respect to any Sale Leaseback
(other than a Sale Leaseback which shall have been entered into in compliance
with subdivision (b) of Section
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8.04), as of any date of determination, the lesser of (a) the fair market value
of the property subject to such Sale Leaseback (as determined by the Board of
Directors) at the time of sale thereof and (b) the present value (discounted in
accordance with GAAP at the debt rate implicit in the lease of such property) as
of such date of determination of all amounts (whether designated as rentals or
additional or supplemental rentals or otherwise) payable by the lessee during
the remaining term of such Sale Leaseback (including any period for which such
Sale Leaseback has been extended and any renewal periods as to which the lessor
has the option), excluding, however, amounts so payable on account of
maintenance, ordinary repairs, insurance, taxes, assessments and other similar
charges.
"Available Fund" shall having the meaning assigned to such term in
Section 3.02(b)(ii).
"Base Rate" shall mean, for any day, a rate per annum (rounded upwards,
if necessary, to the nearest whole multiple of 1/16 of 1%) equal to the greater
of (a) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% or
(b) the Prime Rate in effect on such day. For purposes hereof, (i) "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by NationsBank as its prime rate in effect at its principal office in Charlotte,
North Carolina; each change in the Prime Rate shall be effective on the date
such change is publicly announced as effective and (ii) "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System, or, if
such rate is not so released for any day which is a Business Day, the arithmetic
average (rounded upwards to the next 1/100th of 1%), as determined by the
Administrative Agent, of the quotations for the day of such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it. If for any reason the Administrative Agent
shall have determined (which determination shall be rebuttably presumptive
evidence thereof absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance with
the terms hereof, the Base Rate shall be determined without regard to clause (a)
of the first sentence of this definition until the circumstances giving rise to
such inability no longer exist. Any change in the Base Rate due to a change in
the Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
"Base Rate Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Base Rate in accordance with the provisions of
Article II.
"Board of Directors" shall mean, the Board of Directors of the Borrower
or a duly authorized committee of directors lawfully exercising the relevant
powers of such Board of Directors.
"Borrower Group Member" shall mean the Borrower, each Subsidiary, and
each of their respective predecessors and (a) each corporation that is or was at
any time a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Borrower or any Subsidiary, or any
of their respective predecessors, (b) each trade or business, whether or not
incorporated, that is or was at any time under common control (within the
4
meaning of Section 414(c) of the Code) with the Borrower or any Subsidiary, or
any of their respective predecessors, and (c) each trade or business, whether or
not incorporated, that is or was at any time a member of the same affiliated
service group (within the meaning of Sections 414(m) and (o) of the Code) as the
Borrower or any Subsidiary, or any of their respective predecessors.
"Borrower Premises" shall mean real property in which the Borrower, any
Subsidiary, or any Person which has been a Subsidiary at any time has or ever
had any direct or indirect interest, including, without limitation, ownership
thereof, or any arrangement for the lease, rental or other use thereof, or the
retention or claim of any mortgage or security interest therein or thereon.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of North Carolina) on which banks
are open for business in Charlotte, North Carolina; provided, however, that,
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when used in connection with a Eurodollar Loan, the term "Business Day" shall
also exclude any day on which banks are not open for dealings in dollar deposits
in the London interbank market.
"Business or Condition", of any Person, shall mean the business,
operations, assets, properties, earnings or condition (financial or other) of
such Person, provided that, such term, when used without reference to any
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particular Person, shall mean the Business or Condition of the Borrower and of
the Borrower and its Restricted Subsidiaries taken as a whole.
"Capital Contribution" shall have the meaning assigned to such term in
Section 5.02(l).
"Capital Lease" shall mean, as applied to any Person, any lease of any
property (whether real, personal or mixed) by such Person as lessee which would,
in accordance with GAAP, be required to be classified and accounted for as a
capital lease on the balance sheet of such Person or in the notes thereto, other
than, in the case of any Restricted Subsidiary, any such lease under which the
Borrower or a Predominantly Owned Restricted Subsidiary is the lessor.
"Capital Lease Obligation" shall mean, as at any date, with respect to
any Capital Lease, the amount of the obligation of the lessee thereunder which
would, in accordance with GAAP, appear on a balance sheet of such lessee or in
the notes thereto in respect of such Capital Lease.
"Change of Control" shall mean any acquisition subsequent to the
Closing Date by any Person or group of Persons (within the meaning of Section 13
or 14 of the Exchange Act), other than one or more of (x) the Management Group,
or (y) any persons comprising a group controlled (as defined in Rule 12b-2 under
the Exchange Act) by the Management Group, of (a) beneficial ownership (within
the meaning of Rule 13d-3 under the Exchange Act) of a majority of the Voting
Stock of the Borrower or (so long as the Borrower shall be a Subsidiary of JPF)
of JPF or (b) all or substantially all of the properties and assets of the
Borrower. For purposes of this definition, "acquisition" by any Person or
Persons of the Voting Stock or properties and assets referred to in the
preceding sentence shall mean the earlier of (i) the actual possession
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thereof and (ii) the consummation of any transaction or series of transactions
which, with the passage of time, will give such Person or Persons the actual
possession thereof.
"Chase" shall mean The Chase Manhattan Bank, a New York state banking
association.
"Closing Date" shall mean the date of the original Credit Agreement,
being November 10, 1994.
"Co-Agent" shall mean PNC Bank, National Association, as identified in
the heading hereto.
"Co-Arranger" shall mean The Chase Manhattan Bank, a New York state
banking association.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
any successor statute thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time.
"Commission" shall mean the Securities and Exchange Commission and any
other similar or successor agency of the Federal government administering the
Securities Act and the Exchange Act.
"Commitment" shall mean, (i) with respect to each Lender, the
commitment of such Lender (A) to make Revolving Loans in an aggregate principal
amount at any time outstanding of up to such Lender's Commitment Percentage
multiplied by the Revolving Committed Amount (as such Revolving Committed Amount
may be reduced from time to time pursuant to Section 2.05), and (B) to purchase
Participation Interests in the Swingline Loans in accordance with the provisions
of Section 2.02(b)(iii) and in the Letters of Credit in accordance with the
provision of Section 2.03(c), (ii) with respect to the Swingline Lender, the
commitment of the Swingline Lender to make Swingline Loans in an aggregate
principal amount at any time outstanding of up to the Swingline Committed Amount
and (iii) with respect to the Issuing Lender, the commitment of the Issuing
Lender to issue Letters of Credit in an aggregate face amount at any time
outstanding (together with the amounts of any unreimbursed drawings thereon) of
up to the LOC Committed Amount.
"Commitment Percentage" shall mean, for each Lender, the percentage
identified as its Commitment Percentage opposite such Lender's name on Schedule
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I, as such percentage may be modified in connection with any assignment made in
-
accordance with the terms of Section 12.04(b).
"Competitive Bid" means an offer by a Lender to make a Competitive Loan
pursuant to the terms of Section 2.04.
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"Competitive Bid Rate" means, as to any Competitive Bid made by a
Lender in accordance with the provisions of Section 2.04, the fixed rate of
interest offered by the Lender making the Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with the provisions of Section 2.04(b).
"Competitive Bid Request Fee" shall have the meaning assigned to such
term in Section 2.06(d).
"Competitive Loan" means a loan made by a Lender in its discretion
pursuant to the provisions of Section 2.04.
"Competitive Loan Lenders" means, at any time, those Lenders which have
Competitive Loans outstanding.
"Competitive Loan Maximum Amount" shall have the meaning assigned to
such term in Section 2.04(a).
"Computation Period" have the meaning assigned to such term in Section
8.05.
"Consolidated Net Income" shall mean, for any period, the net income
(or deficit) of the Borrower and its Restricted Subsidiaries for such period
(taken as a cumulative whole) after deducting, without duplication, operating
expenses, provisions for all taxes and reserves (including reserves for deferred
income taxes) and all other proper deductions (excluding amortization of
Effective Date Intangibles), all determined in accordance with GAAP on a
consolidated basis, after eliminating all inter-company items and after
deducting portions of income properly attributable to outside minority
interests, if any, in the stock and surplus of any Restricted Subsidiary;
provided, however, that there shall in any event be excluded from Consolidated
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Net Income (without duplication):
(a) the income (or deficit) of any Person accrued prior to
the date it becomes a Restricted Subsidiary or is merged into or
consolidated with the Borrower or a Restricted Subsidiary;
(b) any amount representing the interest of the Borrower or
any Restricted Subsidiary in the earnings of any Person other than a
Restricted Subsidiary, except to the extent that any such earnings have
been actually received by the Borrower or such Restricted Subsidiary in
the form of cash dividends or similar distributions;
(c) any portion of the net income of a Restricted Subsidiary
which for any reason is unavailable for the payment of dividends to the
Borrower or another Restricted Subsidiary;
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(d) any deferred credit (or amortization of a deferred
credit) representing the excess of the equity in any Person at the date
of acquisition thereof over the cost of the Investment in such Person;
(e) any gain during such period arising from (i) the sale,
exchange or other disposition of capital assets (such term to include
all fixed assets, whether tangible or intangible (other than trucks,
forklifts, trailers, scrubbers, sweepers, refrigerators or like
equipment disposed of by the Borrower or a Restricted Subsidiary in the
ordinary course of business), and all securities) to the extent the
aggregate gains from such transactions exceed losses during such period
from such transactions, (ii) any reappraisal, revaluation or write-up
of assets after the date of the most recent audited financial
statements referred to in Section 9.04, (iii) the acquisition of any
securities of the Borrower or a Restricted Subsidiary or (iv) the
termination of any Plan;
(f) the proceeds of any life insurance policy; and
(g) any item properly classified as extraordinary in
accordance with GAAP;
and provided further, however, that (x) in determining Consolidated Net Income
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for any period during which the Borrower shall have sold the Xxxxxxx Facility,
losses from such sale or other disposition shall be disregarded to the extent
the aggregate amount of all such losses (computed without regard to Effective
Date Intangibles allocable to such facility) does not exceed $3,300,000 on an
after tax basis and (y) gains in excess of losses during any period from the
sale or other disposition by the Borrower or a Restricted Subsidiary in the
ordinary course of business of trucks, forklifts, trailers, scrubbers, sweepers,
refrigerators or like equipment shall not be excluded from Consolidated Net
Income for such period.
"Consolidated Net Tangible Assets" shall mean, as of any date, the
consolidated assets of the Borrower and its Restricted Subsidiaries appearing on
a consolidated balance sheet of the Borrower and its Restricted Subsidiaries
prepared in accordance with GAAP as of such date less the sum (without
duplication) of all amounts which would appear on such balance sheet in respect
of (a) reserves for depreciation, depletion, obsolescence and/or amortization of
properties and all other reserves properly attributable to assets set aside in
connection with the business conducted by the Borrower and its Restricted
Subsidiaries, (b) goodwill, trademarks, tradenames, copyrights, patents,
licenses, permits, franchises, unamortized debt discount and expense,
experimental and organization expense and all other assets which under GAAP are
deemed intangible, (c) any write-up in the book value of any assets subsequent
to the date of the most recent audited financial statements referred to in
Section 9.04, (d) Restricted Investments (valued at the book value thereof) and
(e) all liabilities other than deferred taxes.
"Consolidated Net Worth" shall mean, as of any date, the excess of (a)
the sum of capital stock (but excluding capital stock subscribed for but
unissued) and surplus (including retained earnings, additional paid-in capital
and the balance of the current profit and loss account not transferred to
surplus) accounts of the Borrower and its Restricted Subsidiaries appearing on a
consolidated balance sheet of the Borrower and its Restricted Subsidiaries
prepared in
8
accordance with GAAP as of such date, after eliminating all intercompany
transactions and all amounts properly attributable to outside minority interests
in Restricted Subsidiaries over (b) the amount obtained by subtracting (i) the
aggregate amortization of Effective Date Intangibles in accordance with GAAP
subsequent to the Effective Date to and including such date of determination to
the extent such amortization has reduced the surplus accounts of the Borrower
and its Restricted Subsidiaries appearing on a balance sheet of the Borrower and
its Restricted Subsidiaries prepared in accordance with GAAP as of the Effective
Date (after giving effect to the consummation of the Recapitalization) from (ii)
----
the aggregate amount appearing in respect of Effective Date Intangibles on such
balance sheet as of the Effective Date (after giving effect to the consummation
of the Recapitalization).
"Credit Documents" shall mean this Agreement, the LOC Documents, the
Guaranty Agreement (including any Guarantor Joinder Agreement) and all other
related agreements and documents issued or delivered under this Agreement or
under the Guaranty Agreement (including any Guarantor Joinder Agreement) or
pursuant hereto or thereto.
"Debt" shall mean, as applied to any Person, as of any date of
determination (without duplication):
(a) all obligations of such Person for borrowed money or
evidenced by bonds, debentures, notes, drafts or similar instruments,
or upon which interest payments are customarily made;
(b) all obligations of such Person for all or any part of
the deferred purchase price of property or services (other than trade
accounts payable arising in the ordinary course of business which are
not overdue by more than 30 days or which are being contested in good
faith by appropriate proceedings) or for the cost of property
constructed or of improvements;
(c) all obligations secured by any Lien ((other than a Lien
deemed to exist in connection with any Permitted Receivables Financing
(including any related filings of financing statements) provided that
(i) for purposes of Section 8.01(c), all Permitted Receivables
Financing Amounts shall be considered Debt, (ii) the Borrower or any of
its Restricted Subsidiaries may consummate a Permitted Receivables
Financing otherwise permitted by the terms of this Agreement
notwithstanding the provisions of Section 8.02, provided that the
Permitted Receivables Financing Amount in respect of such Permitted
Receivables Financing shall be considered Debt in any computation
otherwise required by (or by reference to) Section 8.02 and (iii) for
no purpose other than determination of "Total Debt Ratio" as used
herein (including as used in the definition of "Applicable Margin" and
in section 8.01(c) hereof) shall any obligation incurred by the
Borrower or any of its Restricted Subsidiaries pursuant to any
Permitted Receivables Financing be considered Debt, and it being
understood and agreed that the Permitted Receivables Financing Amount
in respect of any Permitted Receivables Financing shall be deemed to be
an obligation secured by Liens in connection with a Permitted
Receivables Financing)) on or payable out of the proceeds of production
from property owned or held by such
9
Person even though such Person has not assumed or become liable for the
payment of such obligations;
(d) all Capital Lease Obligations of such Person;
(e) all preferred stock issued by such Person or required by
the terms thereof to be redeemed, or for which mandatory sinking fund
payments are due, by a fixed date;
(f) all obligations of such Person, contingent or otherwise,
in respect of any letter of credit facility, bankers' acceptance
facility or other similar credit facility, exclusive, however, of
obligations in respect of any letter of credit issued solely for the
benefit of a state agency or insurance carrier in connection with the
maintenance by such Person of casualty, medical or workers'
compensation insurance through such agency or insurance carrier;
(g) the aggregate amount of the net liability exposure of
such Person under all Hedging Agreements (which net liability exposure
in respect of any such Hedging Agreement shall, for purposes hereof, be
deemed to be an amount equal to (i) the actual net liability exposure
of such Person under such Hedging Agreement to the extent realized
(upon culmination or termination of such Hedging Agreement or
otherwise) and no longer contingent or (ii) to the extent the net
liability exposure of such Person under such Hedging Agreement has not
been actually realized and is contingent, the product of (A) the then
current notional principal amount of such Hedging Agreement multiplied
----------
by (B) the number of years (or portions thereof) then remaining to the
--
date of maturity of such Hedging Agreement multiplied by (C) 0.75%);
-------------
and
(h) all Guaranties by such Person of or with respect to
obligations of the character referred to in the foregoing clauses (a)
through (g) of another Person;
provided, however, that in determining the Debt of the Borrower, so long as the
-------- -------
Xxxx Xxx Offset Agreement shall remain in full force and effect and shall be
effective to permit the offset of principal and interest due under the Xxxx Xxx
Note against principal and interest due under PYA's Note (or to establish the
Borrower's obligation in respect of the indebtedness evidenced by the Xxxx Xxx
Note from and after a prepayment in full of PYA's Note as the remaining
principal balance of the Xxxx Xxx Note after offset against amounts owing
thereon of the principal of and accrued and unpaid interest to the date of
prepayment on the PYA Note), the Debt evidenced by the Xxxx Xxx Note shall be
deemed equal to the net amounts for which the Borrower is obligated under the
Xxxx Xxx Offset Agreement.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Determination Date" shall mean each date which shall be the last day
of a fiscal quarter of the Borrower.
10
"Documentation Agent" means The First National Bank of Chicago, as
identified in the heading hereto.
"Dollars", "dollars" or "$" shall mean lawful money of the United
States of America.
"Effective Date" shall mean the date (being on or about November 15,
1994) on which the conditions set forth in Section 5.02 to the making of the
initial Extension of Credit hereunder (other than the issuance of the Existing
Letters of Credit) shall have been fulfilled and on which the initial Extension
of Credit (other than the issuance of the Existing Letters of Credit) shall have
been made.
"Effective Date Intangibles" shall mean all goodwill and other
intangible assets that appear on a consolidated balance sheet of the Borrower
and its Restricted Subsidiaries prepared in accordance with GAAP as of the
Effective Date immediately after giving effect to the consummation of the
Recapitalization.
"Eligible Assignee" shall mean (i) any Lender or any Affiliate or
Subsidiary of a Lender, and (ii) any other commercial bank acceptable to the
Administrative Agent and the Borrower.
"Environmental Claims" shall have the meaning assigned to such term in
Section 9.18.
"Environmental Law" shall mean any past, present or future Federal,
state, local or foreign statutory or common law, or any regulation, ordinance,
code, plan, Order, permit, grant, franchise, concession, restriction or
agreement issued, entered, promulgated or approved thereunder, relating to (a)
the environment, human health or safety, including, without limitation,
emissions, discharges, releases or threatened releases of Hazardous Substances
into the environment, or (b) the manufacture, generation, refining, processing,
distribution, use, sale, treatment, receipt, storage, disposal, transport,
arranging for transport, or handling of Hazardous Substances.
"Environmental Permits" shall mean, collectively, any and all permits,
consents, licenses, approvals and registrations of any nature at any time
required pursuant to or in order to comply with any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"Eurocurrency Liabilities" shall have the meaning assigned to such term
in Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Loan" shall mean any Revolving Loan bearing interest at a
rate determined by reference to the Eurodollar Rate in accordance with the
provisions of Article II.
11
"Eurodollar Rate" shall mean for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including conversions,
extensions and renewals), a per annum interest rate equal to the per annum rate
determined by the Administrative Agent on the basis of the offered rates for
deposits in dollars for a period of time corresponding to such Interest Period
(and commencing on the first day of such Interest Period), which appear on the
Reuters Screen LIBO Page as of 11:00 a.m. (London time) two (2) Business Days
before the first day of such Interest Period (provided that, if at least two
--------
such offered rates appear on the Reuters Screen LIBO Page, the rate in respect
of such Interest Period will be the arithmetic mean of such offered rates). As
used herein, "Reuters Screen LIBO Page" means the display designated as page
"LIBO" on the Reuters Monitor Money Rates Service (or such other page as may
replace the LIBO page on that service for the purpose of displaying London
interbank offered rates of major banks).
"Eurodollar Rate Reserve Percentage" shall mean, in respect of any
Lender and any Interest Period relating to any Eurodollar Loan of such Lender,
the reserve percentage applicable to such Lender during such Interest Period
under Regulation D of the Board of Governors of the Federal Reserve System (or,
if more than one such percentage shall be so applicable, the daily average of
such percentages for those days in such Interest Period during which any such
percentage shall be so applicable) for determining the reserve requirement
(including, without limitation, any marginal reserve requirement) for such
Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (such Eurocurrency Liabilities having a term equal to
such Interest Period).
"Event of Default" shall have the meaning assigned to such term in
Section 10.01.
"Xxxxxxx Facility" shall mean the facility owned by the Borrower on the
date hereof in Everett, Massachusetts.
"Excess Sale Event" shall having the meaning assigned to such term in
Section 3.02(b)(ii).
"Excess Sale Notice" shall having the meaning assigned to such term in
Section 3.02(b)(ii).
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same may be in effect from time to time.
"Excluded Sale" shall mean any sale of assets permitted pursuant to
subdivision (f)(ii) of Section 8.07 the net proceeds of which to the Borrower
and its Restricted Subsidiaries the Borrower shall be required to apply (or
cause to be applied) as provided in said subdivision.
"Existing Affiliate Agreements" shall have the meaning assigned to such
term in Section 8.08.
12
"Existing Letters of Credit" shall mean each Letter of Credit issued by
NationsBank and outstanding as of the Restatement Date and more fully described
on Schedule II.
-----------
"Extension of Credit" shall mean the making of any Loan (including any
Swingline Loan) hereunder or the issuance, or the extension of the maturity
date, of any Letter of Credit hereunder.
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a).
"Federal Funds Effective Rate" shall have the meaning assigned to such
term within the definition of "Base Rate".
"Fees" shall mean all fees payable pursuant to Section 2.06.
"Fixed Charge Coverage Ratio" shall mean, as of any Determination Date,
the number obtained by dividing (a) Net Income Available for Fixed Charges for
the period ("Coverage Period") of four consecutive fiscal quarters ended on such
Determination Date by (b) Fixed Charges for such Coverage Period.
"Fixed Charges" shall mean, for any period, the sum of the following
amounts: (a) Interest Expense for such period, plus (b) the aggregate amount of
----
Operating Lease Rentals accrued (whether or not actually paid) during such
period.
"Funded Debt" shall mean, as applied to any Person, as of any date of
determination thereof, all Debt of such Person, whether secured or unsecured,
having a final maturity (or which, pursuant to the terms of a revolving credit
agreement or otherwise, is renewable or extendable at the option of such Person
for a period ending) more than one year after such date of determination,
notwithstanding the fact that (a) payments in respect thereof (whether
installment, serial maturity or sinking fund payments or otherwise) are required
to be made by such Person on demand or within one year after such date or (b)
all or any part of the amount thereof is at the time also included in current
liabilities of such Person.
"Further Period" shall have the meaning assigned to such term in
Section 8.07(f)(ii).
"GAAP" shall mean generally accepted accounting principles as from time
to time set forth in the opinions of the Accounting Principles Board of the
American Institute of Certified Public Accountants and in statements by the
Financial Accounting Standards Board or in such opinions and statements of such
other entities as shall be approved by a significant segment of the accounting
profession in the United States of America, but subject to Section 1.02.
"Governmental Body" shall mean any Federal, state, municipal, local or
other governmental department, commission, board, bureau, agency,
instrumentality, political subdivision or taxing authority, of any country.
13
"Guarantor" shall mean each of the Restricted Subsidiaries of the
Borrower which is a party to the Guaranty Agreement, including each Subsidiary
of the Borrower which becomes a party to the Guaranty Agreement pursuant to a
Guarantor Joinder Agreement.
"Guarantor Joinder Agreement" shall mean a Guarantor Joinder Agreement
substantially in the form of Schedule III.
------------
"Guaranty" shall mean, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person with respect to any
indebtedness, lease, dividend or other obligation of another, including, without
limitation, any such obligation directly or indirectly guaranteed, endorsed
(otherwise than for collection or deposit in the ordinary course of business) or
discounted or sold with recourse by such Person, or in respect of which such
Person is otherwise in any manner directly or indirectly liable, including,
without limitation, any such obligation in effect guaranteed by such Person
through any agreement (contingent or otherwise) to (a) purchase, repurchase or
otherwise acquire such obligation or any security therefor, or to provide funds
for the payment or discharge of such obligation (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or (b) maintain
the solvency or any balance sheet or other financial condition of the obligor of
such obligation, or (c) make payment for any products, materials or supplies or
for any transportation or services regardless of the non-delivery or
non-furnishing thereof, in any such case if the purpose or intent of such
agreement is to provide assurance that such obligation will be paid or
discharged, or that any agreements relating thereto will be complied with, or
that the holders of such obligation will be protected against loss in respect
thereof. For purposes of all computations made under this Agreement the amount
of any Guaranty shall be equal to the amount of the obligation guaranteed or, if
not stated or determined, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith.
"Guaranty Agreement" shall mean the Guaranty Agreement in the form
attached as Schedule IV.
-----------
"Hazardous Substances" shall mean and include those substances included
within the definitions of "hazardous substances," "hazardous materials," "toxic
substances" or "solid waste" in the Comprehensive Environmental Response
Compensation and Liability Act of 1980 (42 U.S.C. (S)9601 et seq.) , as amended
-- ---
by Superfund Amendments and Reauthorization Act of 1986 (Pub. L. (S)00-000 000
Stat. 1613), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. (S)
6901 et seq.) and the Hazardous Materials Transportation Act, (49 U.S.C. (S)
-- ---
1801 et seq.), and in the regulations promulgated pursuant to said laws, all as
-- ---
amended; and in any event shall include medical wastes, infectious wastes,
asbestos, paint containing lead, and urea formaldehyde.
"Hedging Agreement" shall mean any agreement entered into by a Person
for protection against future fluctuations in interest rates, foreign exchange
rates, commodities prices, or the like (including, but not limited to, interest
rate and/or currency swap arrangements, interest rate, currency and/or
commodities future or option contracts, and other similar agreements) and which
14
creates a contingent obligation of such Person to make any payments (other than
payments in respect of any fee or charge for contracting to provide the
protection provided by such agreement) to the holder(s) thereof or
counterparty(ies) thereunder upon the culmination or termination of such
agreement or otherwise.
"IDB Debt" shall mean Debt incurred to finance the construction or
acquisition of industrial or pollution control facilities pursuant to state or
local law, the interest borne by which is not, at the time of incurrence
thereof, subject to federal income tax and recourse to the Borrower and its
Restricted Subsidiaries in respect of which is limited solely to the property
subject to such Liens.
"Interest Expense" shall mean, as applied to any Person, for any
period, the sum of the following amounts for such Person: (a) the aggregate
amount of all interest accrued (whether or not actually paid) during such period
on Debt (including, without limitation, (i) imputed interest on Capital Lease
Obligations and (ii) all imputed interest, whether in the form of "yield",
"discount" or other similar item, that accrues in respect of the Permitted
Receivables Financing Amount of any Permitted Receivables Financing entered into
by such Person (or by any Subsidiary of such Person or any other Person
"controlled" (as such term is defined in the Securities Act of 1933 and the
rules and regulations thereunder)), together with any fees payable thereunder,
plus (b) amortization of debt discount and expense during such period, plus (c)
----
all fees and commissions payable in connection with any letters of credit during
such period. Unless otherwise specified, any reference to Interest Expense for
any period is intended as a reference to the sum for such period of said amounts
for the Borrower and its Restricted Subsidiaries on a consolidated basis after
eliminating all intercompany transactions.
"Interest Payment Date" shall mean (i) as to any Base Rate Loan, the
last day of each March, June, September and December, the date of repayment of
the principal of such Loan and the Maturity Date, (ii) as to any Eurodollar Loan
or Competitive Loan, the last day of each Interest Period for such Loan and the
Maturity Date, and in addition where the applicable Interest Period is more than
3 months, then also on the date 3 months from the beginning of the Interest
Period, and each 3 months thereafter and (iii) as to any Quoted Rate Swingline
Loan, the last day of the Interest Period for such Loan and the Maturity Date.
If an Interest Payment Date falls on a date which is not a Business Day, such
Interest Payment Date shall be deemed to be the next succeeding Business Day,
except that in the case of Eurodollar Loans where the next succeeding Business
Day falls in the next succeeding calendar month, then on the next preceding
Business Day.
"Interest Period" shall mean (i) as to any Eurodollar Loan, a period of
one, two, three or six months' duration, as the Borrower may elect, commencing
in each case on the date of the borrowing (including conversions, extensions and
renewals), (ii) as to any Quoted Rate Swingline Loan, a period commencing in
each case on the date of the borrowing and ending on the date agreed to by the
Borrower and the Swingline Lender in accordance with the provisions of Section
2.02(b)(i) (such ending date in any event to be not more than 7 Business Days
from the date of borrowing) , and (iii) as to any Competitive Loan, a period
commencing in each case on the date of borrowing and ending on the date
specified in the applicable Competitive Bid whereby
15
the offer to make such Competitive Loan was extended (such ending date in any
event to be not less than 7 nor more than 180 days from the date of borrowing);
provided, however, (A) if any Interest Period would end on a day which is not a
-------- -------
Business Day, such Interest Period shall be extended to the next succeeding
Business Day (except that, with respect to any Eurodollar Loan, where the next
succeeding Business Day falls in the next succeeding calendar month, then on the
next preceding Business Day), (B) no Interest Period shall extend beyond the
Maturity Date and (C) in the case of Eurodollar Loans, where an Interest Period
begins on a day for which there is no numerically corresponding day in the
calendar month in which the Interest Period is to end, such Interest Period
shall, subject to clause (A) above, end on the last Business Day of such
calendar month.
"Investment" shall mean, as applied to any designated Person, any
direct or indirect purchase or other acquisition by such designated Person for
cash or other property of (a) stock, debt or other securities of any other
Person, or any direct or indirect loan, advance, extension of credit or capital
contribution by such designated Person to any other Person or any Guaranty by
such designated Person with respect to the Debt of such other Person, including
all Debt of and accounts receivable from any such other Person which are not
current assets or did not arise from sales to such other Person in the ordinary
course of business, or (b) any interest in any kind of property or assets,
whether real, personal or mixed, tangible or intangible. In computing the amount
involved in any Investment, (i) undistributed earnings of, and interest accrued
in respect of Debt owing by, any such other Person accrued after the date of
such Investment shall not be included, (ii) there shall not be deducted from the
amounts invested in any such other Person any amounts received as earnings (in
the form of dividends, interest or otherwise) on such Investment or as loans or
advances from such other Person, and (iii) unrealized increases or decreases in
value, or write-ups, write-downs or write-offs, of Investments in any such other
Person shall be disregarded.
"Issuing Lender" shall mean NationsBank, or, if NationsBank shall no
longer be the Administrative Agent, such Lender with shall become the
Administrative Agent hereunder in accordance with the provisions of Section
11.11.
"Issuing Lender Fees" shall have the meaning assigned to such term in
Section 2.06(b)(iii).
"JPF" shall mean JP Foodservice, Inc., a Delaware corporation and the
owner of all of the outstanding stock of the Borrower.
"Lenders" shall have the meaning assigned to such term in the heading
hereof. The term "Lenders" shall also include within the meaning thereof any
Person which becomes a Lender in accordance with the terms of Section 12.04(b).
"Letter of Credit" shall mean (i) any standby letter of credit or any
trade, documentary or merchandise letter of credit issued by the Issuing Lender
for the account of the Borrower in accordance with the terms of Section 2.03 and
(ii) each Existing Letter of Credit.
16
"Licenses" shall have the meaning assigned to such term in Section
9.14.
"Lien" shall mean, as to any Person, any mortgage, lien (statutory or
other), pledge, assignment, hypothecation, adverse claim, charge, security
interest or other encumbrance in or on, or any interest or title of any vendor,
lessor, lender or other secured party to or of such Person under any conditional
sale, trust receipt or other title retention agreement or Capital Lease with
respect to, any property or asset of such Person, or the signing or filing of a
financing statement which names such Person as debtor, or the signing of any
security agreement authorizing any other party as the secured party thereunder
to file any financing statement which names such Person as debtor. For purposes
of this Agreement, a Person shall be deemed to be the owner of any property
which it has placed in trust for the benefit of holders of Debt of such Person
which Debt is deemed to be extinguished under GAAP but for which such Person
remains legally liable, and such trust shall be deemed to be a Lien.
"Loan" or "Loans" shall mean the Revolving Loans (or any Revolving Loan
bearing interest at the Base Rate or the Eurodollar Rate and referred to as a
Base Rate Loan or a Eurodollar Loan), the Swingline Loans and/or the Competitive
Loans, individually or collectively, as appropriate.
"LOC Committed Amount" shall have the meaning assigned to such term in
Section 2.03.
"LOC Documents" shall mean, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (i) the rights and obligations of
the parties concerned or at risk or (ii) any collateral security for such
obligations.
"LOC Obligations" means, at any time, the sum of (i) the maximum amount
which is, or at any time thereafter may become, available to be drawn under
Letters of Credit (including without limitation Existing Letters of Credit) then
outstanding, assuming compliance with all requirements for drawings referred to
in such Letters of Credit plus (ii) the aggregate amount of all drawings under
Letters of Credit honored by the Issuing Lender but not theretofore reimbursed.
For purposes of clause (i) hereof, each trade Letter of Credit shall be deemed
to be outstanding from the date of issuance thereof until and including the
earlier of (A) the date which is thirty (30) days after the stated expiration
date of such trade Letter of Credit or (B) the date on which such trade Letter
of Credit is fully drawn.
"Management Group" shall mean the individuals who on the date hereof
hold the offices of (i) Chairman of the Board and Chief Executive Officer and
(ii) Senior Vice President and Chief Financial Officer, respectively, of JPF.
"Mandate Letter" shall mean the letter agreement dated March 7, 1997,
among the Borrower, NationsBank and NationsBanc Capital Markets, Inc.
