EXHIBIT 10.1
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EXECUTION COPY
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MARCH 31, 1999
AMONG
AURORA FOODS INC.,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT,
NATIONAL WESTMINSTER BANK PLC,
AS SYNDICATION AGENT
AND
UBS AG, STAMFORD BRANCH,
AS DOCUMENTATION AGENT
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AURORA FOODS INC.
CREDIT AGREEMENT
TABLE OF CONTENTS
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Page
SECTION 1. DEFINITIONS 1
1.1 Certain Defined Terms 2
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1.2 Accounting Terms Utilization of GAAP for Purposes of Calculations Under
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Agreement 36
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1.3 Other Definitional Provisions 36
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SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS 36
2.1 Commitments; Loans 36
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2.2 Interest on the Loans 43
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2.3 Fees 47
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2.4 Repayments, Prepayments and Reductions in Revolving Loan Commitments; General Provisions Regarding
Payments; Application of Proceeds of Collateral and Payments under Guaranties 48
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2.5 Use of Proceeds 57
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2.6 Special Provisions Governing Eurodollar Rate Loans 58
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2.7 Increased Costs; Taxes; Capital Adequacy 60
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2.8 Obligation of Lenders and Issuing Lenders to Mitigate 64
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SECTION 3.LETTERS OF CREDIT 65
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations Therein 65
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3.2 Letter of Credit Fees 67
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3.3 Drawings and Payments and Reimbursement of Amounts Paid Under Letters of Credit 68
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3.4 Obligations Absolute 71
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3.5 Indemnification; Nature of Issuing Lender's Duties 72
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3.6 Increased Costs and Taxes Relating to Letters of Credit 73
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SECTION 4.CONDITIONS TO LOANS AND LETTERS OF CREDIT 74
4.1 Conditions to Tranche B Term Loans 74
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4.2 Conditions to All Loans 77
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4.3 Conditions to Letters of Credit 78
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SECTION 5.REPRESENTATIONS AND WARRANTIES 78
5.1 Organization, Powers, Qualification, Good Standing, Business and Subsidiaries 78
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5.2 Authorization of Borrowing, etc. 79
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5.3 Financial Condition 81
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5.4 No Material Adverse Change; No Restricted Junior Payments 81
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5.5 Title to Properties; Liens; Intellectual Property 81
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5.6 Litigation: Adverse Facts 83
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5.7 Payment of Taxes 83
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5.8 Performance of Agreements; Materially Adverse Agreements; Material Contracts 83
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5.9 Governmental Regulation 84
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5.10 Securities Activities 84
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5.11 Employee Benefit Plans 84
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5.12 Certain Fees 85
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5.13 Environmental Protection 85
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5.14 Employee Matters 86
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5.15 Solvency 86
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5.17 Related Agreements 87
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5.18 Disclosure 88
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5.19 Subordination of Seller Notes 88
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5.20 Year 2000 Matters 88
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SECTION 6.AFFIRMATIVE COVENANTS 89
6.1 Financial Statements and Other Reports 89
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6.2 Corporate Existence, etc. 94
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6.3 Payment of Taxes and Claims; Tax Consolidation 94
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6.4 Maintenance of Properties; Insurance 94
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6.5 Inspection; Lender Meeting 95
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6.6 Compliance with Laws, etc. 95
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6.7 Environmental Disclosure and Inspection 95
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6.8 Company's Remedial Action Regarding Hazardous Materials 97
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6.9 Execution of Subsidiary Guaranty and Subsidiary Security Agreements by Subsidiaries and Future
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Subsidiaries 97
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6.10 Conforming Leasehold Interests; Matters Relating to Additional Real Property Collateral 98
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6.11 Interest Rate Protection 100
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6.12 Further Assurances 100
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SECTION 7.NEGATIVE COVENANTS 101
7.1 Indebtedness 101
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7.2 Liens and Related Matter 102
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7.3 Investments; Joint Ventures 104
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7.4 Contingent Obligations 104
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7.5 Restricted Junior Payments 105
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7.6 Financial Covenants 106
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7.7 Restriction on Fundamental Changes; Asset Sales 109
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7.8 Sales and Lease-Backs 111
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7.9 Transactions with Shareholders and Affiliates 111
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7.10 Disposal of Subsidiary Stock 111
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7.11 Conduct of Business 112
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7.12 Amendments or Waivers of Certain Related Agreements; Amendments of Documents Relating to
Subordinated Indebtedness; Designation of 112
7.13 Fiscal Year 113
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SECTION 0.XXXXXX OF DEFAULT
8.1 Failure to Make Payments When Due 113
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8.2 Default in Other Agreements 114
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8.3 Breach of Certain Covenants 114
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8.4 Breach of Warranty 114
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8.5 Other Defaults Under Loan Documents 114
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8.6 Involuntary Bankruptcy; Appointment of Receiver, etc. 115
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8.7 Voluntary Bankruptcy; Appointment of Receiver, etc. 115
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8.8 Judgments and Attachments 115
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8.9 Dissolution 116
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8.10 Employee Benefit Plans 116
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8.11 Change in Control 116
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8.12 Invalidity of Guaranties 116
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8.13 Failure of Security 117
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8.14 Termination or Breach of Certain Transition Agreements 117
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8.15 Default Under Subordination Provisions 117
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SECTION 9. AGENTS 118
9.1 Appointment 118
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9.2 Powers; General Immunity 119
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9.3 Representations and Warranties; No Responsibility For Appraisal of Creditworthiness 121
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9.4 Right to Indemnity 121
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9.5 Successor Agents and Swing Line Lender 121
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9.6 Collateral Documents 122
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SECTION 10. MISCELLANEOUS 122
10.1 Assignments and Participations in Loans, Letters of Credit 122
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10.2 Expenses 126
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10.3 Indemnity 126
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10.4 Set-Off; Security Interest in Deposit Accounts 127
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10.5 Ratable Sharing 127
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10.6 Amendments and Waivers 128
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10.7 Independence of Covenants 130
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10.8 Notices 130
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10.9 Survival of Representations, Warranties and Agreements 130
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10.10 Failure or Indulgence Not Waiver; Remedies Cumulative 131
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10.11 Marshalling; Payments Set Aside 131
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10.12 Severability 131
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10.13 Obligations Several; Independent Nature of Lenders' Rights 131
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10.14 Headings 131
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10.15 Applicable Law 132
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10.16 Successors and Assigns 132
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10.17 Consent to Jurisdiction and Service of Process 132
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10.18 Waiver of Jury Trial 133
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10.19 Confidentiality 133
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10.20 Counterparts; Effectiveness 134
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ANNEXES
Annex A Pricing Grid
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV FORM OF TRANCHE A TERM NOTE
V FORM OF TRANCHE B TERM NOTE
VI FORM OF REVOLVING NOTE
VII FORM OF SWING LINE NOTE
VIII FORM OF SUBSIDIARY GUARANTY
IX FORM OF PLEDGE AGREEMENT
X FORM OF SECURITY AGREEMENT
XI FORM OF SEA COAST PATENT AND TRADEMARK SECURITY AGREEMENT
XII FORM OF COMPLIANCE CERTIFICATE
XIII FORM OF OPINION OF COUNSEL TO LOAN PARTIES
XIV FORM OF OPINION OF XXXXXXX XXXXXXX & XXXXXXXX
XV RESERVED (FORM OF OPINION OF LOCAL COUNSEL)
XVI FORM OF ASSIGNMENT AGREEMENT
XVII FORM OF PERMITTED SELLER NOTE
XVIII FORM OF CERTIFICATE RE NON-BANK STATUS
XIX FORM OF COLLATERAL ACCOUNT AGREEMENT
XX FORM OF COLLATERAL ACCESS AGREEMENT
XXI FORM OF MORTGAGE
SCHEDULES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES; LENDING OFFICES
5.3 MATERIAL SALES, TRANSFERS OR DISPOSITIONS; MATERIAL LIABILITIES; MATERIAL
PURCHASES OR ACQUISITIONS
5.5B OTHER NECESSARY INTELLECTUAL PROPERTY RIGHTS; MATERIAL CONTRACTS
5.5C OTHER NECESSARY INTELLECTUAL PROPERTY RIGHTS; MATERIAL CONTRACTS (LOG
CABIN)
5.5D OTHER NECESSARY INTELLECTUAL PROPERTY RIGHTS; MATERIAL CONTRACTS
(XXXXXX XXXXX)
5.5E OTHER NECESSARY INTELLECTUAL PROPERTY RIGHTS; MATERIAL CONTRACTS (VAN XX
XXXX'X)
5.5F OTHER NECESSARY INTELLECTUAL PROPERTY RIGHTS; MATERIAL CONTRACTS (SEA
COAST)
5.8 MATERIAL CONTRACTS
7.6E STIPULATED CONSOLIDATED EBITDA AND CONSOLIDATED CAPITAL EXPENDITURES
AURORA FOODS INC.
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT is dated as of March
31, 1999 and entered into by and among AURORA FOODS INC., a Delaware corporation
("Company"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF
(each individually referred to herein as a "Lender" and collectively as
"Lenders"), THE CHASE MANHATTAN BANK, as administrative agent for Lenders (in
such capacity, "Administrative Agent"), NATIONAL WESTMINSTER BANK PLC, as
syndication agent (in such capacity, "Syndication Agent") and UBS AG, Stamford
Branch, as documentation agent (in such capacity, "Documentation Agent").
R E C I T A L S
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WHEREAS, Company, certain financial institutions (the "Existing
Lenders"), The Chase Manhattan Bank, as administrative agent, National
Westminster Bank Plc, as syndication agent, and UBS AG, Stamford Branch, as
documentation agent, are parties to the Third Amended and Restated Credit
Agreement, dated as of July 1, 1998 (the "Existing Credit Agreement"), pursuant
to which the Existing Lenders provided term loan facilities in an aggregate
principal amount of $225,000,000 (the "Existing Term Loan Facilities") and a
revolving credit facility in an aggregate principal amount of $175,000,000 (the
"Revolving Credit Facility").
WHEREAS, Company desires that the Existing Lenders and the New Lenders
(capitalized terms used in these recitals without definition shall have the
respective meanings assigned in subsection 1.1 hereof) amend and restate the
Existing Credit Agreement to provide Tranche B Term Loans in an aggregate
principal amount of $100,000,000 which will be used to finance the Sea Coast
Acquisition, to pay related fees and expenses and to reduce outstandings (but
not reduce the Revolving Credit Commitments) under the Revolving Credit
Facility.
WHEREAS, Company desires that all of its future Subsidiaries guaranty
all of the obligations of Company with respect to the credit facilities provided
by Lenders.
WHEREAS, Company desires to secure all of the Obligations and desires
that all of its future Subsidiaries secure their respective obligations under
the Subsidiary Guaranty, by granting to Administrative Agent, for the benefit of
Agents and Lenders, (i) a first priority Lien on substantially all of their
respective real and personal property and (ii) a first priority pledge of all of
the capital stock of their respective direct Subsidiaries.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Lenders and Agents agree as
follows:
SECTION 1.
DEFINITIONS
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1.1 Certain Defined Terms.
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The following terms used in this Agreement shall have the following
meanings:
"Acquisition" means the transactions contemplated by the Acquisition
Agreement.
"Acquisition Agreement" means that certain Asset Purchase Agreement
dated as of December 18, 1996, by and between Company and Seller, as in
effect on the Closing Date and as such agreement may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the
extent permitted under subsection 7.12A.
"Adjusted Eurodollar Rate" means, for any Interest Rate Determination
Date, the rate per annum obtained by dividing (i) the London Interbank
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offered rate for deposits in U.S. Dollars for maturities comparable to the
Interest Period for which such Adjusted Eurodollar Rate will apply as of
approximately 11:00 A.M. (London time) on such Interest Rate Determination
Date as set forth on Telerate Page 3750 by (ii) a percentage equal to 100%
minus the stated maximum rate of all reserve requirements (including,
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without limitation, any marginal, emergency, supplemental, special or other
reserves) applicable on such Interest Rate Determination Date to any member
bank of the Federal Reserve System in respect of "Eurocurrency liabilities"
as defined in Regulation D (or any successor category of liabilities under
Regulation D).
"Adjustment Date" means the first Business Day following receipt by
the Administrative Agent of both (i) the financial statements required to
be delivered pursuant to subsection 6.1(ii) or 6.1(iii), as the case may
be, for the most recently completed fiscal period and (ii) the certificate
required to be delivered pursuant to subsection 6.1(iv) with respect to
such fiscal period.
"Administrative Agent" means Chase, in its capacity as Administrative
Agent, and any successor to Chase in such capacity appointed pursuant to
subsection 9.5A.
"Affected Lender" has the meaning assigned to that term in subsection
2.6C.
"Affected Loans" has the meaning assigned to that term in subsection
2.6C.
"Affiliate" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling", "controlled by" and
"under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through
the ownership of voting securities or by contract or otherwise.
"Agent" means, individually, each of Administrative Agent, the
Syndication Agent and the Documentation Agent, and "Agents" means
Administrative Agent, the Syndication Agent and the Documentation Agent,
collectively.
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"Aggregate Amounts Due" has the meaning assigned to that term in
subsection 10.5.
"Agreement" means this Fourth Amended and Restated Credit Agreement
dated as of March 31, 1999, as it may be amended, restated, supplemented or
otherwise modified from time to time.
"Applicable Margin" means the Applicable Margin set forth on Annex A
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hereto opposite the level for which the ratio of Consolidated Total Debt to
Consolidated EBITDA so determined satisfies the corresponding criteria set
forth under the heading "Ratio of Consolidated Total Debt to Consolidated
EBITDA", which Applicable Margin shall be adjusted on each Adjustment Date;
provided that in the event that the financial statements required to be
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delivered pursuant to subsection 6.1(ii) and (iii), as applicable, and the
related certificate required pursuant to subsection 6.1(iv), are not
delivered when due, then if such financial statements are not delivered
prior to the date upon which the resultant Potential Event of Default shall
become an Event of Default, then, effective upon such Potential Event of
Default becoming an Event of Default, during the period from the date upon
which such financial statements were required to be delivered until one
Business Day following the date upon which they actually are delivered, the
Applicable Margin (x) with respect to Revolving Loan and Tranche A Term
Loans shall be 1.50% if such Loans are Base Rate Loans and 2.50% if such
Loans are Eurodollar Rate Loans (y) with respect to Tranche B Term Loans
shall be 1.75% if such Loans are Base Rate Loans and 2.75% if such Loans
are Eurodollar Rate Loans and (z) with respect to the Commitment Fee shall
be 0.50%.
"Applied Amount" has the meaning assigned to that term in subsection
2.4C(ii).
"Approved Fund" means, with respect to a Lender that is a fund that
invests in loans, any other fund that invests in loans and has the same
investment advisor as such Lender or is managed by an Affiliate of such
investment advisor.
"Asset Sale" means the sale (including in any sale-leaseback
transaction) by Company or any of its Subsidiaries to any Person (other
than Company or any of its Wholly Owned Subsidiaries) of (i) any of the
stock of any of Company's Subsidiaries, (ii) all or substantially all of
the assets of any division or line of business of Company or any of its
Subsidiaries, or (iii) any other assets other than sales of assets
(including without limitation inventory) in the ordinary course of business
and sales of obsolete equipment, excluding any such other assets to the
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extent that the aggregate value of such assets sold in any single
transaction or transactions is equal to $5,000,000 or less in any one
Fiscal Year.
"Assignment Agreement" means an assignment agreement in substantially
the form of Exhibit XVI annexed hereto or in such other form as may be
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approved by Administrative Agent.
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"Assumption Agreement" means that certain Assignment and Assumption
Agreement dated as of December 31, 1996, by and between Seller and Company,
as in effect on the Closing Date and as such agreement may thereafter be
amended, restated, supplemented or otherwise modified from time to time to
the extent permitted under subsection 7.12A.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means, at any time, the higher of (x) the Prime Rate, (y)
the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate
or (z) the secondary market rate for certificates of deposit (grossed up
for maximum statutory reserve requirements) plus 1.00%.
"Base Rate Loans" means Loans bearing interest at rates determined by
reference to the Base Rate as provided in subsection 2.2A.
"Business" means the assets and liabilities of Company relating to the
manufacture and sale of pancake syrup and pancake and waffle mix marketed
under the Xxx. Xxxxxxxxxxx'x and Country Crock brand names, as set forth in
the Acquisition Agreement.
"Business Day" means (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which is
a legal holiday under the laws of the State of New York or is a day on
which banking institutions located in such state are authorized or required
by law or other governmental action to close, and (ii) with respect to all
notices, determinations, fundings, issuances and payments in connection
with the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, any day
that is a Business Day described in clause (i) above and that is also (a) a
day for trading by and between banks in Dollar deposits in the London
interbank market and (b) a day on which banking institutions are open for
business in London.
"CALPERS" means the California Public Employees Retirement System.
"Capital Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee that,
in conformity with GAAP, is accounted for as a capital lease on the balance
sheet of that Person.
"Cash" means money, currency or a credit balance in a Deposit Account.
"Cash Equivalents" means (i) marketable securities issued or directly
and unconditionally guaranteed by the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date
of acquisition thereof and, at the time of acquisition, having the highest
rating obtainable
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from either Standard & Poor's Rating Service ("S&P") or Xxxxx'x Investors
Service, Inc. ("Moody's"); (iii) commercial paper maturing no more than one
year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year
from the date of acquisition thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's,
issued by any Lender or any commercial bank organized under the laws of the
United States of America or any state thereof or the District of Columbia
having unimpaired capital and surplus of not less than $250,000,000 (each
Lender and each such commercial bank being herein called a "Cash Equivalent
Bank"); and (v) Eurodollar time deposits having a maturity of less than one
year purchased directly from any Cash Equivalent Bank (provided such
deposit is with such Cash Equivalent Bank or any other Cash Equivalent
Bank).
"Cash Proceeds" means, with respect to any Asset Sale, Cash payments
(including any Cash received by way of deferred payment pursuant to, or
monetization of, a note receivable or otherwise, but only as and when so
received) received by Company or any of its Subsidiaries from such Asset
Sale.
"Certificate re Non-Bank Status" means a certificate substantially in
the form of Exhibit XVIII annexed hereto delivered by a Lender to
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Administrative Agent pursuant to subsection 2.7B(iii).
"Chase" means The Chase Manhattan Bank and its successors, including,
without limitation, its successors by merger.
"Closing Date" means December 31, 1996.
"Collateral" means all of the properties and assets (including capital
stock) in which Liens are purported to be granted by the Collateral
Documents.
"Collateral Access Agreement" means any landlord waiver, mortgagee
waiver, bailee letter or any similar acknowledgement or agreement of any
landlord or mortgagee in respect of any Real Property Asset where any
Collateral is located or any warehouseman or processor in possession of any
Inventory of any Loan Party, substantially in the form of Exhibit XX
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annexed hereto with such changes thereto as may be agreed to by
Administrative Agent in the reasonable exercise of its discretion.
"Collateral Account" has the meaning assigned to that term in the
Collateral Account Agreement.
"Collateral Account Agreement" means the Collateral Account Agreement
executed and delivered by Company and Administrative Agent on the Effective
Date, substantially in the form of Exhibit XIX annexed hereto, pursuant to
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which Company may pledge cash to Administrative Agent to secure the
obligations of Company to reimburse Issuing Lenders for payments made under
one or more Letters of Credit as such Collateral Account Agreement may
hereafter be amended, restated, supplemented or otherwise modified from
time to time.
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"Collateral Documents" means the Pledge Agreement, the Security
Agreement, the Patent and Trademark Security Agreement, the Log Cabin
Patent and Trademark Security Agreement, the Xxxxxx Xxxxx Patent and
Trademark Security Agreement, the Van xx Xxxx'x Patent and Trademark
Agreement, the Sea Coast Patent and Trademark Agreement, the Collateral
Account Agreement, the Mortgages and any other documents, instruments or
agreements delivered by any Loan Party pursuant to this Agreement or any of
the other Loan Documents in order to grant or perfect liens on any assets
of such Loan Party as security for the Obligations.
"Commercial Letter of Credit" means any letter of credit or similar
instrument issued for the purpose of providing the primary payment
mechanism in connection with the purchase of any materials, goods or
services by Company or any of its Subsidiaries in the ordinary course of
business of Company or such Subsidiary.
"Commitment Fee" and "Commitment Fees" have the meanings assigned to
such terms in subsection 2.3A.
"Commitments" means the commitments of Lenders to make Loans as set
forth in subsection 2.1A.
"Company" has the meaning assigned to that term in the introduction to
this Agreement.
"Company Common Stock" means the common stock of Company, par value
$0.01 per share.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit XII annexed hereto delivered to Administrative Agent by Company
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pursuant to subsection 6.1(iv).
"Condemnation Proceeds" has the meaning assigned to that term in
subsection 2.4B(iii)(d).
"Conforming Leasehold Interest" means any Recorded Leasehold Interest
as to which the lessor has agreed in writing for the benefit of
Administrative Agent (which writing has been delivered to Administrative
Agent), whether under the terms of the applicable lease, under the terms of
a Landlord Consent and Estoppel, or otherwise, to the matters described in
the definition of "Landlord Consent and Estoppel," which interest, if a
subleasehold or sub-subleasehold interest, is not subject to any contrary
restrictions contained in a superior lease or sublease.
"Consolidated Capital Expenditures" means, for any period, the
aggregate amount paid or accrued by Company and its Subsidiaries for the
rental, lease, purchase (including by way of the acquisition of Securities
of a Person), construction or use of any property during such period, the
value or cost of which, in conformity with GAAP, would appear on the
consolidated balance sheet of Company and its Subsidiaries in the category
of
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"purchases of property, plant or equipment" at the end of such period,
excluding any such expenditure made to restore, replace or rebuild property
to the condition of such property immediately prior to any damage, loss,
destruction or condemnation of such property, to the extent such
expenditure is made with insurance proceeds or condemnation awards relating
to any such damage, loss, destruction or condemnation; provided, however,
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that Consolidated Capital Expenditures shall not include expenditures up to
an aggregate amount equal to the portion of the purchase price for any
Permitted Acquisition made pursuant to subsection 7.7(vi) that would
otherwise be treated as a Consolidated Capital Expenditure.
"Consolidated Cash Interest Coverage Ratio" means, for any period, the
ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated Cash
Interest Expense for such period.
"Consolidated Cash Interest Expense" means, for any period,
Consolidated Interest Expense payable in Cash during such period.
"Consolidated Current Assets" means, as at any date of determination,
the total assets of Company and its Subsidiaries on a consolidated basis
which may properly be classified as current assets in conformity with GAAP,
excluding Cash and Cash Equivalents and any current tax asset.
"Consolidated Current Liabilities" means, as at any date of
determination, the total liabilities of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current liabilities
in conformity with GAAP, but excluding all short-term Indebtedness for
borrowed money and the current portion of any long-term Indebtedness of the
Company, in each case to the extent included therein, and any current taxes
payable and the current portion of any deferred taxes.
"Consolidated EBITDA" means, for any period, (i) the sum of the
amounts for such period of (a) Consolidated Net Income, plus (b) to the
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extent deducted in determining such Consolidated Net Income, (1)
Consolidated Interest Expense, (2) depreciation, (3) depletion, (4)
amortization, (5) all federal, state, local and foreign income taxes, (6)
transaction fees paid to the MDC Entities and/or Dartford and/or Fenway in
connection with acquisitions made after the Existing Effective Date, so
long as such transaction fees are paid in accordance with the terms of the
MDC Advisory Services Agreement, the Dartford Management Agreement and the
Fenway Advisory Agreement, (7) non-recurring charges incurred prior to
September 30, 1998 related to the Log Cabin Business, with respect to (A)
relocation of Company's assets, (B) the purchase of computers and computer-
related equipment and (C) transition related expenses in connection with
the foregoing, but only to the extent that such non-recurring charges,
together with all expenditures excluded from Consolidated Capital
Expenditures under clause (iii)(a) of the definition of Consolidated Fixed
Charges do not exceed $6,000,000 in the aggregate, (8) non-recurring
charges incurred prior to June 30, 1999 with respect to relocation of the
Company's assets related to the Xxxxxx Xxxxx Business and transition
related expenses in connection therewith, but only to the extent that such
non-recurring charges, together with all expenditures excluded from
Consolidated Capital Expenditures
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under clause (iii)(b) of the definition of Consolidated Fixed Charges do
not exceed $15,000,000 in the aggregate, (9) manufacturing overhead costs
related to the Xxxxxx Xxxxx Transitional Supply Agreement not to exceed
$8,200,000 per year as long as the Xxxxxx Xxxxx Transitional Supply
Agreement is in effect, (10) all other non-cash items reducing Consolidated
Net Income and (11) any extraordinary and unusual losses, minus (ii) the
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sum of the amounts for such period of (a) all other non-cash items
increasing Consolidated Net Income, plus (b) any extraordinary and unusual
gains, all of the foregoing as determined on a consolidated basis for
Company and its Subsidiaries in conformity with GAAP and calculated in
accordance with subsection 7.6E, if applicable.
"Consolidated Excess Cash Flow" means, for any period, an amount (if
positive) equal to (i) the sum, without duplication, of the amounts for
such period of (a) Consolidated EBITDA, (b) to the extent deducted from
Consolidated EBITDA by virtue of clause (ii)(b) of the definition thereof,
extraordinary and unusual cash gains, and (c) the Consolidated Working
Capital Adjustment minus (ii) the sum, without duplication, of the amounts
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for such period of (a) voluntary and scheduled cash repayments of
Consolidated Total Debt (excluding repayments of Revolving Loans except to
the extent the Revolving Loan Commitments are permanently reduced in
connection with such repayments), (b) Consolidated Capital Expenditures
(net of any proceeds of any related financings with respect to such
expenditures), (c) expenditures made in connection with any Permitted
Acquisition pursuant to subsection 7.7(vi) (net of any proceeds of any
related financings with respect to such acquisitions), including without
limitation transaction fees paid in cash to the MDC Entities and/or
Dartford and/or Fenway in connection with such acquisitions, so long as
such transaction fees are paid in accordance with the terms of the MDC
Advisory Services Agreement, the Dartford Management Agreement and the
Fenway Agreement, (d) Consolidated Interest Expense, (e) to the extent
added back to Consolidated EBITDA by virtue of clause (i)(b)(11) of the
definition thereof, extraordinary and unusual cash losses, (f) to the
extent added back to Consolidated EBITDA by virtue of clauses (i)(b)(7) or
(i)(b)(8) of the definition thereof, non-recurring charges paid in cash,
(g) to the extent added back to Consolidated EBITDA by virtue of clause
(i)(b)(9) of the definition thereof, manufacturing overhead costs related
to the Xxxxxx Xxxxx Transitional Supply Agreement, and (h) the provision
for current taxes based on income of Company and its Subsidiaries and
payable in cash with respect to such period.
"Consolidated Fixed Charges" means, for any period, an amount equal to
the sum of the amounts for such period of (i) scheduled amortization of
Indebtedness of Company and its Subsidiaries (as reduced by prepayments
previously made), and discount or premium relating to any such Indebtedness
for such period, whether expensed or capitalized, (ii) Consolidated Cash
Interest Expense, (iii) Consolidated Capital Expenditures (excluding (a)
expenditures which would otherwise be included in Consolidated Capital
Expenditures incurred prior to September 30, 1998 related to the Log Cabin
Business, with respect to (1) relocation of Company's assets, (2) the
purchase of computers and computer-related equipment and (3) transition
related expenses in connection with the foregoing, but only to the extent
that such expenditures, together with all non-recurring charges added back
to Consolidated EBITDA by virtue of clause (i)(b)(7) of the definition
thereof, do not exceed $6,000,000 in the aggregate and (b)
9
expenditures which would otherwise be included in Consolidated Capital
Expenditures incurred prior to June 30, 1999 with respect to relocation of
the Company's assets related to the Xxxxxx Xxxxx Business and transition
related expenses in connection therewith, but only to the extent that such
expenditures, together with all non-recurring charges added back to
Consolidated EBITDA by virtue of clause (i)(b)(8) of the definition
thereof, do not exceed $15,000,000 in the aggregate), and (iv) taxes
actually paid in cash by Company or any of its Subsidiaries.
"Consolidated Interest Expense" means, for any period, the net
interest expense of Company and its Subsidiaries for such period (net of
any interest income of Company and its Subsidiaries during such period) as
determined on a consolidated basis in conformity with GAAP.
"Consolidated Net Income" means, for any period, the net income (or
loss) of Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
GAAP; provided that there shall be excluded (i) the income (or loss) of any
--------
Person in which any other Person (other than Company or any of the
Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid in cash to Company or any of
its Subsidiaries by such Person during such period and (ii) the income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary of
Company or is merged into or consolidated with Company or any of its
Subsidiaries or the date such Person's assets are acquired by Company or
any of its Subsidiaries.
"Consolidated Total Debt" means, as at any date of determination, all
outstanding Indebtedness of Company and its Subsidiaries as determined on a
consolidated basis in conformity with GAAP.
"Consolidated Total Senior Debt" means, as at any date of
determination, all outstanding Indebtedness of Company and its Subsidiaries
other than Subordinated Indebtedness, as determined on a consolidated basis
in conformity with GAAP.
"Consolidated Working Capital" means, as at any date of determination,
the excess of Consolidated Current Assets over Consolidated Current
Liabilities.
"Consolidated Working Capital Adjustment" means, for any period on a
consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or
is less than) Consolidated Working Capital as of the end of such period.
"Contingent Obligation" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of that Person (i) with
respect to any Indebtedness, lease, dividend or other obligation of another
if the primary purpose or intent thereof by the Person incurring the
Contingent Obligation is to provide assurance to the obligee of such
obligation of another that such obligation of another will be paid or
discharged, or that any agreements relating thereto will be complied with,
or that the holders of such obligation will be protected (in whole or in
part) against loss in respect thereof, (ii) with
10
respect to any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of drawings, or
(iii) under Interest Rate Agreements. Contingent Obligations shall include,
without limitation, (a) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of
business), comaking, discounting with recourse or sale with recourse by
such Person of the obligation of another, (b) the obligation to make take-
or-pay or similar payments if required regardless of non-performance by any
other party or parties to an agreement, and (c) any liability of such
Person for the obligation of another through any agreement (contingent or
otherwise) (x) to purchase, repurchase or otherwise acquire such obligation
or any security therefor, or to provide funds for the payment or discharge
of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise) or (y) to maintain the
solvency or any balance sheet item, level of income or financial condition
of another if, in the case of any agreement described under subclauses (x)
or (y) of this sentence, the primary purpose or intent thereof is as
described in the preceding sentence. The amount of any Contingent
Obligation shall be equal to the amount of the obligation so guaranteed or
otherwise supported or, if less, the amount to which such Contingent
Obligation is specifically limited.
"Contractual Obligation" means, as applied to any Person, any
provision of any Security issued by that Person or of any material
indenture, mortgage, deed of trust, contract, undertaking, agreement or
other instrument to which that Person is a party or by which it or any of
its properties is bound or to which it or any of its properties is subject.
"CSI" means Chase Securities Inc. and its successors and assigns,
including, without limitation, its successors by merger.
"Dartford" means Dartford Partnership L.L.C., a limited liability
company organized under the laws of the State of Delaware.
"Dartford Advisory Agreement" means that certain Advisory Agreement
dated as of April 8, 1998, by and between Company and Dartford, as in
effect on the Effective Date and as such agreement may thereafter be
amended, restated, supplemented or otherwise modified from time to time to
the extent permitted under subsection 7.12A.
"Dartford Expense Agreement" means that certain Expense Agreement
dated as of July 1, 1998, by and between Company and Dartford, as in effect
on the Effective Date and as such agreement may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the
extent permitted under subsection 7.12A.
"Defaulting Lender" means any Lender with respect to which a Lender
Default is in effect.
"Deposit Account" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate
of deposit.
11
"Documentation Agent" has the meaning assigned to that term in the
introduction to this Agreement.
"Dollars" and the sign "$" mean the lawful money of the United States
of America.
"Xxxxxx Xxxxx Acquisition" means the transactions contemplated by the
Xxxxxx Xxxxx Acquisition Agreement.
"Xxxxxx Xxxxx Acquisition Agreement" means that certain Asset Sale and
Purchase Agreement, dated as of November 26, 1997, by and between MBW LLC
and P&G, which agreement was assigned to the Company.
"Xxxxxx Xxxxx Assumption Agreement" means that certain Assumption
Agreement dated as of January 16, 1998, by and between P&G and Company.
"Xxxxxx Xxxxx Business" means the retail baking mix business purchased
from P&G pursuant to the Xxxxxx Xxxxx Acquisition Agreement.
"Xxxxxx Xxxxx Patent and Trademark Security Agreement" means that
certain Patent and Trademark Security Agreement dated as of January 16,
1998, by and between Company and Chase, as in effect on the Effective Date
and as such agreement may thereafter be amended, restated, supplemented or
otherwise modified from time to time to the extent permitted under
subsections 7.12A.
"Xxxxxx Xxxxx Patent License Agreement" means that certain Patent
License Agreement dated as of January 16, 1998, by and between P&G and
Company, as in effect on the Effective Date and as such agreement may
thereafter be amended, restated, supplemented or otherwise modified from
time to time to the extent permitted under subsection 7.12A.
"Xxxxxx Xxxxx Related Agreements" means the Xxxxxx Xxxxx Acquisition
Agreement, the Xxxxxx Xxxxx Assumption Agreement and the Xxxxxx Xxxxx
Transition Agreements.
"Xxxxxx Xxxxx Technology License Agreement" means the Technology
License Agreement dated as of January 16, 1998, by and between P&G and the
Company as in effect on the Effective Date and as such agreement may
thereafter be amended, restated, supplemented or otherwise modified from
time to time to the extent permitted under Section 7.12A.
"Xxxxxx Xxxxx Transition Agreements" means, collectively, (i) the
Xxxxxx Xxxxx Transitional Supply Agreement, (ii) the Xxxxxx Xxxxx
Transition Services Agreement, (iii) the Xxxxxx Xxxxx Technology License
Agreement and (iv) the Xxxxxx Xxxxx Patent License Agreement.
12
"Xxxxxx Xxxxx Transition Services Agreement" means the Transitional
Services Agreement, dated as of January 16, 1998, by and between P&G and
Company as in effect on the Effective Date and as such agreement may
thereafter be amended, restated, supplemented or otherwise modified from
time to time to the extent permitted under subsection 7.12A.
"Xxxxxx Xxxxx Transitional Supply Agreement" means the Transitional
Supply Agreement, dated as of January 16, 1998, by and between P&G and the
Company as in effect on the Effective Date and as such agreement may
thereafter be amended, restated, supplemented or otherwise modified from
time to time to the extent permitted under subsection 7.12A.
"Effective Date" means the date (on or before April 1, 1999) on which
the conditions precedent set forth in subsection 4.1 shall be satisfied or
waived.
"Eligible Assignee" means (i) (a) a commercial bank organized under
the laws of the United States or any state thereof; (b) a commercial bank
organized under the laws of any other country or a political subdivision
thereof; provided that (x) such bank is acting through a branch or agency
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located in the United States or (y) such bank is organized under the laws
of a country that is a member of the Organization for Economic Cooperation
and Development or a political subdivision of such country; (c) any other
entity which is an "accredited investor" (as defined in Regulation D under
the Securities Act) which extends credit or buys loans as one of its
businesses including, but not limited to, insurance companies, funds and
lease financing companies; and (d) any other financial institution or fund
(whether a corporation, partnership, trust or other entity) that is engaged
in making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and has combined capital and surplus or net
assets of at least $100,000,000, in each case (under clauses (a) through
(d) above) that is reasonably acceptable to Administrative Agent; and (ii)
any Lender, any Affiliate of any Lender, and any Approved Fund; provided
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that no Affiliate of Company shall be an Eligible Assignee.
"Employee Benefit Plan" means any "employee benefit plan" as defined
in Section 3(3) of ERISA which is subject to ERISA and which is maintained
or contributed to by Company or any of its ERISA Affiliates.
"Environmental Claim" means any written accusation, allegation, notice
of violation, claim, demand, abatement order or other order or direction
(conditional or otherwise) by any governmental authority or any Person for
any damage, including, without limitation, personal injury (including
sickness, disease or death), tangible or intangible property damage,
contribution, indemnity, indirect or consequential damages, damage to the
environment, nuisance, pollution, contamination or other adverse effects on
the environment, or for fines, penalties or restrictions, in each case
relating to, resulting from or in connection with Hazardous Materials and
relating to Company, any of its Subsidiaries, any of their respective
Affiliates that are directly or indirectly controlled by Company, or any
Facility.
13
"Environmental Laws" means all laws, statutes, ordinances, orders,
rules, regulations, plans, policies or decrees and the like relating to (i)
environmental matters, including, without limitation, those relating to
fines, injunctions, penalties, damages, contribution, cost recovery
compensation, losses or injuries resulting from the Release or threatened
Release of Hazardous Materials, (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials, or (iii) occupational
safety and health, public health and safety, industrial hygiene or
protection of wetlands, in any manner applicable to Company or any of its
Subsidiaries or any of their respective properties, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. (S) 9601 et seq.), the Hazardous Materials
-- ---
Transportation Act (49 U.S.C. (S) 1801 et seq.,), the Resource Conservation
-- ---
and Recovery Act (42 U.S.C. (S) 6901 et seq.), the Federal Water Pollution
---
Control Act (33 U.S.C. (S) 1251 et seq.), the Clean Air Act (42 U.S.C. (S)
-- ---
7401 et seq.), the Toxic Substances Control Act (15 U.S.C. (S) 2601 et
-- ---
seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C.
---
(S)136 et seq.), the Occupational Safety and Health Act (29 U.S.C. (S) 651
-- ---
et seq.), and the Emergency Planning and Community Right-to-Know Act (42
-- ---
U.S.C. (S) 11001 et seq.), each as amended or supplemented, and any
-- ---
analogous future or present local, state and federal statutes and
regulations promulgated pursuant thereto, each as in effect as of the date
of determination.
"Equity Proceeds" means the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs associated therewith)
from the issuance of any equity Securities of Company after the Effective
Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"ERISA Affiliate" means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning
of Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) which is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person
is a member; and (iii) solely for purposes of obligations under Section 412
of the Internal Revenue Code or under the applicable sections set forth in
Section 414(t)(2) of the Internal Revenue Code, any member of an affiliated
service group within the meaning of Section 414(m) or (o) of the Internal
Revenue Code of which that Person, any corporation described in clause (i)
above or any trade or business described in clause (ii) above is a member.
"ERISA Event" means (i) a "reportable event" within the meaning of
Section 4043(c) of ERISA and the regulations issued thereunder with respect
to any Pension Plan (excluding those for which the provision for 30-day
notice to the PBGC has been waived by regulation or with respect to which
no penalty will be assessed by the PBGC for failure to satisfy such notice
requirements); (ii) the failure to meet the minimum funding standard of
Section 412 of the Internal Revenue Code with respect to any Pension Plan
(whether or not waived in accordance with Section 412(d) of the Internal
Revenue Code) or the failure to make by its due date a required installment
under Section 412(m) of the
14
Internal Revenue Code with respect to any Pension Plan or the failure to
make any required contribution to a Multiemployer Plan; (iii) the provision
by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of
ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the withdrawal by
Company or any of its ERISA Affiliates from any Pension Plan with two or
more contributing sponsors or the termination of any such Pension Plan
resulting, in either case, in liability pursuant to Section 4063 or 4064 of
ERISA, respectively; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan pursuant to Section 4042 of ERISA; (vi) the
imposition of liability on Company or any of its ERISA Affiliates pursuant
to Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the withdrawal by Company or any of its
ERISA Affiliates in a complete or partial withdrawal (within the meaning of
Sections 4203 and 4205 of ERISA) from any Multiemployer Plan resulting in
withdrawal liability pursuant to Section 4201 of ERISA, or the receipt by
Company or any of its ERISA Affiliates of written notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4042 of ERISA or under Section 4041A of ERISA if
such termination would result in liability to Company or any of its ERISA
Affiliates; (viii) the imposition on Company or any of its ERISA Affiliates
of fines, penalties or taxes under Chapter 43 of the Internal Revenue Code
or under Section 409 or 502(c), (i) or (l) or 4071 of ERISA in respect of
any Employee Benefit Plan; (ix) the failure of any Pension Plan (or any
other Employee Benefit Plan intended to be qualified under Section 401(a)
of the Internal Revenue Code) to qualify under Section 401(a) of the
Internal Revenue Code, or the failure of any trust forming part of any
Pension Plan to qualify for exemption from taxation under Section 501(a) of
the Internal Revenue Code; or (x) the imposition of a Lien pursuant to
Section 401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to
ERISA with respect to any Pension Plan.
"Eurodollar Rate Loans" means Loans bearing interest at rates
determined by reference to the Adjusted Eurodollar Rate as provided in
subsection 2.2A.
"Event of Default" means each of the events set forth in Section 8.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"Existing Credit Agreement" has the meaning assigned to that term in
the Recitals to this Agreement.
"Existing Effective Date" means July 1, 1998.
"Existing Lenders" has the meaning assigned to that term in the
Recitals to this Agreement.
"Existing Subordinated Note Documents" means the Existing Subordinated
Note Indentures, the Existing Subordinated Notes and each other document
executed in connection with the Existing Subordinated Notes, as each such
document may be
15
amended, restated, supplemented or otherwise modified from time to time to
the extent permitted under subsection 7.12B.
