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Credit Agreement
Dated as of
OCTOBER 8, 1996
Among
XXXX-XXXXX COMPANY,
THE BANKS SIGNATORY HERETO,
XXXXXX TRUST AND SAVINGS BANK,
as Administrative Agent
and
BANK OF MONTREAL and PNC BANK, NATIONAL ASSOCIATION,
as Syndication Agents
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TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. THE COMMITTED FACILITIES. . . . . . . . . . . . . . . . . . . 1
Section 1.1. The Loan Commitments . . . . . . . . . . . . . . . . . . 1
Section 1.2. Letters of Credit. . . . . . . . . . . . . . . . . . . . 1
Section 1.3. Applicable Interest Rates. . . . . . . . . . . . . . . . 4
(a) Base Rate Loans . . . . . . . . . . . . . . . . . . 4
(b) Eurodollar Loans. . . . . . . . . . . . . . . . . . 5
(c) Applicable Margin . . . . . . . . . . . . . . . . . 6
(d) Rate Determinations . . . . . . . . . . . . . . . . 7
Section 1.4. Minimum Borrowing Amount . . . . . . . . . . . . . . . . 7
Section 1.5. Manner of Borrowing Committed Loans. . . . . . . . . . . 7
(a) Notice to the Administrative Agent. . . . . . . . . 7
(b) Notice to the Banks . . . . . . . . . . . . . . . . 8
(c) Borrower's Failure to Notify. . . . . . . . . . . . 8
(d) Disbursement of Committed Loans . . . . . . . . . . 8
Section 1.6. The Swing Line . . . . . . . . . . . . . . . . . . . . . 8
(a) Swing Loans . . . . . . . . . . . . . . . . . . . . 8
(b) Minimum Borrowing Amount. . . . . . . . . . . . . . 9
(c) Interest on Swing Loans . . . . . . . . . . . . . . 9
(d) Requests for Swing Loans. . . . . . . . . . . . . . 9
(e) Refunding Loans . . . . . . . . . . . . . . . . . . 9
(f) Participations. . . . . . . . . . . . . . . . . . . 10
SECTION 2. THE COMPETITIVE BID FACILITY . . . . . . . . . . . . . . . . 10
Section 2.1. The Bid Loans. . . . . . . . . . . . . . . . . . . . . . 10
Section 2.2. Requests for Bid Loans . . . . . . . . . . . . . . . . . 11
(a) Requests and Confirmations. . . . . . . . . . . . . 11
(b) Invitation to Bid . . . . . . . . . . . . . . . . . 11
(c) Bids. . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.3. Notice of Bids; Advice of Rate . . . . . . . . . . . . . 12
Section 2.4. Acceptance or Rejection of Bids. . . . . . . . . . . . . 12
Section 2.5. Notice of Acceptance or Rejection of Bids. . . . . . . . 13
(a) Notice to Banks Making Bids . . . . . . . . . . . . 13
(b) Disbursement of Bid Loans . . . . . . . . . . . . . 13
(c) Notice to the Banks . . . . . . . . . . . . . . . . 14
Section 2.6. Interest on Bid Loans. . . . . . . . . . . . . . . . . . 14
Section 2.7. Telephonic Notice. . . . . . . . . . . . . . . . . . . . 14
SECTION 3. GENERAL PROVISIONS APPLICABLE TO ALL LOANS. . . . . . . . . . 14
Section 3.1. Interest Periods . . . . . . . . . . . . . . . . . . . . 14
Section 3.2. Maturity of Loans. . . . . . . . . . . . . . . . . . . . 15
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Section 3.3. Voluntary Prepayments. . . . . . . . . . . . . . . . . . 15
(a) Committed Loans . . . . . . . . . . . . . . . . . . 15
(b) Fixed Rate Loans. . . . . . . . . . . . . . . . . . 16
(c) Reborrowings. . . . . . . . . . . . . . . . . . . . 16
Section 3.4. Default Rate . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.5. The Notes. . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.6. Commitment Reductions and Terminations . . . . . . . . . 17
(a) Voluntary . . . . . . . . . . . . . . . . . . . . . 17
(b) Upon Incurrence of Indebtedness or Securitization . 17
(c) Unused Credit . . . . . . . . . . . . . . . . . . . 17
(d) Scheduled Mandatory Reduction . . . . . . . . . . . 18
(e) Termination Date. . . . . . . . . . . . . . . . . . 18
(f) Effect of Termination or Reduction. . . . . . . . . 18
Section 3.7. Mandatory Prepayments. . . . . . . . . . . . . . . . . . 18
(a) Out of Proceeds of Indebtedness or Securitization . 18
(b) Upon Change of Control. . . . . . . . . . . . . . . 18
(c) Upon Termination of or Reduction in Commitments . . 19
Section 3.8. Funding Indemnity. . . . . . . . . . . . . . . . . . . . 19
Section 3.9. Use of Proceeds. . . . . . . . . . . . . . . . . . . . . 19
SECTION 4. FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 4.1. Facility Fee . . . . . . . . . . . . . . . . . . . . . . 20
Section 4.2. Letter of Credit Fees. . . . . . . . . . . . . . . . . . 20
Section 4.3. Bid Loan Fee . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.4. Agents' Fees . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.5. Fee Calculations . . . . . . . . . . . . . . . . . . . . 21
SECTION 5. PLACE AND APPLICATION OF PAYMENTS . . . . . . . . . . . . . . 21
Section 5.1. Place and Application of Payments. . . . . . . . . . . . 21
SECTION 6. DEFINITIONS; INTERPRETATION . . . . . . . . . . . . . . . . . 22
Section 6.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.2. Interpretation . . . . . . . . . . . . . . . . . . . . . 34
SECTION 7. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . 34
Section 7.1. Corporate Organization and Authority . . . . . . . . . . 35
Section 7.2. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 35
Section 7.3. Corporate Authority and Validity of Obligations. . . . . 35
Section 7.4. Financial Statements . . . . . . . . . . . . . . . . . . 36
Section 7.5. Material Adverse Change. . . . . . . . . . . . . . . . . 36
Section 7.6. No Litigation; No Labor Controversies. . . . . . . . . . 36
Section 7.7. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.8. Approvals. . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.9. ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . 37
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Section 7.10. Government Regulation. . . . . . . . . . . . . . . . . . 38
Section 7.11. Margin Stock . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.12. Licenses and Authorizations; Compliance with Laws. . . . 38
Section 7.13. Ownership of Property; Liens . . . . . . . . . . . . . . 38
Section 7.14. No Burdensome Restrictions; Compliance with Agreements . 39
Section 7.15. Tender Offer . . . . . . . . . . . . . . . . . . . . . . 39
Section 7.16. Merger Agreement . . . . . . . . . . . . . . . . . . . . 39
Section 7.17. Disclosure . . . . . . . . . . . . . . . . . . . . . . . 40
(a) Loan. . . . . . . . . . . . . . . . . . . . . . . . 40
(b) Acquisition . . . . . . . . . . . . . . . . . . . . 40
(c) Generally . . . . . . . . . . . . . . . . . . . . . 40
SECTION 8. CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . . 40
Section 8.1. Initial Borrowing. . . . . . . . . . . . . . . . . . . . 41
Section 8.2. All Credit . . . . . . . . . . . . . . . . . . . . . . . 41
Section 8.3. Additional Conditions to Loans other than Refunding
Borrowings . . . . . . . . . . . . . . . . . . . . . . . 42
Section 8.4. Initial Tender Credit. . . . . . . . . . . . . . . . . . 42
Section 8.5. Initial Merger Credit. . . . . . . . . . . . . . . . . . 44
Section 8.6. Debt Refinancing Credit. . . . . . . . . . . . . . . . . 44
SECTION 9. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.1. Corporate Existence; Subsidiaries. . . . . . . . . . . . 45
Section 9.2. Maintenance. . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.3. Taxes and Assessments. . . . . . . . . . . . . . . . . . 46
Section 9.4. Insurance. . . . . . . . . . . . . . . . . . . . . . . . 46
Section 9.5. Financial Reports. . . . . . . . . . . . . . . . . . . . 46
Section 9.6. Inspection . . . . . . . . . . . . . . . . . . . . . . . 48
Section 9.7. Current Ratio. . . . . . . . . . . . . . . . . . . . . . 48
Section 9.8. Tangible Net Worth . . . . . . . . . . . . . . . . . . . 48
Section 9.9. Leverage Ratio . . . . . . . . . . . . . . . . . . . . . 48
Section 9.10. Interest Coverage Ratio. . . . . . . . . . . . . . . . . 49
Section 9.11. Long-Term Debt . . . . . . . . . . . . . . . . . . . . . 49
Section 9.12. Limits on Aggregate Indebtedness . . . . . . . . . . . . 49
(a) Interim Limit on Borrower . . . . . . . . . . . . . 49
(b) Permanent Limit on Subsidiaries . . . . . . . . . . 49
Section 9.13. Liens. . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 9.14. Investments, Acquisitions, Loans, Advances
and Guaranties . . . . . . . . . . . . . . . . . . . . . 50
Section 9.15. Mergers, Consolidations and Sales. . . . . . . . . . . . 52
Section 9.16. Maintenance of Subsidiaries. . . . . . . . . . . . . . . 53
Section 9.17. ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.18. Compliance with Laws . . . . . . . . . . . . . . . . . . 54
Section 9.19. Change in the Nature of Business . . . . . . . . . . . . 54
Section 9.20. Use of Loan Proceeds . . . . . . . . . . . . . . . . . . 54
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Section 10. Events of Default and Remedies . . . . . . . . . . . . . 54
Section 10.1. Events of Default. . . . . . . . . . . . . . . . . . . . 54
Section 10.2. Non-Bankruptcy Defaults. . . . . . . . . . . . . . . . . 56
Section 10.3. Bankruptcy Defaults. . . . . . . . . . . . . . . . . . . 57
Section 10.4. Collateral for Undrawn Letters of Credit . . . . . . . . 57
Section 10.5. Expenses . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 10.6. Notice of Default. . . . . . . . . . . . . . . . . . . . 58
SECTION 11. CHANGE IN CIRCUMSTANCES . . . . . . . . . . . . . . . . . . . 58
Section 11.1. Change of Law. . . . . . . . . . . . . . . . . . . . . . 58
Section 11.2. Unavailability of Deposits or Inability to
Ascertain, or Inadequacy of, LIBOR . . . . . . . . . . . 58
Section 11.3. Increased Cost and Reduced Return. . . . . . . . . . . . 59
Section 11.4. Lending Offices. . . . . . . . . . . . . . . . . . . . . 60
Section 11.5. Discretion of Bank as to Manner of Funding . . . . . . . 60
SECTION 12. THE AGENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 12.1. Appointment and Authorization. . . . . . . . . . . . . . 61
Section 12.2. Agent and Affiliates . . . . . . . . . . . . . . . . . . 61
Section 12.3. Action by Agent. . . . . . . . . . . . . . . . . . . . . 61
Section 12.4. Consultation with Experts. . . . . . . . . . . . . . . . 61
Section 12.5. Liability of Agent . . . . . . . . . . . . . . . . . . . 62
Section 12.6. Indemnification. . . . . . . . . . . . . . . . . . . . . 62
Section 12.7. Credit Decision. . . . . . . . . . . . . . . . . . . . . 62
Section 12.8. Resignation of Agent and Successor Agent . . . . . . . . 62
Section 12.9. Payments . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 12.10. Syndication Agents . . . . . . . . . . . . . . . . . . . 63
SECTION 13. THE GUARANTEES. . . . . . . . . . . . . . . . . . . . . . . . 63
Section 13.1. The Guarantees . . . . . . . . . . . . . . . . . . . . . 63
Section 13.2. Guarantee Unconditional. . . . . . . . . . . . . . . . . 64
Section 13.3. Discharge Only Upon Payment in Full;
Reinstatement in Certain Circumstances . . . . . . . . . 65
Section 13.4. Waivers. . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 13.5. Limit on Recovery. . . . . . . . . . . . . . . . . . . . 65
Section 13.6. Stay of Acceleration . . . . . . . . . . . . . . . . . . 65
SECTION 14. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 14.1. Withholding Taxes. . . . . . . . . . . . . . . . . . . . 66
Section 14.2. No Waiver of Rights. . . . . . . . . . . . . . . . . . . 67
Section 14.3. Non-Business Day . . . . . . . . . . . . . . . . . . . . 67
Section 14.4. Documentary Taxes. . . . . . . . . . . . . . . . . . . . 67
Section 14.5. Survival of Representations. . . . . . . . . . . . . . . 67
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Section 14.6. Survival of Indemnities. . . . . . . . . . . . . . . . . 68
Section 14.7. Sharing of Set-Off . . . . . . . . . . . . . . . . . . . 68
Section 14.8. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 14.9. Counterparts . . . . . . . . . . . . . . . . . . . . . . 69
Section 14.10. Successors and Assigns . . . . . . . . . . . . . . . . . 69
Section 14.11. Participants . . . . . . . . . . . . . . . . . . . . . . 69
Section 14.12. Assignment Agreements. . . . . . . . . . . . . . . . . . 69
Section 14.13. Amendments . . . . . . . . . . . . . . . . . . . . . . . 70
Section 14.14. Headings . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 14.15. Legal Fees, Other Costs and Indemnification. . . . . . . 71
Section 14.16. Set-Off. . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 14.17. Entire Agreement . . . . . . . . . . . . . . . . . . . . 72
Section 14.18. Governing Law. . . . . . . . . . . . . . . . . . . . . . 72
Section 14.19. Submission to Jurisdiction;
Waiver of Jury Trial . . . . . . . . . . . . . . . . . . 72
Signature. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73
Exhibit A-1 Committed Note
Exhibit A-2 Swing Line Note
Exhibit B Bid Note
Exhibit C Bid Loan Request Confirmation
Exhibit D Invitation to Bid
Exhibit E Confirmation of Bid
Exhibit F Notice of Acceptance of Bid
Exhibit G Notice of Payment Request
Exhibit H Compliance Certificate
Exhibit I Subsidiary Guarantee Agreement
Exhibit J Employee Benefit Plans
Exhibit K Form of Opinion of Counsel
Exhibit L Existing NF Revolver Debt
Exhibit M Existing NF Term Debt
Exhibit N Existing Super Food Debt
Schedule 7.2 Subsidiaries
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CREDIT AGREEMENT
To each of the Banks signatory hereto
Ladies and Gentlemen:
The undersigned, Xxxx-Xxxxx Company, a Delaware corporation (the
"BORROWER"), applies to you for your several commitments, subject to all the
terms and conditions hereof and on the basis of the representations and
warranties hereinafter set forth, to make available credit accommodations to be
divided into a committed facility for loans and letters of credit, a committed
facility for loans from one of you and a discretionary bid facility for loans,
all as more fully hereinafter set forth. Each of you is hereinafter referred to
as a "BANK", all of you are hereinafter referred to collectively as the "BANKS"
and Xxxxxx Trust and Savings Bank ("XXXXXX BANK") in its capacity as agent
hereunder is hereinafter referred to as the "ADMINISTRATIVE AGENT", and Bank of
Montreal and PNC Bank, National Association ("PNC BANK"), in their capacity as
co-syndication agents hereunder are hereinafter referred to collectively as the
"SYNDICATION AGENTS".
SECTION 1. THE COMMITTED FACILITIES.
SECTION 1.1. THE LOAN COMMITMENTS. Subject to the terms and conditions
hereof, each Bank, by its acceptance hereof, severally agrees to make a loan or
loans (individually a "COMMITTED LOAN" and collectively "COMMITTED LOANS") to
the Borrower from time to time on a revolving basis in the amount of its
commitment to make Committed Loans set forth on the applicable signature page
hereof (its "COMMITMENT" and cumulatively for all the Banks the "COMMITMENTS")
(subject to any reductions thereof pursuant to the terms hereof) prior to the
Termination Date. The sum of the aggregate principal amount of outstanding
Loans (whether Committed Loans, Swing Loans or Bid Loans) and L/C Obligations
shall not exceed the Commitments then in effect. Each Borrowing of Committed
Loans shall be made ratably from the Banks in proportion to their respective
Percentages. As provided in Section 1.5(a) hereof, the Borrower may elect that
each Borrowing of Committed Loans be made available by means of (i) Eurodollar
Loans or (ii) Base Rate Loans, or any combination thereof. Each Borrowing of
Committed Loans may be repaid and the principal amount thereof reborrowed prior
to the Termination Date, subject to all reductions in the Commitments and all
other terms and conditions hereof.
SECTION 1.2. LETTERS OF CREDIT. (a) GENERAL TERMS. Subject to the terms
and conditions hereof, as part of the credit available under the Commitments,
the Administrative Agent shall from time to time issue standby or commercial
letters of credit (each a "LETTER OF CREDIT") for the Borrower's account
(whether or not also for the account of any Subsidiary as well) five (5)
calendar days prior to the Termination Date, in an aggregate undrawn face amount
up to the amount of the L/C Commitment, provided that the aggregate L/C
Obligations at any time outstanding shall not exceed the difference between the
Commitments in effect at such time and the aggregate principal amount of Loans
(whether
Committed Loans, Swing Loans or Bid Loans) then outstanding. Each
Letter of Credit shall be issued by the Administrative Agent, but each Bank
shall be obligated to reimburse the Administrative Agent for its Percentage of
the amount of each drawing thereunder and, accordingly, the undrawn face amount
of each Letter of Credit shall constitute usage of the Commitment of each Bank
PRO RATA in accordance with each Bank's Percentage.
(b) TERM. Each Letter of Credit issued hereunder shall expire not later
than the earlier of (i) one year from the date issued (or if the same has a
longer expiry date or no expiry date, shall be cancelable not later than one
year from the date of issuance and, if the
same can be renewed, shall be cancelable not later than one year from each
renewal or extension, as the case may be) or (ii) five (5) calendar days prior
to the Termination Date.
(c) GENERAL CHARACTERISTICS. Each Letter of Credit issued hereunder shall
be payable in U.S. Dollars, shall conform to the general requirements of the
Administrative Agent for the issuance of standby or commercial letters of
credit, as the case may be, as to form and substance, and shall be a letter of
credit which the Administrative Agent may lawfully issue.
(d) APPLICATIONS. At the time the Borrower requests any Letter of Credit
to be issued (or prior to the first issuance of a Letter of Credit, in the case
of a continuing application), the Borrower shall execute and deliver to the
Administrative Agent an application for such Letter of Credit in the form
customarily prescribed by the Administrative Agent for a Letter of Credit of the
type of Letter of Credit, whether standby or commercial, requested (individually
an "APPLICATION" and collectively the "APPLICATIONS"). Notwithstanding anything
contained in any Application to the contrary, (i) the Borrower shall pay fees in
connection with each Letter of Credit as set forth in Section 4.2 hereof,
(ii) except upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent will not call for the funding by the Borrower
of any amount under a Letter of Credit, or any other form of collateral security
for the Borrower's obligations in connection with such Letter of Credit, before
being presented with a drawing thereunder, and (iii) if the Administrative Agent
is not timely reimbursed in accordance with Section 1.2(e) hereof (whether out
of the proceeds of a Loan, including a Committed Loan made pursuant to
Section 1.5(c) hereof or otherwise) for the amount of any drawing under a Letter
of Credit on the date such drawing is paid, the Borrower's obligation to
reimburse the Administrative Agent for the amount of such drawing shall bear
interest (which the Borrower hereby promises to pay) from and after the date
such drawing is paid at a rate per annum equal to the sum of 2% PLUS the
Applicable Margin for Base Rate Loans PLUS the Base Rate from time to time in
effect. Notwithstanding anything contained in any Application to the contrary,
if the Administrative Agent issues any Letter of Credit with an expiration date
that is automatically extended unless the Administrative Agent gives notice that
the expiration date will not so extend beyond its then scheduled expiration
date, the Administrative Agent will give such notice of non-renewal before the
time necessary to prevent such automatic extension if before such required
notice date (i) the expiration date of such Letter of Credit if so extended
would be subsequent to the date which is five (5) calendar days prior to the
Termination Date, (ii) the Commitments have been terminated, or (iii) a Default
or Event of Default exists and the Required Banks have given the
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Administrative Agent instructions not to so permit the extension of the
expiration date of such Letter of Credit. Notwithstanding anything contained in
any Application to the contrary, the Administrative Agent agrees to issue
amendments to the Letter(s) of Credit increasing the amount, or extending the
expiration date, thereof at the request of the Borrower subject to the
conditions of Section 8 and the other terms of this Section 1.2.
(e) THE REIMBURSEMENT OBLIGATIONS. Subject to Section 1.2(d) hereof, the
obligation of the Borrower to reimburse the Administrative Agent for all
drawings under a Letter of Credit (a "REIMBURSEMENT OBLIGATION") shall be
governed by the Application related to such Letter of Credit, except that
reimbursement of a drawing paid shall be made by no later than 11:00 a.m.
(Chicago time) on the date when a drawing is paid in immediately available funds
at the Administrative Agent's principal office in Chicago, Illinois; any payment
of a Reimbursement Obligation received after such time shall be deemed to have
been received by the Administrative Agent on the next Business Day. If the
Borrower does not make any such reimbursement payment on the date due and the
Participating Banks fund their participations therein in the manner set forth in
Section 1.2(f) below, then all payments thereafter received by the
Administrative Agent in discharge of any of the relevant Reimbursement
Obligations shall be distributed in accordance with Section 1.2(f) below.
(f) THE PARTICIPATING INTERESTS. Each Bank (other than the Bank then
acting as Administrative Agent in issuing Letters of Credit), by its acceptance
hereof, severally agrees to purchase from the Administrative Agent, and the
Administrative Agent hereby agrees to sell to each such Bank (a "PARTICIPATING
BANK"), an undivided percentage participating interest (a "PARTICIPATING
INTEREST"), to the extent of its Percentage, in each Letter of Credit issued by,
and each Reimbursement Obligation owed to, the Administrative Agent. Upon any
failure by the Borrower to pay any Reimbursement Obligation at the time required
on the date the related drawing is paid, as set forth in Section 1.2(e) above,
or if the Administrative Agent is required at any time to return to the Borrower
or to a trustee, receiver, liquidator, custodian or other Person any portion of
any payment of any Reimbursement Obligation, each Participating Bank shall, not
later than the Business Day it receives a certificate in the form of Exhibit G
hereto from the Administrative Agent to such effect, if such certificate is
received before 1:00 p.m. (Chicago time), or not later than the following
Business Day, if such certificate is received after such time, pay to the
Administrative Agent an amount equal to such Participating Bank's Percentage of
such unpaid or recaptured Reimbursement Obligation, such payment to be made in
lawful money in the United States, in immediately available funds at the
Administrative Agent's principal office in Chicago, Illinois, together with
interest on such amount accrued from the date the related payment was made by
the Administrative Agent to the date of such payment by such Participating Bank
at a rate per annum equal to (i) from the date the related payment was made by
the Administrative Agent to the date two (2) Business Days after payment by such
Participating Bank is due hereunder, the Federal Funds Rate for each such day
and (ii) from the date two (2) Business Days after the date such payment is due
from such Participating Bank to the date such payment is made by such
Participating Bank, the Base Rate in effect for each such day. Each such
Participating Bank shall thereafter be entitled to receive its Percentage of
each payment received in respect of the relevant Reimbursement Obligation
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and of interest paid thereon, with the Administrative Agent retaining its
Percentage as a Bank hereunder.
The several obligations of the Participating Banks to the Administrative
Agent under this Section 1.2 shall be absolute, irrevocable and unconditional
under any and all circumstances whatsoever and shall not be subject to any set-
off, counterclaim or defense to payment which any Participating Bank may have or
have had against the Borrower, the Administrative Agent, any other Bank or any
other Person whatsoever. Without limiting the generality of the foregoing, such
obligations shall not be affected by any Default or Event of Default or by any
reduction or termination of any Commitment of any Bank, and each payment by a
Participating Bank under this Section 1.2 shall be made without any offset,
abatement, withholding or reduction whatsoever. The Administrative Agent shall
be entitled to offset amounts received for the account of a Bank under this
Agreement against unpaid amounts due from such Bank to the Administrative Agent
hereunder (whether as fundings of participations, indemnities or otherwise), but
shall not be entitled to offset against amounts owed to the Administrative Agent
by any Bank arising outside this Agreement.
(g) OUTSTANDING AMOUNT OF LETTERS OF CREDIT. For all purposes of this
Agreement, Letters of Credit shall be deemed outstanding as of any time in an
amount equal to the aggregate undrawn amount then available thereunder plus all
unpaid Reimbursement Obligations then outstanding. For such purposes, the
undrawn amount available under a Letter of Credit shall be the maximum amount
which can be drawn thereunder under any circumstances and over any period of
time.
(h) INDEMNIFICATION. The Participating Banks shall, to the extent of
their respective Percentages, indemnify the Administrative Agent (to the extent
not reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from the Administrative Agent's gross negligence or
willful misconduct) that the Administrative Agent may suffer or incur in
connection with any Letter of Credit. The obligations of the Participating
Banks under this Section 1.2(h) and all other parts of this Section 1.2 shall
survive termination of this Agreement and of all other L/C Documents.
SECTION 1.3. APPLICABLE INTEREST RATES.
(a) BASE RATE LOANS. Each Base Rate Loan made by a Bank shall bear
interest (computed on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed) on the unpaid principal amount thereof from the
date such Loan is made until maturity (whether by acceleration or otherwise) at
a rate per annum equal to the sum of the Applicable Margin PLUS the Base Rate
from time to time in effect, payable on the last day of the applicable Interest
Period and at maturity (whether by acceleration or otherwise).
"BASE RATE" means for any day the greater of:
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(i) the rate of interest announced by the Administrative Agent from
time to time as its prime commercial rate, or equivalent, as in effect on
such day, with any change in the Base Rate resulting from a change in said
prime commercial rate to be effective as of the date of the relevant change
in said prime commercial rate; and
(ii) the sum of (x) the rate per annum (rounded upward, if necessary,
to the nearest 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal
Reserve System arranged by Federal funds brokers on such day, as set forth
opposite the caption "FEDERAL FUND (EFFECTIVE)" in the daily statistical
release designated as "COMPOSITE 3:30 P.M. QUOTATIONS FOR U.S. GOVERNMENT
SECURITIES", or any successor publication, published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day, PROVIDED
THAT (i) if such day is not a Business Day, the rate for such day shall be
such rate on such transactions on the immediately preceding Business Day as
so published on the next succeeding Business Day, and (ii) if no such rate
is so published on any such next succeeding Business Day, the rate for such
day shall be the average of the rates quoted to the Agent by two or more
New York or Chicago Federal funds brokers on such day for such transactions
as determined by the Agent, PLUS (y) 1/2 of 1% (0.50%).
(b) EURODOLLAR LOANS. Each Eurodollar Loan made by a Bank shall bear
interest (computed on the basis of a year of 360 days and actual days elapsed)
on the unpaid principal amount thereof from the date such Loan is made until
maturity (whether by acceleration or otherwise) at a rate per annum equal to the
sum of the Applicable Margin PLUS the Adjusted LIBOR, payable on the last day of
the applicable Interest Period and at maturity (whether by acceleration or
otherwise), and, if the applicable Interest Period is longer than three months,
on each day occurring every three months after the date such Loan is made.
"ADJUSTED LIBOR" means, for any Borrowing of Eurodollar Loans, a rate per
annum determined in accordance with the following formula:
LIBOR
------------------------------------
Adjusted LIBOR = 100% - Eurodollar Reserve Percentage
"LIBOR" means, for each Interest Period, (a) the LIBOR Index Rate for such
Interest Period, if such rate is available, and (b) if the LIBOR Index Rate
cannot be determined, the arithmetic average of the rate of interest per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) at which deposits
in U.S. Dollars in immediately available funds are offered to the Administrative
Agent at 11:00 a.m. (London, England time) two Business Days before the
beginning of such Interest Period by at least two major banks in the London
interbank eurodollar market for a period equal to such Interest Period and in an
amount equal or comparable to the applicable Eurodollar Loan scheduled to be
outstanding from the Administrative Agent during such Interest Period. Each
determination of LIBOR made by the Administrative Agent shall be conclusive and
binding on the Borrower and the Banks absent manifest error.
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"LIBOR INDEX RATE" means, for any Interest Period, the rate per annum for
deposits in U.S. Dollars for a period equal to such Interest Period which
appears on the Telerate Page 3750 as of 11:00 a.m. (London, England time) on the
date two Business Days before the commencement of such Interest Period.
"TELERATE PAGE 3750" means the display designated as "Page 3750" on the
Telerate Service (or such other page as may replace Page 3750 on that service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Banker's
Association Interest Settlement Rates for U.S. Dollar deposits).
"EURODOLLAR RESERVE PERCENTAGE" means, for any Borrowing of Eurodollar
Loans, the daily average for the applicable Interest Period of the maximum rate
at which reserves (including, without limitation, any supplemental, marginal and
emergency reserves) are imposed during such Interest Period by the Board of
Governors of the Federal Reserve System (or any successor) under Regulation D on
"EUROCURRENCY LIABILITIES", as defined in such Board's Regulation D (or in
respect of any other category of liabilities that includes deposits by reference
to which the interest rate on Eurodollar Loans is determined or any category of
extension of credit or other assets that include loans by non-United States
offices of any Bank to United States residents), subject to any amendments of
such reserve requirement by such Board or its successor, taking into account any
transitional adjustments thereto. For purposes of this definition, the
Eurodollar Loans shall be deemed to be "EUROCURRENCY LIABILITIES" as defined in
Regulation D without benefit or credit for any prorations, exemptions or offsets
under Regulation D.
