CONFORMED COPY
AGRILINK FOODS, INC.,
as Borrower,
and
PRO-FAC COOPERATIVE, INC.,
as Guarantor,
THE OTHER GUARANTORS PARTY HERETO
----------------------
$200,000,000
SENIOR SUBORDINATED CREDIT AGREEMENT
Dated as of September 23, 1998
----------------------
WARBURG DILLON READ LLC,
as Arranger and Syndication Agent,
and
UBS AG, STAMFORD BRANCH,
as Administrative Agent,
and
THE LENDERS FROM TIME TO TIME PARTY HERETO
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience of reference only.
Page
Section 1. Definitions, Accounting Matters and Rules of Construction.......................................1
1.01. Certain Defined Terms...........................................................................1
1.02. Accounting Terms...............................................................................20
1.03. Rules of Construction..........................................................................20
Section 2. Amount and Terms of Loan Commitment and Loans; Notes...........................................21
2.01. Initial Loan and Initial Note..................................................................21
2.02. Term Loan and Term Note........................................................................23
2.03. Interest on the Loans..........................................................................24
2.04. Fees...........................................................................................25
2.05. Prepayments....................................................................................25
2.06. Manner and Time of Payment.....................................................................30
2.07. Use of Proceeds................................................................................30
Section 3. Yield Protection, Etc..........................................................................31
3.01. Funding Indemnity..............................................................................31
3.02. Change of Law..................................................................................31
3.03. Unavailability of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR Rate.............32
3.04. Increased Cost and Reduced Return..............................................................32
3.05. Capital Adequacy...............................................................................33
3.06. Withholding Taxes..............................................................................33
3.07. Lender Replacement.............................................................................35
Section 4. Guarantee......................................................................................35
4.01. The Guarantee..................................................................................35
4.02. Guarantee Unconditional........................................................................35
4.03. Discharge Only upon Payment in Full; Reinstatement in Certain Circumstances....................36
4.04. Subrogation....................................................................................37
4.05. Waivers........................................................................................37
4.06. Stay of Acceleration...........................................................................37
4.07. General Limitation on Guarantee Obligations....................................................37
4.08. Subordination..................................................................................37
Page
Section 5. Conditions Precedent...........................................................................37
5.01. Conditions to Effectiveness of Loan Documents and Obligation to Make Initial Loan..............37
5.02. Conditions to Term Loan........................................................................41
5.03. Determinations Under Section 5.................................................................42
Section 6. Representations and Warranties.................................................................42
6.01. Organization and Power.........................................................................42
6.02. Subsidiaries...................................................................................42
6.03. [Reserved].....................................................................................43
6.04. Financial Reports..............................................................................43
6.05. Litigation and Taxes...........................................................................44
6.06. Burdensome Contracts with Affiliates...........................................................44
6.07. ERISA..........................................................................................44
6.08. Full Disclosure................................................................................44
6.09. Compliance with Law............................................................................45
6.10. Certain Contracts..............................................................................45
6.11. Stock Purchase Agreement Warranties............................................................45
6.12. Restrictive Agreements.........................................................................45
6.13. No Default Under Other Agreements..............................................................45
6.14. Status Under Certain Laws......................................................................46
6.15. Year 2000 Compliance...........................................................................46
6.16. Solvency, Etc..................................................................................46
Section 7. Covenants......................................................................................46
7.01. Maintenance of Business........................................................................46
7.02. Maintenance....................................................................................46
7.03. Taxes..........................................................................................47
7.04. Insurance......................................................................................47
7.05. Financial Reports..............................................................................47
7.06. Compliance with Laws...........................................................................48
7.07. Nature of Business.............................................................................48
7.08. Liens..........................................................................................49
7.09. Indebtedness...................................................................................50
7.10. Acquisitions, Investments, Loans and Advances and Guarantees...................................50
7.11. Restricted Payments............................................................................52
7.12. Mergers........................................................................................52
7.13. Sales of Assets................................................................................53
7.14. Burdensome Contracts with Affiliates...........................................................53
7.15. No Change in Fiscal Year.......................................................................53
7.16. Formation of Subsidiaries......................................................................53
7.17. No Restriction on Subsidiary Dividends.........................................................54
Page
7.18. Concerning the Subordinated Debt...............................................................54
7.19. Limitation on Senior Subordinated Indebtedness.................................................54
7.20. Concerning the Marketing Agreement.............................................................54
7.21. Year 2000 Assessment...........................................................................54
7.22. Preservation of Cooperative Status.............................................................55
7.23. Take-Out Financing.............................................................................55
7.24. Exchange of Term Notes.........................................................................56
7.25. Register.......................................................................................56
7.26. Senior Subordinated Indenture; Etc.............................................................57
7.27. Amendments or Waivers of Certain Documents.....................................................57
7.28. Release of Covenants upon Conversion; Term Loan Covenants......................................57
Section 8. Events of Default..............................................................................58
8.01. Events of Default..............................................................................58
8.02. Non Bankruptcy Defaults........................................................................59
8.03. Bankruptcy Defaults............................................................................59
8.04. Willful Default................................................................................59
Section 9. Agents.........................................................................................60
9.01. General Provisions.............................................................................60
9.02. Indemnification................................................................................62
9.03. Consents Under Other Loan Documents............................................................62
Section 10. Miscellaneous..................................................................................63
10.01. Waiver of Rights...............................................................................63
10.02. [Reserved].....................................................................................63
10.03. Expenses, Indemnification, Etc.................................................................63
10.04. Documentary Taxes..............................................................................64
10.05. Amendments, Etc................................................................................64
10.06. Survival of Representations....................................................................65
10.07. Assignments and Participations.................................................................66
10.08. Right of Setoff; Sharing of Payments; Etc......................................................67
10.09. Lending Offices................................................................................68
10.10. Discretion of Banks as to Manner of Funding....................................................68
10.11. Notices........................................................................................69
10.12. [Reserved].....................................................................................69
10.13. [Reserved].....................................................................................69
10.14. [Reserved].....................................................................................69
10.15. Counterparts; Interpretation; Effectiveness....................................................69
10.16. Headings.......................................................................................69
10.17. Confidentiality................................................................................70
Page
10.18. Waiver of Stay, Extension or Usury Laws........................................................70
10.19. Governing Law; Submission to Jurisdiction; Waivers; Etc........................................70
10.20. Waiver of Jury Trial...........................................................................71
10.21. Independence of Representations, Warranties and Covenants......................................71
10.22. Severability...................................................................................71
10.23. Acknowledgments................................................................................71
Section 11. Subordination..................................................................................72
11.01. Agreement to Subordinate.......................................................................72
11.02. Liquidation; Dissolution; Bankruptcy...........................................................72
11.03. No Payment on Loans and Notes in Certain Circumstances.........................................72
11.04. Acceleration of Notes..........................................................................73
11.05. When Distributions Must Be Paid Over...........................................................74
11.06. Notice.........................................................................................74
11.07. Subrogation....................................................................................75
11.08. Relative Rights................................................................................75
11.09. The Company, Guarantors and Lenders May Not Impair Subordination...............................75
11.10. Distribution or Notice to Representative.......................................................76
11.11. Rights of Administrative Agent.................................................................77
11.12. Authorization to Effect Subordination..........................................................77
Signatures..................................................................................................S-1
ANNEX A - Term Loan Covenants
ANNEX B - Definitions Applicable to Term Loan Covenants
SCHEDULE 6.02 - Subsidiaries
SCHEDULE 6.05 - Litigation and Taxes
SCHEDULE 7.08 - Existing Liens
SCHEDULE 7.09 - Existing Indebtedness
SCHEDULE 7.10 - Existing Investments
EXHIBIT A-1 - Form of Initial Note
EXHIBIT A-2 - Form of Term Note
EXHIBIT B - Form of Notice of Borrowing
EXHIBIT C - Form of Notice of Conversion
EXHIBIT D - Form of Additional Guarantor Supplement
EXHIBIT E - Form of Assignment Agreement
SENIOR SUBORDINATED CREDIT AGREEMENT dated as of September 23, 1998,
among AGRILINK FOODS, INC., a New York corporation (the "Company"); PRO-FAC
COOPERATIVE, INC., as Guarantor; the other Guarantors party hereto; each of the
lenders that is a signatory hereto identified under the caption "LENDERS" on the
signature pages hereto or that, pursuant to Section 10.07(b), shall become a
"Lender" hereunder (individually, a "Lender" and, collectively, the "Lenders");
WARBURG DILLON READ LLC, as arranger and syndication agent (the "Arranger"); and
UBS AG, Stamford Branch, as administrative agent (the "Administrative Agent").
The parties hereto agree as follows:
Section 1. Definitions, Accounting Matters and Rules of Construction.
1.01. Certain Defined Terms. As used herein, the following terms shall
have the following meanings:
"Acquisition" shall mean the acquisition by the Company of all of the
outstanding capital stock of DFVC and BEMSA Holding, Inc., a Delaware
corporation ("BEMSA"), and of the trademarks used in the businesses of DFVC and
BEMSA, the transfer by the Company to Xxxx Foods or a subsidiary thereof of the
asceptic business of the Company and the assets used in connection therewith and
the related transactions provided for in the Stock Purchase Agreement and the
Asset Transfer Agreement.
"Acquisition Closing Date" shall mean the date the Acquisition is
actually consummated.
"Additional Guarantor Documentation" shall mean the following, each of
which shall be satisfactory in form and substance to the Administrative Agent:
(i) good standing certificates for such Guarantor issued by
its state of organization, issued not more than 30 days before the date
of its Additional Guarantor Supplement;
(ii) copies of the Certificates of Incorporation, and all
amendments thereto, of such Guarantor, certified by the Secretary of
State of its state of incorporation not more than 30 days before the
date of its Additional Guarantor Supplement;
(iii) copies of the by-laws, and all amendments thereto, of
such Guarantor, certified as true, correct and complete on the
effective date of its Additional Guarantor Supplement by the Secretary
or Assistant Secretary of such Guarantor;
(iv) copies, certified as true, correct and complete by the
Secretary or Assistant Secretary of such Guarantor, of resolutions
regarding the transactions contemplated by this Agreement, duly adopted
by the Board of Directors or other governing body of such Guarantor;
(v) an incumbency and signature certificate for such
Guarantor; and
(vi) legal matters incident to the execution and delivery of
the Additional Guarantor Supplement shall be satisfactory to the
Administrative Agent and its counsel and the Administrative Agent shall
have received the favorable written opinion of counsel for such
Guarantor in form and substance satisfactory to the Administrative
Agent.
"Additional Guarantor Supplement" is defined in Section 7.16.
"Adjusted LIBOR Rate" shall mean a rate per annum determined pursuant
to the following formula:
Adjusted LIBOR Rate = LIBOR Rate
100% - Reserve Percentage
"Administrative Agent" shall have the meaning set forth in the
introduction hereto.
"Affiliate" shall mean, for any Person, any other Person (including all
directors and officers of such Person) that directly or indirectly controls, or
is under common control with, or is controlled by, such Person. As used in this
definition, "control" means the power, directly or indirectly, to direct or
cause the direction of the management or policies of a Person (through ownership
of voting securities, by contract or otherwise); provided that, in any event,
for purposes of this definition any Person that owns directly or indirectly 10%
or more of the securities or other interests having ordinary voting power for
the election of directors of a corporation or 10% or more of the partnership or
other ownership interests of any other Person will be deemed to control such
corporation or other Person.
"Agent" means either of the Administrative Agent or the Arranger.
"Agreement" shall mean this Credit Agreement, as the same may be
amended, modified or restated from time to time in accordance with its terms.
"Applicable Spread" means 5.00% for the period from and including the
Closing Date and to but excluding the 90th day following the Closing Date, and
for each subsequent 90-day period, the Applicable Spread in effect for the
immediately preceding 90-day period plus 1.00%.
"Approved Fund" shall mean, with respect to any Lender that is a fund
or commingled investment vehicle that invests in commercial loans, any other
fund that invests in commercial loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
"Arranger" shall have the meaning set forth in the introduction hereto.
"Asset Transfer Agreement" shall mean the Asset Transfer Agreement
dated as of July 24, 1998 by and between Xxxx Foods and the Company, as amended
as permitted hereby.
"Assignment Agreement" shall mean an agreement substantially in the
form of Exhibit F.
"Auditors" see Section 7.05(b).
"Bankruptcy Law" shall mean Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute or any
other United States federal, state or local law or the law of any other
jurisdiction relating to bankruptcy, insolvency, winding up, liquidation,
reorganization or relief of debtors, whether in effect on the date hereof or
hereafter.
"Bankruptcy Order" shall mean any court order made in a proceeding
pursuant to or within the meaning of any Bankruptcy Law, containing an
adjudication of bankruptcy or insolvency, or providing for liquidation, winding
up, dissolution or reorganization, or appointing a custodian of a debtor or of
all or any substantial part of a debtor's property, or providing for the
staying, arrangement, adjustment or composition of indebtedness or other relief
of a debtor.
"BEMSA" see the definition of Acquisition.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in the City of New York are authorized by law or
regulation or executive order to remain closed.
"Capital Stock" shall have the meaning set forth in Annex B.
"Capitalized Lease" shall mean any lease or other agreement for the use
or possession of real or personal property the obligation for Rentals with
respect to which is required to be capitalized on a balance sheet of the lessee
in accordance with GAAP.
"Capitalized Rentals" shall mean as of the date of any determination
the amount at which the aggregate Rentals due and to become due under
Capitalized Leases under which the Company or any Subsidiary is a lessee will be
reflected as a liability on a consolidated balance sheet of the Company and its
Subsidiaries prepared in accordance with GAAP.
"Cash Equivalents" shall have the meaning set forth in Annex B.
"Change of Control" shall mean prior to the Conversion Date, the
occurrence of any of the following events: (i) any of the capital stock of the
Company shall be owned, either legally or beneficially, by any Person other than
Parent; (ii) the number of the directors of the Company who are Disinterested
Directors shall not at least equal the number of directors of the Company who
are not Disinterested Directors; or (iii) more than 20% of the capital stock of
Parent entitled at the time to vote for the election of directors shall be owned
or controlled by a Person or group of Persons acting in concert.
"Change of Control Date" shall have the meaning set forth in Section
2.05(a)(iii) (3)(A).
"Change of Control Offer" shall have the meaning set forth in Section
2.05(a)(iii)(3).
"Closing Date" shall mean the date on which the Initial Loans are made
hereunder.
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Commitment Letter" shall mean the Commitment Letter among UBS AG,
Stamford Branch, Warburg Dillon Read LLC and Agrilink Foods, Inc., dated
September 14, 1998, together with all exhibits and schedules thereto and
incorporated therein, as such letter has been amended to the date hereof.
"Commitments" shall mean the Initial Loan Commitments and the Term Loan
Commitments.
"Company" shall have the meaning set forth in the introduction hereto.
"Consolidated Net Income" for any period shall mean the gross revenues
from any source of the Parent and its Subsidiaries for such period less all
expenses and other proper charges determined for the Parent and its Subsidiaries
on a consolidated basis in accordance with GAAP but computed prior to giving
effect to gains and losses on the disposition of capital assets and other
extraordinary gains and losses (including the write off of debt issuance costs,
the payment of premium on the retirement of Indebtedness and gains resulting
from pensions reversions) as determined in accordance with GAAP.
"Consolidated Net Worth" shall mean, as of any date, the common stock
and total shareholders' and members' capitalization of the Parent and its
Subsidiaries, each computed on a consolidated basis in a manner consistent with
that used in the preparation of the Parent's audited consolidated balance sheet
for the fiscal year ended June 27, 1998 and heretofore delivered to the Lenders.
"Consolidated Total Indebtedness" shall mean all Indebtedness of the
Parent and its Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"Conversion Date" shall mean the one-year anniversary of the Closing
Date.
"Custodian" means any custodian, receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
"Xxxx Foods" shall xxxx Xxxx Foods Company, a Delaware corporation.
"Debt Issuance" shall mean the incurrence by the Parent or any
Subsidiary of any Indebtedness after the Closing Date.
"Default" shall mean any event or condition the occurrence of which
would, with the lapse of time or the giving of notice, or both, constitute an
Event of Default.
"Designated Senior Indebtedness" shall mean (i) Indebtedness under the
Senior Credit Facility and (ii) any other Indebtedness constituting Senior
Indebtedness that, at the date of determination, has an aggregate principal
amount outstanding of at least $25.0 million and that is specifically designated
by the Company, in the instrument creating or evidencing such Senior
Indebtedness or in an Officer's Certificate delivered to the Administrative
Agent, as "Designated Senior Indebtedness."
"DFVC" shall xxxx Xxxx Foods Vegetable Company, a Wisconsin
corporation.
"Disinterested Directors" means directors of the Company who are not
employees, shareholders (at the time of becoming directors) or otherwise
Affiliates (other than by reason of being a director of the Company) of either
the Parent or the Company.
"Disqualified Capital Stock" shall have the meaning set forth in Annex
B.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean, with reference to any period, Consolidated Net
Income for such period plus all amounts deducted in arriving at such
Consolidated Net Income in respect of (i) Interest Expense, (ii) taxes imposed
on or measured by income or excess profits, and (iii) all charges for
depreciation of fixed assets and amortization of intangibles, all as determined
in accordance with GAAP.
"Eligible Person" shall mean (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100.0 million; (ii) a commercial bank organized under
the laws of any other country that is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus in a dollar equivalent amount
of at least $100.0 million; provided, however, that such bank is acting through
a branch or agency located in the country in which it is organized or another
country that is also a member of the OECD; (iii) an insurance company, mutual
fund entity which is regularly engaged in making, purchasing or investing in
loans or securities or other financial institution organized under the laws of
the United States, any state thereof, any other country that is a member of the
OECD or a political subdivision of any such country with assets, or assets under
management, in a dollar equivalent amount of at least $100.0 million; (iv) any
Affiliate of a Lender; and (v) any other entity (other than a natural person)
which is an "accredited investor" (as defined in Regulation D under the
Securities Act) which extends credit or buys loans as one of its businesses
including, but not limited to, insurance companies, mutual funds, and investment
funds. With respect to any Lender that is a fund that invests in loans, any
other fund that invests in loans and is managed or advised by the same
investment advisor of such Lender or by an Affiliate of such investment advisor
shall be treated as a single Eligible Person.
"Equity Issuance" means a public offering, private placement or other
issuance or sale of the capital stock or other equity interests (or of warrants,
options or other rights therefor) of the Parent or any of its
Subsidiaries; provided that the issuance by the Parent of common stock to its
producer members in accord with past practice shall not constitute an Equity
Issuance.
"Equity Offering" shall mean an underwritten primary offering of
Capital Stock (other than Disqualified Capital Stock) of the Parent (to the
extent that the net cash proceeds thereof are contributed to the equity capital
of the Company (other than Disqualified Capital Stock (as defined in Annex B))
or the Company pursuant to a registration statement filed with the Commission in
accordance with the Securities Act or pursuant to a private placement pursuant
to an available exemption from registration under the Securities Act to the
extent, in the case of such private placement, such Capital Stock is not sold to
the Parent, the Company, any Subsidiary or any Affiliate (without giving effect
to clause (ii) in the definition thereof in Annex B) thereof.
"ERISA" shall have the meaning set forth in Section 6.07.
"Event of Default" shall have the meaning set forth in Section 8.01.
"Excess Proceeds" shall have the meaning set forth in Section
2.05(a)(iii)(4).
"Exchange Act" shall mean the United States Securities Exchange Act of
1934, as amended.
"Exchange Note Trustee" shall mean the trustee in connection with the
Senior Subordinated Indenture.
"Exchange Notes" shall have the meaning set forth in Section 7.24.
"Existing Notes" shall mean the Company's existing $160 million 12 1/4%
Senior Subordinated Notes due 2005.
"Fair Market Value" shall have the meaning set forth in Annex B.
"Federal Funds Rate" shall mean, 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, however, that (a) if the day for which such
rate is to be determined 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 such rate is not
so published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate quoted to Administrative Agent on such Business Day on
such transactions by three federal funds brokers of recognized standing, as
determined by Administrative Agent.
"Fee Letter" shall mean the Fee Letter dated as of September 14, 1998,
by and among UBS AG, Stamford Branch, Warburg Dillon Read LLC and Agrilink
Foods, Inc.
"Fixed Rate" means a rate of interest per annum equal to the Ten Year
U.S. Treasury Rate (on the first date notice is given to the Administrative
Agent pursuant to Section 2.03(a)(ii) to convert any portion of a Floating Rate
Loan to a Fixed Rate Loan), plus 7.00%.
"Fixed Rate Loans" means Loans described in Section 2.03(a)(ii).
"Floating Rate Loans" means Loans described in Section 2.03(a)(i).
"GAAP" shall mean generally accepted accounting principles set forth in
the 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 that are applicable
to the circumstances as of the date of determination and consistently applied.
"Governmental Body" shall mean the United States of America or any
state or political subdivision thereof, and any other nation or political
subdivision thereof or any agency, department, commission, board, bureau or
instrumentality of any of the foregoing which exercises jurisdiction over the
Parent or any of its Subsidiaries or any of their assets or the conduct of the
business of the Parent or any of its Subsidiaries or any of their assets in any
such jurisdiction.
"Governmental Requirements" shall mean any law, ordinance, order, rule
or regulation of a Governmental Body.
"Guarantee" shall mean the guarantee of each Guarantor pursuant to
Section 4.
"Guarantors" shall mean the Parent and all Subsidiaries of the Parent
(other than the Company) in each instance whether now owned and existing or
hereafter formed or acquired other than (i) Subsidiaries of the Parent whose
aggregate assets, revenues and net income comprise less than 2.00% of the
assets, revenues and net income of the Parent and Subsidiaries taken as a whole
and (ii) Foreign Subsidiaries.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to (i) any interest rate swap agreement, interest rate collar
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in interest rates, (ii) agreements or arrangements
designed to protect such Person against fluctuations in foreign currency
exchange rates in the conduct of its operations, or (iii) any forward contract,
commodity swap agreement, commodity option agreement or other similar agreement
or arrangement designed to protect such Person against fluctuations in commodity
prices, in each case, entered into in the ordinary course of business for bona
fide hedging purposes and not for the purpose of speculation.