"Existing Subordinated Note Indentures" means the indentures pursuant
to which the Existing Subordinated Notes are issued, in a form delivered to
Agents and Lenders on or prior to the Effective Date, with such changes
thereto as are permitted under subsection 7.12B and as such indentures may
thereafter be amended, restated, supplemented or otherwise modified from
time to time to the extent permitted under subsection 7.12B.
"Existing Subordinated Notes" means (a) the 9-7/8% Series B Senior
Subordinated Notes of Company due 2007 issued on February 10, 1997, (b) the
9-7/8% Series D Senior Subordinated Notes of the Company due 2007 issued on
July 1, 1997 and (c) the 8-3/4% Senior Subordinated Notes of the Company
due 2008 issued on July 1, 1998 pursuant to the Existing Subordinated Note
Indentures in the form delivered to Agents and Lenders on or prior to the
Effective Date with such changes thereto as are permitted under subsection
7.12B and as such notes may thereafter be amended, restated, supplemented
or otherwise modified from time to time to the extent permitted under
subsection 7.12B.
"Existing Term Loan Facilities" has the meaning assigned to that term
in the Recitals to this Agreement.
"Facilities" means any and all real property (including, without
limitation, all buildings, fixtures or other improvements located thereon)
now, hereafter or heretofore owned, leased, operated or used by Company or
any of its Subsidiaries (but only as to portions of buildings actually
leased or used) or any of their respective predecessors or any of their
respective Affiliates that are directly or indirectly controlled by
Company.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by Administrative
Agent from three Federal funds brokers of recognized standing selected by
Administrative Agent.
"Fenway" means Fenway Partners Capital Fund, L.P., a Delaware limited
partnership.
"Fenway Advisory Agreement" means that certain Advisory Agreement
dated as of April 8, 1998, by and between Company and Fenway, as in effect
on the Effective Date and as such agreement may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the
extent permitted under subsection 7.12A.
16
"FFDC Act" means the Federal Food, Drug and Cosmetic Act, as amended
from time to time, and any successor statute.
"First Priority" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that (i)
such Lien has priority over any other Lien on such Collateral and (ii) such
Lien is the only Lien (other than Permitted Encumbrances and Liens
permitted pursuant to subsection 7.2A) to which such Collateral is subject.
"Fiscal Quarter" means a fiscal quarter of a Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries
ending on December 31 of each calendar year.
"Fixed Charge Component" has the meaning assigned to that term in
subsection 7.6E(i).
"Flavor Supply Agreement" means that certain Flavor Supply Agreement
dated as of December 31, 1996, by and between Company and Quest, as in
effect on the Closing Date and as such agreement may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the
extent permitted under subsection 7.12A.
"Flood Hazard Property" means a Mortgaged Property located in an area
designated by the Federal Emergency Management Agency as having special
flood or mud slide hazards.
"Funding and Payment Office" means the office of Administrative Agent
and Swing Line Lender located at One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 or such offices of Administrative Agent or any
successor Administrative Agent specified by Administrative Agent or such
successor Administrative Agent in a written notice to Loan Parties and
Lenders.
"Funding Date" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application thereof
set forth in subsection 1.2, generally accepted accounting principles set
forth in opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession, in each case as the same are applicable to
the circumstances as of the date of determination and specifically, terms
used herein applicable to Company and its Subsidiaries defined by reference
to GAAP shall give effect to the subtraction of minority interests.
"Gilster Co-Pack Agreement" means the Production Agreement, dated as
of June 4, 1998, by and between the Company and Xxxxxxx-Xxxx Xxx
Corporation, as in effect on the Effective Date and as such agreement may
thereafter be amended, restated,
17
supplemented or otherwise modified from time to time to the extent
permitted under subsection 7.12A.
"Governmental Acts" has the meaning assigned to that term in
subsection 3.5.
"Governmental Authorization" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any federal,
state or local governmental authority, agency or court.
"Guaranty" means, individually, each of the Subsidiary Guaranty and
any other guaranty of the Obligations, and "Guaranties" means the
Subsidiary Guaranty and each other guaranty of the Obligations,
collectively.
"Guarantors" means the Subsidiary Guarantors.
"Hazardous Materials" means (i) any chemical, material or substance
defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous waste",
"restricted hazardous waste", "infectious waste", "toxic substances" or any
other formulations intended to define, list or classify substances by
reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, toxicity, reproductive toxicity, "TCLP
toxicity," or "EP toxicity" or words of similar import under any applicable
Environmental Laws; (ii) any oil, petroleum, petroleum fraction or
petroleum derived substance; (iii) any drilling fluids, produced waters and
other wastes associated with the exploration, development or production of
crude oil, natural gas or geothermal resources; (iv) any flammable
substances or explosives; (v) any radioactive materials; (vi) asbestos in
any form; (vii) urea formaldehyde foam insulation; (viii) electrical
equipment which contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of fifty parts per million; (ix)
pesticides; and (x) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any governmental authority.
"Immaterial Subsidiaries" means, with respect to any Person, any
Subsidiary or Subsidiaries of such Person the assets of which constitute,
individually or in the aggregate, less than 5% of the total assets of such
Person and its Subsidiaries.
"Indebtedness" means, as applied to any Person, (i) all indebtedness
for borrowed money, (ii) that portion of obligations with respect to
Capital Leases that is properly classified as a liability on a balance
sheet in conformity with GAAP, (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing obligations
for borrowed money (other than accounts payable incurred in the ordinary
course of business and accrued expenses incurred in the ordinary course of
business), (iv) any obligation owed for all or any part of the deferred
purchase price of property or services (excluding any such obligations
incurred under ERISA), which purchase price is (a) due more than six months
from the date of incurrence of the obligation in respect thereof or (b)
evidenced by a note or similar written instrument, and (v) all indebtedness
secured by any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is
18
nonrecourse to the credit of that Person. Obligations under Interest Rate
Agreements constitute Contingent Obligations and not Indebtedness.
"Indemnified Liabilities" has the meaning assigned to that term in
subsection 10.3.
"Indemnitee" has the meaning assigned to that term in subsection 10.3.
"Initial Public Offering" has the meaning assigned to that term in the
Recitals to this Agreement.
"Insurance Proceeds" has the meaning assigned to that term in
subsection 2.4B(iii)(d).
"Intellectual Property" means collectively the MBW Intellectual
Property, the Log Cabin Intellectual Property, the Xxxxxx Xxxxx
Intellectual Property, the Van xx Xxxx'x Intellectual Property and the Sea
Coast Intellectual Property, each as defined in subsections 5.5B, 5.5C,
5.5D, 5.5E and 5.5F, respectively.
"Interest Payment Date" means (i) with respect to any Base Rate Loan,
the last Business Day of each March, June, September and December of each
year and (ii) with respect to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan; provided that in the case of
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each Interest Period of longer than three months, "Interest Payment Date"
shall also include the date that is three months after the commencement of
such Interest Period.
"Interest Period" has the meaning assigned to that term in subsection
2.2B.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement designed to hedge Company or any of its
Subsidiaries against fluctuations in interest rates.
"Interest Rate Determination Date" means each date for calculating the
Adjusted Eurodollar Rate, for purposes of determining the interest rate in
respect of an Interest Period. The Interest Rate Determination Date in
respect of calculating the Adjusted Eurodollar Rate shall be the second
Business Day prior to the first day of the related Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter.
"Inventory" means, with respect to any Person as of any date of
determination, all goods, merchandise and other personal property which are
then held by such Person for sale or lease, including raw materials and
work in process.
19
"Investment" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, stock or other Securities of any other Person (other than a
Person that, prior to such purchase or acquisition, was a Wholly Owned
Subsidiary of Company), or (ii) any direct or indirect loan, advance (other
than advances to employees for moving, entertainment and travel expenses,
drawing accounts and similar expenditures in the ordinary course of
business) or capital contribution by Company or any of its Subsidiaries to
any other Person other than a Wholly Owned Subsidiary of Company, including
all Indebtedness and accounts receivable acquired from that other Person
that are not current assets or did not arise from sales to that other
Person in the ordinary course of business; provided, however, that the term
-------- -------
"Investment" shall not include (a) current trade and customer accounts
receivable for goods furnished or services rendered in the ordinary course
of business and payable in accordance with customary trade terms, (b)
advances and prepayments to suppliers for goods and services in the
ordinary course of business, (c) stock or other securities acquired in
connection with the satisfaction or enforcement of Indebtedness or claims
due or owing to Company or any of its Subsidiaries or as security for any
such Indebtedness or claims, (d) Cash held in Deposit Accounts with banks
and trust companies (other than Lenders) not exceeding $5,000,000 in
aggregate amount, (e) Cash held in any Deposit Account with a Lender and
(f) shares in a mutual fund that invests solely in Cash Equivalents. The
amount of any Investment shall be the original cost of such Investment plus
the cost of all additions thereto, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to
such Investment.
"IP Collateral" means the Collateral under the Patent and Trademark
Security Agreement, the Log Cabin Patent and Trademark Security Agreement,
the Xxxxxx Xxxxx Patent and Trademark Security Agreement, the Van xx Xxxx'x
Patent and Trademark Security Agreement and the Sea Coast Patent and
Trademark Security Agreement.
"Issuing Lender" means, with respect to any Letter of Credit, the
Lender which agrees or is otherwise obligated to issue such Letter of
Credit, determined as provided in subsection 3.1B(ii).
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form;
provided that in no event shall any corporate Subsidiary of any Person be
--------
considered to be a Joint Venture to which such Person is a party.
"Kraft" means Kraft Foods, Inc., a Delaware corporation.
"Landlord Consent and Estoppel" means, with respect to any Leasehold
Property, a letter, certificate or other instrument in writing from the
lessor under the related lease, satisfactory in form and substance to
Administrative Agent, pursuant to which such lessor agrees, for the benefit
of Administrative Agent, (i) that without any further consent of such
lessor or any further action on the part of the Loan Party holding such
Leasehold Property, such Leasehold Property may be encumbered pursuant to a
Mortgage and may be assigned to the purchaser at a foreclosure sale or in a
transfer in lieu of such a sale (and to a subsequent third party assignee
if Administrative Agent, any Lender, or an
20
Affiliate of either so acquires such Leasehold Property), (ii) that such
lessor shall not terminate such lease as a result of a default by such Loan
Party thereunder without first giving Administrative Agent notice of such
default and at least 30 days (or, if such default cannot reasonably be
cured by Administrative Agent within such period, such longer period as may
reasonably be required) to cure such default, (iii) to the matters
contained in a Collateral Access Agreement, and (iv) to such other matters
relating to such Leasehold Property as Administrative Agent may reasonably
request.
"Leasehold Property" means any leasehold interest of any Loan Party as
lessee under any lease of real property, other than any such leasehold
interest designated from time to time by Administrative Agent in its sole
discretion as not being required to be included in the Collateral.
"Lender" and "Lenders" means the persons identified as "Lenders" and
listed on the signature pages of this Agreement, together with their
successors and permitted assigns pursuant to subsection 10.1, and the term
"Lenders" shall include Swing Line Lender unless the context otherwise
requires, provided that the term "Lenders", when used in the context of a
--------
particular Commitment, shall mean Lenders having that Commitment.
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Loans
(including any Revolving Loans made to pay Refunded Swing Line Loans or to
reimburse drawings under Letters of Credit) in accordance with subsection
2.1A(iv) or its portion of any unreimbursed drawing or payment under a
Letter of Credit in accordance with subsection 3.3C or (ii) a Lender having
notified Company and/or Administrative Agent in writing that it does not
intend to comply with its obligations under subsection 2.1 or subsections
3.1C, 3.3B or 3.3C.
"Lending Office" means, as to any Lender, the office or offices of
such Lender specified as the "Lending Office" on Schedule 2.1, or such
-------------
other office or offices as such Lender may from time to time notify Company
and Administrative Agent.
"Letter of Credit" or "Letters of Credit" means Commercial Letters of
Credit and Standby Letters of Credit issued or to be issued by Issuing
Lenders for the account of Company pursuant to subsection 3.1.
"Letter of Credit Usage" means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is or at any time thereafter
may become available for drawing under all Letters of Credit then
outstanding (whether or not the conditions to drawing thereunder have been
met) plus (ii) the aggregate amount of all drawings under Letters of Credit
----
honored by Issuing Lenders and not theretofore reimbursed by Company
(including any such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B).
"Leverage Ratio" means, as of any date of determination, the ratio of
Consolidated Total Debt, as of the date of determination, to Consolidated
EBITDA, for
21
the twelve-month period ending on the date of determination, in each
case calculated for Company and its Subsidiaries on a consolidated
basis in accordance with GAAP.
"Lien" means any lien, mortgage, pledge, assignment, security
interest, fixed or floating charge or encumbrance of any kind
(including any conditional sale or other title retention agreement,
any lease in the nature thereof, and any agreement to give any
security interest) and any option, trust or other preferential
arrangement having the practical effect of any of the foregoing.
"Loan" or "Loans" means, as the context requires, one or more of
the Term Loans, Revolving Loans and Swing Line Loans or any
combination thereof.
"Loan Documents" means this Agreement, the Notes, the Letters of
Credit (and any applications for, or reimbursement agreements or other
documents or certificates executed by Company in favor of an Issuing
Lender relating to, the Letters of Credit), the Subsidiary Guaranty,
the Collateral Documents and any Interest Rate Agreement entered into
by Company with a Lender or an Affiliate of any Lender.
"Loan Party" means, individually, each of Company and any
Subsidiary Guarantor, and "Loan Parties" means Company and each
Subsidiary Guarantor, collectively.
"Log Cabin Acquisition" means the acquisition of the Log Cabin
Business pursuant to the terms of the Log Cabin Acquisition Agreement.
"Log Cabin Acquisition Agreement" means that certain Asset
Purchase Agreement dated as of May 7, 1997 between the Company and
Kraft.
"Log Cabin Assumption Agreement" means that certain Assumption
Agreement dated as of July 1, 1997, by and between Kraft and Company.
"Log Cabin Business" means the assets of the retail syrup
business marketed under the Log Cabin and Country Kitchen trademarks
and the foodservice business marketed under the Log Cabin, Log Cabin
Lite and Wigwam trademarks and under private label arrangements.
"Log Cabin Patent and Trademark Security Agreement" means the Log
Cabin Patent and Trademark Security Agreement entered into by and
among Company, the Subsidiary Guarantors and the Administrative Agent
dated as of July 1, 1997 as in effect on the Effective Date, as such
Log Cabin Patent and Trademark Security Agreement may thereafter be
amended, restated, supplemented or otherwise modified from time to
time.
"Log Cabin Patent License Agreement" means that certain Patent
and Know-How License Agreement dated as of July 1, 1997, by and
between Kraft and Company, as in effect on the Effective Date and as
such agreement may thereafter be amended, restated, supplemented or
otherwise modified from time to time to the extent permitted under
subsection 7.12A.
22
"Log Cabin Transition Agreements" means the Log Cabin Patent
License Agreement.
"Management Fees" means the fees payable by Company pursuant to
the MDC Advisory Agreement, the Dartford Advisory Agreement and the
Fenway Advisory Agreement.
"Margin Stock" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System
as in effect from time to time.
"Material Adverse Effect" means (i) a material adverse effect
upon the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Company and its Subsidiaries,
taken as a whole, (ii) the material impairment of the ability of any
Loan Party to perform the Obligations and (iii) a material adverse
effect upon the legality, validity, binding effect or enforceability
against a Loan Party of a Loan Document to which it is a party.
"Material Contract" means any of the Employment Agreements or any
other contract or other arrangement to which Company or any of its
Subsidiaries is a party (other than the Loan Documents) for which
breach, nonperformance, cancellation or failure to renew could have a
Material Adverse Effect.
"Maximum Consolidated Capital Expenditures Amount" has the
meaning assigned to that term in subsection 7.6D.
"MBW LLC" means MBW Investors LLC, a Delaware limited liability
company.
"MDC Advisory Agreement" means that certain Advisory Agreement
dated as of April 8, 1998, by and between Company and MDC Management
Company III, L.P., as in effect on the Effective Date and as such
agreement may thereafter be amended, restated, supplemented or
otherwise modified from time to time to the extent permitted under
subsection 7.12A.
"MDC Entities" means XxXxxx De Leeuw & Co. III, L.P., a
California limited partnership, XxXxxx De Leeuw & Co. Offshore
(Europe) III, L.P., a Bermuda limited partnership, XxXxxx De Leeuw &
Co. III (Asia), L.P., a Bermuda limited partnership, Gamma Fund LLC, a
California limited liability company, XxXxxx De Leeuw & Co. IV, L.P.,
a California limited partnership, XxXxxx De Leeuw & Co. IV Associates,
L.P., a California limited partnership, and Delta Fund LLC, a
California limited liability company.
"Mortgage" means any mortgage or legal charge (whether designated
as a deed of trust or a mortgage or by any similar title) granted by
Company or any of its Subsidiaries (or, at Administrative Agent's
option, an amendment to an existing Mortgage, in form satisfactory to
Administrative Agent, adding such Mortgaged Property to the Real
Property Assets encumbered by an existing Mortgage) in any Real
Property Asset to
23
secure the Obligations, as such mortgage or legal charge may be
amended, restated, supplemented or otherwise modified from time to
time substantially in the form of Exhibit XXI annexed hereto, and
-----------
"Mortgages" means all such instruments collectively.
"Mortgage Policy" has the meaning assigned to that term in
subsection 6.10B(iv).
"Mortgaged Property" has the meaning assigned to that term in
subsection 6.10B.
"Multiemployer Plan" means a "multiemployer plan", as defined in
Section 4001(a)(3) of ERISA which is subject to Title IV of ERISA, to
which Company or any of its ERISA Affiliates is contributing or to
which Company or any of its ERISA Affiliates has an obligation to
contribute.
"NatWest" means National Westminster Bank PLC and its successors,
including, without limitation, its successors by merger.
"Net Cash Proceeds" means, with respect to any Asset Sale, Cash
Proceeds of such Asset Sale net of bona fide direct costs of sale
including, without limitation, (i) income taxes reasonably estimated
to be actually payable as a result of such Asset Sale within one year
of the date of receipt of such Cash Proceeds, (ii) transfer, sales,
use and other taxes payable in connection with such Asset Sale, (iii)
payment of the outstanding principal amount of, premium or penalty, if
any, and interest on any Indebtedness (other than the Loans) that is
secured by a Lien on the stock or assets in question and that is
required to be repaid under the terms thereof as a result of such
Asset Sale, and (iv) broker's commissions and reasonable fees and
expenses of counsel, accountants and other professional advisors in
connection with such Asset Sale.
"New Lender" means any Lender which is a party to this Agreement
on the Effective Date which is not an Existing Lender.
"Non-Defaulting Lender" means and includes each Lender other than
a Defaulting Lender.
"Non-US Lenders" has the meaning assigned to that term in
subsection 2.7B(iii).
"Notes" means one or more of the Tranche A Term Notes, Tranche B
Term Notes, Revolving Notes or Swing Line Note or any combination
thereof.
"Notice of Borrowing" means a notice in the form of Exhibit I
---------
annexed hereto delivered by Company to Administrative Agent pursuant
to subsection 2.1B with respect to a proposed borrowing.
"Notice of Conversion/Continuation" means a notice substantially
in the form of Exhibit II annexed hereto delivered by Company to
----------
Administrative Agent pursuant to subsection 2.2D with respect to a
proposed conversion or continuation of the applicable basis for
determining the interest rate with respect to the Loans specified
therein.
24
"Notice of Issuance of Letter of Credit" means a notice in the
form of Exhibit III annexed hereto delivered by Company to
-----------
Administrative Agent pursuant to subsection 3.1B(i) with respect to
the proposed issuance of a Letter of Credit.
"Obligations" means all obligations of every nature of each Loan
Party from time to time owed to Agents, Lenders or any of them under
the Loan Documents, whether for principal, interest, reimbursement of
amounts drawn under Letters of Credit or payments for early
termination of Interest Rate Agreements, fees, expenses,
indemnification or otherwise.
"Officer's Certificate" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its chairman of
the board (if an officer), its president, its chief financial officer
or a vice president; provided that every Officer's Certificate with
--------
respect to the compliance with a condition precedent to the making of
any Loans hereunder shall include (i) a statement that the officer
making or giving such Officer's Certificate has read such condition
and any definitions or other provisions contained in this Agreement
relating thereto, (ii) a statement that, in the opinion of the signer
he or she has made or has caused to be made such examination or
investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such condition has been complied
with, and (iii) a statement as to whether, in the opinion of the
signer, such condition has been complied with.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by the
lessee at any time) of any property (whether real, personal or mixed)
that is not a Capital Lease other than any such lease under which that
Person is the lessor.
"P&G" means The Procter & Xxxxxx Company, an Ohio corporation.
"Patent and Trademark Security Agreement" means the Patent and
Trademark Security Agreement entered into by and among Company, the
Subsidiary Guarantors and Administrative Agent dated as of the Closing
Date, as such Patent and Trademark Security Agreement may thereafter
be amended, restated, supplemented or otherwise modified from time to
time.
"Patent License Agreement" means that certain Patent License
Agreement dated as of December 31, 1996, by and among Seller, Unilever
PLC and Company, as in effect on the Closing Date and as such
agreement may thereafter be amended, restated, supplemented or
otherwise modified from time to time to the extent permitted under
subsection 7.12A.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA (or any successor thereto).
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Title IV of ERISA.
25
"Permitted Acquisition" means an acquisition of assets or a
business effected in accordance with the provisions of subsection
7.7(vi).
"Permitted Encumbrances" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges
or claims the payment of which is not, at the time, required by
subsection 6.3;
(ii) statutory Liens of landlords, statutory Liens of
carriers, warehousemen, mechanics and materialmen and other Liens
imposed by law (other than any such Lien imposed pursuant to
Section 401(a)(29) or 412(n) of the Internal Revenue Code or by
ERISA) incurred in the ordinary course of business for sums not
yet delinquent or being contested in good faith, if such reserve
or other appropriate provision, if any, as shall be required by
GAAP shall have been made therefor;
(iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety
and appeal bonds, bids, leases, government contracts, trade
contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of
borrowed money);
(iv) any attachment or judgment Lien not constituting an
Event of Default under subsection 8.8;
(v) leases or subleases granted to others not interfering
in any material respect with the ordinary conduct of the business
of Company or any of its Subsidiaries;
(vi) easements, rights-of-way, restrictions, minor
defects, encroachments or irregularities in title and other
similar charges or encumbrances not interfering in any material
respect with the ordinary conduct of the business of Company or
any of its Subsidiaries;
(vii) any (a) interest or title of a lessor or sublessor
under any Capital Lease permitted by subsection 7.1(iii) or any
Operating Lease not prohibited by this Agreement, (b) restriction
or encumbrance that the interest or title of such lessor or
sublessor may be subject to, or (c) subordination of the interest
of the lessee or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (b);
(viii) Liens arising from filing UCC financing statements
relating solely to leases permitted by this Agreement;
26
(ix) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(x) deposits in the ordinary course of business to secure
liabilities to insurance carriers, lessors, utilities and other
service providers; and
(xi) bankers liens and rights of setoff with respect to
customary depository arrangements entered into in the ordinary
course of business.
"Permitted Seller Note" means a promissory note substantially in
the form of Exhibit XVII annexed hereto representing any Indebtedness
------------
of Company incurred in connection with any Permitted Acquisition
payable to the seller in connection therewith, as such note may be
amended, restated, supplemented or otherwise modified from time to
time to the extent permitted under subsection 7.12B; provided that no
--------
Permitted Seller Note shall (i) be guarantied by any Subsidiary of
Company or secured by any property of Company or any of its
Subsidiaries or (ii) bear cash interest at a rate in excess of 12% per
annum; and provided further, that no Permitted Seller Note shall
-------- -------
provide for any prepayment or repayment of all or any portion of the
principal thereof prior to the date of the final scheduled installment
of principal of any of the Loans.
"Person" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability
companies, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and
governments and agencies and political subdivisions thereof.
"Pledge Agreement" means that certain Fourth Amended and Restated
Pledge Agreement by and among Company, the Subsidiary Guarantors and
Administrative Agent dated as of the Effective Date and substantially
in the form of Exhibit IX annexed hereto, as such Pledge Agreement may
----------
be amended, restated, supplemented or otherwise modified from time to
time.
"Pledged Collateral" means the "Pledged Collateral" as defined in
the Pledge Agreement.
"Potential Event of Default" means a condition or event that,
after notice or after any applicable grace period has lapsed, or both,
would constitute an Event of Default.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Chase as its prime commercial lending
rate in effect at its principal office in New York City. The Prime
Rate is a reference rate and does not necessarily represent the lowest
or best rate actually charged to any customer. Chase or any other
Lender may make commercial loans or other loans at rates of interest
at, above or below the Prime Rate.
"Proceedings" has the meaning assigned to that term in subsection
6.1(x).
27
"Pro Forma Calculation Period" has the meaning assigned to that
term in subsection 7.6E(i).
"Pro Rata Share" means with respect to each Lender, the Revolving
Loan Pro Rata Share, Tranche A Term Loan Pro Rata Share and Tranche B
Term Loan Pro Rata Share of such Lender; in any such case as the
applicable percentage may be adjusted by assignments permitted
pursuant to subsection 10.1. The initial Pro Rata Share of each Lender
is set forth opposite the name of that Lender in Schedule 2.1 annexed
------------
hereto.
"PTO" means the United States Patent and Trademark Office or any
successor or substitute office in which filings are necessary or, in
the opinion of Administrative Agent, desirable in order to create or
perfect Liens on any IP Collateral.
"Pure Food and Drug Laws" means the FFDC Act and the pure food
and drug laws of each of the states of the United States into which
products of the Business, the Log Cabin Business and the Xxxxxx Xxxxx
Business are or have been shipped.
"Quest" means Quest International Flavors & Food Ingredients
Company.
"Quest Agreements" means, collectively, (i) that certain Flavor
Escrow Agreement dated as of December 31, 1996, by and among Quest,
the escrow agent named therein and Company, as in effect on the
Closing Date and as such agreement may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the
extent permitted under subsection 7.12A, and (ii) the Flavor Supply
Agreement.
"Real Property Asset" means, at any time of determination, any
interest then owned by any Loan Party in any real property.
"Recorded Leasehold Interest" means a Leasehold Property with
respect to which a Record Document (as hereinafter defined) has been
recorded in all places necessary or desirable, in Administrative
Agent's reasonable judgment, to give constructive notice of such
Leasehold Property to third-party purchasers and encumbrances of the
affected real property. For purposes of this definition, the term
"Record Document" means, with respect to any Leasehold Property, (a)
the lease evidencing such Leasehold Property or a memorandum thereof,
executed and acknowledged by the owner of the affected real property,
as lessor, or (b) if such Leasehold Property was acquired or subleased
from the holder of a Recorded Leasehold Interest, the applicable
assignment or sublease document, executed and acknowledged by such
holder, in each case in form sufficient to give such constructive
notice upon recordation and otherwise in form reasonably satisfactory
to Administrative Agent.
"Red Wing" means The Red Wing Company, Inc., a Delaware
corporation.
"Red Wing Co-Pack Agreement" means each of the First Amended and
Restated Production Agreement, dated as of November 19, 1997, by and
between Red Wing and Company and the Production Agreement, dated as of
November 19, 1997, by and between Red Wing and the Company
(collectively, the "Red Wing Co-Pack
28
Agreements") as in effect on the Effective Date and as such agreement
may thereafter be amended, restated, supplemented or otherwise
modified from time to time to the extent permitted under subsection
7.12A.
"Refunded Swing Line Loans" has the meaning assigned to that term
in subsection 2.1A(iv).
"Register" has the meaning assigned to that term in subsection
2.1D.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Regulatory Shares" means, with respect to any Person, shares of
such Person required to be issued as qualifying shares to directors or
persons similarly situated or shares issued to Persons other than
Company or a Wholly Owned Subsidiary of Company in response to
regulatory requirements of foreign jurisdictions pursuant to a
resolution of the Board of Directors of such Person, so long as such
shares do not exceed one percent of the total outstanding shares of
equity such Person and any owners of such shares irrevocably covenant
with Company to remit to Company or waive any dividends or
distributions paid or payable in respect of such shares.
"Reimbursement Date" has the meaning assigned to that term in
subsection 3.3B.
"Related Agreements" means the Subordinated Note Indentures, the
Subordinated Notes, the other Subordinated Note Documents, the
Acquisition Agreement, the Log Cabin Acquisition Agreement, the Xxxxxx
Xxxxx Acquisition Agreement, the Sea Coast Acquisition Agreement, the
Assumption Agreement, the Log Cabin Assumption Agreement, the Xxxxxx
Xxxxx Assumption Agreement, the MDC Advisory Agreement, the Dartford
Advisory Agreement, the Fenway Advisory Agreement, the Transition
Agreements, the Log Cabin Transition Agreements, the Red Wing Co-Pack
Agreements, the Dartford Expense Agreement, the Xxxxxxx Co-Pack
Agreement and the Xxxxxx Xxxxx Transition Agreements.
"Release" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Materials into the indoor
or outdoor environment (including, without limitation, the abandonment
or disposal of any barrels, containers or other closed receptacles
containing any Hazardous Materials), or into or out of any Facility,
including the movement of any Hazardous Material through the air,
soil, surface water, groundwater or property.
"Requisite Lenders" means Non-Defaulting Lenders having or
holding not less than 51% of the sum of the aggregate Term Loan
Exposure of all Non-Defaulting Lenders plus the aggregate Revolving
----
Loan Exposure of all Non-Defaulting Lenders.
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any
class of stock of Company now or hereafter outstanding, except a
dividend payable solely in shares of that class of stock to the
29
holders of that class, (ii) any redemption, retirement, sinking fund
or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of Company now or
hereafter outstanding other than stock repurchases for Company's 1998
Employee Stock Purchase Program, (iii) any payment made to retire, or
to obtain the surrender of, any outstanding warrants, options or other
rights to acquire shares of any class of stock of Company now or
hereafter outstanding, and (iv) any payment or prepayment of principal
of, premium, if any, or interest on, or redemption, purchase,
retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to, any Subordinated
Indebtedness.
"Revolving Loan Commitment" means the commitment of a Lender to
make Revolving Loans to Company pursuant to subsection 2.1A(iii) and
"Revolving Loan Commitments" means such commitments of all Lenders in
the aggregate.
"Revolving Loan Commitment Termination Date" means June 30, 2005
or any earlier date of termination of the Revolving Loan Commitments
pursuant to this Agreement.
"Revolving Loan Exposure" means, with respect to any Lender as of
any date of determination (i) prior to the termination of the
Revolving Loan Commitments, that Lender's Revolving Loan Commitment
and (ii) after the termination of the Revolving Loan Commitments, the
sum of (a) the aggregate outstanding principal amount of the Revolving
Loans of that Lender plus (b) in the event that Lender is an Issuing
----
Lender, the aggregate Letter of Credit Usage in respect of all Letters
of Credit issued by that Lender (net of any participations purchased
by other Lenders in such Letters of Credit) plus (c) the aggregate
----
amount of all participations purchased by that Lender in any
outstanding Letters of Credit or any unreimbursed drawings under any
Letters of Credit plus (d) the aggregate amount of all participations
----
purchased by that Lender in any outstanding Swing Line Loans plus (e)
----
in the case of Swing Line Lender, the sum of the aggregate outstanding
principal amount of all Swing Line Loans (in each case net of any
participations therein purchased by other Lenders).
"Revolving Loan Pro Rata Share" means with respect to all
payments, computations and other matters relating to the Revolving
Loan Commitment or the Revolving Loans of any Lender or any Letters of
Credit issued by any Lender or any participations purchased by any
Lender therein or in any Swing Line Loans, the percentage obtained by
dividing (i) the Revolving Loan Exposure of that Lender by (ii) the
-------- --
aggregate Revolving Loan Exposure of all Lenders, in any such case as
the applicable percentage may be adjusted by assignments permitted
pursuant to subsection 10.1.
"Revolving Loans" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(iii).
"Revolving Notes" means (i) the promissory notes of Company
issued pursuant to subsection 2.1E(i)(c) on the Effective Date and
(ii) any promissory notes issued by Company pursuant to the last
sentence of subsection 10.1B(i) in connection with assignments of the
Revolving Loan Commitment and Revolving Loans of any Lender, in
30
each case substantially in the form of Exhibit VI annexed hereto, as
----------
they may be amended, restated, supplemented or otherwise modified from
time to time.
"S&P" means Standard & Poor's Ratings Service, or any successor
thereto.
"Sea Coast" means Sea Coast Foods, Inc., a Washington
corporation.
"Sea Coast Acquisition" means the acquisition of all the capital
stock of Sea Coast pursuant to terms of the Sea Coast Acquisition
Agreement, for a purchase price, excluding fees and expenses, not to
exceed $50,000,000, plus an "earn out" payment as described in the Sea
Coast Acquisition Agreement.
"Sea Coast Acquisition Agreement" means that certain Stock
Purchase Agreement dated as of March 10, 1999 between the Company, Sea
Coast, Xxxxxxx Investments Limited Partnership, Xxxxx-On Limited
Partnership, Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxx
and Xxxx X. Xxxxx.
"Sea Coast Patent and Trademark Security Agreement" means the Sea
Coast Patent and Trademark Security Agreement entered into by and
among Company, the Subsidiary Guarantors and the Administrative Agent
dated as of March 31, 1999, as in effect on the Effective Date, as
such Sea Coast Patent and Trademark Security Agreement may thereafter
be amended, restated, supplemented or otherwise modified from time to
time.
"Securities" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation
in any profit-sharing agreement or arrangement, options, warrants,
bonds, debentures, notes, or other evidences of indebtedness, secured
or unsecured, convertible, subordinated or otherwise, or in general
any instruments commonly known as "securities" or any certificates of
interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to
subscribe to, purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"Security Agreement" means the Fourth Amended and Restated
Security Agreement entered into by and among Company, the Subsidiary
Guarantors and Administrative Agent dated as of the Effective Date and
substantially in the form of Exhibit X annexed hereto, as such
---------
Security Agreement may be amended, restated, supplemented or otherwise
modified from time to time.
"Seller" means Conopco, Inc., a New York corporation, doing
business as Van den Xxxxx Foods Company.
"Senior Leverage Ratio" means, as of any date of determination,
the ratio of Consolidated Total Senior Debt, as of the date of
determination, to Consolidated EBITDA, for the twelve-month period
ending on the date of determination, in each case
31
calculated for Company and its Subsidiaries on a consolidated basis in
accordance with GAAP.
"Shared Technology License Agreement" means that certain Shared
Technology License Agreement dated as of December 31, 1996, by and
between Seller and Company, as in effect on the Closing Date and as
such agreement may thereafter be amended, restated, supplemented or
otherwise modified from time to time to the extent permitted under
subsection 7.12A
"Solvent" means, with respect to any Person, that as of the date
of determination both (i) (a) the then fair saleable value of the
property of such Person is (y) greater than the total amount of
liabilities (including contingent liabilities) of such Person and (z)
not less than the amount that will be required to pay the probable
liabilities on such Person's then existing debts as they become
absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (b) such
Person's capital is not unreasonably small in relation to its business
or any contemplated or undertaken transaction; and (c) such Person
does not intend to incur, or believe (nor should it reasonably
believe) that it will incur, debts beyond its ability to pay such
debts as they become due; and (ii) such Person is "solvent" within the
meaning given that term and similar terms under applicable laws
relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall
be computed as the amount that, in light of all of the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Standby Letter of Credit" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i) workers'
compensation liabilities of Company or any of its Subsidiaries, (ii)
the obligations of third party insurers of Company or any of its
Subsidiaries arising virtue of the laws of any jurisdiction requiring
third party insurers, (iii) performance, payment, deposit or surety
obligations of Company or any of its Subsidiaries, in any case if
required by law or governmental rule or regulation or in accordance
with custom and practice in the industry, and (iv) such other
obligations of Company and its Subsidiaries as may be reasonably
acceptable to Administrative Agent; provided that Standby Letters of
--------
Credit may not be issued for the purpose of supporting (a) trade
payables or (b) Indebtedness constituting "antecedent debt" (as that
term is used in Section 547 of the Bankruptcy Code).
"Subordinated Note Documents" means collectively the Existing
Subordinated Note Documents and the VDK Subordinated Note Documents.
"Subordinated Note Indentures" means collectively the Existing
Subordinated Note Indentures and the VDK Subordinated Note Indenture.
"Subordinated Notes" means collectively the Existing Subordinated
Notes and the VDK Subordinated Notes.
32
"Subordinated Indebtedness" means (i) the Indebtedness of Company
under the Subordinated Note Documents, (ii) any Indebtedness permitted
under subsection 7.1(vi), (iii) the Indebtedness of Company evidenced
by any Permitted Seller Notes, and (iv) any other Indebtedness of
Company or any of its Subsidiaries subordinated in right of payment to
the Obligations pursuant to documentation containing maturities,
amortization schedules, covenants, defaults, remedies, subordination
provisions and other material terms in form and substance satisfactory
to Administrative Agent and Requisite Lenders.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association, joint venture or other business entity of
which more than 50% of the total voting power of shares of stock or
other ownership interests entitled (without regard to the occurrence
of any contingency) to vote in the election of the Person or Persons
(whether directors, managers, trustees or other Persons performing
similar functions) having the power to direct or cause the direction
of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof.
"Subsidiary Guarantor" means Sea Coast and any Subsidiary of
Company that becomes party to the Subsidiary Guaranty at any time
after the Effective Date pursuant to subsection 6.9.
"Subsidiary Guaranty" means that certain Subsidiary Guaranty,
substantially in the form of Exhibit VIII annexed hereto, executed and
------------
delivered by Sea Coast on the Effective Date and by each Subsidiary
Guarantor from time to time after the Effective Date pursuant to
subsection 6.9, as such Subsidiary Guaranty may be amended, restated,
supplemented or otherwise modified from time to time.
"Subsidiary Security Agreements" has the meaning assigned to that
term in subsection 6.9.
"Supplemental Collateral Agent" has the meaning assigned to that
term in subsection 9.1B.
"Swing Line Lender" means Chase, or any Person serving as a
successor Administrative Agent hereunder, in its capacity as Swing
Line Lender hereunder.
"Swing Line Loan Commitment" means the commitment of Swing Line
Lender to make Swing Line Loans to Company pursuant to subsection
2.1A(iv).
"Swing Line Loans" means the Loans made by Swing Line Lender
pursuant to subsection 2.1A(iv).
"Swing Line Note" means (i) the promissory note of Company issued
pursuant to subsection 2.1E(ii) on the Effective Date and (ii) any
promissory note issued by Company to any successor Administrative
Agent and Swing Line Lender pursuant to the last sentence of
subsection 9.5B, in each case substantially in the form of Exhibit IX
----------
33
annexed hereto, as it may be amended, restated, supplemented or
otherwise modified from time to time.
"Syndication Agent" has the meaning assigned to that term in the
introduction to this Agreement.
"Tax" or "Taxes" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied,
collected, withheld or assessed; provided that "Tax on the overall net
--------
income" of a Person shall be construed as a reference to a tax imposed
by the jurisdiction in which that Person's principal office (and/or,
in the case of a Lender, its relevant Lending Office) is located or in
which that Person is deemed to be doing business on all or part of the
net income, profits or gains of that Person (whether worldwide, or
only insofar as such income, profits or gains are considered to arise
in or to relate to a particular jurisdiction, or otherwise).
"Term Loan Commitment" means the aggregate commitment of a Lender
to make Tranche A Term Loans and Tranche B Term Loans to Company
pursuant to subsections 2.1A(i) and 2.1A(ii), respectively, and "Term
Loan Commitments" means such commitments of all Lenders in the
aggregate.
"Term Loan Exposure" means, with respect to any Lender as of any
date of determination (i) prior to the funding of the Term Loans, that
Lender's Term Loan Commitment and (ii) after the funding of the Term
Loans, the outstanding principal amount of the Term Loan of that
Lender.
"Term Loans" means the Tranche A Term Loans and Tranche B Term
Loans made by Lenders to Company pursuant to subsection 2.1A(i) and
2.1A(ii), respectively.
"Term Notes" means one or more of the Tranche A Term Notes and
Tranche B Term Notes, or any combination thereof.
"Tiger" means Gloriande (Luxembourg) SarL, a corporation
organized under the laws of Luxembourg and an affiliate of Tiger Oats.
"Title Company" means one or more title insurance companies
reasonably satisfactory to Administrative Agent.
"Total Utilization of Revolving Loan Commitments" means, as at
any date of determination, the sum of (i) the aggregate principal
amount of all outstanding Revolving Loans (other than Revolving Loans
made for the purpose of repaying any Refunded Swing Line Loans or
reimbursing the applicable Issuing Lender for any amount drawn under
any Letter of Credit but not yet so applied) plus (ii) the aggregate
----
principal amount of all outstanding Swing Line Loans plus (iii) the
Letter of Credit Usage.
34
"Tranche A Term Loan Commitment" means the commitment of a Lender
to make a Tranche A Term Loan to Company pursuant to subsection
2.1A(i), and "Tranche A Term Loan Commitments" means such commitments
of all Lenders in the aggregate.