(c) APPLICABLE MARGIN. With respect to Committed Loans and the facility
fee payable under Section 4.1 hereof, the "Applicable Margin" shall mean the
rate specified for such Obligation below, subject to adjustment as hereinafter
provided:
Applicable Applicable
Margin Margin Applicable
When Following For Base Rate For Eurodollar Margin
Status Exists Loans Is: Loans Is: For Facility Fee Is:
Level I Status 0% .200% .100%
Level II Status 0% .250% .125%
Level III Status 0% .300% .175%
Level IV Status 0% .450% .200%
Level V Status 0% .700% .300%
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PROVIDED, HOWEVER, that all of the foregoing is subject to the following:
(i) changes in the Applicable Margin resulting from a change in the
S&P Rating or Xxxxx'x Rating shall become effective five (5) Business Days
after the Administrative Agent is notified of the relevant change by the
Borrower (the Borrower hereby agreeing to notify the Administrative Agent
of any such change promptly upon the same becoming effective) or any Bank;
(ii) if a Single Rating Status determined solely by reference to the
S&P Rating (the "S&P ONLY STATUS") is more than one status level apart from
the Single Rating Status then determined solely by reference to the Xxxxx'x
Rating (the "XXXXX'X ONLY STATUS"), then, notwithstanding anything herein
to the contrary, the Applicable Margin shall be the average of the
Applicable Margins for, respectively, the S&P Only Status and the Xxxxx'x
Only Status, as reasonably determined by the Administrative Agent;
(iii) the initial Applicable Margin in effect on the date hereof
shall be the Applicable Margin for Level II Status; and
(iv) if and so long as any Event of Default has occurred and is
continuing hereunder, notwithstanding anything herein to the contrary, upon
notice to the Borrower by the Administrative Agent at the request of the
Required Banks, the Applicable Margin shall be the Applicable Margin for
Level V Status.
(d) RATE DETERMINATIONS. The Administrative Agent shall determine each
interest rate applicable to the Committed Loans and its determination shall be
conclusive and binding except in the case of manifest error or willful
misconduct.
SECTION 1.4. MINIMUM BORROWING AMOUNT. Each Borrowing of Eurodollar
Loans shall be in an amount not less than $10,000,000, or any larger amount that
is an integral multiple of $1,000,000. Each Borrowing of Base Rate Loans shall
be in an amount not less than $5,000,000, or any larger amount that is an
integral multiple of $1,000,000.
SECTION 1.5. MANNER OF BORROWING COMMITTED LOANS.
(a) NOTICE TO THE ADMINISTRATIVE AGENT. In order to borrow any Committed
Loans, the Borrower shall give telephonic or telecopy notice to the
Administrative Agent (which notice shall be irrevocable once given and, if by
telephone, shall be promptly confirmed in writing) by no later than
(i) 11:00 a.m. (Chicago time) on the date at least three (3) Business Days prior
to the date of each requested Borrowing of Eurodollar Loans and (ii) 11:00 a.m.
(Chicago time) on the date of any requested Borrowing of Base Rate Loans. Each
such notice shall specify the date of the requested Borrowing (which shall be a
Business Day), the amount of the requested Borrowing, the type of Loans to
comprise such Borrowing, and, if such Borrowing is to be comprised of Eurodollar
Loans, the Interest Period applicable thereto. The Borrower agrees that the
Administrative Agent may rely on any such telephonic or telecopy notice given by
any person who identifies himself or herself
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as being an Authorized Representative of the Borrower without the necessity of
independent investigation and, in the event any telephonic notice conflicts with
the written confirmation, such telephonic notice shall govern if the
Administrative Agent has acted in reliance thereon.
(b) NOTICE TO THE BANKS. The Administrative Agent shall give prompt
telephonic or telecopy notice to each Bank of any notice from the Borrower
received pursuant to Section 1.5(a) above and, if such notice requests the Banks
to make Eurodollar Loans, the Administrative Agent shall give notice to the
Borrower and each of the Banks by like means of the interest rate applicable
thereto promptly after the Administrative Agent has made such determination.
(c) BORROWER'S FAILURE TO NOTIFY. In the event the Borrower fails to give
notice pursuant to Section 1.5(a) above of the reborrowing of the principal
amount of any maturing Borrowing of Committed Loans and has not notified the
Administrative Agent by 11:00 a.m. (Chicago time) on the day such Borrowing
matures that it intends to repay such Borrowing, the Borrower shall be deemed to
have requested a Borrowing of Base Rate Loans on such day in the amount of the
maturing Borrowing of Committed Loans, subject to Section 8.2 hereof. In the
event the Borrower fails to give notice pursuant to Section 1.5(a) above of a
Borrowing equal to the amount of a Reimbursement Obligation and has not notified
the Administrative Agent by 11:00 a.m. (Chicago time) on the day such
Reimbursement Obligation becomes due that it intends to repay such Reimbursement
Obligation through funds not borrowed under this Agreement, the Borrower shall
be deemed to have requested a Borrowing of Base Rate Loans on such day in the
amount of the Reimbursement Obligation then due, subject to Section 8 hereof,
which Borrowing shall be applied to pay the Reimbursement Obligation then due.
(d) DISBURSEMENT OF COMMITTED LOANS. Not later than 1:00 p.m. (Chicago
time) on the date of any Borrowing, each Bank shall make available its Committed
Loan in funds immediately available in Chicago, Illinois at the principal office
of the Administrative Agent, except to the extent such Borrowing is a
reborrowing, in whole or in part, of the principal amount of a maturing
Borrowing of Committed Loans (a "REFUNDING BORROWING"), in which case each Bank
shall record the Committed Loan made by it as a part of such Refunding Borrowing
on its books and records or on a schedule to its Committed Loan Note, as
provided in Section 3.5(c) hereof, and shall effect the repayment, in whole or
in part, as appropriate, of its maturing Committed Loan through the proceeds of
such new Committed Loan. Subject to Section 8 hereof, the Administrative Agent
shall make the proceeds of each non-Refunding Borrowing available to the
Borrower at the Administrative Agent's principal office in Chicago, Illinois.
SECTION 1.6. THE SWING LINE.
(a) SWING LOANS. Subject to all of the terms and conditions hereof,
Xxxxxx Bank agrees to make loans in U.S. Dollars to the Borrower under the Swing
Line ("SWING LOANS") which shall not in the aggregate at any time outstanding
exceed the lesser of (i) the Swing Line Commitment or (ii) the difference
between (x) the Commitments in effect at such time and (y) the Loans and
L/C Obligations outstanding at the time of computation. The Swing
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Line Commitment shall be available to the Borrower and may be availed of by the
Borrower from time to time and borrowings thereunder may be repaid and used
again during the period ending on the Termination Date. Without regard to the
face principal amount of the Swing Line Note, the actual principal amount at any
time outstanding and owing by the Borrower on account of the Swing Line Note on
any date during the period ending on the Termination Date shall be the sum of
all Swing Loans then or theretofor made thereon through such date less all
payments actually received thereon through such date.
(b) MINIMUM BORROWING AMOUNT. Each Swing Loan shall be in an amount not
less than $250,000.
(c) INTEREST ON SWING LOANS. Each Swing Loan shall bear interest
(computed on the basis of a year of 360 days and actual days elapsed) for the
Interest Period selected therefor at the Xxxxxx Bank's Quoted Rate for such
Interest Period, PROVIDED that if any Swing Loan is not paid when due (whether
by lapse of time, acceleration or otherwise) such Swing Loan shall bear interest
whether before or after judgment, until payment in full thereof through the end
of the Interest Period then applicable thereto at the rate set forth in
Section 3.4 hereof. Interest on each Swing Loan shall be due and payable on the
last day of each Interest Period applicable thereto, and interest after maturity
(whether by lapse of time, acceleration or otherwise) shall be due and payable
upon demand.
(d) REQUESTS FOR SWING LOANS. The Borrower shall give Xxxxxx Bank prior
notice (which may be written or oral) no later than 12:00 Noon (Chicago time) on
the date upon which the Borrower requests that any Swing Loan be made, of the
amount and date of such Swing Loan and the Interest Period selected therefor.
Within thirty (30) minutes after receiving such notice, Xxxxxx Bank shall quote
an interest rate determined in its discretion to the Borrower at which Xxxxxx
Bank would be willing to make such Swing Loan available to the Borrower for such
Interest Period (the rate so quoted for a given Interest Period being herein
referred to as "XXXXXX BANK'S QUOTED RATE"). The Borrower acknowledges and
agrees that the interest rate quote is given for immediate and irrevocable
acceptance, and if the Borrower does not so immediately accept Xxxxxx Bank's
Quoted Rate for the full amount requested by the Borrower for such Swing Loan,
the Xxxxxx Bank's Quoted Rate shall be deemed immediately withdrawn and such
Swing Loan shall not be made. Subject to all of the terms and conditions
hereof, the proceeds of such Swing Loan shall be made available to the Borrower
on the date so requested at the offices of the Administrative Agent in Chicago,
Illinois. Anything contained in the foregoing to the contrary notwithstanding
(i) the obligation of Xxxxxx Bank to make Swing Loans shall be subject to all of
the terms and conditions of this Agreement and (ii) Xxxxxx Bank shall not be
obligated to make more than one Swing Loan during any one day.
(e) REFUNDING LOANS. In its sole and absolute discretion, Xxxxxx Bank may
at any time, on behalf of the Borrower (which hereby irrevocably authorizes
Xxxxxx Bank to act on its behalf for such purpose), request each Bank to make a
Committed Loan in an amount equal to such Bank's Percentage of the amount of the
Swing Loans outstanding on the date such notice is given. Unless any of the
conditions of Section 8.2 are not fulfilled on such
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date, each Bank shall make the proceeds of its requested Committed Loan
available to Xxxxxx Bank, in immediately available funds, at the principal
office of Xxxxxx Bank in Chicago, Illinois, before 12:00 Noon (Chicago time) on
the Business Day following the day such notice is given. The proceeds of such
Committed Loans shall be immediately applied to repay the outstanding Swing
Loans.
(f) PARTICIPATIONS. If any Bank refuses or otherwise fails to make a
Committed Loan when requested by Xxxxxx Bank pursuant to Section 1.6(e) above
(because the conditions in Section 8.2 are not satisfied or otherwise), such
Bank will, by the time and in the manner such Committed Loan was to have been
funded to Xxxxxx Bank, purchase from Xxxxxx Bank an undivided participating
interest in the outstanding Swing Loans in an amount equal to its Percentage of
the aggregate principal amount of Swing Loans that were to have been repaid with
such Committed Loans. Each Bank that so purchases a participation in a Swing
Loan shall thereafter be entitled to receive its Commitment Percentage of each
payment of principal received on the Swing Loan and of interest received thereon
accruing from the date such Bank funded to Xxxxxx Bank its participation in such
Loan. The obligation of the Banks to Xxxxxx Bank shall be absolute and
unconditional and shall not be affected or impaired by any Default or Event of
Default which may then be continuing hereunder.
SECTION 2. THE COMPETITIVE BID FACILITY.
SECTION 2.1. THE BID LOANS. The Borrower may request the Banks to offer
to make uncommitted loans (each a "BID LOAN" and collectively the "BID LOANS")
in the manner set forth in this Section 2 and in amounts such that (i) the
aggregate principal amount of all outstanding Loans (whether Committed Loans,
Swing Loans or Bid Loans) and L/C Obligations shall not exceed the Commitments
then in effect and (ii) no Bid Loan shall be made if, at the time thereof or
after giving effect thereto, the aggregate amount of Bid Loans would exceed the
Bid Loan Limit then in effect. The Banks may, but shall have no obligation to,
make such offers and the Borrower may, but shall have no obligation to, accept
any such offers in the manner set forth in this Section 2. Each Bank may offer
to make Bid Loans in any amount (whether greater than, equal to, or less than
its Commitment), subject to the (a) limitations that (i) the aggregate principal
amount of all Loans (whether Committed Loans, Swing Loans or Bid Loans) and L/C
Obligations outstanding at any time shall not at any time exceed the Commitments
then in effect and (ii) no Bid Loan shall be made if, at the time thereof or
after giving effect thereto, the aggregate amount of Bid Loans would exceed the
Bid Loan Limit then in effect and (b) the other conditions of this Agreement.
Bid Loans may either bear interest at a stated rate per annum ("STATED RATE BID
LOANS") or at a margin above or below the applicable Adjusted LIBOR ("EURODOLLAR
BID LOANS"); PROVIDED that there may be no more than six (6) different Interest
Periods for both Stated Rate Bid Loans and Eurodollar Bid Loans outstanding at
the same time.
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SECTION 2.2. REQUESTS FOR BID LOANS.
(a) REQUESTS AND CONFIRMATIONS. In order to request a Borrowing of Bid
Loans (a "BID LOAN REQUEST"), the Borrower shall give telephonic notice to the
Administrative Agent no later than (i) in the case of a request for one or more
Eurodollar Bid Loans, 11:00 a.m. (Chicago time) on the date at least five (5)
Business Days before the proposed date of such borrowing, which must be a
Business Day (the "BORROWING DATE"), and (ii) in the case of a request for one
or more Stated Rate Bid Loans, 11:00 a.m. (Chicago time) on the date at least
one (1) Business Day before the proposed Borrowing Date, in each case followed
on the same day by a duly completed Bid Loan Request Confirmation, delivered by
telecopier or other means of facsimile communication, substantially in the form
of Exhibit C hereto or otherwise containing the information required by this
Section (a "BID LOAN REQUEST CONFIRMATION"), to be received by the
Administrative Agent no later than 11:30 a.m. (Chicago time) on such day. Bid
Loan Request Confirmations that do not conform substantially to the format of
Exhibit C or otherwise contain the information required by this Section 2.2 may
be rejected by the Administrative Agent, and the Administrative Agent shall give
telephonic notice to the Borrower of such rejection promptly after it determines
(which determination shall be conclusive) that the Bid Loan Request Confirmation
does not substantially conform to the format of Exhibit C or otherwise contain
the information required by this Section 2.2. Requests for Bid Loans shall in
each case refer to this Agreement and specify (i) the proposed Borrowing Date
(which must be a Business Day), (ii) the aggregate principal amount thereof
(which shall not be less than $5,000,000 and shall be an integral multiple of
$1,000,000, except as provided in Section 2.4(ii) hereof) and (iii) up to three
(3) Interest Periods with respect to the entire amount specified in such Bid
Loan Request (and, if so desired by the Borrower, specifying the maximum amount
the Borrower would borrow for any specific Interest Period), which in the case
of Stated Rate Bid Loans shall be 1 to 180 days after the Borrowing Date and in
the case of Eurodollar Bid Loans shall be 1, 2, 3, 4, 5, or 6 months after the
Borrowing Date, but with no maturity to extend beyond the Termination Date.
(b) INVITATION TO BID. Upon receipt by the Administrative Agent of a Bid
Loan Request Confirmation that conforms substantially to the format of Exhibit C
hereto or otherwise contains the information required by this Section 2.2, the
Administrative Agent shall, by telephone (no later than 1:00 p.m. (Chicago time)
on the same day the Administrative Agent receives a Bid Loan Request
Confirmation), promptly confirmed by a telecopy or other form of facsimile
communication in the form of Exhibit D hereto, invite each Bank to bid, on the
terms and conditions of this Agreement, to make Bid Loans pursuant to the Bid
Loan Request.
(c) BIDS. Each Bank may, in its sole discretion, offer to make a Bid Loan
or Loans (a "BID") to the Borrower responsive to the Bid Loan Request. Each Bid
by a Bank must be received by the Administrative Agent by telephone not later
than (i) 9:00 a.m. (Chicago time) on the proposed Borrowing Date in the case of
a Bid for a Stated Rate Loan and (ii) 11:00 a.m. (Chicago time) four (4)
Business Days prior to the proposed Borrowing Date in the case of a Bid for a
Eurodollar Loan, in each case promptly confirmed in writing by a duly completed
Confirmation of Bid delivered by telecopier or other means of
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facsimile communication substantially in the form of Exhibit E hereto or
otherwise containing the information required by this subsection (c) (a
"CONFIRMATION OF BID"), to be received by the Administrative Agent on the same
day; PROVIDED, HOWEVER, that any Bid made by the Administrative Agent must be
made by telephone to the Borrower by no later than fifteen minutes prior to the
time that Bids from the other Banks are required to be received. Each Bid and
each Confirmation of Bid shall refer to this Agreement and specify (i) the
principal amount (which shall not be less than $5,000,000 and shall be an
integral multiple of $1,000,000) of each Bid Loan that the Bank is willing to
make to the Borrower and the type of Bid Loan (i.e., Stated Rate Bid Loan or
Eurodollar Bid Loan), (ii) the interest rate (which shall be computed on the
basis of a 360 day year and actual days elapsed for a period equal to the
Interest Period applicable thereto) or spread above or below the applicable
Adjusted LIBOR, in each case at which the Bank is prepared to make each Bid Loan
and (iii) the Interest Period applicable to each such offered Bid Loan. The
Administrative Agent shall reject any Bid if such Bid (i) does not specify all
of the information specified in the immediately preceding sentence, (ii)
contains any qualifying, conditional, or similar language, (iii) proposes terms
other than or in addition to those set forth in the Bid Loan Request to which it
responds, or (iv) is received by the Administrative Agent later than the time
required for such Bid Loan. Any Bid submitted by a Bank pursuant to this
Section 2.2 shall be irrevocable and shall be promptly confirmed by a telecopy
or other form of facsimile communication in the form of Exhibit E; PROVIDED THAT
in all events the telephone Bid received by the Administrative Agent shall be
binding on the relevant Bank and shall not be altered, modified, or in any other
manner affected by any inconsistent terms contained in, or terms missing from,
the Bank's Confirmation of Bid. Each offer contained in a Bid to make a Bid
Loan in a certain amount, at a certain interest rate, and for a certain Interest
Period is referred to herein as an "OFFER".
SECTION 2.3 NOTICE OF BIDS; ADVICE OF RATE. The Administrative Agent
shall give telephonic notice to the Borrower of the number of Bids made, the
interest rate(s) and Interest Period(s) applicable to each Bid, the maximum
principal amount bid at each interest rate for each Interest Period, and the
identity of the Bank making such Bid, such notice to be given by (i) 10:00 a.m.
(Chicago time) on the Borrowing Date in the case of Bid Loan Requests for Stated
Rate Bid Loans or (ii) 1:00 p.m. (Chicago time) four (4) Business Days before
the proposed Borrowing Date in the case of Bid Loan Requests for Eurodollar Bid
Loans.
SECTION 2.4. ACCEPTANCE OR REJECTION OF BIDS. The Borrower may in its
sole and absolute discretion, subject only to the provisions of this
Section 2.4, irrevocably accept or reject, in whole or in part, any Offer
contained in a Bid. The Borrower shall give telephonic notice to the
Administrative Agent of whether and to what extent it has decided to accept or
reject any or all of the Offers contained in the Bids made in response to a Bid
Loan Request to be received by the Administrative Agent by no later than
10:30 a.m. (Chicago time) (i) on the proposed Borrowing Date, in the case of
Stated Rate Bid Loans or (ii) three (3) Business Days before the proposed
Borrowing Date, in the case of Eurodollar Bid Loans, which notice shall be
promptly confirmed by a telecopy or other form of facsimile communication;
PROVIDED, HOWEVER, that in the event any Offers are accepted (i) the Borrower
shall accept Offers for any of the Interest Periods specified by the Borrower in
its
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Bid Loan Request Confirmation solely on the basis of ascending interest rates or
spreads, as the case may be, for each such Interest Period, (ii) if the Borrower
accepts an Offer for a Bid Loan at a particular interest rate for a particular
Interest Period but declines to borrow, or is in such event restricted by any
other condition hereof from borrowing, the maximum principal amount of Bid Loans
in respect of which Offers at such particular interest rate for such particular
Interest Period have been made, then the Borrower shall accept a PRO RATA
portion of each such Offer at such rate and for such Interest Period, based as
nearly as possible on the ratio of the maximum aggregate principal amounts of
Bid Loans for which each such Offer was made by each Bank (PROVIDED THAT, if the
available principal amount of Bid Loans to be so allocated is not sufficient to
enable Bid Loans to be so allocated to each relevant Bank in integral multiples
of $1,000,000, then the Administrative Agent may round allocations up or down in
integral multiples not less than $500,000 as it shall deem appropriate), (iii)
the aggregate principal amount of all Offers accepted by the Borrower shall not
exceed the maximum amount contained in the related Bid Loan Request
Confirmation, (iv) no Offer of a Bid Loan shall be accepted in a principal
amount less than $5,000,000 and thereafter in integral multiples of $1,000,000,
except as provided in the immediately preceding clause (ii) and (v) no offer of
a Bid Loan shall be accepted if, at the time thereof or after giving effect
thereto, (x) the aggregate principal amount of all outstanding Loans (whether
Committed Loans, Swing Loans or Bid Loans) and L/C Obligations would exceed the
Commitments then in effect or (y) the aggregate amount of Bid Loans would exceed
the Bid Loan Limit then in effect. Any telephone notice given by the Borrower
pursuant to this Section 2.4 shall be irrevocable and shall not be altered,
modified, or in any other manner affected by any inconsistent terms contained
in, or terms missing from, any written confirmation of such notice.
SECTION 2.5. NOTICE OF ACCEPTANCE OR REJECTION OF BIDS.
(a) NOTICE TO BANKS MAKING BIDS. The Administrative Agent shall give
telephonic notice to each Bank whether any of the Offers contained in its Bid
has been accepted (and if so, in what amount, at what interest rate or spread,
as applicable, and for what Interest Period) no later than 11:00 a.m. (Chicago
time) (i) on the proposed Borrowing Date in the case of Stated Rate Bid Loans
and (ii) three (3) Business Days before the proposed Borrowing Date in the case
of Eurodollar Bid Loans, and each successful bidder will thereupon become bound,
subject to Section 8 and the other applicable conditions hereof, to make the Bid
Loan(s) in respect of which its Bid has been accepted. As soon as practicable
thereafter the Administrative Agent shall send written notice substantially in
the form of Exhibit F hereto to each such successful bidder; PROVIDED, HOWEVER,
that failure to give such notice shall not affect the obligation of such
successful bidder to disburse its Bid Loans as herein required.
(b) DISBURSEMENT OF BID LOANS. Not later than 12:00 noon (Chicago time)
on the Borrowing Date for each Borrowing of a Bid Loan(s), each Bank bound to
make a Bid Loan(s) in accordance with Section 2.5(a) shall make available to the
Administrative Agent the principal amount of each such Bid Loan in immediately
available funds at the Administrative Agent's principal office in Chicago,
Illinois. The Administrative Agent shall
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promptly thereafter make available to the Borrower like funds as received from
each Bank, at such office of the Administrative Agent in Chicago, Illinois.
(c) NOTICE TO THE BANKS. As soon as practicable after each Borrowing Date
for Bid Loans, the Administrative Agent shall notify each Bank of the aggregate
amount of Bid Loans advanced pursuant to a Bid Loan Request on such Borrowing
Date, the Interest Period(s) therefor, and the lowest and highest interest rates
or spreads, as applicable, at which Bid Loans were made for each Interest
Period.
SECTION 2.6. INTEREST ON BID LOANS. The Borrower shall pay interest on
the unpaid principal amount of each Stated Rate Bid Loan from the applicable
Borrowing Date to the maturity thereof at the rate of interest applicable to
such Stated Rate Bid Loan as determined pursuant to the above provisions
(calculated on the basis of a 360 day year and the actual number of days
elapsed) payable on the last day of the Interest Period applicable to such
Stated Rate Bid Loan and at maturity (whether by acceleration or otherwise),
and, if the applicable Interest Period is longer than 90 days, on each day
occurring every 90 days after the date such Loan is made. Each Eurodollar Bid
Loan made by a Bank shall bear interest, which interest shall be payable, as
provided in Section 1.3(b) hereof.
SECTION 2.7. TELEPHONIC NOTICE. Each Bank's telephonic notice to the
Administrative Agent of its Bid pursuant to Section 2.2(c), and the Borrower's
telephonic acceptance of any Offer contained in a Bid pursuant to Section 2.4,
shall be irrevocable and binding on such Bank and the Borrower and shall not be
altered, modified, or in any other manner affected by any inconsistent terms
contained in, or missing from, any telecopy or other confirmation of such
telephonic notice. It is understood and agreed by the parties hereto that the
Administrative Agent shall be entitled to act, or to fail to act, hereunder in
reliance on its records of any telephonic notices provided for herein and that
the Administrative Agent shall not incur any liability to any Person in so doing
if its records conflict with any telecopy or other confirmation of a telephone
notice or otherwise, provided that the Administrative Agent has acted, or failed
to act, in good faith.
SECTION 3. GENERAL PROVISIONS APPLICABLE TO ALL LOANS.
SECTION 3.1. INTEREST PERIODS. As provided in Section 1.5 hereof in the
case of Committed Loans, in Section 1.6(d) hereof in the case of Swing Loans and
in Section 2.2 hereof in the case of Bid Loans, at the time of each request for
the Borrowing of Loans hereunder, the Borrower shall select an Interest Period
applicable to such Loans from among the available options. The term "INTEREST
PERIOD" means the period commencing on the date a Borrowing of Loans is made and
ending, (a) in the case of Base Rate Loans, on the last day of the calendar
quarter in which such Loan is made (I.E. the first to occur of March 31, June
30, September 30, and December 31 following the date such Borrowing is made);
(b) in the case of Eurodollar Loans, the date, as the Borrower may select, 1, 2,
3 or 6 months thereafter; (c) in the case of Stated Rate Bid Loans, on the date,
as the Borrower may select, 1 to 180 days thereafter; (d) in the case of
Eurodollar Bid Loans, on the date, as the Borrower may select, 1, 2, 3, 4, 5, or
6 months thereafter; and (e) in the case of Swing
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Loans, on the date, as the Borrower may select, 1-7 days thereafter; PROVIDED,
HOWEVER, that:
(a) any Interest Period for a Borrowing of Base Rate Loans commencing
less than 90 days before the Termination Date shall end on the Termination
Date;
(b) with respect to any Borrowing of Fixed Rate Loans, the Borrower
may not select an Interest Period that extends beyond the Termination Date;
(c) whenever the last day of any Interest Period would otherwise be a
day that is not a Business Day, the last day of such Interest Period shall
be extended to the next succeeding Business Day, PROVIDED THAT, in the case
of an Interest Period for a Borrowing of Eurodollar Loans or Eurodollar Bid
Loans, if such extension would cause the last day of such Interest Period
to occur in the following calendar month, the last day of such Interest
Period shall be the immediately preceding Business Day;
(d) for purposes of determining the Interest Period for a Borrowing
of Eurodollar Loans or Eurodollar Bid Loans, a month means a period
starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month; PROVIDED, HOWEVER, that if
there is no numerically corresponding day in the month in which such an
Interest Period is to end or if such an Interest Period begins on the last
Business Day of a calendar month, then such Interest Period shall end on
the last Business Day of the calendar month in which such Interest Period
is to end; and
(e) prior to February 8, 1997, (i) neither any Eurodollar Loan nor
any Eurodollar Bid Loan shall have an Interest Period in excess of one
month and (ii) no Stated Rate Bid Loan shall have an Interest Period in
excess of 30 days.
SECTION 3.2. MATURITY OF LOANS. Each Loan shall mature and become due
and payable by the Borrower on the last day of the Interest Period applicable
thereto.
SECTION 3.3. VOLUNTARY PREPAYMENTS. (a) COMMITTED LOANS. The Borrower
shall have the privilege of prepaying without premium or penalty any Borrowing
of Base Rate Loans in whole or in part (but, if in part, then in an amount not
less than $1,000,000 and in integral multiples of $1,000,000 and in an amount
such that the minimum amount required for a Borrowing of Base Rate Loans
pursuant to Section 1.4 hereof remains outstanding) at any time upon prior
notice to the Administrative Agent (which shall advise each Bank thereof
promptly thereafter), such prepayment to be made by the payment of the principal
amount to be prepaid and accrued interest thereon to the date fixed for
prepayment. The Borrower may prepay any Borrowing of Eurodollar Loans in whole
or in part (but, if in part, then in an amount not less than $1,000,000 and in
integral multiples of $1,000,000 and in an amount such that the minimum amount
required for a Borrowing of Eurodollar Loans pursuant to Section 1.4 hereof
remains outstanding) at any time upon one (1) Business Day prior notice to the
Administrative Agent (which shall advise each Bank thereof promptly thereafter),
such prepayment to be made by the payment of the principal amount to be
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prepaid and accrued interest thereon to the date fixed for prepayment together
with any compensation required by Section 3.8 hereof.
(b) FIXED RATE LOANS. The Borrower may not voluntarily prepay any Bid
Loan or any Swing Loan in each case before its maturity.
(c) REBORROWINGS. Any amount paid or prepaid before the Termination Date
may, subject to the terms and conditions of this Agreement, be borrowed, repaid
and borrowed again.