17
"Mandatory Borrowing" shall have the meaning assigned to such term in
Section 2.02(b)(iii).
"Material Adverse Change; Material Adverse Effect; Materially Adverse"
in, on or to, as appropriate, any Person, shall mean a material adverse change
in such Person's Business or Condition, a material adverse effect on such
Person's Business or Condition or an event which is materially adverse to such
Person's Business or Condition; provided that, (a) any such term, when used
--------
without reference to any particular Person, shall mean such change in or effect
on or event adverse to, as the case may be, the Borrower and its Restricted
Subsidiaries taken as a whole, and (b) any impairment in any material respect of
the ability of the Borrower and its Restricted Subsidiaries taken as a whole to
pay any principal, interest or Fees in accordance with the terms hereof and of
the other Credit Documents, any material impairment of the ability of the
Borrower and its Restricted Subsidiaries taken as a whole to perform the other
obligations of such Persons under this Agreement and the other Credit Documents,
or any circumstance or occurrence which would impair the enforceability as
against the Borrower or any Restricted Subsidiary of any material term of this
Agreement or any of the other Credit Documents, shall in any case be deemed to
have resulted in a material adverse change in, to have a material adverse effect
on, and to be materially adverse to, the Borrower's Business or Condition.
"Maturity Date" shall mean June 9, 2002.
"Memorandum" shall have the meaning assigned to such term in Section
9.04.
"Multiemployer Plan" shall mean a plan defined as such in Section 3
(37) of ERISA to which any Borrower Group Member is making or incurring an
obligation to make, or has made or incurred an obligation to make,
contributions.
"Multiple Employer Plan" shall mean a Plan to which any Borrower Group
Member, and at least one employer other than a Borrower Group Member, is making
or incurring an obligation to make contributions or has made or incurred an
obligation to make contributions.
"NationsBank" shall mean NationsBank, N.A., a national banking
association.
"Net Income Available for Fixed Charges" shall mean, for any period,
(a) the net income (or deficit) of the Borrower and its Restricted Subsidiaries
determined on a consolidated basis in accordance with GAAP after eliminating all
nonrecurring items (whether cash or non-cash and whether or not deemed
extraordinary in accordance with GAAP) for such period, plus (b) the sum of the
following amounts, in each case to the extent deducted in arriving at the amount
determined in accordance with the foregoing subdivision (a): (i) Interest
Expense, (ii) provisions for taxes imposed on or measured by income or excess
profits, (iii) Operating Lease Rentals accrued (whether or not actually paid),
and (iv) provisions for amortization of Effective Date Intangibles; provided,
--------
however, that in determining the net income (or deficit) of the Borrower and its
-------
Restricted Subsidiaries pursuant to the foregoing subdivision (a) for any period
during which the Borrower shall have sold or otherwise disposed of the Xxxxxxx
Facility, losses from
18
such sale or other disposition shall be disregarded to the extent the aggregate
amount of all such losses (computed without regard to Effective Date Intangibles
attributable to such facility) does not exceed $3,300,000 on an after tax basis.
"Net Receivables" shall mean, on any day, in respect of any Permitted
Receivables Financing, the outstanding balance of accounts receivable sold,
transferred, pledged or otherwise subject to Liens, in each case, to or in favor
of a Receivables Financier (as hereinafter defined) in connection with such
Permitted Receivables Financing, excluding any accounts receivables not included
in the calculation of the Receivables Financier's percentage interest in the
Transferred Assets (as hereinafter defined) (it being understood that only the
percentage interest shall be included in this calculation) or borrowing base
(such excluded accounts receivables may include, without limiting the foregoing
in any manner, any such accounts receivables (x) not meeting the eligibility
criteria under such Permitted Receivables Financing, (y) exceeding the
applicable concentration limits set forth for such Permitted Receivables
Financing, or (z) which are or become defaulted, delinquent, charged-off or
otherwise cease to be creditworthy as set forth in, and as determined in
accordance with, such Permitted Receivables Financing).
"Net Sale Proceeds" shall mean, with respect to any sale of assets, an
amount equal to the excess of
(i) the greater of (x) the aggregate gross sale price
of the assets sold in such sale and (y) the fair market value of such
assets (as determined by the Board of Directors at the time of such
sale) over
(ii) the reasonable and customary costs and expenses
incurred by the Borrower or a Restricted Subsidiary in effecting such
sale.
"Net Worth Minimum" shall mean, as of any date, the sum of $75,000,000
plus on the last day of each fiscal quarter to occur after the Restatement Date
an amount (but not less than zero) equal to 50% of the net income of the
Borrower and its Restricted Subsidiaries for such fiscal quarter, such increases
to be cumulative, determined on a consolidated basis in accordance with GAAP
after eliminating all inter-company items and deducting portions of income
properly attributable to outside minority interests, if any, in Restricted
Subsidiaries and after adding, to the extent deducted in determining such net
income, the amount of any provision for the amortization of Effective Date
Intangibles.
"Note" shall mean any one of the 8.55% Senior Notes due 2004 issued by
the Borrower pursuant to the Note Purchase Agreements, as the same may be
restated, extended, renewed, amended, or otherwise modified and in effect from
time to time.
"Note Guaranties" shall mean those certain Guaranty Agreements, dated
as of the Effective Date, from each Subsidiary of the Borrower which as of the
Closing Date shall be a Restricted Subsidiary, substantially in the form of
Exhibit B-1 to each of the Note Purchase Agreements as originally executed and
delivered, providing among other things for the guaranty by each Restricted
Subsidiary party thereto of all amounts from time to time owing by the
19
Borrower under the respective Note Purchase Agreements, as such Guaranty
Agreements may be amended or otherwise modified from time to time (including by
any joinder agreement in the form of Exhibit B-2 to each of said Note Purchase
Agreements effective to constitute as a Guarantor under and within the meaning
thereof any Subsidiary which on or following the Closing Date shall be
designated or redesignated a Restricted Subsidiary and which shall be or
concurrently become a Guarantor under and within the meaning of the Guaranty
Agreement in compliance with Section 8.18).
"Note Purchase Agreement" shall mean any one of the Note Purchase
Agreements by and between the Borrower and the holder of the Note to be issued
by the Borrower and sold to such holder pursuant to the terms of such Note
Purchase Agreement, as the same may be restated, extended, renewed, amended, or
otherwise modified and in effect from time to time.
"Notice of Borrowing" shall mean a written notice of borrowing in
substantially the form of Schedule V, as required by Section 2.01(b).
----------
"Notice of Extension/Conversion" shall mean a written notice of
continuance or conversion of one or more Loans in substantially the form of
Schedule VI, as required by Section 3.03.
-----------
"Officers' Certificate" shall mean a certificate executed on behalf of
the Borrower by two of its executive officers, one of whom shall be its Chairman
of the Board of Directors (if an officer) or its Chief Executive Officer, or
President or one of its Senior Vice Presidents, and one of whom shall be its
Chief Financial Officer or Treasurer.
"Operating Cash Flow" shall mean, for any period, (a) the net income
(or deficit) of the Borrower and its Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP after eliminating all nonrecurring
items (whether cash or non-cash and whether or not deemed extraordinary in
accordance with GAAP) for such period; plus (b) the sum of the following
----
amounts, in each case to the extent deducted in arriving at such the amount
determined in accordance with the foregoing subdivision (a):
(i) Interest Expense,
(ii) provisions for taxes imposed on or measured by income
or excess profits, and
(iii) provisions for depreciation and amortization (including,
without limitation, amortization of Effective Date Intangibles);
plus (c) the sum (without duplication) of the following items to the extent not
----
included in the amounts determined pursuant to subdivisions (a) and (b) above
(such sum being herein called the "Acquired Unit Adjustment"):
20
(i) the net income (or net deficit) for such period of each
Person which shall have become a Restricted Subsidiary during such
period (an "Acquired Subsidiary") after eliminating all nonrecurring
items (whether cash or non-cash and whether or not deemed extraordinary
in accordance with GAAP),
(ii) the net income (or net deficit) derived during such period
from any operating assets acquired by the Borrower or a Restricted
Subsidiary during such period ("Acquired Assets"), and
(iii) the sum (without duplication) of the following items to
the extent deducted in determining net income of any Acquired
Subsidiary or derived from any Acquired Assets for such period: (A)
Interest Expense of such Acquired Subsidiary or associated with such
Acquired Assets, (B) provisions for taxes imposed on or measured by
income or excess profits of such Acquired Subsidiary or associated with
such Acquired Assets, and (C) provisions for depreciation and
amortization of such Acquired Subsidiary or associated with such
Acquired Assets;
minus (d) the sum of the following items to the extent included in the amounts
-----
determined pursuant to subdivisions (a), (b) and (c) above (such sum being
herein called the "Disposed Unit Adjustment"):
(i) the net income (or net deficit) for such period of each
Person which shall have ceased to be a Restricted Subsidiary during
such period (a "Disposed Subsidiary") after eliminating all
nonrecurring items (whether cash or non-cash and whether or not deemed
extraordinary in accordance with GAAP),
(ii) the net income (or net deficit) derived during such period
from any assets which were sold or otherwise disposed of by the
Borrower or a Restricted Subsidiary during such period ("Disposed
Assets"), and
(iii) the sum (without duplication) of the following items to
the extent deducted in determining net income of any Disposed
Subsidiary or derived from any Disposed Assets for such period: (A)
Interest Expense of such Disposed Subsidiary or associated with such
Disposed Assets, (B) provisions for taxes imposed on or measured by
income or excess profits of such Disposed Subsidiary or associated with
such Disposed Assets for such period, and (C) provisions for
depreciation and amortization of such Disposed Subsidiary or associated
with such Disposed Assets;
provided, however, that (1) for purposes of determining Operating Cash Flow for
-------- -------
any period, the Acquired Unit Adjustment and the Disposed Unit Adjustment shall
be determined by the Borrower in accordance with sound financial practice (and
on the basis, to the extent available, of appropriate financial statements and
tax returns for such period) and shall be set forth in a certificate of the
principal financial officer of the Borrower accompanied by calculations in
reasonable detail showing the manner of determination thereof, which certificate
shall be furnished to the Administrative Agent and each of the Lenders not later
than the certificate
21
required to be furnished by the Borrower in respect of such period pursuant to
Section 6.01(c), and (2) no amount shall in any event be includable in Operating
Cash Flow pursuant to subdivision (c) of this definition for any period in
respect of any Acquired Unit Adjustment unless the amount and calculation
thereof, as set forth in the certificate for such period required by the
foregoing clause (1), shall be reasonably acceptable to the Required Lenders;
and provided further, however, that in determining the net income (or deficit)
-------- ------- -------
of the Borrower and its Restricted Subsidiaries pursuant to the foregoing
subdivision (a) for any period during which the Borrower shall have sold or
otherwise disposed of the Xxxxxxx Facility, losses from such sale or other
disposition shall be disregarded to the extent the aggregate amount of all such
losses (computed without regard to Effective Date Intangibles attributable to
such facility) does not exceed $3,300,000 on an after tax basis.
"Operating Lease" shall mean any lease of property (real, personal or
mixed) having an original term (including terms of renewal or extension at the
option of the lessor or the lessee, whether or not any such option has been
exercised) of more than one year, other than (a) a Capital Lease and (b) in the
case of any Subsidiary, any such lease under which the Borrower or a
Predominantly Owned Restricted Subsidiary is the lessor.
"Operating Lease Rentals" shall mean, as applied to the Borrower and
its Restricted Subsidiaries for any period, the total amount (whether designated
as rentals or additional or supplemental rentals or otherwise) payable as lessee
under all Operating Leases during such period, including amounts so payable
during such period by reason of a lease termination or a surrender of property
but excluding amounts so payable on account of maintenance, ordinary repairs,
insurance, taxes, assessments and other similar charges.
"Order" shall mean any order, writ, injunction, decree, judgment,
award, determination, direction or demand.
"Participation Interest" shall mean the extension of credit by a Lender
by way of a purchase of a participation in any Swingline Loans as provided in
Section 2.02(b)(iii), in Letters of Credit or LOC Obligations as provided in
Section 2.03(c) or in any Loans as provided in Section 4.03.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Receivables Financing" shall mean any transaction involving
one or more sales, contributions or other conveyances by the Borrower and/or any
Restricted Subsidiary of any accounts receivable (together with certain related
property relating thereto and the right to collections thereon, being the
"Transferred Assets") to a Subsidiary (including a Subsidiary which is a
Restricted Subsidiary) or Affiliate of the Borrower (with respect to any such
transaction, the "Receivables Financing SPC"), which Receivables Financing SPC
then either (x) sells (as determined in accordance with GAAP) such Transferred
Assets (or percentage interests therein) to any Person that is not a Subsidiary
or Affiliate of the Borrower (with respect to any such transaction, the
"Receivables Financier"), (y) borrows from such Receivables Financier and
22
secures such borrowings by a pledge of such Transferred Assets and/or (z)
otherwise finances its acquisition of such Transferred Assets and, in connection
therewith, conveys an interest in such Transferred Assets to the Receivables
Financier, provided that (i) such receivables financing shall not involve any
--------
recourse to the Borrower or any Restricted Subsidiary (other than the
Receivables Financing SPC) for any reason other than (A) repurchases of
non-eligible receivables, (B) indemnifications for losses (including any
adjustments for dilutions), other than credit losses related to the receivables
sold in such financing, and (C) payment of all costs, fees, expenses and
indemnities relating to such receivables financing, (ii) such receivables
financing shall not include any Guaranty by the Borrower or any Restricted
Subsidiary, it being understood that payment by the Borrower or any Restricted
Subsidiary of any amount of the type described in the immediately preceding
clause (i) which is owing by it to the Receivables Financing SPC shall not be
deemed to be a Guaranty notwithstanding that an identical amount may be owing by
the Receivables Financing SPC to the Receivables Financier, (iii) in the case of
any such transaction other than the transaction contemplated by the Transfer and
Administration Agreement among Enterprise Funding Corporation, JPFD Funding
Company, JP Foodservice Distributors, Inc., NationsBank, N.A. and certain
investors party thereto (which transaction is hereby specifically approved and
consented to by each of the Required Lenders), the Administrative Agent shall be
reasonably satisfied with the structure of and documentation for any such
transaction and that the terms of such transaction, including the discount at
which receivables are sold to the Receivables Financier and any termination
events, shall be (in the good faith understanding of the Administrative Agent)
consistent with those prevailing in the market for similar transactions
involving receivables and originators of similar credit quality and a
receivables pool of similar characteristics or which are otherwise reasonably
acceptable to the Administrative Agent, (iv) the documentation for such
transaction shall not be amended or modified to modify the calculation of the
Net Receivables thereunder, to permit the acquisition of interests in the
Transferred Assets by the Receivables Financier in excess of the Permitted
Receivables Financing Over-Collateralization Amount, to change or modify any
provision of the Subordinated Intercompany Revolving Note or any provision of
any agreement relating to the calculation of any amount due or to become due in
respect thereof, or in any other manner which is materially inconsistent with
the terms and provisions hereof (and/or any other amendment which deals with the
requirements for a Permitted Receivables Financing) (other than, in each case,
for the requirement that any such amendment or modification (or any of the
relevant documents affected thereby) satisfy the requirements set forth in the
immediately preceding clause (iii)) without the prior written approval of the
Administrative Agent (which approval shall not be unreasonably withheld), (v) at
no time in connection with any particular receivables financing shall the
applicable Receivables Financier's interest in the outstanding face amount of
Net Receivables sold, transferred or pledged pursuant thereto (it being
understood that if such interest is a percentage interest, only that percentage
thereof shall be included in this calculation) exceed 130% of the aggregate
outstanding balance of all fundings, financings or purchases made by such
Receivables Financier to the Receivables Financing SPC and (vi) the maximum
principal amount of all fundings, financings and purchases of accounts
receivables by the Receivables Financier to the Receivables Financing SPC under
all such receivables financings shall not at any time exceed $50,000,000 in the
aggregate.
23
"Permitted Receivables Financing Amount" shall mean at any time with
respect to any Permitted Receivables Financing, the aggregate balance of all
cash received by the Receivables Financing SPC from the Receivables Financier in
respect of purchase proceeds or principal under such financing minus the
aggregate amount of all payments received by the Receivables Financier and
applied to the repayments of such amounts; it being understood and agreed that
any amounts previously applied as aforesaid which are subsequently required to
be repaid, disgorged or otherwise returned by the Receivables Financier shall be
deemed to have never been received and applied by the Receivables Financier.
"Permitted Receivables Financing Over-Collateralization Amount" shall
mean, with respect to any Permitted Receivables Financing, the excess from time
to time of (x) the outstanding face amount of the Net Receivables subject to the
Receivables Financier's interest in connection with such financing (it being
understood that if such interest is a percentage interest only that percentage
of such Net Receivables shall be included in this calculation) over (y) the
Permitted Receivables Financing Amount of such Permitted Receivables Financing.
"Person" shall mean any individual, corporation, association,
partnership, joint venture, trust or estate, organization, business, government
or agency or political subdivision thereof, or any other entity.
"Plan" shall mean any employee pension benefit plan (as defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, subject to Title IV of
ERISA or the minimum funding standards under Section 412 of the Code or Section
302 of ERISA and established, maintained or contributed to at any time by any
Borrower Group Member.
"Predominantly Owned Restricted Subsidiary" shall mean any Restricted
Subsidiary at least 80% of all of the equity interests of each class of which
and at least 80% of the voting interests of which shall at the time be owned by
the Borrower either directly or through one or more other Predominantly Owned
Restricted Subsidiaries.
"Prime Rate" shall have the meaning assigned to such term within the
definition of "Base Rate".
"Priority Debt Amount" shall mean, as of any date, an amount equal to
the sum (without duplication) of (a) all Attributable Debt of the Borrower and
its Restricted Subsidiaries as of such date, plus (b) the aggregate principal
----
amount outstanding on such date of all Debt of the Borrower and its Restricted
Subsidiaries secured by Liens (other than Liens permitted by subdivisions (a)
through (j) of Section 8.03), plus the aggregate amount of all Permitted
Receivables Financing Over-Collateralization Amounts, plus (c) the aggregate
principal amount outstanding on such date of all Debt of Restricted Subsidiaries
(exclusive of (x) Debt of any Restricted Subsidiary owing to the Borrower or a
Predominantly Owned Restricted Subsidiary, (y) Debt of any Restricted Subsidiary
pursuant to the Guaranty Agreement and (z) to the extent not exceeding in
aggregate principal amount for all Restricted Subsidiaries the aggregate
original principal amount of the Notes, Debt of any Restricted Subsidiary
pursuant to the Note Guaranties).
24
"Pro Forma Financial Statements" shall have the meaning assigned to
such term in Section 9.04.
"Pro Rata Prepayment Share" shall have the meaning assigned to such
term in Section 3.02(b)(ii).
"PYA" shall mean PYA/Monarch, Inc., a Delaware corporation.
"PYA's Note" shall mean that certain promissory note of PYA, dated
March 10, 1989, in the original principal amount of $110,000,000, and payable to
the Borrower, which bears interest at rates between 10.35% and 10.8% per annum,
as such note shall be in effect on the Closing Date.
"Quoted Rate" shall mean, with respect to any Quoted Rate Swingline
Loan, the fixed percentage rate per annum offered by the Swingline Lender and
accepted by the Borrower with respect to such Swingline Loan as provided in
accordance with the provisions of Section 2.02.
"Quoted Rate Swingline Loan" shall mean a Swingline Loan bearing
interest at a Quoted Rate.
"Recapitalization" shall have the meaning assigned to such term in
Section 5.02(m).
"Receivables Financier" shall have the meaning assigned to such term in
the definition of "Permitted Receivables Financing" set forth in this Section
1.01.
"Receivables Financing SPC" shall have the meaning assigned to such
term in the definition of "Permitted Receivables Financing" set forth in this
Section 1.01.
"Registration Statement" shall have the meaning assigned to such term
in Section 5.02(k).
"Related Entity" shall mean any partnership, corporation, trust,
unincorporated association or organization, joint venture or any other entity
other than the Borrower or any of its Subsidiaries in which any current officer
or director of any member of the Borrower or any of its Subsidiaries has a
financial interest or the ability to control its management or affairs;
provided, however, that the ownership by any such officer or director of not
more than five percent (5%) of the voting shares (or share equivalents) of a
public company listed or traded on NASDAQ or a national exchange shall not be
deemed to make such company a "Related Entity" within the meaning of this
definition.
"Replaced Warehouse Sale" shall mean a sale by the Borrower or a
Restricted Subsidiary of assets consisting solely of a warehouse facility and
related assets, including, without limitation, fixtures, equipment and other
property required to operate such warehouse as theretofore operated ("Replaced
Warehouse") which shall occur within two years following the
25
construction or acquisition (other than from the Borrower or a Restricted
Subsidiary) by the Borrower or a Restricted Subsidiary of another warehouse
facility and related assets, including, without limitation, fixtures, equipment
and other property required to operate such warehouse ("Replacement Warehouse");
provided that, no such sale of a Replaced Warehouse following the construction
--------
or acquisition of a Replacement Warehouse shall constitute a Replaced Warehouse
Sale unless (a) the net book value of such Replaced Warehouse (determined as of
the date of sale thereof), when taken together with the aggregate net book value
of each other warehouse facility (so determined) the sale of which has been or
is concurrently determined to constitute a Replaced Warehouse Sale on the basis
of the construction or acquisition of such Replacement Warehouse, shall not
exceed the net book value of such Replacement Warehouse less the aggregate
principal amount of all Debt, if any, secured by any Lien on such Replacement
Warehouse, and (b) such Replacement Warehouse shall not at any time have been
deemed Alternative Assets on the basis of the purchase, acquisition or
construction of which any other sale of assets shall have been determined to
constitute an Excluded Sale.
"Reportable Event" shall mean any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder.
"Required Financial Information" shall mean, with respect to the
applicable Determination Date, (i) the financial statements of the Borrower
required to be delivered pursuant to Section 6.01 for the fiscal period or
quarter ending as of such Determination Date, and (ii) the Officers' Certificate
required by Section 6.01 to be delivered with the financial statements described
in clause (i) above.
"Required Lenders" shall mean, at any time, Lenders which are then in
compliance with their obligations hereunder (as determined by the Administrative
Agent) and holding in the aggregate at least 51% of (i) the Commitments to make
Revolving Loans or (ii) if the Commitments have been terminated, the outstanding
Loans and Participation Interests.
"Responsible Officer" shall mean any officer of the Borrower who shall
be permitted to sign an Officers' Certificate (as provided in the definition of
that term set forth in this Section) and any other officer of the Borrower who
shall at any time hereafter perform substantially the same duties as are
performed on the date hereof by any such officer permitted to sign an Officers'
Certificate.
"Restatement Date" means the date of this Amended and Restated Credit
Agreement.
"Restricted Investments" shall mean all Investments other than:
(a) Investments in (i) readily marketable direct obligations
of the United States of America or of any agency or instrumentality
thereof the obligations of which are backed by the full faith and
credit of the United States of America or readily marketable
obligations unconditionally guaranteed by the United States of America
or by any such agency or instrumentality, in each case maturing within
three years from the date of acquisition thereof, (ii) U.S. dollar
denominated certificates of deposit, time deposits or
26
bankers' acceptances maturing within 270 days from the date of
acquisition thereof of any commercial bank (x) which is organized under
the laws of and located in the United States of America or a State
thereof ("U.S. Bank") or Canada, Japan or a member country of the
European Economic Community ("Foreign Bank"), (y) which has combined
capital, surplus and undivided profits of at least, in the case of a
U.S. Bank, $100,000,000 and, in the case of a Foreign Bank,
$500,000,000, and (z) the long-term debt obligations of which are rated
at least A3 by Xxxxx'x Investors Service Inc. ("Moody's") or A- by
Standard & Poor's Corporation ("S&P"), (iii) money-market preferred
stock or auction rate preferred stock, in each case maturing or
redeemable at the option of the holder thereof no more than one year
after the date of acquisition thereof and having a rating of at least
A-2 by Moody's or A by S&P; (iv) obligations of any state of the United
States or any political subdivision thereof, the interest with respect
to which is exempt from federal income taxation under Section 103 of
the Code, having a long term rating of at least Aa-3 or AA- by Moody's
or S&P, respectively, and maturing within three years from the date of
acquisition thereof; (v) open market commercial paper of United States
corporations maturing not later than 270 days after the issuance
thereof and having a rating of at least P-2 by Moody's or A-2 by S&P,
and (vi) Investments, classified in accordance with GAAP as current
assets, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by
reputable financial institutions having capital of at least
$100,000,000 and the portfolios of which are limited to Investments of
the character described in the foregoing subdivisions (a)(i) through
(a)(v);
(b) Investments in Subsidiaries of the Borrower existing
on the date hereof, and other Investments existing on the date hereof
and described in Schedule VII;
------------
(c) Investments in any Restricted Subsidiary or in any
Person which simultaneously therewith becomes a Restricted Subsidiary;
(d) Investments consisting of stock, obligations,
securities or other property received by the Borrower or a Restricted
Subsidiary in settlement of accounts receivable (created in the
ordinary course of business) from bankrupt obligors;
(e) Investments consisting of Guaranties by the Borrower
and its Restricted Subsidiaries of the obligations of other Persons so
long as at the time of and immediately after giving effect to each such
Investment, the Borrower is in compliance with Section 8.01(c) and
Section 8.02;
(f) Investments by the Borrower and its Restricted
Subsidiaries in property to be used in the ordinary course of their
business as permitted to be conducted pursuant to Section 8.09; and
(g) Investments in addition to those described in the
foregoing subdivisions (a) through (f) of this definition, provided
--------
that, the amount of all such additional Investments shall not exceed
$10,000,000 in the aggregate.
27
"Restricted Payment" shall mean any payment or distribution or the
incurrence of any liability to make any payment or distribution, in cash,
property or other assets (other than shares of common stock of the Borrower)
upon or in respect of any share of any class of capital stock of the Borrower or
any warrants, rights or options evidencing a right to purchase or acquire any
securities of the Borrower, including, without limiting the generality of the
foregoing, payments or distributions as dividends and payments or distributions
for the purpose of purchasing, acquiring, retiring or redeeming any such shares
of stock (or any warrants, rights or options to purchase or acquire any such
securities) or the making of any other distribution in respect of any such
shares of stock (or any warrants, rights or options evidencing a right to
purchase or acquire any such securities).
"Restricted Subsidiary" shall mean each Subsidiary existing on the date
hereof which is not designated as an Unrestricted Subsidiary in Schedule VIII,
-------------
each other Subsidiary which is not hereafter designated by the Board of
Directors as an Unrestricted Subsidiary, and each Unrestricted Subsidiary which
is hereafter designated by the Board of Directors as a Restricted Subsidiary;
provided, however, that (a) any Restricted Subsidiary may be redesignated an
-------- -------
Unrestricted Subsidiary as and to the extent provided in the definition of
"Unrestricted Subsidiary" set forth in this Section 1.01; (b) any Subsidiary
which shall be an Unrestricted Subsidiary at the commencement of any period of
30 consecutive months and which shall have been redesignated a Restricted
Subsidiary during such period may, following such redesignation, be further
redesignated an Unrestricted Subsidiary during such period but may not,
following such further redesignation, again be redesignated a Restricted
Subsidiary during such period; and (c) notwithstanding any provision hereof to
the contrary, no Person which hereafter becomes a Subsidiary may be designated a
Restricted Subsidiary and no Subsidiary which is designated an Unrestricted
Subsidiary may be redesignated a Restricted Subsidiary unless:
(i) immediately after giving effect to such
designation or redesignation, no Default or Event of Default shall have
occurred and be continuing,
(ii) in the case of any such redesignation of an
Unrestricted Subsidiary as a Restricted Subsidiary, no property or
assets of such Subsidiary shall at the time of such redesignation be
subject to any Liens which would not have been permitted to be created
by such Subsidiary pursuant to Section 8.03, and
(iii) such Subsidiary shall have become, in compliance
with Section 8.18, a Guarantor under and within the meaning of the
Guaranty Agreement.
"Revolving Committed Amount" shall have the meaning assigned to such
term in Section 2.01(a).
"Revolving Loans" shall have the meaning assigned to such term in
Section 2.01(a).
"Sale Leaseback" shall mean any transaction or arrangement or series of
transactions or arrangements pursuant to which the Borrower or any Restricted
Subsidiary shall become
28
obligated as lessee under any lease of property, whether real, personal or mixed
(except for (i) leases for a term of not more than three years, (ii) any lease
by a Restricted Subsidiary under which the Borrower or a Predominantly Owned
Restricted Subsidiary is lessor and (iii) leases of property executed prior to,
at the time of or within 180 days after the later to occur of the acquisition or
the commencement of commercial operation of such property) which property (a) is
now owned or hereafter acquired by the Borrower or a Restricted Subsidiary (or
which the Borrower or any Restricted Subsidiary intends to use for substantially
the same purpose as any other property now owned or hereafter acquired by the
Borrower or a Restricted Subsidiary) and (b) has been or is to be sold or
transferred to any other Person.
"Xxxx Xxx" shall mean Xxxx Xxx Corporation, a Maryland corporation.
"Xxxx Xxx Note" shall mean that certain promissory note of the
Borrower, dated August 19, 1989, issued in the original principal amount of
$112,000,000 and payable to PYA, which bears interest at the rate of 11% per
annum, as such note shall be in effect on the Closing Date.
"Xxxx Xxx Offset Agreement" shall mean the Amended and Restated Note
Offset Agreement, dated as of July 3, 1989, by and between PYA and the Borrower,
providing, among other things, for the settlement of maturities of principal and
accrued interest under the Xxxx Xxx Note, on the one hand, and under PYA's Note,
on the other hand, by offsetting the respective amounts due thereunder.
"Securities Act" shall mean the Securities Act of 1933, or any similar
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect from time to time.
"Standby Letter of Credit Fee" shall have the meaning assigned to such
term in Section 2.06(b)(i).
"Subordinated Debt" shall mean any Debt of the Borrower or any
Restricted Subsidiary which is subordinated in right of payment to any other
Debt of such Person.
"Subordinated Intercompany Revolving Note" shall mean, with respect to
any Permitted Receivables Financing, any note issued by a Receivables Financing
SPC in favor of the Borrower or any Restricted Subsidiary in connection
therewith.
"Subsidiary" shall mean, with respect to any Person, any corporation
more than 50% of the Voting Stock of which is at the time owned by such Person
and/or one or more of its other Subsidiaries. Unless otherwise specified, any
reference to a Subsidiary is intended as a reference to a Subsidiary of the
Borrower.
"Substantial Sale" shall have the meaning assigned to such term in
Section 8.07(f)(ii).
"Swingline Committed Amount" shall have the meaning assigned to such
term in Section 2.02.
29
"Swingline Lender" shall mean NationsBank, or, if NationsBank shall no
longer be the Administrative Agent, such Lender which shall become the
Administrative Agent hereunder in accordance with the provisions of Section
11.11.
"Swingline Loan" shall have the meaning assigned to such term in
Section 2.02.
"Syndication Agent" means The Chase Manhattan Bank, as identified in
the heading hereto.
"Termination Event" shall mean (a) with respect to any Plan, the
occurrence of a Reportable Event or an event described in Section 4062(e) of
ERISA, or (b) the withdrawal of any Borrower Group Member from a Multiple
Employer Plan during a plan year in which it was a substantial employer (as such
term is defined in Section 4001(a)(2) of ERISA), or the termination of a
Multiple Employer Plan, or (c) the distribution of a notice of intent to
terminate a Plan or Multiemployer Plan pursuant to Section 4041(a)(2) or 4041A
of ERISA or the treatment of a Plan amendment as a termination under Section
4041 or 4041A of ERISA, or (d) the institution of proceedings to terminate a
Plan or Multiemployer Plan by the PBGC under Section 4042 of ERISA, or (e) any
other event or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Plan or Multiemployer Plan or (f) the complete or partial withdrawal of any
Borrower Group Member from a Multiemployer Plan.
"Total Debt" shall mean, as of any date, the aggregate amount of all
Debt of the Borrower and its Restricted Subsidiaries outstanding on such date
(including, without limitation, Debt evidenced by the Notes), determined on a
consolidated basis.
"Total Debt Ratio" shall mean, as of any date, the number obtained by
dividing (a) Total Debt as of such date by (b) Operating Cash Flow for the
period ("Cash Flow Period") of four consecutive fiscal quarters ended on such
date or (if such date shall not be a Determination Date) most recently prior to
such date; provided that for purposes for determining the Total Debt Ratio as of
--------
any date, in computing Operating Cash Flow for any Cash Flow Period occurring in
whole or in part prior to the Effective Date, it shall be assumed that all Debt
of the Borrower (including, without limitation, Debt arising hereunder or under
the other Credit Documents) incurred by the Borrower on the Effective Date had
been incurred on, and all Debt of the Borrower retired through the application
on the Effective Date of the proceeds of the initial borrowings hereunder, the
Notes or the Capital Contribution had been retired immediately prior to, the
first day of such Cash Flow Period and not on the Effective Date, and that all
such incurred Debt, and no such retired Debt, remained outstanding during the
portion of such Cash Flow Period which occurred prior to the Effective Date.