"Tranche A Term Loan Exposure" means, with respect to any Lender
as of any date of determination (i) prior to the funding of the
Tranche A Term Loans, that Lender's Tranche A Term Loan Commitment and
(ii) after the funding of the Tranche A Term Loans, the outstanding
principal amount of the Tranche A Term Loan of that Lender.
"Tranche A Term Loan Pro Rata Share" means with respect to all
payments, computations and other matters relating to the Tranche A
Term Loan Commitment or the Tranche A Term Loan of any Lender, the
percentage obtained by dividing (i) the Tranche A Term Loan Exposure
--------
of that Lender by (ii) the aggregate Tranche A Term Loan Exposure of
--
all Lenders, in any such case as the applicable percentage ntage may
be adjusted by assignments permitted pursuant to subsection 10.1.
"Tranche A Term Loans" means the Loans made by the Lenders to the
Company any pursuant to subsection 2.1A(i).
"Tranche A Term Notes" means (i) any promissory notes of Company
issued pursuant to subsection 2.1E(i)(a) on the Effective Date and
(ii) any promissory notes issued by Company pursuant to the last
sentence of subsection 10.1B(i) in connection with assignments of the
Tranche A Term Loan Commitments or Tranche A Term Loans of any
Lenders, in each case substantially in the form of Exhibit IV annexed
----------
hereto, as they may be amended, restated, supplemented or otherwise
modified from time to time.
"Tranche B Term Loan Commitment" means the commitment of a Lender
to make a Tranche B Term Loan to Company pursuant to subsection
2.1A(ii), and "Tranche B Term Loan Commitments" means such commitments
of all Lenders in the aggregate.
"Tranche B Term Loan Exposure" means, with respect to any Lender
as of any date of determination (i) prior to the funding of the
Tranche B Term Loans, that Lender's Tranche B Term Loan Commitment and
(ii) after the funding of the Tranche B Term Loans, the outstanding
principal amount of the Tranche B Term Loan of that Lender.
"Tranche B Term Loan Pro Rata Share" means with respect to all
payments, computations and other matters relating to the Tranche B
Term Loan Commitment or the Tranche B Term Loan of any Lender, the
percentage obtained by dividing (i) the Tranche B Term Loan Exposure
--------
of that Lender by (ii) the aggregate Tranche B Term Loan Exposure of
--
all Lenders, in any such case as the applicable percentage may be
adjusted by assignments permitted pursuant to subsection 10.1.
"Tranche B Term Loans" means the Loans made by the Lenders to the
Company pursuant to subsection 2.1A(ii).
"Tranche B Term Notes" means (i) the promissory notes of Company
issued pursuant to subsection 2.1E(i)(b) on the Effective Date and
(ii) any promissory notes
35
issued by Company pursuant to the last sentence of subsection 10.1B(i)
in connection with assignments of the Tranche B Term Loan Commitments
or Tranche B Term Loans of any Lenders, in each case substantially in
the form of Exhibit V annexed hereto, as they may be amended,
---------
restated, supplemented or otherwise modified from time to time.
"Transition Agreements" means, collectively, (i) that certain
License Agreement dated as of December 31, 1996, by and between Seller
and Company, as in effect on the Closing Date and as such agreement
may thereafter be amended, restated, supplemented or otherwise
modified from time to time to the extent permitted under subsection
7.12A; (ii) the Shared Technology License Agreement; (iii) the Patent
License Agreement; and (iv) the Quest Agreements.
"UBS" means UBS Capital LLC, a New York limited liability
company.
"UBS AG" means UBS AG, Stamford Branch and its successors,
including, without limitation, any successors by merger.
"Unfunded Current Liability" means, with respect to any Pension
Plan, the amount, if any, by which the actuarial present value of the
accumulated plan benefits under such Pension Plan as of the close of
its most recent plan year exceeds the fair market value of the assets
allocable thereto, each determined in accordance with Statement of
Financial Accounting Standards No. 35, based upon the actuarial
assumptions used by such Pension Plan's actuary in the most recent
annual valuation of such Pension Plan.
"Van xx Xxxx'x" means Van xx Xxxx'x, Inc., a Delaware
corporation.
"Van xx Xxxx'x Patent and Trademark Security Agreement" means the
Van xx Xxxx'x Patent and Trademark Security Agreement entered into by
and among Company, the Subsidiary Guarantors and the Administrative
Agent dated as of the Existing Effective Date, as such Van xx Xxxx'x
Patent and Trademark Security Agreement may thereafter be amended,
restated, supplemented or otherwise modified from time to time.
"VDK Credit Agreement" means the Second Amended and Restated
Credit and Guarantee Agreement, dated as of July 9, 1996, among VDK
Holdings, Van xx Xxxx'x, the banks and other financial institutions
from time to time parties thereto, and Chase, as agent, as the same
may be amended, restated, supplemented or otherwise modified from time
to time.
"VDK Holdings" means VDK Holdings, Inc., a Delaware corporation.
"VDK Subordinated Note Documents" means the VDK Subordinated Note
Indenture, the VDK Subordinated Notes and each other document executed
in connection with the VDK Subordinated Notes, as each such document
may be amended, restated, supplemented or otherwise modified from time
to time to the extent permitted under subsection 7.12B.
36
"VDK Subordinated Note Indenture" means the indenture pursuant to
which the VDK Subordinated Notes are issued, in a form delivered to
Agents and Lenders on or prior to the Existing Effective Date, with
such changes thereto as are permitted under subsection 7.12B and as
such indenture may thereafter be amended, restated, supplemented or
otherwise modified from time to time to the extent permitted under
subsection 7.12B.
"VDK Subordinated Notes" means the 12% Senior Subordinated Notes
of Van xx Xxxx'x due 2005 issued on September 15, 1995 pursuant to the
VDK Subordinated Note Indenture in the form delivered to the Agents
and Lenders on or prior to the Existing Effective Date with such
changes thereto as are permitted under subsection 7.12B and as such
notes may thereafter be amended, restated, supplemented or otherwise
modified from time to time to the extent permitted under Subsection
7.12B.
"Wholly Owned Subsidiary" means, with respect to any Person, a
Subsidiary of such Person all of the outstanding capital stock or
other ownership interests of which (other than Regulatory Shares)
shall at the time be owned by such Person or by one or more Wholly
Owned Subsidiaries of such Person or by such Person and one or more
Wholly Owned Subsidiaries of such Person.
1.2 Accounting Terms Utilization of GAAP for Purposes of Calculations
------------
Under Agreement.
---------------
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to clauses (i), (ii),
(iii) and (xiii) of subsection 6.1 shall be prepared in accordance with GAAP
(except, with respect to interim financial statements, normal year end audit
adjustments and the absence of explanatory footnotes) as in effect at the time
of such preparation (and delivered together with the reconciliation statements
provided for in subsection 6.1(v)). Calculations in connection with the
definitions, covenants and other provisions of this Agreement shall utilize
accounting principles and policies in conformity with those used to prepare the
financial statements referred to in subsection 5.3A.
1.3 Other Definitional Provisions.
-----------------------------
References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in subsection 1.1 may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference. The words "includes", "including" and similar terms used in any Loan
Document shall be construed as if followed by the words "without limitation".
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Loans.
------------------
37
A. Commitments. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Loan
Parties set forth herein and in the other Loan Documents, each Lender hereby
severally agrees to make the applicable Loans described in subsections 2.1A(i),
2.1A(ii) and 2.1A(iii) and Swing Line Lender hereby agrees to make the Swing
Line Loans as described in subsection 2.1A(iv).
(i) Tranche A Term Loans. Each Lender with a Tranche A
---------------------
Term Loan Commitment severally agrees to lend to Company on the
Existing Effective Date an amount not exceeding its Pro Rata Share of
the aggregate amount of the Tranche A Term Loan Commitments. The
amount of each Lender's Tranche A Term Loan Commitment is set forth
opposite its name on Schedule 2.1 annexed hereto and the aggregate
------------
amount of the Tranche A Term Loan Commitments is $225,000,000;
provided that the Tranche A Term Loan Commitments of Lenders shall be
--------
adjusted to give effect to any assignments of the Tranche A Term Loan
Commitments pursuant to subsection 10.1B. Company may make only one
borrowing under the Tranche A Term Loan Commitments. Amounts borrowed
under this subsection 2.1A(i) and subsequently repaid or prepaid may
not be reborrowed.
(ii) Tranche B Term Loans. Each Lender with a Tranche B
--------------------
Term Loan Commitment severally agrees to lend to Company on the
Effective Date an amount not exceeding its Pro Rata Share of the
aggregate amount of the Tranche B Term Loan Commitments to be used for
the purposes identified in subsection 2.5A. The amount of each
Lender's Tranche B Term Loan Commitment is set forth opposite its name
on Schedule 2.1 annexed hereto and the aggregate amount of the Tranche
------------
B Term Loan Commitments is $100,000,000; provided that the Tranche B
--------
Term Loan Commitments of Lenders shall be adjusted to give effect to
any assignments of the Tranche B Term Loan Commitments pursuant to
subsection 10.1B. Company may make only one borrowing under the
Tranche B Term Loan Commitments. Amounts borrowed under this
subsection 2.1A(ii) and subsequently repaid or prepaid may not be
reborrowed.
(iii) Revolving Loans. Each Lender with a Revolving Loan
---------------
Commitment severally agrees, subject to the limitations set forth
below with respect to the maximum amount of Revolving Loans permitted
to be outstanding from time to time, to maintain such existing
Revolving Loans and to lend to Company from time to time during the
period from the Existing Effective Date to but excluding the Revolving
Loan Commitment Termination Date an aggregate amount which shall not
exceed its Pro Rata Share of the aggregate amount of the Revolving
Loan Commitments, to be used for the purposes identified in subsection
2.5B. The original amount of each Lender's Revolving Loan Commitment
is set forth opposite its name on Schedule 2.1 annexed hereto and the
------------
aggregate original amount of the Revolving Loan Commitments is
$175,000,000; provided that the Revolving Loan Commitments of Lenders
--------
shall be adjusted to give effect to any assignments of the Revolving
Loan Commitments pursuant to subsection 10.1B; provided further, that
-------- -------
the amount of
38
the Revolving Loan Commitments shall be reduced from time to time by
the amount of any reductions thereto made pursuant to subsection 2.4B.
Each Lender's Revolving Loan Commitment shall expire on the Revolving
Loan Commitment Termination Date and all Revolving Loans and all other
amounts owed hereunder with respect to the Revolving Loans and the
Revolving Loan Commitments shall be paid in full no later than that
date. Amounts borrowed under this subsection 2.1A(iii) may be repaid
and reborrowed to but excluding the Revolving Loan Commitment
Termination Date.
Notwithstanding anything contained herein to the contrary, in no event
shall the Total Utilization of Revolving Loan Commitments at any time exceed the
Revolving Loan Commitments then in effect.
(iv) Swing Line Loans. Swing Line Lender hereby agrees,
----------------
subject to the limitations set forth below with respect to the maximum
aggregate amount of all Swing Line Loans outstanding from time to
time, to make a portion of the Revolving Loan Commitments available to
Company from time to time during the period from the Existing
Effective Date to but excluding the Revolving Loan Commitment
Termination Date by making Base Rate Loans as Swing Line Loans to
Company in an aggregate amount not to exceed the amount of the Swing
Line Loan Commitment, to be used for the purposes identified in
subsection 2.5B, notwithstanding the fact that such Swing Line Loans,
when aggregated with the sum of Swing Line Lender's outstanding
Revolving Loans and Swing Line Lender's Pro Rata Share of the Letter
of Credit Usage then in effect, may exceed Swing Line Lender's
Revolving Loan Commitment. The original amount of the Swing Line Loan
Commitment is $10,000,000; provided that the amounts of the Swing Line
--------
Loan Commitment are subject to reduction as provided in clause (b) of
the next paragraph. The Swing Line Loan Commitment shall expire on the
Revolving Loan Commitment Termination Date and all Swing Line Loans
and all other amounts owed hereunder with respect to the Swing Line
Loans shall be paid in full no later than that date. Amounts borrowed
under this subsection 2.1A(iv) may be repaid and reborrowed to but
excluding the Revolving Loan Commitment Termination Date.
Notwithstanding anything contained herein to the contrary, the Swing
Line Loans, and the Swing Line Loan Commitment shall be subject to the following
limitations in the amounts indicated:
(a) in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitments then in
effect;
(b) any reduction of the Revolving Loan Commitments made pursuant to
subsection 2.4B which reduces the aggregate Revolving Loan Commitments to
an amount less than the then current sum of the Swing Line Loan Commitment
shall result in an automatic corresponding pro rata reduction of the Swing
Line Loan Commitment such that the sum thereof equals the amount of the
Revolving Loan Commitments, as so
39
reduced, without any further action on the part of Company, Administrative
Agent or Swing Line Lender.
With respect to any Swing Line Loans which have not been voluntarily
prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any
time in its sole and absolute discretion, deliver to Administrative Agent (with
a copy to Company), no later than 12:00 Noon (New York time) at least one
Business Day in advance of the proposed Funding Date, a notice (which shall be
deemed to be a Notice of Borrowing given by Company) requesting Lenders to make
Revolving Loans that are Base Rate Loans to Company on such Funding Date in an
amount equal to the amount of such Swing Line Loans (the "Refunded Swing Line
Loans") outstanding on the date such notice is given which Swing Line Lender
requests Lenders to prepay. Anything contained in this Agreement to the contrary
notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders other
than Swing Line Lender shall be immediately delivered by Administrative Agent to
Swing Line Lender (and not to Company) and applied to repay a corresponding
portion of the Refunded Swing Line Loans and (ii) on the day such Revolving
Loans are made, Swing Line Lender's Pro Rata Share of the Refunded Swing Line
Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by
Swing Line Lender to Company, and such portion of the Swing Line Loans deemed to
be so paid, shall no longer be outstanding as Swing Line Loans and shall no
longer be due under the Swing Line Note of Swing Line Lender but shall instead
constitute part of Swing Line Lender's outstanding Revolving Loans to Company
and shall be due under the Revolving Note issued by Company to Swing Line
Lender. Company hereby authorizes each of Administrative Agent and Swing Line
Lender to charge Company's accounts with Administrative Agent and Swing Line
Lender (up to the amount available in each such account) in order to immediately
pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent
the proceeds of such Revolving Loans made by Lenders, including the Revolving
Loan deemed to be made by Swing Line Lender, are not sufficient to repay in full
the Refunded Swing Line Loans. If any portion of any such amount paid (or deemed
to be paid) to Swing Line Lender should be recovered by or on behalf of Company
from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors
or otherwise, the loss of the amount so recovered shall be ratably shared among
all Lenders in the manner contemplated by subsection 10.5.
If for any reason Revolving Loans are not made pursuant to this
subsection 2.1A(iv) in an amount sufficient to repay any amounts owed to Swing
Line Lender in respect of any outstanding Swing Line Loans on or before the
third Business Day after demand for payment thereof by Swing Line Lender, each
Lender with a Revolving Loan Commitment shall be deemed to, and hereby agrees
to, have purchased a participation in such outstanding Swing Line Loans, and in
an amount equal to its Pro Rata Share of the applicable unpaid amount together
with accrued interest thereon. Upon one Business Day's notice from Swing Line
Lender, each such Lender shall deliver to Swing Line Lender an amount equal to
its respective participation in the applicable unpaid amount in same day funds
at the Funding and Payment Office. In order to evidence such participation each
such Lender agrees to enter into a participation agreement at the request of
Swing Line Lender in form and substance satisfactory to Swing Line Lender. In
the event any such Lender fails to make available to Swing Line Lender the
amount of such Lender's participation as provided in this paragraph, Swing Line
Lender shall be entitled to recover such amount on demand from such Lender
together with
40
interest thereon at the rate customarily used by Swing Line Lender for the
correction of errors among banks for three Business Days and thereafter at the
Base Rate, as applicable.
Notwithstanding anything contained herein to the contrary, (i) the
obligation of each Lender with a Revolving Loan Commitment to make Revolving
Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the
second preceding paragraph and each such Lender's obligation to purchase a
participation in any unpaid Swing Line Loans pursuant to the immediately
preceding paragraph shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (a) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against Swing Line Lender, Company or any other Person for any reason
whatsoever; (b) the occurrence or continuation of an Event of Default or a
Potential Event of Default; (c) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Company
or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan
Document by any party thereto; or (e) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; provided that no
--------
such Lender shall have any such obligation unless (x) Swing Line Lender believed
in good faith that all conditions under Section 4 to the making of the
applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, were
satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans
were made, or (y) such Lender had actual knowledge, by receipt of any notices
required to be delivered to such Lenders pursuant to subsection 6.1(ix) or
otherwise, that any such condition under Section 4 had not been satisfied and
such Lender failed to notify Swing Line Lender and Administrative Agent in
writing that it had no obligation to make Revolving Loans until such condition
was satisfied (any such notice to be effective as of the date of receipt thereof
by Swing Line Lender and Administrative Agent), or (z) the satisfaction of any
such condition under Section 4 not satisfied had been waived by Requisite
Lenders prior to or at the time such Refunded Swing Line Loans or other unpaid
Swing Line Loans were made; and (ii) Swing Line Lender shall not be obligated to
make any Swing Line Loans if it has elected not to do so after the occurrence
and during the continuation of a Potential Event of Default or Event of Default.
B. Borrowing Mechanics. Term Loans or Revolving Loans (including
-------------------
any such Loans made as Eurodollar Rate Loans with a particular Interest Period)
made on any Funding Date (other than Revolving Loans made pursuant to a request
by Swing Line Lender pursuant to subsection 2.1A(iv) for the purpose of repaying
any Refunded Swing Line Loans or Revolving Loans made pursuant to subsection
3.3B for the purpose of reimbursing any Issuing Lender for the amount of a
drawing or payment under a Letter of Credit issued by it) shall be in an
aggregate minimum amount of $500,000 and integral multiples of $250,000 in
excess of that amount. Swing Line Loans made on any Funding Date shall be in an
aggregate minimum amount of $250,000 and integral multiples of $100,000 in
excess of that amount. Whenever Company desires that Lenders make Term Loans or
Revolving Loans it shall deliver to Administrative Agent on behalf of Company a
Notice of Borrowing no later than 12:00 Noon (New York time), at least three
Business Days in advance of the proposed Funding Date in the case of a
Eurodollar Rate Loan, or at least one Business Day in advance of the proposed
Funding Date in the case of a Base Rate Loan. Whenever Company desires that
Swing Line Lender make a Swing Line Loan, it shall deliver to Administrative
Agent a Notice of Borrowing no later than 12:00 Noon (New York time) on the
proposed Funding Date. The Notice of Borrowing shall specify (i) the proposed
Funding Date (which shall be a Business Day), (ii) the amount and type
41
of Loans requested, (iii) in the case of Swing Line Loans, that such Loans shall
be Base Rate Loans, (iv) in the case of any Loans other than Swing Line Loans,
whether such Loans shall be Base Rate Loans or Eurodollar Rate Loans, and (v) in
the case of any Loans requested to be made as Eurodollar Rate Loans, the initial
Interest Period requested therefor. Term Loans and Revolving Loans may be
continued as or converted into Base Rate Loans and Eurodollar Rate Loans in the
manner provided in subsection 2.2D. In lieu of delivering the above-described
Notice of Borrowing, Company may give Administrative Agent telephonic notice by
the required time of any proposed borrowing under this subsection 2.1B; provided
--------
that such notice shall be promptly confirmed in writing by delivery of a Notice
of Borrowing to Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any liability
to Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of Company or
for otherwise acting in good faith under this subsection 2.1B, and upon funding
of Loans by Lenders in accordance with this Agreement pursuant to any such
telephonic notice Company shall have effected Loans hereunder.
Company shall notify Administrative Agent prior to the funding of any
Loans in the event that any of the matters to which Company is required to
certify in the applicable Notice of Borrowing are no longer true and correct as
of the applicable Funding Date, and the acceptance by Company of the proceeds of
any Loans shall constitute a re-certification by Company, as of the applicable
Funding Date, as to the matters to which Company is required to certify in the
applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Borrowing for a Eurodollar Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to make a borrowing in accordance
therewith.
C. Disbursement of Funds. All Term Loans and all Revolving Loans
---------------------
under this Agreement shall be made by Lenders simultaneously and proportionately
to their respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder nor shall the Commitment of any
Lender to make the particular type of Loan requested be increased or decreased
as a result of a default by any other Lender in that other Lender's obligation
to make a Loan requested hereunder. Promptly after receipt by Administrative
Agent of a Notice of Borrowing pursuant to subsection 2.1B (or telephonic notice
in lieu thereof), Administrative Agent shall notify each Lender or Swing Line
Lender, as the case may be, of the proposed borrowing and of the amount of such
Lender's Pro Rata Share of the applicable Loans.
Each Lender shall make the amount of its Loan available to
Administrative Agent not later than 12:00 Noon (New York time) on the applicable
Funding Date, and Swing Line Lender shall make the amount of its Swing Line Loan
available to Administrative Agent not later than 12:00 Noon (New York time) on
the applicable Funding Date, in each case in same day funds, at the Funding and
Payment Office. Except as provided in subsection 2.1A(iv) or subsection 3.3B
with respect to Revolving Loans used to repay Refunded Swing Line Loans or
42
to reimburse any Issuing Lender for the amount of an honored drawing or payment
under a Letter of Credit issued by it, upon satisfaction or waiver of the
conditions precedent specified in subsections 4.1 (in the case of Tranche B Term
Loans made on the Effective Date) and 4.2 (in the case of all Loans),
Administrative Agent shall make the proceeds of such Loans available to Company
on the applicable Funding Date by causing an amount of same day funds equal to
the proceeds of all such Loans received by Administrative Agent from Lenders or
Swing Line Lender, as the case may be, to be credited to the account of Company
at the Funding and Payment Office.
Unless Administrative Agent shall have been notified by any Lender
prior to the Funding Date for any Loans that such Lender does not intend to make
available to Administrative Agent the amount of such Lender's Loan requested on
such Funding Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Company a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the
Base Rate. If such Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall promptly
notify Company and Company shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at the
rate applicable to such Loan. Nothing in this subsection 2.1C shall be deemed to
relieve any Lender from its obligation to fulfill its Commitments hereunder or
to prejudice any rights that Company may have against any Lender as a result of
any default by such Lender hereunder.
D. The Register.
------------
(i) Administrative Agent shall maintain, at the address
referred to in subsection 10.8, a register for the recordation of the
names and addresses of Lenders and the Commitments and Loans of each
Lender from time to time (the "Register"). The Register shall be
available for inspection by Company or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(ii) Administrative Agent shall record in the Register the
Commitments and the outstanding Loans from time to time of each Lender
and each repayment or prepayment in respect of the principal amount of
the outstanding Loans of each Lender. Any such recordation shall be
conclusive and binding on Company and each Lender, absent manifest
error; provided, that failure to make any such recordation, or any
--------
error in such recordation, shall not affect Company's Obligations in
respect of the applicable Loans.
43
(iii) Each Lender shall record on its internal records
(including, without limitation, the Notes held by such Lender) the
amount of each Loan made by it and each payment in respect thereof.
Any such recordation shall be prima facie evidence of the amount of
such Loans; provided that failure to make any such recordation, or any
--------
error in such recordation, shall not affect Company's Obligations in
respect of the applicable Loans; and provided, further that in the
-------- -------
event of any inconsistency between the Register and any Lender's
records, the recordations in the Register shall govern, absent
manifest error.
(iv) Company, Agents and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of
the corresponding Commitments and Loans listed therein for all
purposes hereof, and no assignment or transfer of any Commitment or
Loan shall be effective, in each case unless an until an Assignment
Agreement effecting the assignment or transfer thereof shall have been
accepted by Administrative Agent and recorded in the Register as
provided in subsection 10.1B(ii). Prior to such recordation, all
amounts owed with respect to the applicable Commitment or Loan shall
be owed to the Lender listed in the Register as the owner thereof, and
any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is listed in
the Register as a Lender shall be conclusive and binding on any
subsequent holder, assignee or transferee of the corresponding
Commitments or Loans.
(v) Company hereby designates Chase, and any financial
institution serving as a successor Administrative Agent, to serve as
Company's agent solely for purposes of maintaining the Register as
provided in this subsection 2.1D, and Company hereby agrees that, to
the extent Chase serves in such capacity, Chase and its officers,
directors, employees, agents and affiliates shall constitute
Indemnities for all purposes under subsection 10.3.
E. Notes. Company shall execute and deliver on or before the
-----
Effective Date (i) to each requesting Lender (or to Administrative Agent for
that Lender) (a) a Tranche A Term Note substantially in the form of Exhibit IV
----------
annexed hereto, to evidence that Lender's Tranche A Term Loans in the principal
amount of that Lender's Tranche A Term Loans and with other appropriate
insertions, (b) a Tranche B Term Note substantially in the form of Exhibit V
---------
annexed hereto, to evidence that Lender's Tranche B Term Loans in the principal
amount of that Lender's Tranche B Term Loans and with other appropriate
insertions, and (c) a Revolving Note substantially in the form of Exhibit VI
----------
annexed hereto to evidence that Lender's Revolving Loans, in the principal
amount of that Lender's Revolving Loan Commitment and with other appropriate
insertions, and (ii) to Swing Line Lender, a Swing Line Note substantially in
the form of Exhibit VII annexed hereto to evidence Swing Line Lender's Swing
-----------
Line Loans, in the principal amount of the Swing Line Commitment and with other
appropriate insertions. The Notes and the Obligations evidenced thereby shall be
governed by, subject to and benefit from all of the terms and conditions of this
Agreement and the other Loan Documents and shall be guarantied and/or secured by
the Collateral as provided in the Loan Documents.
2.2 Interest on the Loans.
---------------------
44
A. Rate of Interest. Subject to the provisions of subsections 2.6
----------------
and 2.7, each Term Loan and each Revolving Loan shall bear interest on the
unpaid principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base Rate or
the Adjusted Eurodollar Rate, as the case may be, plus the Applicable Margin.
Subject to the provisions of subsection 2.7, each Swing Line Loan shall bear
interest on the unpaid principal amount thereof from the date made through
maturity (whether by acceleration or otherwise) at a rate determined by
reference to the Base Rate, plus the Applicable Margin. The applicable basis for
determining the rate of interest with respect to any Loan shall be selected by
Company initially at the time a Notice of Borrowing is given with respect to
such Loan pursuant to subsection 2.1B. The basis for determining the interest
rate with respect to any Term Loan or any Revolving Loan may be changed from
time to time pursuant to subsection 2.2D. If on any day any Term Loan or
Revolving Loan is outstanding with respect to which notice has not been
delivered to Administrative Agent in accordance with the terms of this Agreement
specifying the applicable basis for determining the rate of interest, then for
that day that Loan shall bear interest determined by reference to the Base Rate,
plus the Applicable Margin for Base Rate Loans.
Subject to the provisions of subsections 2.2E and 2.7, the Term Loans
and the Revolving Loans shall bear interest through maturity as follows:
(i) if a Base Rate Loan, then at the sum of the Base Rate
plus the Applicable Margin for Base Rate Loans; or
----
(ii) if a Eurodollar Rate Loan, then at the sum of the
Adjusted Eurodollar Rate plus the Applicable Margin for Eurodollar
Loans.
Subject to the provisions of subsections 2.2E and 2.7, the Swing Line
Loans shall bear interest through maturity at the sum of the Base Rate plus the
----
Applicable Margin with respect to Base Rate Revolving Loans.
B. Interest Periods. In connection with each Eurodollar Rate Loan,
----------------
Company may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"Interest Period") to be applicable to such Loan, which Interest Period shall
be, at Company's option, either a one-, two-, three- or six-month period;
provided that:
--------
(i) the initial Interest Period for any Eurodollar Rate
Loan shall commence on the Funding Date in respect of such Loan, in
the case of a Loan initially made as a Eurodollar Rate Loan, or on the
date specified in the applicable Notice of Conversion/Continuation, in
the case of a Loan converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a Eurodollar Rate Loan continued as such pursuant to a
Notice of Conversion/ Continuation, each successive Interest Period
shall commence on the day on which the next preceding Interest Period
expires;
45
(iii) if an Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided that, if any Interest Period
--------
would otherwise expire on a day that is not a Business Day but is a
day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding
Business Day;
(iv) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (iii) of this subsection 2.2B, end on
the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the
Tranche A Term Loans shall extend beyond June 30, 2005, no interest
period with respect to any portion of the Tranche B Term Loans shall
extend beyond September 30, 2006, and no Interest Period with respect
to any portion of the Revolving Loans shall extend beyond the
Revolving Loan Commitment Termination Date;
(vi) no Interest Period with respect to any portion of the
Term Loans shall extend beyond a date on which Company is required to
make a scheduled payment of principal of such Term Loans unless the
sum of (a) the aggregate principal amount of such Term Loans that are
Base Rate Loans plus (b) the aggregate principal amount of such Term
----
Loans that are Eurodollar Rate Loans with Interest Periods expiring on
or before such date equals or exceeds the principal amount required to
be paid on the Term Loans on such date;
(vii) no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the date on which a permanent
reduction of the Revolving Loan Commitments is scheduled to occur
unless the sum of (a) the aggregate principal amount of Revolving
Loans that are Base Rate Loans plus (b) the aggregate principal amount
----
of Revolving Loans that are Eurodollar Rate Loans with Interest
Periods expiring on or before such date plus (c) the excess of the
----
Revolving Loan Commitments then in effect over the aggregate principal
amount of Revolving Loans then outstanding equals or exceeds the
permanent reduction of the Revolving Loan Commitments that is
scheduled to occur on such date;
(viii) there shall be no more than ten (10) Interest Periods
outstanding at any time; and
(ix) in the event Company fails to specify an Interest
Period for any Eurodollar Rate Loan in the applicable Notice of
Borrowing or Notice of Conversion/Continuation, Company shall be
deemed to have selected an Interest Period of one month.
46
C. Interest Payments. Subject to the provisions of subsection 2.2E,
-----------------
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); provided that in the event that any Swing Line Loans, any Revolving
--------
Loans or any Term Loans that are Base Rate Loans are prepaid pursuant to
subsection 2.4B(i), interest accrued on such Swing Line Loans, Revolving Loans
or Term Loans through the date of such prepayment shall be payable on the next
succeeding Interest Payment Date applicable to Base Rate Loans (or, if earlier,
at final maturity).
D. Conversion or Continuation. Subject to the provisions of
--------------------------
subsection 2.6, Company shall have the option (i) to convert at any time all or
any part of its outstanding Term Loans or Revolving Loans equal to $500,000 and
integral multiples of $250,000 in excess of that amount from Loans bearing
interest at a rate determined by reference to one basis to Loans bearing
interest at a rate determined by reference to an alternative basis or (ii) upon
the expiration of any Interest Period applicable to a Eurodollar Rate Loan, to
continue all or any portion of such Loan equal to $500,000 and integral
multiples of $250,000 in excess of that amount as a Eurodollar Rate Loan;
provided, however, that a Eurodollar Rate Loan may only be converted into a Base
-------- -------
Rate Loan on the expiration date of an Interest Period applicable thereto.
Company shall deliver a Notice of Conversion/Continuation to
Administrative Agent no later than 12:00 Noon (New York time) at least one
Business Day in advance of the proposed conversion date (in the case of a
conversion to a Base Rate Loan), and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). A Notice of Conversion/Continuation
shall specify (i) the proposed conversion/continuation date (which shall be a
Business Day), (ii) the amount and type of the Loan to be converted/continued,
(iii) the nature of the proposed conversion/continuation, (iv) in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan, the requested
Interest Period, and (v) in the case of a conversion to, or a continuation of, a
Eurodollar Rate Loan, that no Potential Event of Default or Event of Default has
occurred and is continuing. In lieu of delivering the above-described Notice of
Conversion/Continuation, Company may give Administrative Agent telephonic notice
by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed in
--------
writing by delivery of a Notice of Conversion/Continuation to Administrative
Agent on or before the proposed conversion/continuation date.
Neither Administrative Agent nor any Lender shall incur any liability
to Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of Company or for
otherwise acting in good faith under this subsection 2.2D, and upon conversion
or continuation of the applicable basis for determining the interest rate with
respect to any Loans in accordance with this Agreement pursuant to any such
telephonic notice Company shall have effected a conversion or continuation, as
the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Conversion/Continuation for conversion to, or continuation of, a
Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable
on and after the related Interest Rate
47
Determination Date, and Company shall be bound to effect a conversion or
continuation in accordance therewith.
E. Post-Default Interest. Upon the occurrence and during the
---------------------
continuation of any Event of Default, the outstanding principal amount of all
Loans and, to the extent permitted by applicable law, any interest payments
thereon not paid when due and any fees and other amounts then due and payable
hereunder, shall thereafter bear interest (including post-petition interest in
any proceeding under the Bankruptcy Code, or other applicable bankruptcy or
insolvency laws) payable upon demand at a rate that is 2% per annum in excess of
the interest rate otherwise payable under this Agreement with respect to the
applicable Loans (or, in the case of any such fees and other amounts, at a rate
which is 2% per annum in excess of the interest rate otherwise payable under
this Agreement for Revolving Loans bearing interest at a rate determined by
reference to the Base Rate); provided that, in the case of Eurodollar Rate
--------
Loans, upon the expiration of the Interest Period in effect at the time any such
increase in interest rate is effective such Eurodollar Rate Loans shall
thereupon become Base Rate Loans and shall thereafter bear interest payable upon
demand at a rate equal to 2% per annum in excess of the interest rate otherwise
payable under this Agreement for Base Rate Loans that are Term Loans or
Revolving Loans, as applicable. Payment or acceptance of the increased rates of
interest provided for in this subsection 2.2E is not a permitted alternative to
timely payment and shall not constitute a waiver of any Event of Default or
otherwise prejudice or limit any rights or remedies of any Agent or Lender.
F. Computation of Interest. Interest on Loans shall be computed
-----------------------
on the basis of a 360-day year and for the actual number of days elapsed in the
period during which it accrues. In computing interest on any Loan, the date of
the making of such Loan or the first day of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted from a Eurodollar
Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate
Loan, as the case may be, shall be included, and the date of payment of such
Loan or the expiration date of an Interest Period applicable to such Loan or,
with respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the
date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the
case may be, shall be excluded; provided that if a Loan is repaid on the same
--------
day on which it is made, one day's interest shall be paid on that Loan.
2.3 Fees.
----
A. Commitment Fees. Company agrees to pay to Administrative Agent,
---------------
for distribution to each Lender having a Revolving Loan Commitment, in
proportion to that Lender's Pro Rata Share of the Revolving Loan Commitments,
commitment fees ("Commitment Fees"; each, a "Commitment Fee") for the period
from and including the Existing Effective Date to and excluding the Revolving
Loan Commitment Termination Date equal to (i) the average of the daily excess of
the Revolving Loan Commitments over the sum of (x) the aggregate principal
amount of Revolving Loans outstanding (but not any Swing Line Loans
outstanding), and (y) the Letter of Credit Usage multiplied by (ii) the
-------------
Applicable Margin for Commitment Fees. All such Commitment Fees shall be
calculated on the basis of a 360-day year and the actual number of days elapsed
and shall be payable quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year and on the Revolving Loan Commitment Termination Date.
48
B. Other Fees. Company agrees to pay to Agents such other fees in
----------
the amounts and at the times separately agreed upon between Company and the
applicable Agents.
2.4 Repayments, Prepayments and Reductions in Revolving Loan Commitments;
General Provisions Regarding Payments; Application of Proceeds of Collateral and
Payments under Guaranties.
----------
A. Scheduled Payments of Term Loans and Scheduled Reductions of
-------------
Revolving Loan Commitments.
--------------------------
(i) Scheduled Payments of Tranche A Term Loans. Company
------------------------------------------
shall make principal payments on the Tranche A Term Loans in
installments on the dates and in the amounts set forth below:
-------------------------------------------------------------
SCHEDULED REPAYMENT
DATE OF TERM LOANS
-------------------------------------------------------------
December 31, 1998 $ 5,000,000
-------------------------------------------------------------
March 31, 1999 $ 5,000,000
June 30, 1999 $ 5,000,000
September 30, 1999 $ 5,000,000
December 31, 1999 $ 5,000,000
-------------------------------------------------------------
March 31, 2000 $ 5,000,000
June 30, 2000 $ 5,000,000
September 30, 2000 $ 7,500,000
December 31, 2000 $ 7,500,000
-------------------------------------------------------------
March 31, 2001 $ 7,500,000
June 30, 2001 $ 7,500,000
September 30, 2001 $ 7,500,000
December 31, 2001 $ 7,500,000
-------------------------------------------------------------
March 31, 2002 $ 7,500,000
June 30, 2002 $ 7,500,000
September 30, 2002 $10,000,000
December 31, 2002 $10,000,000
-------------------------------------------------------------
March 31, 2003 $10,000,000
June 30, 2003 $10,000,000
September 30, 2003 $10,000,000
December 31, 2003 $10,000,000
-------------------------------------------------------------
March 31, 2004 $10,000,000
June 30, 2004 $10,000,000
September 30, 2004 $12,500,000
December 31, 2004 $12,500,000
=============================================================
49
-------------------------------------------------------------
SCHEDULED REPAYMENT
DATE OF TERM LOANS
-------------------------------------------------------------
March 31, 2005 $12,500,000
June 30, 2005 $12,500,000
=============================================================
provided that the scheduled installments of principal of the Tranche A
--------
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche A Term Loans in
accordance with subsection 2.4C; and provided further, that the final
----------------
installment payable by Company in respect of the Tranche A Term Loans
shall be in an amount, if such amount is different from that specified
above, sufficient to repay all amounts owing by Company under this
Agreement with respect to the Tranche A Term Loans.
(ii) Scheduled Payments of Tranche B Term Loans. Company
------------------------------------------
shall make principal payments on the Tranche B Term Loans in
installments on the dates and in the amounts set forth below:
-------------------------------------------------------------
SCHEDULED REPAYMENT
DATE OF TERM LOANS
-------------------------------------------------------------
June 30, 1999 $ 125,000
September 30, 1999 $ 125,000
December 31, 1999 $ 125,000
-------------------------------------------------------------
March 31, 2000 $ 125,000
June 30, 2000 $ 125,000
September 30, 2000 $ 125,000
December 31, 2000 $ 125,000
-------------------------------------------------------------
March 31,2001 $ 125,000
June 30, 2001 $ 125,000
September 30, 2001 $ 125,000
December 31, 2001 $ 125,000
-------------------------------------------------------------
March 31,2002 $ 125,000
June 30, 2002 $ 125,000
September 30, 2002 $ 125,000
December 31, 2002 $ 125,000
-------------------------------------------------------------
March 31,2003 $ 125,000
June 30, 2003 $ 125,000
September 30, 2003 $ 125,000
December 31, 2003 $ 125,000
-------------------------------------------------------------
March 31,2004 $ 125,000
June 30, 2004 $ 125,000
September 30, 2004 $ 125,000
December 31, 2004 $ 125,000
=============================================================
50
-------------------------------------------------------------
SCHEDULED REPAYMENT
DATE OF TERM LOANS
-------------------------------------------------------------
March 31,2005 $ 125,000
June 30, 2005 $ 125,000
September 30, 2005 $ 125,000
December 31, 2005 $ 125,000
-------------------------------------------------------------
March 31, 2006 $32,208,000
June 20, 2006 $32,208,000
September 30, 2006 $32,209,000
=============================================================
provided that he scheduled installments of principal of the Tranche B
--------
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche B Term Loans in
accordance with subsection 2.4C; and provided further, that the final
----------------
installment payable by Company in respect of the Tranche B Term Loans
shall be in an amount, if such amount is different from that specified
above, sufficient to repay all amounts owing by Company under this
Agreement with respect to the Tranche B Term Loans.
(iii) Scheduled Reductions of Revolving Loan Commitments.
--------------------------------------------------
Except as set forth in the following proviso, the Revolving Loan
Commitments shall be permanently reduced on the date and in the
amount set forth below:
-------------------------------------------------------------
SCHEDULED REPAYMENT
DATE OF TERM LOANS
-------------------------------------------------------------
June 30, 2005 $175,000,000
-------------------------------------------------------------
and provided further, that the scheduled reductions of the Revolving
----------------
Loan Commitments set forth above shall be reduced in connection with
any voluntary or mandatory reductions of the Revolving Loan
Commitments in accordance with subsection 2.4C.
B. Prepayments and Voluntary Reductions in Revolving Loan
--------------
Commitments.
-----------
(i) Voluntary Prepayments. Company may, upon written or
---------------------
telephonic notice to Administrative Agent on or prior to 12:00
Noon (New York time) on the date of prepayment, which notice, if
telephonic, shall be promptly confirmed in writing, at any time
and from time to time prepay, without premium or penalty, any
Swing Line Loan on any Business Day in whole or in part in an
aggregate minimum amount of $250,000 and integral multiples of
$100,000 in excess of that amount. In addition, so long as no
Swing Line Loans are then outstanding, Company may, upon not less
than one Business Day's prior written or telephonic notice, in
the case of Base Rate Loans, and three Business Days' prior
written or telephonic notice, in the case of Eurodollar Rate
Loans, in
51
each case confirmed in writing to Administrative Agent (which
notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and from
time to time prepay, without premium or penalty, the Loans other
than Swing Line Loans on any Business Day in whole or in part in
an aggregate minimum amount of $500,000 and integral multiples of
$250,000 in excess of that amount; provided, however, that
-------- -------
prepayment of a Eurodollar Rate Loan on any day other than the
expiration of the Interest Period applicable thereto shall be
subject to compliance with subsection 2.6D. Notice of prepayment
having been given as aforesaid, the Loans shall become due and
payable on the prepayment date specified in such notice and in
the aggregate principal amount specified therein. Any voluntary
prepayments pursuant to this subsection 2.4B(i) shall be applied
as specified in subsection 2.4C.