"Indebtedness" shall mean and include (but without duplication) all
obligations of the Person in question of the following types, determined in
accordance with GAAP: (i) obligations (whether recourse or non recourse) for
borrowed money or for the deferred purchase price of, or which have been
incurred in connection with the acquisition of, Property other than current
accounts payable, (ii) obligations of others of the type described in clause (i)
secured by any lien or other charge upon Property owned by the Person in
question, even though such Person has not assumed or become liable for the
payment of such obligations, (iii) obligations payable over a period in excess
of one year to acquire Property or to obtain the services of another Person if
the contract requires that payment for such Property or services be made
regardless of whether such Property is delivered or such services are performed,
(iv) Capitalized Rentals of such Person, (v) obligations in respect of letters
of credit and banker's acceptances and (vi) all liabilities of others of the
type referred to in clauses (i), (ii), (iii), (iv) and (v) above which are
directly or indirectly guaranteed by such Person, or as to which it has agreed
(contingently or otherwise) to purchase or otherwise acquire or in respect of
which it has otherwise assured a creditor against loss.
"Indemnitee" shall have the meaning set forth in Section 10.03(b).
"Initial Loan Commitment" and "Initial Loan Commitments" shall have the
meanings set forth in Section 2.01(a).
"Initial Loan" shall have the meaning set forth in Section 2.01(a).
"Initial Notes" shall have the meaning set forth in Section 2.01(d).
"Insolvency or Liquidation Proceeding" shall have the meaning set forth
in Section 11.02.
"Interest Expense" shall mean with reference to any period all interest
charges (excluding amortization of debt discount and debt issuance expense and
interest payable at the option of the obligor in securities of the same ranking
but including imputed interest on Capitalized Leases, except that if and so long
as imputed interest on Capitalized Leases is less than $250,000 per annum it may
be excluded from Interest Expense) accrued for such period, whether or not paid,
all as computed on a consolidated basis for the Parent and its Subsidiaries in
accordance with GAAP except as expressly provided for above.
"Interest Period" shall mean (i) with respect to the Initial Loan, each
period commencing on, in the case of the first Interest Period, the Closing
Date, and thereafter, on the expiry of the immediately preceding Interest
Period, and ending on the numerically corresponding day in the first calendar
month thereafter, and (ii) with respect to the Term Loan, each period commencing
on, in the case of the first Interest Period, the Conversion Date, and
thereafter, on the expiry of the immediately preceding Interest Period, and
ending on the numerically corresponding day in the third calendar month
thereafter; provided that (w) if any Interest Period would otherwise end on a
day which is not a Business Day, that Interest Period shall be extended to the
next succeeding Business Day, unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day; (x) no
Interest Period may extend beyond the final maturity date of the applicable
Loan; (y) the interest rate to be applicable for each Interest Period shall
apply from and including the first day of such Interest Period to but excluding
the last day thereof; and (z) if an Interest Period begins on the last day of a
month or if there is no numerically corresponding day in the month in which an
Interest Period is to end, then such Interest Period shall end on the last
Business Day of such month.
"Investment" shall have the meaning set forth in Annex B.
"Lender" and "Lenders" shall have the meanings set forth in the
introduction to this Agreement.
"Leverage Ratio" shall mean, as of any time the same is to be
determined, the ratio of (a) Consolidated Total Indebtedness (other than
Seasonal Debt and liabilities in respect of undrawn letters of credit supporting
insurance and self insurance obligations of the Company and its Subsidiaries and
supporting payments by the Company and its Subsidiaries for goods and services
in the ordinary course of business) as of such time to (b) EBITDA for the period
of twelve calendar months most recently concluded, with EBITDA for any period
prior to the Acquisition Closing Date computed as though DFVC were then a
Subsidiary and the Company had not owned its asceptic business.
"LIBOR Index Rate" shall mean, for any Interest Period applicable to a
Loan, the rate per annum (rounded upwards, if necessary, to the next higher one
hundred-thousandth of a percentage point) for deposits in Dollars for a period
equal to such Interest Period, which appears on the Telerate Page 3750 as of
11:00 a.m. (London, England time) on the day two Business Days before the
commencement of such Interest Period.
"LIBOR Rate" shall mean for each Interest Period applicable to a Loan,
(a) the LIBOR Index Rate for such Interest Period, if such rate is available,
and (b) if the LIBOR Index Rate cannot be determined, the arithmetic average of
the rates of interest per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) at which deposits in Dollars in immediately available funds are
offered to the Administrative Agent at 11:00 a.m. (London, England time) two (2)
Business Days before the beginning of such Interest Period by three (3) or more
major banks in the interbank eurodollar market selected by the Administrative
Agent for a period equal to such Interest Period and in an amount equal or
comparable to the principal amount of the Loan scheduled to be made by the
Administrative Agent during such Interest Period.
"Loan Documents" shall mean this Agreement, the Notes and each of the
other documents, agreements, instruments, opinions and certificates now or
hereafter executed and delivered in connection herewith or therewith.
"Loan Indebtedness" shall have the meaning set forth in Section 11.01.
"Loan Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time existing,
owing to any Lender or any of its Related Parties or their respective
successors, transferees or assignees pursuant to the terms of any Loan Document,
whether or not the right of such Person to payment in respect of such
obligations and liabilities is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured and whether or not such claim is discharged, stayed or
otherwise affected by any bankruptcy case or insolvency or liquidation
proceeding.
"Loans" shall mean the Initial Loan and the Term Loan.
"Losses" of any Person shall mean the losses, liabilities, claims
(including those based upon negligence, strict or absolute liability and
liability in tort), damages, reasonable expenses, obligations, penalties,
actions, judgments, encumbrances, liens, penalties, fines, suits, reasonable and
documented costs or disbursements of any kind or nature whatsoever (including
reasonable fees and expenses of counsel in connection with any Proceeding
commenced or threatened in writing, whether or not such Person shall be
designated a party thereto) at any time (including following the payment of the
Obligations) incurred by, imposed on or asserted against such Person.
"Majority Lenders" shall mean (i) at any time prior to the Closing
Date, Lenders holding at least a majority of the aggregate amount of the Initial
Loan Commitments, and (ii) at any time after the Closing Date, Lenders holding
at least a majority of the outstanding Loans.
"Marketing Agreement" shall mean the Marketing and Facilitation
Agreement dated as of November 3, 1994 by and between Parent and the Company
(then known as Xxxxxxx-Xxxxx Foods, Inc.) as amended on September 23, 1998, and
as may be further amended as permitted hereby.
"Material Adverse Effect" shall mean a material adverse effect on (i)
the business, property, condition (financial or otherwise), or results of
operations of the Parent and its Subsidiaries taken as a whole, (ii) the ability
of the Parent or any Subsidiary to perform its obligations under the Loan
Documents, or (iii) the validity or enforceability of any of the Loan Documents
or the rights or remedies of the Administrative Agent or of the Lenders
thereunder or of the Marketing Agreement, Stock Purchase Agreement or Asset
Transfer Agreement.
"Maturity Date" shall have the meaning set forth in Section 2.02(d).
"Maximum Cash Interest Rate" means an interest rate of 13.00% per
annum; provided that in computing such interest rate, fees paid to the Lenders
or Agents shall not be deemed an interest payment.
"Merger" shall mean the merger of DFVC with and into the Company, with
the Company being the surviving corporation.
"Net Asset Sale Proceeds" means, with respect to any sale or disposal
of property described in the first sentence of Section 7.13 (an "Asset Sale")
(including the provisos thereto, except that the proviso to clause (vi) shall be
excluded), the proceeds thereof in the form of cash or Cash Equivalents
including payments in respect of deferred payment obligations when received in
the form of cash or Cash Equivalents (except to the extent that such obligations
are financed or sold with recourse to the Parent or any of its Subsidiaries),
net of (i) brokerage commissions and other fees and expenses (including fees and
expenses of legal counsel, accountants and investment banks) related to such
Asset Sale, (ii) provisions for all taxes payable as a result of such Asset Sale
(after taking into account any available tax credits or deductions and any tax
sharing arrangements), (iii) amounts required to be paid to any Person (other
than the Parent or any of its Subsidiaries) owning a beneficial interest in the
properties or assets subject to the Asset Sale or having a lien therein and (iv)
appropriate amounts to be provided by the Parent or any of its Subsidiaries, as
the case may be, as a reserve required in accordance with GAAP against any
liabilities associated with such Asset Sale and retained by the Parent or any of
its Subsidiaries, as the case may be, after such Asset Sale, including, without
limitation, pensions and other postemployment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as reflected in an Officers'
Certificate delivered to the Administrative Agent; provided, however, that any
amounts remaining after adjustments, revaluations or liquidations of such
reserves shall constitute Net Asset Sale Proceeds.
"Net Available Proceeds" shall mean, in the case of any Equity Issuance
or any Debt Issuance, the aggregate amount of all cash received by Parent or any
Subsidiary in respect thereof net of all investment banking fees, discounts and
commissions, legal fees, consulting fees, accountants' fees, underwriting
discounts and commissions and other customary fees and expenses, actually
incurred and satisfactorily documented in connection therewith.
"Net Capital Expenditures" shall mean for any period all sums paid by
the Parent and its Subsidiaries to acquire assets which payments are not to be
treated as expenses in accordance with GAAP less up to $10,000,000 of the net
cash proceeds received by the Parent and its Subsidiaries from the sale or other
disposition of capital assets during the same period, except that Permitted
Acquisitions shall be excluded from Net Capital Expenditures.
"Net Proceeds Deficiency" shall have the meaning set forth in Section
2.05(a)(iii)(4).
"Net Proceeds Offer" shall have the meaning set forth in Section
2.05(a)(iii)(4).
"Non-payment Default" shall have the meaning set forth in Section
11.03(b).
"Note Amount" shall have the meaning set forth in Section
2.05(a)(iii)(4).
"Note Portion of Excess Proceeds" shall have the meaning set forth in
Section 2.05(a)(iii)(4).
"Notes" shall mean the Initial Notes and the Term Notes.
"Notice of Borrowing" shall mean a notice of borrowing substantially in
the form of Exhibit B.
"Notice of Conversion" shall mean a notice of conversion substantially
in the form of Exhibit C.
"Obligation" means any principal, interest (including, in the case of
Senior Indebtedness, interest accruing subsequent to the filing of a petition in
bankruptcy or insolvency at the rate specified in the document relating to such
Senior Indebtedness, whether or not such interest is an allowed claim permitted
to be enforced against the obligor under applicable law), penalties, fees,
indemnification, reimbursements, costs, expenses, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Offer to Purchase" shall mean a written offer (the "Offer") sent by or
on behalf of the Company by first-class mail, postage prepaid, to each Lender at
his notice for address pursuant to Section 10.11 on the date of the Offer
offering to purchase up to the principal amount of Notes specified in such Offer
at the purchase price specified in such Offer. Unless otherwise required by
applicable law, the Offer shall specify an expiration date (the "Expiration
Date") of the Offer to Purchase, which shall be not less than 20 Business Days
nor more than 60 days after the date of such Offer, and a settlement date (the
"Purchase Date") for purchase of Notes to occur no later than five Business Days
after the Expiration Date. The Company shall notify the Administrative Agent at
least 15 Business Days (or such shorter period as is acceptable to the
Administrative Agent) prior to the mailing of the Offer of the Company's
obligation to make an Offer to Purchase, and the Offer shall be mailed by the
Company or, at the Company's request, by the Administrative Agent in the name
and at the expense of the Company. The Offer shall contain information
concerning the business of Parent and its Subsidiaries which the Company in good
faith believes will enable such Lenders to make an informed decision with
respect to the Offer to Purchase (which at a minimum will include (i) the most
recent annual and quarterly consolidated financial statements of Parent and the
Company and a financial analysis substantially similar to a "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
contained in a Form S-1 registration statement filed by an issuer on its behalf
with the Commission (which requirements may be satisfied by delivery of such
documents together with the Offer), (ii) a description of material developments
in Parent's or the Company's business subsequent to the date of the latest of
such financial statements referred to in clause (i) (including a description of
the events requiring the Company to make the Offer to Purchase), (iii) if
applicable, appropriate pro forma financial information concerning the Offer to
Purchase and the events requiring the Company to make the Offer to Purchase and
(iv) any other information required by applicable law to be included therein).
The Offer shall contain all instructions and materials necessary to enable such
Lenders to tender Notes pursuant to the Offer to Purchase. The Offer shall also
state:
(1) the Section of this Agreement pursuant to which the Offer
to Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the outstanding Notes
offered to be purchased by the Company pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such amount
has been determined pursuant to the Section of this Agreement requiring
the Offer to Purchase) (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each
$1,000 aggregate principal amount of Notes accepted for payment (the
"Purchase Price");
(5) the place or places where Notes are to be surrendered for
tender pursuant to the Offer to Purchase;
(6) that interest on any Note not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(7) that on the Purchase Date the Purchase Price will become
due and payable upon each Note being accepted for payment pursuant to
the Offer to Purchase and that interest thereon shall cease to accrue
on and after the Purchase Date;
(8) that each holder electing to tender all or any portion of
a Note pursuant to the Offer to Purchase will be required to surrender
such Note at the place or places specified in the Offer prior to the
close of business on the Expiration Date (such Note being, if the
Company or the Administrative Agent so requires, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to
the Company and the Administrative Agent duly executed by, the holder
thereof or his attorney duly authorized in writing);
(9) that Lenders will be entitled to withdraw all or any
portion of Notes tendered if the Company receives, not later than the
close of business on the fifth Business Day next preceding the
Expiration Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the holder, the principal amount of the Note
the holder tendered, the certificate number of the Note the holder
tendered and a statement that such holder is withdrawing all or a
portion of his tender;
(10) that (a) if Notes in an aggregate principal amount at
maturity less than or equal to the Purchase Amount are duly tendered
and not withdrawn pursuant to the Offer to Purchase, the Company shall
purchase all such Notes and (b) if Notes in an aggregate principal
amount in excess of the Purchase Amount are tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase Notes
having an aggregate principal amount equal to the Purchase Amount on a
pro rata basis (with such adjustments as may be deemed appropriate so
that only Notes in denominations of $1,000 principal amount at maturity
or integral multiples thereof shall be purchased); and
(11) that in the case of any holder whose Note is purchased
only in part, the Company shall execute and deliver to the holder of
such Note without service charge, a new Note or Notes, of any
authorized denomination as requested by such holder, in an aggregate
principal amount equal to and in exchange for the unpurchased portion
of the Note so tendered.
An Offer to Purchase shall be governed by and effected in accordance
with the provisions above pertaining to any Offer.
"Offered Price" shall have the meaning set forth in Section
2.05(a)(iii)(4).
"Officer" shall mean any of the following of the Company: the Chairman
of the Board, the Chief Executive Officer, the Chief Financial Officer, the
President, any Vice President, the Treasurer or the Secretary.
"Officers' Certificate" shall mean a certificate signed by any two
Officers.
"Original Initial Notes" shall have the meaning set forth in Section
2.01(d).
"Original Term Notes" shall have the meaning set forth in Section
2.02(e).
"Other Indebtedness" shall have the meaning set forth in Section
2.05(a)(iii)(4).
"Parent" means Pro-Fac Cooperative, Inc., a New York agricultural
cooperative corporation.
"Participant" shall have the meaning set forth in Section 10.07(c).
"Payment Amount" shall have the meaning set forth in Section
2.05(a)(iii)(4).
"Payment Blockage Notice" shall have the meaning set forth in Section
11.03(b).
"Payment Blockage Period" shall have the meaning set forth in Section
11.03(b).
"Payment Default" shall have the meaning set forth in Section 11.03(a).
"PBGC" shall have the meaning set forth in Section 6.07.
"Permitted Acquisition" shall mean an acquisition permitted by Section
7.10(g).
"Permitted Junior Securities" shall mean any securities of the Company
or a Guarantor provided for by a plan of reorganization or readjustment that are
subordinated in right of payment to all Senior Indebtedness of the Company or
such Guarantor, as the case may be, that may at the time be outstanding to
substantially the same extent as, or to a greater extent than, the Notes or the
Guarantee of such Guarantor, as applicable, are subordinated to Senior
Indebtedness.
"Permitted Liens" prior to the Conversion Date shall have the meaning
set forth in Section 7.08 and on and after the Conversion Date shall have the
meaning set forth in Annex B.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"PIK Interest Amount" shall have the meaning set forth in Section
2.03(b).
"Primary Lender" shall mean UBS AG, Stamford Branch.
"Principal Office" shall mean the principal office of the
Administrative Agent, located on the date hereof at 000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, or such other office as may be designated by the
Administrative Agent.
"Proceeding" shall mean any claim, counterclaim, action, judgment,
suit, hearing, arbitration or proceeding, including by or before any
Governmental Body and whether judicial or administrative.
"Property" shall mean all assets and properties of any nature
whatsoever, whether real or personal, tangible or intangible, including without
limitation intellectual property.
"Refinancing" shall mean the public offering or private placement and
sale by the Company of the Refinancing Securities contemplated by Section 7.23,
in order to refinance, as applicable, the Initial Notes, Term Notes, the
Exchange Notes and all Loan Obligations owing in respect of this Agreement and
the other Loan Documents and all obligations under the Senior Subordinated
Indenture.
"Refinancing Indebtedness" means Indebtedness of the Parent or any of
its Subsidiaries issued in exchange for, or the proceeds from the issuance and
sale or disbursement of which are used substantially concurrently to repay,
redeem, refund, refinance, discharge or otherwise retire for value, in whole or
in part (collectively, "repay"), or constituting an amendment, modification or
supplement to or a deferral or renewal of (collectively, an "amendment"), any
Indebtedness of the Parent or any of its Subsidiaries (the "Refinanced
Indebtedness") in a principal amount not in excess of the principal amount of
the Refinanced Indebtedness (or, if such Refinancing Indebtedness refinances
Indebtedness under a revolving credit facility or other agreement providing a
commitment for subsequent borrowings, with a maximum commitment not to exceed
the maximum commitment under such revolving credit facility or other agreement),
plus the amount of accrued but unpaid interest thereon and the amount of any
reasonably determined prepayment premium necessary to accomplish such
refinancing and such reasonable fees and expenses incurred in connection
therewith; provided that: (i) the Refinancing Indebtedness is the obligation of
the same Person as that of the Refinanced Indebtedness; (ii) if the Refinanced
Indebtedness was subordinated to or pari passu with the Loan Indebtedness, then
such Refinancing Indebtedness, by its terms, is expressly pari passu with (in
the case of Refinanced Indebtedness that was pari passu with) the Loan
Indebtedness, or subordinate in right of payment to (in the case of Refinanced
Indebtedness that was subordinated to) the Loan Indebtedness at least to the
same extent as the Refinanced Indebtedness; (iii) the portion, if any, of the
Refinancing Indebtedness that is scheduled to mature on or prior to the maturity
date of the Initial Loan or the Term Loan, as applicable, has a Weighted Average
Life to Maturity at the time such Refinancing Indebtedness is incurred that is
equal to or greater than the Weighted Average Life to Maturity of the portion of
the Refinanced Indebtedness being repaid that is scheduled to mature on or prior
to the maturity date of the Initial Loan or the Term Loan, as applicable; and
(iv) the Refinancing Indebtedness is secured only to the extent, if at all, and
by the assets (which may include after-acquired assets), that the Refinanced
Indebtedness is secured.
"Refinancing Securities" shall mean the unsecured senior subordinated
notes of the Company or any of its Subsidiaries proposed to be sold in order to
consummate the Refinancing pursuant to Section 7.26.
"Refinancing Securities Demand" shall have the meaning set forth in
Section 7.23.
"Register" shall have the meaning set forth in Section 7.25.
"Registration Rights Agreement" shall mean a registration rights
agreement in the form of the Arrangers customary high yield registration rights
agreement.
"Regulation D" shall mean Regulation D (12 C.F.R. Part 204) of the
Board of Governors of the United States Federal Reserve System.
"Regulations T, U and X" shall mean, respectively, Regulation T (12
C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) and Regulation X (12 C.F.R.
Part 224) of the Board of Governors of the United States Federal Reserve System
(or any successor), as the same may be modified and supplemented and in effect
from time to time.
"Related Business" means any business in which Parent and its
Subsidiaries operate on the Closing Date, or that is closely related to or
complements the business of Parent and its Subsidiaries, as such business exists
on the Closing Date.
"Related Business Investment" means any Investment directly by Parent
or its Subsidiaries in any Related Business.
"Related Parties" shall have the meaning set forth in Section 9.01.
"Rentals" shall mean and include all rents (including such payments
which the lessee is obligated to make to the lessor on termination of the lease
or surrender of the Property) payable by the Parent or its Subsidiaries as
lessee or sub-lessee under a lease or other agreement for the use or possession
of real or personal property but shall be exclusive of any amounts required to
be paid by the Parent or any Subsidiary (whether or not designated as rents or
additional rents) on account of maintenance, repairs, insurance, taxes and
similar charges. Rentals shall be computed for the Parent and Subsidiaries on a
consolidated basis.
"Replaceable Lender" shall have the meaning set forth in Section 3.07.
"Replacement Lender" shall have the meaning set forth in Section 3.07.
"Representative" means, with respect to any Senior Indebtedness, the
indenture trustee or other trustee, agent or other representative(s), if any, of
holders of such Senior Indebtedness.
"Reserve Percentage" shall mean the daily arithmetic average maximum
rate at which reserves (including, without limitation, any supplemental,
marginal and emergency reserves) are imposed on member banks of the Federal
Reserve System during the applicable Interest Period by the Board of Governors
of the Federal Reserve System (or any successor) under Regulation D on
"eurocurrency liabilities" (as such term is defined in Regulation D), subject to
any amendments of such reserve requirement by such Board or its successor,
taking into account any transitional adjustments thereto. For purposes of this
definition, the Loans shall be deemed to be eurocurrency liabilities as defined
in Regulation D without benefit or credit for any prorations, exemptions or
offsets under Regulation D. The Adjusted LIBOR Rate shall automatically be
adjusted as of the date of any change in the Reserve Percentage.
"Revolving Loan Facility" means the revolving loan facility provided
under the Senior Credit Facility.
"Sale and Leaseback Transaction" shall have the meaning set forth in
Annex B.
