EXECUTION COPY
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$250,000,000
CREDIT AGREEMENT
DATED AS OF JULY 11, 2000
AMONG
XXXX FOOD COMPANY, INC.,
XXXX FRESH FRUIT INTERNATIONAL, LIMITED
AND
SOLVEST, LTD.,
AS BORROWERS,
THE LENDERS LISTED HEREIN,
AS LENDERS,
BANC OF AMERICA SECURITIES LLC,
AS
SOLE LEAD ARRANGER AND SOLE BOOK MANAGER,
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT,
COMMERZBANK AG,
AS SYNDICATION AGENT,
THE BANK OF NOVA SCOTIA,
AS DOCUMENTATION AGENT,
AND
COBANK, ACB
AND
COOPERATIEVE CENTRALE RAIFFEISEN -
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH,
AS CO-AGENTS
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TABLE OF CONTENTS
PAGE
Section 1. DEFINITIONS....................................................................................1
1.1 Certain Defined Terms..........................................................................1
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under
Agreement.....................................................................................17
1.3 Other Definitional Provisions.................................................................17
1.4 Currency Equivalents Generally................................................................17
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS....................................................18
2.1 Pro Rata Loans................................................................................18
2.2 Bid Rate Loans................................................................................21
2.3 [Reserved]....................................................................................24
2.4 Disbursement of Funds.........................................................................24
2.5 Loan Accounts and Register....................................................................25
2.6 Interest on the Loans.........................................................................26
2.7 Fees..........................................................................................31
2.8 Prepayments and Reductions in Commitments; General Provisions Regarding Payments..............32
2.9 Use of Proceeds...............................................................................34
2.10 Special Provisions Governing Offshore Rate Loans..............................................35
2.11 Certain Tax Provisions........................................................................40
2.12 Increase in Commitments.......................................................................42
Section 3. CONDITIONS TO LOANS...........................................................................43
3.1 Conditions to Initial Loans...................................................................43
3.2 Additional Conditions.........................................................................44
Section 4. COMPANY'S REPRESENTATIONS AND WARRANTIES......................................................45
4.1 Organization, Powers, Qualification, Good Standing and Subsidiaries...........................46
4.2 Authorization of Borrowing, etc...............................................................46
4.3 Financial Condition...........................................................................47
4.4 No Material Adverse Change....................................................................47
4.5 Litigation; Adverse Facts.....................................................................47
4.6 Payment of Taxes..............................................................................47
4.7 Governmental Regulation.......................................................................48
4.8 Securities Activities.........................................................................48
4.9 Margin Stock..................................................................................48
4.10 Employee Benefit Plans........................................................................48
4.11 Environmental Protection......................................................................49
Section 5. COMPANY'S AFFIRMATIVE COVENANTS...............................................................49
5.1 Financial Statements and Other Reports........................................................50
5.2 Corporate Existence, etc......................................................................51
5.3 Payment of Taxes and Claims; Tax Consolidation................................................51
5.4 Maintenance of Properties; Insurance..........................................................52
5.5 Compliance with Laws, etc.....................................................................52
5.6 Hazardous Materials...........................................................................52
5.7 Margin Stock..................................................................................53
i
5.8 Inspection....................................................................................53
Section 6. COMPANY'S NEGATIVE COVENANTS..................................................................53
6.1 Maximum Leverage Ratio........................................................................53
6.2 Minimum Fixed Charge Coverage Ratio...........................................................53
6.3 Liens.........................................................................................53
6.4 Disposition of Assets.........................................................................55
Section 7. EVENTS OF DEFAULT.............................................................................55
7.1 Failure to Make Payments When Due.............................................................55
7.2 Default in Other Agreements...................................................................55
7.3 Breach of Certain Covenants...................................................................55
7.4 Breach of Warranty............................................................................56
7.5 Other Defaults Under Agreement................................................................56
7.6 Involuntary Bankruptcy; Appointment of Receiver, etc..........................................56
7.7 Voluntary Bankruptcy; Appointment of Receiver, etc............................................56
7.8 Judgments and Attachments.....................................................................57
7.9 Unfunded ERISA Liabilities....................................................................57
7.10 Change in Control.............................................................................57
7.11 Invalidity of Company Guaranty................................................................58
Section 8. ADMINISTRATIVE AGENT..........................................................................58
8.1 Appointment and Authorization of Administrative Agent.........................................58
8.2 Delegation of Duties..........................................................................59
8.3 Liability of Administrative Agent.............................................................59
8.4 Reliance by Administrative Agent..............................................................59
8.5 Notice of Default.............................................................................60
8.6 Credit Decision; Disclosure of Information by Administrative Agent............................60
8.7 Indemnification of Administrative Agent.......................................................61
8.8 Administrative Agent in Individual Capacity...................................................61
8.9 Successor Administrative Agent................................................................62
8.10 Documentation Agent, Syndication Agent and Co-Agents..........................................62
Section 9. MISCELLANEOUS.................................................................................62
9.1 Securities Representation.....................................................................62
9.2 Assignments and Participations in Loans.......................................................63
9.3 Expenses......................................................................................65
9.4 Indemnity.....................................................................................65
9.5 Ratable Sharing...............................................................................67
9.6 Amendments and Waivers........................................................................68
9.7 Notices.......................................................................................68
9.8 Survival of Representations and Warranties....................................................69
9.9 Failure or Indulgence Not Waiver; Remedies Cumulative.........................................69
9.10 Entire Agreement..............................................................................69
9.11 Severability..................................................................................69
9.12 Obligations Several; Independent Nature of Lenders'Rights.....................................69
9.13 Headings......................................................................................70
9.14 Applicable Law................................................................................70
9.15 Successors and Assigns........................................................................70
9.16 Consent to Jurisdiction and Service of Process................................................70
ii
9.17 Waiver of Jury Trial..........................................................................70
9.18 Confidentiality...............................................................................71
9.19 Counterparts; Effectiveness...................................................................71
EXHIBITS
I FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
II FORM OF COMPLIANCE CERTIFICATE
III FORM OF NOTICE OF PRO RATA BORROWING
IV FORM OF NOTICE OF BID RATE BORROWING
V FORM OF NOTICE OF BID
VI FORM OF NOTICE OF CONVERSION/CONTINUATION
VII FORM OF NOTICE OF REQUEST FOR EXTENSION
VIII FORM OF COMPANY GUARANTY
IX FORM OF OPINION OF O'MELVENY & XXXXX LLP
X FORM OF OPINION OF GOODSILL XXXXXXXX XXXXX & XXXXXX
SCHEDULES
2.1 PRO RATA COMMITMENTS
9.7 OFFSHORE AND DOMESTIC LENDING OFFICES, ADDRESSES FOR NOTICES
iii
XXXX FOOD COMPANY, INC.
XXXX FRESH FRUIT INTERNATIONAL, LIMITED
SOLVEST, LTD.
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of July 11, 2000 and entered into by and
among XXXX FOOD COMPANY, INC., a Hawaii corporation ("COMPANY"), XXXX FRESH
FRUIT INTERNATIONAL, LIMITED, a Liberian corporation ("DFFI"), and SOLVEST,
LTD., a Bermuda corporation ("SOLVEST"; Company, DFFI and Solvest each
individually referred to herein as a "BORROWER" and collectively as
"BORROWERS"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF
(each individually referred to herein as a "LENDER" and collectively as
"LENDERS"), BANK OF AMERICA, N.A., as administrative agent for Lenders (in such
capacity, "ADMINISTRATIVE AGENT"), COMMERZBANK AG, as syndication agent for
Lenders (in such capacity, the "SYNDICATION AGENT") and THE BANK OF NOVA SCOTIA,
as documentation agent for Lenders (in such capacity, the "DOCUMENTATION
AGENT").
R E C I T A L S
WHEREAS, Borrowers desire that Lenders extend certain credit facilities to
Borrowers for general corporate purposes; and
WHEREAS, Lenders desire to extend such credit facilities to Borrowers
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrowers, Lenders, Administrative
Agent, Syndication Agent and Documentation Agent agree as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the following
meanings:
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 8.9.
"ADMINISTRATIVE AGENT'S ACCOUNT" means Administrative Agent's account
no. 3750836479 (re: Xxxx Food Company, Inc.) maintained at the office of Bank of
America at 0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (or such
other account or address as Administrative Agent shall specify in writing to
Company and Lenders).
"ADMINISTRATIVE AGENT-RELATED PERSONS" means Administrative Agent
(including any successor agent), together with its Affiliates (including, in the
case of Bank of
America as Administrative Agent, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"AFFECTED LENDER" has the meaning assigned to that term in subsections
2.6G, 2.10 and 2.11A.
"AFFILIATE", as applied to any Person, means 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.
"AGREEMENT" means this Credit Agreement dated as of July 11, 2000,
together with all Schedules referred to herein and all Exhibits hereto, as it
may be amended, supplemented or otherwise modified from time to time.
"AGREEMENT CURRENCY" has the meaning assigned to that term in
subsection 9.4.
"APPLICABLE BORROWER" means (i) with respect to any Loan requested to
be made hereunder but not yet made, the Borrower requesting such Loan, and (ii)
with respect to any Loan made hereunder, the Borrower to which such Loan is
made.
"APPLICABLE FACILITY FEE PERCENTAGE" means, on any date, the
applicable percentage set forth below based upon the Senior Unsecured Debt
Ratings applicable on such date:
Senior Unsecured Debt Applicable Facility
RATING CATEGORY FEE PERCENTAGE
Category 1 0.10%
BBB+ or higher by S&P
Baa1 or higher by Xxxxx'x
Category 2 0.15%
BBB by S&P
Baa2 by Xxxxx'x
Category 3 0.20%
BBB- by S&P
Baa3 by Xxxxx'x
2
Category 4 0.25%
Lower than BBB- by S&P
Lower than Baa3 by Xxxxx'x
For purposes of the foregoing, (i) if the Senior Unsecured Debt Ratings
established or deemed to have been established by Xxxxx'x and S&P shall fall
within different Categories, the Applicable Facility Fee Percentage shall be
determined by reference to the superior (or numerically lowest) Category, (ii)
if any Senior Unsecured Debt Rating established or deemed to have been
established by Xxxxx'x or S&P shall be changed (other than as a result of a
change in the rating system of either Xxxxx'x or S&P), such change shall be
effective as of the date on which such change is first announced by the rating
agency making such change, and (iii) if either Xxxxx'x or S&P shall not have in
effect a Senior Unsecured Debt Rating (other than because such rating agency
shall no longer be in the business of rating corporate debt obligations), then
such rating agency will be deemed to have established a Senior Unsecured Debt
Rating in Category 4. Each change in the Applicable Facility Fee Percentage
shall apply during the period commencing on the effective date of such change
and ending on the date immediately preceding the effective date of the next such
change. If the rating system of either Xxxxx'x or S&P shall change, or if either
such rating agency shall cease to be in the business of rating corporate debt
obligations, Company and Lenders shall negotiate in good faith to amend the
references to specific Senior Unsecured Debt Ratings in this definition to
reflect such changed rating system or the non-availability of Senior Unsecured
Debt Ratings from such rating agency.
"APPLICABLE OFFSHORE RATE MARGIN" means, on any date, the applicable
percentage set forth below based upon the Senior Unsecured Debt Ratings
applicable on such date:
Senior Unsecured Debt Applicable Offshore
RATING CATEGORY RATE MARGIN
Category 1 0.40%
BBB+ or higher by S&P
Baa1 or higher by Xxxxx'x
Category 2 0.60%
BBB by S&P
Baa2 by Xxxxx'x
Category 3 0.80%
BBB- by S&P
Baa3 by Xxxxx'x
Category 4 1.00%
Lower than BBB-by S&P
Lower than Baa3 by Xxxxx'x
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For purposes of the foregoing, (i) if the Senior Unsecured Debt Ratings
established or deemed to have been established by Xxxxx'x and S&P shall fall
within different Categories, the Applicable Offshore Rate Margin shall be
determined by reference to the superior (or numerically lowest) Category, (ii)
if any Senior Unsecured Debt Rating established or deemed to have been
established by Xxxxx'x or S&P shall be changed (other than as a result of a
change in the rating system of either Xxxxx'x or S&P), such change shall be
effective as of the date on which such change is first announced by the rating
agency making such change, and (iii) if either Xxxxx'x or S&P shall not have in
effect a Senior Unsecured Debt Rating (other than because such rating agency
shall no longer be in the business of rating corporate debt obligations), then
such rating agency will be deemed to have established a Senior Unsecured Debt
Rating in Category 4. Each change in the Applicable Offshore Rate Margin shall
apply, during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change, to all Offshore Rate Loans that are outstanding at any time during such
period. If the rating system of either Xxxxx'x or S&P shall change, or if either
such rating agency shall cease to be in the business of rating corporate debt
obligations, Company and Lenders shall negotiate in good faith to amend the
references to specific Senior Unsecured Debt Ratings in this definition to
reflect such changed rating system or the non-availability of Senior Unsecured
Debt Ratings from such rating agency.
"ARRANGER" means Banc of America Securities LLC, in its
capacity as sole lead arranger and sole book manager.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and
Acceptance Agreement entered into by a Lender and an Eligible Assignee, and
accepted by Administrative Agent, in substantially the form of Exhibit I annexed
hereto.
"BANK OF AMERICA" means Bank of America, N.A.
"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 for any day a fluctuating rate per annum equal to
the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate." Such rate is a rate set by Bank of America based
upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"BASE RATE LOANS" means Pro Rata Loans bearing interest at
rates determined by reference to the Base Rate as provided in subsection 2.6.
"BID RATE LOANS" means one or more of the Bid Rate Loans made under
the auction bidding procedure described in subsection 2.2.
4
"BID RATE OFFER" has the meaning set forth in subsection 2.2A(ii).
"BORROWER" and "BORROWERS" have the meanings assigned to those terms
in the introduction to this Agreement.
"BORROWING" and "BORROW" mean a borrowing of Loans hereunder.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City or the State of California are
authorized or required by law to close, and, if the applicable Business Day
relates to:
(a) an Offshore Rate Loan denominated in Dollars, any such day on
which dealings are carried on in the applicable offshore Dollar
market;
(b) an Obligation denominated in the euro, any such day which is:
(i) for payments or purchases of the euro, a TARGET Business
Day; and
(ii) for all other purposes, including without limitation the
giving and receiving of notices hereunder, a TARGET Business
Day on which banks are generally open for business in
London, Frankfurt and in any other principal financial
center as Administrative Agent may from time to time
determine for this purpose; and
(c) an Obligation denominated in any other Offshore Currency, a day
on which commercial banks are open for foreign exchange business
in London, England, and on which dealings in the relevant
Offshore Currency are carried on in the applicable offshore
foreign exchange interbank market in which disbursement of or
payment in such Offshore Currency will be made or received
hereunder.
A "TARGET BUSINESS DAY" is a day when TARGET (Trans-European Automated
Real-time Gross Settlement Express Transfer system), or any successor
thereto, is scheduled to be open for business.
"CASH" means money, currency or a credit balance in a Deposit Account.
"CLAIM" has the meaning assigned to that term in subsection 9.4A.
"CLOSING DATE" means the later of (i) the date of execution and
delivery of this Agreement by Lenders, Administrative Agent, Syndication Agent,
Documentation Agent and Borrowers, and (ii) the date on which all conditions set
forth in subsection 3.1 hereof have been satisfied or waived.
5
"COMMITMENT TERMINATION DATE" means (i) the Current Commitment
Termination Date as defined in subsection 2.1E, or such later date as shall be
determined from time to time pursuant to subsection 2.1E, or (ii) such earlier
date on which all of the Pro Rata Commitments have been reduced to zero.
"COMPANY" has the meaning assigned to that term in the introduction to
this Agreement.
"COMPANY GUARANTY" means the Guaranty executed and delivered by
Company on the Closing Date, substantially in the form of Exhibit VIII annexed
hereto, as such Guaranty may thereafter be amended, supplemented or otherwise
modified from time to time.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of Exhibit II annexed hereto.
"CONSOLIDATED ADJUSTED OPERATING INCOME" means, for any period, the
sum of the amounts for such period of (i) the operating income (or loss) of
Company and its Subsidiaries, (ii) depreciation expense, (iii) amortization
expense, and (iv) other non-cash items, in each case determined on a
consolidated basis for Company and its Subsidiaries in conformity with GAAP and,
in the case of clauses (ii) through (iv), deducted in determining consolidated
operating income.
"CONSOLIDATED NET DEBT" means, at any date of determination, the
remainder on such date of (i) the total debt of Company and its Subsidiaries on
a consolidated basis, as set forth on Company's consolidated balance sheet in
conformity with GAAP less (ii) the Cash and Short-Term Investments of Company
and its Subsidiaries on a consolidated basis calculated in conformity with GAAP.
"CONSOLIDATED NET INTEREST EXPENSE" means, for any period, the
remainder of (i) total interest expense, whether paid or accrued as liabilities,
of Company and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP less (ii) total interest income, whether paid or
accrued, received or receivable by Company and its Subsidiaries from any source
(other than (x) from any Subsidiary of Company or (y) in the case of accrued but
unpaid interest (i) from any debtor in a case under the Bankruptcy Code or any
similar law applicable to debtors located outside the United States or (ii) that
is more than 180 days past due regardless of the source) for such period,
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET WORTH" means, as at any date of determination, the
sum of the capital stock and additional paid-in capital plus retained earnings
(or minus accumulated deficits) of Company and its Subsidiaries on a
consolidated basis determined in conformity with GAAP; provided that cumulative
foreign currency translation adjustments reported from and after December 30,
1995 shall be excluded.
6
"CONTINUATION" and "CONTINUE" mean, with respect to any Offshore Rate
Loan, the continuation of such Offshore Rate Loan as an Offshore Rate Loan on
the last day of the Interest Period for such Loan.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any (i) indenture, mortgage, deed of trust, credit agreement or
note purchase agreement or other agreement or instrument, in each case with
respect to such Person's indebtedness for borrowed money or (ii) material
contract, undertaking, agreement or other instrument not described in clause (i)
of this definition to which that Person is a party.
"CONVERSION" and "CONVERT" mean, with respect to any Pro Rata Loan,
the conversion of such Loan from or into another type of Pro Rata Loan.
"CROSS DEFAULT" means the breach or default by Company or any of its
Subsidiaries with respect to any term of any evidence of indebtedness for
borrowed money of Company or any such Subsidiary in an amount exceeding
$25,000,000 in the aggregate or any loan agreement, mortgage, indenture or other
agreement relating to such indebtedness (the "DEFAULTED DEBT"), if the effect of
such breach or default is to permit (other than as a result of an immaterial
breach or default) the holder or holders of such indebtedness (or a trustee on
behalf of such holder or holders) to cause the Defaulted Debt to become or be
declared due and payable prior to its stated maturity or the stated maturity of
any underlying obligation, as the case may be; provided, however, that in the
event that the non-payment, breach or default of the Defaulted Debt described
herein is cured or waived by the holders of the Defaulted Debt or if such
Defaulted Debt is repaid in full (other than with the proceeds of Loans), such
non-payment, breach or default shall not constitute a Cross Default hereunder.
"CURRENCY SETTLEMENT DATE" means (a) with respect to any Borrowing,
Conversion or Continuation of Loans, the date such Borrowing, Conversion or
Continuation is made, and (b) with respect to outstanding Obligations
denominated in an Offshore Currency (i) any Interest Payment Date relevant
thereto and (ii) the last Business Day of each month.
"CURRENT COMMITMENT TERMINATION DATE" has the meaning assigned to that
term in subsection 2.1E.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization.
"DFFI" has the meaning assigned to that term in the introduction to
this Agreement.
"DOLLARS" and the sign "$" mean the lawful money of the United States
of America.
"ELIGIBLE ASSIGNEE" means either (i) any Lender listed on the
signature pages of this Agreement or any Affiliate of any Lender provided such
Affiliate is primarily engaged in the business of commercial lending or (ii) any
other financial institution that is approved by Administrative Agent, which
approval shall not be unreasonably withheld, and, so long as
7
no Event of Default has occurred and is continuing, by Company in its sole
discretion; PROVIDED, HOWEVER, that neither Company nor any Affiliate of Company
shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means an "employee benefit plan," as defined
in Section 3(3) of ERISA (other than a Multiemployer Plan), of which the Company
or any of its ERISA Affiliates is the "plan sponsor," as defined in Section
3(16)(B) of ERISA, or to which the Company or any of its ERISA Affiliates
contributes.
"EMU LEGISLATION" means legislative measures of the European Union for
the introduction of, changeover to or operation of the euro in one or more
member states.