(ii) Voluntary Reductions of Revolving Loan Commitments.
--------------------------------------------------
Company may, upon not less than three Business Days' prior
written or telephonic notice confirmed in writing to
Administrative Agent (which notice Administrative Agent will
promptly transmit by telefacsimile or telephone to each Lender),
at any time and from time to time terminate in whole or
permanently reduce in part, without premium or penalty, the
Revolving Loan Commitments in an amount up to the amount by which
the Revolving Loan Commitments exceed the Total Utilization of
Revolving Loan Commitments at the time of such proposed
termination or reduction; provided that any such partial
--------
reduction of the Revolving Loan Commitments shall be in an
aggregate minimum amount of $500,000 and integral multiples of
$250,000 in excess of that amount. Company's notice to
Administrative Agent shall designate the date (which shall be a
Business Day) of such termination or reduction and the amount of
any partial reduction, and such termination or reduction of the
Revolving Loan Commitments shall be effective on the date
specified in such notice and shall reduce the Revolving Loan
Commitment of each Lender proportionately to its Pro Rata Share.
Any such voluntary reduction of the Revolving Loan Commitments
shall be applied as specified in subsection 2.4C.
(iii) Mandatory Prepayments and Mandatory Reductions of
-------------------------------------------------
Revolving Loan Commitments.
--------------------------
The Loans shall be prepaid and the Revolving Loan Commitments shall be
reduced in the manner provided in subsection 2.4C upon the occurrence of the
following circumstances:
(a) Prepayments and Reductions from Asset Sales. No later than the
-------------------------------------------
second Business Day following the date of receipt by Company or any of its
Subsidiaries of the Net Cash Proceeds of any Asset Sale (other than any
portion of such Net Cash Proceeds that is reinvested (or scheduled for
reinvestment) in assets of the general type used in the business of Company
and its Subsidiaries within 360 days from the date of receipt of such Net
Cash Proceeds (such Net Cash Proceeds that are reinvested or to be
reinvested not to exceed $55,000,000 in aggregate amount in any Fiscal
Year)), Company shall prepay the Loans (and/or the Revolving Loan
Commitments shall be reduced) in an
52
aggregate amount equal to such Net Cash Proceeds; provided, however, that
-------- -------
Company may not reinvest (or schedule for reinvestment) Net Cash Proceeds
upon the occurrence and during the continuation of an Event of Default.
Company shall, no later than 360 days after receipt of any such Net Cash
Proceeds that have not theretofore been applied to the Obligations, make an
additional prepayment of the Loans (and/or the Revolving Loan Commitments
shall be reduced) in the full amount of all such proceeds that have not
therefore been so reinvested. Concurrently with any prepayment of the Loans
and/or reduction of the Commitments pursuant to this subsection
2.4B(iii)(a), Company shall deliver to Administrative Agent an Officer's
Certificate demonstrating the derivation of the Net Cash Proceeds of the
correlative Asset Sale from the gross sales price thereof. In the event
that Company shall, at any time after receipt of Net Cash Proceeds of any
Asset Sale requiring a prepayment or a reduction of the Revolving Loan
Commitments pursuant to this subsection 2.4B(iii)(a), determine that the
prepayments and/or reductions of the Revolving Loan Commitments previously
made in respect of such Asset Sale were in an aggregate amount less than
that required by the terms of this subsection 2.4B(iii)(a), Company shall
promptly cause to be made an additional prepayment of the Loans (and/or
reduction in the Revolving Loan Commitments) in an amount equal to the
amount of any such deficit, and Company shall concurrently therewith
deliver to Administrative Agent an Officer's Certificate demonstrating the
derivation of the additional Net Cash Proceeds resulting in such deficit.
(b) Prepayments and Reductions Due to Issuance of Debt. On or prior
--------------------------------------------------
to the first Business Day after receipt by Company or any of its
Subsidiaries of any proceeds of any Indebtedness (other than the Loans and
any other Indebtedness permitted under subsection 7.1(i), (ii), (iii),
(iv), (v), (vii) or (viii)), Company shall prepay the Loans (and/or the
Revolving Loan Commitments shall be reduced) in an amount equal to the
amount of such proceeds; provided, however, that such proceeds from
-------- -------
Indebtedness permitted under subsection 7.1(vi) shall not be applied to
prepay Loans pursuant to this subsection if and to the extent such proceeds
are applied by Company to repay the Indebtedness with respect to the
Subordinated Notes; and provided further, that payment or acceptance of the
----------------
amounts provided for in this subsection 2.4B(iii)(b) shall not constitute a
waiver of any Event of Default resulting from the incurrence of such
Indebtedness or otherwise prejudice any rights or remedies of Agents or
Lenders.
(c) Prepayments and Reductions Due to Issuance of Equity Securities.
---------------------------------------------------------------
At any time the Leverage Ratio is greater than 3.25:1.00, on or prior to
the first Business Day after receipt by Company or any of its Subsidiaries
of any Equity Proceeds after the Effective Date, Company shall prepay the
Loans (and/or the Revolving Loan Commitments shall be reduced) in an amount
equal to 50% of such Equity Proceeds; provided, however, that such Equity
-------- -------
Proceeds shall not be applied to prepay Loans pursuant to this subsection
if and to the extent such Equity Proceeds were derived (x) directly or
indirectly from a sale of Securities to employees or directors of Company
and its Subsidiaries pursuant to any employee stock option or stock
purchase plan or other employee benefit plan, and (y) from sales of
Securities to management officers and directors after the Effective Date to
the extent the consideration paid therefor does not exceed $5,000,000.
53
(d) Prepayments and Reductions from Insurance and Condemnation
----------------------------------------------------------
Proceeds. No later than the second Business Day following the date of
--------
receipt by Company or any of its Subsidiaries of any cash payments under
any of the casualty insurance policies covering damage to or loss of
property maintained pursuant to subsection 6.4 resulting from damage to or
loss of all or any portion of the Collateral or any other tangible asset
(net of actual and documented reasonable costs incurred by Company or any
of its Subsidiaries in connection with adjustment and settlement thereof,
"Insurance Proceeds") or any proceeds resulting from the taking of assets
by the power of eminent domain, condemnation or otherwise (net of actual
and documented reasonable costs incurred by Company or any of its
Subsidiaries in connection with adjustment and settlement thereof,
"Condemnation Proceeds") (other than, if no Event of Default shall have
occurred and be continuing or shall be caused thereby, any portion of any
such proceeds that is reinvested (or scheduled for reinvestment) in assets
of the general type used in the business of Company and its Subsidiaries
within 360 days from the date of receipt of such proceeds), Company shall
prepay the Loans (and/or the Revolving Loan Commitments shall be reduced)
in the amount of such proceeds not so reinvested (or scheduled for such
reinvestment). Company shall, no later than 360 days after receipt of any
such Insurance Proceeds or Condemnation Proceeds that have not theretofore
been applied to the Obligations, make an additional prepayment of the Loans
(and/or the Revolving Loan Commitments shall be reduced) in the full amount
of all such proceeds that have not therefore been reinvested in such
assets.
(e) Prepayments and Reductions from Consolidated Excess Cash Flow. In
-------------------------------------------------------------
the event that there shall be Consolidated Excess Cash Flow for any Fiscal
Year (commencing with the Fiscal Year ending in December 1998), Company
shall, no later than 100 days after the end of such Fiscal Year, prepay the
Loans (and/or the Revolving Loan Commitments shall be reduced) in an
aggregate amount equal to 50% of such Consolidated Excess Cash Flow for
such Fiscal Year; provided however, that if the Leverage Ratio is less than
----------------
or equal to 4.00:1.00, then such prepayment of the Loans and/or reduction
of the Revolving Loan Commitments shall be in an aggregate amount equal to
25% of such Consolidated Excess Cash Flow for such Fiscal Year.
(f) Prepayments Due to Reductions or Restrictions of Revolving Loan
---------------------------------------------------------------
Commitments. Company shall prepay the Swing Line Loans and/or the Revolving
-----------
Loans from time to time to the extent necessary so that (y) the Total
Utilization of Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitments then in effect, and (z) the aggregate principal
amount of all outstanding Swing Line Loans shall not at any time exceed the
Swing Line Loan Commitment then in effect. All Swing Line Loans shall be
prepaid in full prior to the prepayment of any Revolving Loans pursuant to
this subsection 2.4B(iii)(f).
54
C. Application of Prepayments and Unscheduled Reductions of
-------------
Revolving Loan Commitments.
--------------------------
(i) Application of Voluntary Prepayments by Type of Loans.
-----------------------------------------------------
Any voluntary prepayments pursuant to subsection 2.4B(i) shall be
applied: first to repay outstanding Swing Line Loans to the full
-----
extent thereof, second to repay outstanding Revolving Loans to the
------
full extent thereof, and third, to repay outstanding Tranche A Term
-----
Loans and Tranche B Term Loans pro rata and shall be applied to the
remaining installments thereof on a pro rata basis to the full extent
thereof.
(ii) Application of Mandatory Prepayments by Type of Loans.
-----------------------------------------------------
Any amount (the "Applied Amount") required to be applied as a
mandatory prepayment of the Loans and/or a reduction of the Revolving
Loan Commitments pursuant to subsections 2.4B(iii)(a)-(e) shall be
applied: first to prepay the Tranche A Term Loans and Tranche B Term
-----
Loans pro rata and shall be applied to the remaining installments
thereof on a pro rata basis to the full extent thereof, second, to the
------
extent of any remaining portion of the Applied Amount, to prepay the
Swing Line Loans to the full extent thereof and to permanently reduce
the Revolving Loan Commitments by the amount of such prepayment,
third, to the extent of any remaining portion of the Applied Amount,
-----
to prepay the Revolving Loans to the full extent thereof and to
further permanently reduce the Revolving Loan Commitments by the
amount of such prepayment, and fourth, to the extent of any remaining
------
portion of the Applied Amount, to further permanently reduce the
Revolving Loan Commitments to the full extent thereof; provided
--------
however, that so long as any Tranche A Term Loans are outstanding,
-------
each Lender of Tranche B Term Loans shall have the right to refuse all
or any portion of any mandatory prepayment allocable to it, and the
amount so refused shall be applied to prepay the Tranche A Term Loans.
Notwithstanding the foregoing or anything herein to the contrary, no
portion of the proceeds of Indebtedness permitted under subsection
7.1(vi) which are applied to prepay the Loans shall be applied to
permanently reduce the Revolving Loan Commitments.
(iii) Application of Prepayments of Term Loans to the
-----------------------------------------------
Scheduled Installments of Principal Thereof. Any prepayments of the
-------------------------------------------
Tranche A Term Loans or Tranche B Term Loans pursuant to subsection
2.4B(i) or 2.4B(iii) shall be applied to prepay the Tranche A Term
Loans or Tranche B Term Loans on a pro rata basis in accordance with
the outstanding principal amounts thereof. Any mandatory prepayments
applied to the Tranche A Term Loans or Tranche B Term Loans pursuant
to this subsection shall be applied on a pro rata basis (in accordance
with the respective outstanding principal amounts thereof) to each
scheduled installment of principal of the Tranche A Term Loans or
Tranche B Term Loans set forth in subsections 2.4A(i) or 2.4A(ii),
respectively, that is unpaid at the time of such prepayment.
55
(iv) Application of Prepayments to Base Rate Loans and
-------------------------------------------------
Eurodollar Rate Loans. Considering Term Loans and Revolving Loans
---------------------
being prepaid separately, any prepayment thereof shall be applied
first to Base Rate Loans to the full extent thereof before application
to Eurodollar Rate Loans, in each case in a manner which minimizes the
amount of any payments required to be made by Company pursuant to
subsection 2.6D.
(v) Application of Unscheduled Reductions of Revolving
--------------------------------------------------
Loan Commitments. Any voluntary or mandatory reduction of the
----------------
Revolving Loan Commitments pursuant to subsection 2.4B(ii) or
2.4B(iii) shall be applied to reduce the scheduled reductions of the
Revolving Loan Commitments set forth in subsection 2.4A(iii) in
reverse chronological order.
D. Application of Proceeds of Collateral and Payments Under
-----------------------------
Guaranties.
----------
(i) Application of Proceeds of Collateral. Except as
-------------------------------------
provided in subsection 2.4B(iii)(a) with respect to prepayments from
Net Cash Proceeds of Asset Sales, all proceeds received by
Administrative Agent in respect of any sale of, collection from, or
other realization upon all or any part of the Collateral under any
Collateral Document may, in the discretion of Administrative Agent, be
held by Administrative Agent as Collateral for, and/or (then or at any
time thereafter) applied in full or in part by Administrative Agent
against, the applicable Secured Obligations (as defined in such
Collateral Document) in the following order of priority:
(a) To the payment of all costs and expenses of such sale, collection
or other realization, including without limitation reasonable compensation
to Administrative Agent and its agents and counsel, and all other
reasonable expenses, liabilities and advances made or incurred by
Administrative Agent in connection therewith, and all amounts for which
Administrative Agent is entitled to indemnification under such Collateral
Document and all advances made by Administrative Agent thereunder for the
account of the applicable Loan Party, and to the payment of all reasonable
costs and expenses paid or incurred by Administrative Agent in connection
with the exercise of any right or remedy under such Collateral Document,
all in accordance with the terms of this Agreement and such Collateral
Document;
(b) thereafter, to the extent of any excess such proceeds, to the
payment of all other such Secured Obligations for the ratable benefit of
the holders thereof; and
(c) thereafter, to the extent of any excess such proceeds, to the
payment to or upon the order of such Loan Party or to whosoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
(ii) Application of Payments Under Guaranties. All payments
----------------------------------------
received by Administrative Agent under any Guaranty shall be applied
56
promptly from time to time by Administrative Agent in the following
order of priority:
(a) To the payment of the reasonable costs and expenses of any
collection or other realization under such Guaranty, including without
limitation reasonable compensation to Administrative Agent and its agents
and counsel, and all expenses, liabilities and advances made or incurred by
Administrative Agent in connection therewith, all in accordance with the
terms of this Agreement and such Guaranty;
(b) thereafter, to the extent of any excess of such payments, to the
payment of all other Guarantied Obligations (as defined in such Guaranty)
for the ratable benefit of the holders thereof; and
(c) thereafter, to the extent of any excess of such payments, to the
payment the applicable Subsidiary Guarantor or to whosoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may
direct.
E. General Provisions Regarding Payments.
-------------------------------------
(i) Manner and Time of Payment. All payments by Company of
--------------------------
principal, interest, fees and other Obligations hereunder and under
the Notes shall be made in same day funds and without defense, setoff
or counterclaim, free of any restriction or condition, and delivered
to Administrative Agent not later than 12:00 Noon (New York time) on
the date due at the Funding and Payment Office for the account of
Lenders; funds received by Administrative Agent after that time on
such due date shall be deemed to have been paid by Company on the next
succeeding Business Day. Company hereby authorizes Administrative
Agent to charge its accounts with such Administrative Agent in order
to cause timely payment to be made to Administrative Agent of all
principal, interest, fees and expenses due hereunder (subject to
sufficient funds being available in its accounts for that purpose).
(ii) Application of Payments to Principal and Interest.
-------------------------------------------------
Except as provided in subsection 2.2C, all payments in respect of the
principal amount of any Loan shall include payment of accrued interest
on the principal amount being repaid or prepaid, and all such payments
(and in any event any payments made in respect of any Loan on a date
when interest is due and payable with respect to such Loan) shall be
applied to the payment of interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and
-------------------------
interest payments shall be apportioned among all outstanding Loans to
which such payments relate, in each case proportionately to Lenders'
respective Pro Rata Shares. Administrative Agent shall promptly
distribute to each Lender, at its applicable Lending Office specified
on Schedule 2.1 or at such other address as such Lender may request,
------------
its Pro Rata Share of all such payments received by Administrative
Agent and the commitment fees of such Lender when received by
Administrative Agent pursuant to subsection 2.3. Notwithstanding the
foregoing
57
provisions of this subsection 2.4E(iii) if, pursuant to the provisions
of subsection 2.6C, any Notice of Conversion/Continuation is withdrawn
as to any Affected Lender or if any Affected Lender makes Base Rate
Loans in lieu of its Pro Rata Share of any Eurodollar Rate Loans,
Administrative Agent shall give effect thereto in apportioning
payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be
-------------------------
made hereunder shall be stated to be due on a day that is not a
Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder or of the commitment
fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before
-------------------
disposing of any Note held by it, or any part thereof (other than by
granting participations therein), that Lender will make a notation
thereon of all Loans evidenced by that Note and all principal payments
previously made thereon and of the date to which interest thereon has
been paid; provided that the failure to make (or any error in the
--------
making of) a notation of any Loan made under such Note shall not limit
or otherwise affect the obligations of Company hereunder or under such
Note with respect to any Loan or any payments of principal or interest
on such Note.
2.5 Use of Proceeds.
---------------
A. Tranche B Term Loans. The proceeds of the Tranche B Term Loans
--------------------
shall be applied to (i) finance the Sea Coast Acquisition, (ii) pay related fees
and expenses in connection therewith and (iii) reduce outstandings (but not
reduce the Revolving Credit Commitments) under the Revolving Credit Facility.
B. Revolving Loans; Swing Line Loans. The proceeds of the
---------------------------------
Revolving Loans and any Swing Line Loans have been and shall be applied by
Company to finance expenditures which are included in the definition of
Consolidated Capital Expenditures and for working capital and general corporate
purposes, including acquisitions in accordance with subsection 7.7(vi), and
which may include the making of intercompany loans to any of Company's Wholly
Owned Subsidiaries, in accordance with subsection 7.1(iv), for their own working
capital and general corporate purposes.
C. Compliance With Laws. Company hereby undertakes that no portion
--------------------
of the proceeds of any Loans or other extensions of credit under this Agreement
shall be used by any Loan Party in any manner which would be illegal under, or
which would cause the invalidity or unenforceability (in each case in whole or
in part) of any Loan Document under, any applicable law.
D. Margin Regulations. Without limiting the generality of
------------------
subsection 2.5C, no portion of the proceeds of any borrowing under this
Agreement shall be used by Company or any of its Subsidiaries in any manner that
might cause the borrowing or the application of such proceeds to violate
Regulation U, Regulation T or Regulation X of the Board of Governors of the
58
Federal Reserve System or any other regulation of such Board or to violate the
Exchange Act, in each case as in effect on the date or dates of such borrowing
and such use of proceeds.
2.6 Special Provisions Governing Eurodollar Rate Loans.
--------------------------------------------------
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to Eurodollar Rate
Loans as to the matters covered:
A. Determination of Applicable Interest Rate. As soon as
-----------------------------------------
practicable after 11:00 A. M. (New York time) on each Interest Rate
Determination Date, Administrative Agent shall determine (which determination
shall, absent manifest error, be final, conclusive and binding upon all parties)
the interest rate that shall apply to the Eurodollar Rate Loans for which an
interest rate is then being determined for the applicable Interest Period and
shall promptly give notice thereof (in writing or by telephone confirmed in
writing) to Company and each Lender.
B. Inability to Determine Applicable Interest Rate. In the
-----------------------------------------------
event that Administrative Agent shall have reasonably determined (which
determination shall be final and conclusive and binding upon all parties
hereto), on any Interest Rate Determination Date with respect to any Eurodollar
Rate Loans, that by reason of circumstances arising after the date of this
Agreement affecting the London interbank market, adequate and fair means do not
exist for ascertaining the interest rate applicable to such Loans on the basis
provided for in the definition of Adjusted Eurodollar Rate, Administrative Agent
shall on such date give notice (by telecopy or by telephone confirmed in
writing) to Company and each Lender of such determination, whereupon (i) no
Loans may be made as, or converted to, Eurodollar Rate Loans, until such time as
Administrative Agent notifies Company and Lenders that the circumstances giving
rise to such notice no longer exist (such notification not to be unreasonably
withheld or delayed) and (ii) any Notice of Borrowing or Notice of
Conversion/Continuation given by Company with respect to the Loans in respect of
which such determination was made shall be deemed to be rescinded by Company.
C. Illegality or Impracticability of Eurodollar Rate Loans.
-------------------------------------------------------
In the event that on any date any Lender shall have reasonably determined (which
determination shall be final and conclusive and binding upon all parties hereto
but shall be made only after consultation with Company and Administrative Agent)
that the making, maintaining or continuation of its Eurodollar Rate Loans (i)
has become unlawful as a result of compliance by such Lender in good faith with
any law, treaty, governmental rule, regulation, guideline or order (or would
conflict with any such treaty, governmental rule, regulation, guideline or order
not having the force of law even though the failure to comply therewith would
not be unlawful) or (ii) has become impracticable, or would cause such Lender
material hardship, as a result of contingencies occurring after the date of this
Agreement which materially and adversely affect the London interbank market,
then, and in any such event, such Lender shall be an "Affected Lender" and it
shall on that day give notice (by telecopy or by telephone confirmed in writing)
to Company and Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each other Lender). Thereafter
(a) the obligation of the Affected Lender to make Loans as, or to convert Loans
to, Eurodollar Rate Loans, shall be suspended until such notice shall be
withdrawn by the Affected Lender, (b) to the extent such determination by the
Affected
59
Lender relates to a Eurodollar Rate Loan then being requested by Company
pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation, the
Affected Lender shall make such Loan as (or convert such Loan to, as the case
may be) a Base Rate Loan, (c) the Affected Lender's obligation to maintain its
outstanding Eurodollar Rate Loans, as the case may be (the "Affected Loans"),
shall be terminated at the earlier to occur of the expiration of the Interest
Period then in effect with respect to the Affected Loans or when required by
law, and (d) the Affected Loans shall automatically convert into Base Rate Loans
on the date of such termination. Notwithstanding the foregoing, to the extent a
determination by an Affected Lender as described above relates to a Eurodollar
Rate Loan then being requested by Company pursuant to a Notice of Borrowing or a
Notice of Conversion/Continuation, Company shall have the option, subject to the
provisions of subsection 2.6D, to rescind such Notice of Borrowing or Notice of
Conversion/Continuation as to all Lenders by giving notice (by telecopy or by
telephone confirmed in writing) to Administrative Agent of such rescission on
the date on which the Affected Lender gives notice of its determination as
described above (which notice of rescission Administrative Agent shall promptly
transmit to each other Lender). Except as provided in the immediately preceding
sentence, nothing in this subsection 2.6C shall affect the obligation of any
Lender other than an Affected Lender to make or maintain Loans as, or to convert
Loans to, Eurodollar Rate Loans in accordance with the terms of this Agreement.
D. Compensation For Breakage or Non-Commencement of Interest
---------------------------------------------------------
Periods. Company shall compensate each Lender, upon written request by that
-------
Lender (which request shall set forth the basis for requesting such amounts),
for all reasonable losses, expenses and liabilities (including, without
limitation, any interest paid by that Lender to lenders of funds borrowed by it
to make or carry its Eurodollar Rate Loans and any loss, expense or liability
sustained by that Lender in connection with the liquidation or reemployment of
such funds) which that Lender may sustain: (i) if for any reason (other than a
default by that Lender) a borrowing of any Eurodollar Rate Loan does not occur
on a date specified therefor in a Notice of Borrowing or a telephonic request
for borrowing, or a conversion to or continuation of any Eurodollar Rate Loan
does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request for conversion or continuation,
(ii) if any prepayment (including without limitation any prepayment pursuant to
subsection 2.4B(i)) or conversion of any of its Eurodollar Rate Loans occurs on
a date that is not the last day of an Interest Period applicable to that Loan,
(iii) if any prepayment of any of its Eurodollar Rate Loans is not made on any
date specified in a notice of prepayment given by Company, or (iv) as a
consequence of any other default by Company in the repayment of its Eurodollar
Rate Loans when required by the terms of this Agreement.
E. Booking of Eurodollar Rate Loans. Any Lender may make,
--------------------------------
carry or transfer Eurodollar Rate Loans at, to, or for the account of any of its
branch offices or the office of an Affiliate of that Lender.
F. Assumptions Concerning Funding of Eurodollar Rate Loans.
-------------------------------------------------------
Calculation of all amounts payable to a Lender under this subsection 2.6 and
under subsection 2.7A shall be made as though that Lender had actually funded
each of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar
deposit bearing interest at the rate obtained pursuant to clause (i) of the
definition of Adjusted Eurodollar Rate in an amount equal to the amount of such
Eurodollar Rate Loan and having a maturity comparable to the relevant Interest
Period and through the transfer of
60
such Eurodollar deposit from an offshore office of that Lender to a domestic
office of that Lender in the United States of America; provided, however, that
-----------------
each Lender may fund each of its Eurodollar Rate Loans in any manner it sees fit
and the foregoing assumptions shall be utilized only for the purposes of
calculating amounts payable under this subsection 2.6 and under subsection 2.7A.
G. Eurodollar Rate Loans After Default. After the occurrence
-----------------------------------
of and during the continuation of a Potential Event of Default or an Event of
Default, (i) Company may not elect to have a Loan be made or maintained as, or
converted to, a Eurodollar Rate Loan after the expiration of any Interest Period
then in effect for that Loan and (ii) subject to the provisions of subsection
2.6D, any Notice of Borrowing or Notice of Conversion/ Continuation given by
Company with respect to a requested borrowing or conversion/ continuation that
has not yet occurred shall be deemed to be rescinded by Company.
2.7 Increased Costs; Taxes; Capital Adequacy.
----------------------------------------
A. Compensation for Increased Costs and Taxes. Subject to
------------------------------------------
the provisions of subsection 2.7B (which shall be controlling with respect to
the matters covered thereby), in the event that any law, treaty or governmental
rule, regulation or order, or any change therein or in the interpretation,
administration or application thereof (including the introduction of any new
law, treaty or governmental rule, regulation or order), or any determination of
a court or governmental authority, in each case that becomes effective after the
date hereof, or compliance by such Lender with any guideline, request or
directive issued or made after the date hereof by any central bank or other
governmental or quasigovernmental authority (whether or not having the force of
law):
(i) results in a change in the basis of taxation of such
Lender (or its applicable lending office) (other than a change
with respect to any Tax on the overall net income of such Lender)
with respect to this Agreement or any of its obligations
hereunder or any payments to such Lender (or its applicable
lending office) of principal, interest, fees or any other amount
payable hereunder;
(ii) imposes, modifies or holds applicable any reserve
(including, without limitation, any marginal, emergency,
supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities in or for the
account of, or advances or loans by, or other credit extended by,
or any other acquisition of funds by, any office of such Lender
(other than any such reserve or other requirements with respect
to Eurodollar Rate Loans that are reflected in the definition of
Adjusted Eurodollar Rate; or
(iii) imposes any other condition (other than with respect
to a Tax matter) on or affecting such Lender (or its applicable
lending office) or its obligations hereunder, or the London
interbank market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Eurodollar Rate Loans hereunder or to
reduce any amount received or
61
receivable by such Lender (or its applicable lending office) with respect
thereto; then, in any such case, Lender shall promptly notify Company and
Administrative Agent thereof and Company shall promptly pay to such Lender, upon
receipt of the statement referred to in the next sentence, such additional
amount or amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender shall reasonably determine) as
may be necessary to compensate such Lender for any such increased cost or
reduction in amounts received or receivable hereunder. Such Lender shall deliver
to Company (with a copy to Administrative Agent) a written statement, setting
forth in reasonable detail the basis for calculating the additional amounts owed
to such Lender under this subsection 2.7A, which statement shall be prima facie
evidence of such additional amounts.
B. Withholding of Taxes.
--------------------
(i) Payments to Be Free and Clear. All sums payable by
-----------------------------
Company under this Agreement and the other Loan Documents shall
(except to the extent required by law) be paid free and clear of, and
without any deduction or withholding on account of, any Tax (other
than a Tax on the overall net income of any Lender) imposed, levied,
collected, withheld or assessed by or within the United States of
America or any political subdivision in or of the United States of
America or any other jurisdiction from which a payment is made by or
on behalf of Company.
(ii) Withholding of Taxes. If Company or any other Person
--------------------
is required by law to make any deduction or withholding on account of
any such Tax from any sum paid or payable by Company to Administrative
Agent or any Lender under any of the Loan Documents:
(a) Company shall notify Administrative Agent of any such requirement
or any change in any such requirement as soon as Company becomes aware of
it;
(b) Company shall pay any such Tax before the date on which penalties
attach thereto, such payment to be made (if the liability to pay is imposed
on Company) for its own account or (if that liability is imposed on
Administrative Agent or such Lender, as the case may be) on behalf of and
in the name of Administrative Agent or such Lender;
(c) the sum payable by Company in respect of which the relevant
deduction, withholding or payment is required shall be increased to the
extent necessary to ensure that, after the making of that deduction,
withholding or payment, Administrative Agent or such Lender, as the case
may be, receives on the due date a net sum equal to what it would have
received had no such deduction, withholding or payment been required or
made; and
(d) within 30 days after paying any sum from which it is required by
law to make any deduction or withholding, and within 30 days after the due
date of payment of any Tax which it is required by clause (b) above to pay,
Company shall deliver to Administrative Agent evidence of such deduction,
withholding or payment and of the remittance thereof to the relevant taxing
or other authority;
62
provided that no such additional amount shall be required to be paid to any
--------
Lender under clause (c) above except to the extent that any change after
the date hereof (in the case of each Lender listed on the signature pages
hereof) or after the date of the Assignment Agreement pursuant to which
such Lender became a Lender (in the case of each other Lender) in any such
requirement for a deduction, withholding or payment as is mentioned therein
shall result in an increase in the rate of such deduction, withholding or
payment from that in effect at the date of this Agreement or at the date of
such Assignment Agreement, as the case may be, in respect of payments to
such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
-----------------------------------------------
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "Non-US Lender") shall deliver to Administrative Agent
for transmission to Company, on or prior to the Existing Effective
Date (in the case of each Existing Lender), on or prior to the
Effective Date (in the case of each New Lender) or on or prior to the
date of the Assignment Agreement pursuant to which it becomes a Lender
(in the case of each other Lender), and at such other times as may be
necessary in the determination of Company or Administrative Agent
(each in the reasonable exercise of its discretion), (1) two original
copies of Internal Revenue Service Form 1001 or 4224 (or any successor
forms), accurately completed and duly executed by such Lender,
together with any other certificate or statement of exemption required
under the Internal Revenue Code or the regulations issued thereunder
to establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to any
payments to such Lender of principal, interest, fees or other amounts
payable under any of the Loan Documents or (2) if such Lender is not a
"bank" or other Person described in Section 881(c)(3) of the Internal
Revenue Code and cannot deliver either Internal Revenue Service Form
1001 or 4224 (or any successor forms) pursuant to clause (1) above, a
Certificate re Non-Bank Status together with two original copies of
Internal Revenue Service Form W-8 (or any successor form), properly
completed and duly executed by such Lender, together with any other
certificate or statement of exemption required under the Internal
Revenue Code or the regulations issued thereunder to establish that
such Lender is not subject to deduction or withholding of United
States federal income tax with respect to any payments to such Lender
of interest payable under any of the Loan Documents.
(b) Each Lender required to deliver any forms, certificates or
other evidence with respect to United States federal income tax
withholding matters pursuant to subsection 2.7B(iii)(a) hereby agrees,
from time to time after the initial delivery by such Lender of such
forms, certificates or other evidence, whenever a lapse in time or
change in circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect, such Lender
shall (1) deliver to Administrative Agent for transmission to Company
two new original copies of Internal Revenue Service Form 1001 or 4224
(or any successor forms), or a Certificate re Non-Bank Status and two
original copies of Internal Revenue Service Form W-8 (or any successor
form), as the
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case may be, accurately completed and duly executed by such Lender,
together with any other certificate or statement of exemption required
in order to confirm or establish that such Lender is not subject to
deduction or withholding of United States federal income tax with
respect to payments to such Lender under the Loan Documents or (2)
immediately notify Administrative Agent and Company of its inability
to deliver any such forms, certificates or other evidence.
(c) Company shall not be required to pay any additional amount
to any Non-US Lender under clause (c) of subsection 2.7B(ii) in
respect of deductions or withholdings of United States federal income
taxes if such Lender shall have failed to satisfy the requirements of
subsection 2.7B(iii)(a) or 2.7B(iii)(b); provided that if such Lender
--------
shall have satisfied such requirements on the Closing Date (in the
case of each Existing Lender), on the Effective Date (in the case of
each New Lender) or on the date of the Assignment Agreement pursuant
to which it became a Lender (in the case of each other Lender),
nothing in this subsection 2.7B(iii)(c) shall relieve Company of its
obligation to pay any additional amounts pursuant to clause (c) of
subsection 2.7B(ii) in the event that, as a result of any change in
any applicable law, treaty or governmental rule, regulation or order,
or any change in the interpretation, administration or application
thereof, such Lender is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing the
fact that such Lender is not subject to withholding as described in
subsection 2.7B(iii)(a) or 2.7B(iii)(b).
C. Capital Adequacy Adjustment. If any Lender shall have
---------------------------
determined that the adoption, effectiveness, phase-in or applicability
after the date hereof of any law, rule or regulation (or any provision
thereof) regarding capital adequacy, or any change therein or in the
interpretation or administration thereof by the National Association of
Insurance Commissioners, any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its applicable lending office)
with any guideline, request or directive regarding capital adequacy
(whether or not having the force of law) of the National Association of
Insurance Commissioners, any such governmental authority, central bank or
comparable agency, has or would have the effect of reducing the rate of
return on the capital of such Lender or any corporation controlling such
Lender as a consequence of, or with reference to, such Lender's Loans or
Commitments or Letters of Credit or participations therein or other
obligations hereunder with respect to the Loans or the Letters of Credit to
a level below that which such Lender reasonably determines such Lender or
such controlling corporation could have achieved but for such adoption,
effectiveness, phase-in, applicability, change or compliance (taking into
consideration the policies of such Lender or such controlling corporation
with regard to capital adequacy), then from time to time, within fifteen
Business Days after receipt by Company from such Lender of the statement
referred to in the next sentence, Company shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction. Such
Lender shall deliver to Company (with a copy to Administrative Agent) a
written statement, setting forth in reasonable detail the basis of the
calculation of such additional amounts, which statement shall be conclusive
and binding upon all parties hereto absent manifest error.
64
D. Substitute Lenders. In the event Company is required under
------------------
the provisions of this subsection 2.7 to make payments in a material amount
to any Lender or in the event any Lender fails to lend to Company in
accordance with this Agreement, Company may, so long as no Event of Default
or Potential Event of Default shall have occurred and be continuing, elect
to terminate such Lender as a party to this Agreement; provided that,
--------
concurrently with such termination, (i) Company shall pay that Lender all
principal interest and fees and other amounts (including without limitation
amounts, if any, owed under this subsection 2.7) due to be paid to such
Lender with respect to all periods through such date of termination, (ii)
another financial institution satisfactory to Company and Administrative
Agent shall agree, as of such date, to become a Lender for all purposes
under this Agreement (whether by assignment or amendment) and to assume all
obligations of the Lender to be terminated as of such date, and (iii) all
documents and supporting materials necessary, in the judgment of
Administrative Agent to evidence the substitution of such Lender shall have
been received and approved by Administrative Agent as of such date.
2.8 Obligation of Lenders and Issuing Lenders to Mitigate .
-----------------------------------------------------
Each Lender and Issuing Lender agrees that, as promptly as
practicable after the officer of such Lender or Issuing Lender responsible
for administering the Loans or Letters of Credit of such Lender or Issuing
Lender, as the case may be, becomes aware of the occurrence of an event or
the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender or Issuing Lender to
receive payments under subsection 2.7 or subsection 3.6, it will, to the
extent not inconsistent with the internal policies of such Lender or
Issuing Lender and any applicable legal or regulatory restrictions, use
reasonable efforts (i) to make, issue, fund or maintain the Commitments of
such Lender or the affected Loans or Letters of Credit of such Lender or
Issuing Lender through another lending or letter of credit office of such
Lender or Issuing Lender, or (ii) take such other measures as such Lender
or Issuing Lender may deem reasonable, if as a result thereof the
circumstances which would cause such Lender to be an Affected Lender would
cease to exist or the additional amounts which would otherwise be required
to be paid to such Lender or Issuing Lender pursuant to subsection 2.7 or
subsection 3.6 would be materially reduced and if, as determined by such
Lender or Issuing Lender in its sole discretion, the making, issuing,
funding or maintaining of such Commitments or Loans or Letters of Credit
through such other lending or letter of credit office or in accordance with
such other measures, as the case may be, would not otherwise materially
adversely affect such Commitments or Loans or Letters of Credit or the
interests of such Lender or Issuing Lender; provided that such Lender or
--------
Issuing Lender will not be obligated to utilize such other lending or
letter of credit office pursuant to this subsection 2.8 unless Company
agrees to pay all incremental expenses incurred by such Lender or Issuing
Lender as a result of utilizing such other lending or letter of credit
office. A certificate as to the amount of any such expenses payable by
Company pursuant to this subsection 2.8 (setting forth in reasonable detail
the basis for requesting such amount) submitted by such Lender or Issuing
Lender to Company (with a copy to Administrative Agent) shall be conclusive
absent manifest error.
65
SECTION 3.
LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders' Purchase of
------------------------------------------------------
Participations Therein.
----------------------
A. Letters of Credit. In addition to Company requesting that
-----------------
Lenders make Tranche A Term Loans pursuant to subsection 2.1A(i), Tranche B
Term Loans pursuant to subsection 2.1A(ii), Revolving Loans pursuant to
subsection 2.1A(iii), and that Swing Line Lender make Swing Line Loans
pursuant to subsection 2.1A(iv), Company may request, in accordance with
the provisions of this subsection 3.1, from time to time during the period
from the Existing Effective Date to but excluding the Revolving Loan
Commitment Termination Date, that one or more Lenders issue Letters of
Credit for the account of Company for the purposes specified in the
definitions of Commercial Letters of Credit and Standby Letters of Credit.
Subject to the terms and conditions of this Agreement and in reliance upon
the representations and warranties of Company herein set forth, any one or
more Lenders may, but (except as provided in subsection 3.1B(ii)) shall not
be obligated to, issue such Letters of Credit in accordance with the
provisions of this subsection 3.1; provided that Company shall not request
--------
that any Lender issue (and no Lender shall issue):
(i) any Letter of Credit if, after giving effect to
such issuance, the Total Utilization of Revolving Loan
Commitments would exceed the Revolving Loan Commitments then in
effect;
(ii) any Letter of Credit if, after giving effect to
such issuance, the Letter of Credit Usage would exceed
$15,000,000;
(iii) any Standby Letter of Credit having an
expiration date later than the earlier of (a) the Revolving Loan
Commitment Termination Date and (b) the date which is one year
from the date of issuance of such Standby Letter of Credit;
provided that the immediately preceding clause (b) shall not
--------
prevent any Issuing Lender from agreeing that a Standby Letter of
Credit will automatically be extended for one or more successive
periods not to exceed one year each unless such Issuing Lender
elects not to extend for any such additional period; provided
--------
further that, unless Requisite Lenders otherwise consent, such
-------
Issuing Lender shall give notice that it will not extend such
Standby Letter of Credit if it has knowledge that an Event of
Default has occurred and is continuing on the last day on which
such Issuing Lender may give notice to the beneficiary that it
will not extend such Standby Letter of Credit;
(iv) any Commercial Letter of Credit (a) having an
expiration date later than the earlier of (X) 30 days prior to
the Revolving Loan Commitment Termination Date and (Y) the date
which is 180 days from the date of issuance of such Commercial
Letter of Credit or (b) that is otherwise unacceptable to the
applicable Issuing Lender in its reasonable discretion;
(v) any Letter of Credit denominated in a currency
other than Dollars; or
66
(vi) any Letter of Credit during any period when a
Lender Default exists, unless each Issuing Lender has entered into
arrangements satisfactory to it and Company to eliminate such Issuing
Lender's risk with respect to the Defaulting Lender, including by cash
collateralizing such Defaulting Lender's Pro Rata Share of the Letter
of Credit Usage (after giving effect to the issuance of the proposed
Letter of Credit).
B. Mechanics of Issuance.
---------------------
(i) Notice of Issuance. Whenever Company desires
------------------
the issuance of a Letter of Credit, it shall deliver to Administrative
Agent, at the Funding and Payment Office, a Notice of Issuance of
Letter of Credit no later than 12:00 Noon (New York time) at least
five Business Days, or such shorter period as may be agreed to by the
Issuing Lender in any particular instance, in advance of the proposed
date of issuance. The Notice of Issuance of Letter of Credit shall
specify (a) the proposed date of issuance (which shall be a Business
Day), (b) the face amount of or maximum aggregate liability under, as
applicable, the Letter of Credit, (c) the expiration date of the
Letter of Credit, (d) the name and address of the beneficiary, and (e)
the verbatim text of the proposed Letter of Credit or the proposed
terms and conditions thereof, including a precise description of any
documents and the verbatim text of any certificates to be presented by
the beneficiary which, if presented by the beneficiary prior to the
expiration date of the Letter of Credit, would require the Issuing
Lender to make payment under the Letter of Credit; provided that the
--------
Issuing Lender, in its reasonable discretion, may require changes in
the text of the proposed Letter of Credit or any such documents or
certificates; provided further that no Letter of Credit shall require
------- -------
payment against a conforming draft or other request for payment to be
made thereunder on the same Business Day (under the laws of the
jurisdiction in which the office of the Issuing Lender to which such
draft or other request for payment is required to be presented is
located) that such draft or other request for payment is presented if
such presentation is made after 10:00 A.M. (in the time zone of such
office of the Issuing Lender) on such Business Day.