"Seasonal Debt" shall mean Indebtedness for money borrowed of the
Parent and its Subsidiaries (computed on a consolidated basis) incurred to meet
their seasonal working capital needs; provided that (i) no Indebtedness shall be
treated as Seasonal Debt during the last fiscal quarter of each fiscal year and
(ii) the aggregate amount of Indebtedness included in Seasonal Debt as of the
last day of each first fiscal quarter of the Parent (ending on or about
September 30) shall not exceed $150,000,000, the aggregate amount of
Indebtedness included in Seasonal Debt as of the last day of the second fiscal
quarter of the Parent (ending on or about December 31 of each year) shall not
exceed $175,000,000 and the aggregate amount of Indebtedness included in
Seasonal Debt as of the last day of the third fiscal quarter of the Parent
(ending on or about March 31 of each year) shall not exceed $125,000,000.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Senior Credit Facility" means the Credit Agreement, dated as of
September 23, 1998, by and among the Company, Parent, the other Guarantors,
Xxxxxx Trust and Savings Bank, individually and as Administrative Agent, Bank of
Montreal, Chicago Branch, individually and as Syndication Agent, and the other
lenders party thereto, together with any guarantees, security agreements or
other collateral documents and any other related documents, as any of the
foregoing may be subsequently amended, restated, refinanced, or replaced from
time to time, and shall include agreements in respect of Hedging Obligations
designed to protect against fluctuations in interest rates and entered into with
respect to loans thereunder.
"Senior Indebtedness" shall mean all Indebtedness and other Obligations
specified below payable directly or indirectly by the Company or any Guarantor,
as the case may be, whether outstanding on the Closing Date or thereafter
created, incurred or assumed by the Company or such Guarantor: (i) the principal
of and interest on and all other Indebtedness and Obligations related to the
Senior Credit Facility (including, without limitation, all loans, letters of
credit and unpaid drawings with respect thereto and other extensions of credit
under the Senior Credit Facility, and all expenses, fees, reimbursements,
indemnities and other amounts owing pursuant to the Senior Credit Facility),
(ii) amounts payable in respect of any Hedging Obligations, (iii) in addition to
the amounts described in (i) and (ii), all Indebtedness not prohibited by, if
incurred prior to the Conversion Date, Section 7.09, and if incurred on or after
the Conversion Date, Section A-1 of Annex A, that is not expressly pari passu
with, or subordinated to, the Notes or the Guarantees, as the case may be, (iv)
all Capitalized Rentals outstanding on the Closing Date, and (v) all Refinancing
Indebtedness permitted under this Agreement of Indebtedness specified in clauses
(i) through (iv). Notwithstanding anything to the contrary, Senior Indebtedness
will not include (a) any Indebtedness which by the express terms of the
agreement or instrument creating, evidencing or governing the same is junior or
subordinate in right of payment to any item of Senior Indebtedness, (b) any
trade payable arising from the purchase of goods or materials or for services
obtained in the ordinary course of business, (c) Indebtedness incurred (but only
to the extent incurred) in violation of this Agreement as in effect at the time
of the respective incurrence, (d) any Indebtedness of the Company that, when
incurred, was without recourse to the Company, (e) any Indebtedness to any
employee of the Company or any of its respective Subsidiaries, (f) any liability
for taxes owned or owing by the Company, (g) any Indebtedness represented by the
Existing Notes and any guarantee thereof by any Guarantor or (h) any
Subordinated Debt. Indebtedness represented by the Existing Notes and any
guarantee thereof by any Guarantor shall be pari passu with the Loans and Notes
and the Guarantees, respectively.
"Senior Subordinated Indenture" shall mean an indenture between the
Company and a trustee substantially in the form of the Arranger's customary high
yield indenture (which shall include guarantees by the Guarantors of the
Exchange Notes), modified as appropriate for the Exchange Notes and having
principal negative covenants substantially identical to the covenants set forth
in Annex A, principal events of default substantially identical to Section 8 and
subordination provisions substantially identical to Section 11 (with such
changes therein as the Majority Lenders (which consent shall be conclusively
deemed given if a Lender does not object to the draft thereof within five
Business Days of receipt thereof) and the Company shall approve, and, at such
time as notes issued thereunder are sold in a public offering, with other
appropriate changes to reflect such public offering), as the same may at any
time be amended, modified and supplemented and in effect.
"Stock Purchase Agreement" shall mean the Stock Purchase Agreement
dated as of July 24, 1998 by and between Xxxx Foods and the Company as amended
as permitted hereby.
"Subordinated Debt" shall mean any Indebtedness of the Company and
guaranties thereof by the Guarantors which are subject to and subordinate in
right of payment to the prior payment of the Parent's and its Subsidiaries'
indebtedness and obligations under the Loan Documents pursuant to written
subordination provisions and having other terms and conditions acceptable to the
Majority Lenders, including without limitation the Subordinated Promissory Note
issued by the Company to Xxxx Foods in connection with the Acquisition in the
principal amount of $30,000,000, and additional notes issued in accordance with
the terms thereof.
"Subsequent Initial Note" shall have the meaning set forth in Section
2.01(d).
"Subsequent Term Note" shall have the meaning set forth in Section
2.02(e).
"Subsidiary" shall mean, any corporation or other entity of which more
than fifty percent (50%) of the outstanding stock or comparable equity interests
having ordinary voting power for the election of the Board of Directors of such
corporation or similar governing body in the case of a non-corporation
(irrespective of whether or not, at the time, stock or other equity interests of
any other class or classes of such corporation or other entity shall have or
might have voting power by reason of the happening of any contingency which has
not occurred) is at the time directly or indirectly owned by the Person in
question or by one or more of its Subsidiaries. Unless the context otherwise
requires, references herein to Subsidiaries shall be references to Subsidiaries
of the Parent.
"Take-Out Bank" shall mean Warburg Dillon Read LLC.
"Telerate Page 3750" shall mean the display designated as "Page 3750"
on the Telerate Servce (or such other page as may replace Page 3750 on that
service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for Dollar deposits).
"Ten Year U.S. Treasury Rate" means the average of the annual yield
rate, on the date to which such Ten Year U.S. Treasury Rate relates, of the
three actively traded U.S. Treasury securities having a remaining duration to
maturity closest to ten years, as such rate is published under "Treasury
Constant Maturities" in Federal Reserve Statistical Release H.15(519).
"Term Loan Commitment" shall have the meaning set forth in Section
2.02(a).
"Term Notes" shall have the meaning set forth in Section 2.02(e).
"Term Loan" shall have the meaning set forth in Section 2.02(a).
"Term Loan Facilities" means the term loan facilities provided under
the Senior Credit Facility.
"Weighted Average Life to Maturity," when applied to any Indebtedness
at any date, means the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment by (ii) the then outstanding principal
amount of such Indebtedness.
"Withholding Taxes" shall have the meaning set forth in Section 3.06.
"Year 2000 Problem" shall mean any significant risk that computer
hardware, software, or equipment containing embedded microchips essential to the
business or operations of the Parent or any of its Subsidiaries will not, in the
case of dates or time periods occurring after December 31, 1999, function at
least as efficiently and reliably as in the case of times or time periods
occurring before January 1, 2000, including the making of accurate leap year
calculations.
1.02 Accounting Terms. For purposes of this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to such
terms in conformity with GAAP. Financial statements and other information
furnished to the Administrative Agent pursuant to Section 7.05 shall be prepared
in accordance with GAAP (as in effect at the time of such preparation) on a
consistent basis. In the event any Accounting Changes (as defined below) shall
occur and such changes affect financial covenants, standards or terms in this
Agreement, then the Parent, the Company, the Administrative Agent and the
Lenders agree to enter into negotiations in order to amend such provisions of
this Agreement so as to equitably reflect such Accounting Changes with the
desired result that the criteria for evaluating the financial condition of the
Parent and its Subsidiaries shall be the same after such Accounting Changes as
if such Accounting Changes had not been made, and until such time as such an
amendment shall have been executed and delivered by the Company, the Guarantors
and the Majority Lenders, (A) all financial covenants, standards and terms in
this Agreement shall be calculated and/or construed as if such Accounting
Changes had not been made, and (B) the Company shall prepare footnotes to each
compliance certificate and the financial statements required to be delivered
hereunder that show the differences between the financial statements delivered
(which reflect such Accounting Changes) and the basis for calculating financial
covenant compliance (without reflecting such Accounting Changes). "Accounting
Changes" means: (a) changes in accounting principles required by GAAP since the
close of the Parent's 1998 fiscal year and implemented by the Parent or any of
its Subsidiaries; (b) changes in accounting principles recommended by certified
public accountants of the Parent' or any of its Subsidiaries; and (c) changes in
carrying value of the Parent's (or any of its Subsidiaries') assets, liabilities
or equity accounts resulting from the application of purchase accounting
principles. All references herein to fiscal years, fiscal quarters or fiscal
periods shall, unless the context otherwise requires, be references to fiscal
years, fiscal quarters or fiscal periods of the Parent.
1.03. Rules of Construction.
(a) In this Agreement and each other Loan Document, unless the
context clearly requires otherwise (or such other Loan Document clearly
provides otherwise), references to (i) the plural include the singular,
the singular the plural and the part the whole; (ii) Persons include
their respective permitted successors and assigns or, in the case of
governmental Persons, Persons succeeding to the relevant functions of
such Persons; (iii) agreements (including this Agreement), promissory
notes and other contractual instruments include subsequent amendments,
assignments, and other modifications thereto, but only to the extent
such amendments, assignments or other modifications thereto are not
prohibited by their terms or the terms of any Loan Document; (iv)
statutes and related regulations include any amendments of same and any
successor statutes and regulations; and (v) time shall be a reference
to New York City time. Where any provision herein refers to action to
be taken by any Person, or which such Person is prohibited from taking,
such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(b) In this Agreement and each other Loan Document, unless the
context clearly requires otherwise (or such other Loan Document clearly
provides otherwise), (i) "amend" shall mean "amend, restate, amend and
restate, supplement or modify"; and "amended," "amending," and
"amendment" shall have meanings correlative to the foregoing; (ii) in
the computation of periods of time from a specified date to a later
specified date, "from" shall mean "from and including"; "to" and
"until" shall mean "to but excluding"; and "through" shall mean "to and
including"; (iii) "hereof," "herein" and "hereunder" (and
similar terms) in this Agreement or any other Loan Document refer to
this Agreement or such other Loan Document, as the case may be, as a
whole and not to any particular provision of this Agreement or such
other Loan Document; (iv) "including" (and similar terms) shall mean
"including without limitation" (and similarly for similar terms); (v)
"or" has the inclusive meaning represented by the phrase "and/or"; (vi)
"satisfactory to" any Lender or Agent shall mean in form, scope and
substance and on terms and conditions satisfactory to such Lender or
Agent; (vii) references to "the date hereof" shall mean the date first
set forth above; and (viii) "asset" and "Property" shall have the same
meaning and effect and refer to all tangible and intangible assets and
property, whether real, personal or mixed and of every type and
description.
(c) In this Agreement unless the context clearly requires
otherwise, any reference to (i) an Annex, Exhibit or Schedule is to an
Annex, Exhibit or Schedule, as the case may be, attached to this
Agreement and constituting a part hereof, and (ii) a Section or other
subdivision is to a Section or such other subdivision of this
Agreement.
(d) No doctrine of construction of ambiguities in agreements
or instruments against the interests of the party controlling the
drafting thereof shall apply to any Loan Document.
Section 2. Amount and Terms of Loan Commitment and Loans; Notes.
2.01. Initial Loan and Initial Notes.
(a) Initial Loan Commitment. Subject to the terms and
conditions of this Agreement and in reliance upon the representations
and warranties of the Company and Parent herein set forth, the Lenders
hereby severally agree to lend to the Company on the Closing Date
$200,000,000 in the aggregate (the "Initial Loan"), each such Lender
committing to lend the amount set forth next to such Lender's name on
the signature pages hereto. The Lenders' commitments to make the
Initial Loan to the Company pursuant to this Section 2.01(a) are herein
called individually, the "Initial Loan Commitment" and collectively,
the "Initial Loan Commitments."
(b) Notice of Borrowing. When the Company desires to borrow
under this Section 2.01, it shall deliver to the Administrative Agent a
Notice of Borrowing no later than 11:00 A.M. (New York time), at least
three Business Days in advance of the Closing Date or such later date
as shall be agreed to by the Administrative Agent. The Notice of
Borrowing shall specify the applicable date of borrowing (which shall
be a Business Day). Upon receipt of such Notice of Borrowing, the
Administrative Agent shall promptly notify each Lender of its share of
the Initial Loan and the other matters covered by the Notice of
Borrowing.
(c) Disbursement of Funds. (i) No later than 12:00 Noon (New
York time) on the Closing Date, each Lender will make available its pro
rata share of the Initial Loan requested to be made on such date in the
manner provided below. All amounts shall be made available to the
Administrative Agent in Dollars and immediately available funds at the
Principal Office and the Administrative Agent promptly will make
available to the Company by depositing to its account at the Principal
Office the aggregate of the amounts so made available in the type of
funds received. Unless the Administrative Agent shall have been
notified by any Lender prior to the Closing Date that such Lender does
not intend to make available to the Administrative Agent its portion of
the
Initial Loan to be made on such date, the Administrative Agent may
assume that such Lender has made such amount available to the
Administrative Agent on such date, and the Administrative Agent, in
reliance upon such assumption, may (in its sole discretion and without
any obligation to do so) make available to the Company a corresponding
amount. If such corresponding amount is not in fact made available to
the Administrative Agent by such Lender and the Administrative Agent
has made available the same to the Company, the Administrative Agent
shall be entitled to recover such corresponding amount from such
Lender. If such Lender does not pay such corresponding amount forthwith
upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the Company, and the Company shall
immediately pay such corresponding amount to the Administrative Agent.
The Administrative Agent shall also be entitled to recover from the
Lender or the Company, as the case may be, interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to
the Company to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by such
Lender, the overnight Federal Funds Rate or (y) if paid by the Company,
the then applicable rate of interest on the Loans.
(ii) Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its Initial Loan
Commitment hereunder or to prejudice any rights which the
Company may have against any Lender as a result of any default
by such Lender hereunder.
(d) Initial Notes. The Company shall execute and deliver to
each Lender on the Closing Date an Initial Note dated the Closing Date
substantially in the form of Exhibit A-1 annexed hereto to evidence the
portion of the Initial Loan made on such date by such Lender and with
appropriate insertions ("Original Initial Notes"). On each interest
payment date prior to the Conversion Date on which the Company elects
to pay a PIK Interest Amount pursuant to Section 2.03(b), the Company
shall execute and deliver to each Lender on such interest payment date
an Initial Note dated such interest payment date substantially in the
form of Exhibit A-1 annexed hereto in a principal amount equal to such
Lender's pro rata portion of such PIK Interest Amount and with other
appropriate insertions (each a "Subsequent Initial Note" and, together
with the Original Initial Notes, the "Initial Notes"). A Subsequent
Initial Note shall bear interest from the date of its issuance at the
same rate borne by all Initial Notes.
(e) Scheduled Payment of Initial Loan. Subject to Section
2.02, the Company shall pay in full the outstanding amount of the
Initial Loan and all other Loan Obligations owing hereunder no later
than the Conversion Date unless the Initial Loan is converted into a
Term Loan.
(f) Termination of Initial Loan Commitment. The Initial Loan
Commitments hereunder shall terminate on the earlier of (i) the date on
which the Stock Purchase Agreement is terminated in accordance with its
terms or (ii) October 31, 1998, if the Initial Loan is not made on or
before such date. The Company shall have the right, without premium or
penalty, to reduce or terminate the Initial Loan Commitment of the
Lenders hereunder at any time.
(g) Pro Rata Borrowings. The Initial Loan made under this
Agreement shall be made by the Lenders pro rata on the basis of their
respective Initial Loan Commitments. It is understood that no Lender
shall be responsible for any default by any other Lender of its
obligation to make its portion of the Initial Loan hereunder and that
each Lender shall be obligated to make its portion of the Initial Loan
hereunder, regardless of the failure of any other Lender to fulfill its
commitments hereunder.
2.02. Term Loan and Term Notes.
(a) Term Loan Commitment. Subject to the terms and conditions
of this Agreement and in reliance upon the representations and
warranties of the Company and Parent herein set forth, the Lenders
hereby severally agree, on the Conversion Date, upon the request of the
Company, to convert the then outstanding principal amount of the
Initial Notes into a term loan (the "Term Loan"), such Term Loan to be
in the aggregate principal amount of the then outstanding principal
amount of the Initial Notes. The Lenders' commitments under this
Section 2.02(a) are herein called collectively, the "Term Loan
Commitment."
(b) Notice of Conversion/Borrowing. If the Company has not
repaid the Initial Loan in full on or prior to the Conversion Date,
then the Company shall convert the then outstanding principal amount of
the Initial Notes into a Term Loan under this Section 2.02. The Company
shall deliver to the Lenders a Notice of Conversion no later than 11:00
A.M. (New York time), at least two Business Days in advance of the
Conversion Date. The Notice of Conversion shall specify the principal
amount of the Initial Notes outstanding on the Conversion Date to be
converted into a Term Loan.
(c) Making of Term Loan. Upon satisfaction or waiver of the
conditions precedent specified in Section 5.02 hereof, each Lender
shall extend to the Company the Term Loan to be issued on the
Conversion Date by such Lender by cancelling on its records a
corresponding principal amount of the Initial Notes held by such
Lender.
(d) Maturity of Term Loan. The Term Loan shall mature and the
Company shall pay in full the outstanding principal amount thereof and
accrued interest thereon on September 23, 2006 (the "Maturity Date").
(e) Term Notes. The Company shall execute and deliver to each
Lender on the Conversion Date a Term Note dated the Conversion Date
substantially in the form of Exhibit A-2 annexed hereto to evidence the
Term Loan made on such date, in the principal amount of the Initial
Notes held by such Lender on such date and with other appropriate
insertions (collectively the "Original Term Notes"). On or after the
Conversion Date, on each interest payment date on which the Company
elects to pay a PIK Interest Amount pursuant to Section 2.03(b), the
Company shall execute and deliver to each Lender on such interest
payment date a Term Note dated such interest payment date substantially
in the form of Exhibit A-2 annexed hereto in a principal amount equal
to such Lender's pro rata portion of such PIK Interest Amount and with
other appropriate insertions (each a "Subsequent Term Note" and,
together with the Original Term Notes, the "Term Notes"). A Subsequent
Term Note shall bear interest from the date of its issuance at the same
rate borne by all Term Notes.
2.03. Interest on the Loans.
(a) Rate of Interest. The Loans shall bear interest on the
unpaid principal amount thereof from the date made through maturity
(whether by prepayment, acceleration or otherwise) at a rate determined
as set forth below.
(i) Floating Rate Loans. Subject to Section
2.03(a)(ii), the Loans shall bear interest for each Interest
Period at a rate per annum equal to the Adjusted LIBOR Rate
for such Interest Period, plus the Applicable Spread.
(ii) Fixed Rate Loans. At any time on or after the
Conversion Date, at the request of any Lender, all or any
portion of the Term Loan owing to such Lender shall bear
interest at a fixed rate per annum equal to the Fixed Rate,
effective as of the first interest payment date with respect
to such Term Loan after such notice so long as the 10 Business
Days' notice set forth below is given; provided that no such
conversion shall be permitted in respect of amounts to be
voluntarily prepaid following receipt of a notice of
prepayment pursuant to Section 2.05(a)(ii). In order to
request the conversion of a Floating Rate Loan to a Fixed Rate
Loan, the Lender shall notify the Administrative Agent in
writing of its intention to do so at least 10 Business Days
prior to an interest payment date indicating the amount of the
Term Loan for which it is requesting conversion to a Fixed
Rate Loan, which shall be not less than $5,000,000 and
increments of $500,000 in excess thereof (or, in the case any
Lender holds a Term Loan with an outstanding amount less than
$5,000,000, such remaining amount), and the Administrative
Agent shall so notify the Company in writing at least five
Business Days prior to such next succeeding interest payment
date. Upon the conversion of a portion of a Floating Rate Loan
to a Fixed Rate Loan an appropriate notation will be made on
the Term Note and, on and after the first interest payment
date following the receipt by the Company of the notice
referenced in the preceding sentence, such portion of the Term
Loan which is converted to a Fixed Rate Loan shall bear
interest at the Fixed Rate until repaid.
(iii) Notwithstanding clause (i) or (ii) of this
Section 2.03(a) or any other provision herein, in no event
will the combined sum of interest (cash or otherwise) on the
Loans exceed 16.00% per annum.
(b) Interest Payments. Interest shall be payable (i) with
respect to the Initial Loan, in arrears on the 23nd day of each
calendar month and upon any prepayment of the Initial Loan (to the
extent accrued on the amount being prepaid) and at maturity of the
Initial Loan in respect of any amounts paid on such date and not
converted to Term Loans and (ii) with respect to the Term Loan, in
arrears on each March 23, June 23, September 23 and December 23 of each
year, commencing on the first of such dates to follow the Conversion
Date, upon any prepayment of the Term Loan (to the extent accrued on
the amount being prepaid) and at maturity of the Term Loan; provided,
however, that if, on any interest payment date, the interest rate borne
by the Initial Loan or the Term Loan, as the case may be, exceeds the
Maximum Cash Interest Rate, the Company may pay all or a portion of the
interest payable (other than interest payable on the Maturity Date) in
excess of the amount of interest that would be payable on such date at
the Maximum Cash Interest Rate by issuance of Subsequent Initial
Notes or Subsequent Term Notes, as the case may be, in an aggregate
principal amount equal to the amount of such excess (the "PIK Interest
Amount").
(c) Post-Maturity Interest. Any principal payments on the
Loans not paid when due and, to the extent permitted by applicable law,
any interest payment on the Loans not paid when due, in each case
whether at stated maturity, by notice of prepayment, by acceleration or
otherwise, shall thereafter bear interest payable upon demand at a rate
which is 2.00% per annum in excess of the rate of interest otherwise
payable under this Agreement for the Loans. Interest payable pursuant
to this Section 2.03(c) shall not be included for purposes of
determining whether the interest on the Loans exceeds the amount set
forth in Section 2.03(a)(iii) or the amount set forth in the proviso to
Section 2.03(b).