"ENVIRONMENTAL LAWS" means all federal, state and local environmental,
health or safety laws, ordinances, regulations, rules, statutes, orders and
decrees (including, but not limited to, those dealing with the use, generation,
treatment, storage, disposal or transportation of Hazardous Materials), as the
same may be in effect from time to time, and all foreign equivalents thereof.
"EQUIVALENT AMOUNT" means, as of any date of determination with
respect to any Obligation, the amount determined by Administrative Agent by
reference to the following table:
IF THE NOTIONAL AMOUNT IS THE EQUIVALENT AMOUNT IN DOLLARS THE EQUIVALENT AMOUNT IN SUCH OFFSHORE
DENOMINATED IN: IS: CURRENCY IS:
----------------------------- ----------------------------------- ----------------------------------------
The amount of such Offshore Currency
that can be purchased with Dollars at
Dollars Such amount the Spot Rate for delivery on the most
recent Currency Settlement Date for
such Obligation
----------------------------- ----------------------------------- ----------------------------------------
The amount of Dollars that can be
purchased with such Offshore
Currency at the Spot Rate for
An Offshore Currency delivery on the most recent Such amount
Currency Settlement Date for such
Obligation
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"ERISA AFFILIATE", as applied to any Person, means (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
8
that Person is a member; and (iii) 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.
"EURO" means the single currency of Participating Member States.
"EVENT OF DEFAULT" means each of the events set forth in Section 7.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"FACILITY FEE" has the meaning set forth in subsection 2.7A.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; PROVIDED that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to Bank of America on
such day on such transactions as determined by Administrative Agent.
"FISCAL QUARTER" means a fiscal quarter of Company and its
Subsidiaries.
"FISCAL YEAR" means the fiscal year of Company and its Subsidiaries.
"FOOD BUSINESS ASSETS" means the assets of Company and its
Subsidiaries constituting the food business of Company and its Subsidiaries.
"FUNDING DATE" means the date of the funding of a Loan.
"FX TRADING OFFICE" means the Foreign Exchange Trading Center, 0000
Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, of Bank of America, or such
other of Bank of America's offices as Administrative Agent may designate from
time to time.
"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.
"HAZARDOUS MATERIALS" means any hazardous, toxic or dangerous wastes,
pollutants, materials or substances including, without limitation, friable
asbestos, PCBs,
9
petroleum products and by-products, substances defined in or listed as
"hazardous materials," "hazardous substances" or "toxic substances" or
similarly identified in or pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as now or hereafter
amended, 42 U.S.C. Section 9601, et seq. and 42 U.S.C. Section 1101 et seq.;
"hazardous materials" identified in or pursuant to the Hazardous Materials
Transportation Act, as now or hereafter amended, 49 U.S.C. Section 1801, et
seq.; "hazardous wastes" identified in or pursuant to the Resource
Conservation and Recovery Act, as now or hereafter amended, 42 U.S.C. Section
6901, et seq.; any chemical substances or mixture regulated under the Toxic
Substances Control Act of 1976, as now or hereafter amended, 15 U.S.C.
Section 2601 et seq.; any "toxic pollutant" under the Clean Water Act, as now
or hereafter amended, 33 U.S.C. Section 1251 et seq.; any hazardous air
pollutant under the Clear Air Act, as now or hereafter amended, 42 U.S.C.
Section 7401 et seq.; and any hazardous, toxic or dangerous material,
substance or pollutant now or hereafter designated or regulated under any
Environmental Laws.
"INDEMNITEES" has the meaning assigned to that term in subsection 9.4.
"INDEMNIFIED LIABILITIES" has the meaning assigned to that term in
subsection
9.4.
"INDEMNIFIED LIABILITY" has the meaning assigned to that term in
subsection
9.4.
"INITIAL INTEREST PERIOD TERMINATION DATE" means for purposes of Pro
Rata Loans made by Lenders to Borrowers on the Closing Date, the Business Day
that occurs one calendar month following the Closing Date.
"INTEREST PAYMENT DATE" has the meaning assigned to that term in
subsection
2.6C.
"INTEREST PERIOD" means any interest period applicable to a Pro Rata
Loan (other than a Base Rate Loan except as otherwise provided in subsection
2.10B) as determined pursuant to subsection 2.6B.
"INTEREST RATE DETERMINATION DATE" means each date for calculating the
Offshore Rate for purposes of determining the interest rate in respect of an
Interest Period for a Pro Rata Loan that is an Offshore Rate Loan. The Interest
Rate Determination Date shall be the second Business Day prior to the first day
of such Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter.
"JUDGMENT CURRENCY" has the meaning assigned to that term in
subsection
9.4.
"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 9.2.
10
"LIEN" means any mortgage, pledge, lien, security interest or similar
encumbrance or any other type of preferential arrangement for the benefit of the
holders of indebtedness for borrowed money that has the practical effect of a
mortgage, pledge, lien or security interest.
"LOAN" or "LOANS" means one or more of the Pro Rata Loans or the Bid
Rate Loans, or a combination thereof.
"LOAN ACCOUNT" has the meaning set forth in subsection 2.5A.
"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 or condition (financial or otherwise)
of Company and its Subsidiaries taken as a whole, or (ii) a material adverse
effect on the ability of Company to pay the Obligations in full when due under
this Agreement.
"MATERIAL SUBSIDIARY" means (i) DFFI, (ii) Solvest, and (iii) any
other Subsidiary of Company identified as a "Material Subsidiary" on the most
recent report on Form 10-K filed by Company with the Securities and Exchange
Commission.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", as defined in
Section 3(37) of ERISA, to which Company or any of its ERISA Affiliates is
contributing, or ever has contributed, or to which Company or any of its ERISA
Affiliates has, or ever has had, an obligation to contribute; except that
Multiemployer Plan shall not include any plan to which neither the Company nor
any ERISA Affiliate is currently obligated to contribute and for which the full
amount of any withdrawal liability has been paid.
"NOTICE OF BID RATE BORROWING" means a notice substantially in the
form of EXHIBIT IV with respect to a proposed borrowing of a Bid Rate Loan.
"NOTICE OF BORROWING" means a Notice of Pro Rata Borrowing or a Notice
of Bid Rate Borrowing, as the case may be.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially in
the form of EXHIBIT VI with respect to a proposed Conversion or Continuation.
"NOTICE OF REQUEST FOR EXTENSION" means a notice substantially in the
form of EXHIBIT VII with respect to a proposed extension of the Current
Commitment Termination Date.
"NOTICE OF PRO RATA BORROWING" means a notice substantially in the
form of EXHIBIT III with respect to a proposed borrowing of a Pro Rata Loan.
11
"OBLIGATIONS" means all obligations of every nature of Borrowers from
time to time owed to Administrative Agent, Lenders or any of them under this
Agreement or the Company Guaranty, whether for principal, interest, fees,
expenses, indemnification or other amounts due or to become due.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate executed on behalf of such Person by a Responsible Officer of such
Person.
"OFFSHORE BASE RATE" has the meaning set forth in the definition of
Offshore Rate.
"OFFSHORE CURRENCY" means the euro and British pounds sterling.
"OFFSHORE CURRENCY LOAN" means any Offshore Rate Loan denominated in
an Offshore Currency.
"OFFSHORE CURRENCY SUBLIMIT" means the Equivalent Amount of
$100,000,000.
"OFFSHORE RATE" means for any Interest Period with respect to any
Offshore Rate Loan, a rate per annum determined by Administrative Agent pursuant
to the following formula:
Offshore Base Rate
Offshore Rate = -----------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"OFFSHORE BASE RATE" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen that displays an average British Bankers Association
Interest Settlement Rate for deposits in the applicable currency (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest Period (and
Administrative Agent shall promptly forward to Company a copy of such
Telerate screen page), or
(b) in the event the rate referenced in the preceding
subsection (a) does not appear on such page or service or such page or
service shall cease to be available, the rate per annum equal to the rate
determined by Administrative Agent to be the offered rate on such other
page or other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in the applicable currency (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest Period, or
12
(c) in the event the rates referenced in the preceding
subsections (a) and (b) are not available, the rate per annum determined by
Administrative Agent as the rate of interest (rounded upward to the next
1/100th of 1%) at which deposits in the applicable currency for delivery on
the first day of such Interest Period in same day funds in the approximate
amount of the Offshore Rate Loan being made, Continued or Converted by
Administrative Agent (or its Affiliate) in its capacity as a Lender and
with a term equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the offshore market for the
applicable currency at their request at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest Period.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day, whether or not
applicable to any Lender, under regulations issued from time to time by the
Board of Governors of the Federal Reserve System for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding
(currently referred to as "Eurocurrency liabilities"). The Offshore Rate
for each outstanding Offshore Rate Loan shall be adjusted automatically as
of the effective date of any change in the Eurodollar Reserve Percentage.
The determination of the Eurodollar Reserve Percentage and the
Offshore Base Rate by Administrative Agent shall be conclusive in the
absence of manifest error.
"OFFSHORE RATE LOAN" means a Pro Rata Loan bearing interest based on
the Offshore Rate, which may be denominated in U.S. Dollars or an Offshore
Currency. Offshore Rate Loans include Offshore Currency Loans.
"OFFSHORE RATE TAXES" has the meaning assigned to such term in
subsection 2.10D.
"PARTICIPATING MEMBER STATES" means each country which from time to
time becomes a Participating Member State as described in EMU Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"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 5.3;
13
(ii) statutory Liens of landlords and depositary institutions and
Liens of carriers, warehousemen, mechanics and materialmen and other
Liens imposed by law 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 7.8;
(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, zoning and similar 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;
(vii) any interest or title of a lessor or sublessor under any lease
not prohibited by this Agreement (including any Lien granted by such
lessor or sublessor);
(viii) Liens arising from filing UCC financing statements relating
solely to leases not prohibited by this Agreement;
(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; and
(x) other Liens incurred in the ordinary course of business of Company
and its Subsidiaries consistent with past practices as of the Closing
Date for obligations not constituting debt for borrowed money, which
obligations are not yet delinquent or are being contested in good
faith and for which adequate reserves have been provided by Company or
the applicable Subsidiary.
"PERSON" means and includes natural persons, corporations, limited
liability companies, limited partnerships, general partnerships, 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.
14
"POTENTIAL EVENT OF DEFAULT" means a condition or event which, after
notice or lapse of time or both, would constitute an Event of Default if that
condition or event were not cured or removed within any applicable grace or cure
period.
"PRO RATA COMMITMENT" has the meaning set forth in subsection 2.1A, as
such commitment may be reduced, increased or adjusted in accordance with the
terms of this Agreement, and "PRO RATA COMMITMENTS" means such commitments of
all Lenders in the aggregate.
"PRO RATA LOANS" means the Loans made pursuant to subsection 2.1A. Pro
Rata Loans may be Base Rate Loans and/or Offshore Rate Loans. Pro Rata Loans do
not include any Bid Rate Loans.
"PRO RATA SHARE" means, with respect to a particular Lender, (i) prior
to the Commitment Termination Date, the percentage set forth under such Lender's
name on SCHEDULE 2.1 attached hereto or set forth in the applicable Assignment
and Acceptance Agreement, as the case may be, as such percentage may be adjusted
from time to time pursuant to subsection 2.12 or subsection 9.2, and (ii) on and
after the Commitment Termination Date, a percentage equal to a fraction the
numerator of which shall be the aggregate principal amount outstanding of all
Loans made by such Lender hereunder and the denominator of which shall be the
aggregate principal amount outstanding of all Loans made by all Lenders
hereunder.
"REGISTER" has the meaning assigned to that term in subsection 2.5B.
"REQUISITE LENDERS" means Lenders having at least 51% of the Total Pro
Rata Commitments outstanding, or, if the Total Pro Rata Commitments have been
terminated, Lenders having at least 51% of the aggregate unpaid principal amount
of the Loans outstanding.
"RESPONSIBLE OFFICER" means, with respect to any Person, the Chief
Executive Officer, the Chief Financial Officer, an Executive Vice President, the
Treasurer or the Assistant Treasurer of such Person.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies,
Inc.
"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.
15
"SENIOR UNSECURED DEBT RATING" means, at any time of determination,
the rating currently assigned by Moody's or S&P, as applicable, to the
outstanding publicly-held long-term senior unsecured debt securities of Company,
or, if no such debt securities are outstanding at such time, the rating, if any,
that would be so assigned by Moody's or S&P, as applicable, if any such debt
securities were outstanding at such time, as evidenced by a formal rating letter
issued to Company by such rating agency and delivered by Company (in the form of
an original or a copy thereof) to Administrative Agent.
"SHORT-TERM INVESTMENTS" means investments that are accounted for on
Company's consolidated balance sheet as "short-term investments" in conformity
with GAAP.
"SOLVEST" has the meaning assigned to that term in the introduction to
this Agreement.
"SPOT RATE" means with respect to any currency on a particular
Currency Settlement Date, the rate at which such currency may be exchanged into
another currency, as set forth on such date on the Reuters currency page for
exchanges for such currency into such other currency. In the event that such
rate does not appear on any Reuters currency page, the Spot Rate with respect to
such currency shall be determined by reference to such other publicly available
service for displaying exchange rates as may be agreed upon by Administrative
Agent and Company or, in the absence of such agreement, such Spot Rate shall
instead be the rate quoted by Bank of America at approximately 8:00 A.M.
(California time) on the applicable Currency Settlement Date as the spot rate
for the purchase by Bank of America of such currency with another currency
through its FX Trading Office on such Currency Settlement Date for delivery two
Business Days later.
"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.
"TAXES" has the meaning assigned to such term in subsection 2.11A.
"TERMINATION EVENT" means (i) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder (for which the 30
day notice period has not been waived), (ii) the withdrawal of Company or any of
its ERISA Affiliates from a Pension Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, (iii) the
filing of a notice of intent to terminate a Pension Plan (other than in a
"standard termination" as described in Section 4041(b) of ERISA) or the
treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA, (iv) the institution of proceedings to terminate a Pension Plan by the
Pension Benefit Guaranty Corporation, or (v) any other event or condition that
would reasonably be expected
16
to constitute grounds under ERISA for the termination of, or the appointment of
a trustee to administer, any Pension Plan.
"TOTAL PRO RATA COMMITMENTS" has the meaning set forth for such term
in subsection 2.1B.
"TOTAL UTILIZATION" means, as at any time of determination, the sum of
(i) the aggregate principal amount of all Pro Rata Loans outstanding at such
time PLUS (ii) the aggregate principal amount of all Bid Rate Loans outstanding
at such time; PROVIDED that Total Utilization shall be determined without
duplication of Pro Rata Loans, the proceeds of which are used to refund other
Pro Rata Loans or Bid Rate Loans.
"UTILIZATION FEE" has the meaning set forth in subsection 2.7B.
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 subsection 5.1 shall
be prepared in accordance with GAAP as in effect at the time of such preparation
(except as otherwise provided in the definition of "Consolidated Net Worth" set
forth in subsection 1.1). If at any time any change in GAAP would affect the
computation of the financial ratios set forth in subsections 6.1 or 6.2, and
Company, Administrative Agent or Requisite Lenders shall so request,
Administrative Agent, Lenders and Company shall negotiate in good faith to amend
such financial ratios to preserve the original intent thereof in light of such
change in GAAP, PROVIDED that, until so amended, such financial ratios shall
continue to be computed in accordance with GAAP prior to such change therein and
Company shall provide to Administrative Agent and Lenders reconciliation
statements.
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.
1.4 CURRENCY EQUIVALENTS GENERALLY.
Administrative Agent shall determine the Equivalent Amount in Dollars
of Borrowings, prepayments, Conversions, Continuations and outstanding
Obligations denominated in Offshore Currencies as of each Currency Settlement
Date applicable thereto. Except for purposes of financial statements delivered
by Borrowers hereunder or calculating financial covenants hereunder or except as
otherwise provided herein, the applicable amount of any currency for purposes of
this Agreement shall be such Equivalent Amount in Dollars.
17
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 PRO RATA LOANS.
A. PRO RATA LOANS. Each Lender hereby severally agrees, subject to the
limitations set forth in subsection 2.1B with respect to the maximum amount of
Pro Rata Loans permitted to be outstanding from time to time and subject to the
other terms and conditions hereof, to lend to Borrowers, in Dollars and Offshore
Currencies, from time to time, during the period from and including the Closing
Date to but excluding the Commitment Termination Date, Pro Rata Loans in an
aggregate Equivalent Amount in Dollars at any time outstanding not to exceed
such Lender's Pro Rata Share of the Total Pro Rata Commitments then in effect.
Each Lender's commitment to make Pro Rata Loans to Borrowers pursuant to this
subsection 2.1A is herein called its "PRO RATA COMMITMENT." The initial amount
of the Pro Rata Commitment of each Lender is set forth below such Lender's name
on SCHEDULE 2.1 attached hereto. The amount of each Lender's Pro Rata Commitment
shall be reduced by its respective Pro Rata Share of the amount of all
reductions of the Total Pro Rata Commitments made through any date of
determination pursuant to subsection 2.8. The initial aggregate amount of all
Pro Rata Commitments is $250,000,000.
Each Lender's Pro Rata Commitment shall expire on the Commitment
Termination Date and all Pro Rata Loans and all other amounts owed hereunder
with respect to the Pro Rata Loans of each Borrower shall be paid in full by
such Borrower no later than that date.
Except as otherwise provided in this Agreement, amounts borrowed by
any Borrower under this subsection 2.1A may be repaid and, to but excluding the
Commitment Termination Date, reborrowed by any Borrower. Pro Rata Loans made on
any Funding Date shall be in an aggregate minimum amount of (i) $500,000 or any
integral multiple of $100,000 in excess thereof, in the case of Base Rate Loans,
(ii) $5,000,000 or any integral multiple of $1,000,000 in excess thereof, in the
case of Offshore Rate Loans denominated in Dollars, and (iii) 1,000,000 units of
the applicable Offshore Currency or any integral multiple of 500,000 units of
the applicable Offshore Currency in excess thereof, in the case of Offshore
Currency Loans.
B. TOTAL PRO RATA COMMITMENTS; LIMITATIONS ON OUTSTANDING LOAN
AMOUNTS. The aggregate Pro Rata Commitments of all Lenders are herein
collectively called the "TOTAL PRO RATA COMMITMENTS". Anything in this Agreement
to the contrary notwithstanding, (i) in no event shall the aggregate Equivalent
Amount in Dollars of all Pro Rata Loans from any Lender outstanding at any time
exceed its Pro Rata Commitment, (ii) in no event shall the aggregate Equivalent
Amount in Dollars of all Loans dominated in Offshore Currencies outstanding at
any time exceed the Offshore Currency Sublimit, and (iii) in no event shall the
Equivalent Amount in Dollars of the Total Utilization exceed the Total Pro Rata
Commitments at any time.
C. NATURE OF LENDERS' OBLIGATIONS. Subject to subsection 2.10B, Pro
Rata 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
18
be responsible for any default by any other Lender in such other Lender's
obligation to make a Pro Rata Loan requested hereunder, nor shall the Pro Rata
Commitment of any Lender be increased or decreased as a result of a default by
any other Lender in such other Lender's obligation to make a Pro Rata Loan
requested hereunder.
D. BORROWING MECHANICS. Whenever any Borrower desires to borrow Pro
Rata Loans under this subsection 2.1, it shall deliver to Administrative Agent a
Notice of Pro Rata Borrowing no later than (i) 10:00 A.M. (California time) on
the proposed Funding Date in the case of a Base Rate Loan, (ii) 10:00 A.M.
(California time) at least three (3) Business Days in advance of the proposed
Funding Date in the case of an Offshore Rate Loan denominated in Dollars, and
(iii) 10:00 A.M. (California time) at least four (4) Business Days in advance of
the proposed Funding Date in the case of an Offshore Currency Loan.
Each Notice of Pro Rata Borrowing shall specify: (i) the proposed
Funding Date (which shall be a Business Day); (ii) the amount and type of Loans
requested; (iii) whether such Pro Rata Loans shall be Base Rate Loans or
Offshore Rate Loans and, in the case of Offshore Rate Loans, the Interest Period
applicable thereto; (iv) in the case of a Borrowing comprised of Offshore
Currency Loans, the applicable Offshore Currency; and (v) that the Equivalent
Amount in Dollars of the Total Utilization (after giving effect to the proposed
borrowing) does not exceed the Total Pro Rata Commitments then in effect.
In lieu of delivering any Notice of Pro Rata Borrowing, the Applicable
Borrower may give Administrative Agent telephonic notice of the proposed
borrowing (and the other information required by a Notice of Pro Rata Borrowing)
by the required time under this subsection 2.1; PROVIDED, HOWEVER, that such
notice shall be promptly confirmed in writing by delivery of a Notice of Pro
Rata Borrowing to Administrative Agent on the same date as the telephonic
notice.
