EXHIBIT 10.2
EXECUTION COPY
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement (this "Amendment and
Restatement") is dated as of December 16, 2002 and is among AMERICAN SEAFOODS
HOLDINGS LLC, a Delaware limited liability company ("Holdings"), AMERICAN
SEAFOODS CONSOLIDATED LLC, a Delaware limited liability company (the "Parent"),
AMERICAN SEAFOODS GROUP LLC, a Delaware limited liability company (the
"Borrower"), the Lenders, XXXXXX TRUST AND SAVINGS BANK, as Documentation Agent,
THE BANK OF NOVA SCOTIA, as Syndication Agent, and BANK OF AMERICA, N.A., as
Administrative Agent, Issuing Lender and Swingline Lender.
Holdings, the Parent, the Borrower, Bank of America, N.A., as
Administrative Agent, Issuing Lender and Swingline Lender, Xxxxxx Trust and
Savings Bank, as Documentation Agent, The Bank of Nova Scotia, as Syndication
Agent, and certain banks and other financial institutions, as lenders, are
parties to an Amended and Restated Credit Agreement dated as of April 18, 2002
(as amended, supplemented or otherwise modified prior to the date hereof, the
"Existing Credit Agreement"). Capitalized terms not otherwise defined in this
Amendment and Restatement shall have the same meanings as specified in the
Existing Credit Agreement.
The Borrower has notified the Administrative Agent that the Borrower or
one or more of its Wholly-Owned Subsidiaries intends to acquire all or
substantially all of the assets of Southern Pride Catfish Company, Inc. pursuant
to the Southern Pride Acquisition Agreement. The Borrower has requested that, in
connection with and in order to finance the Southern Pride Acquisition, the
Lenders agree to amend and restate the Existing Credit Agreement to, among other
things, (i) provide for an increase in the Tranche B Term Loans and a Borrowing
in respect thereof on the Restatement Effective Date in a principal amount of
$50,000,000 and (ii) consent to the Southern Pride Acquisition as other than a
Permitted Acquisition. The parties hereto have agreed, subject to the terms and
conditions hereof, to amend the Existing Credit Agreement as provided herein and
to restate the Existing Credit Agreement in its entirety to read as set forth in
the Existing Credit Agreement with the following amendments.
Accordingly, the parties hereby agree as follows:
PART I
AMENDMENTS TO THE EXISTING CREDIT AGREEMENT
SUBPART 1.01 Amendments to Section 1.01.
(a) Section 1.01 of the Existing Credit Agreement is hereby amended
by inserting the following definitions into such Section in the
appropriate alphabetical sequence:
"Existing Credit Agreement" has the meaning set forth in the recitals
to this Second Amended and Restated Credit Agreement.
"RAFI Lease" means that certain Fishing Rights Lease Agreement, dated
as of January 28, 2000, between Xxxxxxx Xxx Fisheries, Inc. and ASC, as
amended in accordance with the provisions thereof and of this
Agreement.
"Restatement Effective Date" means December 16, 2002.
"Xxxxxxxx-Xxxxx Act" means the United States Xxxxxxxx-Xxxxx Act of
2002.
"Seller" means Xxx X. Xxxxxx, Xx.
"Southern Pride" means Southern Pride Catfish Company, Inc., an Alabama
corporation.
"Southern Pride Acquisition" means the transactions contemplated by the
Southern Pride Acquisition Agreement.
"Southern Pride Acquisition Agreement" means that certain Asset
Purchase Agreement, dated as of November 20, 2002, among the Borrower,
Southern Pride Catfish LLC, Southern Pride and the Seller, including
all exhibits and schedules thereto, and all other agreements and
instruments relating to the Southern Pride Acquisition, as the same may
be amended, modified or supplemented from time to time in accordance
with the provisions thereof and this Agreement.
"Southern Pride Collateral" means all of the assets of Southern Pride
which shall become Collateral subject to the Collateral Documents.
(b) Section 1.01 of the Existing Credit Agreement is hereby amended
by amending and restating the following definitions in such Section so
that they read in their entireties as follows:
"Agreement" means the Existing Credit Agreement, as amended and
restated on and as of the Restatement Effective Date to read in full as
provided in this Second Amended and Restated Credit Agreement, as the
same may be further amended, restated, modified or supplemented from
time to time.
"Consolidated Capital Expenditures" means for any period the
aggregate amount of all expenditures (whether paid in cash or other
consideration or accrued as a liability) that would, in accordance with
GAAP, be included as additions to property, plant and equipment and
other capital expenditures of the Borrower and its Consolidated
Subsidiaries for such period, as the same are or would be set forth in
a consolidated statement of cash flows of the Borrower and its
Consolidated Subsidiaries for such period (including the amount of
assets leased under any Capital Lease), but excluding (to the extent
that they would otherwise be included) (i) any such expenditures made
for the replacement or restoration of assets to the extent paid for by
any Casualty Insurance Policy or Condemnation Award with respect to the
asset or assets being replaced or restored to the extent such
expenditures are permitted under the Credit Documents and (ii) for
purposes of Section 7.14 and the definition of "Fixed Charge Coverage
Ratio" only, capital expenditures for the Southern Pride Acquisition
and Permitted Acquisitions.
"Pro-Forma Basis" means, for purposes of calculating compliance of
any transaction with any provision hereof, that the transaction in
question shall be deemed to have occurred as of the first day of the
most recent period of four consecutive fiscal quarters of the Borrower
which precedes or ends on the date of such transaction and with respect
to which the Administrative Agent has received the financial
information for the Borrower and its Consolidated Subsidiaries required
under Section 6.01(a) or (b), as applicable, and the certificates
required by Section 6.01(c) for such period. As used in this
definition, "transaction" means (i) any incurrence or assumption by a
Consolidated Party of Debt under Section 7.01(xiii) or Attributable
Debt in respect of a Sale/Leaseback Transaction under Section 7.13,
(ii) any merger or consolidation referred to in Section 7.04 or (iii)
the Southern Pride Acquisition or any Permitted Acquisition referred to
in Section 7.06(a)(xiv) or in clause (v) of the definition of
"Permitted Acquisition" set forth in Section 1.01. In connection with
any calculation of the financial covenants set forth in Section 7.18
upon giving effect to a transaction on a "Pro-Forma Basis", (i) any
Debt incurred by the Borrower or any of its Subsidiaries in connection
with such transaction (or any other
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transaction which occurred during the relevant four fiscal quarter
period) shall be deemed to have been incurred as of the first day of
the relevant four fiscal-quarter period, (ii) if such Debt has a
floating or formula rate, then the rate of interest for such Debt for
the applicable period for purposes of the calculations contemplated by
this definition shall be determined by utilizing the rate which is or
would be in effect with respect to such Debt as at the relevant date of
such calculations and (iii) income statement items (whether positive or
negative) attributable to all property acquired in such transaction or
to the Investment comprising such transaction, as applicable, shall be
included as if such transaction has occurred as of the first day of the
relevant four-fiscal-quarter period.
"Pro-Forma Compliance Certificate" means a certificate of a
Responsible Officer or chief accounting officer of the Borrower
delivered to the Administrative Agent in connection with (i) any
incurrence or assumption by a Consolidated Party of Debt under Section
7.01(xiii) or Attributable Debt in respect of a Sale/Leaseback
Transaction under Section 7.13, (ii) any merger or consolidation
referred to in Section 7.04 or (iii) the Southern Pride Acquisition or
any Permitted Acquisition referred to in Section 7.06(a)(xiv) and
clause (v) of the definition of "Permitted Acquisition" set forth in
Section 1.01 hereof and containing reasonably detailed calculations
(with pro-forma adjustments satisfactory to the Administrative Agent),
upon giving effect to the applicable transaction on a "Pro-Forma
Basis", of the Interest Coverage Ratio, the Fixed Charge Coverage Ratio
and the Leverage Ratio as of the last day of the most recent period of
four consecutive fiscal quarters of the Borrower which precedes or ends
on the date of the applicable transaction and with respect to which the
Administrative Agent shall have received the consolidated financial
information for the Borrower and its Consolidated Subsidiaries required
under Section 6.01(a) or (b), as applicable, and the certificate
required by Section 6.01(c) for such period.
"Tranche B Term Loan" means a Loan made to the Borrower under
Section 2.04(a) or Section 2.04(g), and "Tranche B Term Loans" means
the Tranche B Term Loans of the Lenders, collectively.
"Tranche B Term Loan Commitment" means, without duplication, (i)
with respect to any Lender, the commitment of such Lender to make
Tranche B Term Loans to the Borrower on the Effective Date in an
aggregate principal amount equal to such Lender's Tranche B Term Loan
Commitment Percentage (as of the Effective Date) of the Tranche B Term
Loan Committed Amount (as of the Effective Date), and (ii) solely with
respect to Bank of America, N.A., the commitment of such Lender to make
a Tranche B Term Loan to the Borrower on the Restatement Effective Date
in a principal amount equal to $50,000,000.