(d) Computation of Interest. Interest on the Loans shall be
computed on the basis of a 360-day year and, with respect to any amount
of the Loans which are Floating Rate Loans, the actual number of days
elapsed in the period during which it accrues or, with respect to any
amount of the Loans which are Fixed Rate Loans, twelve 30-day months.
In computing interest on the Loans, the date of the making of the Loans
shall be included and the date of payment shall be excluded; provided,
however, that if a Loan is repaid on the same day on which it is made,
one day's interest shall be paid on that Loan.
2.04. Fees.
(a) In the event that the Initial Loan is converted into the
Term Loan pursuant to Section 2.02, the Company shall pay to the
Lenders, pro rata in accordance with their respective principal amount
of the Initial Notes then outstanding, on the Conversion Date, a fee
equal to 6.00% of the initial principal amount of the Term Loan.
(b) On each anniversary of the Conversion Date, the Company
shall pay to the Lenders, pro rata in accordance with their respective
principal amount of the Term Notes then outstanding, a fee equal to
1.00% of the aggregate principal amount of the Term Notes then
outstanding.
(c) The Company agrees to pay to the Agents all fees and other
obligations in accordance with, and at the times specified by, the Fee
Letter.
2.05. Prepayments.
(a) Prepayments.
(i) Voluntary Prepayments of Initial Loan. The
Company may, upon not less than three Business Days' prior
written or telephonic notice confirmed in writing to the
Administrative Agent at any time and from time to time, prepay
the Initial Loan, in whole or in part, in an aggregate minimum
amount of $500,000 and integral multiples of $100,000 in
excess of such amount, at a prepayment price of 100% of the
principal amount thereof, plus accrued and unpaid interest
thereon to the date of prepayment.
Notice of prepayment having been given as aforesaid, the principal
amount of the Loans to be prepaid shall become due and payable on the prepayment
date. Amounts of the Loans so prepaid may not be reborrowed.
(ii) Voluntary Prepayments of Term Loan.
(1) Optional Prepayment. Except as provided in this Section
2.05(a)(ii), the Company may not prepay the Term Loan prior to
September 23, 2003. The Company may, upon not less than 20 Business
Days' prior written or telephonic notice confirmed in writing to the
Administrative Agent at any time and from time to time on and after
September 23, 2003, prepay the Term Loan, in whole or in part, in an
aggregate minimum amount of $500,000 and integral multiples of $100,000
in excess of such amount, at a prepayment price of 100% of the
principal amount thereof, plus a premium equal to, for each Lender, the
interest rate in effect on such Lender's portion of the Term Loan on
the date notice of prepayment is given multiplied by the following
factor, plus accrued and unpaid interest thereon, if any, to the date
of prepayment, if prepaid during the twelve-month period commencing on
September 23 of the year set forth below:
Year Premium Factor
2003.......................... 1/2
2004.......................... 1/3
2005.......................... 1/6
2006 and thereafter........... 0
(2) Optional Prepayment upon Equity Offering. Notwithstanding
the foregoing, at any time on or before September 23, 2001, the Company
may prepay up to an aggregate principal amount of the Term Loan equal
to 35% of the aggregate principal amount of the Term Loan outstanding
on the Conversion Date at a prepayment price equal to the principal
amount of the Term Loan so prepaid, plus a premium equal to, for each
Lender, the rate of interest in effect on such Lender's portion of the
Term Loan on the date notice of prepayment is given, plus accrued and
unpaid interest thereon, if any, to the prepayment date with the net
cash proceeds of one or more Equity Offerings; provided, however, that
(a) at least an aggregate principal amount of the Term Loan equal to
65% of the aggregate principal amount of the Term Loan outstanding on
the Conversion Date would remain outstanding immediately after giving
effect to any such prepayment; and (b) such prepayment occurs within 60
days of the date of the closing of any such Equity Offering.
(3) Pro Rata Prepayment Under Senior Subordinated Indenture.
If any Exchange Notes are outstanding, any prepayment pursuant to
Section 2.05(a)(ii)(1) or (2) shall be made pro rata with an optional
redemption of Exchange Notes under the Senior Subordinated Indenture.
Notice of prepayment having been given as aforesaid, the principal
amount of the Term Loan to be prepaid shall become due and payable on the
prepayment date. Amounts of the Term Loan so prepaid may not be reborrowed.
(iii) Mandatory Prepayments. The Company shall prepay the
Initial Loan or Term Loan as follows:
(1) Mandatory Prepayment of Initial Loan upon Equity
Issuance. Upon any Equity Issuance after the Closing Date, the
Initial Loan shall be prepaid in an aggregate principal amount
equal to 100% of the Net Available Proceeds of such Equity
Issuance.
(2) Mandatory Prepayment of Initial Loan upon Debt
Issuance. Upon any Debt Issuance (other than Revolving Credit
Loans under the Senior Credit Facility (without giving effect
to any increases thereof) and Indebtedness incurred pursuant
to Section 7.09(e) and 7.09(h)) after the Closing Date, the
Initial Loan shall be prepaid in an aggregate principal amount
equal to 100% of the Net Available Proceeds of such Debt
Issuance.
(3) Mandatory Offer to Purchase Term Notes on Change
of Control. (A) Following the occurrence of a Change of
Control on or after the Conversion Date (the date of such
occurrence being the "Change of Control Date"), the Company
shall notify the Administrative Agent and the Lenders of such
occurrence in the manner prescribed by this Agreement and
shall, within 30 days after the Change of Control Date, make
an Offer to Purchase (the "Change of Control Offer") for all
Term Notes then outstanding, at a purchase price in cash equal
to 101% of the aggregate principal amount thereof, plus
accrued and unpaid interest thereon, if any, to the Purchase
Date. Each Lender shall be entitled to tender all or any
portion of the Term Notes owned by such Lender pursuant to the
Change of Control Offer, subject to the requirement that any
portion of a Term Note tendered must be tendered in an
integral multiple of $1,000 principal amount.
(B) On or prior to the Purchase Date specified in the Change
of Control Offer, the Company shall (i) accept for payment all Term
Notes or portions thereof validly tendered pursuant to the Change of
Control Offer, (ii) deposit with the Administrative Agent money
sufficient to pay the Purchase Price of all Term Notes or portions
thereof so accepted and (iii) deliver or cause to be delivered to the
Administrative Agent an Officers' Certificate stating the Term Notes or
portions thereof accepted for payment by the Company. The
Administrative Agent shall promptly mail or deliver to Lenders whose
Term Notes are so accepted payment in an amount equal to the Purchase
Price for such Term Notes, and the Administrative Agent shall promptly
mail or deliver to each Lender a new Term Note equal in principal
amount to any unpurchased portion of the Term Note surrendered as
requested by the Lender. Any Term Note not accepted for payment shall
be promptly mailed or delivered by the Company to the Lender thereof.
(4) Mandatory Offer to Purchase Initial Notes and
Term Notes on Asset Sale. If Parent or any Subsidiary engages
in an Asset Sale (as
defined in the definition of Net Asset Sale Proceeds), Parent
or any Subsidiary shall, no later than 270 days after such
Asset Sale (a) apply all or any of the Net Asset Sale Proceeds
therefrom to repay amounts outstanding under the Senior Credit
Facility or any other Senior Indebtedness; provided, in each
case, that the related loan commitment (if any) of any
Indebtedness constituting revolving credit debt is thereby
permanently reduced by the amount of such Indebtedness so
repaid; and/or (b) invest all or any part of the Net Asset
Sale Proceeds thereof in the purchase of fixed assets to be
used by the Parent and its Subsidiaries in a Related Business
(together with any short-term assets incidental thereto), or
the making of a Related Business Investment. The amount of
such Net Asset Sale Proceeds not applied or invested as
provided in this paragraph will constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds equals or exceed
$10.0 million, the Company will be required to make an Offer to
Purchase, from all holders of the Initial Notes or Term Notes then
outstanding, as the case may be, an aggregate principal amount of
Initial Notes or Term Notes, as applicable, equal to the amount of such
Excess Proceeds as follows:
(i) The Company will make an Offer to Purchase (a "Net
Proceeds Offer") from all holders of the Notes the maximum principal
amount (expressed as a multiple of $1,000) of Notes that may be
purchased out of the amount (the "Payment Amount") of such Excess
Proceeds.
(ii) The offer price for the Notes will be payable in cash in
an amount equal to 100% of the principal amount of the Notes tendered
pursuant to a Net Proceeds Offer, plus accrued and unpaid interest, if
any, to the Purchase Date. To the extent that the aggregate Purchase
Price of Notes tendered pursuant to a Net Proceeds Offer is less than
the Payment Amount relating thereto (such shortfall constituting a "Net
Proceeds Deficiency"), the Company may use such Net Proceeds
Deficiency, or a portion thereof, for general corporate purposes,
subject to the limitations herein.
(iii) If the aggregate Purchase Price of Notes validly tendered
and not withdrawn by holders thereof exceeds the Payment Amount, Notes
to be purchased will be selected on a pro rata basis.
(iv) Upon completion of such Net Proceeds Offer in accordance
with the foregoing provisions, the amount of Excess Proceeds in respect
of such Net Proceeds Offer shall be deemed to be zero.
(v) On or prior to the Purchase Date specified in the Net
Proceeds Offer, the Company shall (i) accept for payment all Notes or
portions thereof validly tendered pursuant to the Net Proceeds Offer,
(ii) deposit with the Administrative Agent money sufficient to pay the
Purchase Price of all Notes or portions thereof so accepted and (iii)
deliver or cause to be delivered to the Administrative Agent an
Officers' Certificate stating the Notes or portions thereof accepted
for payment by the Company. The Administrative Agent shall promptly
mail or deliver to Lenders whose Notes are so accepted payment in an
amount equal to the Purchase Price for such Notes, and the
Administrative Agent shall promptly mail or deliver to each Lender a
new Note equal in principal amount to any unpurchased portion of the
Note surrendered as requested by the Lender. Any Note not accepted for
payment shall be promptly mailed or delivered by the Company to the
Lender thereof.
Notwithstanding the foregoing, in the event that any other
Indebtedness of the Company which ranks pari passu with the Notes (the
"Other Indebtedness") requires an offer to purchase to be made to
repurchase such Other Indebtedness upon the consummation of an Asset
Sale, the Company may apply the Excess Proceeds otherwise required to
be applied to a Net Proceeds Offer to offer to purchase such Other
Indebtedness and to a Net Proceeds Offer so long as the amount of such
Excess Proceeds applied to purchase the Notes is not less than the Note
Portion of Excess Proceeds. With respect to any Excess Proceeds, the
Company shall make the Net Proceeds Offer in respect thereof at the
same time as the analogous offer to purchase is made pursuant to any
Other Indebtedness and the purchase date in respect of the Net Proceeds
Offer shall be the same as the purchase date in respect of the offer to
purchase pursuant to such Other Indebtedness.
For purposes of this covenant, "Note Portion of Excess
Proceeds," in respect of a Net Proceeds Offer, means (1) if no Other
Indebtedness is concurrently being offered to be purchased, the amount
of the Excess Proceeds in respect of such Net Proceeds Offer and (2) if
Other Indebtedness is concurrently being offered to be purchased, an
amount equal to the product of (x) the Excess Proceeds in respect of
such Net Proceeds Offer and (y) a fraction the numerator of which is
the principal amount of all Notes tendered pursuant to such Net
Proceeds Offer (the "Note Amount") and the denominator of which is the
sum of the Note Amount and the lesser of the aggregate principal face
amount or accreted value as of the relevant purchase date of all Other
Indebtedness tendered pursuant to a concurrent offer to purchase such
Other Indebtedness made at the time of such Net Proceeds Offer.
(5) Prepayments from Issuances of Refinancing Securities.
Concurrently with the receipt by the Company of proceeds from the
issuance of Refinancing Securities, the Company shall prepay the Loans
in a principal amount equal to the lesser of the proceeds thereof (net
of expenses payable by the Company to any Person other than an
Affiliate of the Company in connection with the issuance thereof) or
the aggregate principal amount of the Notes then outstanding.
(b) Notice. The Company shall notify the Agent of any
prepayment to be made pursuant to Section 2.05(a)(i), (ii) or
(iii) at least two Business Days prior to such prepayment date
(unless shorter notice is satisfactory to the Majority
Lenders).
(c) Company's Mandatory Prepayment Obligation;
Application of Prepayments. All prepayments shall include
payment of accrued interest on the principal amount so prepaid
and shall be applied to payment of interest before application
to principal.
2.06. Manner and Time of Payment
(a) All payments of principal and interest hereunder and under
the Notes by the Company shall be made without defense, set-off or
counterclaim and in same-day funds and delivered to the Administrative
Agent, unless otherwise specified, not later than 12:00 Noon (New York
time) on the date due at the Principal Office for the account of the
Lenders; funds received by the Administrative Agent after that time
shall be deemed to have been paid by the Company on the next succeeding
Business Day. The Company hereby authorizes the Administrative Agent to
charge its account with the Administrative Agent in order to cause
timely payment to be made of all principal, interest and fees due
hereunder (subject to sufficient funds being available in its account
for that purpose).
(b) Payments on Non-Business Days. Whenever any payment to be
made hereunder or under the Notes shall be stated to be due on a day
which 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 the Notes
or of the commitment and other fees hereunder, as the case may be.
(c) Payments Pro Rata. The Administrative Agent agrees that
promptly after its receipt of each payment of any interest or premium
on or principal of the Notes from or on behalf of the Company or any
Guarantor, it shall, except as otherwise provided in this Agreement,
distribute such payment to the Lenders (other than any Lender that has
consented in writing to waive its pro rata share of such payment) pro
rata based upon their respective pro rata shares, if any, of such
payment.
(d) Notation of Payment. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than by
granting participations therein), such Lender will make a notation
thereon of all principal payments previously made thereon and of the
date to which interest thereon has been paid and will notify the
Company of the name and address of the transferee of that Note;
provided, however, that the failure to make (or any error in the making
of) such a notation or to notify the Company of the name and address of
such transferee shall not limit or otherwise affect the obligation of
the Company hereunder or under such Notes with respect to the Loans and
payments of principal or interest on any such Note.
2.07. Use of Proceeds
(a) Initial Loan. The proceeds of the Initial Loan shall be
applied by the Company, together with borrowings under the Senior
Credit Facility, to pay the consideration for the Acquisition and to
repay certain indebtedness of the Company and its Subsidiaries and to
pay certain fees and expenses.
(b) Term Loan. The proceeds of the Term Loan shall be used to
cancel any outstanding amount of Initial Notes converted to Term Notes
on such date.
(c) Margin Regulations. No portion of the proceeds of any
borrowing under this Agreement shall be used by the Company in any
manner which might cause the borrowing or the application of such
proceeds to violate the
applicable requirements of Regulations T, U and X or any other
regulation of the Board of Governors 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.
Section 3. Yield Protection, Etc.
3.01. Funding Indemnity. In the event any Lender shall incur any loss,
cost or expense (including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or re-employment of deposits or other
funds acquired by such Lender to fund or maintain any Loan or the relending or
reinvesting of such deposits or amounts paid or prepaid to such Lender, and any
loss of profit) as a result of:
(a) any payment or prepayment or purchase of a Loan or Note on
a date other than the last day of an Interest Period for any reason,
whether before or after default, and whether or not such payment is
required by any of the provisions of this Agreement;
(b) any failure (because of a failure to meet the conditions
of Section 5 hereof or otherwise) by the Company to create or borrow a
Loan on the date specified in a notice given pursuant to this
Agreement; or
(c) any failure by the Company to make any payment of
principal on any Loan when due (whether by acceleration, mandatory
prepayment or purchase or otherwise), then, upon the demand of such
Lender, the Company shall pay to such Lender such amount as will
reimburse such Lender for such loss, cost or expense. If any Lender
makes such a claim for compensation, it shall provide to the Company a
certificate executed by an officer of such Lender setting forth the
amount of such loss, cost or expense in reasonable detail (including an
explanation of the basis for and the computation of such loss, cost or
expense) and such certificate shall be deemed prima facie correct.
3.02. Change of Law. Notwithstanding any other provisions of this
Agreement or any Note, if at any time any change in applicable law or regulation
or in the official interpretation thereof makes it unlawful for any Lender to
make or continue to maintain the Loans or to give effect to its obligations to
make the Loans available as contemplated hereby, such Lender shall promptly give
notice thereof to the Company and the Administrative Agent and such Lender's
obligations to make or maintain the Loans under this Agreement shall terminate
until it is no longer unlawful for such Lender to make or maintain the Loans. To
the extent required to comply with any such law as changed, the Company shall
prepay on demand the outstanding principal amount of any such affected portion
of the Loans, together with all interest accrued thereon and all other amounts
then due and payable to such Lender under this Agreement and such Lender's
Commitment shall be canceled and the obligations of the Lender to the Company
hereunder shall cease. Each Lender agrees (to the extent consistent with
internal policies) to designate a different lending office if such designation
would avoid the illegality described in this Section 3.02; provided, however,
that such designation need not be made if it would result in any additional
costs, expenses or risks to such Lender that are not reimbursed by the Company
pursuant hereto or would, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender.
3.03. Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR Rate. (a) If on or prior to the first day of any Interest
Period the Administrative Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered to it or to banks generally in the
offshore eurodollar market for such Interest Period, then the Administrative
Agent shall forthwith give notice thereof to the Company and the Lenders.
(b) After any notification under paragraph (a) above:
(i) if the Company so requires, within five Business
Days of receipt of any such notification, the Company and the
Administrative Agent (on behalf of the Lenders) shall, in good
faith, enter into negotiations for a period of not more than
30 days with a view to agreeing to a substitute basis (the
"Substitute Basis") for determining the rate of interest;
(ii) any Substitute Basis agreed under subparagraph
(i) above shall be, with the prior consent of all the Lenders,
binding on the parties; and
(iii) until and unless a Substitute Basis is so
agreed, each Lender's participation in the Loans shall bear
interest during the current Interest Period at the rate
certified by such Lender to be its cost of funds (from such
source as it may reasonably select) for such Interest Period
plus the Applicable Spread.
(c) The Administrative Agent, in consultation with the Company
shall, not less often than monthly, review whether or not the
circumstances referred to in paragraph (a) still prevail with a view to
returning to the normal interest provisions of this Agreement.
3.04. Increased Cost and Reduced Return. If, on or after the date
hereof, the adoption of any applicable law, rule or regulation, or any change
therein, or any change in the official interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender (or
its lending office) with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency:
(a) shall subject any Lender (or its lending office) to any
charges of any kind (other than Withholding Taxes covered by Section
3.06 hereof) with respect to the Loans, its Notes or its obligation to
make the Loans available, or shall change the basis of taxation of
payments to any Lender (or its lending office) of the principal of or
interest on the Loans or any other amounts due under this Agreement in
respect of the Loans or its obligation to make the Loans; or
(b) shall impose, modify or deem applicable any reserve,
special deposit or similar requirements (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding any such requirement included in an
applicable Reserve Percentage) against assets of, deposits with or for
the account of, or credit extended by, any Lender (or its lending
office) or shall impose on any Lender (or its lending office) or the
offshore interbank market any other condition affecting the Loans, its
Notes or its obligation to make the Loans available; and the result of
any of the foregoing is to increase the cost to such Lender (or its
lending office) of making or maintaining the Loans, or to reduce the
amount of any sum received or receivable by such Lender (or its lending
office) under this Agreement or under its Notes with respect thereto,
by an amount deemed by such Lender to be material, then, within fifteen
(15) days after demand by such Lender (with a copy to the
Administrative Agent), the Company shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction. A certificate of any Lender claiming
compensation under this Section 3.04 and setting forth the additional
amount or amounts in reasonable detail (including an explanation of the
basis therefor and the computation of such amount) to be paid to it
hereunder shall be deemed prima facie correct. In determining such
amount, such Lender may use reasonable averaging and attribution
methods.
3.05. Capital Adequacy. If any Lender shall determine that any change
after the date hereof in any applicable law, rule or regulation regarding
capital adequacy, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof or compliance by such Lender (or
its lending office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's capital as a consequence of its obligations hereunder or credit
extended by it hereunder to a level below that which such Lender could have
achieved but for such law, rule, regulation, change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time as specified
by such Lender the Company shall pay such additional amount or amounts as will
compensate such Lender for such reduction in rate of return. A certificate of
any Lender claiming compensation under this Section 3.05 and setting forth the
additional amount or amounts to be paid to it hereunder in reasonable detail
shall be deemed prima facie correct. In determining such amount, such Lender may
use any reasonable averaging and attribution methods.
3.06. Withholding Taxes.
(a) Payments Free of Withholding. Except as otherwise required
by law and subject to Section 3.06(b) and (c) hereof, each payment by
the Company and the Guarantors under this Agreement or the other Loan
Documents shall be made without withholding for or on account of any
present or future taxes (other than overall net income taxes on the
recipient) imposed by or within the jurisdiction in which the Company
or any Guarantor is domiciled, any jurisdiction from which the Company
or any Guarantor makes any payment, or (in each case) any political
subdivision or taxing authority thereof or therein (herein,
"Withholding Taxes"). If any such Withholding Tax is so required, the
Company or relevant Guarantor, as applicable, shall make the
withholding, pay the amount withheld to the appropriate governmental
authority before penalties attach thereto or interest accrues thereon,
and forthwith pay such additional amount as may be necessary to ensure
that the net amount actually received by each Lender and the
Administrative Agent free and clear of such Withholding Taxes
(including such taxes on such additional amount) is equal to the amount
which that Lender or the Administrative Agent (as the case may be)
would have
received had such withholding not been made. If the Administrative
Agent or any Lender pays any amount in respect of any such Withholding
Taxes, penalties or interest, the Company shall reimburse the
Administrative Agent or such Lender for that payment on demand in the
currency in which such payment was made. If the Company or a Guarantor
pays any such taxes, penalties or interest, it shall deliver official
tax receipts evidencing that payment or certified copies thereof to the
Lender or the Administrative Agent on whose account such withholding
was made (with a copy to the Administrative Agent if not the recipient
of the original) on or before the thirtieth day after payment.