Except as provided in subsection 2.10, a Notice of Pro Rata Borrowing
(or telephonic notice in lieu thereof) shall be irrevocable, and the Applicable
Borrower shall be bound to make a borrowing in accordance therewith unless such
Borrower pays any amounts required to be paid pursuant to subsection 2.10C to
compensate Lenders.
E. EXTENSION OF COMMITMENT TERMINATION DATE. "CURRENT
COMMITMENT TERMINATION Date" shall initially mean July 10, 2001. So long as the
Pro Rata Commitments hereunder shall remain in effect Company may, at its
option, deliver to Administrative Agent, on any Business Day that is not less
than 60 days nor more than 90 days prior to the Current Commitment Termination
Date, an originally executed Notice of Request for Extension, signed by the
chief executive officer, the chief financial officer or the treasurer of Company
on behalf of Company and Subsidiary Borrowers, requesting an extension (the
"PROPOSED EXTENSION") of the Current Commitment Termination Date for a period
(the "EXTENSION PERIOD") of 364 days from the Current Commitment Termination
Date, effective as of the then existing Current Commitment Termination Date (the
"PROPOSED EXTENSION EFFECTIVE DATE"); PROVIDED that in the event Company fails
to exercise such option to request a Proposed Extension, or in the event any
Proposed Extension requested by Company does not become effective as hereinafter
provided, then the Current Commitment Termination Date shall continue to be the
existing Current Commitment Termination Date.
19
Administrative Agent shall promptly deliver to each Lender a copy of any Notice
of Request for Extension delivered by Company to Administrative Agent.
Within 30 days of delivery of the Notice of Request for Extension by
Company (the "FIRST DETERMINATION DATE"), each Lender shall have the right, in
its sole discretion, subject to the provisions of this subsection 2.1E, (i) to
irrevocably consent to the Proposed Extension with respect to all of such
Lender's Commitment by executing and delivering to Administrative Agent a
counterpart of such Notice of Request for Extension or (ii) to reject the
Proposed Extension with respect to all of such Lender's Commitment; PROVIDED
that if a Lender has not replied in writing to Administrative Agent with respect
to the Proposed Extension by the First Determination Date such Lender shall be
deemed to have rejected the Proposed Extension. Promptly after the First
Determination Date, Administrative Agent shall notify Company and Lenders as to
whether or not each Lender has consented to the Proposed Extension.
If one or more Lenders (each a "REJECTING LENDER") shall have rejected
or shall be deemed to have rejected the Proposed Extension, then Company may
request that the Pro Rata Commitment, Loans and all other rights and obligations
of each Rejecting Lender under this Agreement (as to all Rejecting Lenders,
collectively, the "REJECTING LENDER OBLIGATIONS") be purchased at par and/or
assumed, as of the Proposed Extension Effective Date, by (i) one or more Lenders
(each a "REMAINING LENDER" and collectively, "REMAINING LENDERS") that have
consented to the Proposed Extension and/or (ii) one or more other Eligible
Assignees (each a "NEW LENDER" and collectively, "NEW LENDERS"; Remaining
Lenders and New Lenders being collectively referred to herein as "REPLACEMENT
LENDERS") satisfactory to Company and Administrative Agent. Each prospective
Replacement Lender requested by Company in writing to purchase at par and/or
assume all or any portion of the Rejecting Lender Obligations shall have the
right to accept or reject such request, in whole or in part, within 40 days of
delivery of the Notice of Request for Extension by Company (the "SECOND
DETERMINATION DATE"); PROVIDED that (a) if a prospective Replacement Lender has
not replied in writing to Company with respect to such request by the Second
Determination Date, such prospective Replacement Lender shall be deemed to have
rejected such request and (b) in the event some or all of the prospective
Replacement Lenders have accepted Company's request to purchase at par and/or
assume all or any portion of the Rejecting Lender Obligations in an aggregate
amount greater than the aggregate amount of the Rejecting Lender Obligations,
Company and Administrative Agent may allocate the Rejecting Lender Obligations
among such prospective Replacement Lenders in the exercise of their sole
discretion.
Anything contained in this subsection 2.1E to the contrary
notwithstanding, any Proposed Extension shall become effective pursuant to this
subsection 2.1E if, and only if, (i) all Lenders shall have consented to such
Proposed Extension in accordance with the provisions of this subsection 2.1E or
(ii) if there are one or more Rejecting Lenders, then on or before the Second
Determination Date one or more Replacement Lenders shall have agreed to purchase
at par and/or assume, as of the Proposed Extension Effective Date, all of the
Rejecting Lender Obligations in accordance with the provisions of this
subsection 2.1E.
20
If any Proposed Extension becomes effective in accordance with clause
(ii) of the immediately preceding paragraph then (i) within ten (10) days after
the Second Determination Date, Company, each Rejecting Lender and each
Replacement Lender shall execute and deliver to Administrative Agent
counterparts of an assignment agreement, satisfactory in form and substance to
Administrative Agent, pursuant to which Rejecting Lenders agree to sell and/or
assign, and Replacement Lenders agree to purchase at par and/or assume, all of
the Rejecting Lender Obligations as of the Proposed Extension Effective Date,
(ii) after receipt of such assignment agreement and any forms, certificates or
other evidence with respect to United States federal income tax withholding
matters and/or California income tax withholding matters that any New Lender may
be required to deliver to Administrative Agent pursuant to subsection 2.11B or
subsection 2.11C, as applicable, Administrative Agent shall (a) accept such
assignment agreement by executing a counterpart thereof as provided therein and
(b) on the Proposed Extension Effective Date, record the information contained
therein in the Register, and (iii) anything contained in this Agreement to the
contrary notwithstanding, in order to facilitate the transactions contemplated
by such assignment agreement, (a) during the period commencing on the Second
Determination Date and ending on the Proposed Extension Effective Date, the
Commitments shall not be voluntarily reduced by Company, (b) during the period
commencing on the third Business Day immediately preceding the Proposed
Extension Effective Date and ending on the Proposed Extension Effective Date, no
Loans shall be requested or voluntarily prepaid by Company, (c) on the Proposed
Extension Effective Date (1) Company shall pay to Administrative Agent, for
distribution (as appropriate) to Lenders, all accrued and unpaid interest with
respect to all Loans outstanding on the Proposed Extension Effective Date, and
(2) Company shall pay to Administrative Agent, for distribution (as appropriate)
to Lenders, all accrued and unpaid commitment fees as of the Proposed Extension
Effective Date, and (d) in the event any Loans of Rejecting Lenders outstanding
on the Proposed Extension Effective Date are Offshore Rate Loans (the "REPLACED
OFFSHORE RATE LOANS"), (1) Company shall pay to such Rejecting Lenders such
amounts as would have been payable pursuant to subsection 2.6D if the Replaced
Offshore Rate Loans had been prepaid by Company on the Proposed Extension
Effective Date, and (2) the Replacement Lenders replacing such Rejecting Lenders
shall be deemed to have made Offshore Loans in the same principal amount as the
Replaced Offshore Rate Loans with Interest Periods commencing on the Proposed
Extension Effective Date and ending on the last day of the Interest Periods of
the Replaced Offshore Rate Loans.
2.2 BID RATE LOANS.
A. Each Lender severally agrees that any Borrower may borrow Bid Rate
Loans under this subsection 2.2 in Dollars from time to time on any Business Day
during the period from the date hereof until the date occurring two days prior
to the Commitment Termination Date in the manner set forth below; PROVIDED that,
following the borrowing of each Bid Rate Loan, the Equivalent Amount in Dollars
of the Total Utilization shall not exceed the Total Pro Rata Commitments then in
effect.
(i) Any Borrower may request one or more Bid Rate Loans under this
subsection 2.2 by transmitting to Administrative Agent by telephone
(promptly confirmed in writing by telecopy on the same date) notice of
a Bid
21
Rate Loan or Loans (a "NOTICE OF BID RATE BORROWING"), in
substantially the form of EXHIBIT IV hereto, specifying the date and
aggregate amount of the proposed Bid Rate Loan or Loans, the maturity
date for repayment of such Bid Rate Loan or Loans, the interest
payment date or dates relating thereto, and any other terms to be
applicable to such Bid Rate Loan or Loans, not later than 10:00 A.M.
(California time) at least one Business Day prior to the date of the
proposed Bid Rate Loan; PROVIDED that no Notice of Bid Rate Borrowing
may request that bids be made for Loans having more than three
different maturities and, PROVIDED, FURTHER, that without the consent
of Administrative Agent, Borrowers may deliver a Notice of Bid Rate
Borrowing no more often than every third Business Day. Each Notice of
Bid Rate Borrowing must request a Bid Rate Loan with a maturity of not
less than seven (7) days or more than one hundred eighty-three (183)
days and, in any case, with a maturity date which occurs before the
second day prior to the Commitment Termination Date. Administrative
Agent shall in turn promptly (but in no event later than 12:00 Noon
(California time)) on the date of receipt of each Notice of Bid Rate
Borrowing notify each Lender of each request for a Bid Rate Loan
received by it from the Applicable Borrower by sending such Lender a
copy of the related Notice of Bid Rate Borrowing.
(ii) Each Lender may, if in its sole discretion it elects to do so,
irrevocably offer (a "BID RATE OFFER") to make one or more Bid Rate
Loans to the Applicable Borrower at a rate or rates of interest
specified by such Lender, by delivering to Administrative Agent by
telefacsimile a bid substantially in the form of EXHIBIT V hereto,
before 8:00 A.M. (California time) on the date of such proposed Bid
Rate Loan, and Administrative Agent shall give prompt notice thereof
to such Borrower by telefacsimile, on the date of such proposed Bid
Rate Loan, of the minimum amount and maximum amount of each Bid Rate
Loan which such Lender would be willing to make (which amounts may,
subject to the proviso to the first sentence of this subsection 2.2A,
exceed such Lender's Pro Rata Commitment), the rate or rates of
interest therefor expressed to the ninth decimal place or less for
each such Bid Rate Loan and confirming the maturity date for such Bid
Rate Loan as requested by the Applicable Borrower in the Notice of Bid
Rate Borrowing; PROVIDED that if the Administrative Agent in its
capacity as a Lender shall, in its sole discretion, elect to make any
Bid Rate Offer, it shall notify the Applicable Borrower of such offer
before 7:00 A.M. (California time) on the date of such proposed Bid
Rate Loan. (iii) The Applicable Borrower shall, in turn, before 10:00
A.M. (California time) on the date of such proposed Bid Rate Loan,
either
(x) cancel such proposed Bid Rate Loan by giving Administrative
Agent notice to that effect, or
(y) accept one or more of the Bid Rate Offers (which acceptance
shall be irrevocable) in its sole discretion, by giving notice to
Administrative
22
Agent of the amount of each Bid Rate Loan (which amount shall be equal
to or greater than the minimum amount, and equal to or less than the
maximum amount, notified to the Applicable Borrower by Administrative
Agent on behalf of such Lender for such Bid Rate Loan pursuant to
paragraph (ii) above) to be made by each Lender (provided that the
aggregate amount of such Bid Rate Loans shall not exceed the amount
specified in the Notice of Bid Rate Borrowing delivered by the
Applicable Borrower ), and reject any remaining Bid Rate Offers by
giving Administrative Agent notice to that effect; PROVIDED that
acceptance of Bid Rate Offers may only be made on the basis of
ascending rates for Bid Rate Loans of the same type and duration for
up to the maximum amounts offered by Lenders; and PROVIDED FURTHER
that if Bid Rate Offers are made by two or more Lenders for the same
type of Bid Rate Loan for the same duration and with the same rate of
interest, in an aggregate amount which is greater than the amount
requested, such offers shall be accepted on a pro rata basis based on
the maximum amounts offered by such Lenders at such rate of interest.
(iv) If the Applicable Borrower notifies Administrative Agent that
such proposed Bid Rate Loan is cancelled pursuant to paragraph
(iii)(x) above or if the Applicable Borrower rejects any offers made
by Lenders pursuant to paragraph (iii)(y) above, Administrative Agent
shall give prompt notice thereof to the Lenders or affected Lenders,
as the case may be, and in the case of a cancellation, such Bid Rate
Loan shall not be made.
(v) If the Applicable Borrower accepts one or more of the Bid Rate
Offers, Administrative Agent shall in turn promptly notify (A) each
Lender that has made a Bid Rate Offer, of the date and aggregate
amount of such Bid Rate Loan and whether or not any Bid Rate Offer or
Bid Rate Offers made by such Lender have been accepted by the
Applicable Borrower, and (B) each Lender that is to make a Bid Rate
Loan, of the amount of each Bid Rate Loan to be made by such Lender.
Promptly after each borrowing of Bid Rate Loans, Administrative Agent
will notify each Lender of the aggregate amount of such Bid Rate
Loans, and the dates upon which such Bid Rate Loans commenced and will
terminate. Each Lender that is to make a Bid Rate Loan shall make the
proceeds of its Bid Rate Loan available to the Applicable Borrower in
accordance with and subject to the terms and conditions set forth or
referred to in subsection 2.4.
B. Each Bid Rate Loan shall be in an aggregate amount not less than
$1,000,000 or any integral multiple in excess thereof.
C. Within the limits and on the conditions set forth in this
subsection 2.2, Borrowers may from time to time borrow under this subsection
2.2, repay or prepay pursuant to subsection D. below, and reborrow under this
subsection 2.2, and more than one Bid Rate Loan may be made on a Business Day.
23
D. The Applicable Borrower shall repay to each Lender that has made a
Bid Rate Loan, on the maturity date of such Bid Rate Loan (such maturity date
being that specified by the Applicable Borrower for repayment of such Bid Rate
Loan in the related Notice of Bid Rate Borrowing pursuant to the terms hereof)
the then unpaid principal amount of such Bid Rate Loan pursuant to subsection
2.8B. No Borrower shall have any right to prepay any principal amount of any Bid
Rate Loan except (i) such prepayments as are on the terms specified by the
Applicable Borrower for such Bid Rate Loan in the related Notice of Bid Rate
Borrowing or (ii) with the consent of the Lender making such Bid Rate Loan.
E. Pursuant to subsection 2.8B, the Applicable Borrower shall pay
interest to each Lender that has made a Bid Rate Loan on the unpaid principal
amount of such Bid Rate Loan from the date of such Bid Rate Loan to the date the
principal amount of such Bid Rate Loan is repaid in full, at the rate of
interest specified by the Lender making such Bid Rate Loan in its Bid Rate
Offer, payable on the interest payment date or dates specified by the Applicable
Borrower for such Bid Rate Loan in the related Notice of Bid Rate Borrowing;
PROVIDED that any principal amount of any Bid Rate Loan which is not paid when
due (whether at stated maturity, by acceleration or otherwise) and any interest
payment on Bid Rate Loans not paid hereunder when due, in each case, shall bear
interest from the date on which such amount is due until such amount is paid in
full, payable on demand, at a rate per annum equal to 2% per annum above the
Base Rate in effect from time to time.
2.3 [INTENTIONALLY RESERVED].
2.4 DISBURSEMENT OF FUNDS.
Promptly after receipt of a Notice of Pro Rata Borrowing denominated in Dollars
pursuant to subsection 2.1 (or telephonic notice in lieu thereof) and in any
event on the Business Day such notice is received, Administrative Agent shall
notify each Lender of the proposed Borrowing. Promptly after receipt of a Notice
of Pro Rata Borrowing denominated in an Offshore Currency pursuant to subsection
2.1 (or telephonic notice in lieu thereof) and in any event on the Business Day
such notice is received, Administrative Agent shall promptly notify each Lender
and the Applicable Borrower of the aggregate amount of the proposed Borrowing,
Conversion or Continuation in such Offshore Currency, the aggregate Equivalent
Amount of such Borrowing, Conversion or Continuation in Dollars and the
applicable Spot Rate used by Administrative Agent to determine such Equivalent
Amount. If any Lender notifies Administrative Agent prior to the time specified
by this Agreement for setting the interest rate for an Offshore Currency Loan in
a requested Offshore Currency that such Lender has used all reasonable means to
fund an Offshore Currency Loan in the requested Offshore Currency and that it
cannot do so, the Notice of Pro Rata Borrowing relating to such requested
Offshore Currency Loan shall be deemed withdrawn. Administrative Agent shall
promptly notify the Applicable Borrower of any such notice received from a
Lender. Each Lender shall make same day funds for its Pro Rata Loan available to
Administrative Agent on the Funding Date in the currency of such Pro Rata Loan
(or, with the consent of Administrative Agent and the Applicable Borrower, in
each instance, the Equivalent Amount in Dollars of the applicable Offshore
Currency) to Administrative Agent's Account not later than 11:00 A.M.
(California time). Upon satisfaction or waiver of the conditions precedent
specified in Section 3 (including, without limitation, subsection 3.2B, if
applicable),
24
Administrative Agent shall make the proceeds of such Pro Rata Loans available to
the Applicable Borrower on such Funding Date in like funds as received by
Administrative Agent from Lenders, by causing such same day funds equal to the
proceeds of all such Loans received by Administrative Agent to be credited to
the account of the Applicable Borrower at that office of Administrative Agent
where Administrative Agent's Account is located on such Funding Date. In the
case of Bid Rate Loans, upon satisfaction or waiver of the conditions precedent
specified in Section 3 (including, without limitation, subsection 3.2B to the
extent applicable), the applicable Lender shall make the proceeds of its Bid
Rate Loan available to the Applicable Borrower on the Funding Date, by causing
an amount of same day funds equal to the proceeds of such Loan to be credited to
the account of the Applicable Borrower at that office of Administrative Agent
where Administrative Agent's Account is located on such Funding Date.
The acceptance by the Applicable Borrower of any proceeds of any Loan
which results in an increase in the Equivalent Amount in Dollars of the Total
Utilization shall be deemed to constitute a representation to the Lenders that
the conditions to funding set forth herein are satisfied on and as of the
applicable Funding Date.
Unless Administrative Agent shall have been notified by any Lender
prior to the Funding Date of any Pro Rata Loan that such Lender does not intend
to make available to Administrative Agent that Lender's Pro Rata 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, in its sole discretion, may, but shall not be obligated
to, make available to the Applicable Borrower a corresponding amount on such
Funding Date. If such corresponding amount is not in fact made available to
Administrative Agent by that Lender on the Funding Date, 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, which interest shall
accrue at the Federal Funds Rate for the first five days and thereafter at the
Base Rate in effect from time to time (beginning on and including the date of
such borrowing). If that Lender does not pay such corresponding amount forthwith
upon Administrative Agent's demand therefor, Administrative Agent shall promptly
notify the Applicable Borrower, and the Applicable Borrower shall immediately
pay such corresponding amount to Administrative Agent together with interest
accrued thereon at the applicable rate for the Loan made on such Funding Date.
Nothing in this subsection 2.4 shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment hereunder or to prejudice any rights which
any Borrower may have against any Lender as a result of any default by that
Lender hereunder.
2.5 LOAN ACCOUNTS AND REGISTER.
A. LOAN ACCOUNTS. Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "LOAN ACCOUNT") evidencing the
indebtedness of each Borrower to such Lender for each Pro Rata Loan and Bid Rate
Loan made by it, including the amount of principal and interest payable and paid
to such Lender from time to time hereunder, and the applicable currency of each
such Loan. Failure to make any notation, or any error therein, in a Loan Account
shall not affect any Borrower's Obligations to such
25
Lender. Each Borrower agrees that if, in the opinion of any Lender, a promissory
note or other evidence of debt is required or appropriate to reflect or enforce
any Loans outstanding to or to be made by such Lender to such Borrower, then
such Borrower shall promptly execute and deliver to such Lender one or more
promissory notes payable to such Lender to evidence the Pro Rata Loans and/or
Bid Rate Loans of such Borrower that are outstanding to such Lender under this
Agreement from time to time. If any notes are issued hereunder, Administrative
Agent and Borrowers may treat the payee of that note as the owner of such note
for all purposes until an Assignment and Acceptance Agreement shall have been
filed with Administrative Agent and recorded in the Register; PROVIDED, HOWEVER,
that the entries made in the Register shall be controlling in the event of a
conflict.
B. REGISTER. Administrative Agent shall maintain at its address
referred to in subsection 9.7 hereof a register (the "REGISTER") in which it
shall record the names and addresses of Lenders, each Lender's Pro Rata Share of
the Commitments, the date and amount of each Pro Rata Loan made hereunder and
the amount of any payment received by Administrative Agent hereunder and each
Lender's share thereof, and the applicable currency of such Loan, and, to the
extent Administrative Agent has received notice thereof from the Applicable
Borrower and the applicable Lender, the date and amount of each Bid Rate Loan
and the amount of any payment thereon received by the applicable Lender. Failure
to make any such recordation, or any error therein, shall not affect any
Borrower's Obligations.