SECTION 3.4. DEFAULT RATE. If any payment of principal on any Loan is
not made when due (whether by acceleration or otherwise), such Loan shall bear
interest (computed on the basis of a year of 360 days and actual days elapsed
or, if based on the Base Rate, on the basis of a year of 365 or 366 days, as
applicable, and the actual number of days elapsed) from the date such payment
was due until paid in full, payable on demand, at a rate per annum equal to:
(a) with respect to any Base Rate Loan, the sum of two percent (2%)
PLUS the Base Rate from time to time in effect PLUS the Applicable Margin;
and
(b) with respect to any Fixed Rate Loan, the sum of two percent (2%)
PLUS the rate of interest in effect thereon at the time of such default
(including the effect of any increase to Level V Status as a result of such
default) until the end of the Interest Period applicable thereto and,
thereafter, at a rate per annum equal to the sum of two percent (2%) PLUS
the Base Rate from time to time in effect PLUS the Applicable Margin for
Base Rate Loans.
SECTION 3.5. THE NOTES. (a) All Committed Loans made to the Borrower by
a Bank shall be evidenced by a promissory note of the Borrower (individually a
"COMMITTED LOAN NOTE" and collectively the "COMMITTED LOAN NOTES"), each such
Committed Loan Note to be payable to the order of the applicable Bank in the
principal amount of its Commitment and otherwise in the form of Exhibit A-1
hereto.
(b) All Swing Loans made to the Borrower by Xxxxxx Bank shall be evidenced
by a promissory note of the Borrower (the "SWING NOTE"), the Swing Note to be
payable to Xxxxxx Bank's order in the principal amount of its Swing Line
Commitment and otherwise in the form of Exhibit A-2 hereto.
(c) All Bid Loans made to the Borrower by a Bank shall be evidenced by a
promissory note of the Borrower in the form of Exhibit B hereto (individually a
"BID NOTE" and collectively the "BID NOTES"), each such Bid Note to be in the
form of Exhibit B hereto.
(d) Each Bank shall record on its books and records or on a schedule to
the appropriate Note the amount of each Loan made by it to the Borrower, the
Interest Period thereof, all payments of principal and interest and the
principal balance from time to time outstanding thereon, the type of such Loan,
and, in respect of any Fixed Rate Loan, the
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Interest Period and the interest rate applicable thereto; PROVIDED THAT prior to
the transfer of any Note such information relating to any outstanding Loans made
by such Bank shall be recorded on the back of such Note or on a schedule to such
Note. The record thereof, whether shown on such books and records of a Bank or
on a schedule to any Note, shall be PRIMA FACIE evidence as to all such matters;
PROVIDED, HOWEVER, that the failure of any Bank to record any of the foregoing
or any error in any such record shall not limit or otherwise affect the
obligation of the Borrower to repay all Loans made to it hereunder together with
accrued interest thereon. At the request of any Bank and upon such Bank
tendering to the Borrower the Note to be replaced, the Borrower shall furnish a
new Note to such Bank to replace any outstanding Note (which will be exchanged
for such new Note) and at such time the first notation appearing on a schedule
on the reverse side of, or attached to, such new Note shall set forth the
aggregate unpaid principal amount of all Loans, if any, then outstanding
thereon.
SECTION 3.6. COMMITMENT REDUCTIONS AND TERMINATIONS. (a) VOLUNTARY. The
Borrower shall have the right at any time and from time to time, upon five (5)
Business Days' prior written notice to the Administrative Agent, to terminate
without premium or penalty, in whole or in part, the Commitments, any partial
termination to be in an amount not less than $10,000,000 or any larger amount
that is an integral multiple of $1,000,000, and to reduce ratably each Bank's
Commitment; PROVIDED THAT the Commitments may not be reduced to an amount less
than the aggregate principal amount of Loans and L/C Obligations then
outstanding. Any reduction of the Commitments to a level below the Swing Line
Commitment shall effect a concurrent reduction in the Swing Line Commitment so
as to equal the total Commitments after giving effect to such reduction.
(b) UPON INCURRENCE OF INDEBTEDNESS OR SECURITIZATION. On the date of
receipt thereof by the Borrower or any of its Subsidiaries, the Commitments
shall reduce by an amount equal to (i) 100% of the gross proceeds (net of
reasonable costs directly incurred and payable as a result thereof) of the
incurrence after the date hereof of indebtedness for borrowed money by the
Borrower or any Subsidiary (other than (x) the Loans hereunder and (y) other
such indebtedness for borrowed money to the extent the aggregate amount of such
other indebtedness incurred in any one calendar year does not exceed $5,000,000
and incurred after the date hereof on a cumulative basis does not exceed
$10,000,000) or (ii) 50% of the gross proceeds (net of costs directly incurred
and payable as a result thereof) of the sale in a securitization or similar
transaction after the date hereof of accounts receivable by the Borrower or any
Subsidiary; PROVIDED, HOWEVER, that the Commitments shall not be reduced below
$350,000,000 as a result of this clause (b).
(c) UNUSED CREDIT. On April 8, 1997, the Commitments shall reduce by an
amount equal to the lesser of (i) $300,000,000 or (ii) the sum of:
(a) the principal amount then outstanding (or if a revolving credit
facility, then the maximum principal amount of credit then available) on
(i) the Existing Super Food Debt and (ii) the Existing NF Term Debt; plus
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(b) the excess (if any) of (i) $180,000,000 over (ii) the aggregate
cumulative principal amount of Acquisition Credit (excluding Refunding
Borrowings) extended on or prior to such date.
(d) SCHEDULED MANDATORY REDUCTION. On December 31, 1998, the Commitments
shall be reduced to $400,000,000 in the aggregate, unless sooner terminated or
reduced in part to such level pursuant to the above provisions of this
Section 3.6.
(e) TERMINATION DATE. Notwithstanding anything herein to the contrary, on
the Termination Date, the Commitments and the Swing Line Commitment shall in
each case be reduced to $0.
(f) EFFECT OF TERMINATION OR REDUCTION. Any termination or reduction of
the Commitments or the Swing Line Commitment pursuant to this Section 3.6 may
not be reinstated. Each such partial termination or reduction of the
Commitments shall reduce ratably each Bank's Commitment.
SECTION 3.7. MANDATORY PREPAYMENTS. (a) OUT OF PROCEEDS OF
INDEBTEDNESS OR SECURITIZATION. On the date of receipt thereof by the Borrower
or any of its Subsidiaries, the Borrower shall prepay the Loans and (in the
manner contemplated by Section 10.4 hereof) the L/C Obligations by an amount
equal to 100% of the gross proceeds (net of reasonable costs directly incurred
and payable as a result thereof) of (i) the incurrence after the date hereof of
indebtedness for borrowed money by the Borrower or any Subsidiary (other than
(x) the Loans hereunder and (y) other such indebtedness for borrowed money to
the extent the aggregate amount of such other indebtedness incurred in any one
calendar year does not exceed $5,000,000 and incurred after the date hereof on a
cumulative basis does not exceed $10,000,000) or (ii) the sale in any
securitization or similar transaction after the date hereof of accounts
receivable by the Borrower or any Subsidiary. Notwithstanding anything in this
Section 3.7(a) to the contrary, the Borrower shall not be required to make any
prepayment of any Fixed Rate Loan pursuant to this Section 3.7(a) until the last
day of the Interest Period with respect thereto SO LONG AS an amount equal to
the principal amount of such Fixed Rate Loan is deposited by the Borrower in a
segregated cash collateral account with the Administrative Agent for the ratable
benefit of the Banks to be held in such account on terms reasonably satisfactory
to the Administrative Agent. The amount held on deposit in such account shall
if and when requested by the Borrower be invested in direct obligations of, or
obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America with a remaining maturity of one
year or less, or other investments mutually satisfactory to the Borrower and the
Administrative Agent. On the last day of such Interest Period, the amount held
in such account shall be applied so as to make such prepayment, and except
during the continuance of any Event of Default, any balance remaining on deposit
in such account after such application shall be remitted to the Borrower.
(b) UPON CHANGE OF CONTROL. If, within thirty (30) days after receiving
notice under Section 9.5 of a Change of Control, the Required Banks notify the
Borrower that they require prepayment of the Notes, on the date set forth in
such notice (which date shall be no
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earlier than (x) five (5) days after such notice is given or (y) the day on
which the Borrower repays any other Debt before its original scheduled due date,
whichever day is earlier), the Borrower shall pay in full all Obligations then
outstanding, including the prepayment of L/C Obligations in the manner
contemplated by Section 10.4 hereof, and the Commitments and Swing Line
Commitment shall terminate in full.
(c) UPON TERMINATION OF OR REDUCTION IN COMMITMENTS. Except to the extent
the second sentence of Section 3.7(a) provides otherwise, the Borrower shall, on
the date the Commitments or Swing Line Commitment are terminated or reduced in
whole or in part pursuant to Section 3.6 above, prepay the Notes by the amount,
if any, necessary to reduce the aggregate principal amount of Loans and
L/C Obligations to the amount to which the Commitments or Swing Line Commitment
in each case have been reduced, such prepayment to be accompanied by accrued
interest thereon to the date of prepayment together with any compensation due
the Banks under Section 3.8 hereof (with any prepayment of L/C Obligations to be
made in the manner contemplated by Section 10.4 hereof).
SECTION 3.8. FUNDING INDEMNITY. In the event any Bank shall incur any
loss, cost or expense (including, without limitation, any loss of profit, and
any loss, cost or expense incurred by reason of the liquidation or re-employment
of deposits or other funds acquired by such Bank to fund or maintain any Fixed
Rate Loan or the relending or reinvesting of such deposits or amounts paid or
prepaid to such Bank) as a result of:
(a) any payment or prepayment of a Fixed Rate Loan on a date other
than the last day of its Interest Period for any reason, whether before or
after default, and whether or not such payment is required by any
provisions of this Agreement, or
(b) any failure (because of a failure to meet the conditions of
Section 8 or otherwise) by the Borrower to borrow a Fixed Rate Loan on the
date specified in a notice given pursuant to Section 1.5, 1.6(d) or 2.4
hereof,
then, upon the demand of such Bank, the Borrower shall pay to such Bank such
amount as will reimburse such Bank for such loss, cost or expense. If any Bank
makes such a claim for compensation, it shall provide to the Borrower, with a
copy to the Administrative Agent, a certificate executed by an officer of such
Bank setting forth the amount of such loss, cost or expense in reasonable detail
(including an explanation of the basis for and the computation of such loss,
cost or expense) and the amounts shown on such certificate if reasonably
calculated shall be conclusive.
SECTION 3.9. USE OF PROCEEDS. The proceeds of the Loans and Letters of
Credit shall only be used to (i) purchase of Super Food Shares tendered pursuant
to the Tender Offer and to pay Transaction Costs related to the Tender Offer
(each Loan and Letter of Credit, in each case to the extent used for such
purposes, being hereinafter referred to as "TENDER CREDIT") and (ii) make cash
payments in respect of the Super Food Shares which are converted into a right to
receive cash (including as a result of the exercise of appraisal rights) in
connection with the Merger and to pay Transaction Costs related to the Merger
(each Loan and Letter of Credit, in each case to the extent used for such
purposes, being
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hereinafter referred to as "MERGER CREDIT") and (iii) repay each and any issue
of the Existing Super Food Debt (each separate issue to the extent repaid, must
be repaid in full, not in part) and to pay Transaction Costs related to such
repayment (each Loan or Letter of Credit, in each case to the extent used for
such purposes, being hereinafter referred to as "SUPER FOOD DEBT REFINANCING
CREDIT") (the Tender Credit, Merger Credit and Super Food Debt Refinancing
Credit being hereinafter referred to collectively as "ACQUISITION CREDIT") and
(iv) repay each and any issue of the Existing NF Revolver Debt (each separate
issue to the extent repaid, must be repaid in full, not in part) and to pay
Transaction Costs related to such repayment (each Loan or Letter of Credit, in
each case to the extent used for such purposes, being hereinafter referred to as
"NF REVOLVER REFINANCING CREDIT") and (v) repay each and any issue of the
Existing NF Term Debt (each separate issue to the extent repaid, must be repaid
in full, not in part) and to pay Transaction Costs related to such repayment
(each Loan or Letter of Credit, in each case to the extent used for such
purposes, being hereinafter referred to as "NF TERM REFINANCING CREDIT") (Super
Food Debt Refinancing Credit, NF Revolver Refinancing Credit and NF Term
Refinancing Credit being hereinafter referred to collectively as "REFINANCING
CREDIT") and (vi) to provide working capital for the Borrower and its
Subsidiaries (each Loan or Letter of Credit, in each case to the extent used for
such purposes, being hereinafter referred to as "WORKING CAPITAL CREDIT");
PROVIDED, HOWEVER, that not more than $240,000,000 in aggregate cumulative
principal amount of the Loans and Letters of Credit shall constitute Acquisition
Credit.
SECTION 4. FEES.
SECTION 4.1. FACILITY FEE. The Borrower shall pay to the Administrative
Agent for the ratable account of the Banks a facility fee at the rate equal to
the Applicable Margin (as then determined and computed) on the average daily
amount of the Commitments hereunder (whether used or unused), payable in arrears
on the last day of each March, June, September, and December, commencing with
the first of such dates after the date hereof, and on the Termination Date.
SECTION 4.2. LETTER OF CREDIT FEES. On the date of issuance or
extension, or increase in the amount, of any standby Letter of Credit pursuant
to Section 1.2 hereof, the Borrower shall pay to the Administrative Agent for
its own account an issuance fee equal to 1/10 of 1% (0.10%) of the face amount
of (or of the increase in the face amount of) such standby Letter of Credit. In
addition, the Borrower shall pay to the Administrative Agent for its own account
(i) the Administrative Agent's standard issuance fee for each commercial Letter
of Credit and (ii) the Administrative Agent's standard drawing, negotiation,
amendment, and other administrative fees for each Letter of Credit (such
standard fees referred to in the preceding clauses (i) and (ii) may be
established by the Administrative Agent from time to time). Quarterly in
arrears, on the last day of each calendar quarter, commencing on the first of
such dates after the date hereof, the Borrower shall pay to the Administrative
Agent, for the ratable benefit of the Banks in accordance with their
Percentages, a letter of credit fee at a rate per annum equal to the Applicable
Margin for Eurodollar Loans in effect during each day of such quarter applied to
the daily average face amount of Letters of Credit outstanding during such
quarter.
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SECTION 4.3. BID LOAN FEE. The Borrower shall pay to the Administrative
Agent for its own account an administrative fee for each Bid Loan Request by the
Borrower, such fee to be in the amount agreed to in a letter exchanged between
the Borrower and the Agents dated October 4, 1996 and to be payable no later
than 3:00 p.m. (Chicago time) on the date each such Bid Loan Request is received
and to be deemed fully earned whether or not any Bid Loan is made pursuant to
such Bid Loan Request.
SECTION 4.4. AGENTS' FEES. The Borrower shall pay to the Agents the fees
agreed to in a letter exchanged between them dated October 4, 1996.
SECTION 4.5. FEE CALCULATIONS. All fees payable under Sections 4.1 and
4.2 hereof shall be computed on the basis of a year of 365 or 366 days, as
applicable, for the actual number of days elapsed.
SECTION 5. PLACE AND APPLICATION OF PAYMENTS.
SECTION 5.1. PLACE AND APPLICATION OF PAYMENTS. All payments of
principal of and interest on the Loans and the Reimbursement Obligations, and of
all other amounts payable by the Borrower under this Agreement, shall be made to
the Administrative Agent by no later than 12:00 noon (Chicago time) at the
principal office of the Administrative Agent in Chicago, Illinois (or such other
location in the State of Illinois as the Administrative Agent may designate to
the Borrower). Any payments received after such time shall be deemed to have
been received by the Administrative Agent on the next Business Day. All such
payments shall be made in U.S. Dollars, in immediately available funds at the
place of payment. All such payments shall be made, in all cases, without
set-off or counterclaim and, subject to Section 14.1 hereof, without reduction
for, and free from, any and all present or future taxes, levies, imposts,
duties, fees, charges, deductions, withholdings, restrictions or conditions of
any nature imposed by any government or any political subdivision or taxing
authority thereof (but excluding any taxes imposed or measured by the net income
of any Bank). The Administrative Agent will promptly thereafter (and in any
case before the close of business on the day the Administrative Agent receives
such funds, if timely received by the Administrative Agent) cause to be
distributed like funds relating to the payment of principal or interest on
Committed Loans or fees ratably to the Banks and like funds relating to the
payment of any other amount payable to any Bank to such Bank, in each case to be
applied in accordance with the terms of this Agreement. If the Administrative
Agent fails to distribute such payments to any Bank by such times, the
Administrative Agent shall pay to such Bank interest on the amount not paid in
respect of each day during the period commencing on the date such payment was
received by the Administrative Agent (or the following Business Day in the case
of payments received after 12:00 noon (Chicago time)) and ending on but
excluding the date the Administrative Agent pays such amount at a rate per annum
equal to the effective rate charged to the Administrative Agent for overnight
federal funds transactions with member banks of the federal reserve system for
each day as determined by the Administrative Agent (or in the case of a day
which is not a Business Day, then for the preceding day).
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Anything contained herein to the contrary notwithstanding, all payments and
collections received in respect of the indebtedness evidenced by the Notes and
Applications received, in each instance, by the Administrative Agent or any of
the Banks after the occurrence of an Event of Default shall be remitted to the
Administrative Agent and distributed as follows:
(a) first, to the payment of any reasonable outstanding costs and
expenses incurred by the Administrative Agent in protecting, preserving or
enforcing rights under this Agreement, the Notes and the Applications and
in any event including all reasonable costs and expenses of a character
which the Borrower has agreed to pay under Section 14.15 hereof (such funds
to be retained by the Administrative Agent for its own account unless it
has previously been reimbursed for such costs and expenses by the Banks, in
which event such amounts shall be remitted to the Banks to reimburse them
for payments theretofore made to the Administrative Agent);
(b) second, to the payment of any outstanding interest or other fees
or indemnification amounts due under the Notes, the Applications or this
Agreement other than for principal, ratably as among the Administrative
Agent and the Banks in accord with the amount of such interest and other
fees or amounts owing each;
(c) third, to the payment of the principal of the Notes, any
liabilities in respect of Reimbursement Obligations and to the
Administrative Agent to be held as collateral security for any undrawn
Letters of Credit (until the Administrative Agent is holding an amount of
cash equal to the then outstanding amount of all such Letters of Credit),
the aggregate amount paid to or held as collateral security for the Banks
to be allocated pro rata as among the Banks in accord with the then
respective aggregate unpaid principal balances of the Notes and the Letters
of Credit;
(d) fourth, to the Administrative Agent and the Banks ratably in
accord with the amounts of other Obligations owing to each of them (other
than those described above) unless and until all such indebtedness,
obligations and liabilities have been fully paid and satisfied; and
(e) fifth, to the Borrower or whoever may be lawfully entitled
thereto.
.
SECTION 6.1. DEFINITIONS. The following terms when used herein have the
following meanings:
"ACQUISITION" shall mean (x) the Tender Offer and (y) the Merger.
"ACQUISITION CREDIT" is defined in Section 3.9 hereof.
"ACQUISITION PERIOD" means the period commencing on the date of the initial
extension of Tender Credit and concluding with the Merger.
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"ADJUSTED LIBOR" is defined in Section 1.3(b) hereof.
"ADMINISTRATIVE AGENT" means Xxxxxx Trust and Savings Bank and any
successor pursuant to Section 12.8 hereof.
"AFFILIATE" shall mean any Person (i) which directly or indirectly through
one or more intermediaries controls, or is controlled by, or is under common
control with, the Borrower, (ii) which beneficially owns or holds 5% or more of
any class of the Voting Stock of the Borrower or (iii) 5% or more 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 the Borrower or a
Subsidiary. The term "CONTROL" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of Voting Stock, by contract or otherwise.
"AGENTS" mean the Administrative Agent and the Syndication Agents.
"APPLICABLE MARGIN" is defined in Section 1.3(c) hereof.
"APPLICATION" is defined in Section 1.2(d) hereof.
"AUTHORIZED REPRESENTATIVE" means those persons shown on the list of
officers provided by the Borrower pursuant to Section 8.1(d) hereof or on any
update of any such list provided by the Borrower to the Administrative Agent, or
any further or different officer(s) or employee(s) of the Borrower so named by
any Authorized Representative of the Borrower in a written notice to the
Administrative Agent.
"BANK" means each bank signatory hereto and its successors, and any
assignee of a Bank pursuant to Section 14.12 hereof.
"BASE RATE" is defined in Section 1.3(a) hereof.
"BASE RATE LOAN" means a Loan bearing interest at the rate specified in
Section 1.3(a) hereof.
"BID" is defined in Section 2.2(c) hereof.
"BID LOAN" is defined in Section 2.1 hereof.
"BID LOAN LIMIT" shall mean an amount (x) equal to the Commitments if and
so long as Level I Status, Level II Status or Level III Status exist, (y) equal
to 50% of the Commitments if and so long as Level IV Status exists and (z) equal
to $0 at all other times.
"BID LOAN REQUEST" is defined in Section 2.2(a) hereof.
"BID LOAN REQUEST CONFIRMATION" is defined in Section 2.2(a) hereof.
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"BID NOTE" is defined in Section 3.5(b) hereof.
"BORROWER" is defined in the introductory paragraph of this Agreement.
"BORROWING" means the total of Loans of a single type made by one or more
Banks on a single date and for a single Interest Period. Borrowings of
Committed Loans are made and maintained ratably from each of the Banks according
to their Percentages. Borrowings of Bid Loans are made from a Bank or Banks in
accordance with the procedures of Section 2 hereof. Borrowings of Swing Loans
are made from Xxxxxx Bank in accordance with the procedures of Section 1.6
hereof.
"BORROWING DATE" is defined in Section 2.2(a) hereof.
"BUSINESS DAY" means (a) any day other than a Saturday or Sunday on which
(x) banks are not authorized or required to close in Chicago, Illinois or New
York, New York and (y) the Federal Reserve Bank for such cities is generally
open for transaction of its business and (b) if the applicable Business Day
relates to the borrowing or payment of a Eurodollar Loan, any day satisfying the
criteria set forth in the immediately preceding clause (a) on which banks are
dealing in United States Dollar deposits in the interbank market in London,
England and Nassau, Bahamas.
"CAPITAL LEASE" means any lease of Property which in accordance with GAAP
is required to be capitalized on the balance sheet of the lessee.
"CAPITALIZED LEASE OBLIGATIONS" means, for any Person, the amount of such
Person's liabilities under Capitalized Leases determined at any date in
accordance with GAAP.
"CERCLA" is defined in Section 7.12(b) hereof.
"CHANGE OF CONTROL" means the occurrence of any of the following
circumstances:
(a) any Person or two or more Persons acting in concert acquire
beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the
Securities Exchange Act of 1934), directly or indirectly, of Securities of
the Borrower (or other Securities convertible into such Securities)
representing 25% or more of the combined voting power of all Securities of
the Borrower entitled to vote in the election of directors; or
(b) during any period of up to 12 consecutive months, whether
commencing before or after the date hereof, the membership of the Board of
Directors of the Borrower changes for any reason (other than by reason of
death, disability, or scheduled retirement) so that the majority of the
Board of Directors is made up of Persons who were not directors at the
beginning of such 12 month period.
"CODE" means the Internal Revenue Code of 1986, as amended.
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"COMMITMENTS" is defined in Section 1.1 hereof.
"COMMITTED LOANS" in defined in Section 1.1 hereof.
"COMMITTED LOAN NOTE" is defined in Section 3.5(a) hereof.
"COMPLIANCE CERTIFICATE" means a certificate in the form of Exhibit H
hereto.
"CONFIRMATION OF BID" is defined in Section 2.2(c) hereof.
"CONSOLIDATED NET INCOME" means, for any period, the net income (or net
loss) of the Borrower and its Subsidiaries for such period computed on a
consolidated basis in accordance with GAAP, but in any event excluding any
extraordinary profits and losses and also excluding any taxes on such profits
and any tax credits on account of such losses.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its Property is bound.
"CONTROLLED GROUP" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any Subsidiary, are treated as a single
employer under Section 414 of the Code.
"CREDIT EVENT" means the advancing of any Loan, including any Refunding
Borrowing, or the issuance of, or extension of the expiration date or increase
in the amount of, any Letter of Credit.
"CURRENT MATURITIES" shall mean, as applied to any Person as at any date of
determination, all payments of principal due under the terms of Indebtedness of
such Person within twelve calendar months after that date.
"CURRENT RATIO" means, at any time the same is to be determined, the
ratio of current assets of the Borrower and its Subsidiaries to current
liabilities of the Borrower and its Subsidiaries, all as determined on a
consolidated basis in accordance with GAAP consistently applied, but in any
event excluding the Loans from current liabilities for such purposes.
"DCGL" shall mean the Delaware General Corporation Law.
"DEBT" means, for any Person, any Indebtedness of such Person only of the
types described in clauses (i) through (v) of the definition of such term.
"DEBT REFINANCING CREDIT" is defined in Section 3.9 hereof.
"DEFAULT" means any event or condition the occurrence of which would, with
the passage of time or the giving of notice, or both, constitute an Event of
Default.
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"EBIT" means, for any period, Consolidated Net Income for such period PLUS
all amounts deducted in arriving at such Consolidated Net Income amount for such
period for Interest Expense and for federal, state and local income tax expense.
"EBITDA" means, for any period, Consolidated Net Income for such period
PLUS all amounts deducted in arriving at such Consolidated Net Income amount for
such period for Interest Expense and for federal, state and local income tax
expense and for amortization of intangibles and for depreciation of property,
plant and equipment in accordance with GAAP.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"ERISA AFFILIATE" shall mean with respect to any Person, any
(i) corporation which is a member of the same controlled group of corporations
(within the meaning of Section 414(b) of the Code) as such Person,
(ii) partnership or other trade or business (whether or not incorporated) under
common control (within the meaning of Section 414(c) of the Code) with such
Person, and (iii) member of the same affiliated service group (within the
meaning of Section 414(m) of the Code) as such Person, any corporation described
in clause (i) above or any partnership or trade or business described in
clause (ii) above.
"EURODOLLAR BID LOANS" is defined in Section 2.1 hereof.
"EURODOLLAR LOAN" means a Loan bearing interest at the rate specified in
Section 1.3(b) hereof.
"EURODOLLAR RESERVE PERCENTAGE" is defined in Section 1.3(b) hereof.
"EVENT OF DEFAULT" means any of the events or circumstances specified in
Section 10.1 hereof.
"EXISTING DEBT" means the Existing NF Revolver Debt, the Existing NF Term
Debt and the Existing Super Food Debt.
"EXISTING NF REVOLVER DEBT" means the revolving credit facilities currently
available to the Borrower and its Subsidiaries listed on Exhibit L attached
hereto.
"EXISTING NF TERM DEBT" means the term credit facilities currently
available to the Borrower and its Subsidiaries listed on Exhibit M attached
hereto.
"EXISTING SUPER FOOD DEBT" means the revolving and term credit facilities
currently available to Super Food and its subsidiaries listed on Exhibit N
attached hereto.
"FACILITY FEE" means the fee payable by the Borrower to the Banks under
Section 4.1 hereof.
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"FEDERAL FUNDS RATE" shall mean the Federal funds rate described in clause
(ii) (x) of the definition of Base Rate.
"FIXED RATE LOAN" means Eurodollar Loans, Swing Loans and Bid Loans.
"FOREIGN SUBSIDIARY" shall mean (i) each Subsidiary of the Borrower which
is organized under the laws of a jurisdiction other than the United States of
America or any State thereof and (ii) each Subsidiary of the Borrower of which a
majority of the revenues, earnings or total assets (determined on a consolidated
basis with that Subsidiary's subsidiaries) are located or derived from
operations outside of the United States of America.
"GAAP" means generally accepted accounting principles as in effect from
time to time, applied by the Borrower and its Subsidiaries on a basis consistent
with the preparation of the Borrower's most recent financial statements
furnished to the Banks pursuant to Section 7.4(a) hereof.
"GUARANTOR" means each Subsidiary of the Borrower that executes and
delivers to the Administrative Agent a Subsidiary Guarantee Agreement in the
form of Exhibit I hereto along with the accompanying closing documents required
by Sections 8.1 or 9.1 hereof, as applicable.
"GUARANTY" by any Person means (a) all obligations (other than endorsements
in the ordinary course of business of negotiable instruments for deposit or
collection) of such Person to guarantee or otherwise indemnify in respect of, or
to purchase or otherwise acquire, or otherwise to assure a creditor against loss
in respect of, or to assure an obligee against failure to make payment in
respect of, Debt of others and (b) without duplication, all obligations of such
Person arising out of letters of credit (except to the extent such letters of
credit back up indebtedness that constitutes Debt of such Person). For the
purpose of all computations made under this Agreement, the amount of a Guaranty
in respect of any obligation shall be deemed to be equal to the maximum
aggregate amount of such obligation or, if the Guaranty is limited to less than
the full amount of such obligation, the maximum aggregate potential liability
under the terms of the Guaranty.
"XXXXXX BANK" is defined in the introductory paragraph hereof.