"Tranche B Term Loan Commitment Percentage" means, for any Lender,
(i) from the Effective Date to the Restatement Effective Date, the
percentage, if any, identified as its Tranche B Term Loan Commitment
Percentage on Schedule 1.01A, and (ii) from and after the Restatement
Effective Date, the percentage, if any, identified as its Tranche B
Term Loan Commitment Percentage on Schedule 1.01A as such percentage
shall have been modified as a result of the incurrence of $50,000,000
of Tranche B Term Loans on the Restatement Effective Date in accordance
with Section 2.04(g), in either case as such percentage may be modified
in connection with any assignment made in accordance with the
provisions of Section 10.03(b).
"Tranche B Term Loan Committed Amount" means (i) from the Effective
Date to the Restatement Effective Date, $230,000,000, and (ii) from and
after the Restatement Effective Date, $280,000,000, or, in either case,
such lesser amount to which the Tranche B Term Loan Committed Amount
may be reduced pursuant to Section 3.04.
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SUBPART 1.02 Amendments to Section 2.04. (a) Sections 2.04(a) and
2.04(c) of the Existing Credit Agreement are hereby amended by inserting the
phrase "as of the Effective Date" immediately after each occurrence of the
phrases "Tranche B Term Loan Committed Amount" and "Tranche B Term Loan
Commitment Percentage" contained in such Sections.
(b) Section 2.04(e) of the Existing Credit Agreement is hereby
deleted in its entirety and the following is hereby replaced in lieu
thereof:
"(e) Amortization of Tranche B Term Loans. On each Principal
Amortization Payment Date set forth below, the Borrower shall repay,
and there shall become due and payable (together with accrued
interest thereon), the aggregate principal amount of Tranche B Term
Loans set forth below opposite such date (without giving effect to
any repayments or prepayments made prior to the Restatement
Effective Date), and the Tranche B Term Loans of each Lender shall
be ratably repaid:
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TRANCHE B TERM LOAN
TRANCHE B TERM LOAN PRINCIPAL PRINCIPAL AMORTIZATION
AMORTIZATION PAYMENT DATES PAYMENT
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September 30, 2002 $ 766,666
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December 31, 2002 $ 766,667
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March 31, 2003 $ 866,667
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June 30, 2003 $ 700,000
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September 30, 2003 $ 700,000
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December 31, 2003 $ 700,000
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March 31, 2004 $ 700,000
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June 30, 2004 $ 700,000
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September 30, 2004 $ 700,000
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December 31, 2004 $ 700,000
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March 31, 2005 $ 700,000
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June 30, 2005 $ 700,000
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September 30, 2005 $ 700,000
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December 31, 2005 $ 700,000
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March 31, 2006 $ 700,000
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June 30, 2006 $ 700,000
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September 30, 2006 $ 700,000
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December 31, 2006 $ 700,000
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March 31, 2007 $ 700,000
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June 30, 2007 $ 700,000
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September 30, 2007 $ 700,000
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December 31, 2007 $ 7,275,000
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March 31, 2008 $ 7,275,000
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June 30, 2008 $ 8,850,000
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September 30, 2008 $ 8,850,000
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December 31, 2008 $ 8,850,000
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March 31, 2009 $223,900,000
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TOTAL $280,000,000"
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(b) Section 2.04 of the Existing Credit Agreement is hereby
amended by adding the following clause thereto:
"(g) Subject to the terms and conditions set forth herein, Bank of
America, N.A. agrees, on the Restatement Effective Date, to make Tranche
B Term Loans to the Borrower, in Dollars, in an aggregate principal
amount equal to $50,000,000. The Tranche B Term Loans in an aggregate
principal amount equal to $50,000,000 made by Bank of America, N.A. on
the Restatement Effective Date shall be for all purposes Tranche B Term
Loans under this Agreement, the indebtedness and all amounts owing with
respect to such Tranche B Term Loans shall, together with the Tranche B
Term Loans made on the Effective Date in an aggregate principal amount
equal to $230,000,000, be included as Credit Obligations of the Credit
Parties, and the Lenders from time to time with respect to such Tranche
B Term Loans and each other Lender shall receive and be entitled to all
benefits and rights of the Collateral, which will include the Southern
Pride Collateral. Automatically upon Bank of America, N.A. making such
additional Tranche B Term Loans on the Restatement Effective Date, the
Administrative Agent shall adjust its book and records to reflect the
pro-rata allocation of all Tranche B Term Loans outstanding under this
Agreement as of the close of business on the Restatement Effective Date
among the Lenders according to their respective Tranche B Term Loan
Commitment Percentages, if any; provided that the aggregate principal
amount of Tranche B Term Loans owing to each such Lender other than Bank
of America, N.A. will remain unchanged as a result of the making of such
Tranche B Term Loans on the Restatement Effective Date. For purposes of
determining the total number of Groups of Eurodollar Loans of any Class,
the Tranche B Term Loans made by Bank of America, N.A. on the
Restatement Effective Date shall be deemed to have been made pursuant to
Section 2.04(a) of the this Agreement, and such Tranche B Term Loans'
initial Type requested pursuant to Section 2.04(b) of this Agreement."
SUBPART 1.03 Amendments to Section 5.15. Section 5.15 of the Existing
Credit Agreement is hereby amended by inserting, after the first sentence
thereof, the following sentence:
"The proceeds of the Tranche B Term Loans made on the Restatement
Effective Date will be used solely to (i) fund a portion of the
consideration paid pursuant to the Southern Pride Acquisition
Agreement, (ii) repay certain Debt of Southern Pride outstanding as of
the Restatement Effective Date, (iii) pay certain tax liabilities of
the Sellers, (iv) pay fees and expenses incurred in connection with the
Southern Pride Acquisition and (v) fund the general corporate purposes
of the Borrower and its Subsidiaries."
SUBPART 1.04 Amendment to Section 6.12. Section 6.12 of the Existing
Credit Agreement is hereby deleted in its entirety and the following is hereby
substituted in lieu thereof:
"Prior to the date which is 90 days after the Restatement Effective
Date, the Borrower will have entered into and thereafter maintain in
full force and effect Derivatives Agreements designed to hedge the
position of the Borrower with respect to interest rates at rates and on
terms satisfactory to the Administrative Agent, the effect of which
shall be to fix or limit the interest rate that would be payable in
connection with not less than 50% of the aggregate principal amount of
the Term Loans and the Senior Subordinated Notes for a period expiring
no earlier than the third anniversary of the Effective Date.
Notwithstanding anything to the contrary in this Section 6.12, the
Borrower shall cause the Derivatives Agreements in effect on the
Restatement Effective Date with respect to the Term Loans made on the
Effective Date to remain in full force and effect during such 90 day
period referred to in the immediately preceding sentence."
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SUBPART 1.05 Amendment to Section 6.16. Section 6.16 of the Existing
Credit Agreement is hereby amended by adding the following sentences thereto:
"Within 60 days of the Restatement Effective Date, the Collateral Agent
shall have received (i) executed copies of Account Control Agreements
(as defined in the Security Agreement) with respect to accounts that
are part of the Southern Pride Collateral and (ii) Additional
Collateral Documents requested by the Collateral Agent pursuant to
Section 6.11 of the this Agreement with respect to all owned Real
Property with a fair market value greater than $1,000,000 and Material
Leased Properties leased by Southern Pride, including, without
limitation, all documents, instruments, including, without limitation,
Mortgages, title insurance policies, surveys, flood hazard
certifications and legal opinions, in each case in scope, form and
substance reasonably satisfactory to the Collateral Agent. Within 75
days of the Restatement Effective Date, the Administrative Agent and
each Lender shall have received a consolidated balance sheet and income
statement of Southern Pride and its Consolidated Subsidiaries as of the
fiscal year ended December 31, 2001 and the nine-month period ended
September 30, 2002, in each case together with the related consolidated
statements of operations and retained earnings and of cash flows for
such periods, all such financial statements to be in reasonable form
and detail and audited by independent certified public accountants of
recognized national standing reasonably acceptable to the
Administrative Agent and accompanied by an opinion of such accountants
(which shall not contain any going concern qualification or
qualification based on scope of audit) to the effect that such
financial statements have been prepared in accordance with GAAP and
present fairly in all material respects the consolidated financial
position and consolidated results of operations and cash flows of
Southern Pride and its Consolidated Subsidiaries in accordance with
GAAP consistently applied."
SUBPART 1.06 Amendments to Section 7.06. Section 7.06 of the Existing
Credit Agreement is hereby amended as follows:
(a) Clause (a)(vi) thereof is hereby amended by inserting the
phrase ", in each case only to the extent that the making or incurrence
of any such loan, advance or obligation to any director or executive
officer (or equivalent thereof) would not be in violation of Section
402 of the Xxxxxxxx-Xxxxx Act" immediately following the words "Pledge
Agreement".