"Trade Letter of Credit Fee" shall have the meaning assigned to such
term in Section 2.06(b)(ii).
30
"Transferred Assets" shall have the meaning assigned to such term in
the definition of "Permitted Receivables Financing" set forth in this Section
1.01.
"Unfunded Current Liability" of any Plan shall mean the amount, if any,
by which the present value of the accrued benefits under such Plan (based on
those assumptions used to fund such Plan) as of the close of its most recent
plan year exceeds the then current value of the assets of such Plan allocable to
such benefits.
"Unrestricted Subsidiary" shall mean each Subsidiary designated as an
Unrestricted Subsidiary in Schedule VIII and each other Subsidiary which is
-------------
hereafter designated by the Board of Directors as an Unrestricted Subsidiary;
provided, however, that (a) any Unrestricted Subsidiary may be redesignated a
-------- -------
Restricted Subsidiary as and to the extent provided in the definition of
"Restricted Subsidiary" set forth in this Section 1.01; (b) any Subsidiary which
shall be a Restricted Subsidiary at the commencement of any period of 30
consecutive months and which shall have been redesignated an Unrestricted
Subsidiary during such period may, following such redesignation, be further
redesignated a Restricted Subsidiary during such period but may not, following
such further redesignation, again be redesignated an Unrestricted Subsidiary
during such period; and (c) notwithstanding any provision hereof to the
contrary, no Subsidiary which is a Restricted Subsidiary may be redesignated an
Unrestricted Subsidiary unless
(i) immediately after giving effect to such
redesignation, no Default or Event of Default shall have occurred and
be continuing, and
(ii) such Subsidiary does not own (directly or through
its Subsidiaries) any shares of stock or other securities of (or
warrants, rights or options to acquire stock or other securities of)
any Restricted Subsidiary or hold any Debt of the Borrower or any
Restricted Subsidiary and, at the time of such redesignation, all Debt
and shares of stock of such Subsidiary which are owned by the Borrower
and its Restricted Subsidiaries could be sold in compliance with
Section 8.06 (in which case, such redesignation shall be deemed a
disposition of assets for purposes of Section 8.07).
Any Subsidiary of any Person which shall at any time be an Unrestricted
Subsidiary shall itself be an Unrestricted Subsidiary for so long as such Person
shall remain an Unrestricted Subsidiary (and thereafter for so long as such
Subsidiary shall not have been redesignated as a Restricted Subsidiary in
compliance with the definition herein of that term).
"Voting Stock" shall mean capital stock of a corporation the holders of
which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or persons performing similar functions) of
such corporation.
"Weighted Average Life to Maturity" shall mean, as applied to any
indebtedness at any date, the number of years (or portions of years) obtained by
dividing (a) the then outstanding principal amount of such indebtedness into (b)
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required
31
payment of principal, including payment at final maturity, in respect thereof,
by (ii) the number of years (calculated to the nearest one-twelfth) which will
elapse between such date and the date on which such payment is to be made.
"Wholly Owned Restricted Subsidiary" shall mean any Restricted
Subsidiary 100% of all of the equity interests (except directors' qualifying
shares) and voting interests of which shall at the time be owned by the Borrower
either directly or through one or more other Wholly Owned Subsidiaries.
SECTION 1.02. Accounting Terms, Etc.
---------------------
Except as specifically provided herein, all accounting terms used
herein which are not expressly defined in this Agreement have the meanings given
to them in accordance with GAAP and all computations made pursuant to this
Agreement shall be made in accordance with GAAP. All balance sheets and other
financial statements delivered pursuant to Section 6.01 shall be prepared in
accordance with GAAP. If any changes in accounting principles from those used in
the preparation of the most recent financial statements referred to in Section
6.01 are hereafter required or permitted by the rules, regulations,
pronouncements and opinions of the Financial Accounting Standards Board or the
American Institute of Certified Public Accountants (or successors thereto) and
are adopted by the Borrower with the agreement of its independent certified
public accountants and such changes result or could result (for any present or
future period) in a change in the method of calculation of any of the financial
covenants, standards or terms in or relating to Article VIII, the parties hereto
agree to enter into discussions with a view to amending such provisions so as to
equitably reflect such changes with the desired result that the criteria for
evaluating the financial condition of the Borrower and its Restricted
Subsidiaries shall be the same after such changes as if such changes had not
been made, provided that, no change in GAAP that would affect or could affect
(for any present or future period) the method of calculation of any of said
financial covenants, standards or terms shall be given effect in such
calculations until such provisions are amended, in a manner satisfactory to the
Borrower and the Required Lenders, to so reflect such change in GAAP.
SECTION 1.03. Terms Generally.
---------------
The definitions in Section 1.01 shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation." All references herein to
Articles, Sections and Schedules shall be deemed references to Articles and
Sections of, and Schedules to, this Agreement unless the context shall otherwise
require. Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP.
SECTION 1.04. Directly or Indirectly.
----------------------
32
Where any provision of this Agreement refers to actions to be taken by
any Person, or which such Person is prohibited from taking, such provision shall
be applicable whether the action in question is taken directly or indirectly by
such Person.
ARTICLE II.
THE LOANS
SECTION 2.01. Revolving Loans.
---------------
(a) Revolving Commitment. Subject to and upon the terms and conditions
--------------------
and relying upon the representations and warranties herein set forth, each
Lender agrees, severally and not jointly, at any time and from time to time from
the Restatement Date until the Maturity Date, to make revolving credit loans
(each a "Revolving Loan" and, collectively, "Revolving Loans") to the Borrower
for the purposes set forth in Section 9.13; provided, however, (i) with regard
-------- -------
to each Lender individually, such Lender's pro rata share of outstanding
Revolving Loans shall not exceed such Lender's Commitment Percentage of the
Revolving Committed Amount, (ii) with regard to the Lenders collectively, the
aggregate amount of Revolving Loans outstanding shall not exceed ONE HUNDRED
SEVENTY-FIVE MILLION DOLLARS ($175,000,000), as such maximum amount may be
reduced from time to time as provided in Section 2.05 or as otherwise provided
herein (such amount, as so reduced from time to time, the "Revolving Committed
Amount"), and (iii) in addition to the limitations set forth in the preceding
subparagraphs (i) and (ii), in no event shall the sum of Revolving Loans
outstanding plus Swingline Loans outstanding plus the LOC Obligations
---- ----
outstanding plus Competitive Loans outstanding exceed the Revolving Committed
----
Amount. Revolving Loans hereunder may consist of Base Rate Loans or Eurodollar
Loans (or a combination thereof) as the Borrower may request, and may be repaid
and reborrowed in accordance with the provisions hereof.
(b) Advances.
--------
(i) Notices. Whenever the Borrower desires a Revolving Loan advance
-------
hereunder, it shall give an appropriate Notice of Borrowing to the
Administrative Agent by hand delivery, telex or telecopy not later than
1:00 P.M. (Charlotte, North Carolina time) on the Business Day of the
requested advance in the case of Base Rate Loans, and on the third
Business Day prior to the requested advance in the case of Eurodollar
Loans. Each such Notice of Borrowing shall be irrevocable and shall
specify (A) that a Revolving Loan is requested, (B) the date of the
requested advance (which shall be a Business Day), (C) the aggregate
principal amount of the Revolving Loan requested, and (D) whether the
Revolving Loan requested shall consist of Base Rate Loans, Eurodollar
Loans or a combination thereof, and if Eurodollar Loans are requested,
the Interest Periods with respect thereto. If the Borrower shall fail
to specify in any such Notice of Borrowing (i) an applicable Interest
Period in the case of a Eurodollar Loan, then such notice shall be
deemed to be a request for an Interest Period of one month, or (ii) the
type of Revolving Loan requested, then such notice shall be deemed to
be a request for a Base Rate Loan
33
hereunder. The Administrative Agent shall as promptly as practicable
give each Lender notice of each requested Revolving Loan advance, of
such Lender's pro rata share thereof and of the other matters covered
in the applicable Notice of Borrowing.
(ii) Minimum Amounts. Each Revolving Loan shall be in an aggregate
---------------
principal amount that is not less than the lesser of $1,000,000 or the
remaining amount available to be borrowed with respect to the Revolving
Loans in accordance with the terms of Section 2.01(a). Any Revolving
Loan requested in excess of $1,000,000 shall be in an integral multiple
of $1,000,000.
(iii) Funding of Advances. Each Lender will make its pro rata share
-------------------
of each Revolving Loan available to the Administrative Agent by 3:00
P.M. (Charlotte, North Carolina time) on the date specified in the
applicable Notice of Borrowing by deposit in dollars of immediately
available funds at the offices of the Administrative Agent in
Charlotte, North Carolina, or at such other address as the
Administrative Agent may designate in writing, and the Administrative
Agent shall, by 4:00 P.M. (Charlotte, North Carolina time) on the same
day, credit the amount so received to the general deposit account of
the Borrower with the Administrative Agent. All Revolving Loans shall
be made by the Lenders pro rata on the basis of each Lender's
Commitment Percentage. No Lender shall be responsible for the failure
or delay by any other Lender in its obligation to make Revolving Loans
hereunder; provided, however, that the failure of any Lender to fulfill
-------- -------
its Commitment hereunder shall not relieve any other Lender of its
Commitment hereunder. Unless the Administrative Agent shall have been
notified by any Lender prior to the date of any Revolving Loan advance
that such Lender does not intend to make available to the
Administrative Agent its portion of the Revolving Loan advance to be
made on such date, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent on the date
of such Revolving Loan advance, and the Administrative Agent, in
reliance upon such assumption, may (in its sole discretion without any
obligation to do so) make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to
the Administrative Agent, the Administrative Agent shall be entitled to
recover such corresponding amount from such Lender. If such Lender does
not pay such corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent will promptly notify
the Borrower and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also
be entitled to recover from such Lender or the Borrower, as the case
may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding
amount is recovered by the Administrative Agent, at a per annum rate
equal to, with respect to the Borrower, the then applicable rate
calculated in accordance with Section 2.01(d) and, with respect to such
Lender, the Federal Funds Effective Rate.
(c) Repayment. The Borrower hereby promises to pay to the Lenders the
---------
principal amount of all Revolving Loans outstanding hereunder on the Maturity
Date.
34
(d) Interest. (i) Interest Rates. Subject to the provisions of Section
-------- --------------
3.01, Revolving Loans shall bear interest as follows:
(A) Base Rate Loans. During such periods as Revolving Loans
---------------
shall consist of Base Rate Loans, at a per annum rate (computed on the
basis of the actual number of days elapsed over a year of 360 days for
each applicable day on which the Base Rate shall be determined on the
basis of the Federal Funds Effective Rate and over a year of 365/66
days for each applicable day on which the Base Rate shall be determined
on the basis of the Prime Rate) equal to the Base Rate in effect from
time to time.
(B) Eurodollar Loans. During such periods as Revolving Loans
----------------
shall consist of Eurodollar Loans, at a per annum rate (computed on the
basis of the actual number of days elapsed over a year of 360 days)
equal to the sum of the Eurodollar Rate for the Interest Period in
effect for such Eurodollar Loan plus the Applicable Margin in effect
from time to time.
(ii) Payment of Interest. (A) The Borrower hereby promises to
-------------------
pay to the Lenders on each applicable Interest Payment Date (or at such
other times as may be specified herein) accrued interest on the
Revolving Loans.
(B) In addition to amounts payable with respect to accrued
interest on Eurodollar Loans pursuant to subsection (d)(i)(B) above,
the Borrower hereby promises to pay to each Lender which is subject to
a reserve requirement in respect of Eurocurrency Liabilities and which
has notified the Administrative Agent and the Borrower as provided
below, on each date on which interest is payable on any Eurodollar Loan
pursuant to such subsection (d)(i)(B), additional interest on the
Eurodollar Loans of such Lender at a rate per annum equal at all times
during each Interest Period of such Eurodollar Loan to the remainder
obtained by subtracting (1) the Eurodollar Rate for the Interest Period
for such Eurodollar Loan from (2) the rate obtained by dividing the
Eurodollar Rate for the Interest Period for such Eurodollar Loan by a
percentage equal to 1.00 minus the Eurodollar Rate Reserve Percentage
(expressed as a decimal) actually incurred by such Lender for the
Interest Period for such Eurodollar Loan as specified in a certificate
signed by a duly authorized officer of such Lender delivered to the
Administrative Agent and the Borrower setting forth reasonable details
of such Lender's computation. Each determination by a Lender under this
Section 2.01(d)(ii)(B) shall be rebuttably presumptive evidence thereof
absent manifest error.
SECTION 2.02. Swingline Loan Subfacility.
--------------------------
(a) Swingline Commitment. Subject to and upon the terms and conditions
--------------------
and relying upon the representations and warranties herein set forth, the
Swingline Lender, in its individual capacity, agrees to make certain revolving
credit loans to the Borrower (each a "Swingline Loan" and, collectively, the
"Swingline Loans") from time to time from the Restatement Date until the
Maturity Date for the purposes hereinafter set forth; provided,
--------
35
however, (i) the aggregate amount of Swingline Loans outstanding at any time
-------
shall not exceed FIFTEEN MILLION DOLLARS ($15,000,000) (the "Swingline Committed
Amount"), and (ii) in no event shall the sum of Revolving Loans outstanding plus
----
Swingline Loans outstanding plus LOC Obligations outstanding plus Competitive
---- ----
Loans outstanding exceed the Revolving Committed Amount. Swingline Loans
hereunder shall be made as Base Rate Loans or Quoted Rate Swingline Loans as the
Borrower may request in accordance with the provisions of this Section 2.02, and
may be repaid and reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Advances.
-----------------------
(i) Notices; Disbursement. Whenever the Borrower desires a
---------------------
Swingline Loan advance hereunder it shall give written notice (or
telephone notice promptly confirmed in writing) to the Swingline Lender
not later than 1:00 P.M. (Charlotte, North Carolina time) on the
Business Day of the requested Swingline Loan advance. Each such notice
shall be irrevocable and shall specify (A) that a Swingline Loan
advance is requested, (B) the date of the requested Swingline Loan
advance (which shall be a Business Day) and (C) the principal amount of
the Swingline Loan advance requested. Each Swingline Loan shall be made
as a Base Rate Loan or a Quoted Rate Swingline Loan and shall have such
maturity date as the Swingline Lender and the Borrower shall agree by
telephone, promptly confirmed in writing, upon receipt by the Swingline
Lender of any such notice from the Borrower. The Swingline Lender shall
credit the amount representing the Swingline Loan advance to the
general deposit account of the Borrower by 3:00 P.M. (Charlotte, North
Carolina time) on the Business Day of the requested borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance shall be in a
---------------
minimum principal amount of $500,000 and in integral multiples of
$100,000 in excess thereof.
(iii) Repayment of Swingline Loans. The Borrower hereby promises
----------------------------
to pay to the Swingline Lender the principal amount of each Swingline
Loan on the earlier of (A) the maturity date agreed to by the Swingline
Lender and the Borrower with respect to such Loan (which maturity date
shall not be a date more than 7 Business Days from the date of advance
thereof) or (B) the Maturity Date. The Swingline Lender may, at any
time, in its sole discretion, by written notice to the Borrower and the
Lenders, demand repayment of its Swingline Loans by way of a Revolving
Loan advance (each such Revolving Loan advance made for the purpose of
repaying any Swingline Loans as provided herein being hereinafter
referred to as a "Mandatory Borrowing"), in which case the Borrower
shall be deemed to have requested a Revolving Loan advance comprised
solely of Base Rate Loans in the amount of such Swingline Loans;
provided, however, that any such demand shall be deemed to have been
-------- -------
given one Business Day prior to the Maturity Date and on the date of
the occurrence of any Event of Default described in Section 10.01(g) or
(h) and upon acceleration of the indebtedness hereunder and the
exercise of remedies in accordance with the provisions of Section
10.02. Each Lender hereby irrevocably agrees to make its pro rata share
of each Revolving Loan constituting
36
a Mandatory Borrowing in the amount, in the manner and on the date
specified in the preceding sentence notwithstanding (I) the amount of
---------------
Mandatory Borrowing may not comply with the minimum amount for advances
of Revolving Loans otherwise required hereunder, (II) whether any
conditions specified in Section 5.03 are then satisfied, (III) whether
a Default or an Event of Default then exists, (IV) failure of any such
request or deemed request for Revolving Loan to be made by the time
otherwise required hereunder, (V) whether the date of such Mandatory
Borrowing is a date on which Revolving Loans are otherwise permitted to
be made hereunder or (VI) any termination of the Commitments relating
thereto immediately prior to or contemporaneously with such Mandatory
Borrowing. In the event that any Mandatory Borrowing cannot for any
reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the
U.S. Bankruptcy Code with respect to the Borrower), then each Lender
hereby agrees that it shall forthwith purchase (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to
such purchase) from the Swingline Lender such participations in the
outstanding Swingline Loans as shall be necessary to cause each such
Lender to share in such Swingline Loans ratably based upon its
Commitment Percentage of the Revolving Committed Amount (determined
before giving effect to any termination of the Commitments pursuant to
Section 10.02), provided that (A) all interest payable on the Swingline
Loans shall be for the account of the Swingline Lender until the date
as of which the respective participation is purchased and (B) at the
time any purchase of participations pursuant to this sentence is
actually made, the purchasing Lender shall be required to pay to the
Swingline Lender interest on the principal amount of participation
purchased for each day from and including the day upon which the
Mandatory Borrowing would otherwise have occurred to but excluding the
date of payment for such participation, at a per annum rate (computed
on the basis of the actual number of days elapsed over a year of 360
days) equal to the Federal Funds Effective Rate.
(c) Interest on Swingline Loans. (i) Subject to the provisions of
---------------------------
Section 3.01, each Swingline Loan shall bear interest as follows:
(A) Base Rate Loans. If such Swingline Loan is a Base Rate
---------------
Loan, at a per annum rate (computed on the basis of the actual number
of days elapsed over a year of 360 days for each applicable day on
which the Base Rate shall be determined on the basis of the Federal
Funds Effective Rate and over a year of 365/66 days for each applicable
day on which the Base Rate shall be determined on the basis of the
Prime Rate) equal to the Base Rate.
(B) Quoted Rate Swingline Loans. If such Swingline Loan is a
---------------------------
Quoted Rate Swingline Loan, at a per annum rate (computed on the basis
of the actual number of days elapsed over a year of 360 days) equal to
the Quoted Rate applicable thereto.
Notwithstanding any other provision to the contrary set forth in this Agreement,
in the event that the principal amount of any Quoted Rate Swingline Loan is not
repaid on the last day of the
37
Interest Period for such Loan, then such Loan shall be automatically converted
into a Base Rate Loan at the end of such Interest Period.
(ii) Payment of Interest. The Borrower hereby promises to pay to the
-------------------
Swingline Lender on each applicable Interest Payment Date (or at such other
times as may be specified herein) accrued interest on the Swingline Loans.
SECTION 2.03. Letter of Credit Subfacility.
----------------------------
(a) Issuance. Subject to the terms and conditions hereof, the Lenders
--------
will participate (i) in the Existing Letters of Credit and (ii) in the issuance
by the Issuing Lender from time to time of such standby and trade Letters of
Credit from the Restatement Date until the Maturity Date as the Borrower may
request in a form acceptable to the Issuing Lender; provided, however, that (i)
-------- -------
the LOC Obligations outstanding shall not at any time exceed TWENTY-FIVE MILLION
DOLLARS ($25,000,000) (the "LOC Committed Amount") and (ii) in no event shall
--------------------
the sum of Revolving Loans outstanding plus Swingline Loans outstanding plus LOC
----
Obligations outstanding plus Competitive Loans outstanding exceed the Revolving
----
Committed Amount. Except as otherwise expressly agreed upon by all the Lenders,
no standby Letter of Credit shall have an original expiry date more than one
year from the date of issuance and no trade Letter of Credit shall have an
original expiry date more than 90 days following the date of issuance thereof;
provided, further, that no Letter of Credit, as originally issued or as
-------- -------
extended, shall have an expiry date extending beyond the Maturity Date except
------
that prior to the Maturity Date a Letter of Credit may be issued or extended
----
with an expiry date extending beyond the Maturity Date if, and to the extent
that, the Borrower shall provide cash collateral to the Issuing Lender on the
date of issuance or extension in an amount equal to the maximum amount available
to be drawn under such Letter of Credit. The obligation of the Issuing Lender to
issue any Letter of Credit shall be conditioned upon delivery to the Issuing
Lender of the Issuing Lender's customary application for a letter of credit,
containing information necessary to issue the Letter of Credit. If such
application form contains any terms or conditions, such terms or conditions
(other than any terms or conditions contained in any application for a trade
Letter of Credit regarding any lien or security interest of the Issuing Lender
in goods to be purchased with the use of such Letter of Credit) shall have no
force and effect, it being understood by the parties hereto that the issuance
and payment of Letters of Credit, and all other matters between the Issuing
Lender and the Lenders and the Borrower with respect to Letters of Credit and
the credit relationship of the Issuing Lender and the Lenders and the Borrower
shall be governed exclusively by this Agreement and applicable law. The issuance
and expiry date of each Letter of Credit shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a Letter of
------------------
Credit shall be submitted to the Issuing Lender at least three (3) Business Days
in the case of standby Letters of Credit and one (1) Business Day in the case of
trade Letters of Credit, prior to the requested date of issuance. The Issuing
Lender will, at least quarterly and more frequently upon request, disseminate to
the Lenders a detailed report specifying the Letters of Credit which are then
issued and outstanding and any activity with respect thereto which may have
occurred since the date of the prior report, and including therein, among other
things, the account party, the
38
beneficiary, the face amount, expiry date as well as any payment or expirations
which may have occurred.
(c) Participations. (i) Each Lender, upon issuance of a Letter of
--------------
Credit shall be deemed to have purchased without recourse a risk participation
from the Issuing Lender in such Letter of Credit and the obligations arising
thereunder and any collateral relating thereto, in each case in an amount equal
to its pro rata share of the obligations under such Letter of Credit (based on
the respective Commitment Percentages of the Lenders) and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and be obligated to pay to the Issuing Lender therefor and discharge when due,
its pro rata share of the obligations arising under such Letter of Credit.
(ii) On the Restatement Date, (A) each Lender shall be deemed to have
purchased without recourse a risk participation from the Issuing Lender in each
Existing Letter of Credit and the obligations arising thereunder and any
collateral relating thereto, in each case in an amount equal to its pro rata
share of the obligations under such Existing Letter of Credit (based on the
respective Commitment Percentages of the Lenders) and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and be obligated to pay to the Issuing Lender therefor and discharge when due,
its pro rata share of the obligations arising under such Existing Letter of
Credit and (B) each Existing Letter of Credit shall be deemed for all purposes
of this Agreement and the other Credit Documents to be a Letter of Credit.
(iii)Without limiting the scope and nature of each Lender's
participation in any Letter of Credit, to the extent that the Issuing Lender has
not been reimbursed as required hereunder or under any such Letter of Credit,
each such Lender shall pay to the Issuing Lender its pro rata share of such
unreimbursed drawing in same day funds on the day of notification by the Issuing
Lender of an unreimbursed drawing pursuant to the provisions of subsection (d)
hereof. The obligation of each Lender to so reimburse the Issuing Lender shall
be absolute and unconditional and shall not be affected by the occurrence of a
Default, an Event of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the obligation of the
Borrower to reimburse the Issuing Lender under any Letter of Credit, together
with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of
-------------
Credit, the Issuing Lender will promptly notify the Borrower. Unless the
Borrower shall immediately notify the Issuing Lender of its intent to otherwise
reimburse the Issuing Lender, the Borrower shall be deemed to have requested a
Revolving Loan in the amount of the drawing as provided in subsection (e)
hereof, the proceeds of which will be used to satisfy the reimbursement
obligations. The Borrower shall reimburse the Issuing Lender on the day of
drawing under any Letter of Credit (either with the proceeds of a Revolving Loan
obtained hereunder or otherwise) in same day funds. If the Borrower shall fail
to reimburse the Issuing Lender as provided hereinabove, the unreimbursed amount
of such drawing shall bear interest at a per annum rate (computed on the basis
of the actual number of days elapsed over a year of 360 days for each applicable
day on which the Base Rate shall be determined on the basis of the Federal Funds
Effective Rate and over a year of 365/66 days for each applicable day on which
the Base Rate
39
shall be determined on the basis of the Prime Rate) equal to the Base Rate plus
two percent (2%). The Borrower's reimbursement obligations hereunder shall be
absolute and unconditional under all circumstances irrespective of any rights of
set-off, counterclaim or defense to payment the Borrower may claim or have
against the Issuing Lender, the Administrative Agent, the Lenders, the
beneficiary of the Letter of Credit drawn upon or any other Person, including
without limitation any defense based on any failure of the Borrower or any
Restricted Subsidiary to receive consideration or the legality, validity,
regularity or unenforceability of the Letter of Credit. The Issuing Lender will
promptly notify the other Lenders of the amount of any unreimbursed drawing and
each Lender shall promptly pay to the Administrative Agent for the account of
the Issuing Lender in Dollars and in immediately available funds, the amount of
such Lender's pro rata share of such unreimbursed drawing. Such payment shall be
made on the day such notice is received by such Lender from the Issuing Lender
if such notice is received at or before 2:00 p.m., Charlotte, North Carolina
time, otherwise such payment shall be made at or before 12:00 noon, Charlotte,
North Carolina time, on the Business Day next succeeding the day such notice is
received. If such Lender does not pay such amount to the Issuing Lender in full
upon such request, such Lender shall, on demand, pay to the Administrative Agent
for the account of the Issuing Lender interest on the unpaid amount during the
period from the date of such drawing until such Lender pays such amount to the
Issuing Lender in full at a rate per annum equal to, if paid within two (2)
Business Days of the date of drawing, the Federal Funds Effective Rate (computed
on the basis of the actual number of days elapsed over a year of 360 days) and
thereafter at a rate equal to the Base Rate (computed on the basis of the actual
number of days elapsed over a year of 360 days for each applicable day on which
the Base Rate shall be determined on the basis of the Federal Funds Effective
Rate and over a year of 365/66 days for each applicable day on which the Base
Rate shall be determined on the basis of the Prime Rate). Each Lender's
obligation to make such payment to the Issuing Lender, and the right of the
Issuing Lender to receive the same, shall be absolute and unconditional, shall
not be affected by any circumstance whatsoever and without regard to the
termination of this Agreement or the Commitments hereunder, the existence of a
Default or Event of Default or the acceleration of the obligations of the
Borrower hereunder and shall be made without any offset, abatement, withholding
or reduction whatsoever. Simultaneously with the making of each such payment by
a Lender to the Issuing Lender, such Lender shall, automatically and without any
further action on the part of the Issuing Lender or such Lender, acquire a
participation in an amount equal to such payment (excluding the portion of such
payment constituting interest owing to the Issuing Lender) in the related
unreimbursed drawing portion of the LOC Obligation and in the interest thereon
and in the related LOC Documents, and shall have a claim against the Borrower
with respect thereto.
(e) Modification, Extension. The issuance of any supplement, modification,
-----------------------
amendment, renewal, or extension to any Letter of Credit shall, for purposes
hereof, be treated in all respects the same as the issuance of a new Letter of
Credit hereunder.
(f) Uniform Customs and Practices. Except as otherwise expressly stated
-----------------------------
herein, any Letter of Credit shall be subject to The Uniform Customs and
Practice for Documentary Credits, as published as of the date of issue by the
International Chamber of Commerce (the "UCP"), and to such extent the UCP shall
be incorporated therein and deemed in all respects to be a part
40
thereof as to matters governed by this Agreement or by the UCP, each Letter of
Credit shall be construed in accordance with and governed by the laws of the
State of New York.
(g) Provisions Relating to Trade Letters of Credit.
----------------------------------------------
(i) The Borrower agrees to procure or to cause the beneficiaries of
each trade Letter of Credit to procure promptly any necessary import and export
or other licenses for the import or export or shipping of any goods referred to
in or pursuant to a trade Letter of Credit and to comply and to cause the
beneficiaries to comply with all foreign and domestic governmental regulations
with respect to the shipment and warehousing of such goods or otherwise relating
to or affecting such trade Letter of Credit, including governmental regulations
pertaining to transactions involving designated foreign countries or their
nationals, and to furnish such certificates in that respect as the Issuing
Lender thereof may at any time reasonably require, and to keep such goods
adequately covered by insurance in amounts, with carriers and for such risks as
shall be customary in the industry and to cause the Issuing Lender's interest to
be endorsed on such insurance and to furnish the Issuing Lender at its request
with reasonable evidence thereof. Should such insurance (or lack thereof) upon
said goods for any reason not be reasonably satisfactory to such Issuing Lender,
the Issuing Lender may (but is not obligated to) obtain, at the Borrower's
expense, insurance satisfactory to the Issuing Lender.
(ii) In connection with each trade Letter of Credit, neither any
Issuing Lender nor any of their correspondents shall be responsible for: (A) the
existence, character, quality, quantity, condition, packing, value or delivery
of the property purporting to be represented by documents; (B) any difference in
character, quality, quantity, condition or value of the property from that
expressed in documents; (C) the time, place, manner or order in which shipment
of the property is made; (D) partial or incomplete shipment referred to in such
credit; (E) the character, adequacy or responsibility of any insurer, or any
other risk connected with insurance; (F) any deviation from instructions, delay,
default or fraud by the beneficiary or any one else in connection with the
property or the shipping thereof; (G) the solvency, responsibility or
relationship to the property of any party issuing any documents in connection
with the property; (H) delay in arrival or failure to arrive of either the
property or any of the documents relating thereto; (I) delay in giving or
failure to give notice of arrival or any other notice; (J) any breach of
contract between the shippers or vendors and the Borrower or any applicable
Restricted Subsidiary; (K) any laws, customs, and regulations which may be
effective in any jurisdiction where any negotiation and/or payment of such trade
Letter of Credit occurs; (L) failure of documents (other than documents required
by the terms of the trade Letter of Credit) to accompany any draft at
negotiation; or (M) failure of any person to note the amount of any document or
drafts on the reverse of such trade Letter of Credit or to surrender or to take
up such trade Letter of Credit or to forward documents other than documents
required by the terms of the trade Letter of Credit. In connection with each
trade Letter of Credit, the Lender shall not be responsible for any error,
neglect or default of any of their correspondents. Nothing set forth in the
above shall affect, impair or prevent the vesting of any of the Issuing Lender's
rights or powers hereunder. If a trade Letter of Credit provides that payment is
to be made by the Issuing Lender's correspondent, neither the Issuing Lender nor
such correspondent shall be responsible for the failure of any of the documents
specified in such trade Letter of Credit to come into the Issuing Lender's
hands, or for any delay in connection
41
therewith, and the Borrower's obligation to make reimbursements shall not be
affected by such failure or delay in the receipt of any such documents.
(iii) Notwithstanding anything to the contrary set forth in this
Agreement, a trade Letter of Credit issued hereunder may contain a statement to
the effect that such Letter of Credit is issued for the account of any
Subsidiary of the Borrower, provided that notwithstanding such statement, the
--------
Borrower shall be the actual account party for all purposes of this Agreement
for such Letter of Credit and such statement shall not affect the Borrower's
obligations hereunder with respect to such Letter of Credit.
(h) Nature of Issuing Lender's Duties.
---------------------------------
(i) As between the Borrower and the Issuing Lender, the Borrower
shall assume all risks of the acts, omissions or misuse of any Letter of Credit
by the beneficiary thereof. The Issuing Lender shall not be responsible: (A) for
the validity, accuracy, genuineness or legal effect of drafts, required
statements or documents, even if such drafts, statements or documents should in
fact prove to be in any or all respects invalid, inaccurate, fraudulent or
forged; (B) for any defect in a draft, payment request or other document unless
such defect is readily apparent upon the face of the draft, payment request or
other document; (C) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; or (D) for any consequences arising
from causes beyond the control of the Issuing Lender, including, without
limitation, any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority. None of the
above shall affect, impair, or prevent the vesting of the Issuing Lender's
rights or powers hereunder.
(ii) If the Borrower consents to any overdrafts under any Letter of
Credit or authorizes in writing payment under any Letter of Credit with
irregular accompanying documents or authorizes or consents to any departure from
the terms of such Letter of Credit, this Agreement shall be fully binding upon
the Borrower with respect to such overdrafts, irregularities or both and
Lenders' rights shall be, in every respect, the same as if this Agreement and
such Letter of Credit expressly provided for such overdraft or irregularity or
both. If at the request of the Borrower there is any extension of time for
presentation of any payment request or any document under a Letter of Credit,
this Agreement shall be fully binding upon the Borrower with regard to any
payment request and documents presented within such extended time.