Company shall notify the applicable Issuing Lender (and Administrative
Agent, if Administrative Agent is not such Issuing Lender) prior to the issuance
of any Letter of Credit in the event that any of the matters to which Company is
required to certify in the applicable Notice of Issuance of Letter of Credit is
no longer true and correct as of the proposed date of issuance of such Letter of
Credit, and upon the issuance of any Letter of Credit, Company shall be deemed
to have recertified, as of the date of such issuance, as to the matters to which
Company is required to certify in the applicable Notice of Issuance of Letter of
Credit.
(ii) Determination of Issuing Lender. Upon receipt by
-------------------------------
Administrative Agent of a Notice of Issuance of Letter of Credit
pursuant to subsection 3.1B(i) requesting the issuance of a Letter of
Credit, in the event Administrative Agent elects to issue such Letter
of Credit, Administrative Agent shall promptly so notify Company, and
such Administrative Agent shall be the
67
Issuing Lender with respect thereto. In the event that Administrative
Agent, in its sole discretion, elects not to issue such Letter of
Credit, Administrative Agent shall promptly so notify Company,
whereupon Company may request any other Lender to issue such Letter of
Credit by delivering to such Lender a copy of the applicable Notice of
Issuance of Letter of Credit. Any Lender so requested to issue such
Letter of Credit shall promptly notify Company and Administrative
Agent whether or not, in its sole discretion, it has elected to issue
such Letter of Credit, and any such Lender which so elects to issue
such Letter of Credit shall be the Issuing Lender with respect
thereto. In the event that all other Lenders shall have declined to
issue such Letter of Credit, notwithstanding the prior election of
Administrative Agent not to issue such Letter of Credit,
Administrative Agent shall be obligated to issue such Letter of Credit
and shall be the Issuing Lender with respect thereto, notwithstanding
the fact that the sum of the Letter of Credit Usage with respect to
such Letter of Credit and with respect to all other Letters of Credit
issued by Administrative when aggregated with Administrative Agent's
outstanding Revolving Loans and Swing Line Loans, may exceed
Administrative Agent's Revolving Loan Commitment then in effect.
(iii) Issuance of Letter of Credit. Upon satisfaction
----------------------------
or waiver (in accordance with subsection 10.6) of the conditions set
forth in subsection 4.3, the Issuing Lender shall issue the requested
Letter of Credit in accordance with the Issuing Lender's standard
operating procedures (any such issuance by Administrative Agent being
effected through the Funding and Payment Office), and upon its
issuance of such Letter of Credit the Issuing Lender shall promptly
notify Administrative Agent and each Lender of such issuance, which
notice shall be accompanied by a copy of such Letter of Credit.
(iv) Reports to Lenders. Within 30 days after the end
------------------
of each calendar quarter ending after the Closing Date, so long as any
Letter of Credit shall have been outstanding during such calendar
quarter, each Issuing Lender shall deliver to Administrative Agent and
Administrative Agent shall deliver to each Lender a report setting
forth for such calendar quarter the daily maximum amount available to
be drawn under the Letters of Credit that were outstanding during such
calendar quarter.
C. Lenders' Purchase of Participations in Letters of Credit.
--------------------------------------------------------
Immediately upon the issuance of each Letter of Credit, each Lender having a
Revolving Loan Commitment shall be deemed to, and hereby agrees to, have
irrevocably purchased from the Issuing Lender a participation in such Letter
of Credit and any drawings honored or payments made thereunder in an amount
equal to such Lender's Pro Rata Share (with respect to the Revolving Loan
Commitments) of the maximum amount which is or at any time may become
available to be drawn or required to be paid thereunder.
3.2 Letter of Credit Fees.
---------------------
Company agrees to pay the following amounts to each Issuing Lender
with respect to Letters of Credit issued by it for the account of Company:
68
(i) with respect to each Letter of Credit, (a) a fronting
fee equal to 1/4 of 1% per annum of the daily maximum amount available
to be drawn under such Letter of Credit and (b) a Letter of Credit fee
equal to the product of (x) the Applicable Margin with respect to
Eurodollar Rate Revolving Loans and (y) the daily maximum amount
available to be drawn under such Letter of Credit, in each case
payable in arrears on and to each March 31, June 30, September 30 and
December 31 of each year and computed on the basis of a 360-day year
for the actual number of days elapsed; and
(ii) with respect to the issuance, amendment or transfer of
each Letter of Credit and each drawing made thereunder (without
duplication of the fees payable under clause (i) above), documentary
and processing charges in accordance with such Issuing Lender's
standard schedule for such charges in effect at the time of such
issuance, amendment, transfer or drawing, as the case may be.
Promptly upon receipt by such Issuing Lender of any amount described in clause
(i)(b) of this subsection 3.2, such Issuing Lender shall distribute to each
other Lender its Pro Rata Share of such amount.
3.3 Drawings and Payments and Reimbursement of Amounts Paid Under Letters
---------------------------------------------------------------------
of Credit.
---------
A. Responsibility of Issuing Lender With Respect to Requests For
-------------------------------------------------------------
Drawings and Payments. In determining whether to honor any drawing or request
---------------------
for payment under any Letter of Credit by the beneficiary thereof, the Issuing
Lender shall be responsible only to determine that the documents and
certificates required to be delivered under such Letter of Credit have been
delivered and that they comply on their face with the requirements of such
Letter of Credit.
B. Reimbursement by Company of Amounts Paid Under Letters of Credit.
----------------------------------------------------------------
In the event an Issuing Lender has determined to honor a drawing or request for
payment under a Letter of Credit issued by it, such Issuing Lender shall
immediately notify Company and Administrative Agent, and Company shall reimburse
such Issuing Lender on or before the Business Day immediately following the date
on which such drawing is honored or such payment is made (the applicable
"Reimbursement Date"), in an amount in same day funds equal to the amount of
such drawing; provided that, anything contained in this Agreement to the
--------
contrary notwithstanding, (i) unless Company shall have notified Administrative
Agent and such Issuing Lender prior to 12:00 Noon (New York time) on the date of
such drawing or request for payment that Company intends to reimburse such
Issuing Lender for the amount of such honored drawing or payment with funds
other than the proceeds of Revolving Loans, Company shall be deemed to have
given a timely Notice of Borrowing to Administrative Agent requesting Lenders to
make Revolving Loans which are Base Rate Loans, on the applicable Reimbursement
Date in an amount equal to the amount of such honored drawing or payment and
(ii) subject to satisfaction or waiver of the conditions specified in subsection
4.2B, Lenders shall, on the applicable Reimbursement Date, make Revolving Loans
and in the amount of such honored drawing or payment, the proceeds of which
shall be applied directly by Administrative Agent to reimburse such Issuing
Lender for the amount of such honored drawing or payment; provided
--------
69
further that if for any reason proceeds of Revolving Loans are not received by
-------
such Issuing Lender on the applicable Reimbursement Date in an amount equal to
the amount of such honored drawing or payment, Company shall reimburse such
Issuing Lender, on demand, in an amount in Dollars and in same day funds equal
to the excess of the amount of such honored drawing or payment over the
aggregate amount of such Revolving Loans, if any, which are so received. Nothing
in this subsection 3.3B shall be deemed to relieve any Lender from its
obligation to make Revolving Loans on the terms and conditions set forth in this
Agreement, and Company shall retain any and all rights it may have against any
Lender resulting from the failure of such Lender to make such Revolving Loans
under this subsection 3.3B.
C. Payment by Lenders of Unreimbursed Payments Under Letters of
------------------------------------------------------------
Credit.
------
(i) Payment by Lenders. In the event that Company shall
------------------
fail for any reason to reimburse any Issuing Lender as provided in
subsection 3.3B in an amount equal to the amount of any honored
drawing or payment made by such Issuing Lender under a Letter of
Credit issued by it, such Issuing Lender shall promptly notify each
other Lender of the unreimbursed amount of such honored drawing or
payment and of such other Lender's respective participation therein
based on such Lender's Pro Rata Share of the Revolving Loan
Commitments. Each Lender shall make available to such Issuing Lender
an amount equal to its respective participation, in same day funds, at
the office of such Issuing Lender specified in such notice, not later
than 12:00 Noon (New York time) on the first Business Day (under the
laws of the jurisdiction in which such office of such Issuing Lender
is located) after the date notified by such Issuing Lender. In the
event that any Lender fails to make available to such Issuing Lender
on such Business Day the amount of such Lender's participation in such
Letter of Credit as provided in this subsection 3.3C, such Issuing
Lender shall be entitled to recover such amount on demand from such
Lender together with interest thereon at the rate customarily used by
such Issuing Lender for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. Nothing in this
subsection 3.3C shall be deemed to prejudice the right of any Lender
to recover from any Issuing Lender any amounts made available by such
Lender to such Issuing Lender pursuant to this subsection 3.3C in the
event that it is determined by the final judgment of a court of
competent jurisdiction that the payment with respect to a Letter of
Credit by such Issuing Lender in respect of which payment was made by
such Lender constituted gross negligence or willful misconduct on the
part of such Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received
--------------------------------------------------
From Company. In the event any Issuing Lender shall have been
------------
reimbursed by other Lenders pursuant to subsection 3.3C(i) for all or
any portion of any honored drawing or payment made by such Issuing
Lender under a Letter of Credit issued by it, such Issuing Lender
shall distribute to each other Lender which has paid all amounts
payable by it under subsection 3.3C(i) with respect to such honored
drawing or payment such other Lender's Pro Rata Share of all payments
subsequently received by such Issuing Lender from Company in
reimbursement of such honored drawing or payment when such payments
are
70
received. Any such distribution shall be made to a Lender at its
primary address set forth below its name on the appropriate signature
page hereof or at such other address as such Lender may request.
D. Interest on Amounts Paid Under Letters of Credit.
------------------------------------------------
(i) Payment of Interest by Company. Company agrees to pay
------------------------------
to each Issuing Lender, with respect to drawings honored or payments
made under any Letters of Credit issued by it, interest on the amount
paid by such Issuing Lender in respect of each such drawing or payment
from the date such drawing is honored or payment is made to but
excluding the date such amount is reimbursed by Company (including any
such reimbursement out of the proceeds of Revolving Loans pursuant to
subsection 3.3B) at a rate equal to (a) for the period from the date
such drawing is honored or payment is made to but excluding the
applicable Reimbursement Date, the Base Rate plus the Applicable
----
Margin with respect to Base Rate Revolving Loans, and (b) thereafter,
a rate which is 2% per annum in excess of the rate of interest
described in the foregoing clause (a). Interest payable pursuant to
this subsection 3.3D(i) shall be computed on the basis of a 360-day
year for the actual number of days elapsed in the period during which
it accrues and shall be payable on demand or, if no demand is made, on
the date on which the related drawing or payment under a Letter of
Credit is reimbursed in full.
(ii) Distribution of Interest Payments by Issuing Lender.
---------------------------------------------------
Promptly upon receipt by any Issuing Lender of any payment of interest
pursuant to subsection 3.3D(i), (a) such Issuing Lender shall
distribute to each other Lender, out of the interest received by such
Issuing Lender in respect of the period from the date of the
applicable honored drawing or payment under a Letter of Credit issued
by such Issuing Lender to but excluding the date on which such Issuing
Lender is reimbursed for the amount of such drawing or payment
(including any such reimbursement out of the proceeds of Revolving
Loans pursuant to subsection 3.3B), the amount that such other Lender
would have been entitled to receive in respect of the Letter of Credit
fee that would have been payable in respect of such Letter of Credit
for such period pursuant to subsection 3.2 if no drawing had been
honored or payment had been made under such Letter of Credit, and (b)
in the event such Issuing Lender shall have been reimbursed by other
Lenders pursuant to subsection 3.3C(i) for all or any portion of such
drawing or payment, such Issuing Lender shall distribute to each other
Lender which has paid all amounts payable by it under subsection
3.3C(i) with respect to such drawing or payment such other Lender's
Pro Rata Share of any interest received by such Issuing Lender in
respect of that portion of such drawing or payment so reimbursed by
other Lenders for the period from the date on which such Issuing
Lender was so reimbursed by other Lenders to and including the date on
which such portion of such drawing or payment is reimbursed by
Company. Any such distribution shall be made to a Lender at its
Lending Office set forth on Schedule 2.1 or at such other address as
------------
such Lender may request.
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3.4 Obligations Absolute.
--------------------
The obligation of Company to reimburse each Issuing Lender for
drawings honored or payments made under the Letters of Credit issued by it and
to repay any Revolving Loans made by Lenders pursuant to subsection 3.3B and the
obligations of Lenders under subsection 3.3C(i) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of any Letter
of Credit;
(ii) the existence of any claim, set-off, defense or
other right which Company or any Lender may have at any time
against a beneficiary or any transferee of any Letter of Credit
(or any Persons for whom any such transferee may be acting), any
Issuing Lender or other Lender or any other Person or, in the
case of a Lender, against Company whether in connection with this
Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between Company
or one of its Subsidiaries and the beneficiary for which any
Letter of Credit was procured);
(iii) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any
Letter of Credit against presentation of a demand, draft or
certificate or other document which does not substantially comply
with the terms of such Letter of Credit;
(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or
prospects of Company or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan
Document by any party thereto;
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential
Event of Default shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
--------
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing
72
Lender under the circumstances in question (as determined by a final judgment of
a court of competent jurisdiction).
3.5 Indemnification; Nature of Issuing Lender's Duties.
--------------------------------------------------
A. Indemnification. In addition to amounts payable as provided in
---------------
subsection 3.6, Company hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or willful misconduct
of such Issuing Lender as determined by a final judgment of a court of competent
jurisdiction or (b) subject to the following clause (ii), the wrongful dishonor
by such Issuing Lender of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of such Issuing Lender to honor a
drawing or other request for payment under any such Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any present or future
de jure or de facto government or governmental authority (all such acts or
omissions herein called "Governmental Acts").
B. Nature of Issuing Lenders' Duties. As between Company and any
---------------------------------
Issuing Lender, Company assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by such Issuing Lender by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing or
payment under such Letter of Credit; or (viii) any consequences arising from
causes beyond the control of such Issuing Lender, including, without limitation,
any Governmental Acts, and none of the above shall affect or impair, or prevent
the vesting of, any of such Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Company.
73
Notwithstanding anything to the contrary contained in this subsection
3.5, Company shall retain any and all rights it may have against any Issuing
Lender for any liability arising solely out of the gross negligence or willful
misconduct of such issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
3.6 Increased Costs and Taxes Relating to Letters of Credit.
-------------------------------------------------------
In the event that any law, treaty or governmental rule, regulation or
order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
governmental authority, in each case that becomes effective after the date
hereof, or compliance by any Issuing Lender or Lender with any guideline,
request or directive issued or made after the date hereof by any central bank or
other governmental or quasi-governmental authority (whether or not having the
force of law):
(i) results in any change in the basis of taxation of such
Issuing Lender or Lender (or its applicable lending or letter of
credit office) (other than a change with respect to any Tax on the
overall net income of such Issuing Lender or Lender) with respect to
the issuing or maintaining of any Letters of Credit or the purchasing
or maintaining of any participations therein or any other obligations
under this Section 3, whether directly or by such being imposed on or
suffered by any particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve
(including, without limitation, any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement in respect of any Letters of Credit
issued by any Issuing Lender or participations therein purchased by
any Lender; or
(iii) imposes any other condition on or affecting such
Issuing Lender or Lender (or its applicable lending or letter of
credit office) regarding this Section 3 or any Letter of Credit or any
participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto; then, in any case, Company shall promptly pay to such Issuing Lender or
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts (reasonably determined by such Issuing Lender or
Lender) as may be necessary to compensate such Issuing Lender or Lender for any
such increased cost or reduction in amounts received or receivable hereunder.
Such Issuing Lender or Lender shall deliver to Company a written statement,
setting forth in reasonable detail the basis for calculating the additional
amounts owed to such Issuing Lender or Lender under this subsection 3.6, which
statement shall be prima facie evidence of such additional amounts.
74
SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of
Letters of Credit hereunder are subject to the satisfaction of the following
conditions.
4.1 Conditions to Tranche B Term Loans.
----------------------------------
The obligations of Lenders to make the Tranche B Term Loans are, in
addition to the conditions precedent specified in subsection 4.2, subject to
prior or concurrent satisfaction of the following conditions:
A. Company Documents.
-----------------
On or before the Effective Date, Company shall deliver or cause
to be delivered to Lenders (or to Administrative Agent for Lenders with
sufficient originally executed copies, where appropriate, for each Lender and
its counsel) the following, each, unless otherwise noted, dated the Effective
Date:
(i) Certified copies of its Certificate of Incorporation,
together with a good standing certificate from the Secretary of
State of the State of Delaware and each other state in which it
is qualified as a foreign corporation to do business, each dated
a recent date prior to the Effective Date;
(ii) Copies of its Bylaws, certified as of the Effective
Date by its corporate secretary or an assistant secretary as
being in full force and effect without modification or amendment;
(iii) Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party,
certified as of the Effective Date by its corporate secretary or
an assistant secretary as being in full force and effect without
modification or amendment;
(iv) Signature and incumbency certificates of its officers
executing this Agreement and the other Loan Documents;
(v) Executed originals of this Agreement, the Subsidiary
Guaranty and the other Loan Documents to which it is a party; and
(vi) Such other documents as Agents may reasonably
request.
B. No Material Adverse Effect. Since December 31, 1998, no
--------------------------
Material Adverse Effect (in the opinions of Administrative Agent or Lenders)
shall have occurred.
C. No Other Indebtedness Outstanding. Administrative Agent
---------------------------------
shall have received an Officers' Certificate of Company stating that, after
giving effect to the Sea Coast Acquisition,
75
Loan Parties shall have no Indebtedness outstanding other than Indebtedness
permitted under the Loan Documents.
D. Necessary Consents. Company shall have obtained all consents
------------------
necessary or advisable in connection with the Sea Coast Acquisition, the Loan
Documents and the continued operation of the business conducted by Company and
its Subsidiaries, and each of the foregoing shall be in full force and effect
and in form and substance satisfactory to Administrative Agent (except as
disclosed to and approved by Administrative Agent).
E. Collateral Access Agreements. Administrative Agent shall
----------------------------
have received from Company Collateral Access Agreements in form and substance
satisfactory to Administrative Agent with respect to any facility which
equipment of Company is located on the Effective Date. Company shall not own
interest in any real property on the Effective Date other than the real property
referred to in Schedule 5.3, the Mortgaged Properties in Pennsylvania and
Tennessee and its Leasehold Property interest in its offices in Columbus, Ohio,
St. Louis, Missouri and Burien, Washington.
F. Perfection of Security Interests in Personal Property and
---------------------------------------------------------
Mixed Collateral. Company shall have taken or caused to be taken such actions in
----------------
such a manner so that Administrative Agent has, for the benefit of Agents and
Lenders, a valid and perfected First Priority security interest in the entire
personal property and mixed Collateral. Such actions shall include, without
limitation: (i) the delivery pursuant to the applicable Collateral Documents of
(a) certificates (which certificates shall be properly endorsed in blank for
transfer or accompanied by irrevocable undated stock powers duly endorsed in
blank all in form and substance satisfactory to Administrative Agent)
representing all of the shares of capital stock required to be pledged pursuant
to the Collateral Documents, and (b) all promissory notes or other instruments
(duly endorsed, where appropriate, in a manner satisfactory to Administrative
Agent) evidencing any Collateral; (ii) delivery to Agents of (a) the results of
a recent search, by a Person satisfactory to Agents, of all effective Uniform
Commercial Code financing statements and fixture filings and all judgment and
tax lien filings which may have been made with respect to any personal or mixed
property of any Loan Party, together with copies of all such filings disclosed
by such search; (iii) the delivery to Administrative Agent of Uniform Commercial
Code financing statements and fixture filings executed by the applicable Loan
Parties as to all such Collateral granted by such Loan Parties for all
jurisdictions as may be necessary or desirable to perfect Administrative Agent's
security interest in such Collateral; (iv) the delivery to Administrative Agent
of all cover sheets or other documents or instruments required to be filed with
the PTO or the United States Copyright Office in order to create or perfect
Liens in respect of any IP Collateral or any registered copyrights of Company;
and (v) the delivery to Administrative Agent of evidence reasonably satisfactory
to Administrative Agent that all other filings (including, without limitation,
filings of Uniform Commercial Code termination statements and termination
statements with respect to prior Liens on IP Collateral), recordings and other
actions that Administrative Agent deems necessary or advisable to establish,
preserve and perfect the First Priority Liens granted to Administrative Agent in
personal and mixed property shall have been made.
G. Opinions of Loan Parties' Counsel. Lenders and their
---------------------------------
respective counsel shall have received (i) originally executed copies of one or
more favorable written opinions of
76
Xxxxxxxx & X'Xxxx, LLP, counsel for the Loan Parties, in form and substance
reasonably satisfactory to Administrative Agent and its counsel, dated as of the
Effective Date and setting forth substantially the matters in the opinion
designated in Exhibit XIII annexed hereto and as to such other matters as
------------
Administrative Agent acting on behalf of Lenders may reasonably request,
including, without limitation, as to no breach of any provision of the
Subordinated Notes and as to the Tranche B Term Loans constituting "Senior
Indebtedness" under and as defined in the Subordinated Note Indentures, and (ii)
evidence satisfactory to Administrative Agent that Loan Parties have instructed
such counsel to deliver such opinion to Lenders.
H. Opinions of Agents' Counsel. Lenders shall have received
---------------------------
originally executed copies of one or more favorable written opinions of Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel to Agents, dated as of the Effective Date,
substantially in the form of Exhibit XIV annexed hereto and as to such other
-----------
matters as Agents acting on behalf of Lenders may reasonably request.
I. Fees. Company shall have paid to Agents, for distribution
----
(as appropriate) to Agents and Lenders, the fees payable on the Effective Date
referred to in subsection 2.3.
J. Financial Statements; Pro Forma Consolidated Balance Sheet.
----------------------------------------------------------
On or before the Effective Date, the Administrative Agent shall have received
from Company (i) satisfactory audited financial statements of Company for the
year ending December 31, 1998, (ii) satisfactory audited financial statements of
Sea Coast for the twelve-month period ending January 31, 1999 and (iii)
satisfactory pro forma balance sheet of Company as at December 31, 1998 prepared
in accordance with GAAP and reflecting the consummation of the Sea Coast
Acquisition, which pro forma statement of assets shall be in form and substance
satisfactory to the Administrative Agent and shall be certified by the chief
financial officer of Company as (a) prepared based on good faith assumptions and
on the best information available to Company as of the date of delivery thereof
and (b) fairly presenting on a pro forma basis the financial position of Company
as at December 31, 1998, as adjusted as described in this clause (iii), assuming
that such events had occurred at such date.
K. Evidence of Insurance. Administrative Agent shall have
---------------------
received satisfactory certificates of insurance with respect to each of the
insurance policies required pursuant to subsection 6.4, and Agents shall be
satisfied with the nature and scope of these insurance policies.
L. Representations and Warranties; Performance of Agreements.
---------------------------------------------------------
Company shall have delivered to Administrative Agent an Officer's Certificate,
in form and substance satisfactory to Administrative Agent, to the effect that
the representations and warranties in Section 5 hereof are true and correct in
all material respects on and as of the Effective Date to the same extent as
though made on and as of that date and that Company shall have performed in all
material respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by them on or before the
Effective Date, except as otherwise disclosed to and agreed to in writing by
Administrative Agent .
M. Completion of Proceedings. All corporate and other
-------------------------
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders,
77
and their counsel shall be satisfactory in form and substance to Administrative
Agent and such counsel, and Administrative Agent and such counsel shall have
received all such counterpart originals or certified copies of such documents as
Administrative Agent may reasonably request.
4.2 Conditions to All Loans.
-----------------------
The obligations of Lenders to make Loans on each Funding Date are
subject to the following further conditions precedent:
A. Administrative Agent shall have received on or before that
Funding Date, in accordance with the provisions of subsection 2.1B, an
originally executed Notice of Borrowing, signed by the chief executive officer,
the chief financial officer or the controller of Company or by any executive
officer of Company designated by any of the above-described officers on behalf
of Company in a writing delivered to Administrative Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein
and in the other Loan Documents shall be true and correct in all
material respects on and as of that Funding Date to the same
extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to
an earlier date, in which case such representations and
warranties shall have been true and correct in all material
respects on and as of such earlier date;
(ii) No event shall have occurred and be continuing or
would result from the consummation of the borrowing contemplated
by such Notice of Borrowing that would constitute an Event of
Default or a Potential Event of Default;
(iii) Each Loan Party shall have performed in all material
respects all agreements and satisfied all conditions which this
Agreement and the other Loan Documents provide shall be performed
or satisfied by it on or before that Funding Date;
(iv) No order, judgment or decree of any court, arbitrator
or governmental authority shall purport to enjoin or restrain any
Lender from making the Loans to be made by it, on that Funding
Date;
(v) The making of the Loans requested on such Funding Date
shall not violate any law including, without limitation,
Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System; and
(vi) There shall not be pending or, to the knowledge of
Company, threatened, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Company or any
of its Subsidiaries or any property of Company or any of its
Subsidiaries that has not been disclosed by Company in
78
writing and that is required to be so disclosed pursuant to
subsection 5.6 or 6.1(x) prior to the making of the last
preceding Loans (or, in the case of the initial Loans, prior to
the execution of this Agreement), and there shall have occurred
no development not so disclosed in any such action, suit,
proceeding, governmental investigation or arbitration so
disclosed that, in either event, in the opinion of Administrative
Agent or of Requisite Lenders, would be expected to have a
Material Adverse Effect; and no injunction or other restraining
order shall have been issued and no hearing to cause an
injunction or other restraining order to be issued shall be
pending or noticed with respect to any action, suit or proceeding
seeking to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the
transactions contemplated by this Agreement or the making of
Loans hereunder.
4.3 Conditions to Letters of Credit.
-------------------------------
The issuance of any Letter of Credit hereunder (whether or not
the applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter of
Credit pursuant to this Agreement, the initial Loans shall have been made.
B. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), an originally executed Notice of Issuance of Letter of
Credit, signed by the chief executive officer, the chief financial officer or
the controller of Company or by any executive officer of Company designated by
any of the above-described officers on behalf of Company in a writing delivered
to Administrative Agent, together with all other information specified in
subsection 3.1B(i) and such other documents or information as the applicable
Issuing Lender may reasonably require in connection with the issuance of such
Letter of Credit.
C. On the date of issuance of such Letter of Credit, all
conditions precedent described in subsection 4.2B shall be satisfied to the same
extent as if the issuance of such Letter of Credit were the making of a Loan and
the date of issuance of such Letter of Credit were a Funding Date.
SECTION 5.
REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to
make the Loans, to induce Issuing Lender to issue Letters of Credit and to
induce other Lenders to purchase participations therein, Company represents and
warrants to each Lender, on the date of this Agreement, on each Funding Date,
and on the date of issuance of each Letter of Credit, that the following
statements are true and correct:
5.1 Organization, Powers, Qualification, Good Standing, Business and
----------------------------------------------------------------
Subsidiaries.
------------
79
A. Organization and Powers. Each Loan Party is a corporation duly
-----------------------
organized, validly existing and in good standing under the laws of its state of
incorporation. Each Loan Party has all requisite corporate power and authority
to own and operate its properties, to carry on its business as now conducted and
as proposed to be conducted, to enter into the Loan Documents and to carry out
the transactions contemplated thereby. Company has all requisite corporate power
and authority to issue and pay the Notes.
B. Qualification and Good Standing. Each Loan Party is qualified to
-------------------------------
do business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, except
in jurisdictions where the failure to be so qualified, authorized or in good
standing has not had and will not have a Material Adverse Effect.
C. Conduct of Business. Company and its Subsidiaries are engaged
-------------------
only in the businesses permitted to be engaged in pursuant to subsection 7.11.
D. Company and Subsidiaries. All of the Subsidiaries of Company as
------------------------
of the Effective Date are identified in Schedule 5.1 annexed hereto. The capital
------------
stock of each of the Subsidiaries of Company identified in Schedule 5.1 annexed
hereto is duly authorized, validly issued, fully paid and nonassessable and none
of such capital stock constitutes Margin Stock. Company and each of the
Subsidiaries of Company identified in Schedule 5.1 annexed hereto are duly
------------
organized, validly existing and in good standing under the laws of their
respective jurisdictions of incorporation or formation set forth therein, have
full corporate power and authority to own their assets and properties and to
operate their business as presently owned and conducted and as proposed to be
conducted, and are qualified to do business and in good standing in every
jurisdiction where their assets are located and wherever necessary to carry out
their business and operations, in each case except where failure to be so
qualified or in good standing or a lack of such corporate power and authority
has not had and will not have a Material Adverse Effect. Schedule 5.1 annexed
------------
hereto correctly sets forth the ownership interest of Company in each of its
Subsidiaries identified therein.
E. Acquisitions. Each Loan Party shall have, upon consummation
------------
thereof, all requisite corporate power and authority to consummate, on the terms
set forth in the applicable acquisition agreement and related documents, each
Permitted Acquisition consummated by it pursuant to subsection 7.7(vi). Upon
consummation of any such Permitted Acquisition, such Permitted Acquisition shall
have been duly authorized by all necessary corporate action of such Loan Party.
5.2 Authorization of Borrowing, etc.
--------------------------------
A. Authorization of Borrowing. The execution, delivery and performance of
--------------------------
the Loan Documents and the Related Agreements and the issuance, delivery and
payment of the Notes have been duly authorized by all necessary corporate or
other action on the part of each of the Loan Parties thereto.
B. No Conflict. After giving effect to the consummation of the
-----------
transactions contemplated hereby to occur on the Effective Date, the execution,
delivery and performance by each of the Loan Parties of the Loan Document and
the Related Agreements to which they are parties, the issuance, delivery and
payment of the Notes and the consummation of the
80
transactions contemplated by the Loan Documents do not and will not (i) violate
any provision of any law or any governmental rule or regulation applicable to
Company or any of its Subsidiaries, the Certificate or Articles of Incorporation
or Bylaws (or other analogous organizational document) of any Loan Party or any
of its Subsidiaries or any order, judgment or decree of any court or other
agency of government binding on any Loan Party or any of its Subsidiaries, (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of any Loan Party or
any of its Subsidiaries, (iii) result in or require the creation or imposition
of any Lien upon any of the properties or assets of any Loan Party or any of its
Subsidiaries (other than any Liens created under any of the Loan Documents in
favor of Administrative Agent on behalf of Lenders), or (iv) require any
approval of stockholders or partners or any approval or consent of any Person
under any Contractual Obligation of any Loan Party or any of its Subsidiaries,
except for such approvals or consents which will be obtained on or before the
Effective Date.
C. Governmental Consents. The execution, delivery and performance by
---------------------
the Loan Parties of the Loan Documents and Related Agreements to which they are
party, the issuance, delivery and payment of the Notes and the consummation of
the transactions contemplated by the Loan Documents do not and will not require
any registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body except for such registrations, consents, approvals, notices or other
actions which will be made, obtained or taken on or before the Effective Date.
D. Binding Obligation. Each of the Loan Documents and the Related
------------------
Agreements has been duly executed and delivered by each of the Loan Parties
party thereto and is the legally valid and binding obligation of each such Loan
Party, enforceable against such Loan Party in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
E. Valid Issuance of Company Common Stock and Subordinated Notes.
-------------------------------------------------------------
(i) Company Common Stock. The Company Common Stock, when issued
--------------------
and delivered, was duly and validly issued, fully paid and
nonassessable. The issuance and sale of such Company Common Stock
either (a) were registered or qualified under applicable federal and
state securities laws or (b) were exempt therefrom.
(ii) Subordinated Notes. Company had the corporate power and
------------------
authority to issue the Subordinated Notes. The Subordinated Notes are
the legally valid and binding obligations of Company, enforceable
against Company in accordance with their respective terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or
by equitable principles relating to enforceability. The subordination
provisions of the Subordinated Note Indentures, the Subordinated Notes
and the other Subordinated Note Documents are enforceable against the
holders of the Subordinated Notes, and the Loans and all other
monetary Obligations hereunder are and will be within the definition
of
81
"Senior Indebtedness" included in such provisions. The issuance
and sale of the Subordinated Notes either (a) were registered or
qualified under applicable federal and state securities laws or
(b)were exempt therefrom.
5.3 Financial Condition.
-------------------
A. Financial Statements. Company has heretofore delivered to
--------------------
the Administrative Agent, at Lenders' request, the following financial
statements and information: (i) audited financial statements of Company for the
year ending December 31, 1998, (ii) audited financial statements of Sea Coast
for the twelve-month period ending January 31, 1999 and (iii) pro forma balance
sheet of Company as at December 31, 1998 reflecting the consummation of the Sea
Coast Acquisition. All such financial statements have been prepared in
accordance with GAAP consistently applied throughout the period presented. At
the date of the most recent balance sheet referred to above, Company did not
have any material liability or material obligation which would be required to be
included in the financial statements referred to in this subsection in
accordance with GAAP which was not so included. Except as reflected in the
financial statements referred to in this subsection 5.3, except for the Sea
Coast Acquisition and except as set forth on Schedule 5.3 annexed hereto, during
------------
the period from December 31, 1998 to and including the date hereof there has
been no sale, transfer or other disposition by any Loan Party of any material
part of its business or property, no material liabilities were incurred by any
Loan Party and there has been no purchase or other acquisition of any business
or property by any Loan Party material in relation to the financial condition of
Company at December 31, 1998.
5.4 No Material Adverse Change; No Restricted Junior Payments.
---------------------------------------------------------
Since December 31, 1998, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect. Neither Company nor any of its Subsidiaries has directly or indirectly
declared, ordered, paid or made, or set apart any sum or property for, any
Restricted Junior Payment or agreed to do so except as permitted by subsection
7.5.
5.5 Title to Properties; Liens; Intellectual Property.
-------------------------------------------------
A. Company and its Subsidiaries have good, sufficient and legal
title to all of their respective properties and assets reflected in the
financial statements referred to in subsection 5.3 or in the most recent
financial statements delivered pursuant to subsection 6.1, except for assets
disposed of since the date of such financial statements in the ordinary course
of business or as otherwise permitted under subsection 7.7.
Except as permitted by this Agreement, all such properties and
assets are free and clear of Liens.
B. Company has acquired, pursuant to the Acquisition Agreement,
that which Seller has represented is the ownership of all patents, copyrights
(whether registered or unregistered), trademarks (whether registered or
unregistered), trade names, trade dress, service marks, assumed names and know-
how (such items, together with all applications therefor and all other
intellectual property and proprietary rights, whether or not subject to
statutory registration
82
or protection, being collectively referred to herein as "MBW Intellectual
Property") relating exclusively to, or used exclusively in connection with, the
Business which (i) are owned by Seller on December 31, 1996 and (ii) are
necessary, together with the rights licensed to Company under the Shared
Technology License Agreement and the Patent License Agreement, for the operation
of the Business as conducted on the Closing Date, except as set forth on
Schedule 5.5B annexed hereto; provided, however, that such MBW Intellectual
------------- -----------------
Property does not include any rights to the brand name "Country Crock,"
"Pennant" or "Bakers Source."
C. Company has acquired, pursuant to the Log Cabin Acquisition
Agreement, that which Kraft has represented is the ownership of all patents,
copyrights (whether registered or unregistered), trademarks (whether registered
or unregistered), trade names, trade dress, service marks, assumed names and
know-how (such items, together with all applications therefor and all other
intellectual property and proprietary rights, whether or not subject to
statutory registration or protection, being collectively referred to herein as
"Log Cabin Intellectual Property") relating exclusively to, or used exclusively
in connection with, the Log Cabin Business which (i) are owned by Kraft on July
1, 1997 and (ii) are necessary, together with the rights licensed to Company
under the Log Cabin Patent License Agreement, for the operation of the Log Cabin
Business as conducted on July 1, 1997, except as set forth on Schedule 5.5C
-------------
annexed hereto.
D. Company has acquired, pursuant to the Xxxxxx Xxxxx Acquisition
Agreement, that which P&G has represented is the ownership of all patents,
copyrights (whether registered or unregistered), trademarks (whether registered
or unregistered), trade names, trade dress, service marks, assumed names and
know-how (such items, together with all applications therefor and all other
intellectual property and proprietary rights, whether or not subject to
statutory registration or protection, being collectively referred to herein as
"Xxxxxx Xxxxx Intellectual Property") relating exclusively to, or used
exclusively in connection with, the Xxxxxx Xxxxx Business which (i) are owned by
P&G on January 16, 1998 and (ii) are necessary, together with the rights
licensed to Company under the Xxxxxx Xxxxx Patent License Agreement, for the
operation of the Xxxxxx Xxxxx Business as conducted on the Existing Effective
Date, except as set forth on Schedule 5.5D annexed hereto.
-------------
E. Company has acquired all patents, copyrights (whether registered or
unregistered), trademarks (whether registered or unregistered), trade names,
trade dress, service marks, assumed names and know-how (such items, together
with all applications therefor and all other intellectual property and
proprietary rights, whether or not subject to statutory registration or
protection, being collectively referred to as "Van xx Xxxx'x Intellectual
Property") necessary for the operation of Van xx Xxxx'x as conducted on the
Existing Effective Date, except as set forth on Schedule 5.5E annexed hereto.
-------------
F. Company has acquired all patents, copyrights (whether registered or
unregistered), trademarks (whether registered or unregistered), trade names,
trade dress, service marks, assumed names and know-how (such items, together
with all applications therefor and all other intellectual property and
proprietary rights, whether or not subject to statutory registration or
protection, being collectively referred to as "Sea Coast Intellectual Property")
necessary for the operation of Sea Coast as conducted on the Effective Date,
except as set forth on Schedule 5.5F annexed hereto.
-------------
83
G. Each Loan Party owns, or is licensed to use, all Intellectual
Property necessary for the operation of its business as conducted except for
Intellectual Property the failure to own or license which could not reasonably
be expected to have a Material Adverse Effect. No claim of which any Loan Party
has been given notice has been asserted and is pending by any Person challenging
or questioning the use by any Loan Party of any such Intellectual Property the
validity or effectiveness of any such Intellectual Property, nor does Company
know of any valid basis for any such claim, except for such claims that in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
5.6 Litigation: Adverse Facts.
--------------------------
There is no action, suit, proceeding, arbitration or governmental
investigation (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity or before or by any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, pending or, to the knowledge of Company,
threatened against or affecting Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries that, either individually or in
the aggregate together with all other such actions, proceedings and
investigations, has had, or could reasonably be expected to result in, a
Material Adverse Effect. Neither Company nor any of its Subsidiaries is or has
been (i) in violation of any applicable law (including any Pure Food and Drug
Laws that has had, or could reasonably be expected to result in, a Material
Adverse Effect or (ii) subject to or in default with respect to any final
judgment, writ, injunction, decree, rule or regulation of any court or any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, that has had, or could
reasonably be expected to result in, a Material Adverse Effect.
5.7 Payment of Taxes.
----------------
Except to the extent permitted by subsection 6.3, all material
tax returns and reports of Company and its Subsidiaries required to be filed by
any of them have been timely filed, and all material taxes, assessments, fees
and other governmental charges upon Company and its Subsidiaries and upon their
respective properties, assets, income, businesses and franchises which are due
and payable have been paid when due and payable. Company does not know of any
proposed tax assessment against Company or any of its Subsidiaries other than
those which are being actively contested by Company or such Subsidiary in good
faith and by appropriate proceedings and for which reserves or other appropriate
provisions, if any, as may be required in conformity with GAAP shall have been
made or provided therefor.
5.8 Performance of Agreements; Materially Adverse Agreements; Material
------------------------------------------------------------------
Contracts.
---------
A. Neither Company nor any of its Subsidiaries is in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, would not have a Material Adverse Effect.
B. Neither Company nor any of its Subsidiaries is a party to or
is otherwise subject to any agreement or instrument or any charter or other
internal restriction which has had,
84
or could reasonably be expected (based upon assumptions that are reasonable at
the time made) to result in, individually or in the aggregate, a Material
Adverse Effect.
C. Schedule 5.8 contains a true, correct and complete list of all
------------
the Material Contracts in effect on the Effective Date. All such Material
Contracts are in full force and effect and no defaults currently exist
thereunder, except where the failure to be in full force and effect, and except
for such defaults which, could not reasonably be expected to have a Material
Adverse Effect.
5.9 Governmental Regulation.
-----------------------
Neither Company nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act or the Investment Company Act of 1940 or
under any other federal or state statute or regulation which may limit its
ability to incur Indebtedness or which may otherwise render all or any portion
of the Obligations unenforceable.
5.10 Securities Activities.
---------------------
Neither Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock.