(b) Clause (a)(xiv) thereof is hereby amended by inserting the
phrase "and the Southern Pride Acquisition" immediately after the
phrase "Permitted Acquisitions".
(c) Clause (b) thereof is hereby amended by inserting the phrase
"and the Southern Pride Acquisition" immediately after the phrase
"Permitted Acquisitions".
SUBPART 1.07 Amendment to Section 7.08. Section 7.08(b) of the Existing
Credit Agreement is hereby amended by adding the phrase "and obligations with
respect to (A) the purchase of the fishing rights subject to the RAFI Lease and
(B) the quota share subject to the Quota Sale Agreement, dated as of November
26, 1999, between Xxxxxxx Xxx Fisheries, Inc. and Alaska Trawl Fisheries, Inc."
immediately following the phrase "Debt permitted by Section 7.01(iii)" in clause
(i) thereof.
SUBPART 1.08 Amendment to Section 7.14. Section 7.14(a) of the Existing
Credit Agreement is hereby deleted in its entirety and the following is hereby
substituted in lieu thereof:
"None of the Consolidated Parties will, or will permit any of their
respective Subsidiaries to, make any Consolidated Capital Expenditures,
except that during any fiscal year, the Borrower and its Subsidiaries
may make Consolidated Capital Expenditures so long as the aggregate
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amount of such Consolidated Capital Expenditures does not exceed
$15,000,000 in any fiscal year."
SUBPART 1.09 Amendment to Section 10.01. Section 10.01 of the Existing
Credit Agreement is hereby amended deleting Mayer, Brown, Xxxx & Maw's notice
information in its entirety and substituting the following in lieu thereof:
"Mayer, Brown, Xxxx & Maw, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, Esq.,
Telephone: (000) 000-0000, Telecopy: (000) 000-0000."
SUBPART 1.10 Amendments to Exhibits. The Existing Credit Agreement is
hereby amended by replacing Exhibit H (Form of Subordination Provisions) to the
Existing Credit Agreement with Annex A attached to this Amendment and
Restatement.
PART II
ADDITIONAL TRANCHE B TERM LOANS
SUBPART 2.01 Additional Tranche B Term Loan Commitments. Subject to the
terms and conditions set forth herein, Bank of America, N.A. agrees, on the
Restatement Effective Date, to make a Tranche B Term Loan (the "Additional
Tranche B Term Loan") to the Borrower, in Dollars, in an aggregate principal
amount equal to $50,000,000; provided that the aggregate principal amount of all
Tranche B Term Loan Borrowings at any time shall not exceed the Tranche B Term
Loan Committed Amount (after giving effect to this Amendment and Restatement).
SUBPART 2.02 Notice of Borrowing. The Borrower shall submit an
appropriate Notice of Borrowing to the Administrative Agent not later than 12:00
noon (local time in Charlotte, North Carolina) on the Restatement Effective
Date, with respect to the portion of the Additional Tranche B Term Loan
initially consisting of Base Rate Loans, or 1:00 P.M. (local time in Charlotte,
North Carolina) on the third Business Day prior to the Restatement Effective
Date, with respect to the portion of the Additional Tranche B Term Loan
initially consisting of one or more Eurodollar Loans, which Notice of Borrowing
shall be irrevocable and shall specify (i) that the funding of Additional
Tranche B Term Loan is requested and (ii) whether the funding of Additional
Tranche B Term Loan shall be comprised of Base Rate Loans, Eurodollar Loans or a
combination thereof, and if Eurodollar Loans are requested, the initial Interest
Period applicable thereto (which shall be subject to the definition of "Interest
Period"). If the Borrower shall fail to deliver a Notice of Borrowing to the
Administrative Agent by 1:00 P.M. (local time in Charlotte, North Carolina) on
the third Business Day prior to the Restatement Effective Date, then the full
amount of the Additional Tranche B Term Loan shall be disbursed on the
Restatement Effective Date as Base Rate Loans. Thereafter, all or any portion of
the Additional Tranche B Term Loan may be converted into Eurodollar Loans in
accordance with the terms of Section 3.01(c) of this Amendment and Restatement
and the definition of "Interest Period".
SUBPART 2.03 Funding of Additional Tranche B Term Loans. On the
Restatement Effective Date, Bank of America, N.A. will make the principal amount
of the Additional Tranche B Term Loans available to the Administrative Agent by
deposit, in Dollars and in immediately available funds, at the offices of the
Administrative Agent at its principal office in Charlotte, North Carolina or at
such other address as the Administrative Agent may designate in writing. Unless
the Administrative Agent determines that any applicable condition set forth in
Part IV hereof has not been satisfied, the Administrative Agent shall make the
amount of the funds so received available to the Borrower by crediting the
account of the Borrower on the books of such office of the Administrative Agent.
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PART III
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SUBPART 3.01 Representations and Warranties. The Borrower hereby
represents and warrants as of the date hereof and on and as of the Restatement
Effective Date to each Lender and the Administrative Agent, as follows:
(a) The representations and warranties set forth in Article V of
the Existing Credit Agreement, after giving effect to this Amendment
and Restatement, and in each other Credit Document, are true and
correct in all material respects at and as if made as of the date
hereof and on and as of the Restatement Effective Date except to the
extent such representations and warranties expressly relate to an
earlier date.
(b) No Default or Event of Default has occurred and is continuing.
(c) The execution, delivery and performance by each of Holdings,
the Parent and the Borrower of this Amendment and Restatement have been
duly authorized by such Person.
(d) This Amendment and Restatement constitutes the legal, valid and
binding obligation of each of Holdings, the Parent and the Borrower,
enforceable against such Person in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by equitable principles of general
applicability (whether enforcement is sought by proceedings in equity
or at law or in admiralty).
(e) The execution, delivery and performance by each of Holdings,
the Parent and the Borrower of this Amendment and Restatement will not
(i) violate, contravene or conflict with any Requirement of Law
applicable to such Person or its respective properties, except for
violations, contraventions or conflicts that would not reasonably be
expected to have a Material Adverse Effect, (ii) violate or conflict
with any provision of such Person's organizational documents, or (iii)
result in the breach of or constitute a default under any indenture or
other agreement or instrument to which such Person is a party, except
for violations, contraventions or conflicts that would not reasonably
be expected to have a Material Adverse Effect.
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.01 Conditions to Effectiveness. This Amendment and
Restatement shall become effective on the first date (the "Restatement Effective
Date") upon which all of the following conditions have been satisfied:
(a) Executed Credit Documents. Receipt by the Administrative Agent
of duly executed copies of: (i) this Amendment and Restatement, which
when taken together bear the signatures of Holdings, the Parent, the
Borrower, the Required Lenders, Bank of America, N.A., as Lender with
respect to the Additional Tranche B Term Loans, the Administrative
Agent, the Issuing Lender, the Swingline Lender, the Documentation
Agent and the Syndication Agent; (ii) a Tranche B Term Note with
respect to the Additional Tranche B Term Loans, if requested by Bank of
America, N.A.; (iii) all other Collateral Documents and other Credit
Documents to be executed and delivered on the Restatement Effective
Date; and (iv) a Joinder Agreement bearing
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the signature of the Southern Pride Catfish LLC, each in form and
substance satisfactory to the Lenders in their sole discretion.
(b) Opinions of Counsel. The Administrative Agent shall have
received:
(i) from Debevoise & Xxxxxxxx, an opinion addressed to
the Administrative Agent, the Collateral Agent and each Lender,
dated the Restatement Effective Date, substantially in the form
of Annex B attached to this Amendment and Restatement; and
(ii) from special local counsel to the Credit Parties
for each State in which any filings are required to perfect the
security interest of the Collateral Agent in any Southern Pride
Collateral, an opinion addressed to the Administrative Agent, the
Collateral Agent and each Lender, dated the Restatement Effective
Date, substantially in the form of Annex C attached to this
Amendment and Restatement.
(c) Consummation of Southern Pride Acquisition. On or prior to
the Restatement Effective Date, there shall have been delivered to the
Administrative Agent true and correct copies of the Southern Pride
Acquisition Agreement, certified as such by a Responsible Officer of
the Borrower, and all terms and conditions of the Southern Pride
Acquisition Agreement shall be in form and substance reasonably
satisfactory to the Administrative Agent. The Lenders shall be
reasonably satisfied with the amount and type of assets and liabilities
being acquired and/or assumed in the Southern Pride Acquisition. The
Southern Pride Acquisition, including all of the terms and conditions
thereof, shall have been duly approved by the board of directors or
comparable governing body of the Borrower and Southern Pride Catfish
LLC, and the Southern Pride Acquisition Agreement shall have been duly
executed and delivered by the parties thereto and shall be in full
force and effect. Each of the conditions precedent to the Borrower's
and Southern Pride Catfish LLC's obligations to consummate the Southern
Pride Acquisition as set forth in the Southern Pride Acquisition
Agreement shall have been satisfied to the reasonable satisfaction of
the Administrative Agent or, with the prior written consent of the
Administrative Agent, waived, and the Southern Pride Acquisition shall
have been consummated in accordance with all Requirements of Law and
the Southern Pride Acquisition Agreement, which shall not have been
altered, amended, supplemented or otherwise modified or any condition
therein waived without the prior consent of the Administrative Agent,
such consent not to be unreasonably withheld.