(iii) Nothing in this subsection (i) is intended to limit the
reimbursement obligation of the Borrower contained in subsection (d) above. No
act or omissions of any current or prior beneficiary of a Letter of Credit shall
in any way affect or impair the rights of the Issuing Lender to enforce any
right, power or benefit under this Agreement.
SECTION 2.04 Competitive Loan Subfacility.
----------------------------
(a) Competitive Loans. Subject to and upon the terms and conditions and
-----------------
relying upon the representations and warranties herein set forth, the Borrower
may, from time to time until the
42
Termination Date, request and each Lender may, in its sole discretion, agree to
make, Competitive Loans in Dollars to the Borrower; provided, however, that (i)
-----------------
the aggregate principal amount of outstanding Competitive Loans shall not at any
time exceed the lesser of (a) ONE HUNDRED SEVENTY-FIVE MILLION DOLLARS
------
($175,000,000) or (b) the Revolving Committed Amount (the "Competitive Loan
----------------
Maximum Amount"), and (ii) the sum of Revolving Loans outstanding plus Swingline
-------------- ----
Loans outstanding plus the LOC Obligations outstanding plus Competitive Loans
---- ----
outstanding shall not at any time exceed the Revolving Committed Amount. Each
Competitive Loan shall be not less than $5,000,000 in the aggregate and integral
multiples of $1,000,000 in excess thereof (or the remaining portion of the
Competitive Loan Maximum Amount, if less).
(b) Competitive Bid Requests. The Borrower may solicit Competitive Bids
------------------------
by delivery of a Competitive Bid Request substantially in the form of Schedule
--------
VA-1 to the Administrative Agent by 12:00 Noon (Charlotte, North Carolina time)
----
on a Business Day not less than one (1) nor more than four (4) Business Days
prior to the date of a requested Competitive Loan borrowing. A Competitive Bid
Request shall specify (i) the date of the requested Competitive Loan borrowing
(which shall be a Business Day), (ii) the amount of the requested Competitive
Loan borrowing and (iii) the applicable Interest Periods requested and shall be
accompanied by payment of the Competitive Bid Request Fee. The Administrative
Agent shall, promptly following its receipt of a Competitive Bid Request under
this subsection (b), notify the Lenders of its receipt and the contents thereof
and invite the Lenders to submit Competitive Bids in response thereto. A form of
such notice is provided in Schedule VA-2. No more than two (2) Competitive Bid
-------------
Requests (e.g., the Borrower may request Competitive Bids for no more than two
(2) different Interest Periods at a time) shall be submitted at any one time and
Competitive Bid Requests may be made no more frequently than once every five (5)
Business Days.
(c) Competitive Bid Procedure. Each Lender may, in its sole discretion,
-------------------------
make one or more Competitive Bids to the Borrower in response to a Competitive
Bid Request. Each Competitive Bid must be received by the Administrative Agent
not later than 10:00 A.M. (Charlotte, North Carolina time) on the Business Day
next succeeding the date of receipt by the Administrative Agent of the related
Competitive Bid Request. A Lender may offer to make all or part of the requested
Competitive Loan borrowing and may submit multiple Competitive Bids in response
to a Competitive Bid Request. The Competitive Bid shall specify (i) the
particular Competitive Bid Request as to which the Competitive Bid is submitted,
(ii) the minimum (which shall be not less than $1,000,000 and integral multiples
of $1,000,000 in excess thereof) and maximum principal amounts of the requested
Competitive Loan or Loans as to which the Lender is willing to make, and (iii)
the applicable interest rate or rates and Interest Period or Periods therefor. A
form of such Competitive Bid is provided in Schedule VA-3. A Competitive Bid
-------------
submitted by a Lender in accordance with the provisions hereof shall be
irrevocable. The Administrative Agent shall promptly notify the Borrower by no
later than 10:30 A.M. (Charlotte, North Carolina time) on the Business Day
succeeding the date of receipt by the Administrative Agent of the related
Competitive Bid Request of all Competitive Bids made and the terms thereof. The
Administrative Agent shall send a copy of each of the Competitive Bids to the
Borrower for its records as soon as practicable.
43
(d) Submission of Competitive Bids by Administrative Agent. If the
------------------------------------------------------
Administrative Agent, in its capacity as a Lender, elects to submit a
Competitive Bid in response to any Competitive Bid Request, it shall submit such
Competitive Bid directly to the Borrower one-half of an hour earlier than the
latest time at which the other Lenders are required to submit their Competitive
Bids to the Administrative Agent in response to such Competitive Bid Request
pursuant to subsection (c) above.
(e) Acceptance of Competitive Bids. The Borrower may, in its sole and
------------------------------
absolute discretion, subject only to the provisions of this subsection (e),
accept or refuse any Competitive Bid offered to it. To accept a Competitive Bid,
the Borrower shall give written notification (or telephonic notice promptly
confirmed in writing) substantially in the form of Schedule VA-4 of its
-------------
acceptance of any or all such Competitive Bids to the Administrative Agent by
11:00 A.M. (Charlotte, North Carolina time) on the date on which notice of
election to make a Competitive Bid is to be given to the Administrative Agent by
the Lenders; provided, however, (i) the failure by the Borrower to give timely
-------- -------
notice of its acceptance of a Competitive Bid shall be deemed to be a refusal
thereof, (ii) the Borrower may accept Competitive Bids only in ascending order
of rates, (iii) the aggregate amount of Competitive Bids accepted by the
Borrower shall not exceed the principal amount specified in the Competitive Bid
Request, (iv) the Borrower may accept a portion of a Competitive Bid in the
event, and to the extent, acceptance of the entire amount thereof would cause
the Borrower to exceed the principal amount specified in the Competitive Bid
Request, subject however to the minimum amounts provided herein (and provided
that where two or more Lenders submit such a Competitive Bid at the same
Competitive Bid Rate, then pro rata between or among such Lenders) and (v) no
bid shall be accepted for a Competitive Loan unless such Competitive Loan is in
a minimum principal amount of $1,000,000 and integral multiples of $1,000,000 in
excess thereof, except that where a portion of a Competitive Bid is accepted in
accordance with the provisions of subsection (iv) hereof, then in a minimum
principal amount of $1,000,000 and integral multiples of $1,000,000 in excess
thereof (but not in any event less than the minimum amount specified in the
Competitive Bid), and in calculating the pro rata allocation of acceptances of
portions of multiple bids at a particular Competitive Bid Rate pursuant to
subsection (iv) hereof, the amounts shall be rounded to integral multiples of
$1,000,000 in a manner which shall be in the discretion of the Borrower. A
notice of acceptance of a Competitive Bid given by the Borrower in accordance
with the provisions hereof shall be irrevocable. The Administrative Agent shall,
not later than 12:00 Noon (Charlotte, North Carolina time) on the date of
receipt by the Administrative Agent of a notification from the Borrower of its
acceptance and/or refusal of Competitive Bids, notify each affected Lender of
its receipt and the contents thereof. Upon its receipt from the Administrative
Agent of notification of the Borrower's acceptance of its Competitive Bid in
accordance with the terms of this subsection (e), each successful bidding Lender
will thereupon become bound, subject to the other applicable conditions hereof,
to make the Competitive Loan in respect of which its bid has been accepted.
(f) Funding of Competitive Loans. Each Lender which is to make a
----------------------------
Competitive Loan shall make its Competitive Loan borrowing available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified herein by 1:30 P.M. (Charlotte, North Carolina
time) on the date specified in the Competitive Bid Request in Dollars and in
funds immediately available to the Administrative Agent. Such borrowing will
then be made available to
44
the Borrower by crediting the account of the Borrower on the books of such
office with the aggregate of the amount made available to the Administrative
Agent by the applicable Competitive Loan Lenders and in like funds as received
by the Administrative Agent.
(g) Maturity of Competitive Loans. Each Competitive Loan shall mature
-----------------------------
and be due and payable in full on the last day of the Interest Period applicable
thereto. Unless the Borrower shall give notice to the Administrative Agent
otherwise, the Borrower shall be deemed to have requested a Revolving Loan
borrowing in the amount of the maturing Competitive Loan, the proceeds of which
will be used to repay such Competitive Loan.
(h) Interest on Competitive Loans. Subject to the provisions of Section
-----------------------------
3.1, Competitive Loans shall bear interest in each case at the Competitive Bid
Rate applicable thereto. Interest on Competitive Loans shall be payable in
arrears on each Interest Payment Date.
SECTION 2.05. Termination and Reduction of Commitments.
----------------------------------------
(a) Voluntary. The Borrower may from time to time permanently reduce or
---------
terminate the aggregate Revolving Committed Amount in whole or in part (in
minimum aggregate amounts of the lesser of $1,000,000 or the full remaining
amount of the Revolving Committed Amount) upon three Business Days' prior
written notice to the Administrative Agent; provided, however, no such
termination or reduction shall be made which would reduce the Revolving
Committed Amount to an amount less than the sum of Revolving Loans outstanding
plus Swingline Loans outstanding plus LOC Obligations outstanding. The
commitments of the Lenders to make, extend or convert Revolving Loans shall
automatically terminate on the Maturity Date. The Administrative Agent shall
promptly notify each of the Lenders of receipt by the Administrative Agent of
any notice from the Borrower pursuant to this Section 2.05.
(b) Mandatory. At the option of the Required Lenders (evidenced by
---------
prompt written notice thereof from the Administrative Agent, on behalf of the
Required Lenders, to the Borrower), the aggregate Revolving Committed Amount
shall be permanently reduced by the amount of any mandatory payment, prepayment
or other reduction of the Loans and LOC Obligations made in accordance with the
terms of Section 3.02(b)(ii)(A).
SECTION 2.06. Fees.
----
(a) Facility Fee. In consideration of the Commitments hereunder, the
------------
Borrower agrees to pay to the Administrative Agent for the account of the
Lenders a facility fee (the "Facility Fee") on the aggregate Revolving Committed
Amount computed from the Restatement Date at a per annum rate equal to the
Applicable Margin for each day during the applicable period. The Facility Fee
shall be payable quarterly in arrears on the fifteenth (15th) day of each
January, April, July and October and on the Maturity Date for the immediately
preceding fiscal quarter (or portion thereof).
(b) Letter of Credit Fees.
---------------------
45
(i) Standby Letter of Credit Fee. In consideration of the issuance of
----------------------------
standby Letters of Credit hereunder, the Borrower agrees to pay to the Issuing
Lender a fee (the "Standby Letter of Credit Fee") equal to the Applicable Margin
for Letters of Credit plus one-eighth of one percent (1/8%) per annum on the
average daily maximum amount available to be drawn under each such Letter of
Credit from the date of issuance to the date of expiration. Of such Standby
Letter of Credit Fee, the Issuing Lender shall retain for its own account
without sharing by the other Lenders one-eighth of one percent (1/8%) per annum
thereon and shall promptly pay over to the Administrative Agent for the ratable
benefit of the Lenders (including the Issuing Lender) the remainder of amounts
paid on the Standby Letter of Credit Fee; provided, however, that the Lenders
-------- -------
shall not be entitled to any such fee in respect of a standby Letter of Credit
which is an Existing Letter of Credit if such fee has been deemed to be earned
during the period prior to the Closing Date (it being understood and agreed by
each of the Lenders that any such fee in respect of a standby Letter of Credit
which is an Existing Letter of Credit shall be deemed to be earned evenly
throughout the period for which it is paid regardless of when it was paid). The
Standby Letter of Credit Fee will be payable quarterly in arrears on the 15th
day of each January, April, July and October.
(ii) Trade Letter of Credit Fee. In consideration of the issuance of
--------------------------
trade Letters of Credit hereunder, the Borrower agrees to pay to the Issuing
Lender a fee (the "Trade Letter of Credit Fee") equal to one-quarter of one
percent (1/4%) of the amount of each drawing under any such Letter of Credit or
such lesser amount as may be agreed upon by the Issuing Lender and the Borrower.
Of such Trade Letter of Credit Fee, the Issuing Lender shall pay over to the
Administrative Agent for the ratable benefit of the Lenders (including the
Issuing Lender) one-eighth of one percent (1/8%) thereof and the Issuing Lender
may retain for its own account without sharing by the other Lenders the amount
in excess thereof, if any. The Trade Letter of Credit Fee will be collected by
the Issuing Lender on the date of each drawing, the Lenders' portion of which
will be paid over to the Administrative Agent quarterly on the 15th day of each
January, April, July and October for distribution to the Lenders (including the
Issuing Lender).
(iii) Issuing Lender Fees. In addition to the Standby Letter of Credit
-------------------
Fees and Trade Letter of Credit Fees payable pursuant to clauses (i) and (ii)
above, the Borrower shall pay to the Issuing Lender for its own account without
sharing by the other Lenders the customary charges from time to time of the
Issuing Lender with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings under, such Letters
of Credit (collectively, the "Issuing Lender Fees").
(c) Agents' Fees. The Borrower agrees to pay to the Administrative
------------
Agent and Arranger, for their own account, such structuring, syndication,
administrative and other fees (collectively, the "Agents' Fees") as provided in
the Mandate Letter, the Administrative Agent's Fee Letter.
(d) Competitive Bid Request Fee. The Borrower shall pay to the
---------------------------
Administrative Agent concurrently with each Competitive Bid Request such
administrative fee as provided in the Administrative Agent's Fee Letter (the
"Competitive Bid Request Fee").
46
ARTICLE III.
ADDITIONAL PROVISIONS REGARDING LOANS
SECTION 3.01. Default Rate.
------------
Upon the occurrence, and during the continuance, of an Event of
Default, the principal of and, to the extent permitted by law, interest on the
Loans and any other amounts owing hereunder or under the other Credit Documents
shall bear interest, payable on demand, at a per annum rate 2% greater than the
rate which would otherwise be applicable.
SECTION 3.02. Prepayments.
-----------
(a) Voluntary.
---------
(i) Revolving Loans and Competitive Loans. The Borrower shall have
-------------------------------------
the right to prepay Revolving Loans and Competitive Loans in whole or in part
from time to time without premium or penalty; provided, however, that (A) each
-------- -------
such partial prepayment shall be a minimum principal amount of $1,000,000 or an
integral multiple of $500,000 in excess thereof and (B) no Eurodollar Loan or
Competitive Loan may be prepaid prior to the last day of the Interest Period
applicable thereto unless accompanied by payment of amounts specified in Section
3.07. Amounts prepaid on the Revolving Loans may be reborrowed in accordance
with the provisions hereof.
(ii) Swingline Loans. The Borrower shall have the right to prepay
---------------
Swingline Loans which are Base Rate Loans in whole or in part from time to time
without premium or penalty; provided, however, that each such partial prepayment
-------- -------
shall be a minimum principal amount of $100,000 or an integral multiple of
$100,000 in excess thereof. Swingline Loans which are Quoted Rate Swingline
Loans may not be prepaid unless accompanied by payments of amounts specified in
Section 3.07. Amounts prepaid on the Swingline Loans may be reborrowed in
accordance with the provisions hereof.
(iii) Application. Amounts prepaid hereunder shall be applied to the
-----------
Revolving Loans and the Swingline Loans as the Borrower may elect, provided that
--------
if the Borrower shall fail to specify its application, prepayments shall be
applied, first, to the Swingline Loans (and with respect to Base Rate Loans and
Quoted Rate Swingline Loans comprising such Loans, first to Base Rate Loans and
then to Quoted Rate Swingline Loans in direct order of Interest Period
maturities), second, to Revolving Loans (and with respect to Base Rate Loans and
Eurodollar Loans comprising such Loans, first to Base Rate Loans and then to
Eurodollar Loans in direct order of Interest Period maturities) and, third, to
Competitive Loans in direct order of Interest Period maturities.
(b) Mandatory.
---------
47
(i) Revolving Committed Amount Limitation. If at any time (A) the sum
-------------------------------------
of Revolving Loans outstanding plus Swingline Loans outstanding plus LOC
---- ----
Obligations outstanding plus Competitive Loans outstanding shall exceed (B) the
----
Revolving Committed Amount, then in any such instance the Borrower shall pay,
prepay or otherwise reduce so much of the outstanding Loans and LOC Obligations
as shall be necessary to eliminate such excess.
(ii) Excess Sale Events. In the event that there shall occur any Excess
------------------
Sale Event, the Borrower will give the Administrative Agent and each of the
Lenders, not later than the date of such Excess Sale Event (which, in the case
of an Excess Sale Event consisting of a Sale Leaseback, shall be deemed to be
the date of the sale of the assets subject thereto), written notice thereof
("Excess Sale Notice"). Each Excess Sale Notice shall set forth (i) the date of
such Excess Sale Event and a description of the facts or circumstances giving
rise thereto and (ii) the amount of the Available Fund resulting from such
Excess Sale Event and the Pro Rata Prepayment Share thereof (together with
computations showing the calculation of such amount and such Pro Rata Prepayment
Share). On the thirty-fifth day following the giving of any Excess Sale Notice,
the Borrower shall pay, prepay or otherwise reduce the outstanding Loans and LOC
Obligations by an amount equal to the Pro Rata Prepayment Share of the Available
Fund resulting from the Excess Sale Event to which such Excess Sale Notice
relates.
For purposes hereof:
(A) "Excess Sale Event" shall mean (1) any Sale Leaseback to
the extent such Sale Leaseback is not consummated in compliance with
subdivision (a) of Section 8.04 or (2) the expiration of the
Application Period for any Substantial Sale as to which the sum of (I)
the amount applied (or caused to be applied) by the Borrower during
such Application Period by reason of such Substantial Sale to the
purchase, acquisition or construction of Additional Assets plus (II)
----
the Additional Portion, if any, of such Net Sale Proceeds to be so
applied during the Further Period immediately following such
Application Period, as specified in the Officers' Certificate furnished
pursuant to subdivision (ii)(B) of Section 8.07 in connection with such
Substantial Sale, shall not be at least equal to the amount of such Net
Sale Proceeds during which an amount equal to the Net Sale Proceeds of
such Substantial Sale shall not have been applied (or caused to be
applied) by the Borrower, by reason of such Substantial Sale, to the
purchase, acquisition or (in the case of real estate) construction of
Alternative Assets;
(B) "Available Fund" resulting from any Excess Sale Event
shall mean (1) if such Excess Sale Event shall consist of a Sale
Leaseback, an amount equal to the Net Sale Proceeds of the assets sold
by the Borrower or a Restricted Subsidiary, as the case may be, in
connection with such Sale Leaseback or (2) if such Excess Sale Event
shall consist of the expiration of the Application Period for a
Substantial Sale, an amount equal to the excess of (I) the Net Sale
Proceeds of such Substantial Sale over (II) the sum of (x) the
aggregate amount applied (or caused to be applied) by the Borrower
during such Application Period, by reason of such Substantial Sale, to
the purchase, acquisition or (in the case of real estate) construction
of Alternative Assets plus (y) the Additional Portion, if any, of such
----
Net Sale Proceeds to be so applied during the Further Period
immediately
48
following such Application Period, as specified in the Officers'
Certificate furnished pursuant to subdivision (ii)(B) of Section 8.07
in connection with such Substantial Sale; and
(C) "Pro Rata Prepayment Share" of any Available Fund
resulting from any Excess Sale Event shall mean a percentage of such
Available Fund (rounded to the nearest one-hundredth of one percent)
determined as of the date that the Excess Sale Notice with respect to
the related Excess Sale Event is required to be given under this
Section 3.02(b)(ii) obtained by dividing (1) the sum (without
duplication) of Revolving Loans then outstanding plus Swingline Loans
----
then outstanding plus LOC Obligations then outstanding plus Competitive
---- ----
Loans then outstanding by (2) the sum of (x) the aggregate then
outstanding principal amount of all Revolving Loans then outstanding
plus Swingline Loans then outstanding plus LOC Obligations then
---- ----
outstanding plus Competitive Loans then outstanding plus (y) the amount
---- ----
determined pursuant to clause (1) above in respect of such Available
Fund.
(iii) Payments and prepayments pursuant to this Section 3.02(b)
shall be applied, first, to Swingline Loans (and with respect to Base Rate Loans
-----
and Quoted Rate Swingline Loans comprising such Loans, first to Base Rate Loans
and then to Quoted Rate Swingline Loans in direct order of Interest Period
maturities), until all Swingline Loans have been repaid or prepaid in full;
second, to Revolving Loans (and with respect to Base Rate Loans and Eurodollar
------
Loans comprising such Loans, first to Base Rate Loans and then to Eurodollar
Loans in direct order of Interest Period maturities), until all Revolving Loans
have been repaid or prepaid in full; third, to Competitive Loans in direct order
-----
of Interest Period maturities; and fourth, to the extent necessary, to the
------
payment to the Administrative Agent of additional amounts of cash, to be held by
the Administrative Agent, for the benefit of the Issuing Lender and the other
Lenders, in a cash collateral account as additional security for the Borrower's
LOC Obligations for subsequent drawings under then outstanding Letters of
Credit.
(c) General. All prepayments of Loans shall be subject to Section 3.07
-------
but otherwise without premium or penalty and shall be accompanied by accrued
interest on the principal amount being prepaid to the date of prepayment and all
other amounts due and payable hereunder with respect to such Loans.
SECTION 3.03. Extension and Conversion.
The Borrower shall have the option, on any Business Day, to extend
existing Loans into a subsequent Interest Period or to convert Loans into Loans
of another type; provided, however, that (i) except as provided in Section 3.06,
-------- -------
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
the Interest Period applicable thereto, (ii) Eurodollar Loans may be extended,
and Base Rate Loans may be converted into Eurodollar Loans, only if no Default
or Event of Default is in existence on the date of extension or conversion,
(iii) Loans extended as, or converted into, Eurodollar Loans shall be in such
minimum amounts as provided in Section 2.01(b), (iv) any request for extension
or conversion of a Eurodollar Loan which shall fail to specify an Interest
Period shall be deemed to be a request for an Interest Period of one month and
49
(v) Swingline Loans may not be converted or extended pursuant to this Section
3.03. Each such extension or conversion shall be effected by the Borrower by
giving a Notice of Extension/Conversion (or telephone notice promptly confirmed
in writing) to the Administrative Agent prior to 1:00 P.M. (Charlotte, North
Carolina time) on the Business Day of, in the case of the conversion of a
Eurodollar Loan into a Base Rate Loan and on the third Business Day prior to, in
the case of the extension of a Eurodollar Loan as, or conversion of a Base Rate
Loan into, a Eurodollar Loan, the date of the proposed extension or conversion,
specifying the date of the proposed extension or conversion, the Loans to be so
extended or converted, the types of Loans into which such Loans are to be
converted and, if appropriate, the applicable Interest Periods with respect
thereto. Each request for extension or conversion shall constitute a
representation and warranty by the Borrower of the matters specified in Section
5.03(b), (c), (d) and (e). In the event the Borrower fails to request extension
or conversion of any Eurodollar Loan in accordance with this Section, or any
such conversion or extension is not permitted or required by this Section, then
such Loans shall be automatically converted into Base Rate Loans at the end of
their Interest Period. The Administrative Agent shall give each Lender notice as
promptly as practicable of any such proposed extension or conversion affecting
any Loan.
SECTION 3.04. Alternate Rate of Interest.
--------------------------
In the event, and on each occasion, that on the day two Business Days
prior to the commencement of any Interest Period for a Eurodollar Loan the
Administrative Agent shall have determined in good faith (i) that dollar
deposits in the principal amounts of such Eurodollar Loan are not generally
available in the London interbank market or (ii) that reasonable means do not
exist for ascertaining the Eurodollar Rate as practicable thereafter, give telex
or telecopy notice of such determination to the Borrower and the Lenders. In the
event of any such determination under clause (i) or (ii) above, until the
Administrative Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (A) any request by the
Borrower for a Eurodollar Loan pursuant to Section 2.01(b) shall be deemed to be
a request for a Base Rate Loan and (B) any request by the Borrower for
conversion into or extension of a Eurodollar Loan pursuant to Section 3.03 shall
be deemed to be a request for conversion into or extension of a Base Rate Loan.
Each determination by the Administrative Agent hereunder shall be in good faith
and shall be rebuttably presumptive evidence thereof absent manifest error.
SECTION 3.05. Reserve Requirements; Change in Circumstances.
---------------------------------------------
(a) Notwithstanding any other provision herein, if after the Relevant
Date (as defined in paragraph (c) below) any change in applicable law or
regulation or in the interpretation or administration thereof by any
Governmental Body charged with the interpretation or administration thereof
(whether or not having the force of law) shall impose, modify or deem applicable
any reserve, special deposit or similar requirement against assets of, deposits
with or for the account of or credit extended by such Lender (including without
limitation the Swingline Lender and the Issuing Lender), or shall impose on such
Lender or the London interbank market any other condition affecting this
Agreement, such Lender's Commitment, any Loan made by such Lender, any Letter of
Credit issued by such Lender or any Participation Interest held by such Lender
(other than the imposition of or change in the rate of any Taxes as defined in
Section
50
4.04 or the imposition of or change in the rate of any item specifically
excluded from such definition of Taxes pursuant to the terms of such Section),
and the result of any of the foregoing shall be to increase the cost to such
Lender of making, issuing or maintaining such Loan, Letter of Credit or
Participation Interest, as the case may be, or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal, interest
or otherwise) by an amount deemed by such Lender to be material, then the
Borrower will pay to such Lender in accordance with paragraph (d) below upon
demand such additional amount or amounts as will compensate such Lender for any
such additional costs incurred or reduction suffered after delivery to the
Borrower of a certificate relating to such additional costs or such reduction as
contemplated by such paragraph (d).
(b) If any Lender (including without limitation the Swingline Lender,
the Issuing Lender and any Competitive Lender) shall have determined that after
the Relevant Date the applicability of any law, rule, regulation or guideline
adopted pursuant to or arising out of the July 1988 report of the Basle
Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital Standards," or the
adoption after the date hereof of any other law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any Governmental
Body, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any lending office of
such Lender) or any Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement, such
Lender's Commitment or any Loan made by such Lender pursuant hereto, any Letter
of Credit issued by such Lender pursuant hereto or any Participation Interest
held by such Lender pursuant hereto to a level below that which such Lender or
such Lender's holding company could have achieved but for such adoption, change
or compliance (taking into consideration such Lender's policies and the policies
of such Lender's holding company with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time after delivery to
the Borrower of a certificate relating to such additional cost or costs as
contemplated by paragraph (d) below, the Borrower shall pay to such Lender in
accordance with such paragraph (d) such additional amount or amounts as will
compensate such Lender or such Lender's holding company for any such reduction
suffered.
(c) For purposes of this Section 3.05, "Relevant Date" shall mean, in
the case of a Lender that is a Lender on the date hereof and, in the case of a
Lender that becomes a Lender after the date hereof as provided in Section
12.04(b), the date on which such Lender becomes a Lender under such Section.
(d) A certificate signed by a duly authorized officer of a Lender
setting forth such amount or amounts (including computation of such amount or
amounts) as shall be necessary to compensate such Lender or its holding company
as specified in paragraph (a) or (b) above, as the case may be, shall be
delivered to the Borrower and the Administrative Agent, and the Borrower
51
shall pay to such Lender, within 30 Business Days after receipt by the Borrower
of such certificate delivered by the Lender, the amount shown as due on any such
certificate.
(e) The protection of this Section shall be available to each Lender
(including without limitation the Swingline Lender and the Issuing Lender)
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed. Each determination by a Lender (including without
limitation the Swingline Lender and the Issuing Lender) under this Section 3.05
shall be in good faith and shall be rebuttably presumptive evidence thereof
absent manifest error.
SECTION 3.06. Change in Legality.
------------------
(a) Notwithstanding any other provision herein, if any change in any
law or regulation or in the interpretation thereof by any Governmental Body
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
30 days' (or such shorter period as shall be required in order to comply with
applicable law) written notice to the Borrower and to the Administrative Agent,
such Lender may:
(i) declare that Eurodollar Loans, and conversions into or
extensions of Eurodollar Loans, will not thereafter be made by such
Lender hereunder, whereupon any request by the Borrower for, or for
conversion into or extension of, a Eurodollar Loan shall, as to such
Lender only, be deemed a request for, or for conversion into or
extension of, a Base Rate Loan, unless such declaration shall be
subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to Base Rate Loans, in which event all such Eurodollar Loans
shall be automatically converted to Base Rate Loans as of the effective
date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
Base Rate Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.
(b) For purposes of this Section 3.06, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan, if lawful, on the last day
of the Interest Period currently applicable to such Eurodollar Loan; in all
other cases such notice shall be effective on the date of receipt by the
Borrower. Each determination by a Lender under this Section 3.06 shall be in
good faith and shall be rebuttably presumptive evidence thereof absent manifest
error.
SECTION 3.07. Indemnity.
---------
52
The Borrower shall indemnify each Lender (including without limitation
the Swingline Lender) against any loss, cost or expense which such Lender may
sustain or incur as a consequence of (a) any failure by the Borrower to borrow
or to refinance, convert or extend any Loan hereunder after notice of such
borrowing, refinancing, conversion or extension has been given pursuant to
Section 2.01, 2.02 or 3.03, or (b) any payment, prepayment or conversion by the
Borrower of a Eurodollar Loan, Quoted Rate Swingline Loan or a Competitive Loan
required by any other provision of this Agreement or otherwise made or deemed
made on a date other than the last day of the Interest Period, if any,
applicable thereto. In the case of any such event, the Borrower shall, upon
demand by such Lender (with a copy of such demand to the Administrative Agent),
pay to such Lender any amounts required to compensate such Lender for any
reasonable loss, cost or expense which such Lender may incur as a result of such
action or inaction by the Borrower, including without limitation any reasonable
loss, cost or expense incurred by reason, of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such Loan or
proposed Loan. Each determination by a Lender under this Section 3.07 shall be
in good faith and shall be rebuttably presumptive evidence thereof absent
manifest error.
SECTION 3.08. Mandatory Assignment; Commitment Termination.
--------------------------------------------
In the event that any Lender delivers to the Administrative Agent or
the Borrower, as appropriate, a certificate in accordance with Section 3.05(d)
or a notice in accordance with Section 3.06 or in the event that any Lender
fails to fulfill its Commitment to make any Revolving Loan, then, provided that
no Default or Event of Default has occurred and is continuing at such time, the
Borrower may, at its own expense (such expense to include any transfer fee
payable to the Administrative Agent under Section 12.04(b)), and in its sole
discretion (a) require such Lender to transfer and assign in whole or in part,
without recourse (in accordance with and subject to the terms and conditions of
Section 12.04(b)), all or part of its interests, rights and obligations under
this Agreement to an Eligible Assignee which shall assume such assigned
obligations (which Eligible Assignee may be another Lender, if a Lender accepts
such assignment); provided that (i) such assignment shall not relieve the
Borrower from its obligations to pay such additional amounts that may be due in
accordance with Section 3.05(b), (ii) such assignment shall not conflict with
any law, rule or regulation or order of any court or other Governmental Body and
(iii) the Borrower or such Eligible Assignee shall have paid to the assigning
Lender in immediately available funds the principal of and interest accrued to
the date of such payment on the Loans made by it hereunder and all accrued Fees
and other amounts owed to it hereunder or (b) terminate the Commitment of such
Lender, prepay all outstanding Loans of such Lender and cash collateralize such
Lender's Participation Interests in Swingline Loans and LOC Obligations then
outstanding; provided that (i) such termination of the Commitment of such Lender
shall not relieve the Borrower from its obligations to pay such additional
amounts that may be due in accordance with Section 3.05(b), (ii) such
termination of the Commitment of such Lender, prepayment of Loans and cash
collateralization of such Participation Interests in Swingline Loans and LOC
Obligations does not conflict with any law, rule or regulation or order of any
court or other Governmental Body and (iii) the Borrower shall have paid to such
Lender in immediately available funds the principal of and interest accrued to
53
the date of such payment on the Loans made by it hereunder and all other amounts
owed to it hereunder and shall have cash collateralized such Lender's
Participation Interests in outstanding Swingline Loans and LOC Obligations.
ARTICLE IV.
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; U.S. TAXES; EVIDENCE OF LOANS
SECTION 4.01. Payments and Computations.
-------------------------
Except as otherwise specifically provided herein, all payments hereunder shall
be made to the Administrative Agent in dollars in immediately available funds,
without offset, deduction or withholding of any kind, at its offices at
NationsBank Corporate Center, Charlotte, North Carolina not later than 2:00 P.M.
(Charlotte, North Carolina time) on the date when due. The Administrative Agent
may (but shall not be obligated to) debit the amount of any such payment which
is not made by such time to any ordinary deposit account of the Borrower
maintained with the Administrative Agent (with notice to the Borrower). The
Borrower shall, at the time it makes any payment under this Agreement, specify
to the Administrative Agent the Loans, LOC Obligations, Fees or other amounts
payable by the Borrower hereunder to which such payment is to be applied (and in
the event that it fails so to specify, or if such application would be
inconsistent with the terms hereof, the Administrative Agent shall distribute
such payment to the Lenders (including without limitation the Swingline Lender
and the Issuing Lender) in such manner as the Administrative Agent may determine
to be appropriate in respect of obligations owing by the Borrower hereunder,
subject to the terms of Sections 3.02 and 4.02). The Administrative Agent will
thereafter cause to be distributed promptly on the same day like funds relating
to the payment of principal or interest or Fees ratably to the Lenders entitled
to receive such payments in accordance with the terms of this Agreement.