5.11 Employee Benefit Plans.
----------------------
A. Company and each of its ERISA Affiliates are in substantial
compliance with all applicable provisions and requirements of ERISA with respect
to each Employee Benefit Plan, and have substantially performed all their
obligations under each Employee Benefit Plan, except to the extent that any non-
compliance with ERISA or any such failure to perform would not result in
material liability of Company or any of its ERISA Affiliates.
B. No ERISA Event has occurred which has resulted or is
reasonably likely to result in any material liability to the PBGC or to any
other Person.
C. Except to the extent required under Section 4980B of the
Internal Revenue Code and/or Section 601 of ERISA, neither Company nor any of
its Subsidiaries maintains or contributes to any employee welfare benefit plan
(as defined in Section 3(1) of ERISA) that provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employees of Company or any of its Subsidiaries, except to the extent that the
provision of such benefits would not have a Material Adverse Effect.
D. No Pension Plan has an Unfunded Current Liability in an amount
that would have a Material Adverse Effect.
85
5.12 Certain Fees.
------------
No broker's or finder's fee or commission will be payable with
respect to this Agreement or any of the loan transactions contemplated hereby,
and Company hereby indemnifies Lenders against, and agrees that it will hold
Lenders harmless from, any claim, demand or liability for any such broker's or
finder's fees alleged to have been incurred in connection herewith or therewith
and any expenses (including reasonable fees, expenses and disbursements of
counsel) arising in connection with any such claim, demand or liability.
5.13 Environmental Protection.
------------------------
(i) The operations of Company and each of its Subsidiaries
(including, without limitation, all operations and conditions at
or in the Facilities) comply in all material respects with all
Environmental Laws;
(ii) Company and each of its Subsidiaries have obtained all
material Governmental Authorizations under Environmental Laws
necessary to their respective operations, and all such
Governmental Authorizations are in good standing, and Company and
each of its Subsidiaries are in compliance with all material
terms and conditions of such Governmental Authorizations;
(iii) Neither Company nor any of its Subsidiaries has
received (a) any notice or claim to the effect that it is or may
be liable to any Person as a result of or in connection with any
Hazardous Materials or (b) any letter or request for information
under Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. (S) 9604) or
comparable state laws, and, to the best knowledge of Company,
none of the operations of Company or any of its Subsidiaries is
the subject of any federal or state investigation relating to or
in connection with any Hazardous Materials at any Facility or at
any other location;
(iv) None of the operations of Company or any of its
Subsidiaries is subject to any judicial or administrative
proceeding alleging the violation of or liability under any
Environmental Laws which could reasonably be expected to have a
Material Adverse Effect;
(v) To the knowledge of Company, neither Company nor any
of its Subsidiaries nor any of their respective Facilities or
operations are subject to any outstanding written order or
agreement with any governmental authority or private party
relating to (a) any Environmental Laws or (b) any Environmental
Claims that could reasonably be expected to have a Material
Adverse Effect;
(vi) Neither Company nor any of its Subsidiaries has any
material contingent liability in connection with any Release of
any Hazardous Materials by Company or any of its Subsidiaries;
86
(vii) Neither Company nor any of its Subsidiaries nor, to
the knowledge of Company, any predecessor of Company or any of
its Subsidiaries has filed any notice under any Environmental Law
indicating past or present treatment or Release of Hazardous
Materials at any Facility, and none of Company's or any of its
Subsidiaries' operations involves the generation, transportation,
treatment, storage or disposal of hazardous waste, as defined
under 40 C.F.R. Parts 260-270 or any state equivalent;
(viii) To the knowledge of Company, no Hazardous Materials
exist on or under any Facility in a manner that has a reasonable
possibility of giving rise to an Environmental Claim having a
Material Adverse Effect, and neither Company nor any of its
Subsidiaries has filed any notice or report of a Release of any
Hazardous Materials that has a reasonable possibility of giving
rise to an Environmental Claim having a Material Adverse Effect;
(ix) Neither Company nor any of its Subsidiaries nor, to
the knowledge of Company, any of their respective predecessors
has disposed of any Hazardous Materials in a manner that has a
reasonable possibility of giving rise to an Environmental Claim
having a Material Adverse Effect;
(x) To the knowledge of Company, no underground storage
tanks or surface impoundments are on or at any Facility; and
(xi) To the knowledge of Company, no Lien in favor of any
Person relating to or in connection with any Environmental Claim
has been filed or has been attached to any Facility.
5.14 Employee Matters.
----------------
There is no strike or work stoppage in existence or threatened
involving Company or any of its Subsidiaries that could reasonably be expected
to have a Material Adverse Effect.
5.15 Solvency.
--------
Each Loan Party is, and Company and its Subsidiaries, taken as a
whole, are, and, upon the incurrence of any Obligations by any Loan Party on any
date on which this representation is made, will be, Solvent.
87
5.16 Matters Relating to Collateral.
------------------------------
A. Creation, Perfection and Priority of Liens. The execution and
------------------------------------------
delivery of the Collateral Documents by the Loan Parties, together with (i) the
actions taken on or prior to the date hereof pursuant to subsections 4.1, 6.9
and 6.10 and (ii) the delivery to Administrative Agent of any Pledged Collateral
not delivered to Administrative Agent at the time of execution and delivery of
the applicable Collateral Document (all of which Pledged Collateral has been so
delivered) are effective to create in favor of Administrative Agent for the
benefit of Agents and Lenders, as security for the respective Secured
Obligations (as defined in the applicable Collateral Document in respect of any
Collateral), a valid and perfected First Priority Lien on all of the Collateral,
and all filings and other actions necessary or desirable to perfect and maintain
the perfection and First Priority status of such Liens have been duly made or
taken and remain in full force and effect, other than the filing of any UCC
financing statements delivered to Administrative Agent for filing (but not yet
filed) and the periodic filing of UCC continuation statements in respect of UCC
financing statements filed by or on behalf of Administrative Agent.
B. Governmental Authorizations. No authorization, approval or
---------------------------
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required for either (i) the pledge or grant by any Loan Party
of the Liens purported to be created in favor of Administrative Agent pursuant
to any of the Collateral Documents or (ii) the exercise by Administrative Agent
of any rights or remedies in respect of any Collateral (whether specifically
granted or created pursuant to any of the Collateral Documents or created or
provided for by applicable law), except for filings or recordings contemplated
by subsection 5.16A and except as may be required, in connection with the
disposition of any Pledged Collateral, by laws generally affecting the offering
and sale of securities.
C. Absence of Third-Party Filings. Except such as may have been
------------------------------
filed in favor of Administrative Agent as contemplated by subsection 5.16A, (i)
no effective UCC financing statement, fixture filing or other instrument similar
in effect covering all or any part of the Collateral is on file in any filing or
recording office and (ii) no effective filing covering all or any part of the IP
Collateral is on file in the PTO or the United States Copyright Office.
D. Margin Regulations. The pledge of the Pledged Collateral
------------------
pursuant to the Collateral Documents does not violate Regulation T, Regulation U
or Regulation X of the Board of Governors of the Federal Reserve System.
E. Information Regarding Collateral. All information supplied to
--------------------------------
any Agent by or on behalf of any Loan Party with respect to any of the
Collateral (in each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material respects.
5.17 Related Agreements.
------------------
Company has delivered to Administrative Agent complete and
correct copies of each Related Agreement and of all exhibits and schedules
thereto.
88
5.18 Disclosure.
----------
The representations of Company and its Subsidiaries contained in
the Loan Documents, the Related Agreements and in any other document,
certificate or written statement furnished to Lenders by or on behalf of Company
or any of its Subsidiaries for use in connection with the transactions
contemplated by this Agreement, when taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact (known to Company
or the applicable Subsidiary, in the case of any document not furnished by
Company or such Subsidiary) necessary in order to make the statements contained
herein or therein not misleading in light of the circumstances in which the same
were made. Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by
Company to be reasonable at the time made, it being recognized by Lenders 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. There is no fact known (or which should upon
the reasonable exercise of diligence be known) to Company (other than matters of
a general economic nature) that has had, or could reasonably be expected to
result in, a Material Adverse Effect and that has not been disclosed herein or
in such other documents, certificates and statements furnished to Lenders for
use in connection with the transactions contemplated hereby.
5.19 Subordination of Seller Notes.
-----------------------------
The subordination provisions of any Permitted Seller Notes, if
any, will be enforceable against the holders thereof, and the Loans and other
monetary obligations hereunder are and will be within the definition of "Senior
Indebtedness" included in such provisions.
5.20 Year 2000 Matters.
-----------------
Any reprogramming required to permit the proper functioning (but
only to the extent that such proper functioning would otherwise be impaired by
the occurrence of the year 2000) in and following the year 2000 of computer
systems and other equipment containing embedded microchips, in either case owned
or operated by Company or any of its Subsidiaries or used or relied upon in the
conduct of their business (including any such systems and other equipment
supplied by others or with which the computer systems of Company or any of its
Subsidiaries interface), and the testing of all such systems and other equipment
as so reprogrammed, will be completed by September 30, 1999. The costs to
Company and its Subsidiaries that have not been incurred as of the date hereof
for such reprogramming and testing and for the other reasonably foreseeable
consequences to them of any improper functioning of other computer systems and
equipment containing embedded microchips due to the occurrence of the year 2000
are not expected to result in a Default or Event of Default or to have a
Material Adverse Effect. Except for any reprogramming referred to above, the
computer systems of Company and its Subsidiaries are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement to be,
sufficient for the conduct of their business as currently conducted.
89
SECTION 6.
AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Company shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 6.
6.1 Financial Statements and Other Reports.
--------------------------------------
Company will maintain, and cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance with
sound business practices to permit preparation of financial statements in
conformity with GAAP. Company will deliver to Administrative Agent (and
Administrative Agent will, after receipt thereof, deliver to each Lender):
(i) Monthly Financials: as soon as available and in any
------------------
event within 30 days after each fiscal month-end (other than
March, June, September and December) thereafter, the consolidated
and consolidating statements of income (through the "Earnings
Before Tax" line) of Company and its Subsidiaries for such fiscal
month and for the period from the beginning of the then current
Fiscal Year to the end of such month, setting forth in each case
in comparative form the corresponding figures for the
corresponding periods of the previous fiscal year and the
corresponding figures from the consolidated plan and financial
forecast for the current Fiscal Year delivered pursuant to
subsection 6.1(xiii), all in reasonable detail and certified by
the chief financial officer of Company as being fairly stated in
all material respects, subject to changes resulting from audit
and normal year-end adjustments;
(ii) Quarterly Financials: as soon as available and in any
event within 45 days after the end of each Fiscal Quarter, (a)
the consolidated and consolidating balance sheets of Company and
its Subsidiaries as at the end of such Fiscal Quarter and the
related consolidated and consolidating statements of income,
stockholders' equity and cash flows of Company and its
Subsidiaries for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such
Fiscal Quarter, setting forth in each case in comparative form
the corresponding figures for the corresponding periods of the
previous fiscal year and the corresponding figures from the
consolidated plan and financial forecast for the current Fiscal
Year delivered pursuant to subsection 6.1(xiii), all in
reasonable detail and certified by the chief financial officer of
Company that they fairly present, in all material respects, the
financial condition of Company and its Subsidiaries as at the
dates indicated and the results of their operations and their
cash flows for the periods indicated, subject to changes
resulting from audit and normal year-end adjustments, and (b) a
narrative report describing the operations of Company and its
Subsidiaries in the form prepared for presentation to senior
management for such Fiscal Quarter and for the period
90
from the beginning of the then current Fiscal Year to the end of
such Fiscal Quarter;
(iii) Year-End Financials: as soon as available and in any
-------------------
event within 90 days after the end of each Fiscal Year, (a) the
consolidated and consolidating balance sheets of Company and its
Subsidiaries as at the end of such Fiscal Year and the related
consolidated and consolidating statements of income,
stockholders' equity and cash flows of Company and its
Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the corresponding figures for the previous
fiscal year and the corresponding figures from the consolidated
plan and financial forecast delivered pursuant to subsection
6.1(xiii) for the Fiscal Year covered by such financial
statements, all in reasonable detail and certified by the chief
financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its
Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, (b) a
narrative report describing the operations of Company and its
Subsidiaries in the form prepared for presentation to senior
management for such Fiscal Year, and (c) in the case of such
consolidated financial statements, a report thereon of
independent certified public accountants of recognized national
standing selected by Company and reasonably satisfactory to
Administrative Agent, which report shall be unqualified as to the
ability of Company and its Subsidiaries to continue as a going
concern and as to scope of audit, and shall state that such
consolidated financial statements fairly present, in all material
respects, the consolidated financial position of Company and its
Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated in
conformity with GAAP applied on a basis consistent with prior
years (except as otherwise disclosed in such financial
statements) and that the examination by such accountants in
connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards;
(iv) Officer's and Compliance Certificates: together with
-------------------------------------
each delivery of financial statements of Company and its
Subsidiaries pursuant to subdivisions (ii) and (iii) above, (a)
an Officer's Certificate of Company stating that the signer has
reviewed the terms of this Agreement and have made, or caused to
be made under their supervision, a review in reasonable detail of
the transactions and condition of Company and its Subsidiaries
during the accounting period covered by such financial statements
and that such review has not disclosed the existence during or at
the end of such accounting period, and that the signer does not
have knowledge of the existence as at the date of such Officer's
Certificate, of any condition or event that constitutes an Event
of Default or Potential Event of Default, or, if any such
condition or event existed or exists, specifying the nature and
period of existence thereof and what action Company has taken, is
taking and proposes to take with respect thereto; and (b) a
Compliance Certificate demonstrating in reasonable detail
compliance during and at the end of the applicable accounting
periods with the restrictions contained in
91
Section 7, in each case to the extent compliance with such restrictions is
required to be tested during or at the end of the applicable accounting
period;
(v) Reconciliation Statements: if, as a result of any change in
-------------------------
accounting principles and policies from those used in the preparation of
the audited financial statements referred to in subsection 5.3, the
consolidated financial statements of Company and its Subsidiaries delivered
pursuant to subdivisions (i), (ii), (iii) or (xiii) of this subsection 6.1
will differ in any material respect from the consolidated financial
statements that would have been delivered pursuant to such subdivisions had
no such change in accounting principles and policies been made, then (a)
together with the first delivery of financial statements pursuant to
subdivision (i), (ii), (iii) or (xiii) of this subsection 6.1 following
such change, consolidated financial statements of Company and its
Subsidiaries for (y) the current Fiscal Year to the effective date of such
change and (z) the two full Fiscal Years immediately preceding the Fiscal
Year in which such change is made, in each case prepared on a pro forma
basis as if such change had been in effect during such periods, and (b)
together with each delivery of financial statements pursuant to subdivision
(i), (ii), (iii) or (xiii) of this subsection 6.1 following such change, a
written statement of the chief accounting officer or chief financial
officer of Company setting forth the differences which would have resulted
if such financial statements had been prepared without giving effect to
such change;
(vi) Accountants' Certification: together with each delivery of
--------------------------
consolidated financial statements of Company and its Subsidiaries pursuant
to subdivision (iii) above, a written statement by the independent
certified public accountants giving the report thereon stating whether, in
connection with their audit examination, any condition or event, insofar as
such condition or event relates to the covenants set forth in subsection
7.6, that constitutes an Event of Default or Potential Event of Default has
come to their attention and, if such a condition or event has come to their
attention, specifying the nature and period of existence thereof; provided
--------
that such accountants shall not be liable by reason of any failure to
obtain knowledge of any such Event of Default or Potential Event of Default
that would not be disclosed in the course of their audit examination;
(vii) Accountants' Reports: promptly upon receipt thereof (unless
--------------------
restricted by applicable professional standards), copies of all reports
submitted to Company by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of Company and its Subsidiaries made by such accountants,
including, without limitation, any comment letter submitted by such
accountants to management in connection with their annual audit;
(viii) SEC Filings and Press Releases: promptly upon their becoming
------------------------------
available, copies of (a) all financial statements, reports, notices and
proxy statements sent or made available generally by Company to its
security
92
holders, (b) all regular and periodic reports and all registration
statements (other than on Form S-8 or a similar form) and
prospectuses, if any, filed by Company or any of its Subsidiaries with
any securities exchange or with the Securities and Exchange Commission
or any governmental or private regulatory authority, and (c) all press
releases and other statements made available generally by Company or
any of its Subsidiaries to the public concerning material developments
in the business of Company or any of its Subsidiaries;
(ix) Events of Default, etc.: promptly upon any officer of
-----------------------
Company obtaining knowledge (a) of any condition or event that
constitutes an Event of Default or Potential Event of Default, or
becoming aware that any Lender has given any notice (other than to
Administrative Agent) or taken any other action with respect to a
claimed Event of Default or Potential Event of Default, (b) that any
Person has given any notice to Company or any of its Subsidiaries or
taken any other action with respect to a claimed default or event or
condition of the type referred to in subsection 8.2, (c) of any
condition or event that is required to be disclosed in a current
report filed by Company with the Securities and Exchange Commission on
Form 8-K (Items 1, 2, 4, 5 and 6 of such Form as in effect on the date
hereof) if Company were required to file such reports under the
Exchange Act, or (d) of the occurrence of any event or change that has
caused or evidences, either in any case or in the aggregate, a
Material Adverse Effect, an Officer's Certificate specifying the
nature and period of existence of such condition, event or change, or
specifying the notice given or action taken by any such Person and the
nature of such claimed Event of Default, Potential Event of Default,
default, event or condition, and what action Company has taken, is
taking and proposes to take with respect thereto;
(x) Litigation or Other Proceedings: (a) promptly upon any
-------------------------------
officer of Company obtaining knowledge of the institution of, or non-
frivolous threat of, any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration against or affecting Company or any of its Subsidiaries or
any property of Company or any of its Subsidiaries (collectively,
"Proceedings") not previously disclosed in writing by Company to
Lenders or Administrative Agent any material development in any
Proceeding that, in any case:
(1) if adversely determined, has a reasonable possibility of
giving rise to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or
to recover any damages or obtain relief as a result of, the
transactions contemplated hereby;
written notice thereof together with such other information as may be
reasonably available to Company to enable Lenders and their counsel to
evaluate such matters; and (b) within 45 days after the end of each Fiscal
Quarter, a schedule of all Proceedings involving an alleged liability of,
or claims against or affecting, Company or any of its
93
Subsidiaries equal to or greater than $1,000,000 and promptly after request
by Administrative Agent such other information as may be reasonably
requested by Administrative Agent to enable Administrative Agent and its
counsel to evaluate any of such Proceedings;
(xi) ERISA Events: promptly upon becoming aware of the
------------
occurrence of any ERISA Event that could reasonably be expected to
result in a material liability, a written notice specifying the nature
thereof, what action Company or any of its ERISA Affiliates has taken,
is taking or proposes to take with respect thereto and, when known,
any action taken or threatened by the Internal Revenue Service, the
Department of Labor or the PBGC with respect thereto;
(xii) ERISA Notices: with reasonable promptness, copies of (a)
-------------
all written notices received by Company or any of its ERISA Affiliates
from a Multiemployer Plan sponsor concerning an ERISA Event; and (b)
such other documents or governmental reports or filings relating to
any Employee Benefit Plan as Administrative Agent shall reasonably
request;
(xiii) Financial Plans: as soon as available and in any event no
---------------
later than 90 days after the beginning of Fiscal Year 1999, and
thereafter as soon as practicable and in any event no later than 60
days after the beginning of each subsequent Fiscal Year, a monthly
consolidated and consolidating plan and financial forecast for such
Fiscal Year, including, without limitation, (a) forecasted
consolidated and consolidating balance sheets and forecasted
consolidated and consolidating statements of income and cash flows of
Company and its Subsidiaries for such Fiscal Year, together with a pro
forma Compliance Certificate for such Fiscal Year and an explanation
of the assumptions on which such forecasts are based, and (b) such
other information and projections as Administrative Agent may
reasonably request;
(xiv) Insurance: upon request by Administrative Agent, as soon
as practicable and in any event not less than once each Fiscal Year, a
report in form and substance satisfactory to Administrative Agent
outlining all material insurance coverage maintained as of the date of
such report by Company and its Subsidiaries and all material insurance
coverage planned to be maintained by Company and its Subsidiaries in
the immediately succeeding Fiscal Year;
(xv) Environmental Audits and Reports: as soon as practicable
--------------------------------
following receipt thereof, copies of all environmental audits and
reports, whether prepared by personnel of Company or any of its
Subsidiaries or by independent consultants, with respect to
significant environmental matters at any Facility or which relate to
an Environmental Claim which could result in a Material Adverse
Effect;
(xvi) Board of Directors: with reasonable promptness, written
------------------
notice of any change in the Board of Directors of Company;
94
(xvii) New Subsidiaries: promptly upon any Person becoming
----------------
a Subsidiary of Company, a written notice setting forth with
respect to such Person (a) the date on which such Person became a
Subsidiary of Company and (b) all of the data required to be set
forth in Schedule 5.1 annexed hereto with respect to all
------------
Subsidiaries of Company (it being understood that such written
notice shall be deemed to supplement Schedule 5.1 annexed hereto
------------
for all purposes of this Agreement); and
(xviii) Other Information: with reasonable promptness, such
-----------------
other information and data with respect to Company or any of its
Subsidiaries as from time to time may be reasonably requested by
Administrative Agent.
6.2 Corporate Existence, etc.
-------------------------
Except as permitted under subsection 7.7, Company will, and will
cause each of its Subsidiaries to, at all times preserve and keep in full force
and effect its corporate existence and all rights and franchises material to the
business of Company and its Subsidiaries (on a consolidated basis).
6.3 Payment of Taxes and Claims; Tax Consolidation.
----------------------------------------------
A. Company will, and will cause each of its Subsidiaries to, pay
all material taxes and all assessments and other governmental charges imposed
upon it or any of its properties or assets or in respect of any of its income,
businesses or franchises before any penalty accrues thereon, and all claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law have or may
become a Lien upon any of its properties or assets, prior to the time when any
penalty or fine shall be incurred with respect thereto; provided that no such
--------
charge or claim need be paid if it is being contested in good faith by
appropriate proceedings timely instituted and diligently conducted and if such
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor.
B. Company will not, nor will it permit any of its Subsidiaries
to, file or consent to the filing of any consolidated income tax return with any
Person other than a Subsidiary consolidated with the Company.
6.4 Maintenance of Properties; Insurance.
------------------------------------
Company will, and will cause each of its Subsidiaries to,
maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used or useful in the
business of Company and its Subsidiaries and from time to time will make or
cause to be made all appropriate repairs, renewals and replacements thereof.
Company will maintain or cause to be maintained, with financially sound and
reputable insurers, insurance with respect to its properties and business and
the properties and businesses of its Subsidiaries against loss or damage of the
kinds customarily carried or maintained under similar
95
circumstances by corporations of established reputation engaged in similar
businesses. Each such policy of casualty insurance covering damage to or loss of
property shall name Administrative Agent for the benefit of Agents and Lenders
as the loss payee thereunder for all losses, subject to application of proceeds
as required by subsection 2.4B(iii)(d), and shall provide for at least 30 days'
prior written notice to Administrative Agent of any modification or cancellation
of such policy.
6.5 Inspection; Lender Meeting.
--------------------------
Company shall, and shall cause each of its Subsidiaries to,
permit any authorized representatives designated by any Agent or Lender to visit
and inspect any of the properties of Company or any of its Subsidiaries,
including its and their financial and accounting records, and to make copies and
take extracts therefrom, and to discuss its and their affairs, finances and
accounts with its and their officers independent public accountants, all upon
reasonable advance notice and at such reasonable times during normal business
hours and as often as may be reasonably requested. Without in any way limiting
the foregoing, Company will, upon the request of Administrative Agent,
participate in a meeting of Agents and Lenders once during each Fiscal Year to
be held at Company's corporate offices (or such other location as may be agreed
to by Company and Administrative Agent) at such time as may be agreed to by
Company and Administrative Agent.
6.6 Compliance with Laws, etc.
--------------------------
Company shall, and shall cause each of its Subsidiaries to,
comply with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority (including all Pure Food and Drug Laws),
noncompliance with which could reasonably be expected to cause a Material
Adverse Effect.
6.7 Environmental Disclosure and Inspection.
---------------------------------------
A. Company shall, and shall cause each of its Subsidiaries to,
exercise all due diligence in order to comply and cause (i) all tenants under
any leases or occupancy agreements affecting any portion of the Facilities and
(ii) all other Persons on or occupying such property, to comply with all
Environmental Laws.
B. Company agrees that Administrative Agent may, from time to
time and in its reasonable discretion, retain, at Company's expense, an
independent professional consultant to review any report relating to Hazardous
Materials prepared by or for Company and to conduct its own investigation of any
Facility currently owned, leased, operated or used by Company or any of its
Subsidiaries, and Company agrees to use all reasonable efforts to obtain
permission for Administrative Agent's professional consultant to conduct its own
investigation of any such Facility previously owned, leased, operated or used by
Company or any of its Subsidiaries. Company shall use its reasonable efforts to
obtain for Administrative Agent and its agents, employees, consultants and
contractors the right, upon reasonable notice to Company, to enter into or on to
the Facilities currently owned, leased, operated or used by Company or any of
its Subsidiaries to perform such tests on such property as are reasonably
necessary to conduct such a review and/or investigation. Any such investigation
of any Facility shall be conducted, unless
96
otherwise agreed to by Company and Administrative Agent, during normal business
hours and, to the extent reasonably practicable, shall be conducted so as not to
interfere with the ongoing operations at any such Facility or to cause any
damage or loss to any property at such Facility. Company and Administrative
Agent hereby acknowledge and agree that any report of any investigation
conducted at the request of Administrative Agent pursuant to this subsection
6.7B will be obtained and shall be used by Administrative Agent and Lenders for
the purposes of Lenders' internal credit decisions, to monitor and police the
Loans and to protect Lenders' security interests, if any, created by the Loan
Documents. Administrative Agent agrees to deliver a copy of any such report to
Company with the understanding that Company acknowledges and agrees that (i) it
will indemnify and hold harmless each Agent and Lender from any costs, losses or
liabilities relating to any Loan Party's use of or reliance on such report, (ii)
no Agent nor any Lender makes any representation or warranty with respect to
such report, and (iii) by delivering such report to Company, no Agent nor any
Lender is requiring or recommending the implementation of any suggestions or
recommendations contained in such report.
C. Company shall promptly advise Administrative Agent in writing and
in reasonable detail of (i) any Release of any Hazardous Materials required to
be reported to any federal, state, local or foreign governmental or regulatory
agency under any applicable Environmental Laws, (ii) any and all written
communications with respect to any Environmental Claims that have a reasonable
possibility of giving rise to a Material Adverse Effect or with respect to any
Release of Hazardous Materials required to be reported to any federal, state or
local governmental or regulatory agency, (iii) any remedial action taken by
Company or any other Person in response to (x) any Hazardous Materials on, under
or about any Facility, the existence of which has a reasonable possibility of
resulting in an Environmental Claim having a Material Adverse Effect, or (y) any
Environmental Claim that could have a Material Adverse Effect, (iv) Company's
discovery of any occurrence or condition on any real property adjoining or in
the vicinity of any Facility that could cause such Facility or any part thereof
to be subject to any restrictions on the ownership, occupancy, transferability
or use thereof under any Environmental Laws, and (v) any request for information
from any governmental agency that suggests such agency is investigating whether
Company or any of its Subsidiaries may be potentially responsible for a Release
of Hazardous Materials.
D. Company shall promptly notify Administrative Agent of (i) any
proposed acquisition of stock, assets, or property by Company or any of its
Subsidiaries that could reasonably be expected to expose Company or any of its
Subsidiaries to, or result in, Environmental Claims that could have a Material
Adverse Effect or that could reasonably be expected to have a material adverse
effect on any Governmental Authorization then held by Company or any of its
Subsidiaries and (ii) any proposed action to be taken by Company or any of its
Subsidiaries to commence manufacturing, industrial or other similar operations
that could reasonably be expected to subject Company or any of its Subsidiaries
to additional laws, rules or regulations, including, without limitation, laws,
rules and regulations requiring additional environmental permits or licenses.
E. Company shall, at its own expense, provide copies of such documents
or information as Administrative Agent may reasonably request in relation to any
matters disclosed pursuant to this subsection 6.7.
97
6.8 Company's Remedial Action Regarding Hazardous Materials.
-------------------------------------------------------
Company shall promptly take, and shall cause each of its
Subsidiaries promptly to take, any and all necessary remedial action in
connection with the presence, storage, use, disposal, transportation or Release
of any Hazardous Materials on or under any Facility in order to comply with all
applicable Environmental Laws and Governmental Authorizations unless the failure
to so comply could not reasonably be expected to have a Material Adverse Effect.
In the event Company or any of its Subsidiaries takes any remedial action with
respect to any Hazardous Materials on or under any Facility, Company or such
Subsidiary shall conduct and complete such remedial action in material
compliance with all applicable Environmental Laws, and in accordance with the
policies, orders and directives of all federal, state and local governmental
authorities except when, and only to the extent that, Company's or such
Subsidiary's liability for such presence, storage, use, disposal, transportation
or Release of any Hazardous Materials is being contested in good faith by
Company or such Subsidiary.
6.9 Execution of Subsidiary Guaranty and Subsidiary Security Agreements by
----------------------------------------------------------------------
Subsidiaries and Future Subsidiaries.
------------------------------------
In the event that any Person becomes a Subsidiary of Company
after the date hereof, Company will promptly notify Administrative Agent of that
fact and cause each such Subsidiary to execute and deliver to Administrative
Agent a counterpart of the Subsidiary Guaranty, the Pledge Agreement and the
Security Agreement and a new patent and trademark agreement substantially
similar to the Patent and Trademark Security Agreement, the Log Cabin Patent and
Trademark Security Agreement, the Xxxxxx Xxxxx Patent and Trademark Security
Agreement, the Van xx Xxxx'x Patent and Trademark Security Agreement and the Sea
Coast Patent and Trademark Security Agreement (collectively, the "Subsidiary
Security Agreements"), and to take all such further actions and execute all such
further documents and instruments as may be required to grant and perfect in
favor of Administrative Agent, for the benefit of Lenders, a First Priority
security interest in all of the personal property assets of such Subsidiary
described in the Subsidiary Security Agreements. Company shall deliver to
Administrative Agent, together with such Loan Documents, (i) certified copies of
such Subsidiary's Articles or Certificate of Incorporation (or comparable
constituent documents), together, if applicable, with a good standing
certificate from the Secretary of State of the jurisdiction of its
incorporation, each to be dated a recent date prior to their delivery to
Administrative Agent, (ii) a copy, if applicable, of such Subsidiary's Bylaws,
certified by its corporate secretary or an assistant corporate secretary as of a
recent date prior to their delivery to Administrative Agent, (iii) a certificate
executed by the secretary or an assistant secretary of such Subsidiary as to (a)
the incumbency and signatures of the officers of such Subsidiary executing the
Subsidiary Guaranty and to which such Subsidiary is a party and (b) the fact
that the attached resolutions of the Board of Directors of such Subsidiary
authorizing the execution, delivery and performance of the Subsidiary Guaranty
and the Subsidiary Security Agreements to which such Subsidiary is a party are
in full force and effect and have not been modified or rescinded, and (iv) a
favorable opinion of counsel to such Subsidiary, in form and substance
satisfactory to Administrative Agent and its counsel, as to (a) the due
organization and good standing of such Subsidiary, (b) the due authorization,
execution and delivery by such Subsidiary of the Subsidiary Guaranty and the
Subsidiary Security Agreements to which such Subsidiary is a party, (c) the
enforceability of the Subsidiary Guaranty and the Subsidiary Security Agreements
to which such Subsidiary is a party against
98
such Subsidiary, and (d) such other matters as Administrative Agent may
reasonably request, all of the foregoing to be reasonably satisfactory in form
and substance to Administrative Agent and its counsel.
6.10 Conforming Leasehold Interests; Matters Relating to Additional Real
-------------------------------------------------------------------
Property Collateral.
-------------------
A. Conforming Leasehold Interests. If Company or any of its
------------------------------
Subsidiaries acquires any Leasehold Property, Company shall, or shall cause such
Subsidiary to, use its best efforts (without requiring Company or such
Subsidiary to relinquish any material rights or incur any material obligations
or to expend more than a nominal amount of money over and above the
reimbursement, if required, of the landlord's out-of-pocket costs, including
attorneys fees) to cause such Leasehold Property to be a Conforming Leasehold
Interest.
B. Additional Mortgages, etc. From and after the Closing Date,
--------------------------
in the event that (i) Company or any Subsidiary Guarantor acquires any fee
interest in real property or any Leasehold Property (other than a fee interest
in a Real Property Asset or Leasehold Property with a value of $500,000 or less)
or (ii) at the time any Person becomes a Subsidiary Guarantor, such Person owns
or holds any fee interest in real property or any Leasehold Property (other than
a fee interest in a Real Property Asset or Leasehold Property with a value of
$500,000 or less), in either case excluding any such Real Property Asset the
encumbrancing of which requires the consent of any applicable lessor or (in the
case of clause (ii) above) then-existing senior lienholder, where Company and
its Subsidiaries are unable to obtain such lessor's or senior lienholder's
consent (any such non-excluded Real Property Asset described in the foregoing
clause (i) or (ii) being a "Mortgaged Property"), Company or such Subsidiary
Guarantor shall deliver to Administrative Agent, as soon as practicable after
such Person acquires such Mortgaged Property or becomes a Subsidiary Guarantor,
as the case may be, the following:
(i) Additional Mortgage. A fully executed and
-------------------
notarized Mortgage in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering
the interest of such Loan Party in such Mortgaged Property;
(ii) Opinions of Counsel. (a) A favorable opinion of
-------------------
counsel to such Loan Party, in form and substance satisfactory to
Administrative Agent and its counsel, as to the due
authorization, execution and delivery by such Loan Party of such
Mortgage and such other matters as Administrative Agent may
reasonably request, and (b) if required by Administrative Agent,
an opinion of counsel (which counsel shall be reasonably
satisfactory to Administrative Agent) in the state in which such
Mortgaged Property is located with respect to the enforceability
of the form of Mortgage to be recorded in such state and such
other matters (including any matters governed by the laws of such
state regarding personal property security interests in respect
of any Collateral) as Administrative Agent may reasonably
request, in each case in form and substance reasonably
satisfactory to Administrative Agent;
99
(iii) Landlord Consent and Estoppel; Recorded Leasehold Interest.
----------------------------------------------------------
In the case of a Mortgaged Property consisting of a Leasehold Property, (a)
a Landlord Consent and Estoppel and (b) evidence that such Leasehold
Property is a Recorded Leasehold Interest;
(iv) Title Insurance. (a) If required by Administrative Agent,
---------------
an ALTA mortgagee title insurance policy or an unconditional commitment
therefor (a "Mortgage Policy") issued by the Title Company with respect to
such Mortgaged Property, in an amount satisfactory to Administrative Agent,
insuring fee simple title to, or a valid leasehold interest in, such
Mortgaged Property vested in such Loan Party and assuring Administrative
Agent that such Mortgage creates a valid and enforceable First Priority
mortgage Lien on such Mortgaged Property, subject only to a standard survey
exception, which Mortgage Policy (1) shall include an endorsement for
mechanics' liens, for future advances under this Agreement and for any
other matters reasonably requested by Administrative Agent and (2) shall
provide for affirmative insurance and such reinsurance as Administrative
Agent may reasonably request, all of the foregoing in form and substance
reasonably satisfactory to Administrative Agent; and (b) evidence
satisfactory to Administrative Agent that such Loan Party has (i) delivered
to the Title Company all certificates and affidavits required by the Title
Company in connection with the issuance of the Mortgage Policy and (ii)
paid to the Title Company or to the appropriate governmental authorities
all expenses and premiums of the Title Company in connection with the
issuance of the Mortgage Policy and all recording and stamp taxes
(including mortgage recording and intangible taxes) payable in connection
with recording the Mortgage in the appropriate real estate records;
(v) Title Report. If no Mortgage Policy is required with
------------
respect to such Mortgaged Property, a title report issued by the Title
Company with respect thereto, dated not more than 30 days prior to the date
such Mortgage is to be recorded and satisfactory in form and substance to
Administrative Agent;
(vi) Copies of Documents Relating to Title Exceptions. Copies
------------------------------------------------
of all recorded documents listed as exceptions to title or otherwise
referred to in the Mortgage Policy or title report delivered pursuant to
clause (v) or (vi) above;
(vii) Matters Relating to Flood Hazard Properties. (a) Evidence,
-------------------------------------------
which may be in the form of a letter from an insurance broker or a
municipal engineer, as to (1) whether such Mortgaged Property is a Flood
Hazard Property and (2) if so, whether the community in which such Flood
Hazard Property is located is participating in the National Flood Insurance
Program, (b) if such Mortgaged Property is a Flood Hazard Property, such
Loan Party's written acknowledgement of receipt of written notification
from Administrative Agent (1) that such Mortgaged Property is a Flood
Hazard Property and (2) as to whether the community in which such Flood
Hazard Property is located is participating in the National Flood Insurance
Program, and (c) in the event such Mortgaged
100
Property is a Flood Hazard Property that is located in a
community that participates in the National Flood Insurance
Program, evidence that Company has obtained flood insurance in
respect of such Flood Hazard Property to the extent required
under the applicable regulations of the Board of Governors of the
Federal Reserve System; and
(viii) Environmental Audit. If required by Administrative
-------------------
Agent, reports and other information, in form, scope and
substance satisfactory to Administrative Agent and prepared by
environmental consultants satisfactory to Administrative Agent,
concerning any environmental hazards or liabilities to which
Company or any of its Subsidiaries may be subject with respect to
such Mortgaged Property.
6.11 Interest Rate Protection.
------------------------
Within 180 days after the Effective Date, Company shall enter
into one or more Interest Rate Agreements with respect to the Loans, in an
amount of not less than 50% of the aggregate amount of Consolidated Total Debt,
which Interest Rate Agreements shall have the effect of establishing a maximum
interest rate of not more than 10% per annum with respect to such notional
principal amount, each such Interest Rate Agreement to be in form and substance
satisfactory to Administrative Agent and with a term of not less than three
years from the Existing Effective Date.
6.12 Further Assurances.
------------------
At any time or from time to time upon the request of
Administrative Agent, Company will, at its expense, promptly execute,
acknowledge and deliver such further documents and do such other acts and things
as Administrative Agent may reasonably request in order to effect fully the
purposes of the Loan Documents and to provide for payment of the Obligations in
accordance with the terms of this Agreement, the Notes and the other Loan
Documents. In furtherance and not in limitation of the foregoing, Company shall
take, and cause each of its Subsidiaries to take, such actions as Administrative
Agent may reasonably request from time to time (including, without limitation,
the execution and delivery of guaranties, security agreements, pledge
agreements, Mortgages, stock powers, financing statements and other documents,
the filing or recording of any of the foregoing, title insurance with respect to
any of the foregoing that relates to an interest in real property, the delivery
of stock certificates and other collateral with respect to which perfection is
obtained by possession, and the obtaining of Collateral Access Agreements, in
form and substance satisfactory to Administrative Agent, executed by any Person
which is party to a co-packing agreement with Company or any of its Subsidiaries
under which equipment of Company or its Subsidiaries is maintained at a facility
of such Person) to ensure that the Obligations are guarantied by Subsidiary
Guarantors and are secured by substantially all of the assets of Company and its
Subsidiaries and all of the capital stock of Company and Subsidiary Guarantors.
In the event that Company or any of its Subsidiaries creates a new Subsidiary,
all of the capital stock or partnership interests of such new Subsidiary shall
be duly and validly pledged to Administrative Agent for the benefit of Agents
and Lenders pursuant to the Collateral Documents, subject to no other Liens.
101
SECTION 7.
NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Company shall perform, and shall cause each of its Subsidiaries to
perform, all covenants in this Section 7.
7.1 Indebtedness.
------------
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or guaranty, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Company may become and remain liable with respect to
the Obligations;
(ii) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations permitted by subsection
7.4 and, upon any matured obligations actually arising pursuant
thereto, the Indebtedness corresponding to the Contingent Obligations
so extinguished (other than any such Indebtedness corresponding to
extinguished Contingent Obligations permitted under subsections
7.4(i)(b));
(iii) Company and its Subsidiaries may become and remain
liable with respect to Indebtedness (a) under Capital Leases
capitalized on the consolidated balance sheet of Company as
liabilities, (b) in respect of sale and lease-back transactions
expressly permitted under subsection 7.8 and (c) secured by Liens
permitted under subsection 7.2A(iii); provided that the aggregate
--------
amount of Indebtedness permitted under this clause (iii) shall not
exceed $15,000,000 at any time outstanding;
(iv) Company may become and remain liable with respect to
Indebtedness to any of its domestic Wholly Owned Subsidiaries, and any
domestic Wholly Owned Subsidiary of Company may become and remain
liable with respect to Indebtedness to Company or any other domestic
Wholly Owned Subsidiary of Company, provided that (a) all such
--------
intercompany Indebtedness shall be evidenced by promissory notes, (b)
all such intercompany Indebtedness owed by Company to any of its
respective Subsidiaries shall be subordinated in right of payment to
the payment in full of the Obligations pursuant to the terms of the
applicable promissory notes or an intercompany subordination
agreement, in each case in form and substance satisfactory to
Administrative Agent, and (c) any payment by Company or by any
Subsidiary of Company under any guaranty of the Obligations shall
result in a pro tanto reduction of the amount of any intercompany
--- -----
Indebtedness owed by Company or by such Subsidiary to Company or to
any of its Subsidiaries for whose benefit such payment is made;
102
(v) Company may become and remain liable with respect to
Indebtedness under the Subordinated Note Documents;
(vi) Company may become and remain liable with respect to
Indebtedness the proceeds of which are applied to refinance all
or a portion of the Term Loans, the Revolving Loans and the
Subordinated Notes; provided, that such Indebtedness shall be
--------
subordinated in right of payment to the Obligations pursuant to
documentation containing maturities, amortization schedules,
covenants, defaults, remedies, subordination provisions and other
material terms which taken as a whole are no less favorable to
Company, its Subsidiaries and Lenders than the corresponding
terms of the Subordinated Note Documents, with interest payable
thereon in amounts consistent with the then prevailing rate in
the market for comparable debt Securities;
(vii) Company may become and remain liable with respect to
Permitted Seller Notes; provided that the aggregate principal
--------
amount of such Permitted Seller Notes issued after the Closing
Date shall not exceed $10,000,000; and
(viii) Company and its Subsidiaries may become and remain
liable with respect to other Indebtedness in an aggregate
principal amount not to exceed at any time outstanding
$25,000,000.