C. PROMISE TO REPAY; ENTRIES BINDING. Each Borrower hereby severally
agrees to pay when due all Obligations of such Borrower hereunder. The entries
made in the Register and each Loan Account shall be conclusive and binding for
all purposes, absent manifest error. In case of a conflict between the entries
made in the Register and the entries made in any Loan Account, the entries made
in the Register shall be controlling, absent manifest error. Borrowers,
Administrative Agent and Lenders may treat each Person listed as a Lender in the
Register as the owner of the corresponding Loan listed therein and as a Lender
hereunder for all purposes of this Agreement unless and until an Assignment and
Acceptance Agreement shall have become effective in accordance with subsection
9.2C; PROVIDED, HOWEVER, that the entries made in the Register shall be
controlling in the event of a conflict, absent manifest error. 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, transferee or assignee of the
corresponding Loan. The Register shall be available for inspection by any
Borrower or any Lender at any reasonable time during Administrative Agent's
normal business hours upon reasonable prior notice.
2.6 INTEREST ON THE LOANS.
A. RATES OF INTEREST.
(i) PRO RATA LOANS. Each Pro Rata 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 Offshore Rate, as the case may be;
PROVIDED that Borrowers hereby agree and acknowledge that Pro Rata
Loans made by Lenders on the Closing
26
Date shall be denominated in Dollars, shall bear interest at the
Offshore Rate PLUS the Applicable Offshore Rate Margin, and shall have
an Interest Period of one month which shall terminate on the Initial
Interest Period Termination Date. The applicable basis for determining
the rate of interest with respect to any Pro Rata Loan shall be
selected by the Applicable Borrower initially at the time a Notice of
Pro Rata Borrowing is given with respect to such Pro Rata Loan. The
basis for determining the interest rate with respect to any Pro Rata
Loan may be changed from time to time pursuant to subsection 2.6D. If
on any day a Pro Rata 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 Pro Rata Loan
shall bear interest determined by reference to the Base Rate.
Subject to subsection 2.6E, Pro Rata Loans shall bear interest
through maturity (whether by acceleration or otherwise) at a per annum
rate equal to the Base Rate in effect from time to time or at a per
annum rate equal to the sum of the Offshore Rate for each Interest
Period therefor PLUS the Applicable Offshore Rate Margin.
(ii) BID RATE LOANS. Each Bid Rate 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 pursuant
to subsection 2.2.
B. INTEREST PERIODS. In connection with each Offshore Rate Loan, the
Applicable Borrower, by giving notice as set forth in subsection 2.1 or 2.6D,
shall elect an interest period (each an "INTEREST PERIOD") to be applicable to
such Loan, which Interest Period shall be a period of 1, 2, 3 or 6 months;
PROVIDED, that:
(i) the Interest Period for any Loan shall commence on the Funding
Date in respect of such Loan, or on the date specified in the
applicable Notice of Conversion/Continuation;
(ii) in the case of immediately successive Interest Periods, each
successive Interest Period shall commence on the day on which the next
preceding Interest Period expires;
(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
27
calendar month at the end of such Interest Period) shall, subject to
clause (v) of this subsection 2.6B, end on the last Business Day of a
calendar month;
(v) no Interest Period shall extend beyond the Commitment Termination
Date; and
(vi) in the event the Applicable Borrower fails to specify an Interest
Period for any Offshore Rate Loan in the applicable Notice of Pro Rata
Borrowing or Notice of Conversion/Continuation, the Applicable
Borrower shall be deemed to have selected an Interest Period of one
month.
C. INTEREST PAYMENTS. Subject to subsection 2.6E, interest shall be
payable by each Borrower on the Loans made to it as follows:
(i) interest on each Base Rate Loan shall be payable in arrears (a)
quarterly on the last Business Day of each December, March, June and
September, beginning September, 2000; and (b) at maturity (whether by
acceleration or otherwise);
(ii) interest on each Offshore Rate Loan shall be payable in arrears
(a) on the last day of each Interest Period applicable to such Loan
and, in the case of each Interest Period of longer than 3 months,
throughout such Interest Period on each day that occurs three (3)
months from the first day of such Interest Period; and (b) at maturity
(whether by acceleration or otherwise); and
(iii) interest on each Bid Rate Loan shall be payable at maturity
(whether by acceleration or otherwise) and at such other times as is
specified by the Applicable Borrower in the Notice of Bid Rate
Borrowing with respect to such Bid Rate Loan.
Each such date on which an interest payment is due hereunder with respect to a
Loan is herein referred to as an "INTEREST PAYMENT DATE" for such Loan.
D. CONVERSION OR CONTINUATION OF LOANS. Subject to the provisions of
subsection 2.10B, each Borrower shall have the option (A) as of any Business
Day, in the case of Base Rate Loans, or as of the last day of the applicable
Interest Period, in the case of any Offshore Rate Loans, to convert any such
Loans in whole without regard to any minimum amount or in part subject to the
limitations described herein (i) to Base Rate Loans in a minimum amount equal to
$500,000 or integral multiples of $100,000 in excess thereof, (ii) to Offshore
Rate Loans denominated in Dollars in a minimum amount equal to $5,000,000 or
integral multiples of $1,000,000 in excess thereof, and (iii) to Offshore
Currency Loans in a minimum amount equal to 1,000,000 units of the applicable
Offshore Currency or integral multiples of 500,000 units of the applicable
Offshore Currency in excess thereof; or (B) as of the last day of any Interest
Period applicable to an Offshore Rate Loan, to continue all of such Offshore
Rate Loan without regard to any minimum amount or any portion of that and all
other Offshore Rate Loans denominated in the same currency and having Interest
Periods expiring on such day in a minimum amount equal to (i) $5,000,000 or
28
integral multiples of $1,000,000 in excess thereof, in the case of Offshore Rate
Loans denominated in Dollars and (ii) 1,000,000 units of the applicable Offshore
Currency or integral multiples of 500,000 units of the applicable Offshore
Currency in excess thereof, in the case of Offshore Currency Loans; PROVIDED,
that if at any time the principal amount of any Offshore Rate Loan is reduced by
mandatory prepayment or conversion in part thereof, and the remaining amount is
less than the minimum amounts set forth above, such remaining amount of such
Offshore Rate Loan shall automatically convert to a Base Rate Loan until such
time as such Offshore Rate Loan, when combined with any other outstanding Base
Rate Loans, shall be sufficient to permit the Applicable Borrower to convert
such Offshore Rate Loan to, and continue such Offshore Rate Loan as, an Offshore
Rate Loan in any of the minimum amounts set forth above.
The Applicable Borrower shall deliver a Notice of
Conversion/Continuation to Administrative Agent no later than (i) 9:00 A.M.
(California time) at least three (3) Business Days in advance of the proposed
conversion date in the case of Conversion to Base Rate Loans, (ii) 9:00 A.M.
(California time) at least three (3) Business Days in advance of the proposed
conversion/continuation date in the case of Conversion to or Continuation of
Offshore Rate Loans denominated in Dollars, and (iii) 9:00 A.M. (California
time) at least four (4) Business Days in advance of the proposed
conversion/continuation date in the case of Conversion to or Continuation of
Offshore Currency Loans. 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) the requested Interest Period, if
any, and (v) in the case of conversions into Offshore Rate Loans, the applicable
currency. In lieu of delivering the above-described Notice of
Conversion/Continuation, the Applicable Borrower may give Administrative Agent
telephonic notice by the required time of any proposed conversion/continuation
(and the information required by a Notice of Conversion/Continuation) under this
subsection 2.6D; 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.
If for any reason an Offshore Rate Loan remains outstanding beyond the
expiration of the Interest Period therefor (including any
conversion/continuation periods with respect thereto), such Loan shall be
continued as a Base Rate Loan.
Administrative Agent shall not incur any liability to any Borrower 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 the Applicable Borrower or for otherwise
acting in good faith under this subsection 2.6D, 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 the Applicable Borrower shall have effected a conversion or
continuation, as the case may be, hereunder.
Except as otherwise provided in subsection 2.10B, a Notice of
Conversion/Continuation (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and the
Applicable Borrower shall be
29
bound to effect a conversion or continuation in accordance therewith, unless the
Applicable Borrower pays such amounts as required under subsection 2.10C to
compensate Lenders.
E. POST MATURITY INTEREST. Any principal payments on Pro Rata Loans
not paid when due, any interest payments on Pro Rata Loans owed hereunder not
paid when due and any payments of fees and other amounts owed hereunder not paid
when due, in each case whether at stated maturity, by notice of prepayment, by
acceleration or otherwise, shall thereafter bear interest payable by the
Applicable Borrower (in the case of payments of principal or interest or other
amounts relating to specific Loans) or Company (in the case of all other such
amounts) on demand at a rate (the "POST MATURITY RATE") that is, in the case of
such principal or interest payment, 2% per annum in excess of the interest rate
(including the Applicable Offshore Rate Margin, if applicable) otherwise payable
under this Agreement with respect to such Loans and, in the case of such fees
and other amounts, 2% per annum in excess of the interest rate payable under
this Agreement with respect to Base Rate Loans.
F. COMPUTATION OF INTEREST. Interest on the Base Rate Loans shall be
computed on the basis of a 365 or 366-day year, as applicable, and interest on
all other Loans shall be computed on the basis of a 360-day year, in each case
for the actual number of days elapsed in the period during which it accrues. In
computing interest on any Loan (or any de facto loan from Administrative Agent
to a Lender pursuant to subsection 2.4), the date of the making of such Loan (or
such de facto loan) or the first day of an Interest Period applicable to such
Loan or, with respect to a Loan being converted from another Loan, the date of
conversion of such Loan shall be included, and the date of payment of such Loan
(or such de facto loan) or the expiration date of an Interest Period applicable
to such Loan or, with respect to a Loan which will be converted to another Loan,
the date of conversion of such Loan 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.
G. INCREASED CAPITAL. If after the date hereof any Lender determines
that either (i) any law, order or regulation regarding capital adequacy or any
change in the interpretation or administration of any such law, order or
regulation by any governmental authority charged with the interpretation or
administration thereof, or (ii) compliance with any guideline or request
regarding capital adequacy made by or issued from any such governmental
authority has or would have the effect of increasing the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender as a result of or based upon the existence of such
Lender's Pro Rata Commitment and other commitments of such type, then Company
shall from time to time, within 15 Business Days after written notice and demand
by such Lender (each such Lender, an "AFFECTED LENDER") (with a copy of such
notice and demand to Administrative Agent), pay to such Lender additional
amounts sufficient to compensate such Lender or other corporation for its
increased costs attributable to such increase in capital in light of such
circumstances commencing on and after the ninetieth day following the date of
such demand to the extent that such Lender reasonably determines such increased
costs to be allocable to the existence of such Lender's Pro Rata Commitment. A
certificate as to such amounts providing reasonable detail to Company regarding
the manner in which the amount of any payment requested by it pursuant to the
provisions of this subsection 2.6G has been determined, shall be submitted to
Company and Administrative Agent by such Lender. No Lender shall have
30
the right to collect payments from Company pursuant to this subsection 2.6G
unless it is the policy of such Lender, at the time of such collection, to
collect similar payments from borrowers (if any) who are similarly situated as
Company, including, without limitation, with respect to credit standing, in
connection with credit facilities similar to those made available pursuant to
this Agreement, where the documents governing such credit facilities establish
the right of such Lender to collect such payments.
In the event Company receives a notice from an Affected Lender
pursuant to this subsection 2.6G, Company may, within 90 days after the date
such notice is given and so long as such notice shall not have been terminated
by such Affected Lender and no Event of Default shall have occurred and be
continuing, elect to terminate such Affected Lender as a party to this
Agreement; PROVIDED, that concurrently with such termination, (i) Company shall
pay to such Affected Lender all interest and fees and other amounts (including
without limitation amounts owed under this subsection 2.6G) owed to such
Affected Lender through such date of termination and (ii) another financial
institution that is an Eligible Assignee shall purchase for cash the Loans of
the Affected Lender and shall have agreed to become a Lender for all purposes
under this Agreement and to assume all obligations of the Affected Lender to be
terminated as of such date pursuant to an Assignment and Acceptance Agreement
that shall have become effective pursuant to subsection 9.2B.
2.7 FEES.
A. FACILITY FEE. For the period commencing on the Closing Date to but
excluding the Commitment Termination Date, Company agrees to pay to
Administrative Agent for the benefit of each Lender a per annum fee (the
"FACILITY FEE"), payable quarterly in arrears on the last Business Day of each
December, March, June and September, commencing September, 2000, and on the
Commitment Termination Date in an amount equal to the product of (i) the actual
daily amount of such Lender's Pro Rata Commitment in effect (without regard to
the amount of Loans outstanding) during the period for which such payment is to
be made TIMES (ii) a rate per annum equal to the Applicable Facility Fee
Percentage for each such day, calculated on the basis of a 360-day year and the
actual number of days in the applicable period.
B. UTILIZATION FEE. For the period commencing on the Closing Date to
but excluding the Commitment Termination Date, Company agrees to pay to
Administrative Agent for distribution to each Lender PRO RATA on the basis of
its Pro Rata Share, a utilization fee (the "UTILIZATION FEE") in an amount equal
to (i) the product of .125% per annum times the actual daily outstanding
principal amount of Loans (excluding outstanding Bid Rate Loans) on each day
that the aggregate principal amount of Loans (excluding outstanding Bid Rate
Loans) equals or exceeds 33% (but is less than 67%) of the Total Pro Rata
Commitments and (ii) the product of .25% per annum TIMES the actual daily
outstanding principal amount of Loans (excluding outstanding Bid Rate Loans) on
each day that the aggregate principal amount of Loans (excluding outstanding Bid
Rate Loans) equals or exceeds 67% of the Total Pro Rata Commitments. The
Utilization Fee shall be payable quarterly in arrears on the last Business Day
of each December, March, June and September, commencing September, 2000. The
Utilization Fee shall be calculated quarterly in arrears
31
and shall accrue at all times, including at any time during which one or more
conditions in Section 3 are not met.
C. FEES TO ADMINISTRATIVE AGENT. Company agrees to pay to
Administrative Agent such fees in the amounts and at the times separately agreed
upon between Company and Administrative Agent.
2.8 PREPAYMENTS AND REDUCTIONS IN COMMITMENTS; GENERAL PROVISIONS REGARDING
PAYMENTS.
A. PREPAYMENTS AND REDUCTIONS IN COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS. Any Borrower may, at any time and from time
to time prepay any Pro Rata Loans on any Business Day in full or
ratably in part without penalty; PROVIDED, that prepayments in part of
(a) Base Rate Loans shall be in an aggregate minimum principal amount
of $500,000 and integral multiples of $100,000 in excess thereof, (b)
Offshore Rate Loans denominated in Dollars shall be in an aggregate
minimum principal amount of $5,000,000 and integral multiples of
$1,000,000 in excess thereof, and (c) Offshore Currency Loans shall be
in an aggregate minimum principal amount of 1,000,000 units of the
applicable Offshore Currency and integral multiples of 500,000 units
of the applicable Offshore Currency in excess thereof. The Applicable
Borrower shall deliver a notice of prepayment to be received by
Administrative Agent not later than (i) 10:00 A.M. (California time)
on the prepayment date if the Loans to be prepaid are Base Rate Loans,
(ii) 10:00 A.M. (California time) at least three (3) Business Days in
advance of the prepayment date if the Loans to be prepaid are Offshore
Rate Loans denominated in Dollars, and (iii) 10:00 A.M. (California
time) at least four (4) Business Days in advance of the prepayment
date if the Loans to be prepaid are Offshore Currency Loans. No
Borrower may voluntarily prepay any Bid Rate Loan except (i) with the
consent of the Lender making such Loan or (ii) on the basis specified
by the Applicable Borrower in the Notice of Bid Rate Borrowing
relating thereto.
(ii) VOLUNTARY REDUCTIONS OF COMMITMENTS. Company may at any time and
from time to time, by delivery of notice to Administrative Agent not
later than 10:00 A.M. (California time) at least three (3) Business
Days in advance of the termination or reduction date, terminate in
whole without regard to any minimum amount with respect thereto or
permanently reduce in part, without premium or penalty, the Total Pro
Rata Commitments in an amount up to the amount by which the Total Pro
Rata Commitments exceed the Equivalent Amount in Dollars of the Total
Utilization at the time of such proposed termination or reduction;
PROVIDED that any such partial reduction of the Commitments shall be
in an aggregate minimum of $5,000,000 and integral multiples of
$1,000,000 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
32
such termination or reduction of the Commitments shall be effective on
the date specified in Company's notice and shall reduce the Pro Rata
Commitment of each Lender proportionately to its Pro Rata Share.
(iii) PREPAYMENTS DUE TO CURRENCY FLUCTUATION. Borrowers shall on the
Currency Settlement Date with respect to an Offshore Currency Loan,
prepay their respective Pro Rata Loans to the extent necessary so that
the aggregate outstanding principal amount of the Equivalent Amount in
Dollars of the Loans shall not at any time exceed the Total Pro Rata
Commitments then in effect.
(iv) GENERAL PROVISIONS REGARDING PREPAYMENTS. All prepayments shall
include payment of accrued interest on the principal amount being
prepaid. Any Offshore Rate Loan which is prepaid prior to the end of
any Interest Period applicable thereto shall be accompanied by payment
of any amounts required pursuant to subsection 2.10C, except as set
forth in subsection 2.10B(i).
B. MANNER AND TIME OF PAYMENT. All payments by Borrowers of principal
and interest shall be made in same days funds in the currency of the Loan being
paid (or, with the consent of Administrative Agent in each instance, the
Equivalent Amount in Dollars of the applicable Offshore Currency). All fees and
other Obligations hereunder shall be made in Dollars in same day funds. All
payments by Borrowers shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. All payments shall be delivered to
Administrative Agent by deposit to Administrative Agent's Account, not later
than 12:00 Noon (California time) on the date due for the account of the
applicable Lender or Lenders. Funds received after the required time on the due
date shall be deemed to have been paid by Company, DFFI or Solvest, as the case
may be, on the next succeeding Business Day.
C. APPORTIONMENT OF PAYMENTS. Subject to the second paragraph of this
subsection 2.8C, (i) aggregate principal and interest payments in respect of Pro
Rata Loans shall be apportioned among all outstanding Pro Rata Loans to which
such payments relate, FIRST, as to interest ratably in accordance with the
respective accrued and unpaid amounts of such interest, and SECOND, as to
principal ratably in accordance with the respective outstanding amounts of such
principal, and (ii) all principal and interest payments in respect of any Bid
Rate Loans shall be apportioned ratably among Lenders making such Bid Rate Loans
in accordance with the respective outstanding principal amounts of, and the
respective interest rates applicable to, such Bid Rate Loans. Administrative
Agent shall promptly (and if practicable on the same Business Day as payments
are received) distribute to each Lender at its primary address set forth on
SCHEDULE 2.1 attached hereto (or set forth in Section 13 of the applicable
Assignment and Acceptance Agreement), or at such other address as any Lender may
request by notice to Administrative Agent in accordance with the terms of this
Agreement, its share of all such payments received by Administrative Agent on
behalf of such Lender when received by Administrative Agent. Notwithstanding the
foregoing provisions of this subsection 2.8C, if, pursuant to the provisions of
subsection 2.10B(ii) any Notice of Pro Rata Borrowing or Notice of
Conversion/Continuation is withdrawn as to any
33
Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its
Pro Rata Share of Offshore Rate Loans or if any Loan of an Affected Lender is
converted into a Base Rate Loan, Administrative Agent shall give effect thereto
in apportioning payments received thereafter.
ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING,
UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF ANY EVENT OF DEFAULT SPECIFIED
IN SUBSECTION 7.1 OR AFTER THE ACCELERATION OF THE MATURITY OF THE LOANS AND THE
OTHER AMOUNTS REFERRED TO IN SECTION 7 OR TERMINATION OF THE PRO RATA
COMMITMENTS, ALL PAYMENTS BY ANY BORROWER RELATING TO THE LOANS AND THE OTHER
OBLIGATIONS OF SUCH BORROWER SHALL BE MADE TO ADMINISTRATIVE AGENT FOR THE
ACCOUNT OF LENDERS AND ALL AMOUNTS RECEIVED BY ADMINISTRATIVE AGENT WHICH ARE TO
BE APPLIED TO THE PAYMENT OF THE OBLIGATIONS OF SUCH BORROWER SHALL BE
DISTRIBUTED TO LENDERS IN SUCH A MANNER THAT EACH LENDER RECEIVES ITS
PROPORTIONATE SHARE OF SUCH AMOUNTS BASED ON THE OUTSTANDING PRINCIPAL AMOUNTS
OF ALL LOANS OF SUCH BORROWER THEN OUTSTANDING AND (SUBJECT TO THE LAST SENTENCE
OF THE FIRST PARAGRAPH OF THIS SUBSECTION 2.8C), THE AMOUNT OF ALL OTHER
OBLIGATIONS OF SUCH BORROWER THEN PAYABLE.