Whenever any payment hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day (subject to accrual of interest and Fees for the period of such
extension), except that in the case of Eurodollar Loans, if the extension would
cause the payment to be made in the next following calendar month, then such
payment shall instead be made on the next preceding Business Day. Except as
expressly provided otherwise herein, all computations of interest and fees shall
be made on the basis of actual number of days elapsed over a year of 360 days.
Interest shall accrue from and include the date of advance, but exclude the date
of payment.
SECTION 4.02. Pro Rata Treatment.
------------------
(i) Except to the extent otherwise provided herein, each Revolving
Loan, each payment or prepayment of principal of any Revolving Loan, each
payment of interest on the Revolving Loans, each payment of Unused Fees, each
reduction of the Revolving Committed Amount and each conversion or extension of
any Revolving Loan, shall be allocated pro rata among the Lenders in accordance
with their respective Commitment Percentages (or if the Commitments
54
have expired or been terminated, in accordance with the respective principal
amounts of outstanding Revolving Loans and Participation Interests of the
Lenders).
(ii) Each payment of unreimbursed drawings in respect of LOC
Obligations shall be allocated to each Lender entitled thereto pro rata in
accordance with the respective Commitment Percentages of the Lenders; provided
--------
that, if any Lender shall have failed to pay its pro rata share of any drawing
under any Letter of Credit, then any amount to which such Lender would otherwise
be entitled pursuant to this clause (ii) shall instead be payable to the Issuing
Lender; provided further, that in the event any amount paid to any Lender
-------- -------
pursuant to this clause (ii) is rescinded or must otherwise be returned by the
Issuing Lender, each Lender shall, upon the request of the Issuing Lender, repay
to the Administrative Agent for the account of the Issuing Lender the amount so
paid to such Lender, with interest for the period commencing on the date such
payment is returned by the Issuing Lender until the date the Issuing Lender
receives such repayment at a rate per annum equal to, during the period to but
excluding the date two (2) Business Days after such request, the Federal Funds
Effective Rate (computed on the basis of the actual number of days elapsed over
a year of 360 days), and thereafter, the Base Rate plus two percent (2%)
(computed on the basis of the actual number of days elapsed over a year of 360
days for each applicable day on which the Base Rate shall be determined on the
basis of the Federal Funds Effective Rate and over a year of 365/66 days for
each applicable day on which the Base Rate shall be determined on the basis of
the Prime Rate).
SECTION 4.03. Sharing of Payments.
-------------------
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan, unreimbursed drawing with respect
to any LOC Obligation or other obligation owing to such Lender under this
Agreement through the exercise of a right of set-off, banker's lien,
counterclaim or otherwise in excess of its pro rata share as provided for in
this Agreement, such Lender shall promptly purchase from the other Lenders a
participation in such Loans, LOC Obligations and other obligations in such
amounts, and make such other adjustments from time to time, as shall be
equitable to the end that all Lenders share such payment in accordance with
their respective ratable shares as provided for in this Agreement. The Lenders
further agree among themselves that if payment to a Lender obtained by such
Lender through the exercise of a right of set-off, banker's lien, counterclaim
or otherwise as aforesaid shall be rescinded or must otherwise be restored, each
Lender which shall have shared the benefit of such payment shall, by repurchase
of a participation theretofore sold, return its share of that benefit (together
with its share of any accrued interest payable with respect thereto) to each
Lender whose payment shall have been rescinded or otherwise restored. The
Borrower agrees that any Lender so purchasing such a participation may, to the
fullest extent permitted by law, exercise all rights of payment, including
set-off, banker's lien or counterclaim, with respect to such participation as
fully as if such Lender were a holder of such Loan, LOC Obligation or other
obligation in the amount of such participation. Except as otherwise expressly
provided in this Agreement, if any Lender or the Administrative Agent shall fail
to remit to the Administrative Agent or any other Lender an amount payable by
such Lender or the Administrative Agent to the Administrative Agent or such
other Lender pursuant to this Agreement on the date when such amount is due,
such payments shall be made together with
55
interest thereon for each date from the date such amount is due until the date
such amount is paid to the Administrative Agent or such other Lender at a rate
per annum equal to the Federal Funds Effective Rate.
SECTION 4.04. Net Payments.
------------
All payments made by the Borrower hereunder will be made without
set-off or counterclaim. All payments by the Borrower hereunder shall be made
free and clear of and without deduction or withholding for any Taxes (as
hereinafter defined), except to the extent that such deduction or withholding is
required by law. For purposes of this Section 4.04, "Taxes" shall mean any
present or future license, registration or other fees, taxes or other amounts
for or on account of levies, imposts, duties, deductions, withholdings or other
charges of whatsoever nature, imposed, levied, collected, withheld or assessed
by any governmental or taxing authority, excluding income and franchise taxes
imposed on a Lender (i) by a jurisdiction under which such Lender is organized
or operating in connection with this Agreement or any political subdivision
thereof or (ii) as a result of a present or former connection between the
jurisdiction of the governmental or taxing authority imposing such taxes and the
Lender. If the Borrower shall be required to withhold or deduct Taxes (other
than U.S. Taxes as defined in Section 4.05) from any sum payable hereunder, (i)
the sum payable shall be increased as may be necessary so that the amount
received is equal to the sum which would have been received had no withholdings
or deductions been made, (ii) the Borrower shall make such necessary
withholdings or deductions and (iii) the Borrower shall pay the full amount
withheld or deducted to the relevant authority according to applicable law so
that the Lenders shall not be required to make any deduction or payment of
Taxes.
SECTION 4.05. U.S. Taxes.
----------
(a) The Borrower agrees to pay to each Lender that is not a U.S. Person
(a "Foreign Lender") such additional amounts as are necessary in order that the
net payment of any amount due to such Foreign Lender hereunder after deduction
for or withholding in respect of any U.S. Taxes imposed with respect to such
payment (or in lieu thereof, payment of such U.S. Taxes by such Foreign Lender),
will not be less than the amount stated herein to be then due and payable,
provided that the foregoing obligation to pay such additional amounts shall not
--------
apply:
(i) to any payment to any Foreign Lender hereunder unless
such Foreign Lender (A) on the date hereof (or on the date it becomes a
Lender as provided in Section 12.04(b)) and on the date of any change
in the applicable lending office of such Foreign Lender, is entitled to
submit either a Form 1001 (relating to such Foreign Lender and
entitling it to a complete exemption from withholding on all interest
to be received by it hereunder in respect of the Loans) or Form 4224
(relating to all interest to be received by such Foreign Lender
hereunder in respect of the Loans) and (B) timely delivers such Form in
duplicate to the Borrower, with a copy to the Administrative Agent at
such time;
(ii) to any payment to any Foreign Lender hereunder unless
such Foreign Lender delivers to the Borrower an updated copy of a Form
1001 and a Form
56
4224 on or before the date of expiration or obsolescence of, or the
date of the occurrence of any event requiring a change in, the most
recent Form 1001 and/or Form 4224 previously delivered to the Borrower
by such Foreign Lender pursuant to this Section 4.05 (and such
extensions or renewals of such Forms as may reasonably be requested by
the Borrower from time to time), unless an event has occurred prior to
the date on which delivery of any such updated Form 1001 and/or Form
4224 would otherwise be required which has rendered such Form or Forms
inapplicable to any payment to a Foreign Lender hereunder subsequent to
such date; or
(iii) to any U.S. Tax imposed solely by reason of the failure
by such Foreign Lender to comply with applicable certification,
information, documentation or other reporting requirements concerning
the nationality, residence, identity, or connections with the United
States of America of such Foreign Lender if such compliance is required
by statute or regulation of the United States of America as a
precondition to relief or exemption from such U.S. Taxes; and
provided further that the Borrower shall not be required pursuant to this
-------- -------
Section 4.05 to pay additional amounts to any Foreign Lender to the extent that
such additional amounts relate to any payment to such Foreign Lender required
hereunder prior to the date that is 90 days after the date that the Borrower
first receives notice from such Foreign Lender requesting payment of any such
additional amounts.
For the purposes of this Section 4.05(a), (w) "Form 1001" shall mean Form 1001
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America, (x) "Form 4224" shall mean Form 4224
(Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America (or in relation to either such Form
such successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a claim
to which such Form relates), (y) "U.S. Person" shall mean a citizen, national or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under any laws of the United States of
America, or any estate or trust that is subject to Federal income taxation
regardless of the source of its income and (z) "U.S. Taxes" shall mean any
present or future tax, assessment or other charge or levy imposed by or on
behalf of the United States of America or any taxing authority thereof or
therein.
(b) Within thirty (30) days after paying any amount to the
Administrative Agent or any Foreign Lender from which it is required by law to
make any deduction or withholding, and within thirty (30) days after it is
required by law to remit such deduction or withholding to any relevant taxing or
other authority, the Borrower shall deliver to the Administrative Agent for
delivery to such Foreign Lender evidence satisfactory to such Foreign Lender of
such deduction, withholding or payment (as the case may be).
(c) In the event that any Lender requests payment by the Borrower of
any additional amounts pursuant to subsection (a) of this Section 4.05, then,
provided that no Default or Event
57
of Default has occurred and is continuing at such time, the Borrower may, at its
own expense (such expense to include any transfer fee payable to the
Administrative Agent under Section 12.04(b)), and in its sole discretion (a)
require such Lender to transfer and assign in whole or in part, without recourse
(in accordance with and subject to the terms and conditions of Section
12.04(b)), all or part of its interests, rights and obligations under this
Agreement to an Eligible Assignee which shall assume such assigned obligations
(which Eligible Assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) such assignment shall not relieve the Borrower
from its obligations to pay such additional amounts that may be due in
accordance with subsection (a) of this Section 4.05, (ii) such assignment shall
not conflict with any law, rule or regulation or order of any court or other
Governmental Body and (iii) the Borrower or such Eligible Assignee shall have
paid to the assigning Lender in immediately available funds the principal of and
interest accrued to the date of such payment on the Loans made by it hereunder
and all accrued Fees and other amounts owed to it hereunder or (b) terminate the
Commitment of such Lender, prepay all outstanding Loans of such Lender and cash
collateralize such Lender's Participation Interests in Swingline Loans and LOC
Obligations then outstanding; provided that (i) such termination of the
Commitment of such Lender shall not relieve the Borrower from its obligations to
pay such additional amounts that may be due in accordance with subsection (a) of
this Section 4.05, (ii) such termination of the Commitment of such Lender,
prepayment of Loans and cash collateralization of such Participation Interests
in Swingline Loans and LOC Obligations does not conflict with any law, rule or
regulation or order of any court or other Governmental Body and (iii) the
Borrower shall have paid to such Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the Loans made
by it hereunder and all other amounts owed to it hereunder and shall have cash
collateralized such Lender's Participation Interests in outstanding Swingline
Loans and LOC Obligations.
SECTION 4.06. Evidence of Loans.
-----------------
(a) Each Lender shall maintain an account or accounts evidencing (i)
each Loan made by such Lender to the Borrower from time to time, (ii) any
amounts paid other than as Loans by such Lender to or for the account of the
Swingline Lender pursuant to Section 2.02(b)(iii) from time to time and (iii)
any amounts paid other than as Loans by such Lender to or for the account of the
Issuing Lender pursuant to Section 2.03(c) from time to time, including in each
case the amounts of principal and interest payable and paid to such Lender from
time to time under this Agreement. Each Lender will make reasonable efforts to
maintain the accuracy of its account or accounts and to promptly update its
account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain a register and a
subaccount for each Lender, in which register and subaccounts (taken together)
shall be recorded (i) the amount, type and Interest Period of each Loan
hereunder, (ii) the maximum amount available to be drawn under each outstanding
Letter of Credit, (iii) the amount of any principal or interest due and payable
or to become due and payable to each Lender hereunder, (iv) the amount of any
sum received by the Administrative Agent hereunder from or for the account of
the Borrower and each Lender's share thereof and (v) the amount of each payment
received by the Issuing Lender from the Borrower in reimbursement of any LOC
Obligations. The Administrative Agent will
58
make reasonable efforts to maintain the accuracy of the subaccounts referred to
in the preceding sentence and to promptly update such subaccounts from time to
time, as necessary.
(c) The entries made in the accounts, register and subaccounts
maintained pursuant to paragraphs (a) and (b) of this Section 4.06 shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded; provided, however,
-------- -------
that the failure of any Lender or the Administrative Agent to maintain any such
account, such register or such subaccount, as applicable, or any error therein,
shall not in any manner affect the obligations of the Borrower hereunder.
ARTICLE V.
CONDITIONS PRECEDENT
SECTION 5.01. [INTENTIONALLY OMITTED].
SECTION 5.02. [INTENTIONALLY OMITTED].
SECTION 5.03. Each Extension of Credit.
The obligations of each Lender (including the Swingline Lender and the
Issuing Lender) to make any Extension of Credit or to convert or extend any
Revolving Loan are subject to satisfaction of the following conditions in
addition to satisfaction on the Restatement Date of the conditions set forth in
Section 5.04:
(a) (i) In the case of any Revolving Loan, the
Administrative Agent shall have received an appropriate Notice of
Borrowing or Notice of Extension/Conversion; (ii) in the case of any
Swingline Loan, the Swingline Lender shall have received an appropriate
notice of borrowing in accordance with the provisions of Section
2.02(b)(i); and (iii) in the case of any Letter of Credit the Issuing
Lender shall have received an appropriate request for issuance of a
Letter of Credit pursuant to Section 2.03(b);
(b) The representations and warranties set forth in Article
IX shall be true and correct in all material respects as of such date
(except to the extent that any such representations and warranties
expressly relate to an earlier date);
(c) There shall not have been commenced against the Borrower
an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or any case, proceeding
or other action for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the
Borrower or for any substantial part of its Property or for the winding
up or liquidation of its affairs, and such involuntary case or other
case, proceeding or other action shall remain undismissed, undischarged
or unbonded;
59
(d) No Default or Event of Default shall exist and be
continuing either prior to or immediately after giving effect thereto;
and
(e) Immediately after giving effect to the making of such
Loan (and the application of the proceeds thereof) or to the issuance
of such Letter of Credit, as the case may be, (i)(A) the sum of
Revolving Loans outstanding plus Swingline Loans outstanding plus LOC
---- ----
Obligations outstanding plus Competitive Loans outstanding, shall not
----
exceed (B) the Revolving Committed Amount; (ii) the Swingline Loans
outstanding shall not exceed the Swingline Committed Amount; (iii) the
LOC Obligations shall not exceed the LOC Committed Amount; and (iv) the
Competitive Loans outstanding shall not exceed the Competitive Loan
Maximum Amount.
The delivery of each Notice of Borrowing, each Notice of Extension/Conversion,
each request for a Swingline Loan pursuant to Section 2.02(b)(i) and each
request for issuance of Letter of Credit pursuant to Section 2.03(b) and for a
Competitive Bid pursuant to Section 2.04(b) shall constitute a representation
and warranty by the Borrower of the correctness of the matters specified in
subsections (b), (c), (d) and (e) above.
SECTION 5.04. Conditions to Restatement Date.
------------------------------
The effectiveness of the amendments and modifications provided in this
Amended and Restated Credit Agreement are subject to satisfaction of the
following conditions, in addition to satisfaction of the conditions set forth in
Section 5.03:
(a) Receipt by the Administrative Agent of the following
financial information.
(i) Annual audited consolidated financial statements for
the Borrower and its Subsidiaries for fiscal year 1996 (ending June 29,
1996), including a consolidated balance sheet, and related consolidated
statements of operations, changes in stockholders' equity and cash
flows, setting forth in each case such information in comparative form
for the previous fiscal year and accompanied by an opinion of
independent certified public accountants of recognized national
standing as provided in Section 6.01(b) for annual audited financial
statements; and
(ii) Company-prepared quarterly consolidated financial
statements for the Borrower and its Subsidiaries for the second fiscal
quarter of 1997 (ending December 28, 1996), including a consolidated
balance sheet, and related consolidated statements of operations,
changes in stockholders' equity and cash flows, setting forth in each
case such information in comparative form for such periods during the
previous fiscal year as provided in Section 6.01(a) for company-
prepared quarterly financial statements.
(b) Receipt by the Administrative Agent of multiple counterparts
of this Agreement and the Guaranty Agreement executed by each of the
parties.
60
(c) Receipt by the Administrative Agent of certified copies of
articles of incorporation, bylaws, resolutions and the like for the
Borrower and each of the Guarantors.
(d) Receipt by the Administrative Agent of legal opinions of
counsel to the Borrower and the Restricted Subsidiaries on or before
the Restatement Date in form and substance satisfactory to the
Administrative Agent and the Lenders.
(e) Payment to the Administrative Agent, the other Agents and
the Lenders all fees payable in connection with this Amended and
Restated Credit Agreement.
ARTICLE VI.
FINANCIAL STATEMENTS; INFORMATION
SECTION 6.01. Reporting Requirements.
----------------------
The Borrower hereby covenants and agrees that, so long as this
Agreement is in effect or any Letter of Credit or under any amounts payable
hereunder or any of the other Credit Documents shall remain outstanding, and
until all of the Commitments shall have been terminated, the Borrower will
furnish, or cause to be furnished, to the Administrative Agent and each Lender:
(a) Quarterly Statements. As soon as available and in any event
--------------------
within 45 days after the end of each quarterly fiscal period in each
fiscal year of the Borrower, (i) a consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as at the end of such
quarterly fiscal period and the related consolidated statements of
operations, changes in stockholders' equity and cash flows of the
Borrower and its Restricted Subsidiaries for such quarterly fiscal
period and (in the case of the second and third such quarterly fiscal
period in each fiscal year) for the portion of the fiscal year ended
with the last day of such quarterly fiscal period, setting forth in
each case in comparative form the respective figures for the
corresponding period of the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP, and certified by the
principal financial officer of the Borrower as fairly presenting, in
all material respects, the financial position of the companies being
reported on and the results of their operations and cash flows except
as to the absence of footnotes and subject to changes resulting from
normal year-end audit adjustments and (ii) comparable consolidated
financial statements of JPF and its Subsidiaries as at the end of and
for such quarterly period, prepared in the same manner as such
consolidated financial statements of the Borrower and its Restricted
Subsidiaries and similarly certified by the principal financial officer
of JPF; provided that, (A) delivery within the time period specified
--------
above (or, if later, within five days of timely filing with the
Commission) of copies of JPF's Quarterly Report on Form 10-Q for any
quarterly fiscal period prepared in compliance with the requirements
therefor and filed with the Commission shall be deemed to satisfy the
requirements of subdivision (ii) of
61
this Section 4(a) for such period so long as such Quarterly Report
contains the applicable information required by this Section 4(a), and
(B) together with the consolidated financial statements of the Borrower
and its Restricted Subsidiaries furnished pursuant to this Section 4(a)
in respect of each quarterly fiscal period, the Borrower will also
furnish comparable consolidated financial statements as of the end of
and for such period, prepared and certified in the same manner, of the
Borrower and all of its Subsidiaries;
(b) Annual Statements. As soon as available and in any event
-----------------
within 90 days after the end of each fiscal year of the Borrower, (i) a
consolidated balance sheet of the Borrower and its Restricted
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of operations, changes in stockholders' equity
and cash flows of the Borrower and its Restricted Subsidiaries for such
fiscal year, setting forth in each case in comparative form the
respective figures as of the end of and for the previous fiscal year,
all in reasonable detail and accompanied by an opinion thereon of
independent certified public accountants of recognized national
standing selected by the Borrower and reasonably satisfactory to the
Required Lenders, which opinion shall not be made in reliance upon the
opinion of any other accountant (except for opinions of other
independent certified public accountants in respect of financial
statements of a Person which shall have become a Subsidiary or the
assets of which shall have been acquired by the Borrower or a
Subsidiary during such fiscal year), shall not contain any
qualification as to scope, and shall state that such financial
statements present fairly, in all material respects, the financial
position of the companies being reported on and their results of
operations and their cash flows in conformity with GAAP, that the audit
of such accountants in connection with such financial statements has
been made in accordance with generally accepted auditing standards and
that such accountants believe such audit provides a reasonable basis
for such opinion and (ii) comparable consolidated financial statements
of JPF and its Subsidiaries as at the end of and for such fiscal year,
prepared in the same manner as such consolidated financial statements
of the Borrower and its Restricted Subsidiaries and accompanied by an
opinion thereon of independent certified public accountants meeting the
requirements therefor, mutatis mutandis, set forth in the foregoing
------- --------
subdivision (b)(i); provided that, (A) the delivery within the time
--------
period specified above (or, if later, within five days of timely filing
with the Commission) of JPF's Annual Report on Form 10-K (together with
JPF's annual report to shareholders, if any, prepared pursuant to Rule
14a-3 under the Exchange Act) for any fiscal year prepared in
compliance with the requirements therefor and filed with the Commission
shall be deemed to satisfy the requirements of subdivision (ii) of this
Section 4(b) for such year so long as such Annual Report contains the
applicable opinions and other information required by this Section
4(b), and (B) together with the consolidated financial statements of
the Borrower and its Restricted Subsidiaries furnished pursuant to this
Section 4(b) in respect of each fiscal year, the Borrower will also
furnish comparable consolidated financial statements as at the end of
and for such year (which need not be accompanied by an opinion thereon
of independent accountants), prepared in accordance with GAAP and
certified by the principal financial officer of the Borrower as fairly
presenting, in all material respects, the financial position of the
companies being reported
62
on and the results of their operations and cash flows except as to the
absence of footnotes, of the Borrower and all of its Subsidiaries;
(c) Officers' Certificates. Concurrently with each delivery of
----------------------
financial statements of the Borrower and its Restricted Subsidiaries
pursuant to subdivision (a) or (b) of this Section, an Officers'
Certificate, addressed to the Administrative Agent and the Lenders:
(i) stating that the signatories thereto have reviewed
the terms of this Agreement and have made, or caused to be made
under their supervision, a review in reasonable detail of the
transactions and conditions of the Borrower and its Restricted
Subsidiaries during the accounting period covered by such
financial statements, and that such review has not disclosed the
existence during or at the end of such accounting period, and that
such signatories do not have knowledge of the existence as at the
date of such Officers' Certificate, of any condition or event
which constitutes a Default or an Event of Default, or, if to
their knowledge any such condition or event existed or exists,
specifying the nature and period of existence thereof and what
action the Borrower has taken or is taking or proposes to take
with respect thereto;
(ii) setting forth (A) as of the date of the consolidated
balance sheet included in such financial statements, the Fixed
Charge Coverage Ratio and the Total Debt Ratio, and the respective
amounts of Total Debt, Consolidated Net Worth, the Net Worth
Minimum, Consolidated Net Tangible Assets, Priority Debt,
Attributable Debt, and the aggregate principal amount outstanding
of all Debt of Restricted Subsidiaries, (B) the respective amounts
of Net Income Available for Fixed Charges, Consolidated Fixed
Charges and Operating Cash Flow for the period of four consecutive
fiscal quarters of the Borrower ended on such date, and (C) the
amount available as at the conclusion of the accounting period
ended on such date for the making of Restricted Payments and
Restricted Investments in compliance with Section 8.05 and the
aggregate unliquidated amount as of such date of all Investments
of the Borrower and its Restricted Subsidiaries of the character
described in subdivision (g) of the definition of "Restricted
Investments" set forth in Section 1.01; and
(iii) setting forth facts or computations in reasonable
detail demonstrating compliance during and at the end of such
accounting period with the covenants and restrictions contained in
Section 8.01, Section 8.02, Section 8.03, Section 8.04, Section
8.05 and Section 8.07(f);
(d) Accountant's Certificates. Concurrently with each delivery
-------------------------
of annual financial statements pursuant to subdivision (b) of this
Section, a written statement, addressed to the Administrative Agent and
the Lenders from the independent certified public accountants referred
to in said subdivision (b) who have reported on such financial
statements, substantially to the following effects (with only such
variations as reflect the
63
then current generally applicable policy of such accountants with
respect to statements of the same or a similar import required pursuant
to comparable financing documents and which do not materially alter the
substantive import of such statement):
(i) that their audit has included a reading of the terms
of this Agreement sufficient to enable them to make the statement
referred to in subdivision (d)(iii) of this Section (it being
understood that no audit procedures, other than those required by
generally accepted auditing standards, shall be required);
(ii) that, in connection with their audit, except as set
forth in such written statement, nothing came to their attention
which caused them to believe that there exists at the date of such
written statement any condition or event which constitutes an
Event of Default or Default, insofar as related to accounting
matters reflected in the financial statements that were subject to
auditing procedures during the course of the audit required
pursuant to subdivision (b) of this Section and, in the case of
any such Event of Default or Default which shall have come to
their attention, specifying, to the extent determined by such
accountants in connection with such audit, the nature and period
of existence thereof (it being understood that such accountants
shall not be liable, directly or indirectly, for any failure to
obtain knowledge of any Event of Default or Default or the period
of existence thereof unless such accountants should have obtained
knowledge thereof in making an audit in accordance with generally
accepted auditing standards or did not make such an audit); and
(iii) that they have read the Officers' Certificate
delivered by the Borrower in connection with such financial
statements pursuant to subdivision (c) of this Section and that,
in connection with their audit, except as set forth in such
written statement, nothing came to their attention that caused
them to believe that the matters set forth in such Officers'
Certificate pursuant to clauses (ii) and (iii) of said subdivision
(c), insofar as they relate to accounting matters reflected in the
financial statements that were subject to auditing procedures
during the course of the audit required pursuant to said
subdivision (b), have not been properly stated in accordance with
the terms of this Agreement;
(e) Commission and Other Reports. Promptly (and in any event
----------------------------
within five Business Days) after they become available, copies of (i)
all financial statements, reports, notices, proxy statements and other
information sent or made available generally by JPF or the Borrower to
any class of its security holders (other than, in the case of the
Borrower, JPF) or by any Restricted Subsidiary of the Borrower to any
class of its security holders (other than the Borrower or another such
Subsidiary), (ii) all regular and periodic reports (including reports
on Form 8-K) and all registration statements (other than those on Form
S-8 or a successor form relating to the registration of securities
pursuant to an employee benefit plan) and prospectuses filed by JPF,
the Borrower or any Restricted Subsidiary of the Borrower with any
securities exchange, the National
64
Association of Securities Dealers or with the Commission, and (iii) all
press releases and other statements made available generally by JPF,
the Borrower or any Restricted Subsidiary of the Borrower to the public
concerning material developments in the business of JPF, the Borrower
or any such Restricted Subsidiary;
(f) Audit Reports. Promptly (and in any event within five
-------------
Business Days) after receipt thereof, copies of all reports submitted
to the Borrower or any of its Restricted Subsidiaries by independent
certified public accountants in connection with any annual, interim or
special audit of the Borrower or any Restricted Subsidiary made by such
accountants, including, without limitation, any comment letter
submitted by such accountants in connection with any such audit;
(g) Defaults, etc. Promptly (and in any event within five
-------------
Business Days) after any Responsible Officer of the Borrower obtains
knowledge of any condition or event which constitutes a Default or an
Event of Default, or that the Administrative Agent or any Lender has
given any notice to the Borrower or any of its Restricted Subsidiaries
or taken any other action with respect to a claimed default under or in
respect of any Debt referred to in Section 10.01(e) or 10.01(f) or with
respect to the occurrence or existence of any event or condition of the
type referred to in Section 10.01(g) or 10.01(h), an Officers'
Certificate specifying in reasonable detail the nature and period of
existence of such actual or claimed Default, Event of Default, default,
event or condition, and what action the Borrower has taken or is taking
or proposes to take with respect thereto;
(h) ERISA. Promptly (and in any event within five Business
-----
Days) after any Borrower Group Member (i) knows of the occurrence of
any Termination Event, (ii) receives with respect to any Multiemployer
Plan notice as prescribed in ERISA of any withdrawal liability assessed
against any Borrower Group Member or of a determination that any
Multiemployer Plan is in reorganization or insolvent (both within the
meaning of Title IV of ERISA), (iii) knows that a prohibited
transaction (as defined in Section 406 of ERISA or Section 4975 of the
Code) for which a statutory or administrative exemption is not
available or a breach of fiduciary responsibility has occurred in
connection with which any Borrower Group Member could reasonably be
subject to any material liability under Section 406, 409, 502(i) or
502(l) of ERISA or Section 4975 of the Code, or under any agreement or
other instrument pursuant to which such Borrower Group Member has
agreed or is required to indemnify any Person against any such
liability or (iv) knows that there has been a material adverse change
in the funding status of any Plan or Multiemployer Plan, a description
of such event or a copy of such notice and a statement by the principal
financial officer of the Borrower briefly setting forth the details
regarding such event or condition and the action, if any, which has
been or is being taken or is proposed to be taken by the Borrower or
any Borrower Group Member with respect thereto;
(i) Litigation, etc. Promptly (and in any event within five
---------------
Business Days) after any Responsible Officer of the Borrower obtains
knowledge of any litigation, administrative proceeding or judgment (i)
relating to the Borrower or any of its Restricted
65
Subsidiaries (whether or not considered by the Borrower to be covered
by insurance) which could, if adversely determined, have a Material
Adverse Effect, or (ii) relating in any way to this Agreement or any of
the other Credit Documents, an Officers' Certificate specifying in
reasonable detail the facts and circumstances surrounding such
litigation, proceeding or judgment;
(j) Subsidiary Designation. Promptly (and in any event within
----------------------
five Business Days) after the designation by the Board of Directors of
any Subsidiary as an Unrestricted Subsidiary, or any redesignation by
the Board of Directors of a Restricted Subsidiary as an Unrestricted
Subsidiary or of an Unrestricted Subsidiary as a Restricted Subsidiary,
notice thereof accompanied by an Officers' Certificate stating that
such designation or redesignation has been made in compliance with the
definition of "Restricted Subsidiary" or "Unrestricted Subsidiary",
whichever shall be applicable, set forth in Section 1.01, and, in the
case of any designation or redesignation of a Subsidiary as an
Unrestricted Subsidiary, setting forth the name of each other
Subsidiary which has become an Unrestricted Subsidiary as a result
thereof;
(k) Modifications to Note Purchase Agreements or Notes.
--------------------------------------------------
Promptly (and in any event within five Business Days) after the date on
which any amendment or modification of any term or provision of any of
the Note Purchase Agreements or any of the Notes, or any waiver of
compliance with any such term or provision, has become effective,
copies of the instruments pursuant to which such amendment,
modification or waiver was effected; and
(l) Requested Information. Promptly upon request therefor, such
---------------------
other information as to the Business or Condition of the Borrower or
its Restricted Subsidiaries as may from time to time be reasonably
requested by the Administrative Agent or the Required Lenders.
ARTICLE VII.
INSPECTION OF PROPERTIES AND BOOKS
SECTION 7.01. Inspection Rights of Administrative Agent and Lenders.
-----------------------------------------------------
The Borrower hereby covenants and agrees that, so long as this
Agreement is in effect or any Letter of Credit or any amounts payable hereunder
or under any of the other Credit Documents shall remain outstanding, and until
all of the Commitments shall have been terminated, officers or designated
representatives of the Administrative Agent or any Lender may visit and inspect
any of the properties of the Borrower and its Restricted Subsidiaries, including
their respective books of account, records, reports and other papers, make
copies and extracts therefrom, and discuss their affairs, finances and accounts
with their respective officers and employees and, so long as a Responsible
Officer is present, with their independent public accountants (and the Borrower
hereby authorizes and directs each such officer, employee and
66
independent public accountant to engage in such discussions and hereby
undertakes to cause a Responsible Officer to be present at all reasonable times
for purposes of such discussions with said accountants), all at such reasonable
times and as often as may be reasonably requested. All expenses incurred in
connection with any such visit, inspection or other exercise of rights by
officers or designated representatives of the Administrative Agent or any
Lender, as applicable, pursuant to this Section shall be borne by the Borrower
except that, if such visit, inspection or other exercise of rights is undertaken
at a time when no Default or Event of Default shall be continuing, all such
expenses incurred by the Administrative Agent or such Lender, as applicable, in
connection therewith shall, subject to the terms of Section 11.09, be for the
account of the Administrative Agent or such Lender, as applicable (it being
understood and agreed that the fees of any attorney, accountant or other
professional employed by the Borrower in connection with any such visit,
inspection or other exercise shall in any event be for the Borrower's account).
ARTICLE VIII.
COVENANTS
The Borrower hereby covenants and agrees that from and after the
Restatement Date and so long as this Agreement is in effect or any Letter of
Credit or any amounts payable hereunder or under any of the other Credit
Documents shall remain outstanding, and until all of the Commitments shall have
been terminated:
SECTION 8.01. Maintenance of Certain Financial Conditions.
-------------------------------------------
(a) Fixed Charge Coverage Ratio. The Borrower will not permit the
---------------------------
Fixed Charge Coverage Ratio as of any Determination Date to be less than 1.75.