(d) Perfection of Personal Property Security Interests and
Pledges; Search Reports. Except as otherwise provided in this Amendment
and Restatement, on or prior to the Restatement Effective Date, the
Collateral Agent shall have received:
(i) a Perfection Certificate from Southern Pride
Catfish LLC;
(ii) appropriate financing statements (Form UCC-1 or
such other financing statements or similar notices as shall be
required by local law) fully executed for filing under the
Uniform Commercial Code or other applicable local law of each
jurisdiction in which the filing of a financing statement or
giving of notice may be required, or reasonably requested by the
Collateral Agent, to perfect the security interests intended to
be created by the Collateral Documents in the Southern Pride
Collateral;
(iii) copies of reports from CT Corporation System or
other independent search service reasonably satisfactory to the
Collateral Agent listing all effective financing statements that
name Southern Pride or any of its Subsidiaries, (under its
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present name and any previous name and, if requested by the
Collateral Agent, under any trade names) as debtor or seller with
respect to any of the Southern Pride Collateral that are filed in
the jurisdictions referred to in clause (ii) above, together with
copies of such financing statements (none of which shall cover
the Southern Pride Collateral except to the extent evidencing
Permitted Liens or for which the Collateral Agent shall have
received termination statements (Form UCC-3 or such other
termination statements as shall be required by local law) fully
executed for filing);
(iv) searches of ownership of intellectual property in
the appropriate governmental offices and such
patent/trademark/copyright filings as requested by the Collateral
Agent to the extent necessary or advisable to perfect the
Lender's security interest in intellectual property included in
the Southern Pride Collateral;
(v) all of the Pledged Collateral, if any, which
Pledged Collateral shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, with signatures appropriately
guaranteed, accompanied in each case by any required transfer
tax stamps, all in form and substance satisfactory to the
Collateral Agent; and
(vi) evidence of the completion of all other filings and
recordings of or with respect to the Collateral Documents and of
all other actions as may be necessary or, in the opinion of the
Collateral Agent, desirable to perfect the security interests
intended to be created in the Southern Pride Collateral by the
Collateral Documents.
(e) Consents and Approvals. On the Restatement Effective Date,
all necessary governmental (domestic or foreign), regulatory and third
party approvals (including, without limitation, with respect to real
property leases and license agreements relating to intellectual
property) necessary, in the reasonable discretion of the Administrative
Agent, in connection with the transactions contemplated by the Southern
Pride Acquisition Agreement and this Amendment and Restatement and
otherwise referred to herein or therein shall have been obtained and
remain in full force and effect, and all applicable waiting periods
(including any applicable waiting period under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976) shall have expired, in each case
without any action being taken by any competent authority which could
restrain or prevent such transactions or impose, in the reasonable
judgment of the Administrative Agent, materially adverse conditions
upon the consummation of such transactions.
(f) Litigation; Judgments. Except as set forth in a supplement to
Schedule 5.09 to the Existing Credit Agreement, on the Restatement
Effective Date, there shall be no actions, suits, proceedings or
investigations pending or, to the knowledge of the Credit Parties,
threatened (i) with respect to this Amendment and Restatement, the
Southern Pride Acquisition Agreement or the transactions contemplated
hereby or thereby or (ii) which the Administrative Agent or the
Required Lenders shall reasonably determine would reasonably be
expected to have a Material Adverse Effect. Additionally, there shall
not exist any judgment, order, injunction or other restraint issued or
filed or a hearing seeking injunctive relief or other restraint pending
or notified prohibiting or imposing materially adverse conditions upon
the consummation of the transactions contemplated by the Southern Pride
Acquisition Agreement and otherwise referred to herein or therein.
(g) Payment of Fees. All costs, fees and expenses due to the
Administrative Agent, the Collateral Agent and the Lenders on or before
the Restatement Effective Date incurred in
10
connection with the Existing Credit Agreement and this Amendment and
Restatement shall have been paid.
(h) Counsel Fees. The Administrative Agent shall have received
full payment from the Borrower of all fees and expenses of Mayer,
Brown, Xxxx & Maw incurred in connection with this Amendment and
Restatement which are billed through the Restatement Effective Date.
(i) Revolving Availability. After giving effect to all Credit
Events occurring on the Restatement Effective Date, the aggregate
unused Revolving Commitments shall exceed the aggregate amount of all
Revolving Outstandings by at least $15,000,000.
(j) Officer's Certificates. The Administrative Agent shall have
received (i) a certificate or certificates executed by a Responsible
Officer of the Borrower as of the Restatement Effective Date stating
that (A) immediately prior to and after giving effect to this Amendment
and Restatement, the Southern Pride Acquisition and the transactions
contemplated hereby and thereby: (1) each Credit Party is Solvent; (2)
no Default or Event of Default has occurred and is continuing: and (3)
all representations and warranties made by the Credit Parties in any
Credit Document are true and correct in all material respects at and as
if made as of such date, except to the extent they expressly relate to
an earlier date; and (B) after giving effect to the Southern Pride
Acquisition, the Revolving Committed Amount is at least $15,000,000
greater than the total Revolving Outstandings, and (ii) a Pro-Forma
Compliance Certificate executed by a Responsible Officer of the
Borrower as of the Restatement Effective Date demonstrating that, upon
giving effect to the Southern Pride Acquisition on a Pro-Forma Basis
(with pro-forma adjustments satisfactory to the Administrative Agent),
the Borrower is in compliance with all of the financial covenants set
forth in Section 7.18 of this Amendment and Restatement as of September
30, 2002.
(k) Other. The Administrative Agent shall have received such
other documents, instruments, agreements or information as may be
reasonably requested by the Administrative Agent.
All corporate and legal proceedings and instruments and
agreements relating to the transactions contemplated by this Amendment and
Restatement or in any other document delivered in connection herewith or
therewith shall be satisfactory in form and substance to the Administrative
Agent and its counsel, and the Administrative Agent shall have received all
information and copies of all documents and papers, including records of
corporate proceedings, governmental approvals, good standing certificates and
bring-down telegrams, if any, which the Administrative Agent reasonably may have
requested in connection therewith, such documents and papers where appropriate
to be certified by proper corporate or governmental authorities. The documents
referred to in this Section shall be delivered to the Administrative Agent no
later than the Restatement Effective Date, except with the prior written consent
of the Administrative Agent. The certificates and opinions referred to in this
Section shall be dated the Restatement Effective Date.
PART V
GENERAL PROVISIONS
SUBPART 5.01 APPLICABLE LAW. THIS AMENDMENT AND RESTATEMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE
11
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES.
SUBPART 5.02 Counterparts. This Amendment and Restatement may be
executed in any number of counterparts, each of which shall constitute an
original but all of which when taken together shall constitute but one
agreement. Delivery of an executed counterpart of a signature page to this
Amendment and Restatement by telecopier shall be effective as delivery of a
manually executed counterpart of this Amendment and Restatement.
SUBPART 5.03 Costs and Expenses. The Borrower agrees to pay on demand
all reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery and administration,
modification and amendment of this Amendment and Restatement, the Notes and the
other documents to be delivered hereunder (including, without limitation, the
reasonable and documented fees and expenses of counsel for the Administrative
Agent with respect hereto and thereto) in accordance with the terms of Section
10.05 of the Existing Credit Agreement.
SUBPART 5.04 Reference to and Effect on Existing Credit Agreement and
Notes. (a) On the Restatement Effective Date, the Existing Credit Agreement
shall be automatically amended and restated as set forth herein, and the terms
and conditions set forth in Part II and Part IV hereof shall be expressly
incorporated therein by reference. On and after the Restatement Effective Date,
the rights and obligations of the parties to the Existing Credit Agreement shall
be governed by this Amendment and Restatement (which by the terms hereof
incorporates the terms and conditions of the Existing Credit Agreement, as
amended hereby); provided that the rights and obligations of the parties hereto
with respect to the period prior to the Restatement Effective Date shall
continue to be governed by the provisions of the Existing Credit Agreement.
Promptly after the Restatement Effective Date, the Administrative Agent shall
notify the Borrower and the Lenders thereof, and such notice shall be conclusive
and binding on all parties.
(b) Other than references to "this Agreement" contained in (i) the
second paragraphs of Sections 2.03(c) and 2.04(c) and (ii) Section 4.01 (other
than in the final paragraph thereof) of the Existing Credit Agreement which
shall be deemed to be references to the Existing Credit Agreement, on and after
the effectiveness of this Amendment and Restatement, each reference in the
Existing Credit Agreement to "this Agreement", "hereunder", "hereof" or words of
like import referring to the Existing Credit Agreement, and each reference in
the Notes to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Existing Credit Agreement, shall mean and be a reference
to the Existing Credit Agreement, as amended by this Amendment and Restatement.