D. PAYMENTS ON NON-BUSINESS DAYS. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day, the
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 under any note issued hereunder and of the fees hereunder; PROVIDED, HOWEVER,
that if the day on which payment relating to an Offshore Rate Loan is due is not
a Business Day but is a day of the month after which no further Business Day
occurs in that month, then the due date thereof shall be the next preceding
Business Day.
2.9 USE OF PROCEEDS.
A. LOANS. The proceeds of the Loans shall be used by Borrowers for
general corporate purposes of Company, its Subsidiaries and its Affiliates,
which for purposes of this Agreement shall be deemed to include, by way of
example but not limitation, working capital, repayment of other indebtedness of
Company and its Subsidiaries, the payment of Pro Rata Loans and Bid Rate Loans,
financing acquisitions, and payment of dividends on, and repurchasing common
stock of, Company.
B. MARGIN REGULATIONS. 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 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.
34
2.10 SPECIAL PROVISIONS GOVERNING OFFSHORE RATE LOANS.
Notwithstanding any other provision of this Agreement to the contrary, the
following provisions shall govern with respect to Offshore Rate Loans as to the
matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as practicable on
each Interest Rate Determination Date for an Offshore Rate Loan, 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 Offshore 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 the Applicable
Borrower and each applicable Lender.
B. RATE NOT ASCERTAINABLE, INCREASED COSTS AND ILLEGALITY.
(i) In the event of a reasonable determination, which determination
shall, absent manifest error, be final and conclusive and binding upon
all parties hereto:
(a) by Administrative Agent on any Interest Rate Determination
Date for any Interest Period that, by reason of any changes arising on
or after the date of this Agreement affecting the offshore interbank
market or affecting the position of Administrative Agent (or its
applicable offshore lending office) in such market, adequate and fair
means do not exist for ascertaining the applicable interest rate on
the basis provided for in the definition of Offshore Rate or deposits
in Dollars or the applicable Offshore Currency are not being offered
to first class banks in the applicable offshore interbank market with
maturities comparable to the Interest Period of, and in amounts
comparable to, the applicable Offshore Rate Loans; or
(b) by any Lender at any time, that such Lender has incurred or
shall incur increased costs or reductions in the amounts or in the
rate of return received or receivable hereunder with respect to any
Loan in an amount determined by such Lender to be material because of
(x) any change since the date of this Agreement in any applicable law,
governmental rule, regulation, guideline or order (or in the
interpretation or administration thereof and including the adoption of
any new law or governmental rule, regulation, guideline or order)
(such as, for example, but not limited to, a change in official
reserve requirements, but in all events excluding such reserve and
other requirements with respect to Offshore Rate Loans that are
reflected in the definition of Offshore Rate), or (y) in the case of a
Offshore Rate Loan, any other circumstances affecting such Lender or
the applicable offshore market or the position of such Lender in such
market; or
(c) by any Lender at any time, that the making or continuance of
any Loan has become unlawful as a result of compliance by such Lender
in
35
good faith with any law, governmental rule, regulation, guideline or
order, or has become impracticable as a result of a contingency
occurring after the date of this Agreement which materially and
adversely affects the applicable offshore interbank market;
then, and in any such event, such Administrative Agent or such Lender
(Administrative Agent or Lender, an "AFFECTED LENDER"), as applicable, on
such date may give notice (by telephone, confirmed in writing) to each
Borrower and to Administrative Agent (but only with respect to clauses (b)
and (c) in the case of such notice to Administrative Agent) of such
determination (which notice Administrative Agent shall promptly transmit to
each of the other Lenders). Thereafter, (x) in the case of clause (a)
above, Offshore Rate Loans (or, if the applicable Offshore Currency are not
being offered to first class banks as described in clause (a), then
Offshore Rate Loans denominated in such Offshore Currency) shall no longer
be available until such time as Administrative Agent notifies Company and
Lenders that the circumstances giving rise to such notice no longer exist,
and any Notice of Borrowing or Notice of Conversion/Continuation given by
the Applicable Borrower with respect to such Offshore Rate Loans or such
Offshore Rate Loans denominated in such Offshore Currency, as the case may
be, which have not yet been made, converted or continued shall be deemed
rescinded by the Applicable Borrower, (y) in the case of clause (b) above,
the Applicable Borrower shall pay to such Affected Lender, within 15
Business Days of written demand therefor together with a statement showing
the basis for the calculation thereof, such additional amounts (in the form
of an increased rate of, or a different method of calculating, interest or
otherwise as such Affected Lender in its discretion shall reasonably
determine) as shall be required to compensate such Affected Lender for such
increased costs or reductions in amounts receivable hereunder incurred or
suffered by such Affected Lender at any time commencing on and after the
ninetieth day following the date of its written notice pursuant to this
subsection 2.10B; PROVIDED, HOWEVER, that the Affected Lender shall not
have the right to collect payments from any Borrower pursuant to this
subsection 2.10B unless it is the policy of such Affected Lender, at the
time of such collection, to collect similar payments from borrowers (if
any) who are similarly situated as Company, including, without limitation,
with respect to credit standing, in connection with credit facilities
similar to those made available pursuant to this Agreement, where the
documents governing such credit facilities establish the right of such
Lender to collect such payments. Thereafter, the Applicable Borrower may
convert each outstanding Offshore Rate Loan then outstanding of such
Affected Lender, upon at least three (3) Business Days' notice to
Administrative Agent and such Affected Lender, into a Base Rate Loan
(PROVIDED no Borrower shall be required to pay any amounts under subsection
2.10C as a result thereof), which new Loan shall, notwithstanding any
provision in this Agreement to the contrary, have the same Interest Period
as the Offshore Rate Loan converted, and with respect to Offshore Rate
Loans to be made on or after the date of such notice, from and after the
date which is three (3) Business Days after Administrative Agent and such
Affected Lender receive notice from the Applicable Borrower of its election
to so require, such Lender shall make a Loan, as part of any requested
borrowing of Offshore Rate Loans, as a Base Rate Loan, which Base Rate Loan
shall, for all purposes, have the same Interest Period as the Offshore
36
Rate Loans made by other Lenders on such Funding Date, and (z) in the case
of clause (c) above, the Applicable Borrower shall take one of the actions
specified in subsection 2.10B(ii) as promptly as possible and, in any
event, within the time period required by law.
In the event any Borrower receives a notice from an Affected Lender
pursuant to this subsection 2.10B, Company may, within 90 days after the
date such notice is given and so long as such notice shall not have been
terminated by such Affected Lender and no Event of Default shall have
occurred and be continuing, elect to terminate such Affected Lender as a
party to this Agreement; PROVIDED, that concurrently with such termination,
(i) each Borrower shall pay to such Affected Lender all interest and fees
and other amounts (including without limitation amounts owed under this
subsection 2.10B) owed to such Affected Lender by such Borrower through
such date of termination and (ii) another financial institution that is an
Eligible Assignee shall purchase for cash the Loans of the Affected Lender
and shall have agreed to become a Lender for all purposes under this
Agreement and to assume all obligations of the Affected Lender to be
terminated as of such date pursuant to an Assignment and Acceptance
Agreement that shall have become effective pursuant to subsection 9.2B.
(ii) Upon the giving of notice by an Affected Lender referred to in
subsection 2.10B(i)(c), Borrowers' rights to request of such Affected
Lender and such Lender's obligation to make Offshore Rate Loans shall be
immediately suspended to the extent specified in such Affected Lender's
notice, and (a) with respect to Offshore Rate Loans to be made on or after
the date of such notice, such Lender shall make a Loan, as part of any
requested borrowing of Offshore Rate Loans, as a Base Rate Loan, which Base
Rate Loan shall, for all purposes, have the same Interest Period as the
Offshore Rate Loans made by other Lenders on such Funding Date, and (b)
with respect to Offshore Rate Loans then outstanding, the Applicable
Borrower shall, upon at least 3 Business Days' notice to Administrative
Agent and the Affected Lender (unless a shorter time period is required by
law, in which case such notice shall be given within the time period
required by law), convert each such Loan into a Base Rate Loan, which new
Loan shall, notwithstanding any provision in this Agreement to the
contrary, have the same Interest Period as the Offshore Rate Loan so
converted; PROVIDED, that in each case: (i) each Lender agrees (to the
extent consistent with internal policies) to designate a different
applicable lending office for Offshore Rate Loans if such designation would
avoid the illegality described in subsection 2.10B(i)(c), but only so long
as such designation would not result in any additional costs, expenses or
risks to such Lender that are not reimbursed by Borrowers pursuant hereto
and would not, in the judgment of such Lender, affect any certification
delivered by it pursuant to subsection 2.11 hereof or be otherwise
disadvantageous to such Lender, and Company hereby agrees to pay all
reasonable expenses incurred by any Lender in utilizing another lending
office of such Lender pursuant to this clause (i); and (ii) in the event
that such Affected Lender determines at any time following its giving of
such notice that such Affected Lender may lawfully make Offshore Rate Loans
of any type referred to in such notice, such Affected Lender shall promptly
give notice (by telephone confirmed in writing) to Administrative Agent and
Company (which notice Administrative Agent shall promptly transmit to each
37
Lender) of that determination, whereupon Borrowers' rights to request of
such Lender and such Lender's obligation to make Offshore Rate Loans of
such type shall be restored.
C. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
Each Borrower shall compensate each Lender within 10 Business Days following
receipt of a reasonable 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 Offshore
Rate Loans to such Borrower and any loss, expense or liability sustained by that
Lender in connection with the liquidation or re-employment of such funds) which
that Lender may sustain: (i) if for any reason (other than a default by that
Lender) a borrowing of any Offshore Rate Loan by such Borrower does not occur on
a date specified therefor by it in the applicable Notice of Borrowing (or any
telephonic request therefor), or a Conversion to or Continuation of any Offshore
Rate Loan of such Borrower does not occur on a date specified therefor by it in
a Notice of Conversion/Continuation or a telephonic request for Conversion or
Continuation, (ii) if any prepayment or Conversion of any of its Offshore Rate
Loans to such Borrower occurs on a date that is not the last day of an Interest
Period applicable to that Loan, except as set forth in subsection 2.10B(i),
(iii) if any prepayment of any of its Offshore Rate Loans to such Borrower is
not made on any date specified in a notice of prepayment given by such Borrower,
or (iv) as a consequence of any other default by such Borrower in the repayment
of its Offshore Rate Loans when required by the terms of this Agreement.
D. OFFSHORE RATE TAXES. Company agrees that:
(i) Promptly upon notice from any Lender to the Applicable Borrower, such
Borrower will pay, prior to the date on which penalties attach thereto, all
present and future income, stamp and other taxes, levies or costs and
charges whatsoever imposed, assessed, levied or collected on or in respect
of a Loan to such Borrower solely as a result of the interest rate being
determined by reference to the Offshore Rate and/or the provisions of this
Agreement relating to the Offshore Rate and/or the recording, registration,
notarization or other formalization of any thereof and/or any payments of
principal, interest or other amounts made on or in respect of a Loan to
such Borrower when the interest rate is determined by reference to the
Offshore Rate (all such taxes, levies, costs and charges being herein
collectively called "OFFSHORE RATE TAXES"); PROVIDED, that Offshore Rate
Taxes shall not include taxes imposed on or measured by the overall income
of that Lender (whether gross or net income) or franchise taxes by the
United States of America or any political subdivision or taxing authority
thereof or therein, or taxes on or measured by the overall income of any
foreign branch, operation or subsidiary of that Lender (whether gross or
net income) or franchise taxes by any foreign country or subdivision
thereof in which that branch, operation or subsidiary is organized,
resident or doing business or any withholding taxes the subject of
subsection 2.11 hereof imposed by the United States with respect to payment
of interest. The Applicable Borrower shall also pay such additional amounts
equal to increases
38
in taxes payable by that Lender described in the foregoing provision which
increases are attributable to payments made by such Borrower described in
the immediately preceding sentence or this sentence. Promptly after the
date on which payment of any such Offshore Rate Tax is due pursuant to
applicable law, the Applicable Borrower will, at the request of that
Lender, furnish to that Lender evidence, in form and substance satisfactory
to that Lender, that such Borrower has met its obligations under this
subsection 2.10D(i); and
(ii) The Applicable Borrower will indemnify each Lender against, and
reimburse each Lender within 10 Business Days of a demand for, any Offshore
Rate Taxes, as determined by that Lender in its good faith discretion. Each
Lender shall provide the Applicable Borrower with information reasonably
indicating the basis for such Offshore Rate Taxes and with appropriate
receipts for any payments or reimbursements made by such Borrower pursuant
to this subsection 2.10D(ii). Notwithstanding the foregoing, no Lender
shall have the right to collect Offshore Rate Taxes from any Borrower
pursuant to this subsection 2.10D(ii) unless it is the policy of such
Lender, at the time of such collection, to collect Offshore Rate Taxes from
borrowers (if any) who are similarly situated as such Borrower, including,
without limitation, with respect to credit standing, in connection with
credit facilities similar to those made available pursuant to this
Agreement, where the documents governing such credit facilities establish
the right of such Lender to collect Offshore Rate Taxes.
E. BOOKING OF OFFSHORE RATE LOANS. Any Lender may make, carry or transfer
Offshore Rate Loans at, to, or for the account of any of its branch offices or
the office of an Affiliate of that Lender; PROVIDED, that no such Lender shall
be entitled to receive any greater amount under subsection 2.10B, subsection
2.10D, subsection 2.11 or subsection 2.6G as a result of the transfer of any
such Loan than such Lender would be entitled to immediately prior thereto unless
(i) such transfer occurred at a time when circumstances giving rise to the claim
for such greater amount did not exist and were not reasonably foreseeable by
such Lender, or (ii) such claim would have arisen even if such transfer had not
occurred, or (iii) such transfer was made to avoid illegality of the type
described in subsection 2.10B(i)(c).
F. AFFECTED LENDER'S OBLIGATION TO MITIGATE. Each Lender agrees that, as
promptly as practicable after it becomes aware of (i) the occurrence of an event
or the existence of a condition described in subsection 2.10B(i)(b) that would
cause such Lender to make a determination of the nature described therein or
(ii) the imposition, assessment, or collection of any Offshore Rate Taxes (as
defined in subsection 2.10D(i)) on or in respect of any Offshore Rate Loan, such
Lender will, to the extent not inconsistent with such Lender's internal policies
and without undue administrative burden, use reasonable efforts to make, fund or
maintain the affected Offshore Rate Loan through another lending office of such
Lender if, as a result thereof, the additional monies that would otherwise be
required to be paid in respect of such Loans pursuant to subsection 2.10B(i) or
the Offshore Rate Taxes or other amounts that would otherwise be required to be
paid in respect of such Loans pursuant to subsection 2.10D would be materially
reduced or the illegality or other adverse
39
circumstances that would otherwise require conversion or prepayment of such
Loans pursuant to subsection 2.10B would cease to exist and if, as determined by
such Lender in its reasonable discretion, the making, funding, or maintaining of
such Loans through such other lending office would not result in any additional
costs, expenses or risks to such Lender that are not reimbursed by Company
pursuant hereto and would not affect any certifications delivered by it pursuant
to subsection 2.11 hereof and would not be otherwise disadvantageous to such
Lender. Company hereby agrees to pay all reasonable expenses incurred by Lender
in utilizing another lending office of Lender pursuant to this subsection 2.10F
with respect to Loans to any Borrower.
G. COMPANY'S RIGHT TO REMOVE AFFECTED LENDER. In the event any Borrower
receives a notice from an Affected Lender pursuant to clause (b) of subsection
2.10B(i) or subsections 2.10D(i) or 2.10D(ii) or is required to withhold or
deduct any Taxes pursuant to subsection 2.11, Company may, within 30 days after
the date such notice is given and so long as such notice shall not have been
terminated by such Affected Lender with respect to subsection 2.10B(i) or
2.10D(i) or the date on which such withholding obligation arises under
subsection 2.11A and no Event of Default shall have occurred and be continuing,
elect to terminate such Affected Lender as a party to this Agreement; PROVIDED,
that concurrently with such termination, (i) each Borrower shall pay to such
Affected Lender all interest and fees and other amounts (including without
limitation amounts owed under this subsection 2.10 or subsection 2.11) then due
and owing to such Affected Lender by such Borrower through such date of
termination, and (ii) another financial institution that is an Eligible Assignee
shall purchase for cash the Loans of the Affected Lender and shall have agreed
to become a Lender for all purposes under this Agreement and to assume all
obligations (including all outstanding Loans) of the Affected Lender to be
terminated as of such date, pursuant to an Assignment and Acceptance Agreement
that shall have become effective pursuant to subsection 9.2B.
2.11 CERTAIN TAX PROVISIONS.
A. Any and all payments or reimbursements made under this Agreement shall
be made free and clear of, and without deduction or withholding for, any and all
taxes, levies, imposts, deductions, charges or withholdings now or hereafter
imposed, levied or assessed, and all liabilities with respect thereto, EXCLUDING
taxes imposed on the overall income (whether gross or net) of a Lender or
Administrative Agent by the jurisdiction in which such Lender or Administrative
Agent is organized or in which its principal office or applicable lending office
is located or any political subdivision or taxing authority therein (all such
non-excluded taxes, levies, imposts, deductions, charges or withholdings and
liabilities being herein referred to as "TAXES"), except as set forth in the
following paragraph.
If any Borrower is required by applicable law to withhold or deduct any
amounts with respect to Taxes or with respect to income taxes imposed by
Liberian or Bermudan law, then such Borrower shall promptly pay to the
applicable authority the amount so required to be withheld or deducted, forward
to Administrative Agent an official receipt or other documentation reasonably
satisfactory to Administrative Agent evidencing such payment (which
Administrative Agent shall forward to the applicable Lender), and pay to
Administrative Agent for the account of the relevant Lender or Administrative
Agent such
40
additional amount as is necessary to ensure that the net amount actually
received by each Lender and Administrative Agent equals the sum it would have
received had no such deductions or withholdings been made. The Applicable
Borrower shall indemnify and hold harmless each Lender and Administrative Agent
against, and reimburse each Lender and Administrative Agent for all Taxes within
15 days after written demand therefor. Notwithstanding the foregoing, no
Borrower shall be obligated to reimburse, or to pay any increased amount to, any
Lender or Administrative Agent with respect to any United States withholding
taxes if such Lender or Administrative Agent is not entitled on the date on
which this Agreement becomes effective (or in the case of a Lender which becomes
a party hereto after such date, on the date on which the relevant Assignment and
Acceptance Agreement becomes effective) to receive all amounts due hereunder
without withholding or deduction for or on account of Taxes imposed by the
United States. If any Borrower is required to withhold or deduct any Taxes, or
to reimburse a Lender or Administrative Agent for any such Taxes, the applicable
Lender shall be an "AFFECTED LENDER" and Company shall have the rights set forth
in subsection 2.10G to replace such Lender.
B. Each Lender (including Administrative Agent, if applicable) organized
under the laws of a jurisdiction other than the United States or any subdivision
thereof shall provide to Company, with a copy to Administrative Agent, within 15
days after the Closing Date (or, with respect to any Lender becoming a party to
this Agreement subsequent to the Closing Date, concurrently with the delivery of
the relevant Assignment and Acceptance Agreement) two United States Internal
Revenue Service Forms 4224 or Forms 1001, as applicable (or successor forms)
properly completed and claiming a complete exemption from withholding or
deduction for or on account of Taxes imposed by the United States. Each such
Lender further agrees to deliver to Company, with a copy to Administrative
Agent, on or before the date such form expires or after the occurrence of any
event requiring a change in the most recent form delivered by it any amendments
or supplements or additional forms as may be reasonably requested by Company or
Administrative Agent evidencing such exemption unless an event (including any
changes after the date hereof in any applicable treaty, law or regulation) has
occurred prior to the date on which such documentation is to be delivered and
such Lender notifies Company and Administrative Agent that it is not entitled to
receive payments without deduction or withholding on account of Taxes imposed by
the United States.