(b) Consolidated Net Worth. The Borrower will not permit
----------------------
Consolidated Net Worth as of any date to be less than the Net Worth Minimum as
of such date.
(c) Total Debt Ratio. The Borrower will not permit the Total Debt
----------------
Ratio as of any Determination Date to exceed 3.75 (provided that unless and
--------
until the Note Purchase Agreement relating to the $85,000,000 8.55% Senior Notes
due 2004 is amended to require a Total Debt Ratio of 3.75, rather than 3.5, for
fiscal periods after September 30, 1997, the required Total Debt Ratio for
purposes of this Agreement shall continue to be 3.5 for fiscal periods after
September 30, 1997).
SECTION 8.02. Debt Incurrence; Restricted Subsidiary Debt.
-------------------------------------------
(a) The Borrower will not, and will not permit any Restricted
Subsidiary to, incur any Debt on any date if immediately after giving effect to
such incurrence and the incurrence or retirement by the Borrower and its
Restricted Subsidiaries of any other Debt on such date the Total Debt Ratio
would exceed the amount applicable under Section 8.01(c) for the period during
67
which such date occurs, except that the Borrower or any Restricted Subsidiary
may, on any date (other than a Determination Date) occurring in any period
specified in the following table, incur and (subject to Section 8.01(c)) remain
liable in respect of Debt for working capital purposes if (i) immediately after
giving effect to such incurrence and the incurrence or retirement by the
Borrower and its Restricted Subsidiaries of any other Debt on such date the
Total Debt Ratio shall not exceed 3.75 (provided that unless and until the Note
--------
Purchase Agreement relating to the $85,000,000 8.55% Senior Notes due 2004 is
amended to require a Total Debt Ratio of 3.75, rather than 3.5, for fiscal
periods after September 30, 1997, the required Total Debt Ratio for purposes of
this Agreement shall continue to be 3.5 for fiscal periods after September 30,
1997)); and (ii) in the event such Debt is to be incurred by a Restricted
Subsidiary, such Restricted Subsidiary shall be permitted to incur such Debt on
such date pursuant to and in compliance with Section 8.02(b); provided that,
--------
nothing contained in this Section 8.02(a) shall permit the incurrence by the
Borrower or any Restricted Subsidiary of any Debt on a Determination Date if,
after giving effect to such incurrence, the Borrower would not be in compliance
with Section 8.01(c).
(b) The Borrower will not permit any Restricted Subsidiary to incur any
Debt, except that any Restricted Subsidiary may incur and (subject to Section
8.01(c)) remain liable in respect of Debt if, on and as of the date on which
such Restricted Subsidiary proposes to incur such Debt and immediately after
giving effect to such incurrence and the incurrence or retirement by the
Borrower and its Restricted Subsidiaries of any other Debt on such date, and to
the application of the proceeds of all such incurred Debt, the Priority Debt
Amount shall not exceed 10% of Consolidated Net Tangible Assets (the amount of
Consolidated Net Tangible Assets for purposes hereof being determined (i) as of
such date, if an Officers' Certificate dated as of such date shall have been
provided to the Administrative Agent and the Lenders providing facts or
computations in reasonable detail demonstrating compliance with the terms of
this Section 8.02(b) in connection with the proposed incurrence of Debt on such
date, or (ii) if no such Officers' Certificate shall have been provided to the
Administrative Agent and the Lenders in connection with the incurrence of such
Debt, as of the most recent Determination Date prior to the date of incurrence
of such Debt with respect to which the Borrower shall have delivered the
Required Financial Information).
(c) For purposes of the foregoing subdivisions (a) and (b) of this
Section 8.02, (i) the term "incur", when used with respect to any Debt, shall
mean to directly or indirectly create, incur, assume, agree to purchase or
provide funds in respect of, or otherwise become liable (by way of Guaranty or
otherwise) in respect of such Debt, and the term "incurrence" shall have a
correlative meaning, (ii) in the event the Borrower or any Restricted Subsidiary
shall extend, renew, refund or refinance any Debt, the Borrower or such
Restricted Subsidiary shall be deemed to have incurred such Debt at the time of
such extension, renewal, refunding or refinancing, and (iii) any Person
designated, redesignated or otherwise becoming a Restricted Subsidiary at any
time after the date of this Agreement shall be deemed to have incurred all of
its outstanding Debt at such time.
68
SECTION 8.03. Liens.
-----
The Borrower will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, assume or permit to exist any Lien on
or with respect to any property or asset of any character of the Borrower or any
of its Restricted Subsidiaries (whether held on the date hereof or hereafter
acquired) or any interest therein or any income or profits therefrom except:
(a) Liens (other than Liens created or imposed under ERISA)
for taxes, assessments or governmental charges or levies either not yet
due or the payment of which is not at the time required by Section
8.12;
(b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other similar Persons incurred
in the ordinary course of business for sums either not yet due or the
payment of which is not at the time required by Section 8.12;
(c) Liens (other than Liens created or imposed under ERISA)
incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
types of social security, or to secure the performance of tenders,
statutory obligations, bids, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive in any
case of obligations incurred in connection with the borrowing of money
or the obtaining of advances or credit);
(d) Liens incidental to the conduct of business or to the
ownership of property of a character which customarily exist on
properties of corporations engaged in similar activities and similarly
situated and which were not incurred in connection with the borrowing
of money or the obtaining of advances or credit, and which do not,
individually or in the aggregate, interfere with the ordinary conduct
of the business of the Borrower or any of its Restricted Subsidiaries
or detract from the value or use of the properties subject to any such
Liens;
(e) any attachment, judgment or other similar Lien arising in
connection with court proceedings, so long as (i) the execution or
other enforcement of such Lien is effectively stayed and the claims
secured thereby are being actively contested in good faith and by
appropriate proceedings diligently conducted and effective to prevent
the forfeiture or sale of any property of the Borrower or any
Restricted Subsidiary or any interference with the ordinary use thereof
by the Borrower or any Restricted Subsidiary, and (ii) such reserve or
other appropriate provision, if any, in the amount and of the type as
shall be required by GAAP shall be maintained therefor;
(f) Liens on assets of any Restricted Subsidiary securing Debt
or other obligations of such Restricted Subsidiary owing to the
Borrower or to a Predominantly Owned Restricted Subsidiary;
69
(g) Liens described on Schedule IX existing on the date of this
-----------
Agreement and securing the Debt described thereon as being secured by such
Liens; provided that (i) no such Lien shall at any time be extended to or
--------
cover any property of the Borrower or any Restricted Subsidiary other than
the property subject thereto on the date hereof and (ii) the principal
amount of the Debt secured by such Liens shall not be extended, renewed,
refunded or refinanced;
(h) Liens securing IDB Debt, provided that no such Lien shall at any
--------
time extend to or cover any property of the Borrower or any Restricted
Subsidiary other than the equipment and facilities acquired or constructed
with the proceeds of such IDB Debt, real property appurtenant to such
facilities, and proceeds of such equipment, facilities and real property;
(i) Liens (including Capital Leases) created solely to secure the
deferred purchase price of fixed assets useful and intended to be used in
carrying on the business of the Borrower and its Restricted Subsidiaries
acquired or constructed by the Borrower or any Restricted Subsidiary after
the date hereof, or any Lien (including a Capital Lease) created to secure
Debt incurred solely for the purpose of financing the acquisition or
construction, as the case may be, of any such asset (if such Debt is
incurred at the time of or within 90 days after such acquisition or the
completion of such construction) or any Lien existing on acquired assets at
the time of acquisition thereof, or, in the case of any Person which
hereafter becomes a Restricted Subsidiary, any Lien in respect of its
assets existing at the time such Person becomes a Restricted Subsidiary,
provided that:
--------
(i) in the case of an acquisition of assets or a Person
becoming a Restricted Subsidiary, such Lien was not created in
contemplation of such event,
(ii) no such Lien shall at any time extend to or cover any
asset of the Borrower or any of its Restricted Subsidiaries other than
the acquired assets on which it was originally imposed and
improvements thereto and proceeds thereof, and
(iii) at the time of and immediately after giving effect to the
creation or incurrence of each such Lien, the aggregate principal
amount of all Debt secured by all such Liens on any such asset shall
not exceed an amount equal to the lesser of (x) the purchase price of
such asset (including, for purposes of determining such purchase
price, the principal amount of any pre-existing Debt secured by any
such Liens, whether or not the Borrower or a Restricted Subsidiary has
any personal liability with respect thereto) and (y) the fair market
value of such asset (as determined by the Board of Directors) at such
time;
(j) Liens in favor of a Receivables Financing SPC or Receivables
Financier created or deemed to exist in connection with a Permitted
Receivables Financing
70
(including any related filings of any financing statements), but only to
the extent that any such Lien relates to the applicable receivables and
related property (or percentage interests therein) actually sold,
contributed, financed or otherwise conveyed or pledged pursuant to such
transaction; and
(k) Liens in addition to those permitted by the foregoing provisions
of this Section 8.03 securing Debt of the Borrower or a Restricted
Subsidiary or satisfying cash collateral requirements hereunder; provided
--------
that, immediately after giving effect to the creation, incurrence or
assumption of each such additional Lien, the Priority Debt Amount shall not
exceed 10% of Consolidated Net Tangible Assets (the amount of Consolidated
Net Tangible Assets for purposes hereof being determined (i) as of the date
of creation, incurrence or assumption of such Lien, if an Officers'
Certificate dated as of such date shall have been provided to the
Administrative Agent and the Lenders providing facts or computations in
reasonable detail demonstrating compliance with the terms of this Section
8.03(j) in connection with the proposed creation, incurrence or assumption
of such Lien on such date, or (ii) if no such Officers' Certificate shall
have been provided to the Administrative Agent and the Lenders in
connection with the creation, incurrence or assumption of such Lien, as of
the most recent Determination Date prior to the date of creation,
incurrence or assumption of such Lien with respect to which the Borrower
shall have delivered the Required Financial Information).
For all purposes of this Section 8.03, (A) Liens existing on or with
respect to any property of any Person at the time it is designated or
redesignated or otherwise becomes a Restricted Subsidiary shall be deemed to
have been created at the time it becomes a Restricted Subsidiary, (B) any
extension, renewal, refunding or refinancing of any Lien by the Borrower or any
Restricted Subsidiary shall be deemed to be an incurrence of such Lien at the
time of such extension, renewal, refunding or refinancing, and (C) any Lien
existing on any property at the time it is acquired by the Borrower or any
Restricted Subsidiary shall be deemed to have been created at the time of such
acquisition.
In the event that any property of the Borrower or any Restricted Subsidiary
shall become or be subject to a Lien not permitted by the foregoing subdivisions
(a) through (k) of this Section 8.03, the Borrower shall make or cause to be
made effective provision satisfactory to the Lenders whereby the obligations of
the Borrower and the Restricted Subsidiaries to the Lenders hereunder and under
the other Credit Documents will be secured equally and ratably with all other
obligations secured by such Lien, and in any event, such obligations of the
Borrower and the Restricted Subsidiaries to the Lenders hereunder and under the
other Credit Documents shall have the benefit, to the full extent that (and with
such priority as) the Lenders may be entitled under applicable law, of an
equitable Lien on such property; provided, however, that any violation of this
-------- -------
Section shall constitute a Default whether or not the Borrower shall have made
effective provision to secure the obligations of the Borrower and the Restricted
Subsidiaries to the Lenders hereunder and under the other Credit Documents
equally and ratably with any such other obligations or the Lenders shall be
entitled to such equal and ratable security or any such equitable Lien.
71
SECTION 8.04. Sale Leasebacks.
---------------
The Borrower will not, and will not permit any Restricted Subsidiary to,
enter into any Sale Leaseback unless
(a) immediately after giving effect to such Sale Leaseback, the
Priority Debt Amount shall not exceed 10% of Consolidated Net Tangible
Assets (the amount of Consolidated Net Tangible Assets for purposes hereof
being determined (i) as of the date of such Sale Leaseback, if an Officers'
Certificate dated as of such date shall have been provided to the
Administrative Agent and the Lenders providing facts or computations in
reasonable detail demonstrating compliance with the terms of this Section
8.04(a) in connection with such Sale Leaseback, or (ii) if no such
Officers' Certificate shall have been provided to the Administrative Agent
and the Lenders in connection with such Sale Leaseback, as of the most
recent Determination Date prior to the date of such Sale Leaseback with
respect to which the Borrower shall have delivered the Required Financial
Information), or
(b) the Borrower shall (i) in compliance with Section 3.02(b)(ii),
give an Excess Sale Notice with respect to such Sale Leaseback and
thereafter pay, prepay or otherwise reduce the outstanding Loans and LOC
Obligations in the manner and to the extent required by such Section
3.02(b)(ii), and (ii) to the extent that the Available Fund resulting from
such Sale Leaseback shall exceed the amount of the payments, prepayments
and other reductions of Loans and LOC Obligations required by such Section
3.02(b)(ii), (A) apply an amount equal to such excess, within 180 days
after the consummation of such Sale Leaseback, to the retirement of an
equivalent principal amount of Funded Debt (other than Subordinated Debt)
of the Borrower and its Restricted Subsidiaries and (B) pending such
application, cause an amount equal to such excess to be invested in
Investments of the character described in subdivision (a) of the definition
of "Restricted Investments" set forth in Section 1.01.
SECTION 8.05. Restricted Payments; Restricted Investments.
-------------------------------------------
The Borrower will not, directly or indirectly (through a Restricted
Subsidiary or otherwise), declare, order, pay, distribute, make, or set apart
any sum or property for any Restricted Payment, and the Borrower will not, and
will not permit any Restricted Subsidiary to, make or become obligated to make
any Restricted Investment, unless, both at the time of and immediately after
effect has been given to any such proposed action:
(a) no Default or Event of Default shall have occurred and be
continuing and a Restricted Subsidiary shall be permitted to incur at least
$1.00 of additional Debt pursuant to Section 8.02; and
(b) the aggregate amount of
72
(i) all sums and property included in all Restricted Payments
directly or indirectly declared, ordered, paid, distributed, made or
set apart by the Borrower during the period (taken as one accounting
period) from and including the Closing Date to and including the date
of such proposed action (the "Computation Period"), plus
----
(ii) the aggregate amount (at original cost) of all Restricted
Investments of the Borrower and all Restricted Subsidiaries made
during the Computation Period and all commitments for such Restricted
Investments made by the Borrower or any Restricted Subsidiary
outstanding on such date,
shall not exceed the sum of
(A) $1,000,000, plus
----
(B) 50% (or, in the case of a net loss for the Computation
Period taken as a whole, minus 100%) of Consolidated Net Income for
-----
the Computation Period, plus
(C) the aggregate amount of the net cash proceeds received by
the Borrower during the Computation Period from the sale of capital
stock of the Borrower, from contributions to the common equity capital
of the Borrower, and as consideration for the issuance during the
Computation Period of Debt of the Borrower convertible into its
capital stock, but only to the extent that any such Debt has been
converted into such capital stock during the Computation Period, plus
----
(D) to the extent not included in Consolidated Net Income for
the Computation Period, the aggregate amount of the cash payments
received by the Borrower and its Restricted Subsidiaries during the
Computation Period representing net returns of capital on Restricted
Investments made during the Computation Period.
For all purposes of this Section 8.05, (1) the amount involved in any
Restricted Payment directly or indirectly declared, ordered, paid, distributed,
made or set apart in property, and the amount of any Restricted Investment made
through the transfer of property, shall be deemed to be the greater of (x) the
fair market value of such property (as determined by the Board of Directors) at
the time of such action and (y) the net book value thereof on the books of the
Borrower or any of its Restricted Subsidiaries (as determined in accordance with
GAAP), in each case as determined on the date such Restricted Payment is
declared, ordered, paid, distributed, made or set apart or the date such
Restricted Investment is made or committed to be made, as the case may be, and
(2) all Investments of any Person existing immediately after such Person becomes
a Restricted Subsidiary which would be Restricted Investments if made by such
Person while subject to the provisions of this Agreement shall be deemed to be
Restricted Investments and to have been made at the time such Person becomes a
Restricted Subsidiary.
73
The Borrower will not pay any dividend which it has not declared nor will
it declare any dividend (other than dividends payable solely in shares of its
common stock) on any shares of any class of its capital stock which is payable
more than 60 days after the date of declaration thereof.
SECTION 8.06. Subsidiary Stock and Debt.
-------------------------
The Borrower will not, and will not permit any Restricted Subsidiary to,
issue, sell, assign or otherwise dispose of or part with control of, any shares
of stock, Debt or other securities (or warrants, rights or options to acquire
stock or other securities), in each case of any Restricted Subsidiary, except to
the Borrower or a Predominantly Owned Restricted Subsidiary and except that:
(a) all shares of stock and all Debt and other securities of any
Restricted Subsidiary at the time owned by or owed to the Borrower and all
Restricted Subsidiaries may be sold as an entirety for a consideration
which represents the fair market value (as determined by the Board of
Directors) at the time of sale of the shares of stock and Debt and other
Securities so sold; or
(b) less than all shares of stock of any Restricted Subsidiary at the
time owned by the Borrower and all Restricted Subsidiaries may be sold, or
a Restricted Subsidiary may issue shares of its stock to a Person other
than the Borrower or a Predominantly Owned Restricted Subsidiary, in either
case for a consideration which represents the fair market value thereof (as
determined by the Board of Directors) at the time of sale or issuance, as
the case may be, of such shares, if, immediately after giving effect to
such transaction, such Restricted Subsidiary shall be a Predominantly Owned
Restricted Subsidiary, or
(c) Debt of a Restricted Subsidiary at the time owed to the Borrower
or a Restricted Subsidiary may be sold to a third Person in a transaction
not described in subdivision (a) of this Section 8.06 for a consideration
at least equal to the principal amount of such Debt plus interest accrued
and payable thereon (to the extent such interest is not payable to the
Borrower or a Restricted Subsidiary following such sale);
provided, however, that it shall be a condition to the consummation by the
-------- -------
Borrower or any Restricted Subsidiary of any transaction described in the
foregoing subdivisions (a), (b) and (c) of this Section 8.06 that (i) in the
case of any sale or issuance of stock of a Restricted Subsidiary described in
said subdivision (a) or (b), the assets of such Restricted Subsidiary
represented by the equity interest to be so sold or issued are such that the
sale of such assets would then be permitted by Section 8.07 (in which case such
transaction shall be considered and deemed a disposition of assets for purposes
of Section 8.07), and (ii) in the case of any such transaction described in said
subdivision (a), (b) or (c), immediately after giving effect to such transaction
(x) no Default or Event of Default shall have occurred and be continuing and (y)
a Restricted
74
Subsidiary shall be permitted to incur at least $1.00 of additional Debt
pursuant to Section 8.02(b).
SECTION 8.07. Consolidation, Merger, Sale of Assets, etc.
------------------------------------------
The Borrower will not, and will not permit any of its Restricted
Subsidiaries to, voluntarily liquidate or dissolve, or consolidate or merge with
or into any other Person, or permit any other Person to consolidate with or
merge with or into it, or participate in a share exchange with or sell, lease,
transfer, contribute or otherwise dispose of any of its assets to any other
Person, except that, subject in any event to compliance with the last paragraph
of this Section 8.07:
(a) the Borrower and/or any Restricted Subsidiary may sell or
otherwise dispose of its assets (i) in the ordinary course of its business
as such business is permitted to be conducted in compliance with Section
8.09 and (ii) in a Permitted Receivables Financing; or
(b) (i) any Restricted Subsidiary may (A) consolidate with or merge
into the Borrower or a Wholly Owned Restricted Subsidiary if the Borrower
or such Wholly Owned Restricted Subsidiary shall be the continuing or
surviving corporation or (B) consolidate or merge with any other
corporation if such Restricted Subsidiary shall be the continuing or
surviving corporation and (ii) any Wholly Owned Restricted Subsidiary may
consolidate with or merge into any other Wholly Owned Restricted
Subsidiary; or
(c) any Restricted Subsidiary may sell, lease, transfer, contribute
or otherwise dispose of its assets in whole or in part to the Borrower or a
Wholly Owned Restricted Subsidiary or any other Restricted Subsidiary and
may, following any such disposition in whole, liquidate and dissolve; or
(d) the Borrower may consolidate or merge with any other Person if
the Borrower shall be the continuing or surviving corporation; or
(e) the Borrower may consolidate with or merge into, or sell,
transfer or otherwise dispose of its assets as an entirety or substantially
as an entirety, to any other Person (a "Successor"; any such consolidation,
merger or disposition of assets being hereinafter referred to as a
"Successor Transaction"), but only if such Successor (i) is a solvent
corporation duly organized, validly existing and in good standing under the
laws of the United States of America or a state thereof and (ii) expressly
assumes, not later than the consummation of such Successor Transaction,
pursuant to a written instrument satisfactory in form, scope and substance
to the Lenders, the due and punctual payment of all principal, interest and
Fees in accordance with the terms hereof and of the other Credit Documents
to which the Borrower is a party, and the due and punctual performance and
observance of all other obligations of the Borrower under this Agreement,
an executed counterpart of which instrument shall have been furnished to
each of the Lenders together with a favorable opinion of counsel
satisfactory to each Lender covering such legal
75
matters relating to such Successor, the Successor Transaction, such
assumption and such instrument as such holder may reasonably request; or
(f) the Borrower or any Restricted Subsidiary, in addition to making
any sale or other disposition permitted by the foregoing provisions of this
Section, may sell any of its assets for a consideration at least equal to
the fair market value thereof (as determined by the Board of Directors) at
the time of such sale; provided that no such sale of any assets shall be
--------
permitted under this subdivision (f) unless
(i) the assets so sold, when taken together with all other
assets of the Borrower and its Restricted Subsidiaries then being or
theretofore so sold (including deemed dispositions pursuant to Section
8.06 but excluding (x) Excluded Sales and (y) Replaced Warehouse
Sales) during the period of twelve consecutive months ending on the
date of such sale ("Sale Date") shall not have an aggregate net book
value (determined in the case of any such asset as of the date of sale
thereof) which shall exceed 10% of Consolidated Net Tangible Assets
(the amount of Consolidated Net Tangible Assets for purposes hereof
being determined (1) as of such Sale Date, if an Officers' Certificate
dated as of such date shall have been provided to the Administrative
Agent and the Lenders providing facts or computations in reasonable
detail demonstrating compliance with the terms of this Section
8.07(f)(i) in connection with such sale, or (2) if no such Officers'
Certificate shall have been provided to the Administrative Agent and
the Lenders in connection with such sale, as of the most recent
Determination Date prior to the date of such Sale Date with respect to
which the Borrower shall have delivered the Required Financial
Information), or
(ii) such sale shall not constitute a Replaced Warehouse Sale and
shall not meet the requirements of, and shall not be permitted
pursuant to, the immediately foregoing subdivision (f)(i) (any such
sale, a "Substantial Sale") but
(A) prior to consummating such Substantial Sale, the
Borrower shall give notice to the Administrative Agent and each
of the Lenders specifying the anticipated or actual Sale Date,
briefly describing the assets sold or to be sold and setting
forth the net book value of such assets and the aggregate
consideration and the Net Sale Proceeds to be received for such
assets in connection with such sale,
(B) the Borrower shall (1) during the period of 150 days
following the consummation of such sale (the "Application
Period"), apply (or cause to be applied) an amount equal to such
Net Sale Proceeds from such Substantial Sale to the purchase,
acquisition or (in the case of real property) construction of
Alternative Assets, or (2) if an amount equal to such Net Sale
Proceeds shall not have been applied during the Application
Period in accordance with the immediately foregoing clause
(B)(1), then not later than the expiration of such Application
Period, (aa)
76
furnish the Administrative Agent and each of the Lenders an
Officers' Certificate specifying the portion of such Net Sale
Proceeds that were so applied to the purchase, acquisition or
construction of Alternatives Assets and specifying any additional
portion of such Net Sale Proceeds (the "Additional Portion") that
will be so applied to the purchase, acquisition or construction
of Alternative Assets during the period (the "Further Period") of
30 days next following the expiration of the applicable
Application Period and (bb) unless the sum of the amount so
applied during the Application Period to the purchase,
acquisition or construction of Alternative Assets plus the
----
Additional Portion, if any, specified in such Officers'
Certificate shall be at least equal to the amount of such Net
Sale Proceeds, give an Excess Sale Notice with respect to such
Substantial Sale in compliance with Section 3.02(b)(2) and
thereafter (x) pay, prepay or otherwise reduce the outstanding
Loans and LOC Obligations in the manner and to the extent
required by such Section 3.02(b)(ii), and (y) to the extent that
the Available Fund resulting from such sale shall exceed the
amount of the payments, prepayments and other reductions of Loans
and LOC Obligations required by such Section 3.02(b)(ii), apply
an amount equal to such excess to the retirement (no later than
the forty-fifth day following the day fixed for such payments,
prepayments and/or other reductions of Loans and LOC Obligations
under Section 3.02(b)(ii)) of an equivalent principal amount of
Funded Debt (other than Subordinated Debt) of the Borrower and
its Restricted Subsidiaries,
(C) if in the Officers' Certificate required to be
furnished to the immediately foregoing clause (B) the Borrower
shall have specified an Additional Portion of such Net Sale
Proceeds to be applied to the purchase, acquisition or
construction of Alternative Assets during the Further Period, the
Borrower shall in fact so apply an amount equal to such
Additional Portion during such Further Period, and
(D) pending application of an amount equal to such Net
Sale Proceeds to the purchase, acquisition or construction of
Alternative Assets, to the payment, prepayment or other reduction
of the Loans and LOC Obligations and/or the retirement of Debt in
accordance with the immediately foregoing clauses (B) and (C),
the Borrower shall cause an amount equal to Net Sale Proceeds (or
so much thereof as shall not have been theretofore so applied) to
be invested in Investments of the character described in
subdivision (a) of the definition of "Restricted Investments" set
forth in Section 1.01, or
(iii) such sale shall constitute a Replaced Warehouse Sale;
and provided further that, in the event the assets to be sold in any
--- -------- -------
proposed sale referred to in this subdivision (f) may not be sold as an
entirety pursuant to any one of the
77
foregoing clauses (i) through (iii) hereof, such assets may nevertheless be
sold by the Borrower or a Restricted Subsidiary, as the case may be, if and
to the extent that such sale could be effected pursuant to, and is in fact
effected in compliance with, a combination of two or more of said clauses
(i) through (iii).
No consolidation, merger, sale, lease, transfer, contribution or other
disposition referred to in subdivisions (b) through (f) of this Section shall be
permitted unless (x) immediately after giving effect to such transaction, (1) no
Default or Event of Default shall have occurred and be continuing and (2) a
Restricted Subsidiary shall be permitted to incur at least $1.00 of additional
Debt pursuant to Section 8.02 and (y) upon giving effect to any such transaction
(to the extent required in the definition of "Operating Cash Flow" set forth in
Section 1.01) as of the first day of the four consecutive fiscal quarters ended
as of the most recent Determination Date occurring prior to the date of such
proposed transaction with respect to which the Borrower shall have delivered the
Required Financial Information, no Default or Event of Default would have
occurred as the result of a violation of Section 8.01(c) on such Determination
Date. Nothing contained in this Section shall permit (i) the disposition of
assets consisting of Debt, stock or similar interests or other securities (or
warrants, rights or options to acquire stock or other securities) of any
Restricted Subsidiary unless such disposition, if subject to Section 8.06, is
also permitted by Section 8.06, or (ii) the disposition of any Transferred
Assets (or any interest therein) by the Borrower or any Restricted Subsidiary to
any Unrestricted Subsidiary except in connection with a Permitted Receivables
Financing.
SECTION 8.08. Transactions with Affiliates; Tax Consolidation.
-----------------------------------------------
(a) The Borrower will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, enter into or be a party to any transaction or
arrangement (including, without limitation, the contribution, transfer,
purchase, sale or exchange of property, or the rendering of any service, or the
payment of management or other service fees) with any Affiliate unless such
transaction or arrangement is entered into upon terms that are fair and
reasonable and no less favorable to the Borrower or such Restricted Subsidiary,
as the case may be, than those which might be obtained at the time on an arm's-
length basis from any Person which is not such an Affiliate; provided that,
--------
subject to the terms of Section 9.13, the foregoing restrictions shall not apply
to (i) any transaction between the Borrower and a Wholly Owned Restricted
Subsidiary or between one Wholly Owned Restricted Subsidiary and another Wholly
Owned Restricted Subsidiary or (ii) transactions effected pursuant to and in
compliance with the terms of the agreements listed on Schedule X, in the case of
----------
each thereof, as the same shall be in effect on and as of the Closing Date
(collectively, the "Existing Affiliate Agreements"). Nothing contained in this
Section shall permit the disposition of any accounts receivable (or any interest
therein) by the Borrower or any Restricted Subsidiary to any Unrestricted
Subsidiary except in connection with a Permitted Receivables Financing.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
file or consent to the filing of any consolidated income tax return with JPF or
any other Person (other than a Subsidiary of the Borrower) except that the
Borrower or any such Subsidiary may file or consent to the filing of a
consolidated United States federal income tax return with JPF if (but
78
only if) JPF shall have entered into a valid and binding agreement to reimburse
to the Borrower, or to allow the Borrower to retain, a sum equal to the amount
by which the income taxes of the consolidated group of corporations of which the
Borrower is a part are reduced as a result of the inclusion of the Borrower in
the consolidated return of such group; provided that, the Borrower may agree to
--------
pay JPF an amount not to exceed the amount of income taxes which would have been
payable by the Borrower if it had filed its income tax return on a basis not
consolidated with JPF, subject to appropriate adjustment in the event that the
amount of such income taxes is increased or reduced by reason of any audit by a
taxing authority or any successful claim for a refund, any such payment or
reimbursement to be computed in accordance with GAAP and applicable tax law,
rules and regulations, and to be made at the time of payment or refund of any
such income taxes.
SECTION 8.09. Nature of Business.
------------------
The Borrower and its Restricted Subsidiaries will remain principally
engaged in the business of broadline distribution of food and related products
to restaurants and other food service establishments, and will not engage in any
line of business in which they are not currently engaged to such an extent that
the business of the Borrower and its Restricted Subsidiaries taken as a whole
would be fundamentally different in nature from the business of the Borrower and
its Restricted Subsidiaries on the date hereof.
SECTION 8.10. Books and Records; Fiscal Year.
------------------------------
The Borrower will, and will cause each of its Subsidiaries to, (a) keep
proper books of record and account in which full, true and correct entries will
be made of all its material business dealings and transactions in accordance
with GAAP applied on a consistent basis and (b) maintain a system of accounting
established and administered in accordance with GAAP, and set aside on its books
from its earnings for each fiscal period all proper reserves, accruals and
provisions which, in accordance with GAAP, should be set aside from such
earnings in connection with its business, including, without limitation,
provisions for depreciation, obsolescence and/or amortization, and accruals for
taxes for such period. The Borrower will give the Administrative Agent and each
of the Lenders advance written notice of any change in the basis on which the
fiscal year of the Borrower or any Restricted Subsidiary is determined, provided
--------
that no such change shall result in the Borrower having a fiscal year longer
than twelve (12) fiscal months.
SECTION 8.11. Corporate Existence; Licenses.
-----------------------------
The Borrower will, and will cause each of its Restricted Subsidiaries to,
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence (except as otherwise permitted by Section
8.07) and its rights (charter and statutory) and Licenses; except that, subject
to compliance with Sections 8.06 and 8.07 and the next succeeding sentence of
this Section, the rights and Licenses of the Borrower or any of its Restricted
Subsidiaries may be abandoned, modified or terminated if in the judgment of the
Board of Directors such abandonment, modification or termination is in the best
interests of the Borrower
79
and its Restricted Subsidiaries and is not disadvantageous to the Lenders. The
Borrower will, and will cause each of its Restricted Subsidiaries to, in any
event maintain the validity of all Licenses necessary in any material respect
for the conduct of the business of the Borrower and its Restricted Subsidiaries
as now conducted and as proposed to be conducted.
SECTION 8.12. Payment of Taxes, Claims for Labor and Materials, etc.
-----------------------------------------------------
The Borrower will, and will cause each of its Restricted Subsidiaries to,
promptly pay and discharge or cause to be promptly paid and discharged when due
and before the same shall become delinquent (a) all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
upon any of its franchises, Licenses, business or property, or upon any part
thereof, and (b) all claims of landlords, carriers, warehousemen, mechanics,
materialmen and other similar Persons for labor, materials, supplies and rentals
which, if unpaid, might by law become a Lien or charge upon any of its property;
provided, however, that the failure of the Borrower or any of its Restricted
-------- -------
Subsidiaries to pay any such tax, assessment, charge, levy or claim shall not
constitute a Default hereunder if and for so long as the amount, applicability
or validity thereof shall concurrently be contested in good faith by appropriate
and timely actions or proceedings diligently pursued, and if such reserve or
other appropriate provision, if any, as shall be required by GAAP shall have
been made therefor and the consequences of such failure shall not have, either
alone or taken together with the consequences of all other such failures, a
Material Adverse Effect.
SECTION 8.13. Maintenance of Properties.