(c) The Existing Credit Agreement and the Notes, as specifically
amended by this Amendment and Restatement, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed.
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
AMERICAN SEAFOODS HOLDINGS LLC
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
AMERICAN SEAFOODS CONSOLIDATED LLC
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
AMERICAN SEAFOODS GROUP LLC
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
S-1
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ S. Xxxx Xxxxxxx, III
-------------------------------------------
Name: S. Xxxx Xxxxxxx, III
Title: Managing Director
S-2
BANK OF AMERICA, N.A.,
as a Lender, as Swingline Lender and Issuing Lender
By: /s/ Xxxx Xxxxxxx, III
----------------------------------------------
Name: Xxxx Trapaini, III
Title: Managing Director
S-3
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
S-4
XXXXXX TRUST AND SAVINGS BANK,
as a Lender
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
S-5
DEN NORSKE BANK ASA,
as a Lender
By: /s/ Xxx Xxxxxxxxxxx
------------------------------------------------
Name: Xxx Xxxxxxxxxxx
Title: Senior Vice President
S-6
NORDEA BANK NORGE ASA,
as a Lender
By: /s/ Xxx Xxxx Saetremyr
---------------------------------------------
Name: Xxx Ivar Saetremyr
Title: Vice President
S-7
NORTHWEST FARM CREDIT SERVICES, ACA,
as a Lender
By: /s/ Xxx X. Xxxxx
---------------------------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
S-8
XXXXX FARGO BANK, NA,
as a Lender
By: /s/ Xxxx Xxxxxxxxxx
----------------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
S-9
APEX (IDM) CDO I LTD,
as a Lender
By: Xxxxx X. Xxxxxx & Company Inc. as Collateral Manager
By: /s/ Xxxx Xxx XxXxxxxx
-----------------------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
S-10
Ares VI CLO Ltd.
By: Ares CLO GP VI, LLC
Its Management Member
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
S-11
AURUM CLO 2002-1 LTD,
By: XXXXX XXX & XXXXXXX INCORPORATED,
AS INVESTMENT MANAGER,
as a Lender
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Senior Vice President
S-12
BRYN MAWR CLO Ltd.
BY: Deerfield Capital Management LLC,
as its Collateral Manager
By: /s/ Xxx Xxxxxxx
-----------------------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
S-13
CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM
By: Highland Capital Management, L.P.,
As Authorized Representatives of the Board,
as a Lender
By: /s/ Xxxx Xxxxx
---------------------------------------------------
Name: Xxxx Xxxxx
Title: Chief Investment Officer
Highland Capital Management, L.P.
S-14
CLYDESDALE CLO 2001-1 LTD,
as a Lender
By: /s/ Xxxxxxxxx XxxXxxx
----------------------------------------------------
Name: Xxxxxxxxx XxxXxxx
Title: Vice President
S-15
BIG SKY SENIOR LOAN FUND, LTD
By: Xxxxx Xxxxx Management As Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-------------------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
S-16
COLUMBUS LOAN FUNDING LTD.,
as a Lender
By: Travelers Asset Management International Company LLC
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Investment Officer
S-17
CONTINENTAL CASUALTY COMPANY,
as a Lender
By: /s/ Xxxxxxx X. XxXxxx
--------------------------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Vice President
S-18
XXXXX XXXXX SENIOR INCOME TRUST,
as a Lender
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
---------------------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
S-19
ELC (CAYMAN) LTD CDO SERIES 1999-1,
as a Lender
By: Xxxxx X. Xxxxxx & Company Inc. as Collateral Manager
By: /s/ Xxxx Xxx XxXxxxxx
------------------------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
S-20
ELC (CAYMAN) LTD. 2000-1,
as a Lender
By: Xxxxx X. Xxxxxx & Company Inc. as Collateral
Manager
By: /s/ Xxxx Xxx XxXxxxxx
-------------------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
S-21
ELC CAYMAN LTD,
as a Lender
By: Xxxxx X. Xxxxxx & Company Inc. as Collateral
Manager
By: /s/ Xxxx Xxx XxXxxxxx
--------------------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
S-22
ELC CAYMAN LTD 1999-III,
as a Lender
By: Xxxxx X. Xxxxxx & Company Inc. as Collateral Manager
By: /s/ Xxxx Xxx XxXxxxxx
------------------------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
S-23
ELF FUNDING TRUST III,
as a Lender
By: New York Life Investment Management, LLC,
as Attorney-in-Fact
By: /s/ X. X. Xxxx
-----------------------------------------------
Name: X.X. Xxxx
Title: Vice President
S-24
EMERALD ORCHARD LIMITED,
as a Lender
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney In Fact
S-25
GALAXY CLO 1999-1, LTD.,
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
S-26
GALLATIN FUNDING I LTD,
as a Lender
Gallatin Funding Ltd
By: Bear Xxxxxxx Asset Management, Inc.
as its Collateral Manager
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
S-27
XXXXXXX XXXXX CREDIT PARTNERS LP,
as a Lender
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Authorized Signatory
S-28
XXXXXXX & CO,
as a Lender
By: Boston Management and Research as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
--------------------------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
S-29
HAROURVIEW CLO IV LTD,
as a Lender
By: /s/ Xxxx Xxxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
S-30
IKB CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
IKB Capital Corporation
S-31
INDOSUEZ CAPITAL FUND VI LTD,
as a Lender
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
S-32
ISLANDSBANKI-FBA,
as a Lender
By: /s/ Bjorb Bjornsson
------------- ----- -----------------------------
Name: Bjorb Bjornsson
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Credit Manager
S-33
KZH SOLEIL LLC,
as a Lender
By: /s/ Xxxxx Xxxxxx Xxxxxx
------------------------------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
S-34
KZH SOLEIL-2 LLC,
as a Lender
By: /s/ Xxxxx Xxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
S-35
KZH WATERSIDE LLC,
as a Lender
By: /s/ Xxxxx Xxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
S-36
LANDMARK II CDO LIMITED,
as a Lender
Aladdin Asset Management LLC
as Manager
By: /s/ Th. Gnuicks
---------------------------------------------
Name: Th. Gnuicks
Title: Vice President
S-37
LONG LANE MASTER TRUST II,
By Fleet National Bank as
Trust Administrator, With
respect to Series Eclipse
as a Lender
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
S-38
LONGHORN CDO (CAYMAN) LTD,
as a Lender
By: Xxxxxxx Xxxxx Investment Managers, L.P., as
Investment Advisor
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
S-39
LONGHORN CDO II LTD,
as a Lender
By: Xxxxxxx Xxxxx Investment Managers, L.P.,
as Investment Advisor
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
S-40
MASTER SENIOR FLOATING RATE TRUST,
as a Lender
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
S-41
XXXXXXX XXXXX PRIME RATE PORTFOLIO,
as a Lender
By: Xxxxxxx Xxxxx Investment Managers, L.P.,
as Investment Advisor
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
S-42
MOUNTAIN CAPITAL CLO II LTD,
as a Lender
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
S-43
MUIRFIELD TRADING LLC,
as a Lender
By: /s/ Xxx X. Xxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
S-44
NATIONWIDE LIFE INSURANCE CO,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate Vice President
Public Bonds
S-45
NATIONWIDE MUTUAL INSURANCE,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate Vice President
Public Bonds
S-46
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION,
as a Lender
By: New York Life Investment Management, LLC, its
Investment Manager
By: /s/ X. X. Xxxx
----------------------------------------------------
Name: X.X. Xxxx
Title: Vice President
S-47
NOMURA BOND & LOAN FUND,
as a Lender
By: /s/ Xxxxxxxxx XxxXxxx
---------------------------------------
Name: Xxxxxxxxx XxxXxxx
Title: Vice President
S-48
OLYMPIC FUNDING TRUST SERIES 1999-1,
as a Lender
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
S-49
XXXXXXXXXXX SENIOR FLOATING RATE FUND,
as a Lender
By: /s/ Xxxx Xxxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
S-50
PRINCIPAL LIFE INSURANCE CO,
as a Lender
By: Principal Global Investors, LLC,
a Delaware limited liability company,
its authorized signatory
By: /s/ Xxx X. Xxxxx
------------------------------------------------
Name: Xxx X. Xxxxx
Title: Counsel
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Counsel
S-51
PROMETHEUS INVESTMENT FUNDING NO 2 LTD, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Associate Director
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
S-52
XXXXXX DIVERSIFIED INCOME TRUST,
as a Lender
By: /s/ Xxxx Xxxxx
------------------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
S-53
XXXXXX MASTER INCOME TRUST,
as a Lender
By: /s/ Xxxx Xxxxx
---------------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
S-54
XXXXXX MASTER INTERMEDIATE INCOME TRUST,
as a Lender
By: /s/ Xxxx Xxxxx
-----------------------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
S-55
XXXXXX PREMIER INCOME TRUST,
as a Lender
By: /s/ Xxxx Xxxxx
--------------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
S-56
XXXXXX VARIABLE TRUST - PVT DIVERSIFIED INCOME FUND,
as a Lender
By: /s/ Xxxx Xxxxx
------------------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
S-57
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"Rabobank International",
New York Branch, as a Lender
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
S-58
RIVIERA FUNDING LLC,
as a Lender
By: /s/ Xxx X. Xxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
S-59
ROSEMONT CLO LTD,
By: Deerfield Capital Management LLC
as its Collateral Manager
By: /s/ Xxx Xxxxxxx
------------------------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
S-60
SENIOR DEBT PORTFOLIO,
as a Lender
By: Boston Management and Research as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
--------------------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
S-61
BIG SKY SENIOR LOAN FUND, LTD.