C. Each Lender (including Administrative Agent, if applicable) that does
not have a permanent place of business in the State of California shall, within
15 days after the Closing Date (or, with respect to any Lender becoming a party
to this Agreement subsequent to the Closing Date, concurrently with the delivery
of the relevant Assignment and Acceptance Agreement), (i) provide to Company,
with a copy to Administrative Agent, two California Forms 587 or Forms 590, as
applicable (or successor forms), properly completed and claiming a complete
exemption from withholding or deduction for or on account of Taxes imposed by
the State of California or (ii) otherwise represent to Company and
Administrative Agent that it is exempt from any such withholding or deduction.
Each such Lender further agrees to deliver to Company, with a copy to
Administrative Agent, on or before the date any such form expires or after the
occurrence of any event requiring a change in the most recent form delivered by
it (including without limitation any change in residency or address), any
amendments or supplements or additional forms as may be
41
reasonably requested by Company or Administrative Agent evidencing such
exemption unless an event (including any changes after the date hereof in any
applicable treaty, law or regulation) has occurred prior to the date on which
such documentation is to be delivered and such Lender notifies Company and
Administrative Agent that it is not entitled to receive payments without
deduction or withholding on account of Taxes imposed by the State of California.
2.12 INCREASE IN COMMITMENTS.
A. Upon written notice to Administrative Agent (who shall promptly notify
Lenders), Company may request an increase in the Total Pro Rata Commitments up
to an aggregate of $350,000,000 to take effect (i) on the Initial Interest
Period Termination Date or (ii) on any Proposed Extension Effective Date (as
defined in subsection 2.1E). Company may, after giving such notice, offer the
increase (which may be declined by any Lender in its sole discretion) in the
Total Pro Rata Commitments on either a ratable basis to Lenders or on a non PRO
RATA basis to one or more Lenders and/or to other Eligible Assignees. No
increase in the Total Pro Rata Commitments shall become effective until the
existing or new Lenders extending such incremental Pro Rata Commitment amount
and Company shall have delivered to Administrative Agent a document in form
reasonably satisfactory to Administrative Agent pursuant to which any such
existing Lender states the amount of its Pro Rata Commitment increase, any such
new Lender states its Pro Rata Commitment amount and agrees to assume and accept
the obligations and rights of a Lender hereunder and Company accepts such
incremental Pro Rata Commitments. Lenders (new or existing) shall accept an
assignment from existing Lenders, and existing Lenders shall make an assignment
to new or existing Lenders accepting a new or increased Pro Rata Commitment, of
an interest in each then outstanding Pro Rata Loan such that, after giving
effect thereto, all Pro Rata Loans are held ratably by Lenders in proportion to
their respective Pro Rata Commitments. Assignments pursuant to the preceding
sentence shall be made in exchange for the principal amount assigned plus
accrued and unpaid interest and fees.
B. If any Pro Rata Commitments are increased in accordance with this
subsection, Administrative Agent and Company shall promptly confirm in writing
to Lenders and new Lenders, if any, the final allocation of such increase. As a
condition precedent to such increase, each Borrower shall deliver to
Administrative Agent a certificate dated as of the applicable date (in
sufficient copies for each Lender and each new Lender, if any) signed by a
Responsible Officer of each Borrower (i) certifying and attaching the
resolutions adopted by each Borrower approving or consenting to such increase,
(ii) including a Compliance Certificate demonstrating (a) compliance with
subsections 6.1 and 6.2 prior to giving effect to such increase and (b) pro
forma compliance with subsections 6.1 and 6.2 after giving effect to such
increase and (iii) certifying that, before and after giving effect to such
increase, the representations and warranties contained in Section 4 are true and
correct on and as of the Initial Interest Period Termination Date or such
Proposed Extension Effective Date, as the case may be, and no Event of Default,
Cross Default or Potential Event of Default exists. Borrowers shall deliver new
or amended promissory notes reflecting the increased Pro Rata Commitment of any
Lender or new Lender, if any, holding or requesting a promissory note pursuant
to subsection 2.5A. Administrative Agent shall distribute an amended
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SCHEDULE 2.1 (which shall be deemed incorporated into this Agreement), to
reflect any changes therein.
C. This subsection shall supercede any provisions in subsection 9.6 to
the contrary.
SECTION 3. CONDITIONS TO LOANS
The obligations of Lenders to make Loans hereunder are subject to the
satisfaction of the following conditions.
3.1 CONDITIONS TO INITIAL LOANS.
The obligations of the Lenders to make the initial Loans hereunder are, in
addition to the conditions precedent specified in subsection 3.2, subject to
prior or concurrent satisfaction of the following conditions:
A. COMPANY DOCUMENTS. On or before the Closing 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) the following, each, unless otherwise noted, dated the Closing Date and
in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of its Certificate of Incorporation, together with a
good standing certificate from its jurisdiction of incorporation, each to
be dated a recent date prior to the Closing Date;
(ii) Copies of its Bylaws, certified as of the Closing Date by its
corporate secretary or an assistant secretary;
(iii) Resolutions of its Board of Directors approving and authorizing the
execution, delivery and performance of this Agreement and the Company
Guaranty and approving and authorizing the loans and transactions
contemplated by this Agreement and the Company Guaranty, certified as of
the Closing 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 Company Guaranty and the other documents to be furnished
hereunder on or prior to the Closing Date;
(v) Executed originals of this Agreement and the Company Guaranty; and
(vi) Such other documents as Administrative Agent may reasonably request.
B. DFFI AND SOLVEST DOCUMENTS. On or before the Closing Date, each of
DFFI and Solvest shall deliver or cause to be delivered to Lenders (or to
Administrative
43
Agent for Lenders with sufficient originally executed copies, where appropriate,
for each Lender) the following, each, unless otherwise noted, dated the Closing
Date and in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of its Memorandum of Association, Articles of
Association and other charter documents, together with a good standing
certificate from its jurisdiction of incorporation, each to be dated a
recent date prior to the Closing Date;
(ii) Resolutions of its Board of Directors approving and authorizing the
execution, delivery and performance of this Agreement and approving and
authorizing the loans and transactions contemplated by this Agreement,
certified as of the Closing Date by its corporate secretary or an assistant
secretary as being in full force and effect without modification or
amendment;
(iii) Signature and incumbency certificates of its officers executing this
Agreement and the other documents to be furnished hereunder on or prior to
the Closing Date;
(iv) Executed originals of this Agreement; and
(v) Such other documents as Administrative Agent may reasonably request.
C. OPINIONS OF COUNSEL. Administrative Agent shall have received
originally executed copies of favorable written opinions of O'Melveny & Xxxxx
and Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxxx, counsel and local counsel for Company, in
form and substance reasonably satisfactory to Administrative Agent and its
counsel, each dated as of the Closing Date and setting forth substantially the
matters in the opinions designated in EXHIBIT IX and Exhibit X, respectively,
annexed hereto.
D. NO MATERIAL ADVERSE CHANGE. There shall have occurred no material
adverse change in the business, assets, liabilities, operations or financial
condition of Company and its Subsidiaries, taken as a whole, or in the facts and
information regarding such entities as represented to date, since January 1,
2000.
E. ABSENCE OF LITIGATION. There shall exist no action, suit,
investigation, litigation or proceeding, pending or threatened, in any court or
before any arbitrator or governmental instrumentality that purports to enjoin,
restrain or prohibit, or adversely affect the validity of, this Agreement.
3.2 ADDITIONAL CONDITIONS.
The obligations of the Lenders to make Loans on each Funding Date are
subject to the following further conditions precedent:
A. To the extent required by subsection 2.1 or 2.2, Administrative Agent
shall have received, before any Funding Date, an originally executed Notice of
Borrowing (or
44
a telecopy or facsimile thereof), in accordance with the requirements of such
subsection, signed by (i) a Responsible Officer of the Applicable Borrower or
any other officer or employee of the Applicable Borrower designated by a
Responsible Officer of the Applicable Borrower in a writing delivered to
Administrative Agent, which Responsible Officer shall in each case have
delivered to Administrative Agent, on or prior to such date, evidence of
authorization to request Loans on behalf of the Applicable Borrower, and (ii) in
the case of a Notice of Borrowing being delivered by DFFI or Solvest, a
Responsible Officer or other officer or employee of Company described in the
foregoing clause (i).
B. As of that Funding Date, unless the Equivalent Amount in Dollars of
Total Utilization will not be increased as a result of such borrowing:
(i) The representations and warranties contained herein shall be true,
correct and complete in all material respects on and as of that Funding
Date (immediately prior to, and after giving effect to such funding) 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,
correct and complete in all material respects on and as of such earlier
date;
(ii) No Event of Default, Cross Default or Potential Event of Default shall
have occurred and be continuing or would result from the Loans to be made
on that Funding Date;
(iii) Each Borrower shall have performed in all material respects all
agreements and satisfied all conditions which this Agreement provides 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; and
(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.
SECTION 4. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the
Loans hereunder, Company represents and warrants to each Lender that the
following statements are true, correct and complete:
45
4.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING AND SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Borrower is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and each Borrower 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 this Agreement,
and to carry out the transactions contemplated hereby. Each of the Material
Subsidiaries of Company is duly organized, validly existing and in good standing
in the respective jurisdiction of incorporation of such Subsidiary.
B. QUALIFICATION. Company and each of its Material Subsidiaries is
qualified to do business wherever necessary to carry out its business and
operations, except in jurisdictions in which the failure to be so qualified
would not have a Material Adverse Effect.
4.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and performance of
this Agreement and the Company Guaranty, the payment and performance of all
Obligations, and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of each
Borrower.
B. NO CONFLICT. The execution, delivery and performance by Borrowers of
this Agreement and the Company Guaranty, the payment and performance of the
Obligations, and the consummation of the borrowing, repayment and other payment
transactions contemplated hereby do not and will not (i) violate the Certificate
of Incorporation or Bylaws of Company or the Memorandum of Association or
Articles of Incorporation of DFFI or Solvest, as the case may be, (ii) violate
any order, judgment or decree of any court or other agency of government binding
on Company or DFFI or Solvest or any of their respective property or assets,
(iii) assuming the Lenders' actions are consistent with the representation made
in subsection 9.1, violate any provision of law applicable to Company or DFFI or
Solvest, (iv) 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
Company or DFFI or Solvest pursuant to which Company or DFFI or Solvest or any
of their respective properties or assets are bound, (v) result in or require the
creation or imposition of any Lien upon any material properties or assets of
Company or DFFI or Solvest, or (vi) require any approval or consent of
stockholders, or require any approval or consent of any Person under any
Contractual Obligation, of Company or DFFI or Solvest, except with respect to
this clause (vi) for such approvals or consents as have been obtained on or
before the Closing Date, copies of which have been provided to Lenders on or
before the Closing Date.
C. GOVERNMENTAL CONSENTS. Assuming the Lenders' actions are consistent
with the representation made in subsection 9.1, the execution, delivery and
performance by Borrowers of this Agreement and the Company Guaranty, the payment
and performance of their respective Obligations by Company, DFFI and Solvest,
and the consummation of the borrowing, repayment and other payment transactions
contemplated hereby do not and will not require any registration with, consent
or approval of, or notice to,
46
or other action to, with or by, any federal, state or other governmental
authority or regulatory body, except for making a periodic report to the
Securities and Exchange Commission with respect to the execution hereof and
material modifications or amendments, if any, hereto and making filings on Form
CQ-1 with the Federal Reserve Bank of New York.
D. BINDING OBLIGATION. This Agreement has been duly executed and
delivered by each Borrower and is the legally valid and binding obligation of
such Borrower, enforceable against such Borrower in accordance with its 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 Company Guaranty has been
duly executed and delivered by Company and is the legally valid and binding
obligation of Company, enforceable against Company in accordance with its 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.
4.3 FINANCIAL CONDITION.
The consolidated balance sheet of Company at January 1, 2000 and the
related consolidated statements of income and cash flows for the Fiscal Year
ended as of said date, which have been examined by Xxxxxx Xxxxxxxx & Co., who
delivered an unqualified opinion with respect thereto, were prepared in
conformity with GAAP. All such financial statements fairly present the
consolidated financial position of Company and its Subsidiaries as at the date
thereof and the consolidated results of operations and cash flows of Company and
its Subsidiaries for the period covered thereby.
4.4 NO MATERIAL ADVERSE CHANGE.
Since January 1, 2000 there has been no material adverse change in the
financial condition, operations or business of Company and its Subsidiaries,
taken as a whole.
4.5 LITIGATION; ADVERSE FACTS.
There is no action, suit, proceeding, arbitration (whether or not
purportedly on behalf of Company or any of its Subsidiaries), or, to the
knowledge of Company, governmental investigation, at law or in equity or before
or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, pending or, to the
knowledge of Company, threatened with respect to any domestic action, suit,
proceeding, governmental investigation or arbitration, or pending for more than
30 days or, to the knowledge of Company, threatened with respect to any foreign
action, suit, proceeding, governmental investigation or arbitration against or
affecting Company or any of its Subsidiaries or any material property of Company
or any of its Subsidiaries that would reasonably be expected to result in a
Material Adverse Effect.
4.6 PAYMENT OF TAXES.
Except to the extent permitted by subsection 5.3, all tax returns and
reports of Company and its Subsidiaries required to be filed by any of them have
been timely filed in
47
compliance with all applicable laws, regulations, rules and procedures, except
where the failure to so timely file or comply with applicable laws, regulations,
rules and procedures has not had and would not reasonably be expected to have a
Material Adverse Effect. 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 except for those that are being contested in
good faith and for which adequate reserves have been provided by Company or the
applicable Subsidiary with respect to which the failure to pay would not
reasonably be expected to have a Material Adverse Effect.
4.7 GOVERNMENTAL REGULATION.
No Borrower 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, each as amended, or under any other federal or
state statute or regulation limiting its ability to incur debt for money
borrowed.
4.8 SECURITIES ACTIVITIES.
No Borrower 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.
4.9 MARGIN STOCK.
No Borrower has used any portion of the proceeds of the Loans in violation
of subsection 2.9B hereof. Following application of the proceeds of each Loan,
not more than 25 percent of the value of the assets (either of Company or DFFI
or Solvest only or of Company or DFFI or Solvest and its respective Subsidiaries
on a consolidated basis) subject to the provisions of subsection 6.3 or 6.4 or
subject to any restriction on encumbrance or disposition contained in any
agreement or instrument, between Company or DFFI or Solvest and any Lender or
any Affiliate of any Lender, relating to debt and within the scope of subsection
7.2, will be Margin Stock.
4.10 EMPLOYEE BENEFIT PLANS.
A. Company and its ERISA Affiliates are in compliance in all respects
with all applicable provisions of ERISA with respect to all Pension Plans and
all Multiemployer Plans, the noncompliance with which would reasonably be
expected to have a Material Adverse Effect.
B. No Termination Event has occurred or is reasonably expected to occur
with respect to any Pension Plan that would result in an aggregate liability for
Company, its ERISA Affiliates, or any of Company's Subsidiaries and their
respective ERISA Affiliates in excess of $25,000,000.
C. As of the most recent valuation date for any Pension Plan, the excess
of the present value (determined on the basis of reasonable assumptions employed
by the independent actuary for such Pension Plan) of the benefit liabilities (as
defined in Section
48
4001(a)(16) of ERISA) over the fair market value of the assets of such Pension
Plan, when added to such excess for all other such Pension Plans, does not
exceed $100,000,000.
D. Neither Company nor any ERISA Affiliate of Company has engaged in a
non-exempt "prohibited transaction," as defined in Section 4975 of the Internal
Revenue Code or ERISA in connection with any Pension Plan, under which the
aggregate liability of the Company and its ERISA Affiliates exceeds $25,000,000.
E. There are no claims (other than routine claims for benefits), actions
or lawsuits asserted against, and neither Company nor any ERISA Affiliate of
Company has knowledge of any threatened litigation or claims against any Pension
Plan or against any fiduciary of such Pension Plan with respect to the operation
of such Pension Plan, which, if adversely determined, would have a Material
Adverse Effect.
F. Company does not maintain any welfare benefit plan within the meaning
of Section 3(1) of ERISA which provides for continuing benefits for any
participant or beneficiary after termination of employment, except as may be
required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, other than any such plans that (i) are reserved for in the financial
statements of the Company or ERISA Affiliates, or (ii) would not reasonably be
expected to have a Material Adverse Effect.
G. Neither Company nor any of its ERISA Affiliates has incurred or
reasonably expects to incur withdrawal liability to any Multiemployer Plan in
excess of $25,000,000.
4.11 ENVIRONMENTAL PROTECTION.
Each of Company and its Subsidiaries is and has been in compliance with all
Environmental Laws, whether in connection with the ownership, use, maintenance
or operation of any owned or leased property or the conduct of any business
thereon or otherwise, except for any non-compliance which would not reasonably
be expected to have a Material Adverse Effect. Neither Company, any of its
Subsidiaries nor, to the knowledge of Company, any third person at any time
occupying any property owned or leased by Company or any of its Subsidiaries,
has at any time used, generated, disposed of, stored or transported to or from,
any Hazardous Materials on, under or at such property, except in compliance with
all applicable Environmental Laws other than any non-compliance which would not
reasonably be expected to have a Material Adverse Effect. To the knowledge of
Company, no Person has at any time released or threatened the release of any
Hazardous Materials in any form, quantity or concentration on, under or at any
property owned or leased by Company or its Subsidiaries in a manner which would
reasonably be expected to have a Material Adverse Effect.
SECTION 5. COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Pro Rata
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations, unless Requisite Lenders shall otherwise give
prior written consent,
49
Company shall perform, and, to the extent applicable, shall cause each of its
Subsidiaries to perform all covenants in this Section 5.
5.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Company will prepare consolidated financial statements in conformity with
GAAP. Company will deliver to Lenders the items referred to in subsections 5.1A,
5.1B, 5.1C and 5.1G below and will otherwise deliver to Administrative Agent
(with sufficient copies for each Lender), all other of the following:
A. as soon as practicable and in any event within 55 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year, a copy of
Company's quarterly report on Form 10-Q setting forth, in comparative form, the
corresponding figures for the corresponding Fiscal Quarter of the previous
Fiscal Year, all in reasonable detail and certified by a Responsible Officer of
Company as fairly presenting the financial condition of Company and its
Subsidiaries as at the dates indicated and the results of their operations for
the periods indicated, subject to changes resulting from audit and normal
year-end adjustment;
B. as soon as practicable and in any event within 100 days after the end
of each Fiscal Year, a copy of Company's annual report on Form 10-K setting
forth in comparative form the consolidated figures for the previous Fiscal Year,
all in reasonable detail and accompanied by a report on the financial
information contained in the annual report on Form 10-K of Xxxxxx Xxxxxxxx & Co.
or other independent certified public accountants of recognized national
standing selected by Company, which report shall state that such consolidated
financial statements present fairly the financial position of Company and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flow for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise stated therein) and that the
examination by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards;
C. together with each delivery of the reports of Company and its
Subsidiaries pursuant to subsections 5.1A and 5.1B above, a Compliance
Certificate for the Fiscal Quarter or Fiscal Year, as applicable, executed by a
Responsible Officer of Company (1) stating that the signer does not have
knowledge of the existence as at the date of the Compliance Certificate, of any
condition or event that constitutes an Event of Default, Cross 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 (2)
demonstrating in reasonable detail compliance at the end of such accounting
periods with the restrictions contained in subsections 6.1 and 6.2 (as set forth
in EXHIBIT II);
D. promptly upon (and in any event within 5 Business Days after) any
Responsible Officer of Company obtaining knowledge of any condition or event
that constitutes an Event of Default, Cross Default or Potential Event of
Default under this Agreement, an Officer's Certificate specifying the nature and
period of existence of any such
50
condition or event and what action Company has taken, is taking or proposes to
take with respect thereto;
E. promptly upon (and in any event within 5 Business Days after) any
Responsible Officer of Company obtaining knowledge of the institution of any
action, suit, proceeding, governmental investigation or arbitration against or
affecting Company that has not previously been disclosed by Company to Lenders
and that would reasonably be expected to have a Material Adverse Effect, Company
shall promptly give notice thereof to Lenders and provide such other information
as may be reasonably available to it to enable Lenders and their counsel to
evaluate such matters;
F. promptly upon (and in any event within 5 Business Days after) any
Responsible Officer of Company obtaining knowledge of the occurrence of any
Termination Event in connection with any Pension Plan or any trust created
thereunder, for which the amount involved exceeds $25,000,000, a written notice
specifying the nature thereof, what action Company has taken, is taking or
proposes to take with respect thereto, and, when known, any action taken by the
Internal Revenue Service or the PBGC with respect thereto;
G. promptly upon their becoming available, copies of all financial
statements, reports, notices and proxy statements sent or made available
generally by Company to its security holders or by any Subsidiary of Company
subject to the reporting requirements of the Exchange Act to its security
holders other than Company or another Subsidiary, of all regular and periodic
reports and all registration statements 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 authority succeeding to
any of its functions; and
H. with reasonable promptness, such other information with respect to
compliance by Company with the terms of this Agreement as from time to time may
be reasonably requested by Administrative Agent acting at the direction of
Requisite Lenders.