-------------------------
The Borrower will, and will cause each of its Restricted Subsidiaries to,
maintain and keep, or cause to be maintained and kept, in good repair, working
order and condition (ordinary wear and tear excepted) all properties (whether
owned or leased) used or useful in the business of the Borrower and its
Restricted Subsidiaries, and from time to time make or cause to be made all
necessary and proper repairs, renewals, replacements and improvements thereof so
that the business carried on in connection therewith may be properly and
advantageously conducted consistent with past practices of the Borrower.
SECTION 8.14. Insurance.
---------
The Borrower will, and will cause each of its Restricted Subsidiaries to,
keep adequately insured, by financially sound and reputable insurers, all of its
property of a character customarily insured against by prudent corporations
engaged in the same or a similar business and similarly situated against loss or
damage of the kinds and in amounts customarily insured against by such
corporations, and with deductibles or coinsurance no greater than is customary,
and carry (or cause its suppliers to carry, under arrangements pursuant to which
the Borrower or its applicable Restricted Subsidiary is named an additional
insured), with such insurers in customary amounts, such other insurance,
including public liability insurance and insurance against claims for any
violation of applicable law, as is customarily carried by prudent corporations
of established reputation engaged in the same or a similar business and
similarly situated; provided, however, that the Borrower and its Restricted
-------- -------
Subsidiaries may, consistently with their practices prior to
80
the date hereof, self-insure with respect to certain categories of insurance
(including, but not limited to, property and workers' compensation claims) so
long as (i) the respective amounts of such categories of self insurance for the
Borrower and all Restricted Subsidiaries shall not exceed the amounts thereof
from time to time recommended to the Borrower by an independent firm of risk
management consultants of recognized standing and (ii) all reserves required in
accordance with GAAP to be maintained by the Borrower and its Restricted
Subsidiaries in respect of all such self insurance (including self insurance in
effect resulting from co-insurance, deductibility or similar clauses) shall be
maintained through a security arrangement as required by the respective insurer
(which may include the procurement by the Borrower, as account party, of Letters
of Credit issued hereunder), or other arrangements, not to include cash
collateral, in compliance with Section 8.03.
SECTION 8.15. Compliance with Laws.
--------------------
The Borrower will, and will cause each of its Restricted Subsidiaries to,
promptly comply in all material respects with all laws, statutes, rules,
regulations and ordinances and all Orders of, and restrictions imposed by, any
court, arbitrator or Governmental Body in respect of the conduct of its business
and the ownership of its properties (including, without limitation, applicable
laws, statutes, rules, regulations, ordinances and Orders relating to
occupational health and safety standards, consumer protection and equal
employment opportunities), except to the extent that the applicability or
validity of any such law, statute, rule, regulation, ordinance or Order is being
contested in good faith by appropriate and timely actions or proceedings
diligently pursued, and for which such reserve or other appropriate provision,
if any, as shall be required by GAAP shall have been made, so long as such
actions or proceedings are effective to prevent the imposition of any material
penalty on the Borrower or such Restricted Subsidiary and the consequences of
the failure to comply with such contested law, statute, rule, regulation,
ordinance or Order and of the conduct of such action or proceeding shall not
have, either alone or taken together with the consequences of all other such
failures, actions and proceedings, a Material Adverse Effect.
SECTION 8.16. Environmental Matters.
---------------------
(a) The Borrower will, and will cause each of its Restricted Subsidiaries
to, (i) obtain and maintain in full force and effect all Environmental Permits
that may be required from time to time under any Environmental Laws applicable
to the Borrower or any Restricted Subsidiary and (ii) be and remain in
compliance in all material respects with all terms and conditions of all such
Environmental Permits and with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in all applicable Environmental Laws.
(b) The Borrower will not, and will not permit any of its Restricted
Subsidiaries to, (i) cause or allow (A) any Hazardous Substance to be present at
any time on, in, under or above the Borrower Premises or any part thereof or (B)
the Borrower Premises or any part thereof to be used at any time to manufacture,
generate, refine, process, distribute, use, sell, treat, receive, store, dispose
of, transport, arrange for transport of, handle, or be involved in any other
activity involving, any Hazardous Substance, or (ii) conduct any such activities
described in the
81
foregoing clause (i)(B) on the Borrower Premises or anywhere else, except, in
each case referred to in the foregoing clauses (i) and (ii), in a manner that is
in compliance in all material respects with all applicable Environmental Laws
and Environmental Permits and to an extent that will not have a Material Adverse
Effect; provided, however, that the existence of the circumstances described on
-------- -------
Schedule XI with respect to the Xxxxxxx Facility shall not be deemed to
-----------
constitute a default by the Borrower in the performance of its obligations under
this Section 8.16(b) so long as neither such circumstances nor any claim or
liability asserted against the Borrower in connection therewith nor any action
required to be taken by the Borrower with respect thereto shall have had a
Material Adverse Effect.
SECTION 8.17. Maintenance of Office.
---------------------
The Borrower will maintain its principal office at a location in the United
States of America where notices, presentations and demands in respect of this
Agreement may be made upon it, and will notify the Administrative Agent and each
of the Lenders in writing of any change of location of such office reasonably
promptly following the occurrence of such change. Such office shall first be
maintained at the address of the Borrower set forth in Section 12.01.
SECTION 8.18. Future Restricted Subsidiaries.
------------------------------
The Borrower will cause each Subsidiary (other than Xxxxxx Cash & Carry,
Inc. (which corporation shall be dissolved or liquidated and Nevada Baking
Company, Inc., which shall execute a Guaranty Joinder Agreement, or whose assets
and liabilities shall be acquired by the Borrower or a Restricted Subsidiary, in
either case no later than June 30, 1997) and any Subsidiary created in
connection with any Permitted Receivables Financing for the sole purpose of, and
whose business activities are (and at all times remain) limited to, purchasing
accounts receivable (or any interests therein) from the Borrower or any of its
Restricted Subsidiaries and selling, transferring or otherwise conveying such
accounts receivable (or any interests therein) to the Receivables Financier for
such Permitted Receivables Financing) which at any time on or following the
Closing Date shall be designated or redesignated in accordance with the terms of
this Agreement as a Restricted Subsidiary, not later than the time of
effectiveness of such designation or redesignation, to guarantee pursuant to the
Guaranty Agreement the obligations of the Borrower under this Agreement and the
other Credit Documents to which the Borrower is a party. In furtherance of the
above, the Borrower shall notify the Administrative Agent and the Lenders in
accordance with Section 6.01(j) upon any Subsidiary being designated or
redesignated in accordance with the terms of this Agreement as a Restricted
Subsidiary and shall cause such Subsidiary (i) to execute a Guarantor Joinder
Agreement and (ii) to deliver such other documentation as the Administrative
Agent may reasonably request in connection with the foregoing, including without
limitation certified corporate resolutions and other corporate documents of such
Subsidiary and favorable opinions of counsel to such Subsidiary (which shall
cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above), all in form, content and
scope reasonably satisfactory to the Administrative Agent.
82
Notwithstanding any provision of this Agreement or the Guaranty Agreement
to the contrary, in the event that any Guarantor shall cease to be a Restricted
Subsidiary in accordance with the terms of this Agreement, then (1) such
Guarantor, automatically and without further act on the part of the
Administrative Agent or the Lenders, shall be released from its obligations
under the Guaranty Agreement and (2) promptly upon the request of the Borrower,
the Administrative Agent (on behalf of the Lenders) shall execute such documents
and take such other action reasonably requested by the Borrower to cause such
Guarantor to be released from its obligations arising under the Guaranty
Agreement.
ARTICLE IX.
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower hereby represents and warrants to each Lender that:
SECTION 9.01. Organization and Authority of the Borrower, etc.
-----------------------------------------------
The Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite legal
right, power and authority to own or hold under lease the property it purports
to own or hold under lease, to carry on its business as now conducted and as
proposed to be conducted, and to enter into and carry out the terms of this
Agreement and the other Credit Documents to which it is a party. As of the
Restatement Date, the Borrower has, by all necessary corporate action (including
all action of its shareholders required in connection therewith), duly
authorized the execution and delivery of, and the performance of its obligations
under, this Agreement and the other Credit Documents to which it is a party.
SECTION 9.02. Subsidiaries.
------------
Schedule VIII lists all existing Subsidiaries of the Borrower as of the
-------------
Restatement Date and correctly sets forth, as to each Subsidiary (a) its name,
(b) its jurisdiction of organization, (c) the percentage of its issued and
outstanding shares of capital stock of each class owned by the Borrower or one
of its Subsidiaries (specifying each such Subsidiary), and (d) the name of each
Person, if any, other than the Borrower or one of its Subsidiaries owning
outstanding shares of capital stock of any class of such Subsidiary and the
percentage of each such class of stock owned by such Person. The Borrower does
not, as of the date of this Agreement, and will not, as of the Restatement Date,
have any Unrestricted Subsidiaries; and each Subsidiary listed on Schedule VIII
-------------
is initially designated as a Restricted Subsidiary. Each such Restricted
Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has all
requisite legal right, power and authority to own or hold under lease the
property it purports to own or hold under lease, to carry on its business as now
conducted and as proposed to be conducted, and to enter into and carry out the
terms of the Guaranty Agreement. Each such Restricted Subsidiary has, by all
necessary corporate action (including all action of its shareholders required in
connection therewith), duly authorized the
83
execution and delivery of, and the performance of its obligations under the
Agreement. All of the outstanding shares of capital stock of each such
Restricted Subsidiary have been duly authorized and validly issued and are fully
paid and non-assessable and all shares of capital stock indicated on Schedule
--------
VIII as owned by the Borrower or any other such Restricted Subsidiary as of the
----
Closing Date are owned beneficially and of record by the Borrower or such other
Restricted Subsidiary, as the case may be; and immediately after giving effect
to the transactions to be consummated on the Restatement Date such shares will
be so owned, free and clear of any Lien. Except as otherwise permitted by
Section 8.06, there are no outstanding rights, options, warrants, conversion
rights or agreements for the purchase or acquisition from the Borrower or any of
its Subsidiaries of any shares of capital stock or similar interests or other
securities of any Subsidiary.
SECTION 9.03. Qualification.
-------------
The Borrower is, and each of its Restricted Subsidiaries is, duly qualified
or licensed and in good standing as a foreign corporation duly authorized to do
business in each jurisdiction (other than the jurisdiction of its organization)
in which the nature of its activities or the character of the properties it owns
or leases makes such qualification or licensing necessary and in which the
failure to so qualify or be licensed would have a Material Adverse Effect.
Schedule VIII sets forth as to the Borrower and each of its Restricted
-------------
Subsidiaries the jurisdictions (other than the jurisdiction of its organization)
in which, as of the Restatement Date, it is qualified or licensed to do business
or in which any substantial part of its tangible assets is located.
SECTION 9.04. Financial Statement.
-------------------
The financial statements referenced in Section 5.04(a) have been prepared
in accordance with GAAP, are complete and correct in all material respects and
present fairly the financial position and results of operations and cash flows
of the entities for the periods specified, subject in the case of interim
company-prepared statements to normal year-end adjustments and the absence of
footnotes.
SECTION 9.05. Changes, etc.
------------
Since the date of the balance sheet included in the most recent audited
financial statements referred to in Section 5.04(a), (a) there have been no
changes in the Business or Condition of the Borrower and its Subsidiaries which
has been, either in any one case or in the aggregate, Materially Adverse, and
(b) there has been no occurrence or development, whether or not insured against,
which has had or could reasonably be expected to have a Material Adverse Effect.
SECTION 9.06. Compliance with Laws, Other Instruments, etc.
--------------------------------------------
(a) Neither the Borrower nor any of its Subsidiaries is in violation of
any term of its corporate charter or by-laws. Neither the Borrower nor any of
its Subsidiaries is in violation of any term of any agreement, indenture,
mortgage or instrument to which it is a party or by which
84
it or any of its properties may be bound or affected or any existing statute,
law, governmental rule, regulation or ordinance, or any Order of any court,
arbitrator or Governmental Body applicable to it (including, without limitation,
any statute, law, rule, regulation, ordinance or Order relating to occupational
health and safety standards, consumer protection or equal employment practice
requirements and applicable regulations of the Department of Agriculture, the
Food and Drug Administration and state and local health departments), the
consequences of which violation, either alone or taken together with the
consequences of all other such violations, have had or could reasonably be
expected to have a Material Adverse Effect.
(b) Neither the execution and delivery of this Agreement or any of the
other Credit Documents nor the performance of the terms and provisions hereof or
thereof nor the consummation of the transactions contemplated hereby or thereby
will result in any breach of or be in conflict with or constitute a default (or
an event which with notice or lapse of time or both would become a default)
under, or give to others any right of termination, amendment, acceleration or
cancellation of, or result in a loss of any benefit to which the Borrower or any
of its Subsidiaries is entitled under, or result in (or require) the creation of
any Lien upon any property of the Borrower under, any term of, the corporate
charter or by-laws of the Borrower or any of its Subsidiaries or any agreement,
indenture, mortgage or instrument to which the Borrower or any of its
Subsidiaries is a party or by which the Borrower, any such Subsidiary or any of
their respective properties may be bound or affected, or any existing statute,
law, rule, regulation or ordinance or any Order of any court, arbitrator or
Governmental Body applicable to the Borrower, any such Subsidiary or any of
their respective properties.
SECTION 9.07. Consents and Approvals.
----------------------
No Approval by, from or with, and no other action in respect of, any
Governmental Body or any other Person (including any trustee, or any holder of
any indebtedness, securities or other obligations of the Borrower or any
Restricted Subsidiary) is required (a) for or in connection with the valid
execution and delivery by the Borrower or any Restricted Subsidiary of or the
performance by the Borrower or any Restricted Subsidiary of its obligations
under this Agreement or any of the other Credit Documents or the consummation by
the Borrower or any Restricted Subsidiary of the transactions contemplated
hereby and thereby, or (b) as a condition to the legality, validity or
enforceability as against the Borrower or any Restricted Subsidiary of this
Agreement or any of the other Credit Documents, in each case, other than (i)
routine filings before and after the Restatement Date with the Commission and
state Blue Sky authorities, and (ii) the Approvals described on Schedule XII,
------------
all of which have been duly obtained or made and are in full force and effect
and true and correct copies of instruments evidencing which have been furnished
to the Administrative Agent.
SECTION 9.08. Debt, etc.
---------
Schedule IX correctly lists all secured and unsecured Debt of the Borrower
-----------
and each of its Subsidiaries outstanding on the date hereof (except as otherwise
noted thereon) and shows, as to each item of Debt listed thereon, the obligor
and obligee, the aggregate principal amount outstanding as of the Restatement
Date. No default or event of default or basis for acceleration
85
exists (nor in the case of Permitted Receivables Financings, has any termination
event occurred) or, immediately after giving effect to the initial borrowings
hereunder on the Restatement Date and the other transactions to occur on the
Restatement Date as contemplated hereby, will exist (or, but for the permanent
waiver thereof, would exist) under any instrument or agreement evidencing,
providing for the issuance or securing of, or otherwise relating to any such
Debt due to (a) nonpayment of any obligations thereunder or (b) any failure to
duly perform or observe any other covenant, provision, agreement or condition
contained therein, the consequences of which failure, either alone or taken
together with the consequences of all other such failures, have had or could
reasonably be expected to have a Material Adverse Effect. As of the Closing
Date, the Effective Date and the Restatement Date, neither the Borrower nor any
Restricted Subsidiary is a party to or bound by any charter provision, by-law,
agreement, indenture, mortgage, lease, instrument or License (other than this
Agreement and the other Credit Documents) which contains any restriction on the
incurrence by it of any Debt, except for the Note Purchase Agreements, a true
and correct copy of each of which has been delivered to the Administrative Agent
and pursuant to each of which the Borrower or such Restricted Subsidiary, as
applicable, either is permitted to incur Debt hereunder and/or under the other
Credit Documents to which it is a party or has duly obtained in writing and
delivered to the Administrative Agent all such Approvals as are or will be
necessary or appropriate to permit such incurrence.
SECTION 9.09. Title to Property; Leases; Investments; Existing Affiliate
----------------------------------------------------------
Agreements.
----------
(a) The Borrower and its Restricted Subsidiaries have good and marketable
title to their real properties and good title to the other properties they
purport to own, including those reflected in the balance sheet included in the
most recent audited financial statements referred to in Section 9.04 or
purported to have been acquired by the Borrower or any of its Restricted
Subsidiaries after the date of such balance sheet (other than any such
properties disposed of since such date in the ordinary course of business),
subject in the case of all such property to no Liens other than Liens permitted
by Section 8.03. The Borrower and its Restricted Subsidiaries enjoy peaceful and
undisturbed possession under all leases of all personal and all real property
necessary in any material respect to their respective operations, all such
leases are valid and subsisting and in full force and effect, and neither the
Borrower nor any such Subsidiary is in default in any material respect in the
performance or observance of its obligations thereunder. Schedule VIII includes
-------------
a general description of each Operating Lease existing as of the date hereof
under which the Borrower or a Restricted Subsidiary is a lessee and under which
the annual rental obligations exceed $100,000, and sets forth with respect to
each such lease, (i) the name of the lessor thereunder, (ii) a general
description of the property leased, and (iii) the annual rental obligations
payable thereunder.
(b) Schedule VIII correctly lists all Investments of the Borrower and its
-------------
Restricted Subsidiaries of the character described in subdivision (a) of the
definition of "Investment" set forth in Section 1.01 (other than Investments in
Subsidiaries) which are existing on the date hereof.
86
(c) The Borrower has delivered to the Administrative Agent a true and
correct copy of each of the Existing Affiliate Agreements, in the case of each
thereof as the same shall have been amended and be in effect on and as of the
Closing Date.
SECTION 9.10. Litigation.
----------
There are no actions, suits or proceedings pending or, to the knowledge of
the Borrower, threatened against the Borrower or any of its Restricted
Subsidiaries or any of their respective properties (and no basis therefor is
known to the Borrower) in any court or before any arbitrator of any kind or
before or by any Governmental Body, which (a) question the validity or legality
of this Agreement or any of the other Credit Documents or any action taken or to
be taken pursuant hereto or thereto or (b) either alone or taken together with
all other such actions, suits and proceedings, have had or could reasonably be
expected to have a Material Adverse Effect.
SECTION 9.11. Taxes.
-----
The Borrower and its Restricted Subsidiaries have filed all tax returns
which are required by law to have been filed by them in any jurisdiction (other
than tax returns (i) which may be required to be filed with state or local
taxing authorities which have not advised the Borrower or any Restricted
Subsidiary of such requirement, and (ii) with respect to which, neither the
failure to file the same nor the failure to pay any taxes, assessments or
charges which might be shown to be owing thereon has had or could reasonably be
expected to have a Material Adverse Effect) and have paid all taxes,
assessments, fees and charges of each Governmental Body shown to be owing on
such filed returns to the extent the same have become due and payable and before
they have become delinquent other than those presently payable without penalty
or interest and those being contested in good faith by appropriate and timely
actions or proceedings diligently pursued and with respect to which reserves
have been provided for in the Borrower's financial statements to the extent
required by GAAP. The Borrower does not know of any additional assessment or
proposed assessment for any fiscal year, and no material controversy in respect
of additional federal or state income taxes is pending or to the knowledge of
the Borrower is threatened except any with respect to which reserves have been
provided for in the Borrower's financial statements to the extent required by
GAAP. In the opinion of the Borrower, all tax liabilities (including taxes for
all open years and for its current fiscal period) are adequately provided for on
the books of the Borrower and its Restricted Subsidiaries in accordance with
GAAP.
SECTION 9.12. Compliance with ERISA.
---------------------
(a) No Termination Event has occurred, and no event or condition has
occurred or exists as a result of which any Termination Event could reasonably
be expected to occur, with respect to any Plan. No accumulated funding
deficiency (as defined in Section 302 of ERISA and Section 412 of the Code),
whether or not waived, has occurred with respect to any Plan or, to the best of
the Borrower's knowledge, any Multiemployer Plan. Except as set forth in the
immediately succeeding sentence, the present value of all accrued benefits under
each Plan (based on those assumptions used to fund such Plan, which assumptions
are reasonable) did not, as of the most recent valuation date prior to the
Closing Date, which for any such Plan or
87
Multiemployer Plan was not earlier than twelve months prior to the date as of
which this representation is made, exceed the then current value of the assets
of such Plan allocable to such benefits. The present value of the accrued
benefits under the JP Foodservice - Monarch Des Moines, Iowa Warehouse and
Transportation Employees' Pension Plan and the JP Foodservice - Monarch Fort
Xxxxx, Indiana Warehouse and Transportation Employees' Pension Plan (based on
those assumptions used to fund such Plans, which assumptions are reasonable)
exceeded, as of July 1, 1993 (the most recent valuation date for which
calculations are available), the then current value of the assets of such Plans
allocable to such benefits by $291,415 and $293,627, respectively (and the
Borrower is not aware of any event or circumstance which could cause such
amounts to increase materially as of July 3, 1994).
(b) No Borrower Group Member has incurred, or, to the best of the
Borrower's knowledge, is reasonably expected to incur, any withdrawal liability
to any Multiemployer Plan. No Borrower Group Member has received any
notification that any Multiemployer Plan is in reorganization (as defined in
Section 4241 of ERISA), is insolvent (as defined in Section 4245 of ERISA) or
has been terminated, within the meaning of Title IV of ERISA, and no
Multiemployer Plan is, to the best of the Borrower's knowledge, reasonably
expected to be in reorganization, insolvent or to be terminated.
(c) No prohibited transaction (as defined in Section 406 of ERISA or
Section 4975 of the Code) or breach of fiduciary responsibility has occurred
which has subjected or may subject any Borrower Group Member to any liability
under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code,
or under any agreement or other instrument pursuant to which such Borrower Group
Member has agreed or is required to indemnify any Person against any such
liability. No Borrower Group Member has incurred, or is reasonably expected to
incur, any liability to the PBGC (other than for insurance premiums, which have
been paid when due).
(d) Full payment has been made on or before the due date (including
extensions) thereof of all amounts which any Borrower Group Member is or was
required under the terms of any Plan or any Multiemployer Plan to have paid as
contributions to such Plan as of the date hereof.
(e) No Lien imposed under the Code or ERISA on the assets of any Borrower
Group Member exists or is reasonably likely to arise on account of any Plan or
any Multiemployer Plan.
(f) No welfare plan (as defined in Section 3(1) of ERISA) maintained by
any Borrower Group Member provides medical or death benefits with respect to
current or former employees beyond their termination of employment (other than
coverage mandated by law). Each such plan to which Sections 601-609 of ERISA and
Section 4980B of the Code apply has been administered in compliance in all
material respects with such sections.
SECTION 9.13. Use of Loan Proceeds; Margin Regulations.
----------------------------------------
The Borrower will apply the proceeds of the Loans for working capital and
general corporate purposes, including without limitation acquisitions, of the
Borrower and its Restricted
88
Subsidiaries. No part of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin stock" within
the meaning of Regulation G of the Board of Governors of the Federal Reserve
System (12 CFR 207, as amended), or for the purpose of purchasing or carrying or
trading in any securities, under such circumstances as to involve the Borrower
in a violation of Regulation X of said Board (12 CFR 224, as amended) or to
involve any broker or dealer in a violation of Regulation T of said Board (12
CFR 220, as amended). No Debt being reduced or retired out of the proceeds of
the Loans was or will be incurred for the purpose of purchasing or carrying any
margin stock within the meaning of such Regulation G or any "margin security"
within the meaning of such Regulation T. As of the date hereof and as of the
Restatement Date, such margin stock does not constitute more than 25% of the
value of the consolidated assets of the Borrower and its Subsidiaries; and the
Borrower does not have any present intention that such margin stock will
constitute more than 25% of the value of such assets. None of the transactions
contemplated by this Agreement (including, without limitation, the direct or
indirect use of the proceeds of the Loans) will violate or result in a violation
of Section 7 of the Exchange Act or any regulations issued pursuant thereto,
including, without limitation, said Regulation G, Regulation T and Regulation X.
SECTION 9.14. Licenses, Patents, Trademarks, Authorizations, etc.
--------------------------------------------------
The Borrower and each of its Restricted Subsidiaries owns, possesses or has
the right to use (without any known conflict with the rights of others) all
permits, franchises, patents, trademarks, service marks, trade names,
copyrights, licenses, permits and governmental or other authorizations or the
like (collectively, "Licenses") which are necessary in any material respect to
the conduct of its businesses as conducted on the date hereof and as proposed to
be conducted. All such necessary Licenses or rights therein purported to be
owned by the Borrower or any Restricted Subsidiary are so owned free and clear
of any Liens, other than Liens permitted by subdivisions (a), (d) and (g) of
Section 8.03. Each such necessary License is in full force and effect, and no
default in the performance or observance by the Borrower or any such Subsidiary
of its obligations thereunder has occurred, the consequences of which default,
either alone or taken together with the consequences of all other such defaults,
have had or could reasonably be expected to have a Material Adverse Effect.
SECTION 9.15. Status Under Certain Statutes; Other Regulations.
------------------------------------------------
The Borrower is not an "investment company" or a Person directly or
indirectly "controlled" by or "acting on behalf of" an "investment company"
within the meaning of the Investment Borrower Act of 1940, as amended. The
Borrower is not a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," as such terms are defined in the Public Utility Holding
Borrower Act of 1935, as amended. The Borrower is not a "public utility," as
such term is defined in the Federal Power Act, as amended. The Borrower is not
subject to regulation under any federal or state law, statute, rule, regulation
or ordinance which limits its ability to incur Debt.
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SECTION 9.16. Labor Matters.
-------------
There are no labor disputes between the Borrower or any of its Restricted
Subsidiaries on the one hand and any of their respective employees or
representatives of such employees on the other hand which in the aggregate have
had or could reasonably be expected to have a Material Adverse Effect, and the
Borrower and its Restricted Subsidiaries are in compliance in all material
respects with all applicable laws respecting employment and employment
practices, terms and conditions of employment, tax withholding on behalf of
employees and wages and hours, and are not engaged in any unfair labor practice
which, either alone or taken together with all other such practices, have had or
could reasonably be expected to have a Material Adverse Effect.
SECTION 9.17. Full Disclosure.
---------------
This Agreement, the Registration Statement and the other documents,
certificates and instruments delivered to the Administrative Agent and/or the
Lenders by or on behalf of the Borrower in connection with the transactions
contemplated by this Agreement, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained herein or therein, in light of the
circumstances under which the same were made (including without limitation, the
respective dates on or as of which such statements were made), not misleading.
There is no fact known to the Borrower which has had a Material Adverse Effect
since July 3, 1994 or in the future may (so far as the Borrower can now
reasonably foresee) have a Material Adverse Effect which has not been set forth
or reflected in this Agreement, the Registration Statement or in the other
documents, certificates and instruments referred to herein and delivered to the
Administrative Agent and/or the Lenders by or on behalf of the Borrower on or
prior to the date hereof in connection with the transactions contemplated by
this Agreement.
SECTION 9.18. Environmental Matters.
---------------------
(a) The Borrower and its Restricted Subsidiaries currently hold and at all
times heretofore the Borrower and its Restricted Subsidiaries held all
Environmental Permits required under all Environmental Laws except to the extent
failure to have any such Environmental Permit, either alone or considered
together with all other such failures, has not had and can not reasonably be
expected to have a Material Adverse Effect.
(b) The Borrower and its Restricted Subsidiaries currently are, and at all
times heretofore the Borrower and its Restricted Subsidiaries have been, in
compliance with all terms and conditions of all such Environmental Permits and
all other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in all applicable
Environmental Laws except to the extent failure to comply therewith, either
alone or considered together with all other such failures, has not had and can
not reasonably be expected to have a Material Adverse Effect.
(c) Except as set forth in Schedule XI, neither the Borrower nor any of
-----------
its Restricted Subsidiaries has ever received, and, so far as is known to the
Borrower, no predecessor in interest
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of the Borrower or any such Subsidiary in respect of any of the Borrower
Premises has ever received, from any Governmental Body or other Person any
notice of, and the Borrower has no knowledge of, any events, conditions or
circumstances that could prevent continued compliance in all material respects
with the Environmental Permits referred to in subdivision (b) of this Section or
any scheduled renewals thereof or any applicable Environmental Laws currently in
effect, or that could give rise to any liability on the part of the Borrower or
any such Restricted Subsidiary or otherwise form the basis of any claim, action,
demand, request, notice, suit, proceeding, hearing, study or investigation
(collectively, "Environmental Claims") involving the Borrower or any of its
Restricted Subsidiaries, based on or related to (i) a violation of any
applicable Environmental Laws currently in effect or (ii) the manufacture,
generation, refining, processing, distribution, use, sale, treatment, receipt,
storage, disposal, transport, arranging for transport or handling, or the
emission, discharge, release or threatened release into the environment, of any
Hazardous Substance in violation of any applicable Environmental Laws currently
in effect, other than any liability or Environmental Claim referred to in this
subdivision (c) which, either alone or considered together with all other such
liabilities and Environmental Claims, has not had and can not reasonably be
expected to have a Material Adverse Effect. Neither the matters set forth in
Schedule XI nor the resolution thereof nor any action required to be taken by
-----------
Borrower in connection therewith have had or, in the Borrower's good faith
judgment, will have a Material Adverse Effect.
SECTION 9.19. Solvency.
--------
The Borrower and each Restricted Subsidiary is, and upon giving effect to
the initial borrowings hereunder on the Restatement Date will be, a "solvent
institution", as said term is used in Section 1405(c) of the New York Insurance
Law, whose "obligations are not in default as to principal or interest", as said
terms are used in said Section 1405(c).
ARTICLE X.
EVENTS OF DEFAULT
SECTION 10.01. Events of Default.