"INDEBTEDNESS" means and includes, for any Person, all obligations of such
Person, without duplication, which are required by GAAP to be shown as
liabilities on its balance sheet, and in any event shall include all of the
following whether or not so shown as liabilities (i) obligations of such Person
for borrowed money, (ii) obligations of such Person representing the deferred
purchase price of property or services other than accounts payable arising in
the ordinary course of business on terms customary in the trade,
(iii) obligations of such Person evidenced by notes, acceptances, or other
instruments of such Person (iv) obligations, whether or not assumed, secured by
Liens or payable out of the proceeds or production from Property now or
hereafter owned or acquired by such Person, (v) Capitalized Lease Obligations of
such Person and (vi) obligations for which such Person is obligated pursuant to
a Guaranty.
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"INTEREST COVERAGE RATIO" means, for any period of four consecutive fiscal
quarters of the Borrower ending with the most recently completed such fiscal
quarter, the ratio of EBIT to Interest Expense for such period; PROVIDED,
HOWEVER, that
(a) the Interest Coverage Ratio as of the fiscal quarter of the
Borrower ending on or about March 22, 1997 shall mean the ratio of (x) the
quotient which results by dividing (i) EBIT for the fiscal quarter of the
Borrower then ended by (ii) 0.17 to (y) the quotient which results by
dividing (i) Interest Expense for the same one fiscal quarter by (ii) 0.25;
(b) the Interest Coverage Ratio as of the fiscal quarter of the
Borrower ending on or about June 14, 1997 shall mean the ratio of (x) the
quotient which results by dividing (i) EBIT for the two fiscal quarters of
the Borrower then ended by (ii) 0.43 to (y) the quotient which results by
dividing (i) Interest Expense for the same two fiscal quarters by (ii)
0.50; and
(c) the Interest Coverage Ratio as of the fiscal quarter of the
Borrower ending on or about October 4, 1997 shall mean the ratio of (x) the
quotient which results by dividing (i) EBIT for the three fiscal quarters
of the Borrower then ended by (ii) 0.75 to (y) the quotient which results
by dividing (i) Interest Expense for the same three fiscal quarters by (ii)
0.75.
"INTEREST EXPENSE" means, for any period, the sum of all interest charges
(including imputed interest charges with respect to Capitalized Lease
Obligations and all amortization of debt discount and expense) of the Borrower
and its Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP.
"INTEREST PERIOD" is defined in Section 3.1 hereof.
"INVESTMENTS" is defined in Section 9.14 hereof.
"L/C COMMITMENT" means $25,000,000.
"L/C DOCUMENTS" means the Letters of Credit, any draft or other document
presented in connection with a drawing thereunder, the Applications and this
Agreement.
"L/C OBLIGATIONS" means the aggregate undrawn face amounts of all
outstanding Letters of Credit and all unpaid Reimbursement Obligations.
"LENDING OFFICE" is defined in Section 11.4 hereof.
"LETTER OF CREDIT" is defined in Section 1.2(a) hereof.
"LEVERAGE RATIO" means, as of any time the same is to be determined, the
ratio of Total Funded Debt at such time to EBITDA for the four most recently
completed fiscal quarters of the Borrower; PROVIDED, HOWEVER, that:
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(a) the Leverage Ratio as of the close of the fiscal quarter of the
Borrower ending on or about March 22, 1997 shall mean the ratio of (x)
Total Funded Debt at such time to (y) the quotient which results by
dividing (i) EBITDA for the fiscal quarter of the Borrower then ended by
(ii) 0.17;
(b) the Leverage Ratio as of the close of the fiscal quarter of the
Borrower ending on or about June 14, 1997 shall mean the ratio of (x) Total
Funded Debt at such time to (y) the quotient which results by dividing (i)
EBITDA for the two fiscal quarters of the Borrower then ended by (ii) 0.43;
and
(c) the Leverage Ratio as of the close of the fiscal quarter of the
Borrower ending on or about October 4, 1997 shall mean the ratio of (x)
Total Funded Debt at such time to (y) the quotient which results by
dividing (i) EBITDA for the three fiscal quarters of the Borrower then
ended by (ii) 0.75.
"LEVEL I STATUS" means the S&P Rating is at least BBB+ or higher OR the
Xxxxx'x Rating is at least Baa1 or higher.
"LEVEL II STATUS" means Level I Status does not exist, but the S&P Rating
is at least BBB or higher OR the Xxxxx'x Rating is at least Baa2 or higher.
"LEVEL III STATUS" means neither Level I Status nor Level II Status exists,
but the S&P Rating is at least BBB- or higher OR the Xxxxx'x Rating is at least
Baa3 or higher.
"LEVEL IV STATUS" means none of Level I Status, Level II Status, and
Level III Status exist, but the S&P Rating is at least BB+ OR the Xxxxx'x Rating
is at least Ba1 or higher.
"LEVEL V STATUS" means none of Level I Status, Level II Status, Level III
Status, and Level IV Status exist.
"LIBOR" is defined in Section 1.3(b) hereof.
"LIEN" means any interest in Property securing an obligation owed to, or a
claim by, a Person other than the owner of the Property, whether such interest
is based on the common law, statute or contract, including, but not limited to,
the security interest or lien arising from a mortgage, encumbrance, pledge,
conditional sale, security agreement or trust receipt, or a lease, consignment
or bailment for security purposes. The term "LIEN" shall also include
reservations, exceptions, encroachments, easements, rights of way, covenants,
conditions, restrictions, leases and other title exceptions and encumbrances
affecting Property. For the purposes of this definition, a Person shall be
deemed to be the owner of any Property which it has acquired or holds subject to
a conditional sale agreement, Capitalized Lease or other arrangement pursuant to
which title to the Property has been retained by or vested in some other Person
for security purposes, and such retention of title shall constitute a "LIEN."
However, the term "LIEN" shall not include the sole act of selling accounts
receivable, whether with or without recourse, in a securitization or similar
financing transaction.
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"LOAN" means and includes Committed Loans, Swing Loans and Bid Loans, and
each of them singly, and the term "TYPE" of Loan refers to its status as a
Committed Loan, Swing Loan or Bid Loan or, if a Committed Loan, to its status as
a Base Rate Loan or Eurodollar Loan or, if a Bid Loan, to its status as a Stated
Rate Bid Loan or Eurodollar Bid Loan.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Applications, the
Letters of Credit, and each Subsidiary Guarantee Agreement delivered to the
Administrative Agent pursuant to Sections 8.1 or 9.1 hereof, as applicable.
"LONG-TERM DEBT" shall mean all Total Funded Debt having a final maturity
of one or more than one year from the date of origin thereof (or which is
renewable or extendible at the option of the obligor for a period or periods
more than one year from the date of origin), including all payments in respect
thereof that are required to be made within one year from the date of any
determination of Long-Term Debt.
"MATERIAL PLAN" is defined in Section 10.1(f) hereof.
"MERGER" means the merger of NF Acquisition with and into Super Food, with
Super Food being the corporation surviving such merger on the terms and
conditions set forth in the Merger Agreement.
"MERGER AGREEMENT" means that certain Agreement and Plan of Merger, dated
as of October 8, 1996 between NF Acquisition, the Borrower and Super Food and
delivered to the Banks on or prior to the date hereof.
"MERGER CREDIT" is defined in Section 3.9 hereof.
"XXXXX'X RATING" means the rating assigned by Xxxxx'x Investors Service,
Inc., to the outstanding senior unsecured non-credit enhanced long-term
indebtedness of the Borrower. Any reference in this Agreement to any specific
rating is a reference to such rating as currently defined by Xxxxx'x Investors
Service, Inc., and shall be deemed to refer to the equivalent rating if such
rating system changes.
"NF ACQUISITION" means NFC Acquisition Corporation, a Delaware corporation.
"NOTE" means and includes the Committed Loan Notes, the Swing Note and the
Bid Notes and each individually, unless the context in which such term is used
shall otherwise require.
"OFFER" is defined in Section 2.2(c) hereof.
"OFFER TO PURCHASE" shall mean the Offer to Purchase dated October 9, 1996
issued in connection with the Tender Offer and set forth in Exhibit (a)(1) to
Schedule 14D-1 to the Tender Offer Statement, such offer to be in the form of
the October 8, 1996 12:19 a.m. (Chicago time) draft thereof heretofore submitted
by the Borrower to the Agents.
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"OBLIGATIONS" means all fees payable hereunder, all obligations of the
Borrower to pay principal or interest on Loans and Reimbursement Obligations,
and all other payment obligations of the Borrower arising under or in relation
to any Loan Document.
"PARTICIPATING BANK" is defined in Section 1.2(f) hereof.
"PBGC" is defined in Section 7.9 hereof.
"PERCENTAGE" means, for each Bank, the percentage of the Commitments
represented by such Bank's Commitment or, if the Commitments have been
terminated, the percentage held by such Bank (including through participation
interests in Reimbursement Obligations) of the aggregate principal amount of all
outstanding Obligations.
"PERSON" shall mean an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, and a government or
agency or political subdivision thereof.
"PLAN" means, with respect to the Borrower and each Subsidiary at any time,
an employee pension benefit plan which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code and
either (i) is maintained by a member of the Controlled Group for employees of a
member of the Controlled Group of which the Borrower or such Subsidiary is a
part or (ii) is maintained pursuant to a collective bargaining agreement or any
other arrangement under which more than one employer makes contributions and to
which a member of the Controlled Group of which the Borrower or such Subsidiary
is a part is then making or accruing an obligation to make contributions or has
within the preceding five plan years made contributions.
"PNC BANK" is defined in the introductory paragraph hereof.
"PROPERTY" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible, whether now owned or
hereafter acquired.
"PROXY MATERIALS" shall mean all Proxy Materials, information statements or
similar materials sent or to be sent by Super Food to its stockholders in
connection with the Merger.
"REFUNDING BORROWING" is defined in Section 1.5(d) hereof.
"REIMBURSEMENT OBLIGATION" is defined in Section 1.2(e) hereof.
"REQUIRED BANKS" means, as of the date of determination thereof, Banks
holding at least 51% of the Percentages.
"SECURITY" has the same meaning as in Section 2(l) of the Securities Act of
1933, as amended.
"SEC" means the Securities and Exchange Commission.
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"SET-OFF" is defined in Section 14.7 hereof.
"SHAREHOLDER'S EQUITY" means, as of any date the same is to be determined,
the total shareholder's equity (including capital stock, additional
paid-in-capital and retained earnings after deducting treasury stock, but
excluding minority interests in Subsidiaries) which would appear on a balance
sheet of the Borrower and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"SINGLE RATING STATUS" means the Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status, as the case may be, but with each of
the foregoing determined solely with respect to the S&P Rating or solely with
respect to the Xxxxx'x Rating.
"S&P RATING" means the rating assigned by Standard & Poors Ratings Services
Group, a division of The XxXxxx-Xxxx Companies, Inc., to the outstanding senior
unsecured non-credit enhanced long-term indebtedness of the Borrower. Any
reference in this Agreement to any specific rating is a reference to such rating
as currently defined by Standard & Poors Ratings Services Group, a division of
The XxXxxx-Xxxx Companies, Inc., and shall be deemed to refer to the equivalent
rating if such rating system changes.
"STATED RATE BID LOANS" is defined in Section 2.1 hereof.
"SUBSIDIARY GUARANTEE AGREEMENT" means a letter to the Administrative Agent
in the form of Exhibit I hereto executed by a Subsidiary whereby it acknowledges
it is party hereto as a Guarantor under Section 13 hereof.
The term "SUBSIDIARY" means, as to any particular parent corporation, any
corporation of which more than 50% (by number of votes) of the Voting Stock
shall be owned by such parent corporation and/or one or more corporations which
are themselves subsidiaries of such parent corporation. The term "SUBSIDIARY"
shall mean a subsidiary of the Borrower.
"SUPER FOOD" shall mean Super Food Services, Inc., a Delaware corporation.
"SUPER FOOD SHARES" shall mean the common stock, par value $1.00 per share,
of Super Food.
"SWING LINE COMMITMENT" means the commitment of Xxxxxx to make Swing Loans
in the amount set forth opposite its signature hereto under the heading "Swing
Line Commitment".
"SWING NOTE" is defined in Section 3.5(b) hereof.
"SWING LOANS" is defined in Section 1.6(a) hereof.
"SYNDICATION AGENTS" is defined in the introductory paragraph hereof and
includes any successor thereto pursuant to Section 12.8 hereof.
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"TANGIBLE NET WORTH" means, as of any time the same is to be determined,
the Shareholders' Equity less the sum of (i) the aggregate book value of all
assets which would be classified as intangible assets under GAAP, including,
without limitation, goodwill, patents, trademarks, trade names, copyrights,
franchises and deferred charges (including, without limitation, unamortized debt
discount and expense, organization costs and deferred research and development
expense) and similar assets and (ii) the write-up of assets above cost.
"TENDER CREDIT" is defined in Section 3.9 hereof.
"TENDER OFFER" means the offer to purchase for cash outstanding Super Food
shares pursuant to the Tender Offer Materials.
"TENDER OFFER MATERIALS" means the Tender Offer Statement on Schedule 14D-1
and on Schedule 13D to be filed by NF Acquisition with the SEC pursuant to
Sections 14(d)(1) and 13(e) of the Exchange Act on October 9, 1996 in the form
of the October 8, 1996 12:14 a.m. (Chicago time) draft thereof heretofore
submitted by the Borrower to the Agents, together with all exhibits thereto,
including the form of the Offer to Purchase, and any amendments or supplements
thereto.
"TENDERED SUPER FOOD SHARES" means all of the Super Food Shares tendered to
and purchased by NF Acquisition pursuant to the Tender Offer.
"TERMINATION DATE" means October 8, 2001, or such earlier date on which the
Commitments are terminated in whole pursuant to Sections 3.6, 3.7, 10.2 or 10.3
hereof.
"TOTAL ASSETS" shall mean as of the date of any determination thereof, the
total amount of all assets of the Borrower and its Subsidiaries as determined on
a consolidated basis in accordance with GAAP.
"TOTAL FUNDED DEBT" means all Debt of the Borrower and its Subsidiaries
determined without duplication on a consolidated basis.
"TRANSACTION COSTS" means the fees, costs and expenses payable by the
Borrower pursuant hereto and other fees, costs and expenses (other than the
purchase price of the Tendered Super Food Shares) payable by the Borrower or any
Subsidiary in connection with the Tender Offer, the Merger, this Agreement or
the refinancing of the Existing Debt.
"UNFUNDED VESTED LIABILITIES" means, with respect to any Plan, which is not
a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, at any time,
the amount (if any) by which the present value of all vested nonforfeitable
accrued benefits under such Plan exceeds the fair market value of all Plan
assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plan using the assumptions used in the valuation
prepared as of such date for purposes of Code Section 412, but only to the
extent
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that such excess represents a potential liability of a member of the Controlled
Group to the PBGC or such Plan under Title IV of ERISA.
"VOTING STOCK" shall mean Securities of any class or classes 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).
"WEIGHTED AVERAGE LIFE TO MATURITY" means for any Long-Term Debt (the
"RELEVANT DEBT") as at the time of determination thereof, the number of years
obtained by dividing the then Remaining Dollar Years of the Relevant Debt by the
then outstanding principal amount of the Relevant Debt. For purposes hereof,
the term "REMAINING DOLLAR YEARS" of the Relevant Debt means the amount obtained
by (i) multiplying the amount of each then remaining required payment or
redemption (including the repayment at final maturity), by the number of years
(calculated at the nearest one-twelfth) which will elapse between the date of
determination of the Weighted Average Life to Maturity of the Relevant Debt and
the date of that required payment and (ii) totaling all of the products obtained
in this clause (i).
"WELFARE PLAN" means a "welfare plan" as defined in Section 3(1) of ERISA.
"WHOLLY-OWNED" when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock (except
shares required as directors' qualifying shares) shall be owned by the Borrower
and/or one or more of its Wholly-owned Subsidiaries.
"WORKING CAPITAL CREDIT" is defined in Section 3.9 hereof.
SECTION 6.2. INTERPRETATION. The foregoing definitions shall be equally
applicable to both the singular and plural forms of the terms defined. All
references to times of day herein shall be references to Chicago, Illinois time
unless otherwise specifically provided. Where the character or amount of any
asset or liability or item of income or expense is required to be determined or
any consolidation or other accounting computation is required to be made for the
purposes of this Agreement, the same shall be done in accordance with GAAP
consistently applied, except where such principles are inconsistent with the
specific provisions of this Agreement.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby (x) represents and warrants to each Bank as to itself
and (y) where the following representations and warranties apply to
Subsidiaries, represents and warrants to each Bank as to each of the Borrower's
Subsidiaries and (z) where the following representations and warranties apply to
Super Food and its subsidiaries, during the Acquisition Period and so long
thereafter and to the extent that Super Food and each of its subsidiaries
constitute Subsidiaries, represents and warrants as to Super Food and such
subsidiaries (it being understood and agreed that notwithstanding anything
herein to the
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contrary, prior to the Acquisition Period, the Borrower makes no representations
or warranties with respect to Super Food and its subsidiaries), as follows:
SECTION 7.1. CORPORATE ORGANIZATION AND AUTHORITY. Each of the Borrower
and Super Food is duly organized and existing in good standing under the laws of
the State of Delaware; has all necessary corporate power to carry on its present
business; and is duly licensed or qualified and in good standing in each
jurisdiction in which the nature of the business transacted by it or the nature
of the Property owned or leased by it makes such licensing or qualification
necessary and in which the failure to be so licensed or qualified would
materially and adversely affect its business, operations, Properties, condition
(financial or otherwise) or prospects.
SECTION 7.2. SUBSIDIARIES. Schedule 7.2 (as updated from time to time
pursuant to Sections 9.5(a)(viii) and 9.16) hereto identifies each Subsidiary,
the jurisdiction of its incorporation or organization, as the case may be, the
percentage of issued and outstanding shares of each class of its capital stock
or other equity interests owned by the Borrower and the Subsidiaries and, if
such percentage is not 100% (excluding directors' qualifying shares as required
by law), a description of each class of its authorized capital stock and other
equity interests and the number of shares of each class issued and outstanding.
Each Subsidiary of the Borrower and each subsidiary of Super Food is duly
incorporated and existing in good standing as a corporation under the laws of
the jurisdiction of its incorporation, has all necessary corporate power to
carry on its present business, and is duly licensed or qualified and in good
standing in each jurisdiction in which the nature of the business transacted by
it or the nature of the Property owned or leased by it makes such licensing or
qualification necessary and in which the failure to be so licensed or qualified
would materially and adversely affect its business, operations, Properties,
condition (financial or otherwise) or prospects. All of the issued and
outstanding shares of capital stock of each Subsidiary of the Borrower and each
subsidiary of Super Food are validly issued and outstanding and fully paid and
nonassessable. All such shares owned by the Borrower are owned beneficially,
and of record, free of any Lien.
SECTION 7.3. CORPORATE AUTHORITY AND VALIDITY OF OBLIGATIONS. The
Borrower has full right and authority to enter into this Agreement and the other
Loan Documents to which it is a party, to make the borrowings herein provided
for, to issue its Notes in evidence thereof, to apply for the issuance of the
Letters of Credit, and to perform all of its obligations under the Loan
Documents to which it is a party. On and after commencement of the Acquisition
Period, each of NF Acquisition and Super Food has full right and authority to
consummate the Acquisition. Each Guarantor has full right and authority to
enter into its Subsidiary Guarantee Agreement and to perform all of its
obligations thereunder. Each Loan Document to which the Borrower or any
Guarantor is a party has been duly authorized, executed and delivered by the
Borrower or such Guarantor, as the case may be, and constitutes valid and
binding obligations of such Person enforceable in accordance with its terms,
subject to general principles of equity and bankruptcy, reorganization,
insolvency and similar laws of general application to enforcement of creditors'
rights. No Loan Document, nor the performance or observance by the Borrower or
any Guarantor of any of the matters or things therein provided for, contravenes
any
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provision of law or any charter or by-law provision of the Borrower or any
Guarantor or (individually or in the aggregate) any material Contractual
Obligation of or affecting the Borrower or any Guarantor or any of their
respective Properties or results in or requires the creation or imposition of
any Lien on any of the Properties or revenues of the Borrower or any Guarantor.
SECTION 7.4. FINANCIAL STATEMENTS. (a) The audit report of the Borrower
for the year ended December 30, 1995, including a consolidated balance sheet as
of December 30, 1995, and a consolidated statement of profit and loss for the
12 months ended said date, certified by Ernst & Young L.L.P., and the interim
consolidated and consolidating balance sheets of the Borrower and the
Subsidiaries as at June 15, 1996, and consolidated and consolidating statements
of profit and loss for the respective six (6) accounting periods then ended
prepared by the Borrower and heretofore furnished to the Banks, all as
heretofore presented to the Banks, fairly present the financial condition of the
Borrower and the Subsidiaries as at said dates and the results of operations for
the periods covered thereby. As of the date hereof, the Borrower and the
Subsidiaries have no known contingent liabilities which are material to the
Borrower or any Subsidiary other than as indicated on the financial statements
accompanying said audit report. As of the date hereof, the Existing NF Term
Debt does not aggregate more than the amount reflected in such interim June 15,
1996 balance sheet.
(b) The audit report of Super Food for the year ended August 26, 1995,
including a consolidated balance sheet as of August 26, 1995, and a consolidated
statement of profit and loss for the 12 months ended said date, certified by
Xxxxxx Xxxxxxxx L.L.P., and the interim consolidated and consolidating balance
sheets of Super Food and its subsidiaries as at May 4, 1996, and consolidated
and consolidating statements of profit and loss for the thirty-six (36) weeks
then ended prepared by Super Food and heretofore furnished to the Banks, all as
heretofore presented to the Banks, fairly present the financial condition of
Super Food and its subsidiaries as at said dates and the results of operations
for the periods covered thereby. As of the date hereof, Super Food and its
subsidiaries have no known contingent liabilities which are material to Super
Food or any of its subsidiaries other than as indicated on the financial
statements accompanying said audit report. As of the commencement of the
Acquisition Period, the Existing Super Food Debt does not aggregate more than
$95,000,000.
SECTION 7.5. MATERIAL ADVERSE CHANGE. Since May 4, 1996, there have been
no material adverse changes in the business, operations, Properties, condition
(financial or otherwise) or prospects of the Borrower and the Subsidiaries taken
as a whole or Super Food and its subsidiaries taken as a whole.
SECTION 7.6 NO LITIGATION; NO LABOR CONTROVERIES. (a) There is no
litigation or governmental proceeding pending, or to the knowledge of the
Borrower or any Guarantor threatened, against the Borrower or any Subsidiary, or
Super Food or any of its subsidiaries, in each case which would (individually or
in the aggregate) reasonably be expected to have a material adverse effect on
the business, operations, Properties, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole
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or Super Food and its subsidiaries taken as a whole or which would reasonably be
expected to prevent or unduly delay the Merger or the consummation of the Tender
Offer.
(b) There are no labor controversies pending or, to the knowledge of the
Borrower threatened, against the Borrower or any Subsidiary or Super Food or any
of its subsidiaries which could (insofar as the Borrower may reasonably foresee)
materially adversely affect the business, operations, Properties, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole or Super Food and its subsidiaries taken as a whole.
SECTION 7.7. TAXES. The Borrower and its Subsidiaries, and Super Food
and its subsidiaries, have filed all United States federal tax returns, and all
other tax returns, required to be filed and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary, except such taxes, if any, as are being contested in good faith and
for which adequate reserves have been provided. No notices of tax liens have
been filed and no claims are being asserted concerning any such taxes, which
liens or claims are material to the financial condition of the Borrower and its
Subsidiaries on a consolidated basis taken as a whole or the financial condition
of Super Food and its subsidiaries on a consolidated basis taken as a whole.
The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries, or Super Food and its subsidiaries, for any taxes or other
governmental charges are adequate.
SECTION 7.8. APPROVALS. No authorization, consent, license, or exemption
from, or filing or registration with, any court or governmental department,
agency or instrumentality, nor any approval or consent of the stockholders of
the Borrower or any Subsidiary or from any other Person, is necessary to the
valid execution, delivery or performance by the Borrower or any Subsidiary of
any Loan Document to which it is a party or (after commencement of the
Acquisition Period) is necessary to the consummation of the Acquisition, except
for (i) such thereof as have been obtained and are in full force and effect and
(ii) after commencement of the Acquisition Period but in no event on or after
the initial extension of Merger Credit, approval of the Merger by holders of a
majority of the outstanding Super Food Shares (or if NF Acquisition purchases
more than 90% of the outstanding Super Food Shares in the Tender Offer, the
approval of the Board of Directors of NF Acquisition pursuant to Section 253 of
the DGCL).
SECTION 7.9. ERISA. The Borrower and its ERISA Affiliates, and Super
Food and its ERISA Affiliates, are in compliance in all material respects with
ERISA and provisions of the Code pertaining to the Plans to the extent
applicable to them and have received no notice to the contrary from the Internal
Revenue Service, the Department of Labor or the Pension Benefit Guaranty
Corporation ("PBGC"). As of the most recent annual valuation date for each Plan
(other than a multiemployer plan as defined in Section 4001(a)(3) of ERISA), the
amount of Unfunded Vested Liabilities does not exceed $1,000,000. Neither the
Borrower, Super Food nor any of their respective ERISA Affiliates has (i) failed
to make a required contribution or payment of a "MULTIEMPLOYER PLAN" (as defined
in Section 4001(a)(3) of ERISA) or (ii) made a complete or partial withdrawal
under Sections 4203 or 4205 of ERISA from a multiemployer plan. Neither the
Borrower, Super
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Food nor any of their respective ERISA Affiliates maintains or contributes to
any Welfare Plan (other than a multiemployer plan as defined in Section 3(37) of
ERISA) which provides benefits to employees after termination of employment
(other than as required under Section 601 of ERISA or any comparable applicable
state law) which could result in a material obligation to pay money, except for
such plans, if any, as are listed in Exhibit J hereto.
SECTION 7.10. GOVERNMENT REGULATION. Neither the Borrower nor any
Subsidiary, and neither Super Food nor any of its subsidiaries, is an
"INVESTMENT COMPANY" nor a company "CONTROLLED" by an "INVESTMENT COMPANY
ORGANIZED OR OTHERWISE CREATED UNDER THE LAWS OF THE UNITED STATES OR OF A
STATE" within the meaning of the Investment Company Act of 1940, as amended, or
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", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 7.11. MARGIN STOCK. Neither the Borrower nor any Subsidiary is
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock ("MARGIN STOCK" to have the same meaning herein as in
Regulation U of the Board of Governors of the Federal Reserve System). The
Borrower will not use the proceeds of any Loan or Letter of Credit in a manner
that violates any provision of Regulation U or X of the Board of Governors of
the Federal Reserve System.
SECTION 7.12. LICENSES AND AUTHORIZATIONS; COMPLIANCE WITH LAWS. (a) The
Borrower and each of its Subsidiaries, and Super Food and each of its
subsidiaries, have all necessary material licenses, permits and governmental
authorizations to own and operate its Properties and to carry on its business as
currently conducted and contemplated.
(b) To the best of the Borrower's knowledge, the Borrower and each of its
Subsidiaries, and Super Food and each of its subsidiaries, are in compliance in
all material respects with all applicable state and federal environmental,
health and safety statutes and regulations, including, without limitation,
regulations promulgated under the Resource Conservation and Recovery Act of
1976, 42 U.S.C. Sections 6901 ET SEQ. and, to the best knowledge of the
Borrower, have not acquired, incurred or assumed, directly or indirectly, any
material contingent liability in connection with the release of any toxic or
hazardous waste or substance into the environment. Neither the Borrower nor any
Subsidiary, and neither Super Food nor any of its subsidiaries, is the subject
of any evaluation under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended by the Specified Amendments and
Reauthorization Act of 1986, 42 U.S.C. Sections 9601 ET SEQ ("CERCLA") which
would be reasonably expected to reflect noncompliance with such statutes and
regulations, the compliance with which would reasonably be expected to have a
material adverse effect on the business, operations, Properties, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole or Super Food and its subsidiaries taken as a whole.
SECTION 7.13. OWNERSHIP OF PROPERTY; LIENS. As of the date hereof, the
Borrower and the Subsidiaries have good and defensible title to their respective
assets as reflected on the
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consolidated interim balance sheet of the Borrower and the Subsidiaries dated as
of June 15, 1996 (except for sales by the Borrower and such Subsidiaries in the
ordinary course of their respective businesses), subject to no Liens or
encumbrances other than such thereof as are permitted by Section 9.13 hereof.
SECTION 7.14. NO BURDENSOME RESTRICTIONS; COMPLIANCE WITH AGREEMENTS. (a)
Neither the Borrower nor any Subsidiary is (i) party or subject to any law,
regulation, rule or order, or any Contractual Obligation that (individually or
in the aggregate) materially adversely affects, or (insofar as the Borrower may
reasonably foresee) may so affect, the business, operations, Property, condition
(financial or otherwise) or prospects of the Borrower and the Subsidiaries taken
as a whole or (ii) in default in the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in any agreement to
which it is a party, which default materially adversely affects, or (insofar as
the Borrower may reasonably foresee) may so affect, the business, operations,
Property or financial or other condition of the Borrower and the Subsidiaries
taken as a whole or (on and after the date of the initial extension of Tender
Credit) Super Food and its subsidiaries taken as a whole.
(b) On and after commencement of the Tender Offer, none of the Merger, the
Tender Offer or the transactions contemplated thereby violates any material
applicable law or regulation in any material respect.