7.2 Liens and Related Matters.
-------------------------
A. Prohibition on Liens. Company shall not, and shall not permit
--------------------
any of its Subsidiaries to, directly or indirectly, create, incur, assume or
permit to exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement, or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the Uniform Commercial Code of any state or under any similar
recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens securing Indebtedness permitted by subsection
7.1(iii)(c) incurred (a) to finance the acquisition, construction
or improvement of any tangible personal property assets, provided
--------
that (1) such Liens shall be created within 180 days after the
acquisition, construction or improvement of such assets, and (2)
the principal amount of Indebtedness secured by any such Liens
shall at no time exceed 100%, and the proceeds of such
Indebtedness shall be used to provide not less than 80%, of the
original purchase price of such asset or the amount expended to
construct or improve such asset, as the case may be; or
103
(b) to renew, extend or refinance any Indebtedness described in clause
(a), provided that the amount of any such Indebtedness does not exceed
--------
the amount of Indebtedness so renewed, extended or refinanced which is
unpaid and outstanding immediately prior to such renewal, extension or
refinancing; provided, that in the case of clause (a) or (b) such
--------
Liens attach solely the assets financed with such Indebtedness;
(iv) Liens on any asset securing Indebtedness permitted by
Section 7.1(iii)(b); provided that (a) the proceeds of such
--------
Indebtedness shall be at least equal to 80% of the fair market value
(as determined in good faith by the Board of Directors, or any duly
authorized committee thereof, of Company) of such asset and (b) at the
time of incurrence of such Indebtedness, no Event of Default shall
have occurred and be continuing or would result therefrom;
(v) Liens on assets held under Capital Leases permitted under
subsection 7.1(iii)(a); and
(vi) Other Liens on assets of Company and its Subsidiaries
securing Indebtedness in an aggregate amount not to exceed $2,500,000
at any time outstanding.
B. Equitable Lien in Favor of Lenders. If Company or any of its
----------------------------------
Subsidiaries shall create or assume any consensual Lien upon any of its
properties or assets, whether now owned or hereafter acquired, other than Liens
excepted by the provisions of subsection 7.2A, it shall make or cause to be made
effective provision whereby the Obligations will be secured by such Lien equally
and ratably with any and all other Indebtedness secured thereby as long as any
such Indebtedness shall be so secured; provided that, notwithstanding the
--------
foregoing, this covenant shall not be construed as a consent by Requisite
Lenders to the creation or assumption of any such Lien not permitted by the
provisions of subsection 7.2A.
C. No Further Negative Pledges. Except with respect to specific
---------------------------
property encumbered to secure payment of particular Indebtedness or to be sold
pursuant to an executed agreement with respect to an Asset Sale, neither Company
nor any of its Subsidiaries shall enter into any agreement prohibiting the
creation or assumption of any Lien which secures the Obligations upon any of its
properties or assets, whether now owned or hereafter acquired.
D. No Restrictions on Subsidiary Distributions to Company or Other
---------------------------------------------------------------
Subsidiaries. Except as provided herein Company will not, and will not permit
------------
any of its Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any such Subsidiary to (i) pay dividends or make any other
distributions on any of such Subsidiary's capital stock owned by Company or any
other Subsidiary of Company, (ii) repay or prepay any Indebtedness owed by such
Subsidiary to Company or any other Subsidiary of Company, (iii) make loans or
advances to Company or any other Subsidiary of Company, or (iv) transfer any of
its property or assets to Company or any other Subsidiary of Company.
104
7.3 Investments; Joint Ventures.
---------------------------
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, make or own any Investment in any Person, including
any Joint Venture, except:
(i) Company and its Subsidiaries may make and own
Investments in Cash Equivalents;
(ii) Company and its Subsidiaries may make intercompany
loans to the extent permitted under subsection 7.1(iv);
(iii) Company and its Subsidiaries may make Consolidated
Capital Expenditures permitted by subsection 7.6D;
(iv) Company and its Subsidiaries may make and own
Investments in connection with a Permitted Acquisition;
(v) Company and its Subsidiaries may make and own other
Investments in an aggregate amount not to exceed at any time
$7,500,000.
7.4 Contingent Obligations.
----------------------
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or become or remain liable with respect to
any Contingent Obligation, except:
(i) Subsidiaries of Company may become and remain liable
with respect to Contingent Obligations arising under (a) their
respective Guaranties and (b) guarantees of Indebtedness under
the Subordinated Note Documents or permitted under subsection
7.1(vi);
(ii) Company may become and remain liable with respect to
Contingent Obligations in respect of Letters of Credit;
(iii) Company may become and remain liable with respect to
Contingent Obligations under Interest Rate Agreements entered
into (a) with Lenders or Affiliates of Lenders with respect to
which the aggregate net amount which Company would be liable to
pay to counterparties thereunder in the event all such Interest
Rate Agreements were terminated at the time of determination
shall not exceed $2,500,000 at any time and (b) as required under
subsection 6.11 herein;
(iv) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations in respect of
customary indemnification and purchase price adjustment
obligations incurred in the ordinary course of business in
connection with Asset Sales or other sales of assets;
105
(v) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations under guarantees in
the ordinary course of business of the obligations of suppliers,
landlords, customers, franchisees and licensees of Company and
its Subsidiaries in an aggregate amount not to exceed at any time
$1,000,000;
(vi) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations under food product
futures arrangements consistent with past practices of the
Business, the Log Cabin Business, the Xxxxxx Xxxxx Business, Sea
Coast and Van xx Xxxx'x and of any business acquired under
subsection 7.7(vi) for the supply of food products used in the
business of Company and its Subsidiaries; and
(vii) Company and its Subsidiaries may become and remain
liable with respect to other Contingent Obligations; provided
--------
that the maximum aggregate liability, contingent or otherwise, of
Company and its Subsidiaries in respect of all such Contingent
Obligations shall at no time exceed $1,000,000.
7.5 Restricted Junior Payments.
--------------------------
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, declare, order, pay, make or set apart any sum for
any Restricted Junior Payment; provided that (i) Company may make scheduled
--------
interest payments in respect of the Subordinated Notes in accordance with the
terms thereof and of the Subordinated Note Indentures; provided, that to the
--------
extent the Subordinated Note Indentures permit Company to pay interest thereon
or liquidated damages in like-kind instruments in a principal amount equal to
the amount of such interest or liquidated damages, Company shall pay such
interest or liquidated damages in such like-kind instruments; (ii) Company may
make Restricted Junior Payments to the extent necessary to redeem or defease all
or any portion of the Indebtedness under the Subordinated Note Documents with
proceeds from Indebtedness permitted under subsection 7.1(vi); (iii) Company may
make scheduled interest payments in respect of Permitted Seller Notes permitted
under subsection 7.1(vii) in accordance with the terms of such Permitted Seller
Notes; (iv) Company may make regularly scheduled payments of interest in respect
of any Subordinated Indebtedness in accordance with the terms of, and only to
the extent required by, and subject to the subordination provisions contained
in, the indenture or other agreement pursuant to which such Subordinated
Indebtedness was issued, as such indenture or other agreement may be amended
from time to time to the extent permitted under subsection 7.12B; provided, that
--------
to the extent the terms of such Subordinated Indebtedness permit Company to pay
interest or liquidated damages on such Subordinated Indebtedness in like-kind
instruments in a principal amount equal to the amount of such interest or
liquidated damages, Company shall pay such interest or liquidated damages with
such like-kind instruments; (v) Company may make Restricted Junior Payments to
the extent necessary to redeem or defease all or any portion of the Indebtedness
under the Subordinated Note Documents, provided that (a) no Event of Default or
--------
Potential Event of Default shall have occurred and be continuing or shall be
caused thereby, (b) Company shall be in compliance, on a pro forma basis giving
effect thereto, with the covenants set forth in subsection 7.6 hereof, (c) the
Senior Leverage Ratio (calculated on a pro forma basis giving effect to such
redemption or defeasance) shall be less than 3.75:1.00 if such redemption or
defeasance shall occur in 1998 or 1999, less than 3.50:1.00 if such redemption
or defeasance
106
shall occur in 2000 or 2001, and less than 3.25: 1.00 if such redemption or
defeasance shall occur thereafter, (d) after giving effect to any such
redemption or defeasance, the sum of (x) the amount of cash on hand of Company
plus (y) the amount by which the Revolving Credit Commitments exceed the Total
----
Utilization of the Revolving Loan Commitments, shall equal or exceed $40,000,000
(and Company shall have delivered to Administrative Agent an Officer's
Certificate (together with supporting information therefor), in form and
substance reasonably satisfactory to Administrative Agent, certifying to the
effect of clauses (b), (c) and (d)) and (e) and the aggregate amount of such
redemption or defeasance, together with any other such redemption or defeasance
since the Existing Effective Date, shall not exceed $100,000,000 plus the
applicable premium; and (vi) Company may make dividends or other distributions,
direct or indirect, on account of any shares of any class of capital stock of
Company; provided that (a) the Senior Leverage Ratio (calculated on a pro forma
--------
basis giving effect thereto) shall be less than 2.00:1.00 or (b) either of the
publicly announced ratings S&P or Xxxxx'x of the current senior unsecured, non-
credit enhanced long term Indebtedness of Company that has been publicly issued
are BBB-or better or Baa3 or better, respectively, and the amount of such
dividend shall not exceed 50% of Company's cumulative positive net income.
7.6 Financial Covenants.
-------------------
A. Minimum Consolidated Cash Interest Coverage Ratio. Company
-------------------------------------------------
shall not permit the Consolidated Cash Interest Coverage Ratio for any four-
Fiscal Quarter period ending during any of the test periods set forth in the
table below to be less than the correlative ratio for such test period set forth
in the table below:
----------------------------------------------------------------
MINIMUM CONSOLIDATED
CASH INTEREST COVERAGE
TEST PERIOD RATIO
----------------------------------------------------------------
7/01/98 - 12/31/98 1.90:1.00
----------------------------------------------------------------
1/01/99 - 12/31/99 2.00:1.00
----------------------------------------------------------------
1/01/00 - 12/31/00 2.00:1.00
----------------------------------------------------------------
1/01/01 - 12/31/01 2.25:1.00
----------------------------------------------------------------
1/01/02 - 12/31/02 2.50:1.00
----------------------------------------------------------------
1/01/03 - 12/31/03 2.50:1.00
----------------------------------------------------------------
1/01/04 - 12/31/04 2.50:1.00
----------------------------------------------------------------
1/01/05 - 9/30/06 2.50:1.00
================================================================
B. Maximum Leverage Ratio. Company shall not permit the ratio of
(i) the excess of (a) Consolidated Total Debt as of the last day of any Fiscal
Quarter ending during any of the test periods set forth in the table below minus
-----
(b) cash on hand of Company to the extent the amount of such cash exceeds
$3,500,000 as of such date, to (ii) Consolidated EBITDA for
107
the four-Fiscal Quarter period ending on such date to exceed the correlative
ratio for such test period set forth in the table below:
----------------------------------------------------------------
MAXIMUM
TEST PERIOD LEVERAGE RATIO
----------------------------------------------------------------
7/01/98 - 12/31/98 5.70:1.00
----------------------------------------------------------------
1/01/99 - 12/31/99 5.50:1.00
----------------------------------------------------------------
1/01/00 - 12/31/00 5.00:1.00
----------------------------------------------------------------
1/01/01 - 12/31/01 4.50:1.00
----------------------------------------------------------------
1/01/02 - 12/31/02 4.00:1.00
----------------------------------------------------------------
1/01/03 - 12/31/03 3.50:1.00
----------------------------------------------------------------
1/01/04 - 6/30/04 3.50:1.00
----------------------------------------------------------------
7/01/04 - 9/30/06 3.00:1.00
================================================================
C. Minimum Fixed Charge Coverage Ratio. Company shall not permit
-----------------------------------
the ratio of (i) Consolidated EBITDA for any four-Fiscal Quarter period ending
during any of the test periods set forth in the table below to (ii) Consolidated
Fixed Charges for such four-Fiscal Quarter period to be less than the
correlative ratio for such test period set forth in the table below:
----------------------------------------------------------------
MINIMUM FIXED CHARGE
TEST PERIOD COVERAGE RATIO
----------------------------------------------------------------
7/01/98 - 12/31/98 1.10:1.00
----------------------------------------------------------------
1/01/99 - 12/31/99 1.15:1.00
----------------------------------------------------------------
1/01/00 - 12/31/00 1.15:1.00
----------------------------------------------------------------
1/01/01 - 12/31/01 1.20:1.00
----------------------------------------------------------------
1/01/02 - 12/31/02 1.20:1.00
----------------------------------------------------------------
1/01/03 - 12/31/03 1.25:1.00
----------------------------------------------------------------
1/01/04 - 12/31/04 1.25:1.00
----------------------------------------------------------------
1/01/05 - 9/30/06 1.25:1.00
================================================================
D. Maximum Consolidated Capital Expenditures. Company shall not,
-----------------------------------------
and shall not permit any of its respective Subsidiaries to, make or incur
Consolidated Capital Expenditures, in any Fiscal Year indicated below, in an
aggregate amount in excess of the corresponding amount (the "Maximum
Consolidated Capital Expenditures Amount") set forth
108
below opposite such Fiscal Year; provided that the Maximum Consolidated Capital
--------
Expenditures Amount for any Fiscal Year shall be increased by an amount equal to
the excess, if any (but in no event more than 50% of the Maximum Consolidated
Capital Expenditures Amount for the previous Fiscal Year), of the Maximum
Consolidated Capital Expenditures Amount for the previous Fiscal Year over the
actual amount of Consolidated Capital Expenditures for such previous Fiscal
Year:
--------------------------------------------------------------------------
MAXIMUM CONSOLIDATED CAPITAL
FISCAL YEAR EXPENDITURES AMOUNT
(OR PORTION THEREOF)
--------------------------------------------------------------------------
Fiscal Year ending in December 1998 $25,000,000
and each Fiscal Year thereafter
--------------------------------------------------------------------------
; provided, however, that for purposes of this subsection 7.6D, Consolidated
-------- -------
Capital Expenditures shall not include (i) expenditures not exceeding $6,000,000
in the aggregate incurred on or prior to September 30, 1998 related to the
Business and the Log Cabin Business (a) to relocate Company's assets, (b) to
purchase computers and computer related equipment and (c) to pay transition
related expenses in connection with the foregoing, (ii) expenditures not
exceeding $15,000,000 in the aggregate incurred on or prior to June 30, 1999 to
relocate Company's assets related to the Xxxxxx Xxxxx Business and transition
related expenses in connection therewith and (iii) expenditures not exceeding
$5,000,000 in the aggregate incurred on or prior to December 31, 1998 related to
additional capital expenditure projects previously identified at Van xx Xxxx'x.
E. Certain Calculations.
--------------------
(i) With respect to calculations of Consolidated Fixed
Charges, Consolidated EBITDA and Consolidated Cash Interest
Expense for any four-Fiscal Quarter period including the
Effective Date (each such period being a "Pro Forma Calculation
Period"), such calculations shall be made on a pro forma basis
assuming, in each case, (a) that the Effective Date, the Sea
Coast Acquisition and the related borrowings by Company pursuant
to this Agreement occurred on the first day of the applicable Pro
Forma Calculation Period; (b) that Consolidated EBITDA and
Consolidated Capital Expenditures for the three applicable Fiscal
Quarters ending prior to the Effective Date are as set forth on
Schedule 7.6E annexed hereto; and (c) that, with respect to
-------------
calculations of Consolidated Cash Interest Expense and each
component of Consolidated Fixed Charges other than Consolidated
Capital Expenditures (Consolidated Cash Interest Expense and each
such component being, individually, a "Fixed Charge Component"),
the amount of each such Fixed Charge Component for the Pro Forma
Calculation Period for the three applicable Fiscal Quarters
ending prior to the Effective Date are as set forth on Schedule
--------
7.6E annexed hereto.
----
(ii) With respect to any period during which new
Subsidiaries, assets or businesses are acquired pursuant to
subsection 7.7(vi), for purposes of determining compliance with
the financial covenants set forth in this subsection
109
7.6, Consolidated EBITDA and Consolidated Interest Expense shall
be calculated with respect to such periods and such Subsidiaries,
assets or businesses on a pro forma basis (including (x) any
adjustments certified by the chief financial officer of the
Company, that would, in the reasonable determination of the
Company satisfy the requirements of Rule 11-02(a) of
Regulation S-X of the Securities Act as if included in a
registration statement filed with the Securities and Exchange
Commission and (y) any other operating expense reductions
reasonably expected to result from any acquisition of stock or
assets if such expected reductions are (1) set forth in
reasonable detail in a plan approved by and set forth in
resolutions adopted by the Board of Directors of the Company, and
(2) limited to operating expenses specified in such plan (and, if
any reductions are set forth in a range, the lowest amount of
such range) that would otherwise have resulted in the payment of
cash within twelve months after the date of consummation of such
transaction, net of any operating expenses (other than
extraordinary items, non-recurring or temporary charges and other
similar one-time expenses) reasonably expected to be incurred to
implement such plan, and that are to be paid in cash during such
twelve-month period, certified by the chief financial officer of
the Company) using the historical financial statements of all
entities or assets so acquired or to be acquired and the
consolidated financial statements of Company and its Subsidiaries
which shall be reformulated (i) as if such acquisition, and any
acquisitions which have been consummated during such period, and
any Indebtedness or other liabilities incurred in connection with
any such acquisition had been consummated or incurred at the
beginning of such period (and assuming that such Indebtedness
bears interest during any portion of the applicable measurement
period prior to the relevant acquisition at the weighted average
of the interest rates applicable to outstanding Loans during such
period), and (a) otherwise in conformity with certain procedures
to be agreed upon between Administrative Agent and Company, all
such calculations to be in form and substance satisfactory to
Administrative Agent.
7.7 Restriction on Fundamental Changes; Asset Sales.
-----------------------------------------------
Company shall not, and shall not permit any of its Subsidiaries
to, alter the corporate, capital or legal structure of Company or any of its
Subsidiaries, create any new Subsidiaries or enter into any transaction of
merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, sub-lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or any
substantial part of its business, property or fixed assets, whether now owned or
hereafter acquired, or acquire by purchase or otherwise any part of the
business, property or fixed assets of, or stock or other evidence of beneficial
ownership of, any Person, except:
(i) any Subsidiary of Company may be merged with or into
Company or any wholly owned Subsidiary Guarantor, or be
liquidated, wound up or dissolved, or all or any substantial part
of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of, in one transaction
or a series of transactions, to Company or any wholly owned
Subsidiary
110
Guarantor; provided that, in the case of such a merger, Company
--------
or such wholly owned Subsidiary Guarantor shall be the continuing
or surviving corporation;
(ii) Company and its Subsidiaries may make Consolidated
Capital Expenditures permitted under subsection 7.6D;
(iii) Company and its Subsidiaries may acquire inventory,
equipment and other assets in the ordinary course of business;
(iv) Company and its Subsidiaries may sell or otherwise
dispose of assets in transactions that do not constitute Asset Sales;
provided that the consideration received for such assets shall be in
--------
an amount at least equal to the fair market value thereof (determined
in good faith by the board of directors of Company);
(v) Company and its Subsidiaries may make any Asset Sale
of assets that have, in the aggregate, a fair market value (determined
in good faith by the board of directors of Company) not in excess of
10% of Consolidated EBITDA for the four-Fiscal Quarter period most
recently ended prior to such Asset Sale; provided that (x) the
--------
consideration received for such assets shall be in an amount at least
equal to the fair market value thereof (determined in good faith by
the board of directors of Company); (y) not less than 80% of the
consideration received shall be cash; and (z) the proceeds of such
Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
and
(vi) Company or any Subsidiary of Company may make
acquisitions of assets and businesses (including acquisitions of the
capital stock or other equity interests of another Person), provided
--------
that:
(a) immediately prior to and after giving effect to any such
acquisition, Company and its Subsidiaries shall be in compliance with the
provisions of subsection 7.11 hereof;
(b) after giving effect to any such acquisition, the sum of (x) the
amount of cash on hand of Company and its Subsidiaries plus (y) the amount
----
by which the Revolving Loan Commitments exceed the Total Utilization of
Revolving Loan Commitments, shall equal or exceed $40,000,000;
(c) (1) Company shall be in compliance, on a pro forma basis giving
effect to the proposed acquisition, with the covenants set forth in
subsection 7.6 hereof, (2) the Senior Leverage Ratio (calculated on a pro
forma basis giving effect to the proposed acquisition) shall be less than
3.75:1.00 in Fiscal Years 1998 and 1999, 3.50:1.00 in Fiscal Years 2000 and
2001, and 3.25:1.00 thereafter and (3) no Event of Default or Potential
Event of Default shall have occurred and be continuing at the time of such
acquisition or shall be caused thereby; and Company shall have delivered to
Administrative Agent an Officer's Certificate (together with supporting
information therefor), in form and substance reasonably satisfactory to
Administrative Agent, certifying as to the foregoing and as to the matters
referred to in subsections 7.7(vi)(a) and (b) above;
111
(d) any assets acquired pursuant to such acquisition shall be
subject to a First Priority Lien in favor of the Administrative Agent on
behalf of Lenders pursuant to the Collateral Documents; and
(e) each such acquisition shall be made on a fully consensual
basis between Company and its Subsidiaries, on the one hand, and the seller
or sellers of such assets or such business, on the other hand.
7.8 Sales and Lease-Backs.
---------------------
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, become or remain liable as lessee or as a guarantor
or other surety with respect to any lease, whether an Operating Lease or a
Capital Lease, of any property (whether real, personal or mixed), whether now
owned or hereafter acquired, (i) which Company or any of its Subsidiaries has
sold or transferred or is to sell or transfer to any other Person (other than
Company or any of its Subsidiaries) or (a) which Company or any of its
Subsidiaries intends to use for substantially the same purpose as any other
property which has been or is to be sold or transferred by Company or any of its
Subsidiaries to any Person (other than Company or any of its Subsidiaries) in
connection with such lease, except that Company and its Subsidiaries may enter
into such sale and lease-back transactions so long as the aggregate sales price
under all such transactions in any Fiscal Year does not exceed $5,000,000.
7.9 Transactions with Shareholders and Affiliates.
---------------------------------------------
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any holder of 5% or more of any
class of equity Securities of Company or with any Affiliate of Company or of any
such holder, on terms that are less favorable to Company or that Subsidiary, as
the case may be, than those that might be obtained at the time from Persons who
are not such a holder or Affiliate; provided that the foregoing restriction
--------
shall not apply to (i) any transaction between Company and any of its Wholly
Owned Subsidiaries or between any of its Wholly Owned Subsidiaries, (ii)
reasonable and customary fees paid to members of the boards of directors of
Company and its Subsidiaries, (iii) fees, expenses and other amounts payable to
the MDC Entities, Fenway, Dartford, UBS, Tiger and CALPERS on the Existing
Effective Date, (iv) the Management Fees, (v) any employment agreement entered
into by Company or any of its Subsidiaries in the ordinary course of business,
(vi) amounts paid under the Dartford Expense Agreement, and (vii) any issuance
of capital stock of Company in connection with employment arrangements, stock
options and stock ownership plans of Company or any of its Subsidiaries entered
into in the ordinary course of business.
7.10 Disposal of Subsidiary Stock.
----------------------------
Company shall not:
112
(i) directly or indirectly sell, assign, pledge or
otherwise encumber or dispose of any shares of capital stock or
other equity Securities of any of its Subsidiaries, except as
permitted under this Agreement or the Collateral Documents or to
qualify directors if required by applicable law; or
(ii) permit any of its Subsidiaries directly or indirectly
to sell, assign, pledge or otherwise encumber or dispose of any
shares of capital stock or other equity Securities of any of its
Subsidiaries (including such Subsidiary), except as permitted
under this Agreement or the Collateral Documents or to Company,
another Wholly Owned Subsidiary of Company, or to qualify
directors if required by applicable law.
7.11 Conduct of Business.
-------------------
Company shall not, and shall not permit any of its Subsidiaries
to, engage in any business other than (i) the businesses engaged in by Company
and its Subsidiaries on the Effective Date and those food businesses which are
reasonably related to such businesses, and (ii) such other lines of business as
may be consented to by Administrative Agent and Requisite Lenders.
7.12 Amendments or Waivers of Certain Related Agreements;
Amendments of Documents Relating to Subordinated Indebtedness; Designation of
"Designated Senior Indebtedness"; Preferred Stock.
---------------
A. Amendments or Waivers of Certain Related Agreements. Neither
---------------------------------------------------
Company nor any of its Subsidiaries will agree to any material amendment to, or
waive any of its material rights under, any of the Acquisition Agreement, the
Log Cabin Acquisition Agreement, the Xxxxxx Xxxxx Acquisition Agreement, the Sea
Coast Acquisition Agreement, the Assumption Agreement, the Log Cabin Assumption
Agreement, the Xxxxxx Xxxxx Assumption Agreement, the MDC Advisory Agreement,
the Dartford Advisory Agreement, the Fenway Advisory Agreement, the Transition
Agreements, the Log Cabin Transition Agreements, the Xxxxxx Xxxxx Transition
Agreements, the Xxxxxxx Co-Pack Agreement or the Red Wing Co-Pack Agreements
after the Effective Date if such amendment or waiver would be adverse to Lenders
without in each case obtaining the prior written consent of Requisite Lenders to
such amendment or waiver.
B. Amendments of Documents Relating to Subordinated Indebtedness.
-------------------------------------------------------------
Company shall not, and shall not permit any of its Subsidiaries to, amend or
otherwise change the terms of any Subordinated Indebtedness, or make any payment
consistent with an amendment thereof or change thereto, if the effect of such
amendment or change is to increase the interest rate on such Subordinated
Indebtedness, change (to earlier dates) any dates upon which payments of
principal or interest are due thereon, change any event of default or condition
to an event of default with respect thereto (other than to eliminate any such
event of default or increase any grace period related thereto), change the
redemption, prepayment or defeasance provisions thereof, change the
subordination provisions thereof (or of any guaranty thereof), or change any
collateral therefor (other than to release such collateral), or if the effect of
such amendment or change, together with all other amendments or changes made, is
to increase materially the obligations of the obliger thereunder or to confer
any additional rights on the holders of such Subordinated
113
Indebtedness (or trustee or other representative on their behalf) which would be
adverse to Company or Lenders.
C. Designation of "Designated Senior Indebtedness". Company
-----------------------------------------------
shall not designate any Indebtedness as "Designated Senior Indebtedness" (as
defined in the Subordinated Note Indentures) for purposes of the Subordinated
Note Indentures, without the prior written consent of Requisite Lenders.
D. Preferred Stock. Without the prior written approval of
---------------
Requisite Lenders, Company shall not amend, restate, supplement or otherwise
modify its Certificate of Incorporation if the effect of such amendment,
restatement, supplement or modification is to provide for the issuance of any
preferred stock of Company or the filing or amendment of any certificate of
designation with respect thereto.
7.13 Fiscal Year.
-----------
Company shall not change its Fiscal Year-end from December 31.
SECTION 8.
EVENTS OF DEFAULT
If any of the following conditions or events ("Events of
Default") shall occur:
8.1 Failure to Make Payments When Due.
---------------------------------
Failure by Company to pay any installment of principal of any
Loan when due, whether at stated maturity, by acceleration, by notice of
prepayment or otherwise; failure by Company to pay when due any amount payable
to an Issuing Lender in reimbursement of any drawing honored or payment made
under a Letter of Credit; or failure by Company to pay any interest on any Loan
or any fee or any other amount due under this Agreement within five days after
the date due; or
114
8.2 Default in Other Agreements.
---------------------------
(i) Failure of Company or any of its Subsidiaries to pay
when due (a) any principal of or interest on any Indebtedness
(other than Indebtedness referred to in subsection 8.1) in an
individual principal amount of $2,500,000 or more or any items of
Indebtedness with an aggregate principal amount of $5,000,000 or
more or (b) any Contingent Obligation in an individual principal
amount of $2,500,000 or more or any Contingent Obligations with
an aggregate principal amount of $5,000,000 or more, in each case
beyond the end of any grace period provided therefor; or (ii)
breach or default by Company or any of its Subsidiaries with
respect to any other material term of (a) any evidence of any
Indebtedness in an individual principal amount of $2,500,000 or
more or any items of Indebtedness with an aggregate principal
amount of $5,000,000 or more or any Contingent Obligation in an
individual principal amount of $2,500,000 or more or any
Contingent Obligations with an aggregate principal amount of
$5,000,000 or more or (b) any loan agreement, mortgage, indenture
or other agreement relating to such Indebtedness or Contingent
Obligation(s), if in any case under this clause (ii) the effect
of such breach or default is to cause, or to permit the holder or
holders of that Indebtedness or Contingent Obligation(s) (or a
trustee on behalf of such holder or holders) to cause, that
Indebtedness or Contingent Obligation(s) to become or be declared
due and payable prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be (upon
the giving or receiving of notice, lapse of time, both, or
otherwise); or
8.3 Breach of Certain Covenants.
---------------------------
Failure of Company to perform or comply with any term or
condition contained in subsection 2.4, 2.5 or 6.2 or Section 7 of this
Agreement; or
8.4 Breach of Warranty.
------------------
Any material representation, warranty, certification or other
statement made by Company or any of its Subsidiaries in any Loan Document or in
any statement or certificate at any time given by Company or any of its
Subsidiaries in writing pursuant hereto or thereto or in connection herewith or
therewith shall be false in any material respect on the date as of which made;
or
8.5 Other Defaults Under Loan Documents.
-----------------------------------
Any Loan Party shall default in the performance of or compliance
with any term contained in this Agreement or any of the other Loan Documents,
other than any such term referred to in any other subsection of this Section 8,
and such default shall not have been remedied or waived within 30 days after the
earlier of (i) an officer of Company becoming aware of such default or (ii)
receipt by Company of notice from any Agent or Lender of such default; or
115
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
-----------------------------------------------------
(i) A court having jurisdiction in the premises shall enter
a decree or order for relief in respect of Company or any of its
Subsidiaries (other than Immaterial Subsidiaries) in an
involuntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter
in effect, which decree or order is not stayed; or any other
similar relief shall be granted under any applicable federal or
state law; or (ii) an involuntary case shall be commenced against
Company or any of its Subsidiaries (other than Immaterial
Subsidiaries) under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter
in effect; or a decree or order of a court having jurisdiction in
the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar
powers over Company or any of its Subsidiaries (other than
Immaterial Subsidiaries), or over all or a substantial part of
its property, shall have been entered; or there shall have
occurred the involuntary appointment of an interim receiver,
trustee or other custodian of Company or any of its Subsidiaries
(other than Immaterial Subsidiaries) for all or a substantial
part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial
part of the property of Company or any of its Subsidiaries (other
than Immaterial Subsidiaries), and any such event described in
this clause (ii) shall continue for 60 days unless dismissed,
bonded or discharged; or
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
---------------------------------------------------
(i) Company or any of its Subsidiaries (other than
Immaterial Subsidiaries) shall have an order for relief entered
with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of
or taking possession by a receiver, trustee or other custodian
for all or a substantial part of its property; or Company or any
of its Subsidiaries (other than Immaterial Subsidiaries) shall
make any assignment for the benefit of creditors; or (ii) Company
or any of its Subsidiaries (other than Immaterial Subsidiaries)
shall be unable, or shall fail generally, or shall admit in
writing its inability, to pay its debts as such debts become due;
or the Board of Directors of Company or any of its Subsidiaries
(other than Immaterial Subsidiaries) (or any committee thereof)
shall adopt any resolution or otherwise authorize any action to
approve any of the actions referred to in clause (i) above or
this clause (ii); or
8.8 Judgments and Attachments.
-------------------------
Any money judgment, writ or warrant of attachment or similar
process involving (i) in any individual case an amount in excess of $2,500,000
or (ii) in the aggregate at any time an amount in excess of $5,000,000 (in
either case not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be
116
entered or filed against Company or any of its Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated, unbonded or unstayed
for a period of 60 days (or in any event later than five days prior to the date
of any proposed sale thereunder); or
8.9 Dissolution.
-----------
Any order, judgment or decree shall be entered against Company or
any of its Subsidiaries decreeing the dissolution or split up of Company or that
Subsidiary and such order shall remain undischarged or unstayed for a period in
excess of 30 days; or
8.10 Employee Benefit Plans.
----------------------
There shall occur one or more ERISA Events which individually or
in the aggregate results in a Material Adverse Effect; or there shall exist an
Unfunded Current Liability, individually or in the aggregate for all Pension
Plans (excluding for purposes of such computation any Pension Plans with respect
to which there is no Unfunded Current Liability), which would have a Material
Adverse Effect; or
8.11 Change in Control.
-----------------
Any Person (other than the MDC Entities, Dartford, Fenway, UBS,
Tiger and CALPERS), including a "group" (within the meaning of Sections 13(d)
and 14(d)(2) of the Exchange Act) which includes such Person, shall purchase or
otherwise acquire, directly or indirectly, beneficial ownership of Securities of
Company and, as a result of such purchase or acquisition, any Person (together
with its associates and Affiliates), shall directly or indirectly beneficially
own in the aggregate Securities representing more than 35% of the combined
voting power of Company voting Securities; or
8.12 Invalidity of Guaranties.
------------------------
At any time after the execution and delivery thereof, any
Guaranty of the Obligations of Company, for any reason other than the
satisfaction in full of all Obligations, ceases to be in full force and effect
or is declared to be null and void (except with respect to the obligations
thereunder of Immaterial Subsidiaries of Company) or any Loan Party (other than
Immaterial Subsidiaries of Company) denies in writing that it has any further
liability, including, without limitation, with respect to future advances by
Lenders, under any Loan Document to which it is a party; or
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8.13 Failure of Security.
-------------------
Any Collateral Document shall, at any time, cease to be in full
force and effect (other than by reason of a release of Collateral thereunder in
accordance with the terms hereof or thereof, the satisfaction in full of the
Obligations or any other termination of such Collateral Document in accordance
with the terms hereof or thereof) or shall be declared null and void; or the
validity or enforceability thereof shall be contested in writing by any Loan
Party; or Agent shall not have or shall cease to have a valid security interest
in any Collateral purported to be covered thereby, perfected and with the
priority required by the relevant Collateral Document, for any reason other than
the failure of Agents or any Lender to take any action within its control,
subject only to Liens permitted under the applicable Collateral Documents; or
8.14 Termination or Breach of Certain Transition Agreements.
------------------------------------------------------
The Xxxxxx Xxxxx Co-Pack Agreement, Red Wing Co-Pack Agreements
or the Flavor Supply Agreement shall terminate for any reason whatsoever or any
such party shall fail to perform its obligations under any such agreement and
such failure could reasonably be expected to result in a Material Adverse
Effect, and, in either case, Company shall not have made arrangements
satisfactory to Requisite Lenders for obtaining any services that are required
to be provided by any such party to Company under such agreement that are not
being so provided as a result of such termination or failure to perform; or
8.15 Default Under Subordination Provisions.
--------------------------------------
Company or any guarantor of Subordinated Indebtedness shall fail
to comply with the subordination provisions contained in the Subordinated Note
Indentures or any other instrument, indenture or agreement pursuant to which
such Subordinated Indebtedness is issued;
THEN (i) upon the occurrence of any Event of Default described in
subsection 8.6 or 8.7, each of (a) the unpaid principal amount of and accrued
interest on the Loans, (b) an amount equal to the maximum amount that may at any
time be drawn under all Letters of Credit then outstanding (whether or not any
beneficiary under any such Letter of Credit shall have presented, or shall be
entitled at such time to present, the drafts or other documents or certificates
required to draw under such Letter of Credit) and (c) all other Obligations
shall automatically become immediately due and payable, without presentment,
demand, protest or other requirements of any kind, all of which are hereby
expressly waived by Company, and the obligation of each Lender to make any Loan,
the obligation of Administrative Agent to issue any Letter of Credit and the
right of any Lender to issue any Letter of Credit hereunder shall thereupon
terminate, and (ii) upon the occurrence and during the continuation of any other
Event of Default, Administrative Agent shall, upon the written request of
Requisite Lenders, by written notice to Company, declare all or any portion of
the amounts described in clauses (a) through (c) above to be, and the same shall
forthwith become, immediately due and payable, and the obligation of each Lender
to make any Loan, the obligation of Administrative Agent to issue any Letter of
Credit and the right of any Lender to issue any Letter of Credit hereunder shall
thereupon terminate; provided that the foregoing shall not affect in any way the
--------
obligations of Lenders under subsection 3.3C(i).
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Any amounts described in clause (b) above, when received by
Administrative Agent, shall be held by Administrative Agent pursuant to the
terms of the Collateral Account Agreement and shall be applied as therein
provided.
Notwithstanding anything contained in the second preceding
paragraph, if at any time within 60 days after an acceleration of the Loans
pursuant to such paragraph Company shall pay all arrears of interest and all
payments on account of principal which shall have become due otherwise than as a
result of such acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Potential Events of Default (other than non-
payment of the principal of and accrued interest on the Loans, in each case
which is due and payable solely by virtue of acceleration) shall be remedied or
waived pursuant to subsection 10.6, then Requisite Lenders, by written notice to
Company, may at their option rescind and annul such acceleration and its
consequences; but such action shall not affect any subsequent Event of Default
or Potential Event of Default or impair any right consequent thereon. The
provisions of this paragraph are intended merely to bind Lenders to a decision
which may be made at the election of Requisite Lenders and are not intended to
benefit Company and do not grant Company the right to require Lenders to rescind
or annul any acceleration hereunder or preclude Agents or Lenders from
exercising any of the rights or remedies available to them under any of the Loan
Documents, even if the conditions set forth in this paragraph are met.
SECTION 9.
AGENTS
9.1 Appointment.
-----------
X. Xxxxx is hereby appointed Administrative Agent hereunder and
under the other Loan Documents and each Lender hereby authorizes Administrative
Agent to act as its agent in accordance with the terms of this Agreement and the
other Loan Documents. NatWest is hereby appointed Syndication Agent hereunder
and under the other Loan Documents and each Lender hereby authorizes Syndication
Agent to act as its agent in accordance with the terms of this Agreement and the
other Loan Documents. UBS AG is hereby appointed Documentation Agent hereunder
and under the other Loan Documents and each Lender hereby authorizes
Documentation Agent to act as its agent in accordance with the terms of this
Agreement and the other Loan Documents. Each Agent agrees to act upon the
express conditions contained in this Agreement and the other Loan Documents, as
applicable. The provisions of this Section 9 are solely for the benefit of
Agents and Lenders and Company shall have no rights as a third party beneficiary
of any of the provisions thereof. In performing its functions and duties under
this Agreement, each Agent shall act solely as an agent of Lenders and does not
assume and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for Company or any of its Subsidiaries.
B. Appointment of Supplemental Collateral Agents. It is the
---------------------------------------------
purpose of this Agreement and the other Loan Documents that there shall be no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as agent or trustee in
such jurisdiction. It is recognized that in case of litigation under
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this Agreement or any of the other Loan Documents, and in particular in case of
the enforcement of any of the Loan Documents, or in case Administrative Agent
deems that by reason of any present or future law of any jurisdiction
Administrative Agent may not exercise any of the rights, powers or remedies
granted herein or in any of the other Loan Documents or take any other action
which may be desirable or necessary in connection therewith, it may be necessary
that Administrative Agent appoint an additional individual or institution as a
separate trustee, co-trustee, collateral agent or collateral coagent (any such
additional individual or institution being referred to herein individually as a
"Supplemental Collateral Agent" and collectively as "Supplemental Collateral
Agents").
In the event that Administrative Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in or conveyed to
Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable by
either Administrative Agent or such Supplemental Collateral Agent, and (ii) the
provisions of this Section 9 and of subsections 10.2 and 10.3 that refer to
Administrative Agent shall inure to the benefit of such Supplemental Collateral
Agent and all references therein to Administrative Agent shall be deemed to be
references to Administrative Agent and/or such Supplemental Collateral Agent, as
the context may require.