(b) U.S. Withholding Tax Exemptions. Each Lender that is not a
United States person (as such term is defined in Section 7701(a)(30) of
the Code) shall submit to the Company and the Administrative Agent on
or before the earlier of the Closing Date or thirty (30) days after it
becomes a Lender, two duly completed and signed copies of either Form
1001 (relating to such Lender and entitling it to a complete exemption
from withholding under the Code on all amounts to be received by such
Lender, including fees, pursuant to the Loan Documents and the Loans)
or Form 4224 (relating to all amounts to be received by such Lender,
including fees, pursuant to the Loan Documents and the Loans) of the
United States Internal Revenue Service or, solely if such Lender is
claiming exemption from United States withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a Form W-8, or any successor form prescribed by the Internal
Revenue Service, and a certificate representing that such Lender is not
a bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code),
of the Parent or the Company and is not a controlled foreign
corporation related to the Parent or the Company (within the meaning of
Section 864(d)(4) of the Code. Thereafter and from time to time, each
Lender shall submit to the Company and the Administrative Agent such
additional duly completed and signed copies of one or the other of such
forms (or such successor forms as shall be adopted from time to time by
the relevant United States taxing authorities) as may be (i) requested
by the Company in a written notice, directly or through the
Administrative Agent, to such Lender and (ii) required under
then-current United States law or regulations to avoid or reduce United
States withholding taxes on payments in respect of all amounts to be
received by such Lender, including fees, pursuant to the Loan Documents
or the Loans.
(c) Inability of Bank to Submit Forms. If any Lender
determines, as a result of any change in applicable law, regulation or
treaty, or in any official application or interpretation thereof, that
it is unable to submit to the Company or the Administrative Agent any
form or certificate that such Lender is obligated to submit pursuant to
subsection (b) of this Section 3.06 or that such Lender is required to
withdraw or cancel any such form or certificate previously submitted or
any such form or certificate otherwise becomes ineffective or
inaccurate, such Lender shall promptly notify the Company and
Administrative Agent of such fact and the Lender shall to that extent
not be obligated to provide any such form or certificate and will be
entitled to withdraw or cancel any affected form or certificate, as
applicable.
3.07. Lender Replacement. If the Company is required to make any
reduction or withholding with respect to any payment due any Lender under
Section 3.06 hereof or is required to make any payment to a Lenders under
Sections 3.04 or 3.05 hereof or a Lender's obligation to make or maintain Loans
is suspended pursuant to Section 3.02 hereof (in any such case a "Replaceable
Lender"), the Company may, with the consent of the Administrative Agent, propose
that another lender (a "Replacement Lender"), which lender may be an existing
Lender, be substituted for and replace the Replaceable Lender for purposes of
this Agreement. If a Replacement Lender is so substituted for the Replaceable
Lender, the Replaceable Lender shall enter into an Assignment Agreement with the
Replacement Lender, the Company and the Administrative Agent to assign and
transfer to the Replacement Lender the Replaceable Lender's Commitments and
portion of the Loans pursuant to and in accordance with the provisions and
requirements of Section 10.07(a) hereof (except that no processing or
recordation fee shall be payable to the Administrative Agent) and, as a
condition to its execution thereof, the Replaceable Lender shall concurrently
receive the full amount of its portion of the Loans, interest thereon, and all
accrued fees and other amounts to which it is entitled under this Agreement,
including amounts which would have been due it under Section 3.02 hereof if its
portion of the Loans had been prepaid rather than assigned.
Section 4. Guarantee.
4.01. The Guarantee. To induce the Lenders to provide the credits
described herein and in consideration of benefits expected to accrue to each
Guarantor by reason of the Loans and for other good and valuable consideration,
receipt of which is hereby acknowledged, each Guarantor hereby unconditionally
and irrevocably guarantees jointly and severally to the Agents, the Lenders and
each other holder of any of the Company's Loan Obligations under the Loan
Documents, the due and punctual payment of all present and future indebtedness,
Loan Obligations and liabilities of the Company evidenced by or arising out of
the Loan Documents, including, but not limited to, the due and punctual payment
of principal of and interest on the Notes and the due and punctual payment of
all other Loan Obligations now or hereafter owed by the Company under the Loan
Documents as and when the same shall become due and payable, whether at stated
maturity, by acceleration or otherwise, according to the terms hereof and
thereof. In case of failure by the Company punctually to pay any indebtedness
guaranteed hereby, each Guarantor hereby unconditionally agrees jointly and
severally to make such payment or to cause such payment to be made punctually as
and when the same shall become due and payable, whether at stated maturity, by
acceleration or otherwise, and as if such payment were made by the Company.
4.02. Guarantee Unconditional. The obligations of each Guarantor as a
guarantor under this Section 4 shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged or
otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any Loan Obligation of the Company or of any
other Guarantor under this Agreement or any other Loan Document whether
by operation of law or otherwise;
(b) any modification or amendment of or supplement to this
Agreement or any other Loan Document;
(c) any change in the corporate existence, structure or
ownership of, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting, the Company, any other Guarantor, or any
of their respective assets, or any resulting release or discharge of
any Loan Obligation of the Company or of any other Guarantor contained
in any Loan Document;
(d) the existence of any claim, set-off or other rights which
the Guarantor may have at any time against any Agent or Lender or any
other Person, whether or not arising in connection herewith;
(e) any failure to assert, or any assertion of, any claim or
demand or any exercise of, or failure to exercise, any rights or
remedies against the Company or any other Guarantor;
(f) any application of any sums by whomsoever paid or
howsoever realized to any obligation of the Company, regardless of what
obligations of the Company remain unpaid,
(g) any invalidity or unenforceability relating to or against
the Company or any other Guarantor for any reason of this Agreement or
of any other Loan Document or any provision of applicable law or
regulation purporting to prohibit the payment by the Company of the
principal of or interest on any Note, or any other amount payable by it
under the Loan Documents; or
(h) any other act or omission to act or delay of any kind by
any Agent or Lender or any other Person or any other circumstance
whatsoever that might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the obligations of the
Guarantor under this Section 4.
4.03. Discharge Only upon Payment in Full; Reinstatement in Certain
Circumstances. Each Guarantor's obligations under this Section 4 shall remain in
full force and effect until the Commitments are terminated and the principal of
and interest on the Notes and all other Loan Obligations then due and payable by
the Company under this Agreement and all other Loan Documents shall have been
paid in full. If at any time any payment of the principal of or interest on any
Note or any other amount payable by the Company under the Loan Documents is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Company or of a Guarantor, or otherwise,
each Guarantor's obligations under this Section 4 with respect to such payment
shall be reinstated at such time as though such payment had become due but had
not been made at such time.
4.04. Subrogation. No Guarantor will exercise any rights which it may
acquire by way of subrogation as a result of any payment made hereunder, or
otherwise, until the Notes and all other amounts payable by the Company under
the Loan Documents shall have been paid in full. If any amount shall be paid to
a Guarantor on account of such subrogation rights at any time prior to the
payment in full of the Notes and all other amounts payable by such Guarantor
hereunder, such amount shall be held in trust for the benefit of the
Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent and the Lenders or be credited and applied upon the
Company's Loan Obligations under the Loan Documents, whether matured or
unmatured, in accordance with the terms of this Agreement.
4.05. Waivers. Each Guarantor irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Agent, any Lender or
any other Person against the Company, another Guarantor or any other Person.
4.06. Stay of Acceleration. If acceleration of the time for payment of
any amount payable by the Company under this Agreement or any other Loan
Document is stayed upon the insolvency, bankruptcy or reorganization of the
Company or any other Guarantor, all such amounts otherwise subject to
acceleration under the terms of this Agreement or the other Loan Documents shall
nonetheless be payable jointly and severally by the Guarantors hereunder
forthwith on demand by the Administrative Agent.
4.07. General Limitation on Guarantee Obligations. Notwithstanding any
other provision of this Section 4, the right to recovery against each Guarantor
under this Section 4 shall not exceed $1.00 less than the amount which would
render such Guarantor's obligations under this Section 4 void or voidable under
applicable law.
4.08. Subordination. The Guarantee of each Guarantor is subordinated to
the prior payment in full in cash when due of all existing and future Senior
Indebtedness of such Guarantor to the extent and in the manner set forth in
Section 11.
Section 5. Conditions Precedent.
5.01. Conditions to Effectiveness of Loan Documents and Obligation to
Make Initial Loan. The effectiveness of the Loan Documents and the obligation of
the Lenders to make an Initial Loan hereunder is subject to the satisfaction of
the conditions precedent that:
(a) The Administrative Agent shall have received the following
for the account of the Lenders (each to be properly executed and
completed) and the same shall have been approved as to form and
substance by the Agents:
(i) this Agreement and the Initial Notes;
(ii) copies (executed or certified as may be
appropriate) for each Lender of the articles of incorporation
and by-laws of and good standing certificates for the Company
and each Guarantor and of all legal documents or proceedings
taken in connection with the execution and delivery of the
Loan Documents to the extent the Administrative Agent or its
counsel may reasonably request, including, without limitation,
certificates as to the incumbency and authority of, and
setting forth a specimen signature of, each officer who is to
sign any Loan Document;
(iii) the Acquisition and the Merger shall have been
consummated without material deviation from the terms of the
Stock Purchase Agreement and Asset Transfer Agreement and
without modification thereto or waivers of the terms or
conditions thereof (except for modifications and waivers
approved by the Administrative Agent) and (i) with the
Company's asceptic business having been transferred to Xxxx
Foods or a Subsidiary thereof and with the amount of cash
expended by the Parent and its Subsidiaries in respect of such
Acquisition not being in excess of $360,000,000 plus amounts
payable pursuant to the working capital adjustment provisions
of the Stock Purchase Agreement, (ii) with the sum of such
amounts plus amounts required to refinance indebtedness of the
Company and DFVC required to be repaid pursuant to the terms
of Section 5.01(a)(vi) hereof plus financing costs and costs
of retiring Indebtedness funded through borrowings under the
Senior Credit Facility not to exceed $560,000,000, and (iii)
immediately after consummation of the Acquisition and Merger,
the Parent shall have Consolidated Net Worth of not less than
$160,000,000;
(iv) evidence of the maintenance of insurance as
required hereby;
(v) a certificate from an authorized officer of the
Company stating (i) whether the pro forma consolidated balance
sheet of the Parent and its Subsidiaries delivered to the
Lenders and referred to in the last sentence of Section 6.08
hereof, is accurate in all material respects as of the date
the other conditions precedent to the initial advance under
this Section 5.01 are satisfied or, if not, setting forth the
differences, and (ii) that the conditions set forth in clause
(iii) above have been satisfied;
(vi) a pay-off letter or letters from all lenders
under loan arrangements not permitted to exist after the
Closing Date in form and substance satisfactory to the
Administrative Agent and such other evidence that all of the
Parent's and its Subsidiaries' Indebtedness thereunder has
been fully paid and that the liens securing the same have been
or will be released, as the Administrative Agent may require;
(vii) (1) executed or conformed copies of the Senior
Credit Facility and any amendments thereto made on or prior to
the Closing Date, (2) an Officers' Certificate from the
Company stating that the Senior Credit Facility is in full
force and effect on the Closing Date and no material term or
condition thereof has been amended, modified or waived from
the form most recently provided to the Lenders and the Agents
a reasonable time prior to the Closing Date except with the
prior written consent of the Majority Lenders and the Agents,
(3) an Officers' Certificate from the Company stating that
Parent and each of its Subsidiaries party thereto has
performed or complied with all agreements and conditions
contained in the Senior Credit Facility and any agreements or
documents referred to therein required to be performed or
complied with by such party on or before the Closing Date, and
neither the Company nor any of its Subsidiaries is in default
in the performance or compliance with any of the terms or
provisions thereof, (4) an Officers' Certificate from the
Company stating that after giving effect to borrowings on the
Closing Date to effect the Acquisition and the Merger and the
refinancing of all indebtedness being refinanced as required
by Section 5.01(a)(vi) and to pay all related fees and
expenses, the Company shall have at least $60 million
of borrowing availability under the Revolving Credit Facility
and (5) all closing documents relating to the Senior Credit
Facility and all such counterpart originals or certified
copies of such documents, instruments, certificates and
opinions as the Majority Lenders or the Agents may reasonably
request;
(viii) a completed year 2000 questionnaire in form
and substance satisfactory to the Agents; and
(ix) an amendment to the Marketing Agreement;
(b) The Company and Xxxx Foods shall have received such
approvals, exemptions, consents or withholdings of objection from
Governmental Bodies as are necessary in order to lawfully consummate
the Acquisition and the Merger and the same shall not have been stayed,
revoked or overturned and no petition or application shall be pending,
seeking to modify, stay, revoke or overturn the same except for such
thereof as are acceptable to the Agents;
(c) The Administrative Agent shall have received a solvency
opinion as to the Company and its Subsidiaries after giving effect to
the Acquisition and the Merger from Xxxxxxxx Xxxxx Xxxxxx & Xxxxx
Financial Advisors, Inc. satisfactory in form and substance to the
Administrative Agent;
(d) The Company shall have delivered to the Administrative
Agent (i) a pro forma balance sheet of the Parent and its Subsidiaries
after giving effect to the Acquisition and the Merger; and (ii)
projections for the ensuing five years, and such pro forma balance
sheet and such projections shall be satisfactory to the Administrative
Agent;
(e) No material litigation or administrative proceedings shall
be pending or threatened against the Parent or its Subsidiaries;
(f) The Agents shall have received for their own account the
fees to be received by them at such time under the Fee Letter;
(g) The Company shall have accepted for payment all Existing
Notes tendered by the holders thereof and consummated the tender offer
and consent solicitation for such Existing Notes (including, without
limitation, by paying all amounts due to the holders thereof) without
modification or waiver of the terms or conditions thereof, and not more
than $16.0 million in principal amount of Existing Notes shall remain
outstanding after giving effect to such consummation, and the Indenture
for the Existing Notes shall have been, amended in the form of the
Third Supplemental Indenture heretofore delivered to the Agents, and
the Company shall have provided an Officers' Certificate to the
foregoing effect;
(h) Each of the representations and warranties set forth
herein and in the other Loan Documents shall be true and correct as of
the date of the Initial Loan (except the representations and warranties
made in Section 6.04 hereof shall be deemed to refer to the most recent
financial statements delivered to the Lenders pursuant to Section 7.05
hereof);
(i) No Default or Event of Default shall have occurred and be
continuing;
(j) Legal matters incident to the execution and delivery of
the Loan Documents and the other instruments and documents contemplated
hereby and the Acquisition and the Merger shall be satisfactory to the
Agents and their counsel, and the Lenders shall have received the
favorable written opinions of acceptable counsel for the Parent and
each Subsidiary party to the Loan Documents, in form and substance and
with such limitations, assumptions and qualifications as shall be
satisfactory to the Administrative Agent and its counsel, with respect
to:
(i) the due organization and existence of the Parent
and each such Subsidiary and the due licensing or
qualification of the Parent and each such Subsidiary in all
jurisdictions where the failure to be so qualified could have
a Material Adverse Effect;
(ii) the power and authority of the Parent and each
such Subsidiary to enter into the Loan Documents (and of the
Company to consummate the Acquisition and the Merger) and to
perform and observe all the matters and things herein and
therein provided for and the fact that the execution and
delivery of the Loan Documents and the consummation of the
Acquisition and the Merger will not, nor will the observance
or performance of any of the matters or things therein or
herein provided for, contravene any provision of law or of the
charter or by-laws, operating agreement or management
agreement of the Parent or any such Subsidiary;
(iii) the due authorization for and the validity and
enforceability of the Loan Documents;
(iv) the fact that no governmental authorization,
consent, exemption or withholding of objection is required
with respect to the lawful execution, delivery and performance
of the Loan Documents or consummation of the Acquisition and
Merger other than such thereof as have been obtained and are
in full force and effect;
(v) the fact that the Merger and Acquisition have
been consummated;
(vi) except to the extent set forth on Schedule 6.05,
the lack, to the knowledge of such counsel, of any legal or
administrative proceedings pending or threatened against DFVC
(but without independent inquiry as to matters affecting only
DFVC), the Parent or any Subsidiary which seeks to prevent the
consummation of the Acquisition or the Merger or which, if
adversely determined, would result in a Material Adverse
Effect after giving effect to the Acquisition and Merger; and
(vii) such other matters as the Administrative Agent
or its counsel may reasonably require; and
(k) The Administrative Agent shall have received for the
account of the Lenders such other agreements, instruments, documents,
certificates and opinions as the Administrative Agent may reasonably
request.
5.02. Conditions to Term Loan. The obligation of the Lenders to make
the Term Loan on the Conversion Date is subject to the prior or concurrent
satisfaction or waiver of the following conditions precedent:
(a) The Agents shall have received in accordance with the
provisions of Section 2.02 an originally executed Notice of Conversion;
(b) None of the Company, Parent or any of its Significant
Subsidiaries shall be subject to a Bankruptcy Order or a bankruptcy or
other insolvency proceeding and no Default or Event of Default shall
have occurred under Section 8.01(j);
(c) No Event of Default or Default (whether matured or not)
under Section 8.01(a) or (b) shall have occurred;
(d) No Event of Default shall have occurred and be continuing
under Section 8.01(f);
(e) On or prior to the Conversion Date, the Agents shall have
received a form of Senior Subordinated Indenture and the Registration
Rights Agreement satisfactory in form and substance to the Agents;
(f) On the Conversion Date, the Agents shall have received an
Officers' Certificate from the Company dated the Conversion Date and
satisfactory in form and substance to the Agents, to the effect that
the conditions in this Section 5.03 are satisfied on and as of the
Conversion Date;
(g) The Company shall have executed and delivered to the
Administrative Agent on the Conversion Date for delivery to the Lenders
Term Notes dated the Conversion Date substantially in the form of
Exhibit A-2 to evidence the Term Loan, in the principal amount of
(which principal amount shall be the aggregate principal amount of the
Initial Notes outstanding on the Conversion Date) the Term Loan and
with other appropriate insertions;
(h) The Agents and the Lenders shall have received for their
respective accounts the fees to be received by them at such time under
the Fee Letter and hereunder; and
(i) The making of the Term Loan shall not violate Regulation
T, U or X or any other regulation of the Board of Governors.
5.03. Determinations Under Section 5. For purposes of determining
compliance with the conditions specified in Sections 5.01 and 5.02, each Lender
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Lenders unless an officer of
the Administrative Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that the
Company, by notice to the Lenders, designates as the proposed date of the
extension of credit, specifying its objection thereto.
Section 6. Representations and Warranties. The Company and the Parent
represent and warrant to the Lenders as follows:
6.01. Organization and Power. The Parent and the Company are duly
organized and existing under the laws of the state of their organization, and
after giving effect to the Acquisition and the Merger will be duly licensed or
qualified to do business in each state where the nature of the assets owned or
leased by them or business conducted by them requires such licensing or
qualification and in which the failure to be so licensed or qualified could
reasonably be expected to have a Material Adverse Effect and have all necessary
power to carry on their present and contemplated businesses. The Parent and the
Company have full right, power and authority to enter into this Agreement, to
make the borrowings herein provided for, to issue the Notes in evidence thereof,
to execute and deliver the other Loan Documents executed and delivered or to be
executed and delivered by them, and to perform each and all of the matters and
things herein and therein provided for. Each Guarantor has, or upon its
acquisition or formation will have, full right, power and authority to enter
into the Loan Documents executed by it and to perform each and all of the
matters and things therein provided for. The Loan Documents do not, and the
performance or observance by the Parent or any Subsidiary of any of the matters
and things herein or therein provided for will not, contravene any provision of
law or any charter, by-law or similar agreement of the Parent or any such
Subsidiary or constitute a breach or default under any covenant, indenture or
agreement of or affecting the Parent or any such Subsidiary where such breach or
default could reasonably be expected to have a Material Adverse Effect.
6.02. Subsidiaries. Each Subsidiary is, or upon acquisition or
formation will be, duly organized and existing under the laws of the
jurisdiction of its organization, and duly licensed or qualified to do business
in each state or other jurisdiction where the nature of the assets owned or
leased by it or business conducted by it requires such licensing or
qualification and in which the failure to be so licensed or qualified could
reasonably be expected to have a Material Adverse Effect and has all necessary
corporate power to carry on its present business. Schedule 6.02 hereto
identifies each Subsidiary, the jurisdiction of its organization, the percentage
of issued and outstanding shares of each class of its capital stock or other
equity owned by the Parent and the Subsidiaries and, if such percentage is not
100% (excluding directors' qualifying shares as required by law), a description
of each class of its authorized capital stock or other equity interest and the
number of shares of each class issued and outstanding. All of the outstanding
shares of capital stock of or other equity interest in each Subsidiary are
validly issued and outstanding and fully paid and, subject to Section 630 of the
New York Business Corporation Law, nonassessable, and all shares or other equity
interests in each Subsidiary indicated on Schedule 6.02 as owned by the Parent
or a Subsidiary are owned, beneficially and of record, by the Parent or such
Subsidiary free and clear of all liens, security interests, charges and
encumbrances, other than the lien securing the Senior Credit Facility. There are
no outstanding commitments or other obligations of any Subsidiary to issue, and
no options, warrants or other rights of any Person to acquire, any shares of any
class of capital stock of or other equity interest in any Subsidiary. The
Company is a wholly owned Subsidiary of the Parent.
26
6.03. [Reserved].
6.04. Financial Reports. (a) The Parent and the Company have each
heretofore delivered to each Lender a copy of their annual audit reports for
their 1994, 1995, 1996, 1997, and 1998, fiscal years and the accompanying
consolidated financial statements of the Parent and its Subsidiaries and the
Company and its Subsidiaries, and their unaudited interim consolidated balance
sheets as at August 29, 1998, and the related consolidated statements of
operations, changes in member's and shareholder's capitalization (as to the
Parent and its Subsidiaries) and cash flows of each of them and of their
Subsidiaries for the two months then ended. Such financial statements have been
prepared in accordance with GAAP (except for the omission of footnotes from such
unaudited statements) and fairly reflect the consolidated financial position of
the Parent and its Subsidiaries and of the Company and its Subsidiaries as of
the dates thereof and the results of their operations for the periods covered
thereby. The Parent and its Subsidiaries have no material contingent liabilities
that are required to be disclosed on such financial statements other than as
indicated on said financial statements. Since the date of the fiscal 1998 audit
report, there has been no material adverse change in the financial condition or
results of operations, or with respect to the Properties, of the Parent or any
of its Subsidiaries, except those disclosed in writing to the Lenders prior to
the date of this Agreement.