SECTION 7.15. TENDER OFFER. On and after commencement of the Tender
Offer, the Tender Offer has been made and conducted in all material respects
with all applicable provisions of law, including without limitation the
provisions of Section 14(d) and 14(e) of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, and applicable state
securities laws.
SECTION 7.16. MERGER AGREEMENT. On and after commencement of the Tender
Offer, the Borrower has delivered to the Banks true, correct and complete copies
of the Merger Agreement and of all exhibits and schedules delivered to Super
Food by NF Acquisition or by Super Food to NF Acquisition pursuant to the Merger
Agreement. Each of the representations and warranties given by NF Acquisition
and Super Food in the Merger Agreement was true and correct in all material
respects as of the date of the Merger Agreement.
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SECTION 7.17. DISCLOSURE.
(a) LOAN. All information heretofore furnished by the Borrower to the
Administrative Agent or any Bank for purposes of or in connection with the Loan
Documents or any transaction contemplated thereby is, and all such information
hereafter furnished by the Borrower to the Administrative Agent or any Bank will
be, true and accurate in all material respects and not misleading on the date as
of which such information is stated or certified.
(b) ACQUISITION. On and after commencement of the Acquisition Period,
taken as a whole, the representations and warranties of the Borrower and Super
Food and their respective subsidiaries contained in the Merger Agreement, the
Tender Offer Materials, Proxy Materials and any other document, certificate or
written statement furnished to the Banks by or on behalf of any such Person for
use in connection with the Acquisition do not contain any untrue statement of a
material fact or omit to state a material fact (known to any such Person in the
case of any document not furnished by it) necessary in order to make the
statements contained herein or therein not misleading. Any reaffirmation of the
foregoing sentence is subject to any change in the facts and conditions on which
such representations and warranties are based, which changes are required,
contemplated or permitted under this Agreement; PROVIDED, HOWEVER, that in all
cases, taken as a whole, representations and warranties of any such Person
contained in the Merger Agreement, the Tender Offer Materials, the Proxy
Materials and any other document, certificate or written statement furnished to
the Banks by or on behalf of any such Person for use in connection with the
Acquisition did not contain at the time made any untrue statement of a material
fact or omit at the time made to state a material fact (known to any such Person
in the case of any document not furnished by it) necessary in order to make the
statement contained herein or therein not misleading.
(c) GENERALLY. The projections and pro forma financial information
contained in the materials referred to above in this Section are based upon good
faith estimates and assumptions believed by the Borrower to be reasonable at the
time made, it being recognized by the Banks that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results. Except as otherwise disclosed in writing to the Banks, there is no
fact known to any such Person (other than matters of a general economic nature)
which materially and adversely affects the business, operations, property,
assets or condition (financial or otherwise) of the Borrower and the
Subsidiaries taken as a whole or (on and after the date of the initial extension
of Tender Credit) Super Food and its subsidiaries, in each case which has not
been disclosed herein or in such other documents (including the Merger
Agreement), certificates and statements furnished to the Banks for use in
connection with the transactions contemplated hereby.
Section 8. Conditions Precedent.
The obligation of each Bank to make any Loan, or of the Administrative
Agent to issue, extend the expiration date (including by not giving notice of
non-renewal) of or
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increase the amount of any Letter of Credit, shall be subject to the following
conditions precedent:
SECTION 8.1. INITIAL BORROWING. Prior to the initial Credit Event:
(a) The Administrative Agent shall have received the favorable
written opinion of counsel to the Borrower, in substantially the form of
Exhibit K hereto, and otherwise in form and substance satisfactory to the
Agents and the Required Banks;
(b) The Administrative Agent shall have received (i) certified copies
of resolutions of the Board of Directors of the Borrower and NF Acquisition
authorizing the execution, delivery and performance of, and indicating the
authorized signers of, the Loan Documents to which it is a party and all
other documents relating thereto and the specimen signatures of such
signers and (ii) copies of the Articles of Incorporation and by-laws for
the Borrower and each Guarantor certified by its Secretary or other
appropriate officer, together with a certificate of good standing certified
by the appropriate governmental officer in the jurisdiction of its
incorporation;
(c) The Administrative Agent shall have received a Subsidiary
Guaranty Agreement from NF Acquisition;
(d) The Administrative Agent shall have received from the Borrower a
list of its Authorized Representatives;
(e) The proceeds of such initial Credit Events shall be used to pay
in full all Existing NF Revolver Debt and effect a cancellation of all the
Borrower's obligations thereunder; and
(f) A certificate, signed by an Authorized Representative of the
Borrower, stating that on the date hereof no Default or Event of Default
has occurred and is continuing.
SECTION 8.2. ALL CREDIT. As of the time of each Credit Event hereunder
(including the initial Credit Event):
(a) In the case of a Borrowing of Committed Loans, the Administrative
Agent shall have received for each Bank such Bank's duly executed Committed
Loan Note of the Borrower dated the date of the initial Committed Loan by
such Bank and otherwise in compliance with the provisions of Section 3.5
hereof and the notice required by Section 1.5(a) hereof (including any
deemed notice under Section 1.5(c)); in the case of a Borrowing of a Bid
Loan, the Administrative Agent shall have received for each Bank a Bid Note
duly executed by the Borrower dated the date of the initial Bid Loan and
otherwise in compliance with the provisions of Section 3.5 hereof and the
notice required by Section 2.2 hereof; in the case of a Swing Loan, the
Administrative Agent shall have received the Swing Line Note dated the date
of the initial Swing Loan and otherwise in compliance with the provisions
of Section 3.5
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hereof and the notice required by Section 1.6(d) hereof; in the case of the
issuance of any Letter of Credit, the Administrative Agent shall have
received a duly completed Application for such Letter of Credit; and, in
the case of an extension or increase in the amount of a Letter of Credit,
a written request therefor, in a form acceptable to the Administrative
Agent;
(b) Each of the representations and warranties of the Borrower set
forth in Section 7 (other than Section 7.5) hereof shall be true and
correct as of said time, except to the extent that any such representation
or warranty relates solely to an earlier date;
(c) The Borrower shall be in full compliance with all of the terms
and conditions hereof, and no Default or Event of Default shall have
occurred and be continuing or would occur as a result of making such
Borrowing;
(d) After giving effect to the Borrowing, (i) the aggregate principal
amount of all Loans (whether Committed Loans, Swing Loans or Bid Loans) and
L/C Obligations outstanding hereunder shall not exceed the Commitments,
(ii) the aggregate principal amount of Swing Loans outstanding hereunder
shall not exceed the lesser of the unused Commitments or the Swing Line
Commitment and (iii) the aggregate principal amount of all Bid Loans
outstanding hereunder shall not exceed the lesser of the unused Commitments
or the Bid Loan Limit; and
(e) Such Borrowing shall not violate any order, judgment or decree of
any court or other authority or any provision of law or regulation
applicable to any Bank (including, without limitation, Regulation U of the
Board of Governors of the Federal Reserve System) as then in effect.
Each request for a Borrowing hereunder and each request for the issuance
of, increase in the amount of, or extension of the expiration date of, a Letter
of Credit shall be deemed to be a representation and warranty by the Borrower on
the date of such Borrowing as to the facts specified in paragraphs (b), (c), and
(d) of this Section 8.2.
SECTION 8.3. ADDITIONAL CONDITIONS TO LOANS OTHER THAN REFUNDING
BORROWINGS. In addition to the conditions set forth in Sections 8.1 and 8.2
hereof, as of the time of each Borrowing other than a Refunding Borrowing, the
representations and warranties set forth in Section 7.5 hereof shall be true as
of said time (except that the date referenced therein shall be deemed a
reference to the date as of which the most recent financial statements furnished
to the Banks pursuant to Section 9.5 were prepared), and the request for such
Borrowing, as referred to in Section 8.2(a), shall be and constitute a
representation and warranty as to such matters specified in Section 7.5 hereof
(except that the date referenced therein shall be deemed a reference to the date
as of which the most recent financial statements furnished to the Banks pursuant
to Section 9.5 were prepared).
SECTION 8.4. INITIAL TENDER CREDIT. As of the time of each Credit Event
(including, if applicable, the initial Credit Event) constituting an extension
of Tender Credit:
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(a) The Administrative Agent shall have received a Subsidiary
Guaranty Agreement from NF Acquisition, together with the related
documentation (including legal opinion) required by Section 9.1 hereof;
(b) There shall have been delivered to the Banks true, correct and
complete copies of the Tender Offer Materials, which shall be in form and
substance reasonably satisfactory to the Agents and the Required Banks;
(c) Copies of all Proxy Materials (if any) shall have been delivered
to the Banks, and such Proxy Materials shall be satisfactory in form and
substance to the Agents and the Required Banks;
(d) There shall have been delivered to the Banks a true, correct and
complete copy of the Merger Agreement, which shall have been duly
authorized, executed and delivered by each party thereto and otherwise be
in form and substance reasonably satisfactory to the Agents and the
Required Banks;
(e) Each of the conditions to purchase contained in the Merger
Agreement (except for the consummation of the Tender Offer) shall have been
satisfied (and not waived) to the satisfaction of the Agents and the
Required Banks;
(f) The Tender Offer shall be consummated substantially in accordance
with the terms thereof, and the Tendered Super Food Shares which would be
purchased concurrently with the receipt of proceeds of such initial Tender
Credit shall represent, in the aggregate, more than fifty percent (50%) of
the outstanding Super Food Common Stock on a fully diluted basis, and the
Borrower shall have delivered an officers' certificate to such effect in
form and substance satisfactory to the Agents and the Required Banks;
(g) There shall have been no material changes to the Offer to
Purchase, except for a change in the Offer's price per share for the Super
Food Shares which would not reasonably be expected to require the Borrower
to need more credit for the Acquisition than is permitted hereunder;
(h) No injunction, preliminary injunction or temporary restraining
order shall exist which prohibits the extension of credit hereunder or the
consummation of the Tender Offer or the Merger, and no litigation or
similar proceedings shall exist with respect to the Tender Offer or the
Merger of the transactions described herein which, if adversely determined,
would, in the reasonable judgment of any Bank, have a material adverse
effect on the consolidated financial condition or results of operations of
the Borrower and its Subsidiaries taken as a whole or Super Food and its
subsidiaries taken as a whole or which would reasonably be expected to
prevent or unduly delay the Merger or the consummation of the Tender Offer;
(i) The Merger shall not be subject to any restrictions of Section
203 of the DGCL or any successor statute and shall not be governed by any
other statute, rule or
-43-
regulation of Delaware or any other state restricting in any material respect
the ability of the Borrower or any of its affiliates to consummate the
Acquisition on the terms and conditions set forth herein which has not been
complied with; and
(j) The Borrower shall have provided evidence satisfactory to the
Agents and the Required Banks that the proceeds of the Tender Credit shall
have been irrevocably committed to the purchase of the Tendered Super Food
Shares and the payment of Transaction Costs related to the Tender Offer.
SECTION 8.5. INITIAL MERGER CREDIT. As of the time of each Credit Event
(including, if applicable, the initial Credit Event) constituting an extension
of Merger Credit:
(a) The Administrative Agent shall have received a Subsidiary
Guarantee Agreement from Super Food and each of its subsidiaries, together
with the related documentation (including legal opinion) required by
Section 9.1 hereof;
(b) NF Acquisition shall have merged with and into Super Food in
compliance with the Merger Agreement and all applicable laws;
(c) Copies of all Proxy Materials (if any) shall have been delivered
to the Banks, and such Proxy Materials shall be reasonably satisfactory in
form and substance to the Agents and the Required Banks;
(d) No injunction, preliminary injunction or temporary restraining
order shall exist which prohibits the extension of credit hereunder or the
consummation of the Merger, and no litigation or similar proceedings shall
exist with respect to the Merger of the transactions described herein
which, if adversely determined, would, in the reasonable judgment of any
Bank, have a material adverse effect on the consolidated financial
condition or results of operations of the Borrower and its Subsidiaries;
and
(e) The Borrower shall have provided evidence reasonably satisfactory
to the Agents and the Required Banks that the proceeds of the Merger Credit
shall have been irrevocably committed to make cash payments in respect of
the Super Food Shares converted into rights to receive cash (including as a
result of the exercise of appraisal rights) in connection with the Merger
and to pay Transaction Costs related to the Merger.
SECTION 8.6. DEBT REFINANCING CREDIT. As of the time of each Credit
Event hereunder (including, if applicable, the Initial Credit Event)
constituting an extension of Debt Refunding Credit:
(a) There shall have been delivered to the Administrative Agent a
payoff letter from each holder of the Existing Debt being repaid (or a duly
appointed trustee or agent for such holder) in which each such party agrees
to cancel all loan and other agreements governing such Existing Debt (or
that all such loan and other agreements
-44-
shall automatically be canceled) and to return to the Borrower all
promissory notes and other evidences of such Existing Debt, in each case
upon receipt of the payoff amount stated in such letter, which payoff
letter shall otherwise be in form and substance reasonably satisfactory to
the Agents and Required Banks;
(b) The Borrower shall have provided evidence reasonably satisfactory
to the Agents and the Required Banks that the proceeds of the Debt
Refinancing Credit shall have been irrevocably committed to the repayment
of the relevant Existing Debt and to the payment of Transaction Costs
related to the repayment of the such Existing Debt; and
(c) In the case of any Super Food Debt Refinancing Credit, the
conditions precedent to availability of the Acquisition Credit shall have
been satisfied.
SECTION 9. COVENANTS.
The Borrower agrees that, so long as any Note or L/C Obligation is
outstanding hereunder or any credit is available to or in use by the Borrower
hereunder, except to the extent compliance in any case or cases is waived in
writing by the Required Banks:
SECTION 9.1 CORPORATE EXISTENCE; SUBSIDIARIES. The Borrower shall, and
shall cause each of its Subsidiaries to, preserve and maintain its corporate
existence, subject to the provisions of Section 9.15 hereof. As a condition to
establishing or acquiring any Subsidiary, unless the Required Banks otherwise
agree, the Borrower shall (i) cause such Subsidiary to execute a Subsidiary
Guarantee Agreement, (ii) cause such Subsidiary to deliver documentation
(including a legal opinion) similar to that described in Section 8.1(a) through
(c) relating to the authorization for, execution and delivery of, and validity
of such Subsidiary's obligations as a Guarantor hereunder and under the
Subsidiary Guarantee Agreement in form and substance satisfactory to the
Required Banks and (iii) deliver an updated Schedule 7.2 to reflect the new
Subsidiary. Notwithstanding the foregoing, no such Subsidiary Guarantee
Agreement or related documentation (including a legal opinion) shall be required
for any Subsidiary (other than NF Acquisition) until November 30, 1996; FURTHER
PROVIDED, HOWEVER, that a Subsidiary Guarantee Agreement and such related
documentation (including a legal opinion) must be provided for Super Food and
each of its subsidiaries no later than five (5) Business Days following the
earlier of the consummation of the Tender Offer or the initial extension of
Tender Credit.
SECTION 9.2. MAINTENANCE. The Borrower will maintain, preserve and keep
its plants, properties and equipment deemed by it necessary to the proper
conduct of its business in reasonably good repair, working order and condition
and will from time to time make all reasonably necessary repairs, renewals,
replacements, additions and betterments thereto so that at all times such
plants, properties and equipment shall be reasonably preserved and maintained,
and the Borrower will cause each of its Subsidiaries to do so in respect of
Property owned or used by it; PROVIDED, HOWEVER, that nothing in this Section
9.2 shall prevent the Borrower or a Subsidiary from discontinuing the operation
or maintenance of
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any such Properties if such discontinuance is, in the judgment of the Borrower,
desirable in the conduct of its business or the business of its Subsidiary and
not disadvantageous to the Banks or the holders of the Notes.
SECTION 9.3. TAXES AND ASSESSMENTs. The Borrower shall duly pay and
discharge, and shall cause each Subsidiary to duly pay and discharge, all taxes,
rates, assessments, fees and governmental charges upon or against it or its
Properties, in each case before the same become delinquent and before penalties
accrue thereon, unless and to the extent that the same are being contested in
good faith and by appropriate proceedings which prevent enforcement of the
matter under contest and adequate reserves are provided therefor.
SECTION 9.4. INSURANCE. The Borrower shall insure and keep insured, and
shall cause each Subsidiary to insure and keep insured, with good and
responsible insurance companies, all insurable Property owned by it which is of
a character usually insured by Persons similarly situated and operating like
Properties against loss or damage from such hazards and risks, and in such
amounts, as are insured by Persons similarly situated and operating like
Properties; and the Borrower shall insure, and shall cause each Subsidiary to
insure, such other hazards and risks (including employers' and public liability
risks) with good and responsible insurance companies as and to the extent
usually insured by Persons similarly situated and conducting similar businesses.
The Borrower shall upon request furnish to the Administrative Agent and any Bank
a certificate setting forth in summary form the nature and extent of the
insurance maintained pursuant to this Section.
SECTION 9.5. FINANCIAL REPORTS. The Borrower shall, and shall cause each
Subsidiary to, maintain a standard system of accounting in accordance with GAAP
and shall furnish to the Administrative Agent, each Bank and each of their duly
authorized representatives such information respecting the business and
financial condition of the Borrower and its Subsidiaries as the Administrative
Agent or such Bank may reasonably request; and without any request, shall
furnish to the Banks:
(a) as soon as available, and in any event within sixty (60)
days after the close of each quarterly accounting period of the
Borrower, a copy of the consolidated and consolidating balance sheet
of the Borrower and its Subsidiaries as of the last day of such period
and the consolidated and consolidating statements of income, retained
earnings and cash flows of the Borrower and its Subsidiaries for the
fiscal quarter and for the fiscal year-to-date period then ended, each
in reasonable detail showing in comparative form the figures for the
corresponding date and period in the previous fiscal year, prepared by
the Borrower in accordance with GAAP and certified to by its President
or chief financial officer;
(b) as soon as available, and in any event within ninety (90)
days after the close of each annual accounting period of the Borrower,
a copy of the consolidated and consolidating balance sheet of the
Borrower and its Subsidiaries as of the last day of the period then
ended and the consolidated and consolidating statements of income,
retained earnings and cash flows of the Borrower and its Subsidiaries
for the period then ended, and accompanying notes thereto, each in
reasonable detail showing in
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comparative form the figures for the previous fiscal year, accompanied
by an unqualified opinion thereon of Ernst & Young L.L.P. or another
firm of independent public accountants of recognized national standing
(except for qualifications related to changes in accounting principles
or practices reflecting a change in GAAP and required or approved by
such firm), selected by the Borrower and satisfactory to the Required
Banks, to the effect that the financial statements have been prepared
in accordance with GAAP and present fairly in accordance with GAAP the
consolidated financial condition of the Borrower and its Subsidiaries
as of the close of such fiscal year and the results of their
operations and cash flows for the fiscal year then ended and that an
examination of such accounts in connection with such financial
statements has been made in accordance with generally accepted
auditing standards and, accordingly, such examination included such
tests of the accounting records and such other auditing procedures as
were considered necessary in the circumstances;
(c) promptly after receipt thereof, any additional written
reports, management letters or other detailed information contained in
writing concerning significant aspects of the Borrower's or any
Subsidiary's operations and financial affairs given to it by its
independent public accountants;
(d) promptly after the sending or filing thereof, copies of all
proxy statements, financial statements and reports which the Borrower
sends to its shareholders, and copies of all other regular, periodic
and special reports and all registration statements which the Borrower
files with the SEC or any successor thereto, or with any national
securities exchange;
(e) as soon as available, and in any event within ninety (90)
days after to the end of each fiscal year of the Borrower, a copy of
the Borrower's consolidated and consolidating business plan for the
following fiscal year, such business plan to show the Borrower's
projected consolidated and consolidating revenues, expenses, and
balance sheet on month-by-month basis, such business plan to be in
reasonable detail prepared by the Borrower and in form reasonably
satisfactory to the Required Banks; and
(f) promptly after knowledge thereof shall have come to the
attention of any responsible officer of the Borrower, written notice
of (i) any Change of Control and (ii) any threatened or pending
litigation or governmental proceeding or labor controversy against the
Borrower or any Subsidiary which would reasonably be expected to (x)
adversely effect the financial condition, Properties, business or
operations of the Borrower or any Subsidiary or (during the
Acquisition Period) Super Food or any of its subsidiaries or (y)
prevent or unduly delay the Merger or the consummation of the Tender
Offer or (iii) the occurrence of any Default or Event of Default
hereunder.
Each of the financial statements furnished to the Banks pursuant to subsections
(a) and (b) of this Section shall be accompanied by a written certificate in the
form attached hereto as Exhibit H signed by the President or chief financial
officer of the Borrower to the effect
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that to the best of such officer's knowledge and belief no Default or Event of
Default has occurred during the period covered by such statements or, if any
such Default or Event of Default has occurred during such period, setting forth
a description of such Default or Event of Default and specifying the action, if
any, taken by the Borrower to remedy the same. Such certificate shall also set
forth the calculations supporting such statements in respect of Sections 9.7,
9.8, 9.9, 9.10 and 9.11 of this Agreement.
SECTION 9.6. INSPECTION. The Borrower shall, and shall cause each
Subsidiary to, permit the Administrative Agent, each Bank and each of their duly
authorized representatives and agents to visit and inspect any of the
Properties, corporate books and financial records of the Borrower and each
Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Borrower and each Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each Subsidiary with, and to
be advised as to the same by, its officers, employees and independent public
accountants (and by this provision the Borrower hereby authorizes such
accountants to discuss with the Administrative Agent and such Banks the finances
and affairs of the Borrower and of each Subsidiary) at such reasonable times and
reasonable intervals as the Administrative Agent or any such Bank may designate.
SECTION 9.7. CURRENT RATIO. The Borrower shall not at any time permit
the Current Ratio to be less than 1.25 to 1.0.
SECTION 9.8. TANGIBLE NET WORTH. The Borrower shall not at any time
permit Tangible Net Worth to be less than the Minimum Required Amount. For
purposes hereof, the term "MINIMUM REQUIRED AMOUNT" shall mean (a) $125,000,000
through March 22, 1997 and (b) shall increase (but never decrease) on a
cumulative basis as of March 23, 1997 and as of the last day of each fiscal
quarter of the Borrower thereafter, by an amount equal to 50% of Consolidated
Net Income for the fiscal quarter of the Borrower then ended (if positive for
such quarter).
SECTION 9.9. LEVERAGE RATIO. The Borrower shall not, as of the close of
any fiscal quarter of the Borrower set forth below, permit the Leverage Ratio to
be more than the amount set forth to the right of such quarter:
As Of Close Of Each Fiscal Quarter:
Leverage Ratio Shall
From and Including To and Including Not be More Than:
------------------ ---------------- --------------------
1st fiscal quarter of 3rd fiscal quarter of 4.00 to 1
fiscal year 1997 fiscal year 1997
4th fiscal quarter of 1st fiscal quarter of 3.75 to 1
fiscal year 1997 fiscal year 1998
2d fiscal quarter 1st fiscal quarter of 3.50 to 1
of fiscal year 1998 fiscal year 1999
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2d fiscal quarter of 1st fiscal quarter of 3.25 to 1
fiscal year 1999 2000 fiscal year
2d fiscal quarter of each fiscal quarter 3.00 to 1
fiscal year 2000 thereafter
SECTION 9.10. INTEREST COVERAGE RATIO. The Borrower shall not, as of the
close of any fiscal quarter of the Borrower set forth below, permit the Interest
Coverage Ratio to be less than the amount set forth to the right of such period:
As Of Close Of Each Fiscal Quarter:
Interest Coverage Ratio
From and Including To and Including Shall Not be Less Than:
------------------ ---------------- -----------------------
1st fiscal quarter of 3rd fiscal quarter of 1.50 to 1
fiscal year 1997 fiscal year 1997
4th fiscal quarter of 3rd fiscal quarter of 1.75 to 1
fiscal year 1997 fiscal year 1998
4th fiscal quarter 3rd fiscal quarter of 2.25 to 1
of fiscal year 1998 fiscal year 1999
4th fiscal quarter of each fiscal quarter 2.50 to 1
fiscal year 1999 thereafter
SECTION 9.11. LONG-TERM DEBT. The Borrower shall not, and shall not
permit any Subsidiary to, issue, incur, assume, create or have outstanding any
Long-Term Debt with a Weighted Average Life to Maturity of less than seven
years.
SECTION 9.12. LIMITS ON AGGREGATE INDEBTEDNESS.
(a) INTERIM LIMIT ON BORROWER. The Borrower shall not permit its Total
Funded Debt to aggregate more than $475,000,000 at any time prior to March 22,
1997.
(b) PERMANENT LIMIT ON SUBSIDIARIES. The Borrower shall not permit any
Subsidiary to issue, incur, assume, create or have outstanding any Indebtedness;
PROVIDED, HOWEVER, that the foregoing shall not restrict nor operate to prevent
Indebtedness of the Subsidiaries (excluding intercompany Indebtedness owed to
the Borrower or any other Subsidiary) aggregating not more than 12% of the Total
Assets prior to April 8, 1997 and 5% of Total Assets thereafter.
SECTION 9.13. LIENS. The Borrower shall not, nor shall it permit any
Subsidiary to, create, incur or permit to exist any Lien of any kind on any
Property owned by
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the Borrower or any Subsidiary; PROVIDED, HOWEVER, that the foregoing shall not
apply to nor operate to prevent:
(a) Liens arising by statute in connection with worker's
compensation, unemployment insurance, old age benefits, social security
obligations, taxes, assessments, statutory obligations or other similar
charges, good faith cash deposits in connection with tenders, contracts or
leases to which the Borrower or any Subsidiary is a party or other cash
deposits required to be made in the ordinary course of business, provided
in each case that the obligation is not for borrowed money and that the
obligation secured is not overdue or, if overdue, is being contested in
good faith by appropriate proceedings which prevent enforcement of the
matter under contest and adequate reserves have been established therefor;
(b) mechanics', workmen's, materialmen's, landlords', carriers', or
other similar Liens arising in the ordinary course of business with respect
to obligations which are not due or which are being contested in good faith
by appropriate proceedings which prevent enforcement of the matter under
contest;
(c) the pledge of assets for the purpose of securing an appeal, stay
or discharge in the course of any legal proceeding, provided that the
aggregate amount of liabilities of the Borrower and its Subsidiaries
secured by a pledge of assets permitted under this subsection, including
interest and penalties thereon, if any, shall not be in excess of
$15,000,000 at any one time outstanding;
(d) Liens on any Property existing at the time of acquisition thereof
by the Borrower or any Subsidiary and not created in contemplation of such
acquisition provided (i) such Lien is and will remain confined to the same
Property subject thereto at the time such Property is acquired and (ii)
such Lien secures only the obligations secured thereby at the time such
Property is acquired;
(e) minor survey exceptions or minor encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and other
similar purposes, or zoning or other restrictions as to the use of real
properties which are necessary for the conduct of the activities of the
Borrower and any Subsidiary of the Borrower or which customarily exist on
properties of corporations engaged in similar activities and similarly
situated and which do not in any event materially impair their use in the
operation of the business of the Borrower or any Subsidiary of the
Borrower; and
(f) Liens not otherwise permitted under this Section 9.13 on Property
(other than (i) shares of capital stock in any Subsidiary and (ii) accounts
receivable, inventory and similar working capital assets) securing
Indebtedness in an aggregate principal amount not exceeding 5% of the Total
Assets.
SECTION 9.14. INVESTMENTS, ACQUISITIONS, LOANS, ADVANCES AND GUARANTIES.
The Borrower shall not, nor shall it permit any Subsidiary to, directly or
indirectly, make, retain
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or have outstanding any investments (whether through purchase of stock or
obligations or otherwise) in, or loans or advances (other than for travel
advances and other similar cash advances made to employees and sales
representatives in the ordinary course of business) to, any other Person, or
acquire all or any substantial part of the assets or business of any other
Person or division thereof, or be or become liable on any Guaranty, or
subordinate any claim or demand it may have to the claim or demand of any other
Person (cumulatively, all of the foregoing, being "INVESTMENTS"); PROVIDED,
HOWEVER, that the foregoing shall not apply to nor operate to prevent:
(a) investments in direct obligations of the United States of America
or of any agency or instrumentality thereof whose obligations constitute
full faith and credit obligations of the United States of America, provided
that any such obligations shall mature within one year of the date of
issuance thereof;
(b) investments in commercial paper rated at least P-1 by Xxxxx'x
Investors Services, Inc. and at least A-1 by Standard & Poor's Corporation
maturing within 270 days of the date of issuance thereof;
(c) investments in certificates of deposit issued by any United
States commercial bank having capital and surplus of not less than
$100,000,000 which have a maturity of one year or less or in banker's
acceptances endorsed by any Bank or other such commercial bank and maturing
within six months of the date of acceptance;
(d) investments in repurchase obligations with a term of not more
than seven (7) days for underlying securities of the types described in
subsection (a) above entered into with any bank meeting the qualifications
specified in subsection (c) above, provided all such agreements require
physical delivery of the securities securing such repurchase agreement,
except those delivered through the Federal Reserve Book Entry System;
(e) investments in money market funds that invest solely, and which
are restricted by their respective charters to invest solely, in
investments of the type described in the immediately preceding subsections
(a), (b), (c) and (d) above;
(f) ownership of stock, obligations or securities received in
settlement of debts (created in the ordinary course of business) owing to
the Borrower or any Subsidiary;
(g) endorsement of items for deposit or collection of commercial
paper received in the ordinary course of business;
(h) acquisitions of all or substantially all of the assets or
business of any other Person engaged in the same or similar business as the
Borrower, or of a division of a Person engaged in such a business, or of
all or substantially all the Voting Stock of a Person, so long as (i) no
Default or Event of Default exists or would exist after giving effect to
such acquisition, (ii) the Board of Directors or other governing body of
such
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Person whose Property or Voting Stock is being so acquired has approved the
terms of such acquisition, (iii) the Borrower can demonstrate that on a PRO
FORMA basis after giving effect to such acquisition it will continue to
comply through the term of this Agreement with all the terms and conditions
of the Loan Documents and (iv) the Borrower has provided to the Banks such
financial and other information regarding the Person whose Property or
Voting Stock is being so acquired, including historical financial
statements, and a description of such Person, as the Administrative Agent
or the Required Banks have reasonably requested;
(i) Investments in Subsidiaries, and Investments by the Subsidiaries
in the Borrower, provided in each case that Investments in Foreign
Subsidiaries at no time aggregate more than $25,000,000;
(j) loans and advances to customers of the Borrower and its
Subsidiaries for use by such customers in the ordinary course of their
respective businesses provided that (i) except for such loans and advances
are outstanding to Super Food and its subsidiaries on the first date they
become Subsidiaries hereunder, all such loans and advances have been made
in accordance with the Borrower's loan policy as in effect as of the date
hereof and (ii) the aggregate principal amount outstanding on such loans
does not exceed the Maximum Permitted Amount (the "MAXIMUM PERMITTED
AMOUNT" to mean $125,000,000 through January 3, 1998 and shall increase by
$10,000,000 as of January 4, 1998 and by an additional $10,000,000 as of
the first day of each fiscal year of the Borrower thereafter);
(k) the Letters of Credit;
(l) the Subsidiary Guarantee Agreements; and
(m) investments, loans, advances and Guarantees not otherwise
permitted by this Section aggregating not more than $100,000,000 at any one
time outstanding.