as a Lender
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
---------------------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
S-62
SEQUILS-CUMBERLAND I LTD,
By: Deerfield Capital Management LLC
as its Collateral Manager
By: /s/ Xxx Xxxxxxx
----------------------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
S-63
SIERRA CLO I LTD,
as a Lender
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Operating Officer
Center Pacific LLP (Manager)
S-64
STANWICH LOAN FUNDING LLC,
as a Lender
By: /s/ Xxx X. Xxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
S-65
XXXXX XXX & FARNHAM CLO FUND I LTD,
as a Lender
By: XXXXX XXX & XXXXXXX INCORPORATED,
AS PORTFOLIO MANAGER
By: /s/ Xxxxxxxx X. Zam
---------------------------------------------
Name: Xxxxxxxx X. Zam
Title: Senior Vice President
S-66
XXXXX XXX FLOATING RATE LLC,
as a Lender
By: XXXXX XXX & XXXXXXX INCORPORATED,
AS ADVISOR
By: /s/ Xxxxxxxx X. Zam
--------------------------------------
Name: Xxxxxxxx X. Zam
Title: Senior Vice President
S-67
SUMITOMO TRUST & BANKING CO LTD,
as a Lender
By: /s/ Xxxxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
S-68
SUNAMERICA LIFE INSURANCE COMPANY,
as a Lender
By: /s/ Xxxxxx X. Oh
--------------------------------------------
Name: Xxxxxx X. Oh
Title: Authorized Agent
X-00
XXXXXXX XXXXXXXX (XXX XXXX), INC.,
as a Lender
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
S-70
CITIGROUP INVESTMENTS CORPORATE LOAN FUND INC.
(f/k/a Travelers Corporate Loan
Fund Inc.), as a Lender
By: Travelers Asset Management International Company LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Investment Officer
S-71
THE TRAVELERS INSURANCE COMPANY,
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Investment Officer
Signature page to American Seafoods Group LLC
December 16, 2002 Second Amended and Restated Credit Agreement
S-72
XXXXX CLO LTD 2000-1,
as a Lender
By: Xxxxx X. Xxxxxx & Company Inc. as Collateral
Manager
By: /s/ Xxxx Xxx XxXxxxxx
-------------------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
S-73
VENTURE CDO 2002 LIMITED,
as a Lender
By its investment advisor, Barclays Capital Asset
Management Limited
By its sub-advisor, Barclays Bank PLC, New York
Branch
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
S-74
VENTURE II CDO 2002, LIMITED,
as a Lender
By its investment advisor, Barclays Bank PLC,
New York Branch
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
S-75
ANNEX A
EXHIBIT H
Form of Subordination Provisions
EACH PROMISSORY NOTE EVIDENCING AN INTERCOMPANY LOAN OR ADVANCE INCURRED BY
THE BORROWER OR A WHOLLY-OWNED DOMESTIC SUBSIDIARY OF THE BORROWER OWING TO ANY
FOREIGN SUBSIDIARY OF THE BORROWER OR ANY NON-WHOLLY-OWNED DOMESTIC SUBSIDIARY
OF THE BORROWER SHALL HAVE INCLUDED ON ITS FACE THE FOLLOWING PROVISION AND
SHALL HAVE "ANNEX A TO INTERCOMPANY NOTE" ATTACHED THERETO AND MADE A PART
THEREOF.
"This Intercompany Note, and the obligations of the Payor hereunder, shall
be subordinate and junior in right of payment to all Senior Debt (as defined in
Section 1 of Annex A hereto) on the terms and conditions set forth in Annex A
hereto. Annex A hereto is incorporated herein by reference in its entirety and
is a part of this Intercompany Note to the same extent as if it had been set
forth in its entirety in this Intercompany Note."
ANNEX A
TO
INTERCOMPANY NOTE
Section 1. Definitions. Capitalized terms defined in the Credit
Agreement (as defined in the promissory note to which this Annex A is attached
(the "Intercompany Note")) and not otherwise defined herein have, as used in
this Annex A, the respective meanings provided for therein. The following
additional terms, as used herein, have the following respective meanings:
"Senior Debt" means the obligations under (i) the Senior Secured Debt
and (ii) the obligations under the Senior Subordinated Notes to the extent
permitted by the Credit Agreement.
"Senior Secured Debt" means the Obligations, including any Obligations
the proceeds of which are used to refinance other Obligations, in each case
whether now owed or hereafter arising, whether fixed or contingent, whether for
principal, premium (if any), interest (including, without limitation, any
interest which accrues after the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency or reorganization of any Credit
Party), expenses, indemnifications, reimbursement obligations or otherwise,
together with all renewals, extensions, increases or rearrangements thereof.
"Subordinated Debt" means all principal of and interest on all
obligations, liabilities and indebtedness of the Payor now or hereafter owing to
the Payee or any other holder from time to time of the Intercompany Note under
the Intercompany Note, whether fixed or contingent and whether for principal,
interest (including, without limitation, any interest which accrues after the
commencement of any case, proceeding or other action relating to the bankruptcy,
insolvency or reorganization of the Payor, whether or not allowed or allowable
as a claim in any such proceeding), fees, expenses, indemnifications,
reimbursement obligations, subrogation or contribution claims or otherwise,
together with all renewals, extensions, increases or rearrangements thereof.
Section 2. Subordination by the Payee. Each of the Payee and each other
holder from time to time of the Intercompany Note by its acceptance thereof
hereby covenants and agrees that the payment of the Subordinated Debt shall be
subordinate and subject in right of payment, to the extent set forth herein, to
the prior payment in full in cash of the Senior Debt. The provisions of this
Annex A shall constitute a continuing offer to all Persons who, in reliance upon
such provisions, become holders of, or continue to hold, Senior Debt, and such
provisions are made for the benefit of the holders of the Senior Debt. The
holders of the Senior Debt are hereby made obligees hereunder with the same
force and effect as if their names were written herein as such, and they and/or
each of them may proceed to enforce such provisions.
Section 3. Priority and Payment Over in Certain Events.
(a) Priority and Payment Over Upon Insolvency and Dissolution. In the event
of (x) any insolvency or bankruptcy case or proceeding or any receivership,
liquidation, reorganization or similar case or proceeding in connection
therewith relative to the Payor or its creditors, as such, or to its assets, or
(y) any liquidation, dissolution or other winding up of the Payor, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy
or (z) any assignment for the benefit of creditors or other marshaling of assets
and liabilities of the Payor, then and in any such event:
(i) the holders of the Senior Debt shall be entitled to receive payment in
full in cash of all amounts due or to become due on or in respect of all Senior
Debt before the Payee shall be entitled to receive and retain any direct or
indirect payment on account of the principal, interest or other amounts due
or to become due on the Subordinated Debt, including, without limitation, by
exercise of any right of set off and any payment which might be payable or
deliverable by reason of any other indebtedness being subordinated in right of
payment to the Subordinated Debt;
(ii) any payment or distribution of any kind or character, whether in cash,
property or securities which may be payable or deliverable in respect of the
Subordinated Debt in any such case, proceeding, dissolution, liquidation or
other winding up or event, including any such payment or distribution which may
be payable or deliverable by reason of the payment of any other indebtedness of
the Payor which is subordinated to the payment of the Subordinated Debt shall be
paid by the Payor or by the trustee in bankruptcy, debtor in possession,
receiver, liquidating trustee, custodian, assignee, agent, or other Person
making payment or distribution of assets of the Payor directly to the
Administrative Agent (or the Representative, the holders of the Derivative
Obligations or all of the Creditors, as applicable) to the extent necessary to
pay all Senior Debt in full in cash after giving effect to any concurrent
payment or distribution to or for the benefit of the holders of the Senior Debt.