(b) The Company has delivered to the Lenders the audited
consolidated balance sheets of DFVC and its Subsidiaries as of the
close of their 1996, 1997 and 1998 fiscal years, and the audited
consolidated income statements and statements of cash flow of DFVC and
its Subsidiaries for their 1996, 1997 and 1998 fiscal years, and the
unaudited interim balance sheet of DFVC and its Subsidiaries as of
August 30, 1998 and unaudited interim income statement of DFVC and its
Subsidiaries for the three month period ended August 30, 1998
(collectively, the "DFVC Financial Statements"). Based on the Company's
review of the DFVC Financial Statements and other financial information
obtained by the Company in connection with the DFVC Acquisition,
nothing has come to the Company's attention that would cause it to
believe that the DFVC Financial Statements are inaccurate in any
material respect or that the DFVC Financial Statements do not present
fairly, in all materials respects, the consolidated financial position
of DFVC and its Subsidiaries as the dates thereof and the consolidated
results of operations of DFVC and its Subsidiaries for the periods
covered thereby in conformity with GAAP or that DFVC has any material
contingent liabilities not disclosed in the DFVC Financial Statements,
except (i) as otherwise indicated in the DFVC Financial Statements, and
(ii) for such matters as would not individually or in the aggregate
have a Material Adverse Effect.
6.05. Litigation and Taxes. Except as is set forth on Schedule 6.05,
there is no litigation or governmental proceeding pending, nor to the knowledge
of the Parent or the Company threatened, against the Parent or any Subsidiary or
DFVC, BEMSA or their Subsidiaries or for which any of them is liable which if
adversely determined could reasonably be expected to result in a Material
Adverse Effect after giving effect to the Acquisition. No authorization,
consent, license, or exemption from, or filing or registration with, any court
or governmental department, agency or instrumentality, is or will be necessary
to the valid execution, delivery or performance by the Parent or any Subsidiary
of any Loan Document or the Stock Purchase Agreement, Asset Transfer Agreement
or Marketing Agreement or to the consummation of the Acquisition or the Merger,
except for such consents, exemptions and approvals with respect to the
Acquisition which will have been obtained and remain in full force and effect.
6.06. Burdensome Contracts with Affiliates. All material contracts and
agreements between the Company and/or its Subsidiaries and their Affiliates are
on terms and conditions which are no less favorable to the Company or such
Subsidiary than would be usual and customary in similar contracts or agreements
between Persons not affiliated with each other.
6.07. ERISA. The Parent and each Subsidiary are in compliance in all
material respects with the Employee Retirement Income Security Act of 1974
("ERISA") to the extent applicable to it and has received no notice to the
contrary from the Pension Benefit Guaranty Corporation ("PBGC"), and, in the
event of the Parent's or any Subsidiary's partial or total withdrawal from any
pension plans, multi-employer pension plans or non-payment by other employer
participants therein, the liability of the Parent and its Subsidiaries for any
unfunded vested benefits thereunder would not result in a Material Adverse
Effect.
6.08. Full Disclosure. The statements and information furnished to
either Agent or the Lenders in connection with the negotiation of this Agreement
and the commitments by the Lenders to provide all or part of the financing
contemplated hereby do not, taken as a whole, contain any untrue statement of a
material fact or omit a material fact necessary to make the statements contained
therein or herein not misleading, except for such thereof as were corrected in
subsequent written statements furnished the Lenders prior to the date hereof
(the Lenders acknowledging that as to any projections furnished to the Lenders,
the Parent and the Company only represent that the same were prepared on the
basis of information and estimates they believe to be reasonable). There is no
fact peculiar to the Parent or any Subsidiary, DFVC or BEMSA which the Company
has not disclosed to the Lenders in writing which materially adversely affects
the Parent or its Subsidiaries nor, so far as the Parent or the Company now can
reasonably foresee, is reasonably likely to have a Material Adverse Effect. The
unaudited pro forma consolidated balance sheet for the Parent and its
Subsidiaries and for the Company and its Subsidiaries heretofore delivered to
the Lenders fairly presents the financial condition of the Parent and its
Subsidiaries immediately after giving effect to the Acquisition and the Merger,
based upon the best information currently available to the Parent and the
Company with respect to the Acquisition.
6.09. Compliance with Law. (a) Neither the Parent nor any
Subsidiary is or will after giving effect to the Acquisition and the Merger be
(i) in default with respect to any order, writ, injunction or decree or (ii) in
default in any material respect under any Governmental Requirement (including
ERISA, the Occupational Safety and Health Act of 1970 and laws and regulations
establishing quality criteria and standards for air, water, land and toxic
waste) of any Governmental Body if, in the case of either clause (i) or (ii),
such default is reasonably likely to result in a Material Adverse Effect; and
(b) without limiting the generality of the foregoing, the Parent and each
Subsidiary are and after giving effect to the Acquisition and the Merger will
each be, in compliance with all applicable state and federal environmental,
health and safety statutes and regulations, including, without limitation,
regulations promulgated under the Resource Conservation and Recovery Act of
1976, 42 U.S.C. xx.xx. 6901 et seq., except where failure to be in compliance is
reasonably likely not to have a Material Adverse Effect, and, to the Company's
and Parent's knowledge, neither the Parent nor any Subsidiary will have
acquired, incurred or assumed, directly or indirectly, any contingent liability
in connection with the release of any toxic or hazardous waste or substance into
the environment which is reasonably likely to have a Material Adverse Effect.
Insofar as known to the responsible officers of the Company and the Parent, and
after giving effect to the Merger and the Acquisition, neither the Parent nor
any Subsidiary is liable, in whole or in part, for, nor are any of the assets or
property of the Parent or any Subsidiary subject to a lien in favor of any
Governmental Body for any material liability arising from or in any way relating
to, the costs of cleaning up, remediating or responding to a release of
hazardous substances (including, without limitation, petroleum, its by-products
or derivatives, or other hydrocarbons).
6.10. Certain Contracts. The Company has delivered true copies
of the Stock Purchase Agreement, the Asset Transfer Agreement and the Marketing
Agreement and all amendments thereto to the Lenders.
6.11. Stock Purchase Agreement Warranties. Nothing has come to the
attention of the Company or the Parent that would indicate that any
representation of Xxxx Foods contained in the Stock Purchase Agreement is untrue
in any respect which would have a Material Adverse Effect.
6.12. Restrictive Agreements. Neither the Parent nor any Subsidiary
nor, to their knowledge, DFVC, is a party to any contract or agreement, or
subject to any charge or other corporate restriction, which affects its ability
to execute, deliver and perform the Loan Documents to which it is a party or
repay its indebtedness, obligations and liabilities under the Loan Documents or
which materially and adversely affects or, insofar as the Parent and the Company
can reasonably foresee, could reasonably be expected to have a Material Adverse
Effect.
6.13. No Default Under Other Agreements. Neither the Parent nor any
Subsidiary is in default with respect to any note, indenture, loan agreement,
mortgage, lease, deed, or other agreement to which it is a party or by which it
or its Property is bound, which default could reasonably be expected to have a
Material Adverse Effect.
6.14. Status Under Certain Laws. Neither the Parent nor any Subsidiary
is an "investment company" or a person directly or indirectly controlled by or
acting on behalf of an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or a "holding Company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
6.15. Year 2000 Compliance. The Parent and the Company have conducted a
comprehensive review and assessment of the computer applications of the Parent
and its Subsidiaries and has made inquiry of their material suppliers, vendors
(including data processors) and customers, with respect to any defect in
computer software, data bases, hardware, controls and peripherals related to the
occurrence of the year 2000 or the use at any time of any date which is before,
on or after December 31, 1999, in connection therewith. Based on the foregoing
review, assessment and inquiry, the Parent and the Company believe that no such
defect could reasonably be expected to have a Material Adverse Effect.
6.16. Solvency, Etc. On the Closing Date and after giving effect to the
Acquisition and the Merger and the financing thereof, (i) the assets of the
Parent and of each Subsidiary, at a fair valuation, will exceed its liabilities,
including contingent liabilities, (ii) the remaining capital of the Parent and
of each Subsidiary will not be unreasonably small to conduct, or in relation to,
its business or any transaction in which it intends to engage, and (iii) the
Parent and each Subsidiary will not have incurred debts, and does not intend to
incur debts, beyond its ability to pay such debts as they mature. For purposes
of this Section, "debt" means any liability on a claim, and "claim" means (i)
right to payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured, or unsecured; or (ii) right to an equitable remedy
for breach of performance if such breach gives rise to a payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured, or unsecured.
Section 7. Covenants. The Parent and the Company agree that, so long as
any credit is in use by the Company hereunder, except to the extent compliance
in any case or cases is waived in writing by the Majority Lenders:
7.01. Maintenance of Business. The Parent will, and will cause each
Subsidiary to, preserve and keep in force and effect all licenses and permits
necessary to the proper conduct of their respective businesses except where the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
7.02. Maintenance. The Parent will, and will cause each Subsidiary to,
maintain, preserve and keep their plant, properties and equipment (other than
obsolete or worn out equipment held for sale or disposition) in reasonably good
repair, working order and condition (ordinary wear and tear excepted) and the
Parent will, and will cause each Subsidiary to, from time to time make all
needful and proper repairs, renewals, replacements, additions and betterments
thereto so that at all times the efficiency thereof shall be substantially
preserved and maintained, in each case where the failure to do so is reasonably
likely to have a Material Adverse Effect.
7.03. Taxes. The Parent will, and will cause each Subsidiary to, duly
pay and discharge all taxes, rates, assessments, fees and governmental charges
upon or against any of them or against their respective properties, in each case
before the same become delinquent and before penalties accrue thereon, unless
and to the extent that the same are being contested in good faith and by
appropriate proceedings, in each case where the failure to do so is reasonably
likely to have a Material Adverse Effect.
7.04. Insurance. The Parent will, and will cause each Subsidiary to,
insure and keep insured, with good and responsible insurance companies, all
insurable property owned by them which is of a character usually insured by
companies similarly situated and operating like properties; and the Parent will,
and will cause each Subsidiary to, insure such other hazards and risks
(including employers', product liability and public liability risks) with good
and responsible insurance companies as and to the extent usually insured by
companies similarly situated and conducting similar businesses. The Parent will
upon request of the Administrative Agent furnish a certificate setting forth in
summary form the nature and extent of the insurance maintained pursuant to this
Section.
7.05. Financial Reports. The Parent will, and will cause each
Subsidiary to, maintain a standard and modern system of accounting in accordance
with sound accounting practice and will furnish to the Lenders and their duly
authorized representatives such information respecting the business and
financial condition of the Parent and its Subsidiaries as any Lender (acting
through the Administrative Agent) may reasonably request; and without any
request, will furnish to the Lenders:
(a) within 45 days after the close of each quarterly fiscal
period of the Parent and the Company, a copy of the balance sheets,
statements of operations and statements of cash flow of the Parent and
its Subsidiaries and of the Company and its Subsidiaries for such
period, prepared on a consolidated basis in accordance with GAAP, and
the notes thereto, all certified (subject to year end audit adjustments
which are not expected to be material) by the chief financial officers
of the Company and the Parent;
(b) within 90 days after the close of each fiscal year of the
Company and the Parent, a copy of the audit report for such year and
accompanying financial statements, including balance sheets, statements
of operations and statements of cash flow on a consolidated basis for
the Parent and its Subsidiaries and the Company and its Subsidiaries in
accordance with GAAP, and the notes thereto, certified without
qualification by independent public accountants of recognized standing
selected by the Parent and the Company and satisfactory to the Majority
Lenders (the "Auditors");
(c) within the periods provided in paragraphs (a) and (b)
above, a certificate of an authorized financial officer of the Company
stating that such officer has reviewed the provisions of this Agreement
and setting forth: (i) the information and computations (in sufficient
detail) required to establish whether the Company was in compliance
with the requirements of Sections 7.08, 7.09, 7.10, 7.11, 7.12 and 7.13
hereof at the end of the period covered by the financial statements
then being furnished, and (ii) to the best of such officer's knowledge,
whether there exists on the date of the certificate or existed at any
time during the period covered by such financial statements any Default
or Event of Default and, if any such condition or event exists on the
date of the certificate or existed during such period, specifying the
nature and period of existence thereof and the action the Company is
taking, has taken or proposes to take with respect thereto;
(d) no later than the date provided to any lender under the
Senior Credit Facility, any certificate in respect of compliance with
the covenants in the Senior Credit Facility (including computations
with respect thereto) or the existence of a default or event of default
thereunder; and
(e) within the period provided in paragraph (b) above, a
business plan for the Parent and its Subsidiaries for the ensuing
fiscal year and projections for the Parent and its Subsidiaries for the
ensuing five fiscal years, all in detail reasonably acceptable to the
Administrative Agent.
The Parent will, and will cause each Subsidiary to, permit
representatives of any Lenders, upon reasonable notice and during normal
business hours, to examine and make extracts from the books and records of the
Parent and its Subsidiaries and to examine their assets and access thereto shall
be permitted for such purpose.
7.06. Compliance with Laws. The Parent will, and will cause each
Subsidiary to, comply with all Governmental Requirements to which they are
subject, including, without limitation, the Occupational Safety and Health Act
of 1970, as amended, ERISA, and all laws, ordinances, governmental rules and
regulations relating to environmental protection in all applicable
jurisdictions, the violation of which is reasonably likely to have a Material
Adverse Effect or would result in any lien or charge upon any property of the
Parent or any Subsidiary which is not a Permitted Lien.
7.07. Nature of Business. The Parent will not, nor will it permit any
Subsidiary to, engage in any business or activity if, as a result, the general
nature of the business which would then be engaged in by the Parent and its
Subsidiaries taken as a whole would be substantially changed from the business
in which they are engaged after giving effect to the Acquisition.
7.08. Liens. The Parent will not, nor will it permit any Subsidiary to,
pledge, mortgage or otherwise encumber or subject to, or permit to exist upon or
be subjected to, any lien, security interest or charge upon, any assets of the
Parent or any Subsidiary; provided, however, that nothing in this Section
contained shall operate to prevent any of the following (collectively,
"Permitted Liens"):
(a) liens, pledges or deposits in connection with workmen's
compensation, unemployment insurance, social security obligations,
taxes, assessments, statutory obligations or other similar charges,
good faith deposits in connection with tenders, contracts or leases to
which the Parent or any of its Subsidiaries is a party or other
deposits required to be made in the ordinary course of business and not
in connection with borrowing money or obtaining advances or credit;
provided, in each case, that the obligation or liability arises in the
ordinary course of business and is not overdue, or if overdue, is being
contested in good faith by appropriate proceedings which prevent
enforcement of the matter under contest and adequate reserves have been
established therefor to the extent required by GAAP;
(b) inchoate statutory, construction, common carrier's,
materialmen's, landlord's, warehousemen's, mechanics, producers' or
operator's liens securing obligations not overdue, or if overdue, being
contested in good faith by appropriate proceedings which prevent
enforcement of the matter under contest and adequate reserves have been
established therefor to the extent required by GAAP;
(c) liens securing Indebtedness permitted by Section 7.09(b);
(d) attachment or judgment liens to the extent, but only to
the extent, the attachment or judgment in question is not an Event of
Default under Section 8.01(g);
(e) liens for taxes, assessments or other governmental charges
not yet due and payable or which are being diligently contested in good
faith by the Parent or its applicable Subsidiary by appropriate
proceedings; provided that in any such case an adequate reserve is
being maintained by the Parent or such Subsidiary for the payment of
same;
(f) easements, licenses, permits, rights-of-way, rights of
entry or passage, rights of lessees, restrictions and other similar
encumbrances incurred in the ordinary course of business which do not
secure debt for money borrowed or its equivalent, and which do not
materially detract from the value of the Property subject thereto or
materially interfere with the ordinary conduct of the business of the
Parent or any Subsidiary or use of the assets in question for their
intended purposes;
(g) liens described on Schedule 7.08 attached hereto,
encumbering the assets noted thereon opposite the description of the
indebtedness or obligation secured thereby and extensions and renewals
of the foregoing Permitted Liens; provided that the aggregate amount of
such liabilities secured by such extended or renewed lien is not
increased and such extended or renewed liabilities secured by such lien
are on terms and conditions no more restrictive than the terms and
conditions of the same being extended or renewed;
(h) liens securing indebtedness which is paid in full at the
time of the initial Borrowing and which are promptly discharged; and
(i) liens not otherwise permitted hereby securing obligations
permitted by Section 7.09(h) hereof and not aggregating in excess of
$10,000,000 at any one time outstanding.
7.09. Indebtedness. The Parent will not, nor will it permit any
Subsidiary to, issue, incur, assume, create, or have outstanding any
Indebtedness; provided, however, that the foregoing provisions shall not
restrict nor operate to prevent:
(a) Indebtedness owing to the Administrative Agent and the
Lenders under this Agreement or any of the other Loan Documents;
(b) Indebtedness of the Company and the related guarantees of
the Guarantors under the Senior Credit Facility in an aggregate
principal amount at any time outstanding not to exceed (a) under the
Term Loan Facilities, $455.0 million, less any required permanent
repayments thereunder (excluding any such repayment to the extent
refinanced and replaced at the time of payment), and (b) under the
Revolving Loan Facility, $200.0 million, reduced by any required
permanent repayments actually made (which are accompanied by a
corresponding permanent commitment reduction) in respect of the
Revolving Loan Facility (excluding any such repayment and commitment
reductions to the extent refinanced and replaced at the time of
payment);
(c) Indebtedness described on Schedule 7.09 attached hereto;
33
(d) Subordinated Debt;
(e) Indebtedness of the Parent and the Company to each other
and to the Guarantors and Indebtedness of the Guarantors to the Parent,
the Company and each other; provided that the Indebtedness of the
Parent to the Company shall not exceed $40,000,000 at any one time
outstanding;
(f) Indebtedness which is paid in full on the Closing Date;
(g) Existing Notes (and guarantees thereof by the Guarantors)
in an aggregate principal amount not in excess of $16.0 million; and
(h) Capitalized Lease Indebtedness and purchase money
Indebtedness not exceeding $10,000,000 at any one time outstanding.
7.10. Acquisitions, Investments, Loans and Advances and Guarantees. The
Parent will not, nor will it permit any Subsidiary to, directly or indirectly,
make, retain or have outstanding any interest or investments (whether through
purchase of stock or obligations or otherwise) in, or loans or advances to, any
other Person, or acquire all or any substantial part of the assets or business
of any other Person; provided, however, that the foregoing provisions shall not
apply to nor operate to prevent:
(a) investments by the Parent or any Subsidiary in direct
obligations of the United States of America or of any agency or
instrumentality thereof whose obligations constitute full faith and
credit obligations of the United States of America; provided that any
such obligations shall mature within twelve months from the date the
same are acquired by the Parent or such Subsidiary;
(b) investments by the Parent or any Subsidiary in
certificates of deposit or time deposits issued by any Lender, or by
any United States commercial bank having capital and surplus of not
less than $100,000,000 and having a maturity of twelve months or less;
(c) investments by the Parent or any Subsidiary in commercial
paper maturing 270 days or less from the date of issuance which at the
time of acquisition is rated A-1 or better by Standard & Poor's Ratings
Services Group, a division of the XxXxxx-Xxxx Companies and P-1 or
better by Xxxxx'x Investors Service, Inc.;
(d) investments by the Parent or any Subsidiary in debt
securities issued by U.S. corporations or states of the United States
maturing within twelve months from the date of acquisition thereof if
at the time of acquisition the investment in question has a rating of
not less than AA from Standard & Poor's Ratings Services Group, a
division of The XxXxxx-Xxxx Companies, Inc.
and/or Aa2 from Xxxxx'x Investors Services, Inc.;
(e) investments by the Parent or any Subsidiary in preferred
stock of any corporation organized under the laws of any state of the
United States which is subject to a remarketing undertaking at
intervals not exceeding twelve months issued by any substantial broker
and which is rated AA or better by Standard & Poor's Ratings Services
Group, a division of The XxXxxx-Xxxx Companies, Inc. and/or Aa2 or
better by Xxxxx'x Investors Services, Inc.;
(f) the Acquisition;
(g) other acquisitions by the Parent or any Subsidiary of the
capital stock of or assets or business of any Person, including
acquisitions accomplished by a merger of the Parent or any Subsidiary
with any other Person which is permitted by Section 7.12 hereof;
provided that (i) immediately after giving effect thereto no Default or
Event of Default has occurred and is continuing, (ii) immediately after
giving effect thereto the aggregate amount expended by the Parent and
its Subsidiaries on account of all such acquisitions (including in such
amounts expended, the amount of all indebtedness assumed by the Parent
and its Subsidiaries in connection therewith, all indebtedness secured
by liens on the assets acquired and all indebtedness of the Person in
question (in the event the acquisition is of an equity interest in such
Person)) during the period from the date hereof to and including the
last day of fiscal 1999 shall not exceed $10,000,000 and during each
period of twelve consecutive months concluding thereafter shall not
exceed the greater (i) $10,000,000 or, (ii) if but only if the
acquisition occurs subsequent to the first date after the date hereof
when the Leverage Ratio computed as of the last day of each of the four
fiscal quarters of the Parent most recently concluded prior to the
consummation of the Acquisition in question has been equal to or less
than 3.5 to 1 (but in the case of the last of such fiscal quarters,
substituting Consolidated Total Indebtedness as it exists on the date
of and after giving effect to the consummation of the acquisition in
question for Consolidated Total Indebtedness as it existed on the last
day of such fiscal quarter), $25,000,000, and (iii) the acquisition in
question shall have been approved by the board of directors or similar
governing body of the Person being, or whose assets are being,
acquired;
(h) loans and advances by the Parent or any Subsidiary to the
Parent, the Company, and/or any Guarantor, provided that the
corresponding Indebtedness is permitted by Section 7.09;
(i) existing investments, loans and advances identified on
Schedule 7.10 hereto; and
(j) investments in, and loans and advances to Persons not
otherwise permitted by this Section at no time aggregating more than
$10,000,000.