In determining the amount of investments, acquisitions, loans, advances and
Guarantees permitted under this Section, investments and acquisitions shall
always be taken at the original cost thereof (regardless of any subsequent
appreciation or depreciation therein), loans and advances shall be taken at the
principal amount thereof then remaining unpaid, and Guarantees shall be taken at
the amount of obligations guaranteed thereby.
Notwithstanding anything herein to the contrary, unless and until a
Subsidiary Guarantee Agreement from a given Subsidiary and the related
documentation (including opinion of counsel) to be required by Section 9.1
hereof is furnished to the Agent, no Investments shall be made in such
Subsidiary after the date hereof by the Borrower or any other Subsidiary except
in the ordinary course of business to provide such Subsidiary ordinary and
necessary working capital.
SECTION 9.15. MERGERS, CONSOLIDATIONS AND SALES. The Borrower shall not,
nor shall it permit any Subsidiary to, be a party to any merger or
consolidation, or sell, transfer, lease
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or otherwise dispose of all or any substantial part of its Property, including
any disposition of Property as part of a sale and leaseback transaction, or in
any event sell or discount (with or without recourse) any of its notes or
accounts receivable; PROVIDED, HOWEVER, that this Section shall not apply to nor
prohibit:
(a) the Merger;
(b) any merger or consolidation so long as the Borrower is the
surviving corporation and, at the time of such merger or consolidation and
immediately after giving effect thereto, no Default or Event of Default
shall occur or be continuing;
(c) any merger or consolidation of a Subsidiary with or into the
Borrower (so long as the Borrower is the surviving entity) or any other
Subsidiary (so long as a Wholly-owned Subsidiary is the surviving entity)
so long as, at the time of such merger or consolidation or immediately
after giving effect thereto, no Default or Event of Default shall occur or
be continuing;
(d) the sale, lease, transfer or other disposition by any Subsidiary
of all or any portion of its assets to the Borrower or any other
Subsidiary;
(e) the sale of accounts receivable by the Borrower and its
Subsidiaries in the ordinary course of business to Persons other than
Affiliates provided that such sale is part of a securitization or similar
financing transaction and the aggregate face amount of such accounts
receivables sold and outstanding at any one time does not exceed
$75,000,000;
(f) the sale by the Borrower or any Subsidiary of (i) assets no
longer used or useful in the conduct of their respective businesses or (ii)
inventory in the ordinary course of their respective businesses; and
(g) sales, transfers, leases or other dispositions of Property not
otherwise permitted by this Section provided the aggregate amount thereof
during any calendar year does not exceed 15% of Total Assets as of the
first day of such year and further provided that if the same aggregate more
than 5% of Total Assets as of such day, an amount of the proceeds thereof
in excess of such 5% level are used to purchase assets used or to be used
in the ordinary course of the business of the Borrower and its
Subsidiaries.
SECTION 9.16. MAINTENANCE OF SUBSIDIARIES. The Borrower shall not assign,
sell or transfer, or permit any Subsidiary to issue, assign, sell or transfer,
any shares of capital stock of a Subsidiary; PROVIDED that the foregoing shall
not operate to prevent:
(a) the transfer of shares of capital stock of any Subsidiary as
consideration to the transferor in any acquisition permitted by Section
9.14(h) hereof; and
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(b) the issuance, sale and transfer to any Person of any shares of
capital stock of a Subsidiary solely for the purpose of qualifying, and to
the extent legally necessary to qualify, such Person as a director of such
Subsidiary.
SECTION 9.17. ERISA. The Borrower shall, and shall cause each Subsidiary
to, promptly pay and discharge all obligations and liabilities arising under
ERISA of a character which if unpaid or unperformed would reasonably be expected
to result in the imposition of a Lien against any of its Properties. The
Borrower shall, and shall cause each Subsidiary to, promptly notify the
Administrative Agent and each Bank of (i) the occurrence of any reportable event
(as defined in ERISA) with respect to a Plan (other than such a reportable event
described in ERISA Section 4043(c) for which the 30-day notice requirement is
waived provided that the loss of qualification of a Plan and the failure to meet
the minimum funding standards of Section 412 of the Code or Section 302 of ERISA
shall require notification regardless of whether notice of such event is
waived), (ii) receipt of any notice from the PBGC of its intention to seek
termination of any Plan or appointment of a trustee therefor, (iii) its
intention to terminate or withdraw from any Plan, and (iv) the occurrence of any
event with respect to any Plan which would reasonably be expected to result in
the incurrence by the Borrower or any Subsidiary of any material liability, fine
or penalty, or any material increase in the contingent liability of the Borrower
or any Subsidiary with respect to any post-retirement Welfare Plan benefit
(other than such a benefit provided pursuant to a multiemployer plan).
SECTION 9.18. COMPLIANCE WITH LAWS. The Borrower shall, and shall cause
each Subsidiary to, comply in all respects with the requirements of all federal,
state and local laws, rules, regulations, ordinances and orders applicable to or
pertaining to their Properties or business operations, non-compliance with which
could have a material adverse effect on the financial condition, Properties,
business or operations of the Borrower or any Subsidiary or could result in a
Lien upon any of their Property.
SECTION 9.19. CHANGE IN THE NATURE OF BUSINESS. The Borrower shall not,
and shall not permit any Subsidiary to, engage in any business or activity if as
a result the general nature of the business of the Borrower or any Subsidiary
would be changed in any material respect from the general nature of the business
engaged in by the Borrower or such Subsidiary on the date of this Agreement.
SECTION 9.20. USE OF LOAN PROCEEDS. The Borrower will use all credit
under this Agreement solely for purposes permitted by Section 3.9 hereof.
SECTION 10. EVENTS OF DEFAULT AND REMEDIES.
SECTION 10.1. EVENTS OF DEFAULT. Any one or more of the following shall
constitute an Event of Default:
(a) (i) default in the payment when due of any principal on any Note
or any Loan evidenced thereby or any Reimbursement Obligation, whether at
the stated maturity thereof or at any other time provided in any Loan
Document; or (ii) default
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for a period of three (3) days in the payment when due of interest on any Note
or any Loan evidenced thereby or any Reimbursement Obligation or in the payment
when due of any fee or other Obligation;
(b) default by the Borrower in the observance or performance of any
covenant set forth in Section 9 hereof;
(c) default by the Borrower in the observance or performance of any
other provision hereof or of any other Loan Document not mentioned in (a)
or (b) above, which is not remedied within thirty (30) days after notice
thereof to the Borrower by the Administrative Agent;
(d) any representation or warranty made herein by the Borrower, or in
any statement or certificate furnished pursuant hereto or pursuant to any
other Loan Document by the Borrower or any Subsidiary, or in connection
with any Loan made or Letter of Credit issued hereunder, proves untrue in
any material respect as of the date of the issuance or making thereof;
(e) the Borrower or any Subsidiary shall fail within thirty (30) days
to pay, bond or otherwise discharge any judgment or order for the payment
of money in excess of $15,000,000 (other than any judgment for which a
financially sound and reputable insurer has admitted liability), which is
not stayed on appeal or otherwise being appropriately contested in good
faith in a manner that stays execution thereon;
(f) the Borrower or any other member of its Controlled Group shall
fail to pay when due an amount or amounts aggregating in excess of
$1,000,000 which it shall be liable to pay to the PBGC or to a Plan under
Title IV of ERISA in each case except and to the extent such liability is
being contested in good faith and by appropriate proceedings which prevent
enforcement of the matter under contest; or notice of intent to terminate a
Plan or Plans (other than a multiemployer plan as defined in Section 3(37)
of ERISA) having aggregate Unfunded Vested Liabilities in excess of
$5,000,000 (collectively, a "MATERIAL PLAN") shall be filed under Title IV
of ERISA by the Borrower or any other member of its Controlled Group, any
plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any Material Plan; or a proceeding
shall be instituted by a fiduciary of any Plan against the Borrower or any
member of its Controlled Group to enforce Section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within thirty (30)
days thereafter and such proceeding would reasonably be expected to result
in liabilities in excess of $1,000,000; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating
that any Material Plan must be terminated;
(g) (A) default shall occur in the payment when due (subject to any
applicable grace period) of any indebtedness for borrowed money aggregating
in excess of $10,000,000 which was incurred, assumed or guaranteed by the
Borrower or any Subsidiary, or (B) default or the happening of any event
shall occur under any
-55-
indenture, agreement or other instrument under which any indebtedness for
borrowed money aggregating in excess of $10,000,000 was incurred, assumed or
guaranteed by the Borrower or any Subsidiary if the effect of such default is to
accelerate, or permit the acceleration of, the maturity of such indebtedness or
any mandatory unscheduled prepayment, purchase or funding thereof;
(h) any Subsidiary obligated on any guarantee of any Obligations
shall purport to disavow, revoke, repudiate or terminate such guarantee;
(i) the Merger shall not be consummated by April 8, 1997 or shall be
rescinded subsequent to the consummation thereof or the Merger Agreement
shall be terminated (provided this clause (i) shall have no effect unless
any Acquisition Credit shall have been extended);
(j) the Borrower or any Subsidiary shall (i) have entered
involuntarily against it an order for relief under the United States
Bankruptcy Code, as amended, (ii) not pay, or admit in writing its
inability to pay, its debts generally as they become due, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent to,
or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial part of
its property, (v) institute any proceeding seeking to have entered against
it an order for relief under the United States Bankruptcy Code, as amended,
to adjudicate it insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (vi) take any corporate action in furtherance of any matter
described in parts (i)-(v) above, or (vii) fail to contest in good faith
any appointment or proceeding described in Section 10.1(k) hereof; or
(k) a custodian, receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any Subsidiary or any
substantial part of any of their Property, or a proceeding described in
Section 10.1(j)(v) shall be instituted against the Borrower or any
Subsidiary, and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of sixty (60) days.
SECTION 10.2. NON-BANKRUPTCY DEFAULTS. When any Event of Default other
than those described in Sections 10.1(j) or (k) has occurred and is continuing,
the Administrative Agent shall, by notice to the Borrower, (a) if so directed by
the Required Banks, terminate the remaining Commitments and Swing Line
Commitment of the Banks hereunder on the date stated in such notice (which may
be the date thereof); and (b) if so directed by the Banks holding Notes
evidencing more than 51% of the aggregate principal amount of all Loans and
credit risk with respect to Letters of Credit then outstanding, (1) declare the
principal of and the accrued interest on all outstanding Notes to be forthwith
due and payable and thereupon all of said Notes, including both principal and
interest, and all fees, charges, commissions and other Obligations payable
hereunder, shall be and become immediately due and payable without further
demand, presentment, protest or notice of any kind, (2) demand
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that the Borrower immediately pay to the Administrative Agent, subject to
Section 10.4 below, the full amount then available for drawing under each or any
Letter of Credit, and the Borrower agrees to immediately make such payment and
acknowledges and agrees that the Banks would not have an adequate remedy at law
for failure by the Borrower to honor any such demand and that the Administrative
Agent, for the benefit of the Banks, shall have the right to require the
Borrower to specifically perform such undertaking whether or not any drawings or
other demands for payment have been made under any Letter of Credit, and (3)
enforce any and all rights and remedies available to it under the Loan Documents
or applicable law. The Administrative Agent, after giving notice to the
Borrower pursuant to Section 10.1(c) or this Section 10.2, shall also promptly
send a copy of such notice to the other Banks, but the failure to do so shall
not impair or annul the effect of such notice.
SECTION 10.3. BANKRUPTCY DEFAULTS. When any Event of Default described in
subsections (j) or (k) of Section 10.1 hereof has occurred and is continuing,
then all outstanding Notes, including both principal and interest, and all fees,
charges, commissions and other Obligations payable hereunder, shall immediately
become due and payable without presentment, demand, protest or notice of any
kind, and the obligation of the Banks to extend further credit pursuant to any
of the terms hereof shall immediately terminate and the Borrower shall
immediately pay to the Administrative Agent, subject to Section 10.4 below, the
full amount then available for drawing under all outstanding Letters of Credit,
the Borrower acknowledging that the Banks would not have an adequate remedy at
law for failure by the Borrower to honor any such demand and that the Banks, and
the Administrative Agent on their behalf, shall have the right to require the
Borrower to specifically perform such undertaking whether or not any draws or
other demands for payment have been made under any of the Letters of Credit.
SECTION 10.4. COLLATERAL FOR UNDRAWN LETTERS OF CREDIT. (a) If the
prepayment of the amount available for drawing under any or all outstanding
Letters of Credit is required under Section 3.7 or under Section 10.2 or 10.3
above, the Borrower shall forthwith pay the amount required to be so prepaid, to
be held by the Administrative Agent as provided in subsection (b) below.
(b) All amounts prepaid pursuant to subsection (a) above shall be held by
the Administrative Agent in a separate collateral account (such account, and the
credit balances, properties and any investments from time to time held therein,
and any substitutions for such account, any certificate of deposit or other
instrument evidencing any of the foregoing and all proceeds of and earnings on
any of the foregoing being collectively called the "ACCOUNT") as security for,
and for application by the Administrative Agent (to the extent available) to,
the reimbursement of any payment under any Letter of Credit then or thereafter
made by the Administrative Agent, and to the payment of the unpaid balance of
any Loans and all other Obligations. The Account shall be held in the name of
and subject to the exclusive dominion and control of the Administrative Agent
for the benefit of the Administrative Agent and the Banks. If and when
requested by the Borrower, the Administrative Agent shall invest funds held in
the Account from time to time in direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the United
States of America with a remaining maturity of one year or less, PROVIDED that
the
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Administrative Agent is irrevocably authorized to sell investments held in the
Account when and as required to make payments out of the Account for application
to amounts due and owing from the Borrower to the Administrative Agent or Banks;
PROVIDED, HOWEVER, that if (i) the Borrower shall have made payment of all such
obligations referred to in subsection (a) above, (ii) all relevant preference or
other disgorgement periods relating to the receipt of such payments have passed,
and (iii) no Letters of Credit, Commitments, Swing Line Commitment, Loans or
other Obligations remain outstanding hereunder, then the Administrative Agent
shall repay to the Borrower any remaining amounts held in the Account.
SECTION 10.5. EXPENSES. The Borrower agrees to pay to the Administrative
Agent and each Bank, or any other holder of any Note outstanding hereunder, all
costs and expenses incurred or paid by the Administrative Agent and such Bank or
any such holder, including reasonable attorneys' fees (which may include
allocated costs of in-house counsel) and court costs, in connection with any
Default or Event of Default by the Borrower hereunder or in connection with the
enforcement of any of the terms hereof or of any of the Loan Documents.
SECTION 10.6. NOTICE OF DEFAULT. The Administrative Agent shall give
notice to the Borrower under Section 10.1(c) hereof promptly upon being
requested to do so by any Bank.
SECTION 11. CHANGE IN CIRCUMSTANCES.
SECTION 11.1. CHANGE OF LAW. Notwithstanding any other provisions of this
Agreement or any Note, if at any time after the date hereof any change in
applicable law or regulation or in the interpretation or administration thereof
makes it unlawful for any Bank to make or continue to maintain Eurodollar Loans
or Eurodollar Bid Loans or to give effect to its obligations as contemplated
hereby, such Bank shall promptly give notice thereof to the Borrower, with a
copy to the Administrative Agent, and such Bank's obligations to make or
maintain Eurodollar Loans or Eurodollar Bid Loans under this Agreement shall
terminate until it is no longer unlawful for such Bank to make or maintain such
Eurodollar Loans or Eurodollar Bid Loans. The Borrower shall prepay on demand
the outstanding principal amount of any such affected Eurodollar Loans or
Eurodollar Bid Loans, together with all interest accrued thereon and all other
amounts then due and payable to such Bank under this Agreement; PROVIDED,
HOWEVER, subject to all of the terms and conditions of this Agreement, the
Borrower may then elect to borrow the principal amount of the affected
Eurodollar Loan or Eurodollar Bid Loan from such Bank by means of a Base Rate
Loan from such Bank that shall not be made ratably by the Banks but only from
such affected Bank and payments whereon shall be made contemporaneously with
payments on the relevant Borrowing of Eurodollar Loans or Eurodollar Bid Loans.
SECTION 11.2. UNAVAILABILITY OF DEPOSITS OR INABILITY TO ASCERTAIN, OR
INADEQUACY OF, LIBOR. If on or prior to the first day of any Interest Period
for any Borrowing of Eurodollar Loans or Eurodollar Bid Loans:
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(a) the Administrative Agent determines that deposits in United
States Dollars in the applicable amounts are not being offered to it in the
off-shore U.S. Dollar market for such Interest Period, or that by reason of
circumstances affecting the off-shore U.S. Dollar market adequate and
reasonable means do not exist for ascertaining the applicable LIBOR, or
(b) any Bank shall advise the Administrative Agent that LIBOR as
determined by the Administrative Agent will not adequately and fairly
reflect the cost to such Bank of funding its Eurodollar Loans or Loan or
Eurodollar Bid Loans or Loan, as applicable, for such Interest Period,
then the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon, until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer exist,
the obligations of the Banks or of the relevant Bank to make such Eurodollar
Loans or Eurodollar Bid Loans shall be suspended.
SECTION 11.3. INCREASED COST AND REDUCED RETURN. (a) If on or after (x)
the date hereof, in the case of any obligation to make Committed Loans, or (y)
the date of the related Bid, in the case of any Bid Loan, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency:
(i) shall subject any Bank (or its Lending Office) to any tax,
duty or other charge with respect to its Fixed Rate Loans, its Notes or its
obligation to make Fixed Rate Loans, or shall change the basis of taxation
of payments to any Bank (or its Lending Office) of the principal of or
interest on its Fixed Rate Loans or any other amounts due under this
Agreement in respect of its Fixed Rate Loans or its obligation to make
Fixed Rate Loans (except for changes in the rate of tax on the overall net
income of such Bank or its Lending Office imposed by the jurisdiction in
which such Bank's principal executive office or Lending Office is located);
or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirements (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, such as, for example, a change in official reserve requirements,
but excluding with respect to any Eurodollar Loan or Eurodollar Bid Loan,
any such requirement to the extent included in the Eurodollar Reserve
Percentage used in computing the Adjusted LIBOR for such Loan) against
assets of, deposits with or for the account of, or credit extended by, any
Bank (or its Lending Office) or shall impose on any Bank (or its Lending
Office) or on the interbank market any other condition affecting its Fixed
Rate Loans, its Notes or its obligation to make Fixed Rate Loans;
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and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Fixed Rate Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect thereto, by an
amount deemed by such Bank to be material, then after demand by such Bank (with
a copy to the Administrative Agent), the Borrower shall promptly pay to such
Bank such additional amount or amounts as will compensate such Bank for such
increased cost or reduction.
(b) If any Bank shall determine that the adoption after the date hereof of
any applicable law, rule or regulation regarding capital adequacy, or any change
in any existing law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by such Bank (or any of its branches) 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 the capital of such Bank or any Person controlling such Bank
as a consequence of such Bank's obligations hereunder or for the credit which is
the subject matter hereof to a level below that which such Bank could have
achieved but for such adoption, change or compliance (taking into consideration
the policies of such Bank or any Person controlling such Bank with respect to
liquidity and capital adequacy) by an amount deemed by such Bank to be material,
then from time to time, within fifteen (15) days after demand by such Bank, the
Borrower shall pay to the Administrative Agent for the account of such Bank such
additional amount or amounts reasonably determined by such Bank as will
compensate such Bank for such reduction.
(c) Each Bank that determines to seek compensation under this Section 11.3
shall notify the Borrower and the Agent of the circumstances that entitle the
Bank to such compensation pursuant to this Section 11.3 and will designate a
different Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section 11.3 and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use reasonable
averaging and attribution methods.
SECTION 11.4. LENDING OFFICES. Each Bank may, at its option, elect to
make its Loans hereunder at the branch, office or affiliate specified on the
appropriate signature page hereof (each a "LENDING OFFICE") for each type of
Loan available hereunder or at such other of its branches, offices or affiliates
as it may from time to time elect and designate in a notice to the Borrower and
the Administrative Agent.
SECTION 11.5. DISCRETION OF BANK AS TO MANNER OF FUNDING. Notwithstanding
any other provision of this Agreement, each Bank shall be entitled to fund and
maintain its funding of all or any part of its Loans in any manner it sees fit,
it being understood, however, that for the purposes of this Agreement all
determinations hereunder shall be made as if each Bank had actually funded and
maintained each Eurodollar Loan or Eurodollar Bid
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Loan through the purchase of deposits in the relevant market having a maturity
corresponding to such Loan's Interest Period and bearing an interest rate equal
to LIBOR for such Interest Period.
SECTION 12. THE AGENTS
SECTION 12.1. APPOINTMENT AND AUTHORIZATION. (a) Each Bank hereby
irrevocably appoints Xxxxxx Trust and Savings Bank as Administrative Agent for
the Banks under the Loan Documents and hereby authorizes the Administrative
Agent to take such action as Administrative Agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto.
(b) The Administrative Agent hereby irrevocably appoints Bank of Montreal
and PNC Bank each as a Syndication Agent for the Banks under the Loan Documents
and hereby authorizes each such Syndication Agent to take such action as a
Syndication Agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to such Syndication Agent by the terms thereof,
together with such powers as are reasonably incidental thereto.
SECTION 12.2. AGENT AND AFFILIATES. Each Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any other Bank
and may exercise or refrain from exercising the same as though it were not an
Agent, and each Agent and its affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with the Borrower or any
Subsidiary or affiliate of the Borrower as if it were not an Agent under the
Loan Documents. The terms Bank and Banks as used in the Loan Documents, unless
the context otherwise clearly requires, include each Agent in its individual
capacity as a Bank.
SECTION 12.3. ACTION BY AGENT. Except for action expressly required of
any Agent hereunder, each Agent shall in all cases be fully justified in failing
or refusing to act hereunder unless such Agent shall be indemnified to its
reasonable satisfaction by the Banks against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. In all cases in which this Agreement does not require an Agent to take
certain actions, such Agent shall be fully justified in using its discretion in
failing to take or in taking any action hereunder. Without limiting the
generality of the foregoing, no Agent shall be required to take any action with
respect to any Event of Default, except as expressly provided in Section 10.2.
Each Agent shall be acting as an independent contractor hereunder and nothing
herein shall be deemed to impose on any Agent any fiduciary obligations to the
Banks or the Borrower.
SECTION 12.4. CONSULTATION WITH EXPERTS. Each Agent may consult with
legal counsel, independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.
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SECTION 12.5. LIABILITY OF AGENT. Neither any Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
not taken by it in connection herewith (i) with the consent or at the request of
the Required Banks or (ii) in the absence of its own gross negligence or willful
misconduct. Neither any Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement, any other Loan Document or any Credit Event or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition specified in
Section 8, except receipt of items required to be delivered to such Agent; or
(iv) the validity, effectiveness, genuineness, enforceability or collectability
hereof or of any other Loan Document or any other instrument or writing
furnished in connection therewith; and no Agent makes any representation of any
kind or character with respect to any such matter mentioned in this sentence.
Each Agent may execute any of its duties under any of the Loan Documents by or
through employees, agents, and attorneys-in-fact and shall not be answerable to
the Banks, the Borrower or any other Person for the default or misconduct of any
such agents or attorneys-in-fact selected with reasonable care. No Agent shall
incur any liability by acting in reliance upon any notice, consent, certificate,
request or statement (whether written or oral) or other document believed by it
to be genuine or to be signed or sent by the proper party or parties. Each
Agent may treat the Banks that are named herein as the holders of the Notes and
the indebtedness contemplated herein unless and until such Agent receives notice
of the assignment of the Note and the indebtedness held by a Bank hereunder
pursuant to an assignment contemplated by Section 14.12 hereof.
SECTION 12.6. INDEMNIFICATION. Each Bank shall, ratably in accordance
with its Percentage, indemnify each Agent (to the extent not reimbursed by the
Borrower) against any cost, expenses (including reasonable counsels' fees and
disbursements), claims, demands, actions, losses, obligations, damages,
penalties, judgments, suits or liability (except such as result from such
Agent's gross negligence or willful misconduct) that such Agent may suffer or
incur in connection with this Agreement or any action taken or omitted by such
Agent hereunder.
SECTION 12.7. CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon any Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon any Agent or
any other Bank, 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 any action under this Agreement.
SECTION 12.8. RESIGNATION OF AGENT AND SUCCESSOR AGENT. Each Agent may
resign at any time by giving written notice thereof to the Banks and the
Borrower. Upon any such resignation of any Agent, the Required Banks shall have
the right to appoint, with the consent of the Borrower and each other Agent, a
successor Agent to serve in the same capacity as such resigning Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within thirty (30) days after the
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retiring Agent's giving of notice of resignation then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any state thereof
that has a combined capital and surplus of at least $200,000,000. Upon the
acceptance of its appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent under the Loan Documents, and the retiring
Agent shall be discharged from its duties and obligations thereunder. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Section
12 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent.
SECTION 12.9. PAYMENTS. Unless the Administrative Agent shall have been
notified by a Bank prior to the date on which such Bank is scheduled to make
payment to the Administrative Agent of the proceeds of a Loan (which notice
shall be effective upon receipt) that such Bank does not intend to make such
payment, the Administrative Agent may assume that such Bank has made such
payment when due and the Administrative Agent may in reliance upon such
assumption (but shall not be required to) make available to the Borrower the
proceeds of the Loan to be made by such Bank and, if any Bank has not in fact
made such payment to the Administrative Agent, such Bank shall, on demand, pay
to the Administrative Agent the amount made available to the Borrower
attributable to such Bank together with interest thereon in respect of each day
during the period commencing on the date such amount was made available to the
Borrower and ending on (but excluding) the date such Bank pays such amount to
the Administrative Agent at a rate per annum equal to the Federal Funds Rate.
If such amount is not received from such Bank by the Administrative Agent
immediately upon demand, the Borrower will, on demand, repay to the
Administrative Agent the proceeds of the Loan attributable to such Bank with
interest thereon at a rate per annum equal to the interest rate applicable to
the relevant Loan, but without such payment being considered a payment or
prepayment of a Loan, so that the Borrower will have no liability under Section
3.8 hereof with respect to such payment.
SECTION 12.10. SYNDICATION AGENTS. Nothing in this Agreement shall impose
any obligation on either of Bank of Montreal or PNC Bank in their capacity as
Syndication Agents.
SECTION 13 THE GUARANTEES.
SECTION 13.1. THE GUARANTEES. To induce the Banks to provide the credits
described herein and in consideration of benefits expected to accrue to each
Guarantor by reason of the Commitments and for other good and valuable
consideration, receipt of which is hereby acknowledged, each Guarantor hereby
unconditionally and irrevocably guarantees jointly and severally to the Agents
and the Banks, and each other holder of the indebtedness guaranteed hereby, the
due and punctual payment of all present and future indebtedness of the Borrower
evidenced by or arising out of the Loan Documents, including, but not limited
to, the due and punctual payment of principal of and interest on the Notes and
on the Reimbursement Obligations and the due and punctual payment of all other
obligations now or hereafter owed by the Borrower under the Loan Documents as
and when the same shall
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become due and payable, whether at stated maturity, by acceleration or
otherwise, according to the terms hereof and thereof. In case of failure by the
Borrower punctually to pay any indebtedness or other obligations guaranteed
hereby, each Guarantor hereby unconditionally agrees jointly and severally to
make such payment or to cause such payment to be made punctually as and when the
same shall become due and payable, whether at stated maturity, by acceleration
or otherwise, and as if such payment were made by the Borrower.