-----------------
Each of the following shall be an event of default (each an "Event of
Default") hereunder:
(a) default shall be made in the due and punctual payment of any
principal of any of the Loans or LOC Obligations when and as the same shall
become due and payable; or
(b) default shall be made in the due and punctual payment of any
interest on any of the Loans or LOC Obligations when and as such interest
shall become due and payable, and such default shall have continued for a
period of five Business Days; or
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(c) default shall be made in the due performance or observance of any
covenant, provision, agreement or condition contained in Section 8.01(c),
Section 8.02, Section 8.03, Section 8.04, Section 8.05, Section 8.06, or
Section 8.07, or the Borrower or a Restricted Subsidiary shall create,
incur, assume or otherwise become liable in respect of any Debt the
incurrence of which is not permitted by Section 8.02(a) or Section 8.02(b)
or immediately after giving effect to the incurrence of which the Borrower
would not be in compliance with Section 8.02(c); or
(d) default shall be made in the due performance or observance of any
other covenant, provision, agreement or condition contained in this
Agreement (other than any default referred to in the foregoing subdivisions
(a), (b) and (c) of this Section 10.01), including, without limitation, any
covenant, provision, agreement or condition contained in Section 8.01(c) or
Section 8.02, and such default shall have continued for a period of 30 days
after the earlier of (x) the date on which any Responsible Officer of the
Borrower first has knowledge of such default, through notice or otherwise
and (y) the giving of notice to the Borrower of such default by the
Administrative Agent or any of the Lenders; or
(e) (i) default shall be made in the payment of any amount due,
whether on an interest payment date or on a date fixed for prepayment, at
stated maturity, by acceleration or declaration or otherwise, under or in
respect of any Debt of the Borrower (including, without limitation, Debt
evidenced by any of the Notes, but excluding (x) Debt arising hereunder or
under any of the other Credit Documents and (y) so long as the Borrower
shall hold PYA's Note and the Xxxx Xxx Offset Agreement shall remain in
full force and effect and shall be effective to permit the offset of
principal and interest due under the Xxxx Xxx Note against principal and
interest due under PYA's Note (or to establish the Borrower's obligation in
respect of the indebtedness evidenced by the Xxxx Xxx Note from and after a
prepayment in full of PYA's Note as the remaining principal balance of the
Xxxx Xxx Note after offset against amounts owing thereon of the principal
of and accrued and unpaid interest to the date of prepayment on the PYA
Note), Debt evidenced by the Xxxx Xxx Note) or of any Restricted Subsidiary
which is outstanding in a principal amount of more than $5,000,000, and
such default shall continue beyond the period of grace, if any, provided
with respect thereto; or (ii) default shall be made in the due performance
or observance of any covenant, provision, agreement or condition contained
in any document evidencing or providing for the issuance or securing of any
such Debt (other than Debt excluded as aforesaid), if the effect of any
such default referred to in this clause (ii) is to have caused such Debt to
become due prior to its stated maturity or prior to its regularly scheduled
dates of payment; or
(f) default shall be made in the due performance or observance of any
financial or negative covenant or agreement contained in any of the Note
Purchase Agreements beyond the period of grace, if any, provided for such
performance or observance in such Note Purchase Agreement (other than any
default arising from or consisting of a condition or event which (x) also
constitutes a default referred to in the foregoing subdivision (c) or (d)
of this Section 10.01 or (y) shall have become an Event
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of Default under subdivision (e) of this Section 10.01) and such default (a
"Noteholder Default") shall have continued for a period of 30 consecutive
days without having been cured, either by the Borrower or by virtue of a
waiver granted under or an amendment or other modification of the
provisions of the applicable Note Purchase Agreements; provided that, in
determining whether a Noteholder Default shall have occurred or shall
exist, and in determining the period during which any Noteholder Default
shall have continued, no effect shall be given to any waiver in respect of
any provision of the applicable Note Purchase Agreements or any consent to
a departure by the Borrower or a Subsidiary from any such provision or to
any amendment or modification of the terms of the applicable Note Purchase
Agreements or to any agreement entered into following, or in contemplation
of, the occurrence or coming into existence of any condition or event which
upon notice or lapse of time or both would constitute a Noteholder Default,
if such waiver, consent, amendment, modification or agreement is given or
entered into directly or indirectly in exchange for (i) monetary or other
consideration (other than the payment by the Borrower or a Subsidiary of
(x) waiver, modification or similar fees to the holders of the Notes not
exceeding, in the case of any such fee payable to any one such holder in
respect of the waivers, consents, amendments, modifications or agreements
given or entered into at any one time, $10,000 and (y) amounts in
reimbursement of the out-of-pocket costs of any of the holders of the
Notes, (ii) any increase in the rate of interest, premium or fees
theretofore payable under the applicable Note Purchase Agreements or (iii)
any decrease in the term to final maturity or the Weighted Average Life to
Maturity of any Debt of the Borrower or a Restricted Subsidiary under the
applicable Note Purchase Agreements; or
(g) the Borrower or any Restricted Subsidiary shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of all or a substantial part
of its property, (ii) become insolvent or be generally unable to or shall
generally fail or admit in writing its inability to pay its debts as such
debts become due, (iii) make a general assignment for the benefit of its
creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code
(as now or hereafter in effect), (v) file a petition seeking to take
advantage of any bankruptcy, insolvency, moratorium, reorganization or
other similar law affecting the enforcement of creditors' rights generally,
(vi) acquiesce in writing to, or fail to controvert in a timely or
appropriate manner, any petition filed against it in an involuntary case
under such Bankruptcy Code, (vii) take any action under the laws of any
jurisdiction (foreign or domestic) analogous to any of the foregoing, or
(viii) take any corporate action in furtherance of any of the foregoing; or
(h) a proceeding or case shall be commenced in respect of the
Borrower or any Restricted Subsidiary, without its application or consent,
in any court of competent jurisdiction, seeking (i) the liquidation,
reorganization, moratorium, dissolution, winding up, or composition or
readjustment of its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of it or of all or any substantial part
of its assets, or (iii) similar relief in respect of it under any law
providing for the relief of debtors, and such proceeding or case described
in clause (i), (ii) or (iii) shall continue undismissed, or
93
unstayed and in effect, for a period of 45 days, or an order for relief
shall be entered in an involuntary case under the Federal Bankruptcy Code
(as now or hereafter in effect) against the Borrower or any Restricted
Subsidiary or action under the laws of any jurisdiction (foreign or
domestic) analogous to any of the foregoing shall be taken with respect to
the Borrower or any Restricted Subsidiary and shall continue undismissed,
or unstayed and in effect, for a period of 45 days; or
(i) a final judgment or decree for the payment of money shall be
rendered by a court of competent jurisdiction against the Borrower or any
Restricted Subsidiary which, either alone or together with other
outstanding judgments or decrees against the Borrower or any one or more
Restricted Subsidiaries, shall aggregate more than $5,000,000, and the
Borrower or such Subsidiary, as the case may be, shall not discharge the
same or provide for its discharge in accordance with its terms within 60
days from the date of entry thereof or within such longer period
(including, without limitation, any period during which the Borrower shall
be contesting a denial of coverage of its liability in respect of such
judgment by a reputable insurance carrier) during which execution of such
judgment shall have been stayed; or
(j) any representation or warranty made by the Borrower or a
Restricted Subsidiary in this Agreement or the Guaranty Agreement or in any
certificate or other instrument delivered hereunder or thereunder or
pursuant hereto or thereto or in connection with any provision hereof shall
prove to have been false or incorrect or breached in any material respect
on the date as of which made; or
(k) (i) any Borrower Group Member shall fail to pay when due any
amount which it shall have become liable to pay to the PBGC or to a Plan or
Multiemployer Plan under Title IV of ERISA; (ii) any Borrower Group Member
shall withdraw from a Multiple Employer Plan during a plan year in which it
is a substantial employer (as such term is defined in Section 4001(a)(2) of
ERISA), or shall be treated as having so withdrawn under Section 4062(e) of
ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of
intent to terminate any Plan or Multiemployer Plan shall be filed under
Title IV of ERISA by any Borrower Group Member, any plan administrator or
any combination of the foregoing; (iv) the PBGC shall institute proceedings
under Title IV of ERISA to terminate or to cause a trustee to be appointed
to administer any Plan or Multiemployer Plan; (v) any Borrower Group Member
shall withdraw from any Multiemployer Plan ; (vi) any Plan shall have an
Unfunded Current Liability; or (vii) any prohibited transaction (as defined
in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject any Borrower Group Member to
any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section
4975 of the Code, or under any agreement or other instrument pursuant to
which such Borrower Group Member has agreed or is required to indemnify any
Person against any such liability; and there shall result from any such
event or events referred to in the foregoing subdivisions (k)(i) through
(k)(vii) a material risk of incurring a liability in excess of $5,000,000;
or
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(l) a Change of Control shall occur; or
(m) the Guaranty given by any Restricted Subsidiary pursuant to the
Guaranty Agreement shall cease to be in full force and effect other than by
reason of the release of such Restricted Subsidiary pursuant to Section
8.18 from its obligations under the Guaranty Agreement, or any Restricted
Subsidiary or any Person acting by or on behalf of such Restricted
Subsidiary shall deny or disaffirm such Restricted Subsidiary's obligations
under the Guaranty Agreement; or default shall be made by any Restricted
Subsidiary in the performance or observance of any covenant, provision,
agreement or condition contained in the Guaranty Agreement, and such
default (i) shall have continued for a period of 30 days after the earlier
of (x) the date on which any Responsible Officer of the Borrower first has
knowledge of such default, through notice or otherwise, and (y) the giving
of notice to the Borrower of such default by the Administrative Agent or
any of the Lenders, and (ii) either alone or considered together with all
such defaults, shall have or shall be reasonably likely to have a Material
Adverse Effect;
SECTION 10.02. Acceleration; Remedies.
----------------------
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the Lenders or cured
to the satisfaction of the Lenders (pursuant to the voting procedures in Section
12.07), the Administrative Agent, upon the request of the Required Lenders,
shall, by written notice to the Borrower, take any of the following actions
without prejudice to the rights of the Administrative Agent or any Lender to
enforce its claims against the Borrower, except as otherwise specifically
provided for herein:
(i) Termination of Commitments. Declare the Commitments terminated
--------------------------
whereupon the Commitments shall be immediately terminated.
(ii) Acceleration of Obligations. Declare the unpaid principal of
---------------------------
and any accrued interest in respect of all Loans, any reimbursement
obligations arising from drawings under Letters of Credit and any and all
other indebtedness or obligations of any and every kind owing by the
Borrower to any of the Lenders hereunder to be due whereupon the same shall
be immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
(iii) Cash Collateral. Contemporaneously with or subsequent to the
---------------
exercise of its right under clause (ii) of this Section 10.02, direct the
Borrower to pay (and the Borrower agree that upon receipt of such
direction, or upon the occurrence of an Event of Default under Section
10.01(g) or (h), it will immediately pay) to the Administrative Agent
additional cash, to be held by the Administrative Agent, for the benefit of
the Lenders, in a cash collateral account as additional security for the
LOC Obligations in respect of subsequent drawings under all then
outstanding Letters of Credit in an amount equal to the maximum aggregate
amount which may be drawn under all Letters of Credits then outstanding.
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(iv) Enforcement of Rights. Enforce (A) any and all rights and
---------------------
interests created and existing under the Credit Documents and (B) all
rights of set-off to the extent available under, and to the extent
exercised in accordance with, applicable law.
Notwithstanding the foregoing, if an Event of Default specified in Section
10.01(g) or (h) shall occur, then the Commitments shall automatically terminate
and all Loans, reimbursement obligations arising from drawings under Letters of
Credit, all accrued interest in respect thereof, all accrued and unpaid Fees and
other indebtedness or obligations owing to the Lenders hereunder automatically
shall immediately become due and payable without the giving of any notice or
other action by the Administrative Agent.
ARTICLE XI.
ADMINISTRATIVE AGENT
SECTION 11.01. Appointment and Authorization.
-----------------------------
Each Lender hereby irrevocably appoints and authorizes the Administrative
Agent to take such action on its behalf and to exercise such powers under this
Agreement and the other Credit Documents as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto.
SECTION 11.02. General Immunity.
----------------
In performing its duties to the Lenders as Administrative Agent hereunder,
the Administrative Agent will take the same care as it takes in connection with
credit transactions in which it alone is interested. However, neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to the Lenders for any action taken or omitted to be taken by it
or them hereunder or in connection herewith except for its own or their own
gross negligence or willful misconduct.
SECTION 11.03. Consultation with Professionals.
-------------------------------
The Administrative Agent may consult with legal counsel and other
professionals selected by it and shall not be liable to the Lenders for any
action taken or suffered in good faith by it in accordance with the advice of
such counsel and professionals in their respective areas of expertise.
SECTION 11.04. Documents.
---------
The Administrative Agent shall not be under any duty to examine or pass
upon the effectiveness, genuineness or validity of this Agreement or any of the
other Credit Documents or any other instrument or document furnished pursuant
hereto or in connection herewith, and the
96
Administrative Agent shall be entitled to assume that the same are valid,
effective and genuine and what they purport to be.
SECTION 11.05. Rights as a Lender.
------------------
With respect to their respective Commitments, the Administrative Agent
shall have the same rights and powers hereunder as any Lender and may exercise
the same as though it were not the Administrative Agent, as the case may be, and
the terms "Lender" and "Lenders" shall, as applicable and unless the context
otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend money to and
generally engage in any kind of banking or trust business with the Borrower as
if it were not the Administrative Agent as the case may be.
SECTION 11.06. Responsibility of Administrative Agent.
--------------------------------------
It is expressly understood and agreed that the obligations of the
Administrative Agent hereunder to the Lenders are only those expressly set forth
in this Agreement and the other Credit Documents and that the Administrative
Agent shall be entitled to assume that no Default or Event of Default has
occurred and is continuing unless the Administrative Agent has actual knowledge
of such fact or has received notice from a Lender or the Borrower that such
Lender or the Borrower considers that a Default or an Event of Default has
occurred and is continuing and specifying the nature thereof.
SECTION 11.07. Action by Administrative Agent.
------------------------------
So long as the Administrative Agent shall be entitled, pursuant to Section
11.06, to assume that no Default or Event of Default has occurred and is
continuing, the Administrative Agent shall be entitled to use its discretion
with respect to exercising or refraining from exercising any rights that may be
vested in it by, or with respect to taking or refraining from taking any action
or actions that it may be able to take under or in respect of, this Agreement or
any of the other Credit Documents. The Administrative Agent shall incur no
liability to the Lenders under or in respect of this Agreement or any of the
other Credit Documents by acting upon any notice, consent, certificate, warranty
or other paper or instrument believed by it to be genuine or authentic or to be
signed by the proper party or parties, or with respect to anything that it may
do or refrain from doing in the reasonable exercise of its judgment, or that may
seem to it to be necessary or desirable under the circumstances.
Without limiting the generality of the foregoing provisions of this Section
11.07, the Administrative Agent shall be conclusively entitled to assume that
the conditions precedent set forth in Section 5.03 have been satisfied unless it
shall have acquired actual knowledge that any such condition precedent has not
been satisfied.
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SECTION 11.08. Notices of Event of Default, Etc..
---------------------------------
In the event that the Administrative Agent shall have acquired actual
knowledge of any Default or Event of Default, the Administrative Agent shall
promptly give notice thereof to the Lenders, and the Administrative Agent may
take such action and assert such rights with respect to taking or refraining
from taking any action or actions that it may be able to take under or in
respect of, this Agreement or any of the other Credit Documents, as it deems to
be advisable in its discretion for the protection of the interests of the
Lenders, including, without limitation, the exercise of rights and remedies
under Article X and under any of the other Credit Documents; provided that, as
between the Administrative Agent and the Lenders only, after the occurrence of
an Event of Default, the Administrative Agent (i) shall not exercise any rights
or remedies granted to it hereunder, under any other of the Credit Documents, or
otherwise available to it at law or in equity, without the approval of the
Required Lenders (or all of the Lenders, if otherwise required by this
Agreement) and (ii) upon the direction of the Required Lenders (or all of the
Lenders, if otherwise required by this Agreement), shall exercise such rights
and remedies as so directed; provided further that, notwithstanding the above,
the Administrative Agent shall not be required to take any action which would
expose the Administrative Agent to personal liability or which is contrary to
law unless it shall be indemnified to its satisfaction against any and all
amounts, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature which
may be imposed on, incurred by or asserted against the Administrative Agent by
reason of taking or continuing to take any such action.
SECTION 11.09. Indemnification of Administrative Agent.
---------------------------------------
The Lenders agree to indemnify the Administrative Agent (to the extent not
reimbursed by the Borrower), ratably according to their respective Commitment
Percentages, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement or any of the other Credit Documents or any action taken or omitted by
the Administrative Agent under this Agreement or any of the other Credit
Documents; provided that, no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation to the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees) incurred by
the Administrative Agent in connection with the preparation, execution,
delivery, modification, amendment or enforcement (whether through negotiations,
legal proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any of the other Credit Documents, to
the extent not reimbursed by the Borrower.
SECTION 11.10. No Representations.
------------------
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Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
the Administrative Agent or any of its directors, employees, agents, attorneys-
in-fact or affiliates hereafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to such Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigations into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
Loans hereunder and to enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Credit Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. The Administrative Agent agrees
that (i) it shall promptly deliver to each Lender copies of all notices, reports
and other documents expressly required to be furnished to the Administrative
Agent by the Borrower or any Restricted Subsidiary pursuant to any of the Credit
Documents and (ii) upon the reasonable request of any Lender, it shall promptly
deliver to such Lender such other information as the Administrative Agent shall
receive regarding the Borrower or any Restricted Subsidiary or the performance
of the respective obligations of the Borrower and the Restricted Subsidiaries
under the Credit Documents; otherwise, the Administrative Agent shall have no
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, financial and other
condition or creditworthiness of the Borrower which may come into the possession
of the Administrative Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates.
SECTION 11.11. Resignation; Removal.
--------------------
Subject to the appointment and acceptance of a successor as provided below,
the acting Administrative Agent may resign at any time by notifying the Lenders
and the Borrower or may be removed by the Borrower in its sole discretion at any
time by notifying the Administrative Agent and the other Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor acceptable to the Borrower, which successor shall be a Lender that is
a bank having a combined capital and surplus of at least $500,000,000 or an
affiliate of any such bank. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the delivery of notice of resignation by or removal of the existing
Administrative Agent pursuant to the first sentence of this Section 11.11, then
the existing Administrative Agent (in the case of resignation by the existing
Administrative Agent) or the Borrower (in the case of removal by the Borrower of
the existing Administrative Agent) may, on behalf of the Lenders, appoint a
successor satisfying the requirements set forth above. Upon the acceptance of
any appointment hereunder by a successor Lender, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring or removed
99
Administrative Agent, and the retiring or removed Administrative Agent shall be
discharged from its duties and obligations hereunder. After an Administrative
Agent's resignation or removal hereunder, the provisions of this Article and
Section 12.06 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
SECTION 11.12. Syndication Agent, Documentation Agent, Co-Arranger and
-------------------------------------------------------
Co-Agent.
--------
The Syndication Agent, Documentation Agent, Co-Arranger and Co-Agent, in
their capacities as such, shall have no rights, powers, duties or obligations
under this Agreement or any of the other Credit Documents.
ARTICLE XII.
MISCELLANEOUS
SECTION 12.01. Notices.
-------
Notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed or sent by
telex, telecopy, graphic scanning or other telegraphic communications equipment
of the sending party, as follows:
(a) if to the Borrower, to it at 0000 Xxxxxxxx Xxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attention of Vice President-Finance and Controller (Facsimile
No. 410-309-6296);
(b) if to the Administrative Agent to it at:
(i) with respect to operational matters, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxxx Center, 00xx Xxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, Attention of Xxxxx Xxxxxxxx, Agency Services (Facsimile No. 704-386-
9923); and
(ii) in all other cases, 0000 Xxxxxxxxx Xxxxx, 6th Floor, MD2-600-06-
05, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention of Xxxxxxx Xxxxxxx, Vice
President (Facsimile No. 301-571-0719);
(c) if to a Lender, to it at its address (or telecopy number) set forth in
Schedule I or in the assignment agreement pursuant to which such Lender became a
----------
party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telex, telecopy, graphic scanning or other telegraphic communications equipment
of the sender, or on the date five (5) Business Days after dispatch by certified
or registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 12.01 or at such other
address or
100
telex, telecopy or other number as shall be designated by such party in a notice
to each other party complying with the terms of this Section 12.01.
SECTION 12.02. Survival of Agreement.
---------------------
All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the Lenders and shall survive the making of Loans by
the Lenders hereunder regardless of any investigation made by the Lenders or on
their behalf, and shall continue in full force and effect as long as any Loans
or any amounts are outstanding under this Agreement or any of the other Credit
Documents and so long as the Commitments have not been terminated.
SECTION 12.03. Binding Effect.
--------------
This Agreement shall become effective when it shall have been executed by
the Borrower and the Administrative Agent, and when the Administrative Agent
shall have received copies hereof (telefaxed or otherwise) which, when taken
together, bear the signatures of each Lender, and when the other conditions set
out in Section 5.04 shall have been satisfied or waived, and thereafter this
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and their respective successors and
assigns.
SECTION 12.04. Benefit of Agreement.
--------------------
(a) Generally. This Agreement shall be binding upon and inure to the
---------
benefit of and be enforceable by the respective successors and assigns of the
parties hereto; provided that the Borrower may not assign or transfer any of its
--------
interests without prior written consent of the Lenders; provided further that
-------- -------
the rights of each Lender to transfer, assign or grant participations in its
rights and/or obligations hereunder shall be limited as set forth in this
Section 12.04, provided, however, that nothing herein shall prevent or prohibit
-------- -------
any Lender from (i) pledging its Loans hereunder to a Federal Reserve Bank in
support of borrowings made by such Lender from such Federal Reserve Bank, or
(ii) granting assignments or participations in such Lender's Loans and/or
Commitments hereunder to its parent company and/or to any affiliate of such
Lender which is at least 50% owned by such Lender or its parent company. To the
extent required in connection with a pledge of Loans by any Lender to a Federal
Reserve Bank, the Borrower agrees that, upon request of any such Lender, it will
promptly provide such Lender a promissory note evidencing the repayment
obligations of the Borrower with respect to the principal of and interest on the
Loans of such Lender arising under Section 2.01, such promissory note to be in a
form reasonably satisfactory to the Borrower and the applicable Lender.
(b) Assignments by Lenders. Each Lender may assign all or a portion of its
----------------------
rights and obligations hereunder pursuant to an assignment agreement
substantially in the form of Schedule XIV to one or more Eligible Assignees,
------------
provided that any such assignment shall be in a minimum aggregate amount of
--------
$5,000,000 of the Commitments and in integral multiples of $1,000,000 above such
amount, and that each such assignment shall be of a constant, and not a
101
varying, percentage of all of the assigning Lender's rights and obligations
under this Agreement. Any assignment hereunder shall be effective upon delivery
to the Administrative Agent of written notice of the assignment together with a
transfer fee of $2,500 payable to the Administrative Agent for its own account.
The assigning Lender will give prompt notice to the Administrative Agent and the
Borrower of any such assignment. Upon the effectiveness of any such assignment
(and after notice to the Borrower as provided herein), the assignee shall become
a "Lender" for all purposes of this Agreement and the other Credit Documents
and, to the extent of such assignment, the assigning Lender shall be relieved of
its obligations hereunder to the extent of the Loans, Participation Interests
and Commitments being assigned. By executing and delivering an assignment
agreement in accordance with this Section 12.04(b), the assigning Lender
thereunder and the assignee thereunder shall be deemed to confirm to and agree
with each other and the other parties hereto as follows: (i) such assigning
Lender warrants that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim; (ii) except as set forth
in clause (i) above, such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, any of the other
Credit Documents or any other instrument or document furnished pursuant hereto
or thereto, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any of the other Credit Documents or any
other instrument or document furnished pursuant hereto or thereto or the
financial condition of the Borrower or any Restricted Subsidiary or the
performance or observance by the Borrower or any Restricted Subsidiary of any of
its obligations under this Agreement, any of the other Credit Documents or any
other instrument or document furnished pursuant hereto or thereto; (iii) such
assignee represents and warrants that it is legally authorized to enter into
such assignment agreement; (iv) such assignee confirms that it has received a
copy of this Agreement, the other Credit Documents and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such assignment agreement; (v) such assignee will
independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Credit Documents;
(vi) such assignee appoints and authorizes the Administrative Agent to take such
action on its behalf and to exercise such powers under this Agreement or any
other Credit Document as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of this Agreement and the
other Credit Documents are required to be performed by it as a Lender.
(c) Participations. Each Lender may sell, transfer, grant or assign
--------------
participations in all or any part of such Lender's interests and obligations
hereunder; provided that (i) such selling Lender shall remain a "Lender" for all
--------
purposes under this Agreement and the other Credit Documents (such selling
Lender's obligations under this Agreement remaining unchanged) and the
participant shall not constitute a Lender hereunder, (ii) no such participant
shall have, or be granted, rights to approve any amendment or waiver relating to
this Agreement or any of the other Credit Documents except with respect to any
such amendment or waiver which would, under the terms of Section 12.07 (i), (ii)
or (v), require the consent of all of the Lenders, (iii) sub-
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participations by the participant (except to an affiliate, parent company or
affiliate of a parent company of the participant) shall be prohibited and (iv)
any such participations shall be in an integral multiple of $5,000,000 of the
Commitments. In the case of any such participation, the participant shall not
have any rights under this Agreement or under any of the other Credit Documents
(the participant's rights against the selling Lender in respect of such
participation to be those set forth in the participation agreement with such
Lender creating such participation) and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not sold such participation,
provided, however, that such participant shall be entitled to receive additional
-------- -------
amounts under Sections 3.05 and 3.07 on the same basis as if it were a Lender,
except that all claims and petitions for payment and all payments made pursuant
to such Sections shall be made through such selling Lender and except that a
participant shall not be entitled to receive pursuant to such provisions an
amount larger than its share of the amount of which the selling Lender would
have been entitled.
SECTION 12.05. No Waiver; Remedies Cumulative.
------------------------------
No failure or delay on the part of the Administrative Agent or any Lender
in exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower and the Administrative
Agent or any Lender shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any rights or
remedies which the Administrative Agent or any Lender would otherwise have. No
notice to or demand on the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Administrative Agent or the Lenders to
any other or further action in any circumstances without notice or demand.
SECTION 12.06. Payment of Expenses, Etc.
------------------------
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
expenses (A) of the Administrative Agent in connection with the negotiation,
preparation, execution and delivery and administration of this Agreement and the
other Credit Documents and the documents and instruments referred to therein and
any amendment, waiver or consent relating hereto and thereto including, but not
limited to, any such amendments, waivers or consents resulting from or related
to any work-out, renegotiation or restructure relating to the performance by the
Borrower under this Agreement and (B) of the Administrative Agent and the
Lenders in connection with enforcement of the Credit Documents and the documents
and instruments referred to therein and/or collection of the obligations of any
of the Borrower and the Restricted Subsidiaries pursuant to the Credit Documents
(including, without limitation, in connection with any such enforcement or
collection, the reasonable fees and disbursements of counsel for the
Administrative Agent and each of the Lenders); (ii) pay and hold each of the
Lenders harmless from and against any and all present and future stamp and other
similar taxes with respect to the foregoing matters and save each of the Lenders
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission (other than to the extent
103
attributable to such Lender) to pay such taxes; and (iii) indemnify each Lender
(including the Issuing Lender), its officers, directors, employees,
representatives and agents from and hold each of them harmless against any and
all losses, liabilities, claims, damages or reasonable out-of-pocket expenses
incurred by any of them as a result of, or arising out of, or in any way related
to, or by reason of, any investigation, litigation or other proceeding (whether
or not any Lender is a party thereto) related to the entering into and/or
performance of any Credit Document, to the use of proceeds of any Loans
hereunder, to the use of or any drawings under any Letters of Credit issued
hereunder, to the consummation of any other transactions contemplated in any
Credit Document or to the Reorganization, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of gross negligence or willful misconduct on the part of the Person to be
indemnified).
SECTION 12.07. Amendments, Waivers and Consents.
--------------------------------
Neither this Agreement nor any other Credit Document nor any of the terms
hereof or thereof may be amended, changed, waived, discharged or terminated
unless such amendment, change, waiver, discharge or termination is in writing
signed by the Required Lenders, provided that no such amendment, change, waiver,
--------
discharge or termination shall, without the consent of each Lender, (i) extend
the scheduled maturities (including the final maturity and any mandatory
prepayments) of any Revolving Loan or LOC Obligation, or any portion thereof, or
reduce the rate or extend the time of payment of interest (other than as a
result of waiving the applicability of any post-default increase in interest
rates) thereon or fees hereunder or reduce the principal amount thereof, or
increase the Commitment of any Lender over the amount thereof in effect (it
being understood and agreed that a waiver of any Default or Event of Default
shall not constitute a change in the terms of any Commitment of any Lender),
(ii) except as otherwise permitted by Section 8.18, release any Guarantor from
its obligations under the Guaranty Agreement, (iii) amend, modify or waive any
provision of this Section or Section 3.05, 3.07, 4.02, 4.03, 4.04, 4.05,
10.01(a) or (b), (iv) reduce any percentage specified in, or otherwise modify,
the definition of "Required Lenders" or (v) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Credit Documents. No provision of Section 2.02 may be
amended, modified or waived without the consent of the Swingline Lender and no
provision of Article XI may be amended without the consent of the Administrative
Agent.
SECTION 12.08. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument. It shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
104
SECTION 12.09. Headings.
--------
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.
SECTION 12.10. Survival of Indemnification.
---------------------------
All indemnities set forth herein, including, without limitation, in
Section 3.05, 3.07, 4.05, 11.09 or 12.06 shall survive the execution and
delivery of this Agreement, and the making of the Loans, the repayment of the
Loans and other obligations and the termination of the Commitments hereunder.
SECTION 12.11. Governing Law; Submission to Jurisdiction; Venue;
------------------------------------------------
Waiver of Jury Trial.
--------------------
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND ALL AMENDMENTS,
SUPPLEMENTS, MODIFICATIONS, WAIVERS AND CONSENTS RELATING HERETO OR THERETO
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW RULES OTHER THAN SECTIONS
5-1401 OR 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
(b) THE BORROWER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND
IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT OR
ANY OF THE OTHER CREDIT DOCUMENTS MAY BE LITIGATED IN SUCH COURTS, AND THE
BORROWER WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED ON IMPROPER VENUE OR FORUM
-----
NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND WAIVES
--------------
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY MAIL OR MESSENGER DIRECTED TO IT AS PROVIDED IN
SECTION 12.01 AND THAT SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE
EARLIER OF ACTUAL RECEIPT OR FIVE BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN
MAILED TO THE BORROWER IN ACCORDANCE HEREWITH. NOTHING CONTAINED IN THIS SECTION
SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR THE LENDERS TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR
PROCEEDING IN THE COURTS OF ANY JURISDICTION AGAINST THE BORROWER OR TO ENFORCE
A JUDGMENT OBTAINED IN THE COURTS OF ANY OTHER JURISDICTION. THE BORROWER
ACKNOWLEDGES THAT THE TIME AND EXPENSE REQUIRED FOR TRIAL BY JURY EXCEED THE
TIME AND EXPENSE FOR A BENCH TRIAL AND HEREBY WAIVES, TO THE
105
EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 12.12. Severability.
------------
If any provision of this Agreement is determined to be illegal, invalid
or unenforceable, such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be construed without
giving effect to the illegal, invalid or unenforceable provisions.
SECTION 12.13. Term.
----
The term of this Agreement shall be until no Loans, LOC Obligations or
any other amounts payable hereunder shall remain outstanding and until all of
the Commitments hereunder shall have terminated.
SECTION 12.14. Entirety.
--------
This Agreement and the other Credit Documents represent the entire
agreement of the parties hereto and supersede all prior agreements and
understandings, oral or written, if any, including any commitment letters or
correspondence, relating to this Agreement or any of the other Credit Documents
or the transactions contemplated herein and therein.
[Remainder of page intentionally left blank.]
106
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officers as of the day and year
first above written.
JP FOODSERVICE DISTRIBUTORS, INC.
By /s/ Xxxxxx X. Xxxxx
----------------------------------
Title Vice President
-------------------------------
NATIONSBANK, N.A.,
as Administrative Agent and a Lender
By
----------------------------------
Title
-------------------------------
THE CHASE MANHATTAN BANK,
as Syndication Agent and a Lender
By
----------------------------------
Title
-------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent and a Lender
By
----------------------------------
Title
-------------------------------
PNC BANK, NATIONAL ASSOCIATION,
as Co-Agent and a Lender
By
----------------------------------
Title
-------------------------------
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officers as of the day and year
first above written.
JP FOODSERVICE DISTRIBUTORS, INC.
By
----------------------------------
Title
-------------------------------
NATIONSBANK, N.A.,
as Administrative Agent and a Lender
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Title Senior Vice President
-------------------------------
THE CHASE MANHATTAN BANK,
as Syndication Agent and a Lender
By
----------------------------------
Title
-------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent and a Lender
By
---------------------------------
Title
-------------------------------
PNC BANK, NATIONAL ASSOCIATION,
as Co-Agent and a Lender
By
----------------------------------
Title
-------------------------------
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officers as of the day and year
first above written.
JP FOODSERVICE DISTRIBUTORS, INC.
By
----------------------------------
Title
-------------------------------
NATIONSBANK, N.A.,
as Administrative Agent and a Lender
By
----------------------------------
Title
-------------------------------
THE CHASE MANHATTAN BANK,
as Syndication Agent and a Lender
By /s/ Xxxxx X. Xxxxx
----------------------------------
Title Vice President
-------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent and a Lender
By
----------------------------------
Title
-------------------------------
PNC BANK, NATIONAL ASSOCIATION,
as Co-Agent and a Lender
By
----------------------------------
Title
-------------------------------
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officers as of the day and year
first above written.
JP FOODSERVICE DISTRIBUTORS, INC.
By
----------------------------------
Title
-------------------------------
NATIONSBANK, N.A.,
as Administrative Agent and a Lender
By
----------------------------------
Title
-------------------------------
THE CHASE MANHATTAN BANK,
as Syndication Agent and a Lender
By
----------------------------------
Title
-------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent and a Lender
By /s/ Xxx X. Xxxx
----------------------------------
Title Vice President
-------------------------------
PNC BANK, NATIONAL ASSOCIATION,
as Co-Agent and a Lender
By
----------------------------------
Title
-------------------------------
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officers as of the day and year
first above written.
JP FOODSERVICE DISTRIBUTORS, INC.
By
----------------------------------
Title
-------------------------------
NATIONSBANK, N.A.,
as Administrative Agent and a Lender
By
----------------------------------
Title
-------------------------------
THE CHASE MANHATTAN BANK,
as Syndication Agent and a Lender
By
----------------------------------
Title
-------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent and a Lender
By
----------------------------------
Title
-------------------------------
PNC BANK, NATIONAL ASSOCIATION,
as Co-Agent and a Lender
By [SIGNATURE APPEARS HERE]
----------------------------------
Title Vice President
-------------------------------
BANK OF AMERICA, NT & SA
By [SIGNATURE APPEARS HERE]
----------------------------------
Title
-------------------------------
UNITED STATES NATIONAL BANK OF OREGON
By
----------------------------------
Title
-------------------------------
THE FUJI BANK, LIMITED, New York Branch
By
----------------------------------
Title
-------------------------------
BANK OF AMERICA, NT & SA
By
----------------------------------
Title
-------------------------------
UNITED STATES NATIONAL BANK OF OREGON
By /s/ Xxxxx Xxxxx
----------------------------------
Title SENIOR ViCE PRESIDENT
-------------------------------
THE FUJI BANK, LIMITED, New York Branch
By
----------------------------------
Title
-------------------------------
BANK OF AMERICA, NT & SA
By
----------------------------------
Title
-------------------------------
UNITED STATES NATIONAL BANK OF OREGON
By
----------------------------------
Title
-------------------------------
THE FUJI BANK, LIMITED, New York Branch
By /s/ Xxxxxxxx Xxxxxx
----------------------------------
Title Senior Vice President
-------------------------------