In determining the amount of investments, loans and advances permitted under
this Section, investments shall always be taken at the original cost thereof,
regardless of any subsequent appreciation (including retained earnings) or
depreciation therein, and loans and advances shall be taken at the principal
amount thereof.
7.11. Restricted Payments. The Parent shall not during any fiscal year
(a) declare or pay any distributions in respect of any equity interest in the
Parent or (b) directly or indirectly purchase, redeem or otherwise acquire or
retire any equity interest in the Parent (collectively, "Restricted Payments");
provided, however, that the Parent may, provided in each instance that after
giving effect thereto no Default or Event of Default has occurred and is
continuing (i) pay dividends on its noncumulative preferred stock at the annual
rate of $1.50 per share, (ii) pay dividends on its Class A cumulative preferred
stock at the annual rate of up to $2.00 per share, (iii) pay dividends on its
Class B cumulative preferred stock at the annual rate of $1.00 per share, (iv)
pay dividends on its common stock at a rate not in excess of 8% per annum; (v)
make distributions to its members of up to 30% of each fiscal year's "Earning on
Pro-Fac Products," as such term is defined in the Marketing Agreement as in
effect on the date hereof and computed consistent with past practice; and (vi)
expend up to $2,000,000 in any fiscal year to repurchase, redeem or otherwise
acquire or retire its common and/or preferred stock or to pay nonqualified
retains.
7.12. Mergers. The Parent will not, nor will it permit any Subsidiary
to, consolidate or be a party to a merger with any other Person, except that so
long as no Default or Event of Default has occurred and is continuing or would
arise as a result thereof (i) any Subsidiary of the Parent may merge with and
into the Parent or the Company if the Parent or the Company is the surviving
corporation, (ii) any Subsidiary may merge with and into any other Subsidiary if
and so long as if either of such Subsidiaries is a Guarantor, the Guarantor is
the survivor thereof, (iii) the Merger may be consummated and (iv) the Parent or
any Subsidiary may merge with any other Person if the Parent or the relevant
Subsidiary is the survivor and the merger is permitted by and treated as an
acquisition for purposes of Section 7.10(g) hereof.
7.13. Sale of Assets. The Parent will not, nor will it permit any
Subsidiary to, sell, lease or otherwise dispose of any of its Property
(including any disposition of Property as part of a sale and leaseback
transaction); provided that nothing contained therein shall prohibit (i) sales
of inventory in the ordinary course of business; (ii) sales or dispositions of
obsolete or worn out Property disposed of in the ordinary course of business;
(iii) sales as part of sale and leaseback transactions provided that the fair
value of all Property subject to such transactions consummated in any fiscal
year of the Parent shall not exceed $1,000,000; (iv) transfers of assets of
Subsidiaries to the Company in connection with the liquidation and/or
dissolution of such Subsidiaries; (v) transfers of patents, trademarks,
copyrights and other intellectual property from the Company to Linden Oaks
Corporation, provided that from and after the first such transfer and
continuously thereafter Linden Oaks Corporation remains a wholly owned
Subsidiary of the Company and a Guarantor hereunder; and (vi) sales, leases and
other dispositions of Property not otherwise permitted by this Section 7.13
aggregating not more than $2,500,000 in any fiscal year; provided, however, that
there shall be excluded from such $2,500,000 limitation amounts reinvested in
other productive assets within 120 days of the receipt of the funds in question
if after giving effect thereto Net Capital Expenditures for the fiscal year in
question will not be negative and proceeds of sales or dispositions which are
used within 120 days of receipt to permanently retire Indebtedness of the Parent
and its Subsidiaries (other than Indebtedness owing to the Parent or any
Subsidiary and Subordinated Debt). Anything contained in this Agreement to the
contrary notwithstanding, the Parent will not, nor will it permit the Company
to, without the consent of the Majority Lenders, sell (or, in the case of the
Company, issue) capital stock of the Company (other than to the Parent).
7.14. Burdensome Contracts with Affiliates. The Parent will not, nor
will it permit any Subsidiary to, enter into or be a party to any contract or
agreement with an Affiliate on terms and conditions materially less favorable to
36
the Parent or such Subsidiary than would be usual and customary in similar
contracts or agreements between Persons not affiliated with each other.
7.15. No Change in Fiscal Year. The Parent will not, nor will it permit
any Subsidiary to, have a fiscal year other than the present fiscal year of the
Parent (i.e., fiscal years ending on the last Saturday of June and fiscal
quarters of thirteen calendar weeks); provided that the Majority Lenders shall
not unreasonably withhold their consent to such a change if in connection
therewith the provisions of this Agreement measuring covenant compliance or
payments with reference to fiscal periods are renegotiated in a manner
reasonably acceptable to them.
7.16. Formation of Subsidiaries. In the event any Subsidiary is formed
or acquired after the date hereof which meets the definition of the term
"Guarantor" herein or any Subsidiary which did not formerly meet the criteria
for treatment of a Guarantor meets such requirements, the Parent shall within
thirty (30) Business Days thereof cause such Subsidiary to execute an Additional
Guarantor Supplement in the form annexed hereto as Exhibit D with such
modifications as may be approved by the Administrative Agent (an "Additional
Guarantor Supplement") and cause such Guarantor to execute and deliver to the
Administrative Agent Additional Guarantor Documentation with respect to it;
provided, however, that the foregoing shall not apply on and after the
Conversion Date to any Subsidiary designated as an Unrestricted Subsidiary
pursuant to and in accordance with the terms of this Agreement.
7.17. No Restriction on Subsidiary Dividends. Neither the Parent nor
any Subsidiary is a party to, nor will the Parent or any Subsidiary become a
party to, any agreement prohibiting or otherwise restricting the declaration or
payment of any dividends or equity distributions by any such Subsidiary;
provided that the foregoing restrictions shall not apply to debt agreements in
effect on the date hereof which are terminated concurrently with the first
extension of credit hereunder.
7.18. Concerning the Subordinated Debt. The Parent and the Company will
not make (or give any notice for) any voluntary or optional payment or
prepayment on or redemption or acquisition for value of any Subordinated Debt or
make any redemption (whether mandatory or optional) or prepayment of the
Subordinated Promissory Note issued to Xxxx Foods in connection with the
Acquisition (or any promissory notes issued thereunder as interest) or make any
payment of principal or interest thereon in violation of the subordination
provisions thereof or amend or modify in any material respect any term, covenant
or provision of any Subordinated Debt or set off any amounts against any
Subordinated Debt; provided, however, that the foregoing shall not apply to or
restrict the payment or retirement of Subordinated Debt out of the net proceeds
received from any concurrent issuance of additional Subordinated Debt.
7.19. Limitation on Senior Subordinated Indebtedness. The Company shall
not, directly or indirectly, incur any Indebtedness that by its terms would
expressly rank senior in right of payment to the Loans and expressly rank
subordinate in right of payment to any Senior Indebtedness of the Company.
The Parent shall not, and shall not permit any other Guarantor to, and
no Guarantor shall, directly or indirectly, incur any Indebtedness that by its
terms would expressly rank senior in right of payment to the Guarantee of such
Guarantor and expressly rank subordinate in right of payment to any Senior
Indebtedness of such Guarantor.
7.20. Concerning the Marketing Agreement. The Parent and the Company
will comply in all material respects with their respective obligations under the
Marketing Agreement and will not amend or modify the same in any material
respect or terminate the same.
7.21. Year 2000 Assessment. The Parent shall take all actions necessary
and commit adequate resources to assure that its computer-based and other
systems (and those of all Subsidiaries) are able to effectively process dates,
including dates before, on and after January 1, 2000, without experiencing any
Year 2000 Problem that could cause a material adverse effect on the business or
financial affairs of the Parent and its Subsidiaries taken on a consolidated
basis. At the request of the Administrative Agent, the Parent and the Company
will provide the Administrative Agent with written assurances and
substantiations (including, but not limited to, the results of internal or
external audit reports prepared in the ordinary course of business) reasonably
acceptable to the Administrative Agent as to the capability of the Parent and
its Subsidiaries to conduct its and their businesses and operations before, on
and after January 1, 2000, without experiencing a Year 2000 Problem causing a
Material Adverse Effect.
7.22. Preservation of Cooperative Status. The Parent will preserve,
renew and keep in full force and effect its corporate existence and status as a
cooperative association as defined in Section 1141j(a) of Title 12 of the United
States Code.
7.23. Take-Out Financing. The Parent and the Company shall take any and
every action necessary or desirable, to the extent within the power of either of
them, so that the Take-Out Bank can, as soon as practicable after the Closing
Date, publicly sell or privately place the Refinancing Securities. Such action
shall include, without limitation, the preparation of an offering memorandum
relating to the sale of the Refinancing Securities in a form and with content
satisfying the requirements of a registration statement on Form S-1, including
audited and unaudited financial statements for the Company and DFVC and pro
forma financial statements reflecting the Acquisition and related transactions,
which offering memorandum shall be reasonably satisfactory to the Take-Out Bank,
and the full cooperation of senior management of each of the Company, Parent and
DFVC in marketing the Refinancing Securities pursuant to such offering
memorandum for such a period as is customary to complete the sale of securities
such as the Securities (which shall include the participation of members of the
senior management of each of the Company, Parent and DFVC designated by the
Take-Out Bank in "road-show" and other investor meetings, whether by telephone
or in person, in connection with the marketing of the Financing Securities). If
the Initial Loan shall not have been refinanced in full prior thereto, the
Company shall agree that upon notice by the Take-Out Bank (a "Refinancing
Securities Demand"), at any time and from time to time prior to the first
anniversary of the Closing Date, the Parent and/or the Company will cause the
issuance and sale of Refinancing Securities upon such terms and conditions as
specified in the Refinancing Securities Demand; provided that (i) the interest
rates (whether floating or fixed) shall be determined by the Take-Out Bank in
light of the then prevailing market conditions; (ii) the maturity of any
Refinancing Securities shall not be earlier than the eighth anniversary of the
Closing Date; (iii) the Refinancing Securities will be issued pursuant to one or
more indentures substantially in the form of the Senior Subordinated Indenture
and which shall contain such other terms, conditions and covenants as are
customary for similar financings and as are reasonably satisfactory in all
respects to the Take-Out Bank and its counsel and the Company and its counsel;
and (iv) all other arrangements with respect to the Refinancing Securities shall
be reasonably satisfactory in all respects to the Take-Out Bank in light of the
then prevailing market conditions; provided, further, that in no event will the
Company or Parent be required to issue equity interests in connection with a
Refinancing Securities Demand. 7.24. Exchange of Term Notes. The Company and
Parent will, on the fifth Business Day following the written request (the
"Exchange Request") of the holder of any Term Note (or beneficial owner of a
portion thereof):
(i) Execute and deliver, cause each Guarantor to execute and
deliver, and cause a bank or trust company acting as trustee thereunder
to execute and deliver, the Senior Subordinated Indenture, if such
Senior Subordinated Indenture has not previously been executed and
delivered;
(ii) Execute and deliver to such holder or beneficial owner in
accordance with the Senior Subordinated Indenture a note in the form
attached to the Senior Subordinated Indenture (the "Exchange Notes")
bearing interest at the Fixed Rate in exchange for such Term Note dated
the date of the issuance of such Exchange Note, payable to the order of
such holder or owner, as the case may be, in the same principal amount
as such Term Note (or portion thereof) being exchanged, and cause each
Guarantor to endorse its guarantee thereon; and
(iii) Execute and deliver, and cause each Guarantor to execute
and deliver, to such holder or owner, as the case may be, the
Registration Rights Agreement, if the Registration Rights Agreement has
not previously been executed and delivered or, if the Registration
Rights Agreement has previously been executed and delivered and such
holder or owner is not already a party thereto, permit such holder or
owner to become a party thereto.
The Exchange Request shall specify the principal amount of the Term
Notes to be exchanged pursuant to this Section 7.24 which shall be at least
$5,000,000 and integral multiples of $500,000 in excess thereof. Term Notes
delivered to the Company under this Section 7.24 in exchange for Exchange Notes
shall be cancelled by the Company and the corresponding amount of the Term Loan
shall be deemed repaid and the Exchange Notes shall be governed by and construed
in accordance with the terms of the Senior Subordinated Indenture.
The bank or trust company acting as trustee under the Senior
Subordinated Indenture shall at all times be a corporation organized and doing
business under the laws of the United States of America or the State of New
York, in good standing and having its principal offices in the Borough of
Manhattan, in The City of New York, which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
Federal or State authority and which has a combined capital and surplus of not
less than $50,000,000.
7.25. Register. The Company hereby designates the Administrative Agent
to serve as the Company's agent, solely for purposes of this Section 7.25, to
maintain a register (the "Register") on which it will record the Loans made by
each of the Lenders and each repayment in respect of the principal amount of the
Loans of each Lender. Failure to make any such recordation, or any error in such
recordation shall not affect the Company's obligations in respect of such Loans.
With respect to any Lender, the transfer of the Commitments of such Lender and
the rights to the principal of, and interest on, any Loan made pursuant to such
Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Commitments and Loans and prior to such recordation all amounts owing to
the transferor with respect to such Commitments and Loans shall remain owing to
the transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Administrative Agent on the
Register only upon the receipt by the Administrative Agent of a properly
executed and delivered Assignment Agreement pursuant to Section 10.07(a).
Coincident with the delivery of such an Assignment Agreement to the
Administrative Agent for acceptance and registration of assignment or transfer
of all or part of a Loan, or as soon thereafter as practicable, the assigning or
transferor Lender shall surrender the Note evidencing such Loan, and thereupon
one or more new Notes of the same type and in the same aggregate principal
amount shall be issued to the assigning or transferor Lender and/or the new
Lender.
7.26. Senior Subordinated Indenture; Etc. Each of the Company and the
Guarantors shall, on the date it executes and delivers the Senior Subordinated
Indenture and the Exchange Notes and the Refinancing Securities and the
indenture governing the Refinancing Securities (or the guarantees related
thereto, as the case may be), have the full corporate power, authority and
capacity to do so and to perform all of its obligations to be performed
thereunder; all corporate and other acts, conditions and things required to be
done and performed or to have occurred prior to such execution and delivery to
constitute them as valid and legally binding obligations of the Company
enforceable against the Company and the Guarantors in accordance with their
respective terms except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), shall have been done and performed and shall
have occurred in due compliance with all applicable laws; on the date of such
execution and delivery by the Company and the Guarantors, the Senior
Subordinated Indenture and the Exchange Notes and the Refinancing Securities
(and the guarantees) and the indenture governing the Refinancing Securities
shall constitute legal, valid, binding and unconditional obligations of the
Company and the Guarantors, as the case may be, enforceable against the Company
and the Guarantors, as the case may be, in accordance with their respective
terms, except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
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7.27. Amendments or Waivers of Certain Documents. The Company and
Parent shall not, nor shall it cause or permit any of its Subsidiaries to,
directly or indirectly, enter into any amendment, modification, supplement or
waiver with respect to the Senior Credit Facility as in effect on the Closing
Date that would modify any of the provisions thereof or any of the definitions
relating to the provisions thereof in respect of issuances of Refinancing
Securities, the Term Notes or the Exchange Notes in a manner adverse to the
Lenders.
7.28. Release of Covenants upon Conversion; Term Loan Covenants. Upon
any conversion of the Initial Loans into Term Loans pursuant to Section 2.02,
Sections 7.08-7.15 and 7.17-7.20 of this Agreement shall no longer apply to
Parent or any Subsidiary. On and after the conversion of Initial Loans into Term
Loans, Parent and Company agree that, so long as any credit is in use by the
Company hereunder, Parent will, and will cause each Subsidiary to, comply with
the covenants set forth in Annex A (which incorporates certain defined terms
listed in Annex B).
Section 8. Events of Default.
8.01. Events of Default. Each of the following constitutes an event of
default (an "Event of Default"):
(a) failure by the Company to pay interest on any Note when it
becomes due and payable and the continuance of such failure for, if
such failure occurs prior to the Conversion Date, three Business Days,
and, if such failure occurs on or after the Conversion Date, 30 days or
failure by the Company to pay any fee or any other amount payable by it
hereunder or under any other Loan Document when due and the continuance
of any such failure for 30 days (whether or not such payment shall be
prohibited by Section 11);
(b) failure by the Company to pay the principal or premium, if
any, on any Note when it becomes due and payable, whether at stated
maturity, upon redemption (including, without limitation, the failure
to make a payment to purchase or prepay Notes pursuant to Section
2.05(a)(iii)), upon acceleration or otherwise (whether or not such
payment shall be prohibited by Section 11);
(c) failure by Parent or any Subsidiary to comply with any of
its agreements or covenants described in Sections 2.5(a)(iii)(3) or
(4);
(d) failure by Parent or any Subsidiary to comply with any
other covenant herein or in another Loan Document and continuance of
such failure for 60 days after notice of such failure has been given to
the Company by the Administrative Agent or any Lender;
(e) any representation or warranty made herein or in any of
the other Loan Documents or in any statement or certificate furnished
pursuant hereto or thereto, or in connection with any advance or
issuance made hereunder or by any Person in connection with the
transactions contemplated hereby, proves untrue in any material respect
as of the date of the issuance or making thereof;
(f) failure by Parent or any Subsidiary to make any principal
payment when due after the expiration of any applicable grace period in
respect of any Indebtedness of Parent or any Subsidiary, or the
acceleration of the maturity of such Indebtedness by the holders
thereof because of a default, with an aggregate outstanding principal
amount for all such Indebtedness under this clause (f) of $7.5 million
or more;
(g) one or more final, non-appealable judgments or orders that
exceed $7.5 million in the aggregate for the payment of money have been
entered by a court or courts of competent jurisdiction against Parent or
any Subsidiary and such judgment or judgments have not been satisfied,
stayed, annulled or rescinded within 60 days of being entered;
(h) any of the Loan Documents or the Marketing Agreement shall
for any reason not be or shall cease to be in full force and effect, or
any of the Loan Documents or the Marketing Agreement is declared to be
null and void as to any party, or the Parent or any Subsidiary takes any
action for the purpose of repudiating or rescinding any Loan Document
executed by it or the Marketing Agreement;
(i) a Change of Control occurs prior to the Conversion Date;
and
(j) if under any Bankruptcy Law, (A) the Company, Parent or
any Subsidiary commences a voluntary case, consents to the entry of an
order for relief against it in an involuntary case, consents to the
appointment of a Custodian of it or for all or substantially all of its
property, or makes a general assignment for the benefit of its
creditors, or (B) a court of competent jurisdiction enters an order or
decree, and such order or decree remains unstayed and in effect for 60
days, that is for relief against the Company, Parent or any Subsidiary
in an involuntary case, appoints a Custodian of the Company, Parent or
any Subsidiary or for all or substantially all of the property of the
Company, Parent or any Subsidiary, or orders the liquidation of the
Company, Parent or any Subsidiary.
8.02. Non-Bankruptcy Defaults. When any Event of Default described in
subsections 8.01(a) to 8.01(i), inclusive, or Section 8.01(j) (other than with
respect to the Company or the Parent) has occurred and is continuing, the
Administrative Agent may (and shall, upon request of the Majority Lenders), by
notice to the Company, take any or all of the following actions:
(a) declare the principal of and the accrued interest on the
Notes to be forthwith due and payable and thereupon the Notes,
including both principal and interest, and all fees, charges and
commissions payable hereunder, shall be and become immediately due and
payable without further demand, presentment, protest or notice of any
kind; and
(b) enforce any and all rights and remedies available under
the Loan Documents or applicable law.
8.03. Bankruptcy Defaults. When any Event of Default described in
subsection 8.01(j) (with respect to the Company or the Parent) has occurred and
is continuing, then (a) the then unpaid balance of the Notes, including both
principal and interest, and all fees, charges and commissions payable hereunder,
42
shall immediately become due and payable without presentment, demand, protest or
notice of any kind and (b) the Administrative Agent may exercise all remedies
available to it under the Loan Documents or applicable law.
8.04. Willful Default. In the case of an Event of Default occurring
after the Conversion Date by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company with the intention of avoiding
payment of the premium that the Company would have had to pay if the Company
then had elected to prepay the Term Loan under the provisions of Section
2.05(a)(ii)(1), an equivalent premium shall also become and be immediately due
and payable, to the extent permitted by law, upon the acceleration of the Term
Loan. If an Event of Default occurs prior to September 23, 2003 by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding the prohibition on prepayment of the Term Loan
prior to September 23, 2003, then, upon acceleration of the Term Loan, an
additional premium shall also become and be immediately due and payable, to the
extent permitted by law, in an amount equal to 10.0%.
Section 9. Agents.
9.01. General Provisions. Each of the Lenders and Agents hereby
irrevocably appoints the Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof,
together with such actions and powers as are reasonably incidental thereto. The
Administrative Agent agrees to give promptly to each Lender a copy of each
notice or other document received by it pursuant to any Loan Document (other
than any that are required to be delivered to the Lenders by the Company or any
Guarantor).
The Lender or other financial institution serving as any Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not such Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with any Company or other Affiliate
thereof as if it were not such Agent hereunder.
No Agent shall have any duties or obligations except those expressly
set forth herein. Without limiting the generality of the foregoing, (a) no Agent
shall be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing, (b) no Agent shall have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that such Agent is
required to exercise in writing by the Majority Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.05), and (c) except as expressly set forth herein, no
Agent shall have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Parent or any Subsidiary that is
communicated to or obtained by the financial institution serving as such Agent
or any of its Affiliates in any capacity. No Agent shall be liable for any
action taken or not taken by it with the consent or at the request of the
Majority Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 10.05) or in the
absence of its own gross negligence or willful misconduct. No Agent shall be
deemed to have knowledge of any Default unless and until written notice thereof
is given to Administrative Agent and such Agent by the Company or a Lender, and
no Agent shall be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or under any other Loan Document or
in connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Section 5 or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to such
Agent.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing reasonably believed by it to be
genuine and to have been signed or sent by the proper Person. Each Agent also
may rely upon any statement made to it orally or by telephone and believed by it
to be made by the proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for the
Company), independent accountants and other experts reasonably selected by it,
and shall not be liable for any action taken or not taken by it in accordance
with the advice of any such counsel, accountants or experts. Each Agent may deem
and treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with such Agent. Each Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Majority Lenders
(or, if so specified by this Agreement, all Lenders) as it deems appropriate or
it shall first be indemnified to its satisfaction by the 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. Each Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Loan Documents in accordance with a request of the Majority Lenders (or,
if so specified by this Agreement, all Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Loans.