The consolidation of the Payor with, or the merger of the Payor
into, another Person or the liquidation or dissolution of the Payor following
the conveyance or transfer of its assets substantially as an entirety to another
Person upon terms and conditions permitted under the Credit Agreement shall not
be deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshaling of assets and liabilities of the Payor
for purposes of this Section 3(a) if the Person formed by such consolidation or
into which the Payor is merged or the Person which acquires by conveyance or
transfer such property and assets substantially as an entirety, as the case may
be, shall comply with the conditions set forth in the Credit Agreement as a
prerequisite for such consolidation, merger, conveyance or transfer.
(b) Payment on Subordinated Debt Suspended When Senior Debt is in Default.
In the event and during the continuation of any Default or Event of Default
under the Credit Agreement or under any other agreement or instrument evidencing
or securing any Senior Debt, then unless and until such Default or Event of
Default shall have been cured or waived or shall have ceased to exist and any
resulting acceleration shall have been rescinded or annulled, or in the event
any judicial proceeding shall be pending with respect to any such Default or
Event of Default, then no direct or indirect payment, including any payment
which may be payable by reason of the payment of any other indebtedness of the
Borrower which is subordinated to the payment of the Subordinated Debt) shall be
made by or on behalf of the Payor on account of the principal of or interest on
the Subordinated Debt or on account of the purchase or other acquisition by it
of the Subordinated Debt. The provisions of this Section 3(b) shall not apply to
any payment with respect to which Section 3(a) would be applicable.
(c) Rights and Obligations of the Payees. If, notwithstanding the foregoing
provisions of this Section 3, any Payee or other holder of the Subordinated Debt
shall have received any payment or distribution of assets of the Payor of any
kind or character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of the Payor which is subordinated to the
payment of the Subordinated Debt, before all amounts due or to become due on or
in respect of all Senior Debt have been irrevocably paid in full in cash, then
and in such event such payment or distribution shall be received in trust for
the Creditors and other holders of the Senior Debt and shall be forthwith paid
over or delivered by the Payee or other holder of the Subordinated Debt
receiving the same directly to the Administrative Agent (or the Representative,
the Derivatives Creditors or all of the Creditors, as applicable) or, to the
extent legally required, to the trustee in bankruptcy, debtor-in-possession,
receiver, liquidating trustee, custodian, assignee, agent or other Person making
such payment or distribution of assets of the Payor, for application to the
payment of all Senior Debt remaining unpaid to the extent necessary to pay all
Senior
Debt in full after giving effect to any concurrent payment or distribution to or
for the benefit of the holders of the Senior Debt.
Section 4. Rights of the Creditors Not to be Impaired. No right of the
Administrative Agent or any other Creditor or any other present or future holder
of the Senior Debt to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act in good faith
by the Administrative Agent or any other such Creditor or other holder of the
Senior Debt or by any noncompliance by any Payee with the terms and provisions
and covenants herein regardless of any knowledge thereof the Administrative
Agent or any other such Creditor or other holder may have or otherwise be
charged with. The Holders of the Senior Debt may, without in any way affecting
the obligations of the Payee or any other holder of the Subordinated Debt with
respect thereto, at any time or from time to time in their absolute discretion,
change the manner, place or terms or payment of, change or extend the time or
payment of or renew or alter any Senior Debt, or amend, supplement or modify any
agreement or instrument governing or evidencing such Senior Debt or any other
document referred to therein, or exercise or refrain from exercising any other
of their rights under the Senior Debt including, without limitation, the waiver
of any Default or Event of Default thereunder and the release of any collateral
securing such Senior Debt, all without notice to or assent from the Payee or any
other holder of the Subordinated Debt. The provisions of this Annex A are
intended to be for the benefit of the Creditors and each other holder of the
Senior Debt and shall be enforceable directly by the Administrative Agent, any
Representative or the Derivatives Creditors or other Creditors, as applicable,
or any other present or future holder or holders of the Senior Debt.
Section 5. Restriction on Assignment of Subordinated Debt. The Payee
and each other holder from time to time of the Subordinated Debt by its
acceptance thereof agrees not to sell, assign or transfer all or any part of the
Subordinated Debt while any Senior Debt remains unpaid unless such sale,
assignment or transfer is made expressly subject to the provisions of this Annex
A. The Payee represents that no other subordination of the Subordinated Debt is
in existence on the date hereof, and the Payee agrees that the Subordinated Debt
will not be subordinated to any indebtedness other than the Senior Debt.
Section 6. Reliance on Subordination. The Payee and each other holder
from time to time of the Subordinated Debt by its acceptance thereof consents
and agrees that all Senior Debt shall be deemed to have been made or incurred at
the request of the Payee and all other holders from time to time of the
Subordinated Debt and in reliance upon the subordination of the Subordinated
Debt pursuant to this Annex A.
Section 7. Actions Against the Payor; Exercise of Remedies. Neither the
Payee nor any other holder of the Subordinated Debt will (i) commence (unless
the Administrative Agent, Representative or Derivatives Creditors or other
Creditors, as applicable, or other holders of the Senior Debt shall have
commenced) any action or proceeding against the Payor to recover all or any part
of the Subordinated Debt or (ii) join with any creditor (unless the
Administrative Agent, Representative or Derivatives Creditors or other
Creditors, as applicable, or other holders of the Senior Debt shall also join)
in bringing any proceeding against the Payor under the United States Bankruptcy
Code or any other state, federal or foreign insolvency statute unless and until,
in each case, the Senior Debt shall have been irrevocably paid in full in cash.
Neither the Payee nor any other holder of the Subordinated Debt will ask,
demand, xxx for, take or receive from the Payor, directly or indirectly, in
cash, property or securities or by set off or in any other manner (including,
without limitation, from or by way of attachment or seizure of or foreclosure
upon any property or assets of the Payor which may now or hereafter constitute
collateral for any Subordinated Debt), payment of all or any part of the
Subordinated Debt if an Event of Default shall have occurred and be continuing
under the Credit Agreement or under any other agreement or instrument evidencing
or securing the Senior Debt unless and until all Senior Debt shall have been
irrevocably paid in full in cash or the benefits of this sentence waived by or
on behalf of the Creditors or the other holder or holders of the Senior Debt.
Section 8. Subrogation. The Payee or other holder from time to time of
the Subordinated Debt shall be subrogated to the rights of the holders of the
Senior Debt to receive payments or distributions of assets of the Payor
applicable to the Senior Debt until all amount owing on the Subordinated Debt
has been paid in full; provided that neither the Payee nor any other holder of
the Subordinated Debt shall enforce any payment by way of subrogation (whether
contractual, under Section 509 of the United States Bankruptcy Code or
otherwise) until the Commitments have been terminated and the principal of and
interest on the Notes and all other amounts payable under or with respect to the
Senior Debt have been irrevocably paid in full in cash. For the purposes of the
rights of subrogation set forth in this Section 8, no payments or distributions
to any Creditor or other holder or holders of the Senior Debt of any cash,
property or securities to which the Payee or other holder or holders of the
Subordinated Debt would be entitled but for the provisions of this Annex A, and
no payments over pursuant to the provisions of this Annex A to any Creditor or
other holder or holders of the Senior Debt by the Payee or other holder or
holders of the Subordinated Debt, shall, as among the Payor, its creditors
(other than the Creditors and any other holder or holders of the Senior Debt)
and the Payee and other holder or holders of the Subordinated Debt, be deemed to
be a payment or distribution by the Payor to or on account of the Senior Debt,
it being understood that the provisions of this Annex A are solely for the
purpose of defining the relative rights of the Creditors or any other holder or
holders of the Senior Debt and the Payee and any other holder or holders of the
Subordinated Debt.
If any payment or distribution to which the Payee or other holder or
holders of the Subordinated Debt would otherwise have been entitled but for the
provisions of this Annex A shall have been applied, pursuant to the provisions
of this Annex A, to the payment of all amounts payable under the Senior Debt,
then the Payee or other holder or holders of the Subordinated Debt shall be
entitled to receive from the Creditors or other holder or holders of the Senior
Debt at the time outstanding any payments or distributions received by the
Creditors or such holder or holders of the Senior Debt in excess of the amount
sufficient to irrevocably pay all amounts under or in respect of the Senior Debt
in full in cash.