Should any instrument in writing from Company or any other Loan
Party be required by any Supplemental Collateral Agent so appointed by
Administrative Agent for more fully and certainly vesting in and confirming to
him or it such rights, powers, privileges and duties, Company shall, or shall
cause such Loan Party to, execute, acknowledge and deliver any and all such
instruments promptly upon request by Administrative Agent. In case any
Supplemental Collateral Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges
and duties of such Supplemental Collateral Agent, to the extent permitted by
law, shall vest in and be exercised by Administrative Agent until the
appointment of a new Supplemental Collateral Agent.
9.2 Powers; General Immunity.
------------------------
A. Duties Specified. Each Lender irrevocably authorizes each
----------------
Agent to take such action on such Lender's behalf and to exercise such powers
hereunder and under the other Loan Documents as are specifically delegated to
such Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. Each Agent shall have only those duties and
responsibilities that are expressly specified in this Agreement and the other
Loan Documents, and it may perform such duties by or through its agents or
employees. No Agent shall have, by reason of this Agreement or any of the other
Loan Documents, a fiduciary relationship in respect of any Lender; and nothing
in this Agreement or any of the other Loan Documents, expressed or implied, is
intended to or shall be so construed as to impose upon any
120
Agent any obligations in respect of this Agreement or any of the other Loan
Documents except as expressly set forth herein or therein.
B. No Responsibility for Certain Matters. No Agent shall be
-------------------------------------
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statement or in
any financial or other statements, instruments, reports or certificates or any
other documents furnished by any Agent to Lenders or by or on behalf of Company
and/or its Subsidiaries to any Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of Company or any other Person liable for the
payment of any Obligations, nor shall any Agent be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or as
to the use of the proceeds of the Loans or the use of the Letters of Credit or
as to the existence or possible existence of any Event of Default or Potential
Event of Default. Anything contained in this Agreement to the contrary
notwithstanding, Administrative Agent shall have no liability arising from
confirmations of the amount of outstanding Loans or the Total Utilization of
Revolving Loan Commitments or the component amounts thereof
C. Exculpatory Provisions. Neither any Agent nor any of such
----------------------
Agent's respective officers, directors, employees or agents shall be liable to
Lenders for any action taken or omitted by such Agent under or in connection
with any of the Loan Documents except to the extent caused by such Agent's gross
negligence or willful misconduct. If any Agent shall request instructions from
Lenders with respect to any act or action (including the failure to take an
action) in connection with this Agreement or any of the other Loan Documents,
such Agent shall be entitled to refrain from such act or taking such action
unless and until such Agent shall have received instructions from Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6). Without prejudice to the generality of the foregoing,
(i) such Agent shall be entitled to rely, and shall be fully protected in
relying, upon any communication, instrument or document believed by it to be
genuine and correct and to have been signed or sent by the proper person or
persons, and shall be entitled to rely and shall be protected in relying on
opinions and judgments of attorneys (who may be attorneys for Company and its
Subsidiaries), accountants, experts and other professional advisors selected by
it; and (ii) no Lender shall have any right of action whatsoever against such
Agent as a result of such Agent acting or (where so instructed) refraining from
acting under this Agreement or any of the other Loan Documents in accordance
with the instructions of Requisite Lenders (or such other Lenders as may be
required to give such instructions under subsection 10.6). Such Agent shall be
entitled to refrain from exercising any power, discretion or authority vested in
it under this Agreement or any of the other Loan Documents unless and until it
has obtained the instructions of Requisite Lenders (or such other Lenders as may
be required to give such instructions under subsection 10.6).
D. Agents Entitled to Act as Lender. The agency hereby created
--------------------------------
shall in no way impair or affect any of the rights and powers of, or impose any
duties or obligations upon, any Agent in its individual capacity as a Lender
hereunder. With respect to its participation in the Loans and the Letters of
Credit, each Agent shall have the same rights and powers hereunder as
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any other Lender and may exercise the same as though it were not performing the
duties and functions delegated to it hereunder, and the term "Lender" or
"Lenders" or any similar term shall, unless the context clearly otherwise
indicates, include such Agent in its individual capacity. Each Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of banking, trust, financial advisory or other business with Company or any
of its Affiliates as if it were not performing the duties specified herein, and
may accept fees and other consideration from Company and/or its Subsidiaries for
services in connection with this Agreement and otherwise without having to
account for the same to Lenders.
9.3 Representations and Warranties;
No Responsibility For Appraisal of Creditworthiness.
---------------------------------------------------
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company and
its Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries. No Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of Lenders
or, except as expressly provided elsewhere in this Agreement, to provide any
Lender with any credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or at any time or times
thereafter, and no Agent shall have any responsibility with respect to the
accuracy of or the completeness of any information provided to Lenders.
9.4 Right to Indemnity.
------------------
Each Lender, in proportion to its Pro Rata Share, severally
agrees to indemnify each Agent, to the extent that such Agent shall not have
been reimbursed by Company, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against such Agent in performing its duties hereunder or under
the other Loan Documents or otherwise in its capacity as such Agent in any way
relating to or arising out of this Agreement or the other Loan Documents;
provided that no Lender shall be liable for any portion of such liabilities,
--------
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct.
9.5 Successor Agents and Swing Line Lender.
--------------------------------------
A. Successor Agents. Any Agent may resign at any time by giving
----------------
30 days' prior written notice thereof to the other Agents, Lenders and Company,
and any Agent may be removed at any time with or without cause by an instrument
or concurrent instruments in writing delivered to Company and Administrative
Agent and signed by Requisite Lenders. Upon any such notice of resignation or
any such removal, Requisite Lenders shall have the right, upon five Business
Days' notice to Company, to appoint a successor Agent. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, that successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Agent and the retiring or
removed Agent shall be discharged from its duties and
122
obligations under this Agreement. After any retiring or removed Agent's
resignation or removal hereunder as Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
B. Successor Swing Line Lender. Any resignation or removal of
---------------------------
Administrative Agent pursuant to subsection 9.5A shall also constitute the
resignation or removal of Chase or its successor as Swing Line Lender, and any
successor Administrative Agent appointed pursuant to subsection 9.5A shall, upon
its acceptance of such appointment, become the successor Swing Line Lender for
all purposes hereunder. In such event (i) Company shall prepay any outstanding
Swing Line Loans made by the retiring or removed Administrative Agent in its
capacity as Swing Line Lender, (ii) upon such prepayment, the retiring or
removed Administrative Agent and Swing Line Lender shall surrender the Swing
Line Note held by it to Company for cancellation, and (iii) Company shall issue
a new Swing Line Note to the successor Administrative Agent and Swing Line
Lender substantially in the form of Exhibit VII annexed hereto, in the principal
-----------
amount of the Swing Line Loan Commitment then in effect and with other
appropriate insertions.
9.6 Collateral Documents.
--------------------
Each Lender and Agent hereby further authorizes Administrative
Agent to enter into each Collateral Document as secured party on behalf of and
for the benefit of Agents and Lenders and agrees to be bound by the terms of
each Collateral Document; provided that Administrative Agent shall not enter
--------
into or consent to any amendment, modification, termination or waiver of any
provision contained in any Collateral Document without the prior consent of
Requisite Lenders (or, if required pursuant to subsection 10.6, all Lenders);
provided further, however, that, without further written consent or
-------- ------- -------
authorization from Requisite Lenders, Administrative Agent may execute any
documents or instruments necessary to effect the release of any asset
constituting Collateral from the Lien of the applicable Collateral Document in
the event that such asset is sold or otherwise disposed of in a transaction
effected in accordance with subsection 7.7. Anything contained in any of the
Loan Documents to the contrary notwithstanding, each Lender agrees that no
Lender shall have any right individually to realize upon any of the Collateral
under any Collateral Document (including, without limitation, through the
exercise of a right of set-off against call deposits of such Lender in which any
funds on deposit in the Collateral Account may from time to time be invested),
it being understood and agreed that all rights and remedies under the Collateral
Documents may be exercised solely by Administrative Agent for the benefit of
Lenders in accordance with the terms thereof.
SECTION 10.
MISCELLANEOUS
10.1 Assignments and Participations in Loans, Letters of Credit.
----------------------------------------------------------
A. General. Subject to subsection 10.1B, each Lender shall have
-------
the right at any time to (i) sell, assign, transfer or negotiate to any Eligible
Assignee, or (ii) sell participations to any Person in, all or any part of its
Commitments (together with its Letters of Credit or participations therein made
or arising pursuant to its Revolving Loan Commitment) or any Loan or Loans made
by it or any other interest herein or in any other Obligations owed to it;
provided
--------
123
that no such sale, assignment, transfer or participation shall, without the
consent of Company, require Company to file a registration statement with the
Securities and Exchange Commission or apply to qualify such sale, assignment,
transfer or participation under the securities laws of any state; provided
--------
further, that no such sale, assignment or transfer described in clause (i) above
-------
shall be effective unless and until an Assignment Agreement effecting such sale,
assignment or transfer shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 10.1B(ii); provided further,
-------- -------
that no such sale, assignment, transfer or participation of any Letter of Credit
or any participation therein may be made separately from a sale, assignment,
transfer or participation of a corresponding interest in the Revolving Loan
Commitment and the Revolving Loans of the Lender effecting such sale,
assignment, transfer or participation; and provided further, that anything
-------- -------
contained herein to the contrary notwithstanding, the Swing Line Loan Commitment
and the Swing Line Loans of Swing Line Lender may not be sold, assigned or
transferred as described in clause (i) above to any Person other than a
successor Administrative Agent and Swing Line Lender to the extent contemplated
by subsection 9.5. Except as otherwise provided in this subsection 10.1, no
Lender shall, as between Company and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment, transfer or
negotiation of, or any granting of participations in, all or any part of its
Commitments or the Loans, the Letters of Credit or participations therein or the
other Obligations owed to such Lender.
B. Assignments.
-----------
(i) Amounts and Terms of Assignments. Each Commitment,
--------------------------------
Loan, Letter of Credit, or participation therein or other Obligation
may (a) be assigned in any amount to another Lender who is a Non-
Defaulting Lender, to an Approved Fund of a Non-Defaulting Lender, or
to an Affiliate of the assigning Lender or another Lender who, in
either such case, is a Non-Defaulting Lender, with the consent of
Administrative Agent (which consent shall not be unreasonably
withheld) and the giving of notice to Company; provided that, after
--------
giving effect to a proposed assignment to another Lender, the
assigning Lender shall have an aggregate Commitment of at least
$1,000,000 unless the proposed assignment constitutes the aggregate
amount of the Commitments, Loans, Letters of Credit, and
participations therein and other Obligations of the assigning Lender,
or (b) be assigned in an aggregate amount of not less than $1,000,000
(or such lesser amount as shall constitute the aggregate amount of the
Commitments, Loans, Letters of Credit, and participations therein and
other Obligations of the assigning Lender) to any other Eligible
Assignee with the consent of Administrative Agent (which consent shall
not be unreasonably withheld) and the giving of notice to Company. To
the extent of any such assignment in accordance with either clause (a)
or (b) above, the assigning Lender shall be relieved of its
obligations with respect to its Commitments, Loans, Letters of Credit,
or participations therein or other Obligations or the portion thereof
so assigned. The parties to each such assignment shall execute and
deliver to Administrative Agent, for its acceptance and recording in
the Register, an Assignment Agreement, together with a processing fee
of $3,500 payable by the assigning Lender and such certificates,
documents or other evidence, if any, with respect to United States
federal income tax withholding matters as the assignee under such
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Assignment Agreement may be required to deliver to Administrative
Agent pursuant to subsection 2.7B(iii)(a). Upon such execution,
delivery, acceptance and recordation, from and after the effective
date specified in such Assignment Agreement, (y) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such
Assignment Agreement, shall have the rights and obligations of a
Lender hereunder and (z) the assigning Lender thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment Agreement, relinquish its rights (other
than any rights which survive the termination of this Agreement under
subsection 10.9B) and be released from its obligations under this
Agreement (and, in the case of an Assignment Agreement covering all or
the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto;
provided that, anything contained in any of the Loan Documents to the
--------
contrary notwithstanding, if such Lender is the Issuing Lender with
respect to any outstanding Letters of Credit such Lender shall
continue to have all rights and obligations of an Issuing Lender with
respect to such Letters of Credit until the cancellation or expiration
of such Letters of Credit and the reimbursement of any amounts drawn
thereunder). The Commitments hereunder shall be modified to reflect
the Commitments of such assignee and any remaining Commitments of such
assigning Lender and, if any such assignment occurs after the issuance
of the Notes hereunder, the assigning Lender shall surrender its
applicable Notes and, upon such surrender, new Notes shall be issued
to the assignee and, if applicable, to the assigning Lender,
substantially in the form of Exhibit IV, Exhibit V , Exhibit VI or
---------- --------- ----------
Exhibit VII annexed hereto, as the case may be, with appropriate
-----------
insertions, to reflect the new Commitments and/or outstanding Term
Loans of the assignee and the assigning Lender.
(ii) Acceptance by Administrative Agent: Recordation in
--------------------------------------------------
Register. Upon its receipt of an Assignment Agreement executed by an
--------
assigning Lender and an assignee representing that it is an Eligible
Assignee, together with the processing fee referred to in subsection
10.1B(i) and any certificates, documents or other evidence with
respect to United States federal income tax withholding matters that
such assignee may be required to deliver to Administrative Agent
pursuant to subsection 2.7B(iii)(a), Administrative Agent shall, if
such Assignment Agreement has been completed and is in substantially
the form of Exhibit XVI hereto and if Administrative Agent have
-----------
consented to the assignment evidenced thereby (to the extent such
consent is required pursuant to subsection 10.1B(i)), (a) accept such
Assignment Agreement by executing a counterpart thereof as provided
therein (which acceptance shall evidence any required consent of
Administrative Agent to such assignment), (b) record the information
contained therein in the Register, and (c) give prompt notice thereof
to Company. Administrative Agent shall maintain a copy of each
Assignment Agreement delivered to and accepted by it as provided in
this subsection 10.1B(ii).
125
C. Participations. The holder of any participation, other than an
--------------
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
(i) effecting the extension of the final maturity of the Loan allocated to such
participation, (ii) effecting a reduction of the principal amount of or
affecting the rate of interest payable on any Loan allocated to such
participation, (iii) releasing all or substantially all of the Collateral, or
(iv) releasing all of the Guarantors from their obligations under the
Guaranties, and all amounts payable by Company hereunder (including, without
limitation, amounts payable to such Lender pursuant to subsections 2.6D, 2.7 and
3.6) shall be determined as if such Lender had not sold such participation.
Company and each Lender hereby acknowledge and agree that, solely for purposes
of subsections 10.4 and 10.5, (a) any participation will give rise to a direct
obligation of Company to the participant and (b) the participant shall be
considered to be a "Lender".
D. Assignments to Federal Reserve Banks. In addition to the
------------------------------------
assignments and participations permitted under the foregoing provisions of this
subsection 10.1, any Lender (without having to obtain the consent of Company or
Administrative Agent) may assign and pledge all or any portion of its Loans, the
other Obligations owed to such Lender and its Notes to secure obligations of
such Lender, including, without limitation, assignments and pledges to any
Federal Reserve Bank as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and any operating circular
issued by such Federal Reserve Bank, and any Lender which is an investment fund
may pledge all or any portion of its Notes or Loans to its trustee or other
representatives of holders of such Notes or Loans to secure its obligations to
such trustee or other such representatives; provided that (i) no Lender shall,
as between Company and such Lender, be relieved of any of its obligations
hereunder as a result of any such assignment and pledge and (ii) in no event
shall such Federal Reserve Bank be considered to be a "Lender" or be entitled to
require the assigning Lender to take or omit to take any action hereunder.
E. Information. Each Lender may furnish any information concerning
-----------
Company and its Subsidiaries in the possession of that Lender from time to time
to assignees and participants (including prospective assignees and
participants).
F. Limitation. No assignee, participant or other transferee or any
----------
Lender's rights shall be entitled to receive any greater payment under
subsection 2.7 than such Lender would have been entitled to receive with respect
to the rights transferred, unless such transfer is made with Company's prior
written consent or at a time when the circumstances giving rise to such greater
payment did not exist.
G. Representations of Lenders. Each Lender listed on the signature
--------------------------
pages hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (i) of the definition thereof; (ii) that it has experience
and expertise in the making of loans such as the Loans; and (iii) that it will
make its Loans for its own account in the ordinary course of its business and
without a view to distribution of such Loans within the meaning of the
Securities Act or the Exchange Act or other federal securities laws (it being
understood that, subject to the provisions of this subsection 10.1, the
disposition of such Loans or any interests therein shall at all times remain
within its exclusive control). Each Lender that becomes a party hereto pursuant
to an Assignment Agreement shall be deemed to agree that the representations and
warranties of
126
such Lender contained in Section 2(c) of such Assignment Agreement are
incorporated herein by this reference.
10.2 Expenses.
--------
Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (i) all the actual and reasonable
costs and out of pocket expenses of Administrative Agent in connection with the
preparation of the Loan Documents; (ii) all the actual and reasonable costs of
furnishing all opinions by counsel for Company (including, without limitation,
any opinions requested by Lenders as to any legal matters arising hereunder) and
of Company's performance of and compliance with all agreements and conditions on
its part to be performed or complied with under this Agreement and the other
Loan Documents including, without limitation, with respect to confirming
compliance with environmental and insurance requirements; (iii) the reasonable
fees, expenses and disbursements of counsel to Agents (including allocated costs
of internal counsel) in connection with the negotiation, preparation, execution
and administration of the Loan Documents and the Loans and any consents,
amendments, waivers or other modifications hereto or thereto and any other
documents or matters requested by Company; (iv) all other actual and reasonable
costs and expenses incurred by Agents in connection with the negotiation,
preparation and execution of the Loan Documents and the transactions
contemplated hereby and thereby; and (v) after the occurrence of an Event of
Default, all costs and expenses, including reasonable attorneys' fees (including
allocated costs of internal counsel) and costs of settlement, incurred by Agents
and Lenders in enforcing any Obligations of or in collecting any payments due
from Company hereunder or under the other Loan Documents by reason of such Event
of Default or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings.
10.3 Indemnity.
---------
In addition to the payment of expenses pursuant to subsection
10.2, whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend, indemnify, pay and hold harmless Agents and Lenders,
and the officers, directors, trustees, partners, employees, agents, attorneys
and affiliates of any of Agents and Lenders (collectively called the
"Indemnitees") from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs, expenses
and disbursements of any kind or nature whatsoever (including, without
limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or judicial
proceeding commenced or threatened by any Person, whether or not any such
Indemnitee shall be designated as a party or a potential party thereto), whether
direct, indirect or consequential and whether based on any federal, state or
foreign laws, statutes, rules or regulations (including, without limitation,
securities and commercial laws, statutes, rules or regulations and Environmental
Laws), on common law or equitable cause or on contract or otherwise, that may be
imposed on, incurred by, or asserted against any such Indemnitee, in any manner
relating to or arising out of this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby (including, without limitation,
Lenders' agreement to make the Loans hereunder or the use or intended use of the
proceeds of any of the Loans or the issuance of
127
Letters of Credit hereunder or the use or intended use of any of the Letters of
Credit) (collectively called the "Indemnified Liabilities"); provided that
---------
Company shall not have any obligation to any Indemnitee hereunder with respect
to any Indemnified Liabilities to the extent, and only to the extent, of any
particular liability, obligation, loss, damage, penalty, claim, cost, expense or
disbursement that arose from the gross negligence or willful misconduct of that
Indemnitee as determined by a final judgment of a court of competent
jurisdiction. To the extent that the undertaking to defend, indemnify, pay and
hold harmless set forth in the preceding sentence may be unenforceable because
it is violative of any law or public policy, Company shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law to
the payment and satisfaction of all Indemnified Liabilities incurred by the
Indemnitees or any of them.
10.4 Set-Off; Security Interest in Deposit Accounts.
----------------------------------------------
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 and during the continuance of any Event of Default each Lender is
hereby authorized by Company at any time or from time to time, without notice to
Company 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
any other Indebtedness at any time held or owing by that Lender (at any office
of that Lender wherever located) to or for the credit or the account of Company
against and on account of the obligations and liabilities of Company to that
Lender under this Agreement, the Notes, the Letters of Credit and participations
therein, including, but not limited to, all claims of any nature or description
arising out of or connected with this Agreement, the Notes, the Letters of
Credit and participations therein or any other Loan Document, irrespective of
whether or not (i) that Lender shall have made any demand hereunder or (ii) the
principal of or the interest on the Loans or any amounts in respect of the
Letters of Credit or any other amounts due hereunder shall have become due and
payable pursuant to Section 8 and although said obligations and liabilities, or
any of them, may be contingent or unmatured. Company hereby further grants to
each Agent and Lender a security interest in all deposits and accounts
maintained with such Agent or Lender as security for the Obligations.
10.5 Ratable Sharing.
---------------
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment (other than a voluntary prepayment of Loans made
and applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the "Aggregate
Amounts Due" to such Lender) which is greater than the proportion received by
any other Lender in respect of the Aggregate Amounts Due to such other Lender,
then the Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such
128
payment to purchase participations (which it shall be deemed to have purchased
from each seller of a participation simultaneously upon the receipt by such
seller of its portion of such payment) in the Aggregate Amounts Due to the other
Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by
all Lenders in proportion to the Aggregate Amounts Due to them; provided that if
--------
all or part of such proportionately greater payment received by such purchasing
Lender is thereafter recovered from such Lender upon the bankruptcy
reorganization or insolvency proceeding of Company or otherwise, those purchases
shall be rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent of such recovery, but
without interest. Company expressly consents to the foregoing arrangement and
agrees that any holder of a participation so purchased may exercise any and all
rights of banker's lien, set-off or counterclaim with respect to any and all
monies owing by Company to that holder with respect thereto as fully as if that
holder were owed the amount of the participation held by that holder.
10.6 Amendments and Waivers.
----------------------
A. No amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes, or consent to any departure by
Company or any other Loan Party therefrom, shall in any event be effective
without the written concurrence of Requisite Lenders; provided that any such
--------
amendment, modification, termination, waiver or consent which: reduces the
principal amount of any of the Loans; changes in any manner the definition of
"Requisite Lenders" (it being understood that, with the consent of the Requisite
Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of "Requisite Lenders" on substantially the same
basis as the Tranche A Term Loan Commitments, Tranche A Term Loans, Tranche B
Term Loan Commitments, Tranche B Term Loans, Revolving Loan Commitments and
Revolving Loans are included on the Effective Date); changes in any manner any
provision of this Agreement which, by its terms, expressly requires the approval
or concurrence of all Lenders; postpones the scheduled final maturity date of
any of the Loans; postpones the date or reduces the amount of any scheduled
payment (but not prepayment) of principal of any of the Loans; postpones the
date or reduces the amount of any scheduled reduction (but not prepayment) of
the Revolving Loan Commitments; postpones the date on which any interest or any
fees are payable; decreases the interest rate borne by any of the Loans (other
than any waiver of any increase in the interest rate applicable to any of the
Loans pursuant to subsection 2.2E) or the amount of any fees payable hereunder;
increases the maximum duration of Interest Periods permitted hereunder; releases
all or substantially all of the Collateral; releases all or substantially all of
the Subsidiary Guarantors from their obligations under the Subsidiary Guaranty;
reduces the amount or postpones the due date of any amount payable in respect
of, or extends the required expiration date of, any Letter of Credit; changes
the obligations of Lenders relating to the purchase of participations in Letters
of Credit in any manner that could be adverse to any Issuing Lender; or changes
in any manner the provisions contained in subsection 8.1 or this subsection
10.6; shall be effective only if evidenced by a writing signed by or on behalf
of all Lenders to whom are owed Obligations being directly affected by such
amendment, modification, termination, waiver or consent. In addition, (i) any
amendment, modification, termination or waiver of any of the provisions
contained in Section 4 shall be effective only if evidenced by a writing signed
by or on behalf of Administrative Agent and Requisite Lenders, (ii) no
amendment, modification, termination or waiver of any provision of any Note
shall be effective without the written concurrence of the Lender which is the
holder
129
of that Note, (iii) no amendment, modification, termination or waiver of any
provision of this Agreement which disproportionately and adversely affects the
obligation of any Loan Party to make payments (including without limitation
mandatory prepayments) to the holders of the Term Loans or the holders of the
Revolving Loans and Revolving Loan Commitments, shall be effective without the
written concurrence of the holders of more than 50% in principal amount of the
class (i.e., Tranche A Term Loans, Tranche B Term Loans or Revolving Loans and
Revolving Loan Commitments each being a "class" of Loans) of Loans so
disproportionately and adversely affected; (iv) no increase in the Commitments
of any Lender over the amount thereof then in effect shall be effective without
the written concurrence of that Lender, it being understood and agreed that in
no event shall waivers or modifications of conditions precedent, covenants,
Events of Default, Potential Events of Default or of a mandatory prepayment or a
reduction of any or all of the Commitments be deemed to constitute an increase
of the Commitment of any Lender and that an increase in the available portion of
any Commitment of any Lender shall not be deemed to constitute an increase in
the Commitment of such Lender, (v) no amendment, modification, termination or
waiver of any provision of subsection 2.1A(iv) or any other provision of this
Agreement relating to the Swing Line Loan Commitment or the Swing Line Loans
shall be effective without the written concurrence of Swing Line Lender, (vi) no
amendment, modification, termination or waiver of any provision of this
Agreement shall change the allocation among the Tranche A Term Loans and Tranche
B Term Loans of prepayments to be made pursuant to subsection 2.4C without the
prior written consent of (1) Lenders holding more than 50% of the aggregate
outstanding principal amount of the Tranche A Term Loans and (2) Lenders holding
more than 50% of the aggregate outstanding principal amount of the Tranche B
Term Loans, (vii) no amendment, modification, termination or waiver of any
provision of this Agreement shall change the application of prepayments of
Tranche A Term Loans pursuant to subsection 2.4C without the prior written
consent of Lenders holding more than 50% of the aggregate outstanding principal
amount of the Tranche A Term Loans, (viii) no amendment, modification,
termination or waiver of any provision of this Agreement shall change the
application of prepayments of Tranche B Term Loans pursuant to subsection 2.4C
without the prior written consent of Lenders holding more than 50% of the
aggregate outstanding principal amount of the Tranche B Term Loans, (ix) no
amendment, modification termination or waiver of any provision of Section 3
relating to the rights or obligations of any or all Issuing Lenders shall be
effective without the written concurrence of Administrative Agent and each
Lender who is an Issuing Lender with respect to any Letter of Credit then
outstanding, and (x) no amendment, modification, termination or waiver of any
provision of Section 9 or of any other provision of this Agreement which, by its
terms, expressly requires the approval or concurrence of Administrative Agent
shall be effective without the written concurrence of Administrative Agent.
Administrative Agent may, but shall have no obligation to, with the concurrence
of any Lender, execute amendments, modifications, waivers or consents on behalf
of that Lender. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on Company in any case shall entitle Company to any other or further
notice or demand in similar or other circumstances. Any amendment, modification,
termination, waiver or consent effected in accordance with this subsection 10.6
shall be binding upon each Lender at the time outstanding, each future Lender
and, if signed by Company, on Company.
B. If, in connection with any proposed change, waiver, discharge or
termination to any of the provision of this Agreement as contemplated by the
proviso in the first sentence of
130
this subsection 10.6, the consent of Requisite Lenders is obtained but consent
of one or more of such other Lenders whose consent is required is not obtained,
then Company may, so long as all non-consenting Lenders are so treated, elect to
terminate such Lender as a party to this Agreement; provided that, concurrently
--------
with such termination, (i) Company shall pay that Lender all principal, interest
and fees and other amounts due to be paid to such Lender with respect to all
periods through such date of termination, (ii) another financial institution
satisfactory to Company and Administrative Agent (or if Administrative Agent is
also a Lender to be terminated, the successor Administrative Agent) shall agree,
as of such date, to become a Lender for all purposes under this Agreement
(whether by assignment or amendment) and to assume all obligations of the Lender
to be terminated as of such date, and (iii) all documents and supporting
materials necessary, in the judgment of Administrative Agent (or if
Administrative Agent is also a Lender to be terminated, the successor
Administrative Agent) to evidence the substitution of such Lender shall have
been received and approved by Administrative Agent as of such date.
10.7 Independence of Covenants.
-------------------------
All covenants hereunder shall be given independent effect so that
if a particular action or condition is not permitted by any of such covenants,
the fact that it would be permitted by an exception to, or would otherwise be
within the limitations of, another covenant shall not avoid the occurrence of an
Event of Default or Potential Event of Default if such action is taken or
condition exists.
10.8 Notices.
-------
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, telecopied, telexed or sent by United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telecopy or telex, or four
Business Days after depositing it in the United States mail, registered or
certified, with postage prepaid and properly addressed; provided that notices to
--------
Administrative Agent shall not be effective until received. For the purposes
hereof, the address of each party hereto shall be as set forth under such
party's name on the signature pages hereof or (i) as to Company and
Administrative Agent, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as to each
other party, such other address as shall be designated by such party in a
written notice delivered to Administrative Agent.
10.9 Survival of Representations, Warranties and Agreements.
------------------------------------------------------
A. All representations, warranties and agreements made herein
shall survive the execution and delivery of this Agreement and the making of the
Loans and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law
to the contrary, the agreements of Company set forth in subsections 2.6D, 2.7,
3.5A, 3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in
subsections 9.2C, 9.4, 10.4, 10.5 and 10.20 shall survive
131
the payment of the Loans, the cancellation or expiration of the Letters of
Credit and the reimbursement of any amounts drawn or paid thereunder, and the
termination of this Agreement.
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative.
-----------------------------------------------------
No failure or delay on the part of Administrative Agent or any
Lender in the exercise of any power, right or privilege hereunder or under any
other Loan Document shall impair such power, right or privilege or be construed
to be a waiver of any default or acquiescence therein, nor shall any single or
partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.11 Marshalling; Payments Set Aside.
-------------------------------
Neither Administrative Agent nor any Lender shall be under any
obligation to marshal any assets in favor of Company or any other party or
against or in payment of any or all of the obligations. To the extent that
Company makes a payment or payments to Administrative Agent or Lenders (or to
Administrative Agent for the benefit of Lenders), or Administrative Agent or
Lenders enforce any security interests or exercise their rights of setoff, and
such payment or payments or the proceeds of such enforcement or setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, any other state or federal law, common
law or any equitable cause, then, to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied, and all Liens, rights and
remedies therefor or related thereto, shall be revived and continued in full
force and effect as if such payment or payments had not been made or such
enforcement or setoff had not occurred.
10.12 Severability.
------------
In case any provision in or obligation under this Agreement or
the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.13 Obligations Several; Independent Nature of Lenders' Rights.
----------------------------------------------------------
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute
Lenders as a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt, and each Lender shall be entitled to protect and
enforce its rights arising out of this Agreement and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
10.14 Headings.
--------
132
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.15 Applicable Law.
--------------
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
10.16 Successors and Assigns.
----------------------
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). Neither
Company's rights nor obligations hereunder nor any interest therein may be
assigned or delegated by Company without the prior written consent of all
Lenders.
10.17 Consent to Jurisdiction and Service of Process.
----------------------------------------------
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTING AND
DELIVERING THIS AGREEMENT, COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE
WITH SUBSECTION 10.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III)
ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY
SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
133
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST COMPANY IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.17
RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE
FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1402 OR OTHERWISE.
10.18 Waiver of Jury Trial.
--------------------
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/ BORROWER RELATIONSHIP OR OTHER RELATIONSHIP THAT IS BEING ESTABLISHED.
The scope of this waiver is intended to be all-encompassing of any and all
disputes that may be filed in any court and that relate to the subject matter of
this transaction, including, without limitation, contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. Each party
hereto acknowledges that this waiver is a material inducement to enter into a
business relationship, that each has already relied on this waiver in entering
into this Agreement, and that each will continue to rely on this waiver in their
related future dealings. Each party hereto further warrants and represents that
it has reviewed this waiver with its legal counsel and that it knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY
REFERRING TO THIS SUBSECTION 10.18 AND EXECUTED BY EACH OF THE PARTIES HERETO),
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the
event of litigation, this Agreement may be filed as a written consent to a trial
by the court.
10.19 Confidentiality.
---------------
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement which has been identified as
confidential by Company in accordance with such Lender's customary procedures
for handling confidential information of this nature, it being understood and
agreed by Company that in any event a Lender may make disclosures reasonably
required by any Affiliate or any bona fide assignee, transferee or participant
in connection with the contemplated assignment or transfer by such Lender of any
Loans or any participation therein or as required or requested by any
governmental agency or representative thereof or pursuant to legal process or by
the National Association of Insurance Commissioners or in connection with the
exercise of any remedy under the Loan Documents;
134
provided that, unless specifically prohibited by applicable law or court order,
--------
each Lender shall notify Company of any request by any governmental agency or
representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure of
such information; and provided, further that in no event shall any Lender be
-------- -------
obligated or required to return any materials furnished by Company or any of its
Subsidiaries.
10.20 Counterparts; Effectiveness.
---------------------------
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: AURORA FOODS INC.
By: _____________________________________
Name:
Title:
Notice Address:
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: M. Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
and a copy to:
Xxxxxxxx & X'Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx, Esq.
Facsimile: (000) 000-0000
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By: _______________________________________
Name:
Title:
Notice Address:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
One Chase Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxx
Loan Servicing Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NATIONAL WESTMINSTER BANK PLC,
individually and as Syndication Agent
By:_____________________________________
Name:
Title:
Notice Address:
Gleacher NatWest Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
UBS AG, STAMFORD BRANCH
individually and as Documentation Agent
By:_ ________________________________
Name:
Title:
By:__________________________________
Name:
Title:
Notice Address:
Warburg Dillon Read
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FLEET NATIONAL BANK
By:_________________________________
Name:
Title:
Notice Address:
Fleet National Bank
One Federal Street, MAOF0324
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Fleet National Bank
1185 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
HSBC BANK USA
By:_________________________________
Name:
Title:
Notice Address:
HSBC Bank USA
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PNC BANK, NATIONAL ASSOCIATION
By:_________________________________
Name:
Title:
Notice Address:
PNC BANK
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SUNTRUST BANK, ATLANTA
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
Notice Address:
SunTrust Bank, Atlanta
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXX FARGO BANK, N.A.
By:________________________________
Name:
Title:
Notice Address:
Xxxxx Fargo Bank, N.A.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NATIONAL CITY BANK
By:_________________________________
Name:
Title:
Notice Address:
National City Bank
0000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX TRUST AND SAVINGS BANK
By:_________________________________
Name:
Title:
Notice Address:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CREDIT AGRICOLE INDOSUEZ
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
Notice Address:
Credit Agricole Indosuez
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
U.S. BANK NATIONAL ASSOCIATION
By:_________________________________
Name:
Title:
Notice Address:
U.S. Bank National Association
First Bank Place
MPFP 0702
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FIRST UNION NATIONAL BANK
By:_________________________________
Name:
Title:
Notice Address:
First Union National Bank
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Mail Code XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SUMMIT BANK
By:_________________________________
Name:
Title:
Notice Address:
Summit Bank
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
MITSUBISHI TRUST AND BANKING
By:__________________________________
Name:
Title:
Notice Address:
Mitsubishi Trust and Banking
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANQUE NATIONALE DE PARIS
By:______________________________
Name:
Title:
Notice Address:
Banque Nationale de Paris
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BAYERISCHE VEREINSBANK
By:__________________________________
Name:
Title:
Notice Address:
Bayerische Vereinsbank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FIRSTAR BANK, N.A.
By:____________________________
Name:
Title:
Notice Address:
Firstar Bank, N.A.
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DEUTSCHE BANK AG
New York Branch and/or Cayman Islands
Branch
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
Notice Address:
Deutsche Bank AG New York Branch
and/or Cayman Islands Branch
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PARIBAS
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
Notice Address:
Banque Paribas
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE TRAVELERS INSURANCE COMPANY
By:__________________________________________
Name:
Title:
Notice Address:
The Travelers Insurance Company
Xxx Xxxxx Xxxxxx, 0XX
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
STATE STREET BANK AND TRUST COMPANY,
as Trustee for General Motors
Employees
Global Group Pension Trust
By:
Name:
Title:
Notice Address:
State Street Bank and Trust Company
Global Investment Manager Services
Division
Xxx Xxxxxxxxxx Xxxxx X0X
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Portfolio Number 7MC9
With a copy to:
Xxxxxxxx Capital Management, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE TRUST
By:
Name:
Title:
Notice Address:
Xxx Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx Xxxxxxx
Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx Management, Inc.,
as Collateral Manager
By:
Name:
Title:
Notice Address:
Xxx Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx Xxxxxxx
Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FRANKLIN FLOATING RATE TRUST
By:
Name:
Title:
Notice Address:
000 Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
GENERAL RE-NEW ENGLAND ASSET MGMT.
By:
Name:
Title:
Notice Address:
00 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
METROPOLITAN LIFE INSURANCE COMPANY
By:
Name:
Title:
Notice Address:
000 Xxxxxxx Xxxxxx, X.X. Xxx 000
Xxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CONSECO CAPITAL MANAGEMENT
By:
Name:
Title:
Notice Address:
00000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
KZH STERLING LLC
By:
Name:
Title:
Notice Address:
x/x Xxx Xxxxx Xxxxxxxxx Xxxx
000 Xxxx 33/rd/ Street - 15/th/ Floor
New York, New York 10001
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
KZH CNC LLC
By:
Name:
Title:
Notice Address:
x/x Xxx Xxxxx Xxxxxxxxx Xxxx
000 Xxxx 33/rd/ Street - 15/th/ Floor
New York, New York 10001
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
KZH APPALOOSA LLC
By:
Name:
Title:
Notice Address:
x/x Xxx Xxxxx Xxxxxxxxx Xxxx
000 Xxxx 33/rd/ Street - 15/th/ Floor
New York, New York 10001
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
KZH IV LLC
By:
Name:
Title:
Notice Address:
x/x Xxx Xxxxx Xxxxxxxxx Xxxx
000 Xxxx 33/rd/ Street - 15/th/ Floor
New York, New York 10001
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
KZH WATERSIDE LLC
By:
Name:
Title:
Notice Address:
x/x Xxx Xxxxx Xxxxxxxxx Xxxx
000 Xxxx 33/rd/ Street - 15/th/ Floor
New York, New York 10001
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NORTH AMERICAN SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By:
Name:
Title:
Notice Address:
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx XxXxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CYPRESSTREE SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By:
Name:
Title:
Notice Address:
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx XxXxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
KZH CYPRESSTREE-1 LLC
By:
Name:
Title:
Notice Address:
x/x Xxx Xxxxx Xxxxxxxxx Xxxx
000 Xxxx 33/rd/ Street - 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, L.L.C.,
as Collateral Manager
By:
Name:
Title:
Notice Address:
000 X. Xxxxx Xxxxxx, #0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
GENERAL ELECTRIC CAPITAL CORPORATION
By:
Name:
Title:
Notice Address:
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
HARCH CAPITAL MANAGEMENT INC.
By:
Name:
Title:
Notice Address:
000 Xx 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ALLSTATE INSURANCE COMPANY
By:
Name:
Title:
By:
Name:
Title:
Notice Address:
0000 Xxxxxxx Xxxx, Xxxxx X0x
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ALLSTATE LIFE INSURANCE COMPANY
By:
Name:
Title:
By:
Name:
Title:
Notice Address:
0000 Xxxxxxx Xxxx, Xxxxx X0x
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NATEXIS BANQUE BFCE
By:
Name:
Title:
By:
Name:
Title:
Notice address:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ANNEX A
TO CREDIT AGREEMENT
PRICING GRID
RATIO OF CONSOLIDATED TOTAL DEBT TO CONSOLIDATED EBITDA
Greater than Less than Less than 5:00 Less than Less than
or Equal to 5.25 but but Greater 4.75:1 but 4.25:1 but
5:25:1 Greater than than or Greater than Greater than
------ or Equal Equal to or Equal to or Equal to
to 5:00:1 4:75:1 4.25:1 3.75:1
--------- ------ ------ ------
APPLICABLE MARGIN FOR
REVOLVING CREDIT LOANS AND
TRANCHE A TERM LOANS:
---------------------
ABR LOANS 1.25% 1.00% 0.75% 0.50% 0.25%
EURODOLLAR LOANS 2.25% 2.00% 1.75% 1.50% 1.25%
APPLICABLE MARGIN FOR
TRANCHE B TERM LOANS:
---------------------
ABR LOANS 1.50% 1.25% 1.00% 1.00% 1.00%
EURODOLLAR LOANS 2.50% 2.25% 2.00% 2.00% 2.00%
APPLICABLE MARGIN FOR
COMMITMENT FEE: 0.50% 0.50% 0.375% 0.375% 0.375%
---------------
Less than
3.75:1
but Greater
than or Equal Less Than
to 3.25:1 3.25:1
--------- -----
APPLICABLE MARGIN FOR
REVOLVING CREDIT LOANS AND
TRANCHE A TERM LOANS:
---------------------
ABR LOANS 0.00% 0.00%
EURODOLLAR LOANS 1.00% 0.875%
APPLICABLE MARGIN FOR
TRANCHE B TERM LOANS:
---------------------
ABR LOANS 1.00% 1.00%
EURODOLLAR LOANS 2.00% 2.00%
APPLICABLE MARGIN FOR
COMMITMENT FEE: 0.30% 0.30%
---------------