SECTION 13.2. GUARANTEE UNCONDITIONAL. The obligations of each Guarantor
as a guarantor under this Section 13 shall be unconditional and absolute and,
without limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of the Borrower or of any other Guarantor
under this Agreement or any other Loan Document or by operation of law or
otherwise;
(b) any modification or amendment of or supplement to this Agreement
or any other Loan Document;
(c) any change in the corporate existence, structure or ownership of,
or any insolvency, bankruptcy, reorganization or other similar proceeding
affecting, the Borrower, any other Guarantor, or any of their respective
assets, or any resulting release or discharge of any obligation of the
Borrower or of any other Guarantor contained in any Loan Document;
(d) the existence of any claim, set-off or other rights which the
Guarantor may have at any time against any Agent, any Bank or any other
Person, whether or not arising in connection herewith;
(e) any failure to assert, or any assertion of, any claim or demand
or any exercise of, or failure to exercise, any rights or remedies against
the Borrower, any other Guarantor or any other Person or Property;
(f) any application of any sums by whomsoever paid or howsoever
realized to any obligation of the Borrower, regardless of what obligations
of the Borrower remain unpaid;
(g) any invalidity or unenforceability relating to or against the
Borrower or any other Guarantor for any reason of this Agreement or of any
other Loan Document or any provision of applicable law or regulation
purporting to prohibit the payment by the Borrower or any other Guarantor
of the principal of or interest on any Note or any other amount payable by
it under the Loan Documents; or
(h) any other act or omission to act or delay of any kind by the
Administrative Agent, any Bank or any other Person or any other
circumstance whatsoever that might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the obligations of
the Guarantor under this Section 13.
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SECTION 13.3. DISCHARDGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN
CERTAIN CIRCUMSTANCES. Each Guarantor's obligations under this Section 13 shall
remain in full force and effect until the Commitments are terminated and the
principal of and interest on the Notes and all other amounts payable by the
Borrower under this Agreement and all other Loan Documents shall have been paid
in full. If at any time any payment of the principal of or interest on any Note
or any other amount payable by the Borrower under the Loan Documents is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Borrower or of a Guarantor, or otherwise,
each Guarantor's obligations under this Section 13 with respect to such payment
shall be reinstated at such time as though such payment had become due but had
not been made at such time.
SECTION 13.4. WAIVERS. (a) GENERAL. Each Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Agent, any Bank or any other Person against the Borrower, another Guarantor or
any other Person.
(b) SUBROGATION AND CONTRIBUTION. Unless and until the Obligations have
been fully paid and satisfied and the Commitments have terminated, each
Guarantor hereby agrees not to exercise or otherwise assert any claim or other
right it may now or hereafter acquire against the Borrower or any other
Guarantor that arises from the existence, payment, performance or enforcement of
such Guarantor's obligations under this Section 13 or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, or any right to participate in any
claim or remedy of any Agent, any Bank or any other holder of the indebtedness
guaranteed hereby against the Borrower or any other Guarantor whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Borrower or any other Guarantor directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim or other right.
SECTION 13.5. LIMIT ON RECOVERY. Notwithstanding any other provision
hereof, the right to recovery of the holders of the indebtedness guaranteed
hereby against each Guarantor under this Section 13 shall not exceed $1.00 less
than the amount which would render such Guarantor's obligations under this
Section 13 void or voidable under applicable law, including without limitation
fraudulent conveyance law.
SECTION 13.6. STAY OF ACCELERATION. If acceleration of the time for
payment of any amount payable by the Borrower under this Agreement or any other
Loan Document is stayed upon the insolvency, bankruptcy or reorganization of the
Borrower, all such amounts otherwise subject to acceleration under the terms of
this Agreement or the other Loan Documents shall nonetheless be payable jointly
and severally by the Guarantors hereunder forthwith on demand by the
Administrative Agent made at the request of the Required Banks.
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SECTION 14. MISCELLANEOUS.
SECTION 14.1. WITHHOLDING TAXES. (a) PAYMENTS FREE OF WITHHOLDING.
Except as otherwise required by law and subject to Section 14.1(b) hereof, each
payment by the Borrower under this Agreement or the other Loan Documents or in
respect of the Letters of Credit shall be made without withholding for or on
account of any present or future taxes (other than overall net income taxes on
the recipient) imposed by or within the jurisdiction in which the Borrower is
domiciled, any jurisdiction from which the Borrower makes any payment, or (in
each case) any political subdivision or taxing authority thereof or therein. If
any such withholding is so required, the Borrower shall make the withholding,
pay the amount withheld to the appropriate governmental authority before
penalties attach thereto or interest accrues thereon and forthwith pay such
additional amount as may be necessary to ensure that the net amount actually
received by each Bank and the Administrative Agent free and clear of such taxes
(including such taxes on such additional amount) is equal to the amount which
that Bank or the Administrative Agent (as the case may be) would have received
had such withholding not been made. If the Administrative Agent or any Bank
pays any amount in respect of any such taxes, penalties or interest the Borrower
shall reimburse the Administrative Agent or that Bank for that payment on demand
in the currency in which such payment was made. If the Borrower pays any such
taxes, penalties or interest, it shall deliver official tax receipts evidencing
that payment or certified copies thereof to the Bank or Administrative Agent on
whose account such withholding was made (with a copy to the Administrative Agent
if not the recipient of the original) on or before the thirtieth day after
payment. If any Bank or the Administrative Agent determines it has received or
been granted a credit against or relief or remission for, or repayment of, any
taxes paid or payable by it because of any taxes, penalties or interest paid by
the Borrower and evidenced by such a tax receipt, such Bank or Administrative
Agent shall, to the extent it can do so without prejudice to the retention of
the amount of such credit, relief, remission or repayment, pay to the Borrower
such amount as such Bank or Administrative Agent determines is attributable to
such deduction or withholding and which will leave such Bank or Administrative
Agent (after such payment) in no better or worse position than it would have
been in if the Borrower had not been required to make such deduction or
withholding. Nothing in this Agreement shall interfere with the right of each
Bank and the Administrative Agent to arrange its tax affairs in whatever manner
it thinks fit nor oblige any Bank or the Administrative Agent to disclose any
information relating to its tax affairs or any computations in connection with
such taxes.
(b) U.S. WITHHOLDING TAX EXEMPTIONS. Each Bank that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) shall
submit to the Borrower and the Administrative Agent on or before the earlier of
the date the initial Borrowing is made hereunder and thirty (30) days after the
date hereof, two duly completed and signed copies of either Form 1001 (relating
to such Bank and entitling it to a complete exemption from withholding under the
Code on all amounts to be received by such Bank, including fees, pursuant to the
Loan Documents and the Loans) or Form 4224 (relating to all amounts to be
received by such Bank, including fees, pursuant to the Loan Documents and the
Loans) of the United States Internal Revenue Service. Thereafter and from time
to time, each Bank shall submit to the Borrower and the Administrative Agent
such additional duly
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completed and signed copies of one or the other of such Forms (or such successor
forms as shall be adopted from time to time by the relevant United States taxing
authorities) as may be (i) requested by the Borrower in a written notice,
directly or through the Administrative Agent, to such Bank and (ii) required
under then-current United States law or regulations to avoid or reduce United
States withholding taxes on payments in respect of all amounts to be received by
such Bank, including fees, pursuant to the Loan Documents or the Loans or the
Letters of Credit.
(c) INABILITY OF BANK TO SUBMIT FORMS. If any Bank determines, as a
result of any change in applicable law, regulation or treaty, or in any official
application or interpretation thereof, that it is unable to submit to the
Borrower or Administrative Agent any form or certificate that such Bank is
obligated to submit pursuant to subsection (b) of this Section 14.1, or that
such Bank is required to withdraw or cancel any such form or certificate
previously submitted or any such form or certificate otherwise becomes
ineffective or inaccurate, such Bank shall promptly notify the Borrower and
Administrative Agent of such fact and the Bank shall to that extent not be
obligated to provide any such form or certificate and will be entitled to
withdraw or cancel any affected form or certificate, as applicable.
SECTION 14.2. NO WAIVER OF RIGHTS. No delay or failure on the part of the
Administrative Agent or any Bank or on the part of the holder or holders of any
Note in the exercise of any power or right under any Loan Document shall operate
as a waiver thereof or as an acquiescence in any default, nor shall any single
or partial exercise thereof preclude any other or further exercise of any other
power or right. The rights and remedies hereunder of the Administrative Agent,
the Banks and the holder or holders of any Notes are cumulative to, and not
exclusive of, any rights or remedies which any of them would otherwise have.
SECTION 14.3. NON-BUSINESS DAY. If any payment of principal or interest
on any Note or any fees shall fall due on a day which is not a Business Day, (i)
interest at the rate such Note bears for the period prior to maturity shall
continue to accrue on such principal from the stated due date thereof to and
including the next succeeding Business Day and (ii) such principal, interest and
fees shall be payable on such next succeeding Business Day
SECTION 14.4. DOCUMENTARY TAXES. The Borrower agrees that it will pay any
documentary, stamp or similar taxes payable in respect to any Loan Document,
including interest and penalties, in the event any such taxes are assessed,
irrespective of when such assessment is made and whether or not any credit is
then in use or available hereunder.
SECTION 14.5. SURVIVAL OF REPRESENTATIONS. All representations and
warranties made herein or in certificates given pursuant hereto shall survive
the execution and delivery of this Agreement and the other Loan Documents, and
shall continue in full force and effect with respect to the date as of which
they were made as long as any credit is in use or available hereunder.
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SECTION 14.6. SURVIVAL OF INDEMNITIES. All indemnities and all other
provisions relative to reimbursement to the Banks of amounts sufficient to
protect the yield of the Banks with respect to the Loans, including, but not
limited to, Section 3.8, Section 11.3 and Section 14.15 hereof, shall survive
the termination of this Agreement and the other Loan Documents and the payment
of the Loans and all other Obligations hereunder.
SECTION 14.7. SHARING OF SET-OFF. Each Bank agrees with each other Bank a
party hereto that if such Bank shall receive and retain any payment, whether by
set-off or application of deposit balances or otherwise ("SET-OFF"), on any of
the Loans or Reimbursement Obligations in excess of its ratable share of
payments on all such obligations then outstanding to the Banks, then such Bank
shall purchase for cash at face value, but without recourse, ratably from each
of the other Banks such amount of the Loans or Reimbursement Obligations, or
participations therein, held by each such other Banks (or interest therein) as
shall be necessary to cause such Bank to share such excess payment ratably with
all the other Banks; PROVIDED, HOWEVER, that if any such purchase is made by any
Bank, and if such excess payment or part thereof is thereafter recovered from
such purchasing Bank, the related purchases from the other Banks shall be
rescinded ratably and the purchase price restored as to the portion of such
excess payment so recovered, but without interest. For purposes of this
Section 14.7, amounts owed to or recovered by, the Administrative Agent in
connection with Reimbursement Obligations in which Banks have been required to
fund their participation shall be treated as amounts owed to or recovered by the
Administrative Agent as a Bank hereunder.
SECTION 14.8. NOTICES. Except as otherwise specified herein, all notices
under the Loan Documents shall be in writing (including cable, telecopy, or
other electronic communication) and shall be given to a party hereunder at its
address or telecopier number set forth below or such other address or telecopier
number as such party may hereafter specify by notice to the Administrative Agent
and the Borrower, given by courier, by United States certified or registered
mail, or by other telecommunication device capable of creating a written record
of such notice and its receipt. Notices under the Loan Documents to the Banks
and the Administrative Agent shall be addressed to their respective addresses,
telecopier, or telephone numbers set forth on the signature pages hereof, and to
the Borrower and the Guarantors to:
Xxxx-Xxxxx Company
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Each such notice, request or other communication shall be effective (i) if
given by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section 14.8 or on the signature pages hereof and a
confirmation of receipt of such telecopy has been received by the sender,
(ii) if given by courier, when delivered, (iii) if given by mail, three Business
Days after such communication is deposited in the mail, registered with
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return receipt requested, addressed as aforesaid or (iv) if given by any other
means, when delivered at the addresses specified in this Section 14.8 or on the
signature pages hereof; PROVIDED THAT any notice given pursuant to Section 1 or
2 hereof shall be effective only upon receipt and notices described in clauses
(i), (ii) and (iv) above that are received after normal business hours will be
deemed received at the opening of business on the next Business Day.
SECTION 14.9. COUNTERPARTS. This Agreement may be executed in any number
of counterpart signature pages, and by the different parties on different
counterparts, each of which when executed shall be deemed an original but all
such counterparts taken together shall constitute one and the same instrument.
SECTION 14.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Borrower and its successors and assigns, and shall inure to the benefit
of each of the Banks and the benefit of their respective successors and assigns,
including any subsequent holder of any Note. The Borrower may not assign any of
its rights or obligations under any Loan Document without the written consent of
all of the Banks.
SECTION 14.11. PARTICIPANTS. Each Bank shall have the right at its own
cost to grant participations (to be evidenced by one or more agreements or
certificates of participation) in the Loans made and Reimbursement Obligations
and/or Commitments held by such Bank at any time and from time to time to one or
more other Persons; PROVIDED THAT (i) no such participation shall relieve any
Bank of any of its obligations under this Agreement and (ii) no such participant
shall have any direct rights under this Agreement except as provided in this
Section 14.11, and no Agent shall have any obligation or responsibility to such
participant. Any agreement pursuant to which such participation is granted
shall provide that the granting Bank shall retain the sole right and
responsibility to enforce the obligations of the Borrower and Guarantors under
this Agreement and the other Loan Documents including, without limitation, the
right to approve any amendment, modification or waiver of any provision of the
Loan Documents, except that such agreement may provide that such Bank will not
agree to any modification, amendment or waiver of the Loan Documents that would
reduce the amount of or postpone any fixed date for payment of any Obligation in
which such participant has an interest. Any party to which such a participation
has been granted shall have the benefits of Section 3.8 and Section 11.3 hereof.
The Borrower and each Guarantor authorizes each Bank to disclose to any
participant or prospective participant under this Section 14.11 any financial or
other information pertaining to the Borrower or any Guarantor.
SECTION 14.12. ASSIGNMENT AGREEMENTS. Each Bank may, at its own expense,
from time to time upon at least five Business Days' notice to the Agents, assign
to other commercial lenders part of its rights and obligations under this
Agreement (including without limitation the indebtedness evidenced by the Notes
then owned by such assigning Bank, together with an equivalent proportion of its
obligation to make loans and advances and participate in Letters of Credit
hereunder) pursuant to written agreements executed by such assigning Bank, such
assignee lender or lenders, the Borrower and the Administrative Agent, which
agreements shall specify in each instance the portion of the indebtedness
evidenced by the Notes which is to be assigned to each such assignee lender and
the portion
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of the Commitment of the assigning Bank to be assumed by it (the "ASSIGNMENT
AGREEMENTS"); provided, however, that (i) except with respect to the Swing Loans
(which must be assigned in whole), each such assignment shall be of a constant,
and not a varying, percentage of the assigning Bank's rights and obligations
under this Agreement and the assignment shall cover the same percentage of such
Bank's Commitment, Loans, Notes and interests in Letters of Credit; (ii) unless
the Administrative Agent and the Borrower otherwise consent, the aggregate
amount of the Commitment, Loans, Notes and interests in the Letters of Credit of
the assigning Bank being assigned to such assignee lender pursuant to each such
assignment (determined as of the effective date of the relevant Assignment
Agreement) shall in no event be less than $10,000,000 and shall be an integral
multiple of $5,000,000 (other than assignments between existing Banks which may
be in the amount of $1,000,000 or in such greater amount which is an integral
multiple of $1,000,000); (iii) each Bank shall maintain for its own account at
least $10,000,000 of its Commitment or assign all of its Commitment; (iv) the
Administrative Agent and (except for an assignment made during the continuance
of any Event of Default) the Borrower must each consent, which consent shall not
be unreasonably withheld, to each such assignment to (provided no such consent
is required for any assignment to (i) any Bank party hereto, whether an original
signatory of this Agreement or a party hereto by reason of an Assignment
Agreement and (ii) any Affiliate of any such Bank), and (v) the assignee lender
must pay to the Administrative Agent a processing and recordation fee of $3,000
and any out-of-pocket attorney's fees incurred by the Administrative Agent in
connection with such Assignment Agreement. Upon the execution of each
Assignment Agreement by the assigning Bank thereunder, the assignee lender
thereunder, the Borrower and the Administrative Agent and payment to such
assigning Bank by such assignee lender of the purchase price for the portion of
the indebtedness of the Borrower being acquired by it, (i) such assignee lender
shall thereupon become a "BANK" for all purposes of this Agreement with a
Commitment (and, if relevant, shall be deemed to be Xxxxxx Bank for purposes of
the Swing Loans) in the amount set forth in such Assignment Agreement and with
all the rights, powers and obligations afforded a Bank hereunder, (ii) such
assigning Bank shall have no further liability for funding the portion of its
Commitment (and, if relevant, Swing Line Commitment) assumed by such other Bank
and (iii) the address for notices to such assignee Bank shall be as specified in
the Assignment Agreement executed by it. Concurrently with the execution and
delivery of such Assignment Agreement, the Borrower shall execute and deliver
new Notes to the assignee Bank in the amount of its Commitment (and, if
relevant, Swing Line Commitment) and Bid Loans and new Notes to the assigning
Bank in the amounts of its Commitment and Bid Loans after giving effect to the
reduction occasioned by such assignment, such new Notes to constitute "NOTES"
for all purposes of this Agreement.
SECTION 14.13. AMENDMENTS. Any provision of the Loan Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by (a) the Borrower, (b) the Required Banks, and (c) if the rights or
duties of any Agent are affected thereby, such Agent; provided that:
(i) no amendment or waiver pursuant to this Section 14.13 shall
(A) increase the Commitment (or, if relevant Swing Line Commitment) of any
Bank without the consent of such Bank or (B) reduce the amount of or
postpone any fixed date for
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payment of any principal of or interest on any Loan or Reimbursement
Obligation or of any fee payable hereunder without the consent of each
Bank or (C) extend the Termination Date without the consent of each Bank;
and
(ii) no amendment or waiver pursuant to this Section 14.13 shall,
unless signed by each Bank, change any provision of Section 8, Section 10,
this Section 14.13, or the definition of Required Banks, or affect the
number of Banks required to take any action under the Loan Documents.
SECTION 14.14. HEADINGS. Section headings used in this Agreement are for
reference only and shall not affect the construction of this Agreement.
SECTION 14.15. LEGAL FEES, OTHER COSTS AND INDEMNIFICATION. The Borrower
agrees to pay all reasonable costs and expenses of the Agents in connection with
the preparation, negotiation, associated due diligence review, administration,
and syndication of the Loan Documents, including without limitation, the
reasonable fees and disbursements of Xxxxxxx and Xxxxxx, counsel to the
Administrative Agent, and Messrs. Xxxxxxxx Ingersoll, Professional Corporation,
counsel to PNC Bank, in connection with the preparation and execution of the
Loan Documents, and any amendment, waiver or consent related hereto, whether or
not the transactions contemplated herein are consummated. The Borrower further
agrees to indemnify each Bank, each Agent, and their respective directors,
officers and employees, against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all expenses
of litigation or preparation therefor, whether or not the indemnified Person is
a party thereto) which any of them may incur or reasonably pay arising out of or
relating to any Loan Document or any of the transactions contemplated thereby
(including without limitation the Acquisition) or the direct or indirect
application or proposed application of the proceeds of any Loan or Letter of
Credit, other than those which arise from the gross negligence or willful
misconduct of the party claiming indemnification or otherwise expressly provided
herein to be paid for by such Bank. The Borrower, upon demand by an Agent or a
Bank at any time, shall reimburse such Agent or Bank for any legal or other
expenses incurred in connection with investigating or defending against any of
the foregoing, except if the same is directly due to the gross negligence or
willful misconduct of the party to be indemnified.
SECTION 14.16. SET-OFF. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default, each Bank and each subsequent holder of any
Note is hereby authorized by the Borrower and each Guarantor at any time or from
time to time, without notice to the Borrower, to the Guarantors or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts, and in whatever currency
denominated) and any other indebtedness at any time held or owing by that Bank
or that subsequent holder to or for the credit or the account of the Borrower or
any Guarantor, whether or not matured, against and on account of the obligations
and liabilities of the Borrower or any Guarantor to that Bank or that subsequent
holder under the Loan
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Documents, including, but not limited to, all claims of any nature or
description arising out of or connected with the Loan Documents, irrespective of
whether or not (a) that Bank or that subsequent holder shall have made any
demand hereunder or (b) the principal of or the interest on the Loans or Notes
and other amounts due hereunder shall have become due and payable pursuant to
Section 10 and although said obligations and liabilities, or any of them, may be
contingent or unmatured.
SECTION 14.17. ENTIRE AGREEMENT. The Loan Documents constitute the entire
understanding of the parties thereto with respect to the subject matter thereof
and any prior or contemporaneous agreements, whether written or oral, with
respect thereto are superseded thereby, except for the letter agreement dated as
of October 4, 1996 referred to in Sections 4.3 and 4.4 hereof.
SECTION 14.18. GOVERNING LAW. This Agreement and the other Loan Documents,
and the rights and duties of the parties hereto, shall be construed and
determined in accordance with the internal laws of the State of Illinois.
SECTION 14.19. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. The
Borrower hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Northern District of Illinois and of any Illinois State
court sitting in the City of Chicago for purposes of all legal proceedings
arising out of or relating to this Agreement, the other Loan Documents or the
transactions contemplated hereby or thereby. The Borrower irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum. THE BORROWER, THE AGENTS, AND EACH BANK
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
[SIGNATURE PAGES TO FOLLOW]
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Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall be a contract between us for the purposes hereinabove set forth.
Dated as of this 8th day of October, 1996.
XXXX-XXXXX COMPANY
By
--------------------------------
Name:
---------------------------
Title:
--------------------------
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Accepted and Agreed to as of the day and year last above written.
000 Xxxx Xxxxxx Xxxxxx XXXXXX TRUST AND SAVINGS BANK,
Xxxxxxx, Xxxxxxxx 00000 in its individual capacity as a Bank
Attention: Agribusiness Group and as Administrative Agent
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Commitment: $30,000,000 By
--------------------------------
Name:
---------------------------
Title: Vice President
Swing Line Commitment: $25,000,000
Lending Offices:
Base Rate Loans: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Eurodollar Loans: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Bid Loans: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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000 Xxxxx XxXxxxx Xxxxxx BANK OF MONTREAL,
Xxxxxxx, Xxxxxxxx 00000 in its individual capacity as a Bank
Telecopy: 000-000-0000 and as Syndication Agent
Telephone: 000-000-0000
Commitment: $220,000,000 By
--------------------------------
Name:
---------------------------
Title:
--------------------------
Lending Offices:
Base Rate Loans: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Eurodollar Loans: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Bid Loans: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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000 Xxxx Xxxxxxx Xxxxxx PNC BANK, NATIONAL ASSOCIATION,
Suite 3140 in its individual capacity as a Bank
Xxxxxxx, Xxxxxxxx 00000 and as Syndication Agent
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
Commitment: $250,000,000 By
--------------------------------
Name:
---------------------------
Title:
--------------------------
Lending Offices:
Base Rate Loans: Xxxxx Xxxxxx xxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Loan Operations
Eurodollar Loans: Xxxxx Xxxxxx xxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Loan Operations
Bid Loans: Xxxxx Xxxxxx xxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Loan Operations
-00-
XXXXXXX X-0
COMMITTED LOAN NOTE
$______________ _____________, 1996
FOR VALUE RECEIVED, the undersigned, Xxxx-Xxxxx Company, a Delaware
corporation (the "BORROWER"), promises to pay to the order of ________________
(the "BANK") on the Termination Date of the hereinafter defined Credit
Agreement, at the principal office of Xxxxxx Trust and Savings Bank in Chicago,
Illinois, in immediately available funds, the principal sum of _________ Dollars
($________) or, if less, the aggregate unpaid principal amount of all Committed
Loans made by the Bank to the Borrower under its Commitment pursuant to the
Credit Agreement and with each Committed Loan to mature and become payable on
the last day of the Interest Period applicable thereto, but in no event later
than the Termination Date, together with interest on the principal amount of
each Committed Loan from time to time outstanding hereunder at the rates, and
payable in the manner and on the dates, specified in the Credit Agreement.
The Bank shall record on its books and records or on the schedule attached
to this Note, which is a part hereof, each Committed Loan made by it pursuant to
its Commitment, together with all payments of principal and interest and the
principal balances from time to time outstanding hereon, whether the Committed
Loan is a Base Rate Loan or an Eurodollar Loan and the interest rate and
Interest Period applicable thereto, provided that prior to the transfer of this
Note all such amounts shall be recorded on the schedule attached to this Note.
The record thereof, whether shown on such books and records or on the schedule
to this Note, shall be PRIMA FACIE evidence of the same, provided, however, that
the failure of the Bank to record any of the foregoing or any error in any such
record shall not limit or otherwise affect the obligation of the Borrower to
repay all Committed Loans made to it pursuant to the Credit Agreement together
with accrued interest thereon.
This Committed Loan Note is one of the Notes referred to in the Credit
Agreement dated as of October 8, 1996, among the Borrower, Xxxxxx Trust and
Savings Bank, as Administrative Agent, and the Banks signatory thereto (the
"CREDIT AGREEMENT"), and this Note and the holder hereof are entitled to all the
benefits provided for thereby or referred to therein, to which Credit Agreement
reference is hereby made for a statement thereof. All defined terms used in
this Note, except terms otherwise defined herein, shall have the same meaning as
in the Credit Agreement. This Note shall be governed by and construed in
accordance with the internal laws of the State of Illinois without regard to
choice of law doctrine.
Prepayments may be made hereon and this Note may be declared due prior to
the expressed maturity hereof, all in the events, on the terms and in the manner
as provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
XXXX-XXXXX COMPANY
By
--------------------------------
Name:
---------------------------
Title:
--------------------------
A1-2
EXHIBIT A-2
SWING LINE NOTE
$25,000,000.00 __________, 199____
On the Termination Date, for value received, the undersigned, Xxxx-Xxxxx
Company, a Delaware corporation (the "BORROWER"), promises to pay to the order
of Xxxxxx Trust and Savings Bank (the "BANK"), at the principal office of Xxxxxx
Trust and Savings Bank in Chicago, Illinois, the principal sum of (i) Twenty-
Five Million and 00/100 Dollars ($25,000,000.00), or (ii) such lesser amount as
may at the time of the maturity hereof, whether by acceleration or otherwise, be
the aggregate unpaid principal amount of all Swing Loans owing from the Borrower
to the Bank under the Swing Line Commitment provided for in the Credit Agreement
hereinafter mentioned.
This Note evidences Swing Loans made and to be made to the Borrower by the
Bank under the Swing Line Commitment provided for under that certain Credit
Agreement dated as of October 8, 1996 by and between the Borrower, Xxxxxx Trust
and Savings Bank individually and as Administrative Agent and certain lenders
which are or may from time to time become parties thereto (the "CREDIT
AGREEMENT"), and the Borrower hereby promises to pay interest at the office
specified above on each Swing Loan evidenced hereby at the rates and times
specified therefor in the Credit Agreement.
Each Swing Loan made under the Swing Line Commitment provided for in the
Credit Agreement by the Bank to the Borrower against this Note, any repayment of
principal hereon and the interest rates applicable thereto shall be endorsed by
the holder hereof on the reverse side of this Note or recorded on the books and
records of the holder hereof (provided that such entries shall be endorsed on
the reverse side hereof prior to any negotiation hereof) and the Borrower agrees
that in any action or proceeding instituted to collect or enforce collection of
this Note, the entries so endorsed on the reverse side hereof or recorded on the
books and records of the Bank shall be PRIMA FACIE evidence of the unpaid
balance of this Note and the interest rates applicable thereto.
This Note is issued by the Borrower under the terms and provisions of the
Credit Agreement, and this Note and the holder hereof are entitled to all of the
benefits and security provided for thereby or referred to therein, to which
reference is hereby made for a statement thereof. This Note may be declared to
be, or be and become, due prior to its expressed maturity as specified in the
Credit Agreement, and certain prepayments are required to be made hereon, all in
the events, on the terms and with the effects provided in the Credit Agreement.
All capitalized terms used herein without definition shall have the same meaning
herein as such terms have in the Credit Agreement.
This Note shall be construed in accordance with, and governed by, the
internal laws of the State of Illinois without regard to principles of conflict
of law.
The Borrower hereby promises to pay all reasonable costs and expenses
(including attorneys' fees) suffered or incurred by the holder hereof in
collecting this Note or enforcing any rights in any collateral therefor. The
Borrower hereby waives demand, presentment, protest or notice of any kind
hereunder.
XXXX-XXXXX COMPANY
By
--------------------------------
Name:
---------------------------
Title:
--------------------------
A2-2
EXHIBIT B
BID NOTE
_______, 1996
FOR VALUE RECEIVED, the undersigned, Xxxx-Xxxxx Company, a Delaware
corporation (the "BORROWER"), promises to pay to the order of ________________
(the "BANK") on the Termination Date of the hereinafter defined Credit
Agreement, at the principal office of Xxxxxx Trust and Savings Bank in Chicago,
Illinois, in immediately available funds, the aggregate unpaid principal amount
of all Bid Loans made by the Bank to the Borrower pursuant to the Credit
Agreement and with each Bid Loan to mature and become payable on the last day of
the Interest Period applicable thereto, but in no event later than the
Termination Date, together with interest on the principal amount of each Bid
Loan from time to time outstanding hereunder at the rates, and payable in the
manner and on the dates, specified in the Credit Agreement.