5.2 CORPORATE EXISTENCE, ETC.
Company will, and will cause each of its Subsidiaries to, at all times
maintain its fundamental business (including, without limitation, the
fundamental businesses described under the caption "Business" in Company's
Annual Report on Form 10-K for the Fiscal Year ended January 1, 2000 ) and
preserve and keep in full force and effect its corporate or partnership
existence and all rights, franchises and licenses material to its business;
PROVIDED, HOWEVER, that Company shall not be required to maintain the corporate
or partnership existence or rights and franchises of any Subsidiary of Company
if the failure to do so would not reasonably be expected to have a Material
Adverse Effect.
5.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Company will, and will cause each of its Subsidiaries to, pay all
taxes, 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
51
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 material properties or
assets prior to the time when any penalty or fine shall be incurred with respect
thereto; PROVIDED that no such tax, assessment, charge or claim need be paid if
(i) being contested in good faith by appropriate proceedings promptly 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
or (ii) the failure to do so would not reasonably be expected to have a Material
Adverse Effect.
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 Company or any of its Subsidiaries).
5.4 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 from time to time, and from time to time will make or cause
to be made all appropriate repairs, renewals and replacements thereof, except
where the failure to do so would not reasonably be expected to have a Material
Adverse Effect. Company will maintain or cause to be maintained insurance with
respect to its properties and business and the properties and businesses of its
Subsidiaries no less protective in any material respect than that carried in
accordance with Company's past practices or that is prudent given the nature of
the business of Company and its Subsidiaries.
5.5 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, other than those with which the failure to comply would
not have a Material Adverse Effect or those that are being contested in good
faith and for which appropriate reserves, if any, as may be required by GAAP
have been taken.
5.6 HAZARDOUS MATERIALS.
In addition to and without limiting the generality of subsection 5.5,
Company shall, and shall cause each of its Subsidiaries and its and their
respective owned or leased properties to, and shall cause its and their
respective employees, agents, contractors, subcontractors and any other Person
occupying such property to, comply with all Environmental Laws, except for any
non-compliance which would not reasonably be expected to have a Material Adverse
Effect. Neither Company nor its Subsidiaries shall release or threaten to
release any Hazardous Material in any form, quantity or concentration, on, under
or at such property in a manner which would reasonably be expected to have a
Material Adverse Effect.
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5.7 MARGIN STOCK.
Each Borrower agrees to use the proceeds of the Loans in accordance with
subsection 2.9 hereof. Company will, following application of the proceeds of
each Loan, cause Margin Stock to be less than 25 percent of the value of the
assets (either of Company or DFFI or Solvest only or of Company or DFFI or
Solvest and its respective Subsidiaries on a consolidated basis) subject to
subsection 6.3 or 6.4 or any restriction on encumbrance or disposition contained
in any agreement or instrument, between Company or DFFI or Solvest and any
Lender or any Affiliate of any Lender, relating to debt and within the scope of
subsection 7.2.
5.8 INSPECTION.
Company will permit and arrange for authorized representatives designated
by any Lender to visit, upon reasonable notice and during regular business hours
as often as may be reasonably requested, any of the properties of Company or its
Subsidiaries. All expenses of the Lender associated with any such visitation
shall be borne by the Lender conducting the same.
SECTION 6. COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Pro Rata
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations, unless Requisite Lenders shall otherwise give
prior written consent, Company shall perform, and, to the extent applicable,
shall cause each of its Subsidiaries to perform all covenants in this Section 6.
6.1 MAXIMUM LEVERAGE RATIO.
Company shall not permit the ratio of (i) Consolidated Net Debt to (ii)
Consolidated Net Worth, as of the last day of any Fiscal Quarter of Company, to
exceed 3.0 to 1.0.
6.2 MINIMUM FIXED CHARGE COVERAGE RATIO.
Company shall not permit the ratio of (i) Consolidated Adjusted Operating
Income to (ii) Consolidated Net Interest Expense on the last day of any Fiscal
Quarter for the four consecutive Fiscal Quarters then ended to be less than 2.75
to 1.0.
6.3 LIENS.
Company will not create or suffer to exist, and will not permit any of its
Subsidiaries to create or suffer to exist, any Lien on any of its properties now
owned or hereafter acquired, or assign, or permit any of such Subsidiaries to
assign, any accounts or other right to receive income, without making effective
provision, and Company hereby covenants that in any such case it will make or
cause to be made effective provision, whereby the Obligations of Company, DFFI
and Solvest pursuant to this Agreement and the Company Guaranty shall be
directly secured by such Lien or assignment equally and ratably upon the
53
same properties with any and all other Indebtedness and other obligations
thereby secured; PROVIDED, HOWEVER, that the following Liens shall be permitted
and shall not be subject to the foregoing provisions of this subsection 6.3:
(i) Permitted Encumbrances;
(ii) Liens upon or in real property (whether in the form of land,
improvements or fixtures or any interest therein) held by Company or
any of its Subsidiaries on the Closing Date; provided that (a) the
aggregate principal amount of the debt secured by such Liens on such
property shall not exceed 100% of the higher of the cost of such
property or the then fair value thereof, (b) any such debt shall not
otherwise be prohibited by the terms of this Agreement, and (c) to the
extent such Liens secure debt incurred solely for the purpose of
financing the construction or improvement of any such property to be
subject to such Liens, such Liens are imposed within 180 days from the
date of the applicable completion of construction or improvement
thereof by Company or any of its Subsidiaries;
(iii) Liens upon or in real property (whether in the form of land,
improvements or fixtures or any interest therein) acquired after the
Closing Date by Company or any of its Subsidiaries in the ordinary
course of business to secure the purchase price of such property or to
secure debt incurred solely for the purpose of financing the
acquisition, construction or improvement of any such property to be
subject to such Liens if such Liens are imposed on such property
within 180 days from the date of the applicable acquisition or
completion of construction or improvement thereof by Company or any of
its Subsidiaries, or Liens existing on any such property at the time
of acquisition, provided that (a) the aggregate principal amount of
the debt secured by such Liens on such property at the time of
acquisition, construction or improvement of such property shall not
exceed 100% of the cost of such property, construction or improvement
or of the then fair value thereof, whichever shall be higher, and (b)
any such debt shall not otherwise be prohibited by the terms of this
Agreement;
(iv) Liens on or assignments of receivables of any kind (and property
securing or otherwise supporting payment of such receivables) in
connection with one or more agreements for limited recourse sales by
Company or any or all of its Subsidiaries for cash of such receivables
(and such property) or interests therein; and
(v) other Liens securing debt in an aggregate principal amount not to
exceed at any one time outstanding 10% of the consolidated total
assets of the Company and its Subsidiaries, determined in accordance
with GAAP.
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6.4 DISPOSITION OF ASSETS.
Company shall not, and shall not permit its Subsidiaries to, sell or
otherwise dispose of all or any substantial part (as herein defined) of the Food
Business Assets, other than sales of inventory made in the ordinary course of
business. For purposes of this subsection 6.4, a "substantial part" of the Food
Business Assets means a part which either (y) has an aggregate book value (for
purposes of the consolidated balance sheet of the Company and its Subsidiaries,
determined in accordance with GAAP) equal to 25% or more of the aggregate book
value of the Food Business Assets or (z) generates 25% or more of the gross
income generated by the Food Business Assets, determined in accordance with
GAAP.
SECTION 7. EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF DEFAULT") shall
occur and be continuing:
7.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by the Applicable Borrower 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 the Applicable Borrower to pay any interest
on any Loan within five days after the date due; or failure by Company or DFFI
or Solvest to pay any fee or any other amount payable by it under this Agreement
within five days after the date due; or
7.2 DEFAULT IN OTHER AGREEMENTS.
Failure of Company or any of its Subsidiaries to pay when due any principal
of or interest on any indebtedness for borrowed money of Company or any such
Subsidiary (other than the Loans) in an amount exceeding $25,000,000 in the
aggregate (the "REFERENCED DEBT") beyond the end of any grace period provided
therefor; or the breach or default by Company or any of its Subsidiaries with
respect to any other term of any evidence of the Referenced Debt or any loan
agreement, mortgage, indenture or other agreement relating to such Referenced
Debt, if the effect of such breach or default is to cause the Referenced Debt 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; PROVIDED, HOWEVER,
that in the event that the non-payment or acceleration of the maturity of the
Referenced Debt described in this subsection 7.2 is cured or waived by the
holders of the Referenced Debt or if such Referenced Debt is repaid in full
(other than with the proceeds of Loans), such non-payment or acceleration shall
not constitute an Event of Default hereunder; or
7.3 BREACH OF CERTAIN COVENANTS.
Failure of Company to perform or comply with any term or condition
contained in subsections 5.1D, 6.1, 6.2, 6.3 or 6.4 of this Agreement; or
55
7.4 BREACH OF WARRANTY.
Any representation or warranty made or deemed made by Company or DFFI or
Solvest in or pursuant to this Agreement or the Company Guaranty or in any
certificate at any time given by Company 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 deemed made; or
7.5 OTHER DEFAULTS UNDER AGREEMENT.
Company or DFFI or Solvest shall default in the performance of or
compliance with any term contained in this Agreement or the Company Guaranty
required to be performed by it, other than any such term referred to in any
other subsection of this Section 7, and such default shall not have been
remedied or waived within 30 days after receipt by Company of written notice
from Administrative Agent of such default; or
7.6 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 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 any other similar relief granted under any applicable federal or state law,
order or similar relief described in this clause (i) is not stayed; or (ii) an
involuntary case shall be commenced against Company or any of its 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 or over all or a substantial part
of their respective properties, 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 for all or a substantial part of
their respective properties; 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 and any such event described in this clause
(ii) shall continue for 60 days unless dismissed, bonded or discharged;
PROVIDED, that with respect to Subsidiaries of Company (other than Material
Subsidiaries) the foregoing shall constitute an Event of Default only if such
occurrence would have a Material Adverse Effect; or
7.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Company or any of its 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 Company or any of its Subsidiaries shall consent to
the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of their respective properties; or
Company or any
56
of its Subsidiaries shall make any assignment for the benefit of creditors; or
(ii) Company or any of its Subsidiaries shall admit in writing its inability to
pay its debts generally as such debts become due; or the Board of Directors of
Company or any of its 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); PROVIDED that with respect
to Subsidiaries of Company (other than Material Subsidiaries) the foregoing
shall constitute an Event of Default only if such occurrence would have a
Material Adverse Effect; or
7.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar process
involving in any individual case an amount in excess of $100,000,000 or in the
aggregate an amount in excess of $300,000,000 that are individually or in the
aggregate not adequately covered by insurance shall be entered or filed against
Company or any of its Material Subsidiaries, or against any of their respective
assets, and shall remain undischarged, unvacated, unbonded or unstayed for a
period of 35 consecutive days; or
7.9 UNFUNDED ERISA LIABILITIES.
(i) Any Pension Plan shall be terminated within the meaning of Title IV of
ERISA; (ii) a trustee shall be appointed by an appropriate United States
district court to administer any Pension Plan; (iii) the PBGC (or any successor
thereto) shall institute proceedings to terminate any Pension Plan or to appoint
a trustee to administer any Pension Plan; (iv) Company or any of its ERISA
Affiliates shall withdraw (under Section 4063 of ERISA) from a Pension Plan; or
(v) Company or its ERISA Affiliates shall engage in any transactions which could
result in the assessment of direct or indirect liability to Company under
Section 409 or 502 of ERISA or Section 4975 of the Internal Revenue Code, if as
of the date thereof or any subsequent date, the sum of each of Company's and its
ERISA Affiliates' various liabilities (such liabilities to include, without
limitation, any liability to the PBGC or to any other party under Sections 4062,
4063 or 4064 of ERISA or any other provision of law and to be calculated after
giving effect to the tax consequences thereof) resulting from or otherwise
associated with such events listed in subclauses (i)-(v) above exceeds
$25,000,000; or there exists, as of any valuation date for a Pension Plan, an
excess of the present value (determined on the basis of reasonable assumptions
employed by the independent actuary for such Pension Plan) of benefit
liabilities (as defined in Section 4001(a)(16) of ERISA) over the fair market
value of the assets of such Pension Plan, when added to such excess for all
other such Pension Plans, which exceeds $100,000,000; or Company or any of its
ERISA Affiliates shall incur withdrawal liability to Multiemployer Plans which,
in the aggregate, exceeds $100,000,000; or
7.10 CHANGE IN CONTROL.
(i) Company shall cease to own 100% of the issued and outstanding capital
stock of DFFI or Solvest, other than directors' qualifying shares, or (ii) any
Person (including any "Group" as defined in Section 13d-5 of the Exchange Act)
other than Xxxxx X. Xxxxxxx or an Affiliate of Xxxxx X. Xxxxxxx (including the
estate of Xxxxx X. Xxxxxxx) shall obtain
57
ownership or control of more than 50% of the voting power of the stock of
Company entitled to vote in the election of members of the board of directors of
Company; or
7.11 INVALIDITY OF COMPANY GUARANTY.
At any time after the execution and delivery thereof, the Company Guaranty
for any reason, other than the satisfaction in full of all Obligations, shall
cease to be in full force and effect (other than in accordance with its terms)
or shall be declared to be null and void, or Company shall contest the validity
or enforceability of the Company Guaranty in writing or deny in writing that it
has any further liability, including without limitation with respect to future
advances by Lenders, under the Company Guaranty:
THEN (i) upon the occurrence of any Event of Default described in subsection 7.6
or 7.7, in each case with respect to Company or DFFI or Solvest, each of (a) the
unpaid principal amount of and accrued interest on the Loans and (b) 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 Borrowers, and the obligation of each Lender to make
any Loan shall thereupon terminate, and (ii) upon the occurrence and during the
continuation of any other Event of Default, Administrative Agent shall, at the
direction or with the consent of Requisite Lenders, by written notice to
Borrowers, declare all or any portion of the amounts described in clauses (a)
and (b) above to be, and the same shall forthwith become, immediately due and
payable, without presentment, demand, protest or other requirements of any kind,
all of which are hereby expressly waived by Borrowers, and the obligation of
each Lender to make any Loan shall thereupon terminate.
Notwithstanding anything contained in the preceding paragraph, if at any
time within 60 days after an acceleration of the Loans pursuant to such
paragraph, Borrowers 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 on overdue interest, fees and
other amounts, at the rates specified in this Agreement) and all 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, then Requisite Lenders, by written notice to
Borrowers, may at their option rescind and annul such acceleration and its
consequences; but such action shall not affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 8. ADMINISTRATIVE AGENT
8.1 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
Each Lender hereby irrevocably (subject to subsection 8.9) appoints,
designates and authorizes Administrative Agent to take such action on its behalf
under the provisions of this Agreement and the Company Guaranty and to exercise
such powers and perform such duties as are expressly delegated to it by the
terms of this Agreement or the Company Guaranty, together with such powers as
are reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in
58
the Company Guaranty, Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or the Company Guaranty or otherwise exist against Administrative
Agent. Without limiting the generality of the foregoing sentence, the use of the
term "agent" in this Agreement with reference to Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties.
8.2 DELEGATION OF DUTIES.
Administrative Agent may execute any of its duties under this Agreement by
or through agents, employees or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties.
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
8.3 LIABILITY OF ADMINISTRATIVE AGENT.
No Administrative Agent-Related Person shall (i) be liable for any action
taken or omitted to be taken by any of them under or in connection with this
Agreement or the Company Guaranty or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct), or (ii) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by Borrowers or any officer thereof,
contained in this Agreement, or in any certificate, report, statement or other
document referred to or provided for in, or received by Administrative Agent
under or in connection with, this Agreement, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, or for any failure
of any Borrower under this Agreement or Company under the Company Guaranty to
perform its obligations hereunder or thereunder. No Administrative Agent-Related
Person shall be under any obligation to any Lender or participant to ascertain
or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement, or to inspect the properties,
books or records of any Borrower or any Subsidiary or Affiliate thereof.
8.4 RELIANCE BY ADMINISTRATIVE AGENT.
A. Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to any Borrower), independent accountants and
other experts selected by Administrative Agent. Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or the Company Guaranty unless it shall first receive such advice or concurrence
of Requisite Lenders as it
59
deems appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by Lenders against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action.
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or the Company Guaranty in
accordance with a request or consent of Requisite Lenders or all Lenders, if
required hereunder, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of Lenders and participants. Where
this Agreement expressly permits or prohibits an action unless all Lenders or
Requisite Lenders otherwise determine, Administrative Agent shall, and in all
other instances, Administrative Agent may, but shall not be required to,
initiate any solicitation for the consent or a vote of Lenders.
B. For purposes of determining compliance with the conditions specified
in subsection 3.1, each Lender and participant shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
either sent by Administrative Agent to each Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender.
8.5 NOTICE OF DEFAULT.
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Potential Event of Default or Event of Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to Administrative Agent for the account of Lenders, unless
Administrative Agent shall have received written notice from a Lender or any
Borrower referring to this Agreement, describing such Potential Event of Default
or Event of Default and stating that such notice is a "notice of default".
Administrative Agent will notify Lenders of its receipt of any such notice.
Administrative Agent shall take such action with respect to such Potential Event
of Default or Event of Default as may be directed by Requisite Lenders in
accordance with Section 7; PROVIDED, HOWEVER, that unless and until
Administrative Agent has received any such direction, Administrative Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Potential Event of Default or Event of Default as
it shall deem advisable or in the best interest of Lenders.
8.6 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE AGENT.
Each Lender and participant acknowledges that no Administrative
Agent-Related Person has made any representation or warranty to it, and that no
act by Administrative Agent hereinafter taken, including any consent to and
acceptance of any assignment or review of the affairs of any Borrower or any of
its Subsidiaries or Affiliates, shall be deemed to constitute any representation
or warranty by any Administrative Agent-Related Person to any Lender or
participant as to any matter, including whether Administrative Agent-Related
Persons have disclosed material information in their possession. Each Lender,
including any Lender by assignment, and each participant represents to
Administrative Agent that it has, independently and without reliance upon any
Administrative Agent-Related Person and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, prospects,
60
operations, property, financial and other condition and creditworthiness of any
Borrower and its Subsidiaries and Affiliates, and all applicable bank regulatory
laws relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to any Borrower hereunder.
Each Lender and participant also represents that it will, independently and
without reliance upon any Administrative Agent-Related Person and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the Company Guaranty, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of any Borrower and its Subsidiaries and Affiliates. Except for
notices, reports and other documents expressly required to be furnished to
Lenders by Administrative Agent herein, Administrative Agent shall not have any
duty or responsibility to provide any Lender or participant with any credit or
other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of any Borrower or any of its
Subsidiaries or Affiliates which may come into the possession of any
Administrative Agent-Related Person.
8.7 INDEMNIFICATION OF ADMINISTRATIVE AGENT.
Whether or not the transactions contemplated hereby are consummated,
Lenders shall indemnify upon demand each Administrative Agent-Related Person (to
the extent not reimbursed by or on behalf of any Borrower and without limiting
the obligation of any Borrower to do so), pro rata, and hold harmless each
Administrative Agent-Related Person from and against any and all Indemnified
Liabilities incurred by it; PROVIDED, HOWEVER, that no Lender shall be liable
for the payment to any Administrative Agent-Related Person of any portion of
such Indemnified Liabilities resulting from such Person's gross negligence or
willful misconduct; PROVIDED, HOWEVER, that no action taken in accordance with
the directions of Requisite Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section. Without
limitation of the foregoing, each Lender shall reimburse Administrative Agent
upon demand for its ratable share of any costs or out-of-pocket expenses
(including all fees and disbursements of any law firm or other external counsel
and the allocated cost of internal legal services and all disbursements of
internal counsel) incurred by Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
the Company Guaranty, or any document contemplated by or referred to herein, to
the extent that Administrative Agent is not reimbursed for such expenses by or
on behalf of any Borrower. The undertaking in this subsection 8.7 shall survive
the payment of all Obligations hereunder and the resignation or replacement of
Administrative Agent.
8.8 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with any Borrower and its Subsidiaries and Affiliates as
though Bank of America were not
61
Administrative Agent hereunder and without notice to or consent of Lenders.
Lenders and participants acknowledge that, pursuant to such activities, Bank of
America or its Affiliates may receive information regarding any Borrower or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of any Borrower or such Affiliate) and acknowledge that
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, Bank of America shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same as
though it were not Administrative Agent.