Section 9. Waiver of UCC Provisions. If any applicable provisions of
the Uniform Commercial Code as in effect in the State of New York or any other
relevant jurisdiction (the "UCC") requires the Administrative Agent, the
Collateral Agent or any other Creditor or holder of the Senior Secured Debt or
any representative thereof to notify the Payee or other holder of the
Subordinated Debt that the Administrative Agent, the Collateral Agent or such
other Creditor or holder or representative thereof will foreclose or otherwise
realize upon any collateral or other property provided to secure the Senior
Secured Debt, whether pursuant to Article 5 of the UCC or otherwise, the Payee
and each other holder from time to time of the Subordinated Debt by its
acceptance thereof hereby waives, to the extent permitted by applicable law, all
such required notice(s) and, to the extent such requirement of notice may not be
waived under applicable law, agrees that five Business Days' written notice of
any such foreclosure or other realization shall be commercially reasonable. The
Payee and each other holder from time to time of the Subordinated Debt by its
acceptance thereof further waives, to the extent permitted by applicable law,
any and all rights it may have to require the Administrative Agent, the
Collateral Agent or any other Creditor or other holder of the Senior Secured
Debt or representative thereof to marshal any collateral or other property
provided as security for the Senior Secured Debt and any and all other rights
and remedies now or hereafter available to the Payee or such other holder of the
Subordinated Debt under Section 9-610 of the UCC. The Payee and each other
holder from time to time of the Subordinated Debt by its acceptance thereof
agrees that the Administrative Agent, the Collateral Agent and any other
Creditor or holder of the Senior Secured Debt or representative thereof may sell
inventory that constitutes collateral or other security for any Senior Secured
Debt pursuant to a repurchase agreement, that such sale
shall not be deemed a transfer subject to Section 9-618 of the UCC or any
similar provisions of any other applicable law (such provisions, to the extent
otherwise applicable to such sale, being hereby waived), and that the repurchase
of inventory by a seller under a repurchase agreement shall be a commercially
reasonable method of disposition.
Section 10. Proofs of Claim. The Payee and each other holder from time
to time of Subordinated Debt may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Payee or such other holder allowed in any judicial proceedings relative to the
Payor, its creditors or its property. If the Payor or any other holder from time
to time of Subordinated Debt files any claim, proof of claim or similar
instrument in any judicial proceeding referred to above and all Senior Debt has
not been irrevocably paid in full in cash, the Payor or such other holder shall
(i) file such claim, proof of claim or similar instrument on behalf of the
Creditors and the other holder or holders of the Senior Debt as such Creditors'
or other holder's or holders' interests may appear and (ii) take all such other
actions as may be appropriate to ensure that all payments and distributions made
in respect of any such proceedings are made to the Administrative Agent, the
Representative or the Derivatives Creditors or other Creditors, as applicable,
and any other holder or holders of the Senior Debt as its or their interests may
appear.
Any term or provision of this Section 10 to the contrary
notwithstanding, if any judicial proceeding referred to above is commenced by or
against the Payor, and so long as all Senior Debt has not been irrevocably paid
in full in cash: (i) the Administrative Agent, the Representative, the holders
of at least 51% of the Derivatives Obligations or the Creditors, as applicable,
or any other holder or holders of the Senior Secured Debt or representatives
thereof are hereby irrevocably authorized and empowered (in each case, in its
own name, as administrative agent or representative on behalf of the Creditors
or in the name of the Payee or any other holder or holders from time to time of
the Subordinated Debt or otherwise), but shall have no obligation, to (A)
demand, xxx for, collect and receive every payment or distribution received in
respect of any such proceeding and give acquittance therefor and to file claims
and proofs of claims and (B) exercise any voting rights otherwise attributable
to the Payee or other holders of the Subordinated Debt in any such proceeding;
(ii) the Payee or such other holder or holders of the Subordinated Debt shall
duly and promptly take, for the account of the Creditors and any other holders
or holders of the Senior Secured Debt, such action as the Administrative Agent,
the Representative, the holders of at least 51% of the Derivatives Obligations
or the Creditors, as applicable, or other holder or holders of the Senior
Secured Debt or representatives thereof may request to collect all amounts
payable by the Payor in respect of the Subordinated Debt and to file the
appropriate claims or proofs of claim in respect of the Subordinated Debt; and
(iii) the Payee and each other holder of Subordinated Debt shall, at the request
of the Administrative Agent, the Representative, the holders of at least 51% of
the Derivatives Obligations or the Creditors, as applicable, or other holder or
holders of the Senior Secured Debt or representatives thereof duly and promptly
consent to or join in or stipulate its agreement with any action or position
which the Creditors and each other holder of the Senior Secured Debt may take in
any such judicial proceeding referred to above, including, without limitation,
such actions and positions as the Creditors may take with respect to requests
for relief from the automatic stay, for authority to use cash collateral or to
use, sell or lease other property of the estate, for assumption, assignment or
rejection of any executory contract and to obtain credit. The Payee and each
other holder from time to time of Subordinated Debt by its acceptance thereof
hereby appoints the Administrative Agent, the Collateral Agent, the
Representative, the holders of at least 51% of the Derivatives Obligations or
the other Creditors, as applicable, or other holder or holders of the Senior
Secured Debt or representatives thereof as its agent(s) and attorney(s) in fact,
all acts of such attorney(s) being hereby ratified and confirmed and such
appointment(s), being coupled with an interest, being irrevocable until the
Senior Debt is irrevocably paid in full in cash, to exercise the rights and file
the claims referred to in this Section 10 and to execute and deliver any
documentation necessary for the exercise of such rights or to file such claims.
Notwithstanding anything to the contrary contained herein, neither the Payee nor
any
other holder of Subordinated Debt shall file any claim or take any action which
competes or interferes with the rights and interests of the Creditors or any
other holders of the Senior Debt under the Credit Agreement and other Loan
Documents, the Derivatives Agreements or any other agreement or instrument
evidencing or securing the Senior Debt. Until the Senior Debt has been
irrevocably paid in full in cash, neither the Payee nor any other holder of the
Subordinated Debt will (in any proceeding of the type described in Section 2(a))
discharge all or any portion of the obligations of the Payor in respect of the
Subordinated Debt, whether by forgiveness, receipt of capital stock, exercise of
conversion privileges or otherwise, without the prior written consent of the
Administrative Agent, the Representative, the holders of at least 51% of the
Derivatives Obligations or the Creditors, as applicable, or the holder or
holders of the Senior Secured Debt.
Section 11. Obligation of the Payor Unconditional. Nothing contained
in this Annex A or in the Intercompany Note is intended to or shall impair, as
between the Payor and the holder of the Intercompany Note, the obligation of the
Payor, which is absolute and unconditional, to pay to the holder of the
Intercompany Note the principal of and interest on the Intercompany Note as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holder of the
Intercompany Note and creditors of the Payor other than the holders of the
Senior Debt, nor shall anything herein or therein, except as expressly provided,
prevent the holder of the Intercompany Note from exercising all remedies
otherwise permitted by applicable law, subject to the rights, if any, under this
Annex A of the holders of Senior Debt in respect of cash, property, or
securities of the Payor received upon the exercise of any such remedy. Upon any
distribution of assets of the Payor referred to in this Annex A, the holder of
the Intercompany Note shall be entitled to rely upon any order or decree made by
any court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, or a certificate of the
liquidating trustee or agent or other Person making any distribution to the
holder of the Intercompany Note, for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior Debt and
other indebtedness of the Payor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Annex A.
Section 12. Reinstatements in Certain Circumstances. If, at any time,
all or part of any payment with respect to Senior Debt theretofore made by the
Payor or any other Person is rescinded or must otherwise be returned by the
holders of Senior Debt for any reason whatsoever (including, without limitation,
the insolvency, bankruptcy or reorganization of Payor or such other Persons),
the subordination provisions set forth herein shall continue to be effective or
be reinstated, as the case may be, all as though such payment had not been made.
Section 13. Priority in Respect of Senior Secured Debt.
Notwithstanding anything to the contrary in this Annex A, the holders of the
Subordinated Notes acknowledge and confirm that the Collateral Agent, on behalf
of the Secured Parties, have a first priority security interest in the
Collateral of which this Intercompany Note is a part, and, until the Commitments
have been terminated and the principal of and interest on the Notes and all
other amounts payable under or with respect to the Senior Secured Debt have been
irrevocably paid in full in cash, any payments made hereunder shall be applied
solely in respect of the Obligations under the Senior Secured Debt in accordance
with the Credit Agreement and the other Documents, and if any holder of the
Senior Subordinated Notes shall have received any payment or distribution of
assets of the Payor of any kind or character, whether in cash, property or
securities, including any such payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of the Payor
which is subordinated to the payment of the Senior Secured Debt, before all
amounts due or to become due on or in respect of all Senior Secured Debt have
been irrevocably paid in full in cash, then and in such event such payment or
distribution shall be received in trust for the Creditors and other holders of
the Senior Secured Debt and shall be forthwith paid over or delivered by such
holder of the Senior Subordinated Notes receiving the same directly to the
Administrative Agent (or the Representative, the Derivatives Creditors or all of
the Creditors, as applicable) or, to the extent legally required, to the trustee
in bankruptcy, debtor-in-possession, receiver, liquidating trustee, custodian,
assignee, agent or other Person making such payment or distribution of assets of
the Payor, for application to the payment of all Senior Secured Debt remaining
unpaid to the extent necessary to pay all Senior Secured Debt in full after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of the Senior Secured Debt.
ANNEX B
Form of Opinion of Debevoise & Xxxxxxxx
ANNEX C
Form of Opinion of Local Counsel to Borrower