The Bank shall record on its books and records or on the schedule attached
to this Note, which is a part hereof, each Bid Loan made by it pursuant to the
Credit Agreement, together with all payments of principal and interest and the
principal balances thereof from time to time outstanding hereon and the interest
rate and Interest Period applicable thereto, provided that prior to the transfer
of this Note all such amounts shall be recorded on the schedule attached to this
Note. The record thereof, whether shown on such books and records or on the
schedule to this Note, shall be PRIMA FACIE evidence of the same, provided,
however, that the failure of the Bank to record any of the foregoing or any
error in any such record shall not limit or otherwise affect the obligation of
the Borrower to repay all Bid Loans made to it pursuant to the Credit Agreement
together with accrued interest thereon.
This Bid Note is one of the Notes referred to in the Credit Agreement dated
as of October 8, 1996, among the Borrower, Xxxxxx Trust and Savings Bank as
Administrative Agent and the Banks signatory thereto (the "CREDIT AGREEMENT"),
and this Note and the holder hereof are entitled to all the benefits provided
for thereby or referred to therein, to which Credit Agreement reference is
hereby made for a statement thereof. All defined terms used in this Note,
except terms otherwise defined herein, shall have the same meaning as in the
Credit Agreement. This Note shall be governed by and construed in accordance
with the internal laws of the State of Illinois without regard to choice of law
doctrine.
At any time and from time to time, the Bank may assign or otherwise
transfer (in whole or in part) to any Person this Note or any Loan hereunder.
This Note may be declared due prior to the expressed maturity hereof on the
terms and in the manner provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
XXXX-XXXXX COMPANY
By
--------------------------------
Name:
---------------------------
Title:
--------------------------
B-2
EXHIBIT C
BID LOAN REQUEST CONFIRMATION
[Date]
Xxxxxx Trust and Savings Bank, as Administrative Agent
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:
-----------------
Dear :
----------------
The undersigned, Xxxx-Xxxxx Company (the "BORROWER") refers to the Credit
Agreement dated as of October 8, 1996 (the "CREDIT AGREEMENT"), among the
Borrower, the Banks from time to time party thereto, and Xxxxxx Trust and
Savings Bank, as Administrative Agent for the Banks. Capitalized terms used
and not defined herein have the meanings assigned to them in the Credit
Agreement. The Borrower hereby confirms that it has, on the date hereof, given
you notice pursuant to Section 2.2 of the Credit Agreement that it requests a
Bid Loan Borrowing under the Credit Agreement, and in that connection sets
forth below the terms on which such Bid Loan Borrowing is requested to be made:
(A) Type of Bid Loan
Borrowing(1)
----------------
(B) Date of Bid Loan
Borrowing(2)
----------------
(C) Aggregate Principal STATED RATE EURODOLLAR
Amount of Bid
Loan Borrowing(3)
--------------- ----------------
-----------------------------
(1) Stated Rate or Eurocurrency.
(2) The Bid Loan Request Confirmation must be received on a Business Day by the
Agent not later than 11:30 A.M. (Chicago time) one (1) Business Day before
the proposed Borrowing Date in the case of Stated Rate Bid Loans and five
(5) Business Days before the proposed Borrowing Date in the case of
Eurodollar Bid Loans.
(3) Not less than $5,000,000 and in integral multiples of $1,000,000.
(D) Maturities(4)
--------------- ----------------
--------------- ----------------
--------------- ----------------
(E) If, applicable --------------- ----------------
maximum amount --------------- ----------------
requested for each --------------- ----------------
maturity
Upon acceptance of any or all of the Bids offered by Banks in response to
this request, the Borrower shall be deemed to affirm as of such date the
representations and warranties made in the Credit Agreement.
XXXX-XXXXX COMPANY
By
---------------------------------
Its
-----------------------------
----------------------------
(4) List up to 3 maturities of 1 to 180 days in the case of Stated Rate Bid
Loans and 1, 2, 3, 4, 5 or 6 months in the case of Eurodollar Bid Loans,
but never beyond the Termination Date.
C-2
EXHIBIT D
INVITATION TO BID
[Date]
[Name of Bank]
[Address of Bank]
Attention:
Reference is made to the Credit Agreement dated as of October 8, 1996 (the
"CREDIT AGREEMENT") among Xxxx-Xxxxx Company (the "BORROWER"), the Banks from
time to time party thereto, and Xxxxxx Trust and Savings Bank, as
Administrative Agent for the Banks. Capitalized terms used and not defined
herein have the meanings assigned to them in the Credit Agreement. The
Borrower made a Bid Loan Request on __________, ________ pursuant to
Section 2.2 of the Credit Agreement, and in that connection you are invited to
submit a Bid by [DATE](1). Your Bid must comply with Section 2.2 of the Credit
Agreement and the terms set forth below on which the Bid Loan Request was made.
(A) Type (Stated Rate or Eurodollar)
----------------
(B) Date of Proposed Bid Loan Borrowing
----------------
STATED RATE EURODOLLAR
(C) Aggregate Principal Amount
of Bid Loan
--------------- ----------------
(D) Maturities and maximum
amount, if different from
(C), for any maturity
--------------- ----------------
Very truly yours,
XXXXXX TRUST AND SAVINGS BANK, as
Administrative Agent
By
---------------------------------
Its
-----------------------------
------------------------------
(1) The Bid must be received by the Agent not later than 9:00 a.m. Chicago
time, on the proposed Borrowing Date for Stated Rate Bid Loans and 11:00
a.m. four Business Days prior to the proposed Borrowing Date for Eurodollar
Bid Loans.
EXHIBIT E
CONFIRMATION OF BID
[Date]
Xxxxxx Trust and Savings Bank, as Administrative Agent
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:
------------------------
The undersigned [Name of Bank], refers to the Credit Agreement dated as of
October 8, 1996 (the "CREDIT AGREEMENT") among Xxxx-Xxxxx Company (the
"BORROWER"), the Banks from time to time party thereto, and Xxxxxx Trust and
Savings Bank, as Administrative Agent for the Banks. Capitalized terms used
and not defined herein have the meanings assigned to them in the Credit
Agreement. The undersigned hereby confirms that on the date hereof it has made
a Bid pursuant to Section 2.2 of the Credit Agreement, in response to the Bid
Loan Request made by the Borrower on __________, _______, and in that
connection sets forth below the terms on which such Bid is made:
Type (Stated Rate or Eurocurrency):
----------------
Date of proposed Bid Loan Borrowing: (1)
----------------
Interest Rate or spread above
Principal Amount(1) Maturity(2) or below Adjusted LIBOR(3)
Very truly yours,
[Name of Bank]
By
---------------------------------
Its
-----------------------------
---------------------------
(1) As specified in the related Invitation to Bid.
(1) Principal amount of bid for each maturity may not exceed the principal
amount requested by the Borrower or the maximum amount requested for that
maturity, if less. Bids must be made in an amount of $5,000,000 and in
integral multiples of $1,000,000.
(2) List each maturity of 1 to 180 days in the case of Stated Rate Bid Loans
and 1, 2, 3, 4, 5 or 6 months in the case of Eurodollar Bid Loans.
(3) Specify rate of interest per annum computed on the basis of a year of 360
days and actual days elapsed for Stated Rate Bid Loans and percentage to be
added to or subtracted from Adjusted LIBOR for Eurodollar Bid Rate Loans.
EXHIBIT F
NOTICE OF ACCEPTANCE OF BID
[Date]
[Name of Bank]
[Address of Bank]
Attention:
----------------
Reference is made to the Credit Agreement dated as of October 8, 1996 (the
"CREDIT AGREEMENT") among Xxxx-Xxxxx Company (the "BORROWER"), the Banks from
time to time party thereto, and Xxxxxx Trust and Savings Bank, as
Administrative Agent for the Banks. Capitalized terms used and not defined
herein have the meanings assigned to them in the Credit Agreement. The
Borrower made a Bid Loan Request on __________, ______ pursuant to Section 2.2
of the Credit Agreement, and in that connection you have submitted a Bid. Your
Bid has been accepted as set forth below.
(A) Type of Bid Loan
----------------
(B) Date of Bid Loan Borrowing
----------------
Interest Rate or
(C) Aggregate Spread above or
principal amount Principal below Adjusted
of each Bid maturity Amount Maturity LIBOR
and interest rate --------- -------- -----
----------- ---------- ----------
----------- ---------- ----------
----------- ---------- ----------
----------- ---------- ----------
Very truly yours,
XXXXXX TRUST AND SAVINGS BANK,
as Administrative Agent
By
---------------------------------
Its
-----------------------------
EXHIBIT G
NOTICE OF PAYMENT REQUEST
[Date]
[Name of Bank]
[Address]
Attention:
Reference is made to the Credit Agreement, dated as of October 8, 1996,
among Xxxx-Xxxxx Company, the Banks named therein, and Xxxxxx Trust and Savings
Bank, as Administrative Agent (the "CREDIT AGREEMENT"). Capitalized terms used
herein and not defined herein have the meanings assigned to them in the Credit
Agreement. [The Borrower has failed to pay its Reimbursement Obligation in the
amount of $__________. Your Bank's Percentage of the unpaid Reimbursement
Obligation is $____________] or [Xxxxxx Trust and Savings Bank has been
required to return a payment by the Borrower of a Reimbursement Obligation in
the amount of $____________. Your Bank's Percentage of the returned
Reimbursement Obligations is $____________.]
Very truly yours,
XXXXXX TRUST AND SAVINGS BANK
By
---------------------------------
Its
-----------------------------
EXHIBIT H
COMPLIANCE CERTIFICATE
To: The Banks parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain Credit
Agreement dated as of October 8, 1996, among Xxxx-Xxxxx Company (the
"BORROWER"), the banks party thereto and Xxxxxx Trust and Savings Bank as
Administrative Agent for the Banks (the "AGREEMENT"). Unless otherwise defined
herein, the terms used in this Compliance Certificate have the meanings
ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _______________________________ of the
Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the accounting
period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or an Event of Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Borrower's compliance with certain covenants of the Agreement,
all of which data and computations are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this ______ day of ______________,
19___.
---------------------------------
Name:
----------------------------
Title:
---------------------------
H-2
SCHEDULE I TO COMPLIANCE CERTIFICATE
XXXX-XXXXX COMPANY
Compliance Calculations for Credit Agreement
Dated as of October 9, 1996
Calculations as of ________________, 19__
A. CURRENT RATIO (SECTION 9.7 OF THE AGREEMENT)
1. Current Assets $_______________
A1
2. Current Liabilities (excluding Loans) $_______________
A2
3. Ratio of Line A1 to Line A2 _____ : 1.0
A3
4. Line A3 Ratio must be greater than: 1.25:1.0
5. Is Company in Compliance? (Circle Yes or No) Yes / No
B. TANGIBLE NET WORTH (SECTION 9.8 OF THE AGREEMENT)
1. Total Shareholder's Equity $__________ $_______________
B1
2. Sum of:
(i) Intangibles $_________
(ii) Write-up of Assets $_________ $_______________
B2
3. Line B1 minus Line B2
(Tangible Net Worth) $_______________
B3
4. Line B3 must be greater than or equal to
(the Minimum Required Amount): $_______________
5. Is Company in Compliance? (Circle Yes or No) Yes / No
C. LEVERAGE RATIO (SECTION 9.19 OF THE AGREEMENT)
1. Total Funded Debt $_______________
C1
2. Consolidated Net Income for the specified fiscal $_______________
quarter or quarters of the Company most recently C2
completed (as adjusted per definition of
Leverage Ratio)
3. Interest Expense for the same period $_______________
C3
4. Federal, state and local income taxes for the $_______________
same period C4
5. Deprecation of fixed assets for the same period $_______________
C5
6. Amortization for the same period $_______________
C6
7. Add Lines C2-C6 (EBITDA) $_______________
C7
8. Ratio of Line C1 to C7 _____ : 1.0
9. Line C8 Ratio must be less than or equal to: _____ : 1.0
10. Is Company in Compliance? (Circle Yes or No) Yes / No
D. INTEREST COVERAGE RATIO (SECTION 9.10 OF THE AGREEMENT)
1. Interest Expense for the specified fiscal quarter $_______________
or quarters of the Company most recently completed D1
(as adjusted per definition of Interest
Coverage Ratio)
2. Consolidated Net Income for the same period $_______________
D2
3. Interest Expense for the same period $_______________
D3
4. Federal, state and local income taxes for $_______________
the same period D4
5. Add Lines D2-D4 (EBIT) (as adjusted per definition $_______________
of Interest Coverage Ratio) D5
6. Ratio of Line D1 to Line D5 _____ : 1.0
7. Line D6 ratio must not be less than: _____ : 1.0
2
8. Is Company in Compliance? (Circle Yes or No) Yes / No
E. LONG-TERM DEBT (SECTION 9.11 OF THE AGREEMENT)
1. NF Term Refinancing Credit extended $_______________
E1
2. Amount of Commitments $_______________
E2
3. Weighted Average Life to Maturity of Long-Term $_______________
Debt issued during such period E3
4. Line E3 life must not be less than: 7 years
E4
5. Is line E3 greater than or equal to 7 years Yes/No
6. Is Company in Compliance? (Circle Yes or No) Yes/No
F. INDEBTEDNESS OF BORROWER (SECTION 9.12(a) OF THE AGREEMENT)
1. Total Funded Debt of the Borrower $_______________
F1
2. Line F1 must be less than or equal to: $ 475,000,000
F2
3. Is Company in Compliance? (Circle Yes or No) Yes/No
G. INDEBTEDNESS OF SUBSIDIARIES (SECTION 9.12(b) OF THE AGREEMENT)
1. Aggregate amount of Indebtedness of Subsidiaries $_______________
G1
2. Total Assets as defined $_______________
G2
3. Ratio of Line G1 to Line G2 $_______________
G3
4. Line G3 Ratio must be less than or equal to: ________________
G4
5. Is Company in Compliance? (Circle Yes or No) Yes / No
3
EXHIBIT I
SUBSIDIARY GUARANTEE AGREEMENT
_______________, 19___
XXXXXX TRUST AND SAVINGS BANK, as Administrative Agent for the Banks party
to the Credit Agreement dated as of October 8, 1996, among Xxxx-Xxxxx
Company, such Banks and such Administrative Agent (the "CREDIT AGREEMENT")
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
The undersigned, [NAME OF SUBSIDIARY GUARANTOR], a [JURISDICTION OF
INCORPORATION] corporation, hereby elects to be a "GUARANTOR" for all purposes
of the Credit Agreement, effective from the date hereof. The undersigned
confirms that the representations and warranties set forth in Section 7 of the
Credit Agreement are true and correct as to the undersigned as of the date
hereof.
Without limiting the generality of the foregoing, the undersigned hereby
agrees to perform all the obligations of a Guarantor under, and to be bound in
all respects by the terms of, the Credit Agreement, including, without
limitations, Section 13 thereof, to the same extent and with the same force and
effect as if the undersigned were a direct signatory thereto.
This Agreement shall be construed in accordance with and governed by the
internal laws of the State of Illinois.
Very truly yours,
[NAME OF SUBSIDIARY GUARANTOR]
By____________________________
Name:_______________________
Title:______________________
EXHIBIT J
EMPLOYEE BENEFIT PLANS
Neither the Borrower, Super Food nor any of their respective ERISA
Affiliates maintains or contributes to any Welfare Plan (other than a
multiemployer plan as defined in Section 3(37) of ERISA) which provides benefits
to employees after termination of employment (other than as required under
Section 601 of ERISA or any comparable applicable state law) which could result
in a material obligation to pay money, except for such plans listed below.
THE BORROWER AND ITS ERISA AFFILIATES:
1. Xxxx-Xxxxx Company Welfare Benefit Plan.
2. Xxxx-Xxxxx Company and its ERISA Affiliates from time to time on an ad hoc
basis pay severance benefits.
SUPER FOOD AND ITS ERISA AFFILIATES:
1. The Super Food Services, Inc. Employee Health Care Plan.
2. The Super Foods/Lexington Division Employee Health Care Plan.
3. Super Food and its ERISA Affiliates from time to time on an ad hoc basis
pay severance benefits.
4. The Super Food Services, Inc. Section 125 Cafeteria Plan for Non-Union
Employees.
5. The Super Food Services, Inc. Short-Term Disability Plan -- Cincinnati
Division Union Employees.
6. The Super Food Services, Inc. Health and Welfare Plan -- Cincinnati
Division Union Employees.
7. The Super Food Services, Inc. Medical/Surgical/Disability Plan for
Employees not Covered by Union Plan.
8. Kentucky Food Stores, Inc. Group Disability Plan.
9. Kentucky Food Stores, Inc. Health Care Plan.
10. The Super Food Services, Inc. Medical/Surgical/Disability Plan for Union
Employees -- Bellefontaine Division.
11. The Super Food Services, Inc. Medical/Surgical/Disability Plan for Union
Employees -- Orlando, Florida.
12. The Super Food Services, Inc. Medical/Surgical/Disability Plan for Union
Employees -- Bridgeport, Michigan.
EXHIBIT K
FORM OF OPINION OF COUNSEL
October 8, 1996
Xxxxxx Trust and Savings Bank
(Individually and as Administrative Agent)
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
and the other Banks now and from time to
time hereafter party to the Credit Agreement
(as defined below)
Re: Credit Agreement, dated as of October 8, 1996 (the "CREDIT
AGREEMENT"), among Xxxx-Xxxxx Company, a Delaware corporation
(the "COMPANY"), the Banks (defined therein), Xxxxxx Trust and
Savings Bank, as Administrative Agent, and Bank of Montreal and
PNC Bank, National Association, as Syndication Agent
Gentlemen:
This opinion is being delivered to you pursuant to Section 8.1(a) of the
Credit Agreement. Capitalized terms used but not otherwise defined herein are
used herein as defined in the Credit Agreement.
We have acted as counsel for the Company and NF Acquisition Corporation, a
Delaware corporation ("NF Acquisition") in connection with the negotiation,
execution and delivery of the Credit Agreement by the Company and a Subsidiary
Guaranty Agreement by NF Acquisition.
In connection with this opinion, we have reviewed an original or a copy of
each of the following items:
(A) the Credit Agreement;
(B) the Notes; and
(C) the Subsidiary Guaranty Agreement executed by NF Acquisition.
We have also examined the originals, or copies certified, or otherwise
identified, to our satisfaction, of such other corporate records of the Company
and its Subsidiaries, and such other agreements, instruments and documents as we
have deemed necessary as a basis
Xxxxxx Trust and Savings Bank
October 8, 1996
Page 2
for the opinions hereinafter expressed. In such examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals and the conformity with the originals of all documents
submitted to us as copies.
The opinions expressed herein are qualified in their entirely as follows:
(a) No opinion is expressed with respect to laws other than those of the
States of Minnesota, the corporate law of the State of Delaware and
the laws of the United States of America. To the extent the Credit
Agreement and Notes and Subsidiary Guaranty Agreement are governed by
Illinois law, we have assumed that Illinois law is identical to
Minnesota law in all relevant respects.
(b) To the extent that the opinions given below relate to the
enforceability of the Notes and the Credit Agreement or Subsidiary
Guaranty Agreement, the opinions are subject to the effect of:
(i) applicable bankruptcy, fraudulent transfer or conveyance,
insolvency, reorganization, moratorium and other similar laws
limiting the enforceability of creditors' rights generally, as
from time to time in effect, and
(ii) equitable limitations upon the enforcement, whether by an action
for specific performance, injunctive relief or otherwise, of
remedies or obligations enforceable in a court of equity and the
discretion of courts in granting or withholding equitable relief
with respect to such enforcement.
(c) Certain rights and remedies of the Administrative Agent, the
Syndication Agents and the other Banks provided for in the Notes and
Credit Agreement and Subsidiary Guaranty Agreement may not be
available or enforceable, and certain waivers of rights by the Company
may not be effective, but, in our opinion, the unavailability or
enforceability thereof will not make the rights and remedies provided
for in the Notes and Credit Agreement and Subsidiary Guaranty
Agreement, when taken as a whole, inadequate for the practical
realization by the Administrative Agent, the Syndication Agents and
the other Banks of the benefits sought to be realized thereby.
(d) Provisions of the Notes and Credit Agreement and Subsidiary Guaranty
Agreement which permit the Administrative Agent, the Syndication Agent
or any other Bank to take action or make determinations may be subject
to a requirement that such actions be taken or such determinations be
made on a reasonable basis and in good faith.
Xxxxxx Trust and Savings Bank
October 8, 1996
Page 3
(e) Insofar as the opinion expressed in paragraph 3 of Articles I and II
below relates to material agreements known to us, our investigation
and review has been limited to agreements identified and made
available to us by the Company.
(f) The term "to the best of our knowledge" as used in the opinion
expressed in paragraph 5 of Article I below, means only the personal
knowledge of the individual attorney preparing this opinion, based
solely on discussions with the chief legal officer of the Company.
As to all questions of fact (but not law), material to such opinions, we
have relied upon certificates of the Company and its officers and of public
officials and have examined the representations and warranties made by the
Company contained in the Credit Agreement and have relied upon the relevant
facts stated therein. Based on the foregoing, we are of the opinion that:
I.THE COMPANY
1. The Company is a corporation duly existing and in good standing under
the laws of the State of Delaware, and is duly qualified in each jurisdiction in
which the failure to so qualify would materially and adversely affect the
Company.
2. The Company has full power to execute, deliver and perform its
obligations under the Credit Agreement and the Notes, to borrow money and to
request the issuance of Letters of Credit.
3. The execution and delivery of the Credit Agreement and the Notes, the
borrowings and incurrence of obligations in respect of Letters of Credit issued
thereunder, and the performance by the Company of its obligations under the
Credit Agreement and Notes have been duly authorized by all necessary corporate
action, have received all necessary governmental approval, and do not and will
not contravene or conflict with any provision of law or of the charter or by-
laws of the Company or, to our knowledge, of any material agreement binding upon
the Company.
4. The Credit Agreement and the Notes have been duly executed and
delivered by the Company and are the legal, valid and binding obligations of the
Company, enforceable in accordance with their respective terms.
5. To the best of our knowledge, there are no actions, suits or
proceedings pending threatened against or affecting the Borrower or any
Subsidiary or the Properties of the Borrower or any Subsidiary before any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, which would read reasonably be expected to
effect a material adverse change in the business, operations, Properties or
financial or other condition of the Borrower and the Subsidiaries, taken as a
whole.
Xxxxxx Trust and Savings Bank
October 8, 1996
Page 2
II.THE SUBSIDIARY GUARANTY AGREEMENT
1. NF Acquisition is a corporation duly existing and in good standing
under the laws of the State of Delaware, and is duly qualified in each
jurisdiction in which the failure to so qualify would have a material adverse
effect on NF Acquisition.
2. NF Acquisition has full power to execute, deliver and perform its
obligations under the Subsidiary Guaranty Agreement.
3. The execution and delivery of the Subsidiary Guaranty Agreement and
the performance by NF Acquisition of its obligations thereunder have been duly
authorized by all necessary corporate action, have received all necessary
governmental approval, and do not and will not contravene or conflict with any
provision of law or of the charter or by-laws of NF Acquisition or, to our
knowledge, of any material agreement binding upon NF Acquisition.
4. The Subsidiary Guaranty Agreement has been duly executed and delivered
by NF Acquisition and is the legal, valid and binding obligation of NF
Acquisition, enforceable in accordance with its terms.
We wish to note that Xxxxxxx X. Xxxxxx, a director of the Company, is a
partner in our firm.
This opinion is furnished to the Administrative Agent for it and on behalf
of the other Banks for their sole benefit in connection with the above-
referenced transaction. This opinion is not to be relied upon by any other
Person or to be used, circulated, quoted or otherwise referenced for any other
purpose, except that (i) Assignees may rely hereon and (ii) copies of this
opinion may be shown by the Banks to their accountants, regulators and counsel
as well as to participants.
EXHIBIT L
EXISTING NF REVOLVER DEBT
1. Credit Agreement, dated December 27, 1995, between the Company and
First Bank National Association, Norwest Bank Minnesota, National Association,
PNC Bank, National Association, Mitsubishi Bank, Limited Chicago Branch, and
Wachovia Bank of Georgia, N.A.
EXHIBIT M
EXISTING NF TERM DEBT
Note Agreements dated March 22, 1991 between the Company and The Minnesota
Mutual Life Insurance Company, and between the Company and The Minnesota Mutual
Life Insurance Company - Separate Account F.
Note Agreements dated as of February 15, 1993 between the Company and
Principal Mutual Life Insurance Company, and between the Company and Aid
Association for Lutherans.
Note Agreement dated March 22, 1996 between the Company and The Variable
Annuity Life Insurance Company, Independent Life and Accident Insurance Company,
Northern Life Insurance Company and Northwestern National Life Insurance
Company.
Note Agreement dated August 1, 1986 between the Company and Nationwide Life
Insurance Company.
Note Agreements dated September 15, 1987 between the Company and IDS Life
Insurance Company and between the Company and IDS Life Insurance Company of New
York.
Note Agreements dated September 29, 1989 between the Company and Nationwide
Life Insurance Company, and between the Company and West Coast Life Insurance
Company.
EXHIBIT N
EXISTING SUPER FOOD DEBT
1. $10,000,000 Revolving Credit Loan Agreement dated April 9, 1991
between Super Food and Society Bank, N.A.
2. $25,000,000 Note Agreement dated as of November 1, 1989 between Super
Food and Nationwide Life Insurance Company.
3. $10,000,000 Loan Agreement dated September 17, 1987 between Super Food
and PNC Bank, Ohio (then known as The Central Trust Company, N.A.) as amended by
Amendment to Loan Agreement dated April 11, 1991.
4. $10,000,000 Credit Agreement dated August 30, 1991 between Super Food
and The First National Bank of Chicago.
SCHEDULE 7.2
SUBSIDIARIES OF XXXX-XXXXX COMPANY
A. Direct Subsidiaries of Xxxx-Xxxxx Company (the voting stock of which is
owned, with respect to each subsidiary, 100 percent by Xxxx-Xxxxx Company):
Subsidiary Corporation State of Incorporation
---------------------- ----------------------
Xxxx-XxXxxx Company California
Piggly Wiggly Northland Corporation Minnesota
GTL Truck Lines, Inc. Nebraska
X.X. Xxxxxx Company Georgia
NFC Acquisition Corporation Delaware
B. Direct Subsidiaries of Xxxx-Xxxxx Company (the voting stock of which is
owned, with respect to each subsidiary, 66.6 percent by Xxxx-Xxxxx
Company):
Subsidiary Corporation State of Incorporation
---------------------- ----------------------
Xxxxxxxx Dairy of the Black Hills, Inc. South Dakota
Nebraska Dairies, Inc. Nebraska
C. Subsidiaries of Xxxx-XxXxxx Company (the voting stock of which is owned,
with respect to each subsidiary other than Agricola Nadco Limitada, 100
percent by Xxxx-XxXxxx Company):
Subsidiary Corporation State/Country of Incorporation
---------------------- ------------------------------
Xxxxxxx Transportation Service, Inc. California
Agricola Nadco Limitada* Chile
*Ninety-nine percent (99%) of Agricola Nadco Limitada
is owned by Xxxx-XxXxxx Company
Exhibit J
Neither the Borrower, Super Food nor any of their respective ERISA Affiliates
maintains or contributes to any Welfare Plan (other than a multiemployer plan as
defined in Section 3(37) of ERISA) which provides benefits to employees after
termination of employment (other than as required under Section 601 of ERISA or
any comparable applicable state law) which could result in a material obligation
to pay money, except for such plans listed below.
THE BORROWER AND ITS ERISA AFFILIATES:
1. Xxxx-Xxxxx Company Welfare Benefit Plan.
2. Xxxx-Xxxxx Company and its ERISA Affiliates from time to time on an ad hoc
basis pay severance benefits.
SUPER FOOD AND ITS ERISA AFFILIATES:
1. The Super Food Services, Inc. Employee Health Care Plan.
2. The Super Foods/Lexington Division Employee Health Care Plan.
3. Super Food and its ERISA Affiliates from time to time on an ad hoc basis
pay severance benefits.
4. The Super Food Services, Inc. Section 125 Cafeteria Plan for Non-Union
Employees.
5. The Super Food Services, Inc. Short-Term Disability Plan -- Cincinnati
Division Union Employees.
6. The Super Food Services, Inc. Health and Welfare Plan -- Cincinnati
Division Union Employees.
7. The Super Food Services, Inc. Medical/Surgical/Disability Plan for
Employees not Covered by Union Plan.
8. Kentucky Food Stores, Inc. Group Disability Plan.
9. Kentucky Food Stores, Inc. Health Care Plan.
10. The Super Food Services, Inc. Medical/Surgical/Disability Plan for Union
Employees -- Bellefontaine Division.
11. The Super Food Services, Inc. Medical/Surgical/Disability Plan for Union
Employees -- Orlando, Florida.
12. The Super Food Services, Inc. Medical/Surgical/Disability Plan for Union
Employees -- Bridgeport, Michigan.