8.9 SUCCESSOR ADMINISTRATIVE AGENT.
Administrative Agent may resign as Administrative Agent upon 30 days'
notice to Lenders. If Administrative Agent resigns under this Agreement,
Requisite Lenders shall appoint from among Lenders a successor administrative
agent for Lenders which successor administrative agent shall be consented to by
Company at all times (and which consent of Company shall be in its sole
discretion). If no successor administrative agent is appointed prior to the
effective date of the resignation of Administrative Agent, Administrative Agent
may appoint, after consulting with Lenders and Company, a successor
administrative agent from among Lenders. Upon the acceptance of its appointment
as successor administrative agent hereunder, such successor administrative agent
shall succeed to all the rights, powers and duties of the retiring
Administrative Agent and the term "Administrative Agent" shall mean such
successor administrative agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 8 and subsections 9.3 and
9.4 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and Lenders shall perform all of the duties of
Administrative Agent hereunder until such time, if any, as Requisite Lenders
appoint a successor agent as provided for above.
8.10 DOCUMENTATION AGENT, SYNDICATION AGENT AND CO-AGENTS.
Neither the Documentation Agent, the Syndication Agent nor the Co-Agents,
each in its capacity as such, shall have any duties or responsibilities under
this Agreement.
SECTION 9. MISCELLANEOUS
9.1 SECURITIES REPRESENTATION.
Each Lender hereby represents that it is a commercial lender or financial
institution which makes loans in the ordinary course of its business and that it
will make any Loan for its own account in the ordinary course of its commercial
banking or lending business and not with a view to or for sale in connection
with a distribution of any Loan or any evidence of indebtedness issued by any
Borrower hereunder except in compliance with
62
any applicable securities laws; PROVIDED, HOWEVER, that, subject to subsection
9.2, the disposition of any Loan or evidence of indebtedness hereunder held by
that Lender shall at all times be within its exclusive control.
9.2 ASSIGNMENTS AND PARTICIPATIONS IN LOANS.
A. ASSIGNMENTS. Notwithstanding the provisions of subsection 9.1, each
Lender shall have the right at any time to assign to an Eligible Assignee all or
a part of its rights and obligations under this Agreement and its Pro Rata
Commitment; PROVIDED, HOWEVER, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all of the assigning Lender's rights
and obligations under its Pro Rata Commitment and this Agreement except that,
unless specifically provided in the Assignment and Acceptance Agreement, the
rights and obligations with respect to the assigning Lender's outstanding Bid
Rate Loans shall not be assigned; (ii) each such assignment shall be in a
minimum amount of $5,000,000, unless such assignment is to a Lender or any
Affiliate of a Lender or unless the assigning Lender is assigning its entire Pro
Rata Commitment; and (iii) all such assignments shall be effected by the
execution of an Assignment and Acceptance Agreement by the assigning Lender and
the assignee Lender. Notwithstanding any other provision to the contrary
contained in this Agreement, any Lender may at any time, without the consent of
Administrative Agent or any Borrower, assign all or any portion of its rights
under this Agreement and any notes which may be issued hereunder to a Federal
Reserve Bank. Each Lender shall give Company and Administrative Agent prompt
written notice of any assignment to an Affiliate of such Lender or any other
Lender.
B. EFFECTIVENESS OF ASSIGNMENT. Subject to satisfaction of each of the
foregoing conditions in subsection 9.2A, and delivery to Administrative Agent of
the Assignment and Acceptance Agreement and a processing and recordation fee of
$3,500 by the assignor, the Assignment and Acceptance Agreement shall become
effective on the later to occur of (x) the effective date specified in the
applicable Assignment and Acceptance Agreement, and (y) except with respect to
assignments to any Lender or any of its Affiliates to the extent such Affiliate
constitutes an Eligible Assignee, the date on which Administrative Agent and
(other than during the existence of a Potential Event of Default or Event of
Default) Company have consented to (which consents shall not be unreasonably
withheld), accepted and recorded the Assignment and Acceptance Agreement. Within
five Business Days after Administrative Agent's receipt of an Assignment and
Acceptance Agreement executed by an Eligible Assignee and the processing and
recordation fee, Administrative Agent shall, if the Assignment and Acceptance
Agreement is otherwise in compliance with this Agreement, record the information
required in the Register, give a copy of the Assignment and Acceptance Agreement
to Company and provide to Borrowers and Lenders a revised SCHEDULE 9.7 giving
effect thereto. Upon such effectiveness, the assignee Lender shall be a Lender
hereunder and, to the extent set forth in the Assignment and Acceptance
Agreement, have the rights and obligations of a Lender hereunder and the
assigning Lender shall, to the extent that its rights and obligations have been
so assigned, relinquish its rights and be released from its obligations under
this Agreement.
C. ASSIGNMENT AND ACCEPTANCE AGREEMENT. By executing and delivering an
Assignment and Acceptance Agreement, the assigning Lender thereunder and
63
the assignee thereunder (as applicable) shall be deemed to confirm to and agree
with each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the Company Guaranty or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or the Company Guaranty or any other instrument or document
furnished pursuant hereto or thereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of Company or any of its Subsidiaries or the performance or
observance by Company or any of its Subsidiaries of any of their respective
obligations under this Agreement or the Company Guaranty or any other instrument
or document furnished pursuant hereto or thereto; (iii) such assignee confirms
that it has received a copy of this Agreement and the Company Guaranty, together
with copies of the most recent financial statements delivered pursuant to
subsection 5.1 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance Agreement; (iv) such assignee has made, and will
continue to make, independently and without reliance upon Administrative Agent,
such assigning Lender or any other Lender, and based on such documents and
information as it deemed or deems appropriate at the time, its own credit
decisions in taking or not taking action under this Agreement; (v) such assignee
appoints and authorizes Administrative Agent to take such action as agent, on
its behalf and to exercise such powers under this Agreement and the Company
Guaranty as are delegated to Administrative Agent, by the terms hereof, together
with such powers as are reasonably incidental thereto; and (vi) such assignee
agrees that it will perform in accordance with their terms all the obligations
which by the terms of this Agreement are required to be performed by it as a
Lender.
D. PARTICIPATIONS. Notwithstanding the provisions of subsection 9.1, each
Lender may sell participations to one or more other Person (including another
Lender) in any part of any Loan or Loans or its Pro Rata Commitment; PROVIDED,
HOWEVER; that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participating banks or
other financial institutions shall not be a Lender hereunder for any purpose
except, if the participation agreement so provides, for the purposes of
subsections 2.6G, 2.10 and 2.11 (but only to the extent that the cost of such
benefits to Borrowers does not exceed the cost which Borrowers would have
incurred in respect of such Lender absent the participation) and subject to
subsection 9.5 and, except as hereinafter provided, no participant shall have
any rights under this Agreement or any other document delivered in connection
herewith, (iv) Borrowers, Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, (v) the participation
agreement shall not restrict an increase in the Total Pro Rata Commitments or in
the granting Lender's Pro Rata Commitment, so long as the amount of the
participation interest is not increased, and (vi) the consent of the holder of
such participation interest shall not be required for amendments or waivers of
(and such holder shall not have any right to require such Lender selling such
participation interest to amend or waive) this Agreement except to the extent
any such amendment or waiver would (a) extend the final maturity date or the
date for the
64
payment of any interest due in respect of a Loan due to such Lender or any fees
due to such Lender under this Agreement, (b) reduce the amount of any
installment of principal or interest due to such Lender in respect of any Loan,
or (c) reduce the interest rates applicable to the Loans or the fees due to such
Lender under this Agreement. Any Lender that sells a participation to any Person
that is a "foreign corporation, partnership or trust" within the meaning of the
Internal Revenue Code shall include in its participation agreement with such
Person a covenant by such Person that such Person will comply with the
provisions of subsection 2.11 as if such Person were a Lender and provide that
Administrative Agent and Borrowers shall be third party beneficiaries of such
covenant.
E. ADDITIONAL PROVISIONS GOVERNING ASSIGNMENTS AND PARTICIPATIONS. Each
Borrower hereby agrees that any Lender may furnish any information concerning
such Borrower in the possession of any Lender from time to time to assignees and
participants (including prospective assignees and participants), PROVIDED, that
each such assignee, prospective assignee, participant and prospective
participant shall agree in writing to be bound by the provisions of subsection
9.18. In the event of any assignment hereunder, the assigning Lender's Pro Rata
Commitment shall be modified to reflect the Pro Rata Commitment of such
assignee. No Lender shall, as between any Borrower and that Lender, be relieved
of any of its obligations hereunder as a result of any granting of
participations in all or any part of the Loans, or Pro Rata Commitment of that
Lender or other Obligations owed to such Lender. Each Lender shall, as between
each Borrower and that Lender, be relieved of its obligations hereunder as a
result of any sale, assignment, transfer or negotiation, in accordance with
subsection 9.2, of all or any part of the Loans or Pro Rata Commitment of that
Lender or other Obligations owed to such Lender to the extent of the obligations
assigned.
9.3 EXPENSES.
Except to the extent otherwise specifically set forth herein or agreed to
by Administrative Agent and Company, prior to the occurrence and except during
the continuance of an Event of Default, the expenses of Administrative Agent and
each Lender in connection with this Agreement shall be borne by Administrative
Agent or such Lender, as the case may be. After the occurrence and during the
continuance of an Event of Default, Company agrees to pay promptly all
reasonable costs and expenses, including reasonable attorneys' fees (PROVIDED,
that Company shall not be required to pay attorneys' fees for more than one
counsel for Administrative Agent and Lenders) and costs of settlement, incurred
by Administrative Agent and Lenders in enforcing any Obligations of or in
collecting any payments due from any Borrower hereunder or under the Company
Guaranty 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.
9.4 INDEMNITY.
A. In addition to the payment of expenses pursuant to subsection 9.3,
whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend, indemnify, pay and hold harmless each Administrative
Agent-Related Person and
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each Lender, and their respective officers, directors, employees, agents,
advisors and Affiliates (collectively called the "INDEMNITEES" and individually
an "INDEMNITEE") from and against any and all claims, damages, losses,
liabilities and expenses (including without limitation the reasonable fees and
disbursements of one counsel representing all such Indemnitees, and additional
counsel to the extent provided in subsection 9.4B), 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 (collectively, "INDEMNIFIED LIABILITIES" and
individually an "INDEMNIFIED LIABILITY") that may be incurred by, or asserted or
awarded against any such Indemnitee, in each case arising out of or in
connection with or by reason of, or in connection with the preparation for a
defense of, any investigation, litigation or proceeding arising out of, relating
to or in connection with this Agreement or the Company Guaranty, whether or not
such investigation, litigation or proceeding is brought by the Company or DFFI
or Solvest, its shareholders or creditors or an Indemnitee, and whether or not
an Indemnitee is otherwise a party thereto, except that no Indemnitee shall be
entitled to be indemnified hereunder (i) to the extent that such claim, damage,
loss, liability or expense is found in a final judgment rendered by a court of
competent jurisdiction to have resulted from such Indemnitee's gross negligence
or willful misconduct or from a breach of such Indemnitee's obligations pursuant
to subsection 9.18 or its confidentiality letter theretofore delivered to
Company, or (ii) with respect to any litigation brought by any Borrower seeking
judgment against such Indemnitee for any wrongful act or omission of such
Indemnitee if a final judgment by a court of competent jurisdiction is rendered
in such Borrower's favor against such Indemnitee. If any claim regarding any
Indemnified Liability ("CLAIM") is asserted against any Indemnitee, such
Indemnitee shall promptly notify Company, but the failure to do so shall not
affect Company's obligations under this subsection 9.4 unless such failure
materially prejudices Company's right to defend or participate in the contest of
such Claim, as hereinafter provided in this subsection 9.4. Neither Company nor
any Indemnitee shall settle any Indemnified Liability with respect to any
Indemnitee without the consent of Company and that Indemnitee, which consent
shall not be unreasonably withheld.
B. The Indemnitees shall be entitled to legal representation at Company's
expense by one legal counsel selected by the Indemnitees, as a group, as
provided in subsection 9.4A and, in addition, Company will pay the reasonable
costs and expenses of one additional legal counsel selected by an Indemnitee if
legal counsel for such Indemnitee determines in good faith that joint
representation of such Indemnitee along with other Indemnitees would or could
reasonably be expected to result in a conflict of interest under laws or ethical
principles applicable to such counsel. The scope of representation of any
additional counsel pursuant to this subsection 9.4B shall be to the extent
reasonably necessary to avoid such conflict of interest.
C. Nothing in this subsection 9.4 shall limit the right, which is
absolute, of any Indemnitee to at any time retain at its own expense separate
counsel to represent and defend such Indemnitee in connection with any
Indemnified Liabilities. In such event Company shall have the right to
participate, at Company's expense and through independent counsel, in the
contest.
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D. To the extent that the undertaking to defend, indemnify, pay and hold
harmless set forth in this subsection 9.4 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.
E. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or under the Company Guaranty in one
currency into another currency, the rate of exchange used shall be the Spot Rate
as determined on the Business Day immediately preceding the date on which such
judgment is to be rendered. The obligation of Company in respect of any such sum
due from it shall, notwithstanding any judgment in a currency (the "JUDGMENT
CURRENCY") other than that in which such sum is denominated in accordance with
the applicable provisions of this Agreement (the "AGREEMENT CURRENCY"), be
discharged only to the extent that Administrative Agent and Lenders can purchase
the Equivalent Amount of the Agreement Currency as determined on the Business
Day immediately following the date of receipt of such sum by Administrative
Agent and Lenders. If the amount of the Agreement Currency so purchased is
insufficient, Company agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the relevant Indemnitees against such loss. If the
Equivalent Amount of the Agreement Currency is greater than the amount due, each
Lender agrees to return any excess to Company (or any other Person who may be
entitled thereto under applicable law).
9.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall, whether by
voluntary payment, 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 hereunder 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, fees
and other amounts then due and owing to that Lender hereunder (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 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 or reorganization of Company or
DFFI or Solvest 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.
67
9.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any provision of this
Agreement or consent to any departure by any Borrower 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: increases the amount of the Total Pro Rata Commitments in excess of
$350,000,000; reduces the principal amount of any of the Loans or accrued
interest thereon; changes the definition of "Requisite Lenders"; changes 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 Loans (other than in accordance with Section 2.1E); decreases the interest
rate borne by the Pro Rata Loans or the amount of any fees payable hereunder;
increases the maximum duration of Interest Periods permitted hereunder; releases
the Company Guaranty in whole or in part; or changes the provisions contained in
this subsection 9.6 shall be effective only if evidenced by a writing signed by
or on behalf of all Lenders, and PROVIDED; FURTHER, that any such amendment,
modification, waiver or consent which increases any Lender's Pro Rata
Commitment, except as contemplated by subsection 2.12, shall be effective only
if evidenced in a writing signed by or on behalf of such affected Lender. In
addition, no amendment, modification, termination or waiver of any provision of
Section 8 or of any other provision of this Agreement which affects the rights
or obligations of Administrative Agent or 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 any
Borrower in any case shall entitle any Borrower 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 9.6
shall be binding upon each Lender at the time outstanding, each future Lender
and, if signed by any Borrower, on such Borrower.
9.7 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 or sent by telefacsimile or United States mail or
courier service or, in certain limited circumstances, electronic mail and shall
be deemed to have been given when delivered in person or by courier service,
upon receipt of telefacsimile (when confirmed by telephone (not voicemail)), or
four Business Days after depositing it in the United States mail, first-class
postage prepaid and properly addressed, or, but only with respect to the items
to be delivered to Lenders pursuant to subsections 5.1A, 5.1B and 5.1C, when
delivered by electronic mail; PROVIDED that notices to Administrative Agent
shall not be effective until received. For the purposes hereof, the address,
telefacsimile number and electronic mail addresses of each party hereto shall be
as set forth on Schedule 9.7 or (i) as to Borrowers and Administrative Agent,
such other address or telefacsimile number as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as to each
other
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party, such other address or telefacsimile number as shall be designated by such
party in a written notice delivered to Administrative Agent.
Neither Administrative Agent nor any Lender shall incur any liability to
any Borrower or any other Lender in acting upon any telephonic notice referred
to in subsections 2.1 or 2.2 which Administrative Agent or such Lender believes
in good faith to have been given by a duly authorized officer or other person
authorized to borrow on behalf of the Applicable Borrower or for otherwise
acting in good faith with respect to any Notice of Borrowing, and upon the
funding of a Loan by any Lender in accordance with this Agreement pursuant to
any telephonic notice, the Applicable Borrower shall have effected a Loan
hereunder.
9.8 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations, warranties and agreements made herein shall survive
the execution and delivery of this Agreement and the making of the Loans
hereunder.
9.9 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 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 are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
9.10 ENTIRE AGREEMENT.
This Agreement comprises the complete and integrated agreement of the
parties on the subject matter hereof and supersede all prior agreements, written
or oral, on the subject matter hereof.
9.11 SEVERABILITY.
In case any provision in or obligation under this Agreement 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.
9.12 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Pro Rata Commitment of any other Lender
hereunder. Nothing contained herein, and no action taken by Lenders pursuant
hereto, 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
69
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.
9.13 HEADINGS.
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.
9.14 APPLICABLE LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA.
9.15 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 9.2). Neither Company's
or DFFI's or Solvest's rights or obligations hereunder nor any interest therein
may be assigned or delegated by Company or DFFI or Solvest without the prior
written consent of all Lenders.
9.16 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY BORROWER ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OBLIGATION MAY BE BROUGHT IN ANY CALIFORNIA
STATE OR FEDERAL COURT SITTING IN THE CITY OF LOS ANGELES, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT EACH BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS AGREEMENT OR SUCH OBLIGATION. EACH BORROWER CONSENTS TO
THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH PROCEEDING BY THE MAILING OF
COPIES OF SUCH PROCESS TO SUCH BORROWER AT ITS ADDRESS SPECIFIED IN SUBSECTION
9.7.
9.17 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING
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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, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
In the event of litigation, this Agreement may be filed as a written consent to
a trial by the court.
9.18 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained pursuant to the
requirements of this Agreement in accordance with such Lender's customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices, it being understood and agreed
by Borrowers that a Lender may make disclosures (i) to any Affiliate of such
Lender PROVIDED that such Affiliate shall be bound by this subsection 9.18, (ii)
reasonably required by any bona fide assignee, transferee or participant in
connection with the contemplated assignment or transfer by such Lender of its
Pro Rata Commitment or any of its Loans or any participation therein (PROVIDED
that such actual or prospective transferee, assignee or participant shall agree
in writing to be bound by this subsection 9.18 in advance of its receipt) or
(iii) as required by any governmental agency or representative thereof or
pursuant to legal process; 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. All information disclosed
by any Borrower shall be presumed confidential other than Company's public
filings and press releases and other matters generally available publicly.
9.19 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
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authorization of delivery thereof. Delivery of a telecopied signature page shall
be as effective as delivery of an originally executed signature page.
[Remainder of page intentionally left blank]
[Signature pages follow]
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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:
XXXX FOOD COMPANY, INC.,
a Hawaii corporation
By:
-------------------------------
Title:
DFFI:
XXXX FRESH FRUIT INTERNATIONAL, LIMITED,
a Liberian corporation
By:
-------------------------------
Title:
SOLVEST:
SOLVEST, LTD.,
a Bermuda corporation
By:
-------------------------------
Title: Treasurer
S-1
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
-------------------------------
Title:
S-2
LENDERS:
BANK OF AMERICA, N.A.,
as Lender
By:
-------------------------------
Title:
S-3
COMMERZBANK AG,
as Syndication Agent and as Lender
By:
-------------------------------
Title:
S-4
THE BANK OF NOVA SCOTIA,
as Documentation Agent and as Lender
By:
-------------------------------
Title:
S-5
COBANK, ACB,
as Lender
By:
-------------------------------
Title:
S-6
COOPERATIEVE CENTRALE RAIFFEISEN -
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH,
as Lender
By:
-------------------------------
Title:
X-0
XXXXXXXX XXXX,
as Lender
By:
-------------------------------
Title:
S-8
THE SANWA BANK, LIMITED,
as Lender
By:
-------------------------------
Title:
S-9
STANDARD CHARTERED BANK,
as Lender
By:
-------------------------------
Title:
X-00
XXXXXX XXXX, X.X.,
as Lender
By:
-------------------------------
Title:
S-11
XXXXX FARGO BANK, N.A.,
as Lender
By:
-------------------------------
Title:
S-12
THE FUJI BANK, LIMITED,
as Lender
By:
-------------------------------
Title:
S-13