Each Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by such Agent.
Each Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Affiliates, directors,
officers, employees, agents and advisors ("Related Parties"). The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of each Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as such Agent.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, any Agent may resign at any time by notifying the
Lenders and the Company. Upon any such resignation, the Majority Lenders shall
have the right to appoint a successor which, so long as no Default is
continuing, shall be reasonably acceptable to the Company. If no successor shall
have been so appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent which shall be a bank with an office in New York, New York, or
an Affiliate of any such bank. Upon the acceptance of its appointment as Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
The fees payable by the Company to a successor Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Company and such
successor. After the Agent's resignation hereunder, the provisions of this
Section 9.01 shall continue in effect for the benefit of such retiring Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as such Agent.
Each Lender acknowledges that it has, independently and without
reliance upon any Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder. No Agent shall be deemed a trustee or other
fiduciary on behalf of any party.
9.02. Indemnification. Each Lender agrees to indemnify and hold
harmless each Agent (to the extent not promptly reimbursed under Section 10.03,
but without limiting the obligations of the Company under Section 10.03),
ratably in accordance with the aggregate principal amount of the respective
Commitments of and/or Loans held by the Lenders, for any and all liabilities
(including pursuant to any environmental law), obligations, losses, damages,
penalties, actions, judgments, deficiencies, suits, costs, expenses (including
reasonable attorney's fees) or disbursements of any kind and nature whatsoever
that may be imposed on, incurred by or asserted against such Agent (including by
any Lender) arising out of or by reason of any investigation in or in any way
relating to or arising out of any Loan Document or any other documents
contemplated by or referred to therein for any action taken or omitted to be
taken by such Agent under or in respect of any of the Loan Documents or other
such documents or the transactions contemplated thereby (including the costs and
expenses that the Company is obligated to pay under Section 10.03, but
excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or of
any such other documents; provided, however, that no Lender shall be liable for
any of the foregoing to the extent they are determined by a court of competent
jurisdiction in a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of the party to be indemnified. The
agreements set forth in this Section 9.02 shall survive the payment of all Loans
and other obligations hereunder and shall be in addition to and not in lieu of
any other indemnification agreements contained in any other Loan Document.
9.03. Consents Under Other Loan Documents. Except as otherwise provided
in this Agreement and the other Loan Documents, Administrative Agent may, with
the prior consent of the Majority Lenders (but not otherwise), consent to any
modification, supplement or waiver under any of the other Loan Documents.
Section 10. Miscellaneous.
10.01. Waiver of Rights. No delay or failure on the part of any Lender
or the holder or holders of any Note in the exercise of any power or right shall
operate as a waiver thereof or as an acquiescence in any Default, nor shall any
single or partial exercise thereof, or the exercise of any other power or right,
preclude any other right or the further exercise of any other rights. The rights
and remedies hereunder of the Lenders, the Agents, the Lenders and of the holder
or holders of any Note are cumulative to, and not exclusive of, any rights or
remedies which any of them would otherwise have.
10.02. [Reserved].
10.03. Expenses, Indemnification, Etc. (a) The Company and each
Guarantor, jointly and severally, agree to pay or reimburse:
(i) the Arranger and Administrative Agent for all of their
reasonable out-of-pocket costs and expenses (including the reasonable
fees and expenses of legal counsel) in connection with (1) the
negotiation, preparation, execution and delivery of the Loan Documents
and the extension of credit hereunder, (2) the negotiation or
preparation of any modification, supplement or waiver of any of the
terms of any Loan Document (whether or not consummated or effective)
and (3) the primary syndication of the Loans and Commitments;
(ii) each of the Lenders and the Administrative Agent for all
reasonable out-of-pocket costs and expenses of the Lenders and the
Administrative Agent (including the reasonable fees and expenses of
legal counsel) in connection with (1) any Default and any enforcement
or collection proceedings resulting therefrom, including all manner of
participation in or other involvement with (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (y)
judicial or regulatory proceedings and (z) workout, restructuring or
other negotiations or proceedings (whether or not the workout,
restructuring or transaction contemplated thereby is consummated), (2)
the enforcement of this Section 10.03 and (3) any documentary taxes;
and
(iii) each of the Lenders and the Administrative Agent for all
reasonable costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration, recording or
perfection of any security interest contemplated by any Loan Document
or any other document referred to therein.
(b) The Company and each Guarantor, jointly and
severally, hereby agree to indemnify each Agent and each
Lender and their respective Affiliates, directors, trustees,
officers, employees and agents (each, an "Indemnitee") from,
and hold each of them harmless against, and that no Indemnitee
will have any liability for, any and all Losses incurred by
any of them (including any and all Losses incurred by
Administrative Agent or Arranger to any Lender, whether or not
any Creditor is a party thereto) directly or indirectly
arising out of or by reason of or relating to the negotiation,
execution, delivery, performance, administration or
enforcement of any Loan Document, any of the transactions
contemplated by the Loan Documents, any breach by the Company
or any Guarantor of any representation, warranty, covenant or
other agreement contained in any of the Loan Documents or the
use or proposed use of any of the Loans, but excluding any
such Losses to the extent finally determined by a court of
competent jurisdiction in a final and nonappealable judgment
to have arisen from the gross negligence or bad faith of the
Indemnitee.
To the extent that the undertaking to indemnify and hold harmless set
forth in this Section 10.03 or any other provision of any Loan Document
providing for indemnification is unenforceable because it is violative of any
law or public policy or otherwise, the Company and each Guarantor, jointly and
severally, shall contribute the maximum portion that each of them is permitted
to pay and satisfy under applicable law to the payment and satisfaction of all
indemnified liabilities incurred by any of the Persons indemnified hereunder.
The Company and each Guarantor also agree that no Indemnitee shall have
any liability (whether direct or indirect, in contract or tort or otherwise) for
any Losses to the Company or any Guarantor or any Guarantor's security holders
or creditors resulting from, arising out of, in any way related to or by reason
of any matter referred to in any indemnification or expense reimbursement
provisions set forth in this Agreement or any other Loan Document, except to the
extent that any Loss is determined by a court of competent jurisdiction in a
final nonappealable judgment to have resulted from the gross negligence or bad
faith of such Indemnitee.
The Company and each Guarantor agree that, without the prior written
consent of the Administrative Agent, Arranger and the Majority Lenders, which
consent shall not be unreasonably withheld, neither the Company nor any
Guarantor will settle, compromise or consent to the entry of any judgment in any
pending or threatened Proceeding in respect of which indemnification is
reasonably likely to be sought under the indemnification provisions of this
Section 10.03 (whether or not any Indemnitee is an actual or potential party to
such Proceeding), unless such settlement, compromise or consent includes an
unconditional written release of each Indemnitee from all liability arising out
of such Proceeding and does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of any Indemnitee and does
not involve any payment of money or other value by any Indemnitee or any
injunctive relief or factual findings or stipulations binding on any Indemnitee.
10.04. Documentary Taxes. The Company agrees to pay any documentary,
stamp or similar taxes payable in respect of this Agreement or any other Loan
Document, including interest and penalties, in the event any such taxes are
assessed irrespective of when such assessment is made and whether or not any
credit is then in use or available hereunder.
10.05. Amendments, Etc. (i) Any provision of any Loan Document may be
amended, modified or supplemented by an instrument in writing signed by the
Company and the Guarantors party thereto and the Majority Lenders, or by the
Company and the Guarantors party thereto and Administrative Agent acting with
the written consent of the Majority Lenders, and any provision of any Loan
Document may be waived by an instrument in writing signed by the Company and the
Guarantors party thereto and the Majority Lenders, or by the Company and the
Guarantors party thereto and Administrative Agent acting with the written
consent of the Majority Lenders; provided, however, that:
(a) no amendment or waiver shall, unless by an instrument
signed by all of the Lenders or by Administrative Agent acting with the
written consent of each Lender: (I) extend the scheduled final maturity
of any Loan or Note, or reduce the rate of interest or fees thereon, or
extend the time of payment of interest or fees thereon, or reduce the
principal amount thereof, or make any change to the definition of
Applicable Spread, (II) change the currency in which any Loan
Obligation is payable, (III) amend the terms of this Section 10.05 or
Section 3 or 10.07, (IV) reduce the percentages specified in the
definition of the term "Majority Lenders" or amend any provision of any
Loan Document requiring the consent of all the Lenders or reduce any
other percentage of the Lenders required to make any determinations or
waive any rights hereunder or to modify any provision hereof, (V)
release any Guarantor from its obligations under Section 4 (unless
permitted by this Agreement), (VI) consent to the assignment or
transfer by the Company or any Guarantor of any of its rights and
obligations under any Loan Document, (VII) amend Section 10.03 or any
other indemnification and expense reimbursement provision set forth in
any Credit Document, (VIII) modify the provisions of Section 11 or any
of the defined terms related thereto in any manner adverse to the
Lenders, (IX) waive performance by the Company or the Parent of its
obligations under, or consent to any departure from any of the terms
and provisions of, Section 2.05(a)(iii) (it being understood that any
prepayment required by Section 2.05(a)(iii)(1) or (2) may be waived or
amended by the Majority Lenders) or (X) so long as any Lender holds
more than 50% of the outstanding Loans, waive a Default hereunder; and
(b) any modification or supplement of or waiver with respect
to Section 9 which affects any Agent in their respective capacities as
such shall require the consent of such Agent.
(ii) If, in connection with any proposed change,
waiver, discharge or termination of any of the provisions of
this Agreement as contemplated by Section 10.05(i)(a) (other
than clause (I) of such section), the consent of the Majority
Lenders is obtained but the consent of one or more of such
other Lenders whose consent is required is not obtained, then
the Company shall have the right to replace each such
non-consenting Lender or Lenders (so long as all
non-consenting Lenders are so replaced) with one or more
Replacement Lenders in accordance with the provisions of
Section 3.07 so long as at the time of such replacement, each
such Replacement Lender consents to the proposed change,
waiver, discharge or termination; provided, however, that the
Company shall not have the right to replace a Lender solely as
a result of the exercise of such Lender's rights (and the
withholding of any required consent by such Lender) pursuant
to clause (I) of Section 10.05(i)(a).
10.06. Survival of Representations. All representations and warranties
made in the Loan Documents or pursuant thereto or in certificates given pursuant
hereto or thereto shall survive the execution and delivery of this Agreement and
of the other Loan Documents, and shall continue in full force and effect with
respect to the date as of which they were made as long as any credit is in use
or available hereunder.
10.07. Assignments and Participations. (a) Neither the Company nor any
Guarantor may assign its respective rights or obligations hereunder or under the
Notes or any other Loan Document without the prior written consent of all of the
Lenders.
(b) Each Lender may assign to any Eligible Person any of its Loans, its
Notes and its Commitments (but only with the consent (which shall not be
unreasonably withheld, delayed or conditioned) of the Company and the Primary
Lender); provided, however, that (i) no such consent by the Company or the
Primary Lender shall be required in the case of any assignment to another Lender
or any Lender's Affiliate or an Approved Fund of any Lender (in which case, the
assignee and assignor Lenders shall give notice of the assignment to Arranger);
(ii) no consent of the Company need be obtained if any Default shall have
occurred and be continuing; (iii) each assignment, other than to a Lender or any
Lender's Affiliate or an Approved Fund of any Lender and other than any
assignment effected by the Primary Lender or any of its Affiliates in connection
with the syndication of the Commitments and/or Loans, shall be in an aggregate
amount at least equal to $5.0 million unless the assigning Lender's exposure is
reduced to $0 or unless the Company and Arranger otherwise agree and (iv) in no
event may any such assignment be made to the Company or any Guarantor or any of
its Affiliates without consent of all Lenders. Any assignment of a Loan shall be
effective only upon appropriate entries with respect thereto being made in the
Register (and each Note shall expressly so provide). Any assignment or transfer
of a Loan shall be registered on the Register only upon surrender for
registration of assignment or transfer of the Note evidencing such Loan,
accompanied by an instrument in writing substantially in the form of Exhibit E,
and upon consent thereto by the Company and Arranger to the extent required
above, one or more new Notes in the same aggregate principal amount shall be
issued to the designated assignee and the old Notes shall be returned by the
Administrative Agent to the Company marked "canceled". Upon execution and
delivery by the assignee to the Company and Arranger of an instrument in writing
substantially in the form of Exhibit E, and upon consent thereto by the Company
and Arranger to the extent required above, and in the case of a Loan, upon
appropriate entries being made in the Register, the assignee shall have, to the
extent of such assignment (unless otherwise provided in such assignment with the
consent of Administrative Agent), the obligations, rights and benefits of a
Lender hereunder holding the Commitment(s) and Loans (or portions thereof)
assigned to it (in addition to the Commitment(s) and Loans, if any, theretofore
held by such assignee) and the assigning Lender shall, to the extent of such
assignment, be released from the Commitment(s) (or portion(s) thereof) so
assigned. Upon any such assignment (other than to a Lender or any Affiliate of a
Lender or an Approved Fund of any Lender and other than any assignment by the
Primary Lender or any of its Affiliates) the assignee Lender shall pay a fee of
$3,500 to Administrative Agent. Upon any such assignment, certain rights and
obligations of the assigning Lender shall survive as set forth in Section 10.13.
(c) A Lender may sell or agree to sell to one or more other Persons a
participation in all or any part of any Loans held by it, or in its Commitments,
in which event each purchaser of a participation (a "Participant") shall be
entitled to the rights and benefits of the provisions of Section 3 (provided,
however, that no Participant shall be entitled to receive any greater amount
pursuant to Section 3 than the transferor Lender would have been entitled to
receive in respect of the participation effected by such transferor Lender had
no participation occurred) with respect to its participation in such Loans and
Commitments as if such Participant were a "Lender" for purposes of said Section,
but, except as otherwise provided in Section 10.08(c), shall not have any other
rights or benefits under this Agreement or any Note or any other Loan Document
(the Participant's rights against such Lender in respect of such participation
to be those set forth in the agreements executed by such Lender in favor of the
Participant). All amounts payable by the Company to any Lender under Section 3
in respect of Loans and its Commitments shall be no greater than the amount that
would have applied if such Lender had not sold or agreed to sell any
participation in such Loans and Commitments, and as if such Lender were funding
each of such Loan and Commitments in the same way that it is funding the portion
of such Loan and Commitments in which no participations have been sold. In no
event shall a Lender that sells a participation agree with the Participant to
take or refrain from taking any action hereunder or under any other Loan
Document, except that such Lender may agree with the Participant that it will
not, without the consent of the Participant, agree to any modification or
amendment set forth in subclauses (I), (II), (III) or (VII) of clause (a) of the
proviso to Section 10.05.
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 10.07, any Lender may assign and pledge
all or any portion of its Loans and its Notes to any United States Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank and, in the case of a Lender that is an investment
fund, any such Lender may assign or pledge all or any portion of its Loans and
its Notes to its trustee in support of its obligations to its trustee, without
notice to or consent of the Company, Administrative Agent or Arranger. No such
assignment shall release the assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning Parent or any
Subsidiary in the possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants) subject,
however, to the provisions of Section 10.17. In addition, each of the
Administrative Agent and Arranger may furnish any information concerning the
Company or any Guarantor or any of its Affiliates in the Administrative Agent's
or Arranger's possession to any Affiliate of the Administrative Agent or
Arranger, subject, however, to the provisions of Section 10.17. The Company and
each Guarantor shall assist any Lender in effectuating any assignment or
participation pursuant to this Section 10.07 (including during syndication) in
whatever manner such Lender reasonably deems necessary, including participation
in meetings with prospective transferees.
(f) The Primary Lender shall receive a processing fee of $3,500 per
each assignment payable by the assignor and/or the assignee.
10.08. Right of Setoff; Sharing of Payments; Etc. (a) If any Event of
Default shall have occurred and be continuing, each of the Company and the
Guarantors agrees that, in addition to (and without limitation of) any right of
setoff, banker's lien or counterclaim a Lender may otherwise have, each Lender
shall be entitled, at its option (to the fullest extent permitted by law), to
set off and apply any deposit (general or special, time or demand, provisional
or final), or other indebtedness, held by it for the credit or account of the
Company or such Guarantor at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Lender's Loans or
any other amount payable to such Lender hereunder that is not paid when due
(regardless of whether such deposit or other indebtedness is then due to the
Company or such Guarantor), in which case it shall promptly notify the Company
or such Guarantor and the Administrative Agent thereof; provided, however, that
such Lender's failure to give such notice shall not affect the validity thereof.
(b) Each of the Lenders agrees that, if it should receive (other than
pursuant to Section 3) any amount hereunder (whether by voluntary payment, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Loan Documents, or otherwise)
which is applicable to the payment of the principal of, or interest on, the
Loans or fees, of a sum which with respect to the related sum or sums received
by other Lenders is in a greater proportion than the total of such amounts then
owed and due to such Lender bears to the total of such amounts then owed and due
to all of the Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Lenders an interest in the Loan Obligations of the
Company or such Guarantor to such Lenders in such amount as shall result in a
proportional participation by all of the Lenders in such amount; provided,
however, that if all or any portion of such excess amount is thereafter
recovered from such Lender, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest. The Company
consents to the foregoing arrangements.
(c) The Company agrees that any Lender so purchasing such a
participation may exercise all rights of setoff, banker's lien, counterclaim or
similar rights with respect to such participation as fully as if such Lender
were a direct holder of Loans or other amounts (as the case may be) owing to
such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other Indebtedness or
obligation of the Company or any Guarantor. If, under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a setoff to which this Section 10.08 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this Section 10.08 to
share in the benefits of any recovery on such secured claim.
10.09. Lending Offices. Each Lender may, at its option, elect to make
its Loans hereunder at the branch, office or affiliate specified on the
appropriate signature page hereof (each a "lending office") or at such other of
its branches, offices or affiliates as it may from time to time elect and
designate in a notice to the Company and the Administrative Agent (but such
funds shall in any event be made available to the Company at the office of the
Administrative Agent as herein provided for).
10.10. Discretion of Banks as to Manner of Funding. Notwithstanding any
other provision of this Agreement, each Lender shall be entitled to fund and
maintain its funding of all or any part of its Loans in any manner it sees fit,
it being understood, however, that for the purposes of this Agreement all
determinations under this Agreement (including, without limitation, calculations
under Sections 3.01 and 3.04 hereof) shall be made as if each Lender had
actually funded and maintained its interest in each Loan through the purchase of
deposits in the offshore interbank market having a maturity corresponding to
such Loan's Interest Period and bearing an interest rate equal to LIBOR Rate for
such Interest Period.
10.11. Notices. All communications provided for herein shall be in
writing or by telecopy, except as otherwise specifically provided for
hereinabove, addressed, if to the Parent, the Company or the Guarantors at 00
Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000, Attention: Chief Financial Officer or if
to the Administrative Agent or Lenders at their respective addresses set forth
opposite their respective signatures hereto or an Assignment Agreement to which
they are a party, or at such other address as shall be designated by any party
hereto in a written notice to each other party pursuant to this Section 10.11.
Any notice in writing shall be deemed to have been given or made when served
personally or three (3) days after being mailed (properly addressed) if sent by
United States mail or upon receipt, if sent by telecopy; provided that any
notice to the Administrative Agent or any Lender under Section 2 hereof shall
only be effective upon receipt.
10.12. [Reserved].
10.13. [Reserved].
10.14. [Reserved].
10.15. Counterparts; Interpretation; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, any separate
letter agreements with respect to fees payable to Administrative Agent and those
certain assignment agreements each dated as of September 17, 1998 by and between
USB AG, Stamford Branch, and Xxxxxx Trust and Savings Bank and UBS AG, Stamford
Branch, and Bank of Montreal, Chicago Branch constitute the entire contract
among the parties relating to the subject matter hereof and supersede any and
all previous agreements and understandings, oral or written, relating to the
subject matter hereof, other than the indemnity, confidentiality, waiver of jury
trial and governing law provisions of the Commitment Letter, which are not
superseded and survive. Except as provided in Section 5.01, this Agreement shall
become effective when it shall have been executed by Administrative Agent and
when Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
10.16. Headings. Section headings used in this Agreement are for
reference only and shall not affect the construction of this Agreement.
10.17. Confidentiality. Any information disclosed by the Parent or any
of its Subsidiaries to the Administrative Agent or any of the Lenders shall be
used solely for purposes of this Agreement and for the purpose of determining
whether or not to extend other credit or financial accommodations to the Company
or its Subsidiaries and, if such information is not otherwise in the public
domain, shall not be disclosed by the Administrative Agent or such Lender to any
other Person except (i) to its independent accountants and legal counsel (it
being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such information and instructed to keep
such information confidential), (ii) pursuant to statutory and regulatory
requirements, (iii) pursuant to any mandatory court order, subpoena or other
legal process, provided that such Lender or the Administrative Agent, as
applicable, shall give the Company prior written notice of any such disclosure
if lawful, (iv) to the Administrative Agent or any other Lender, (v) pursuant to
any agreement heretofore or hereafter made between such Lender and the Company
which permits such disclosure, (vi) in connection with the exercise of any right
or remedy under the Loan Documents, or (vii) subject to an agreement containing
provisions substantially similar in effect to those of this Section, to any
participant in or assignee of, or prospective participant in or assignee of, any
Obligation or Loan.
10.18. Waiver of Stay, Extension or Usury Laws. Each of the Company and
the Guarantors covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or other
law that would prohibit or forgive the Company or such Guarantor from paying all
or any portion of the principal of or interest on the Loans as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Agreement; and (to the extent
that it may lawfully do so) each of the Company and the Guarantors hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Administrative Agent, but will suffer and permit the execution of every such
power as though no such law had been enacted. 10.19. Governing Law; Submission
to Jurisdiction; Waivers; Etc. Each Loan Document shall be governed by, and
construed in accordance with, the law of the State of New York, without regard
to the principles of conflicts of laws thereof (except in the case of the other
Loan Documents, to the extent otherwise expressly stated therein). The Company
and each Guarantor hereby irrevocably and unconditionally: (I) submits for
itself and its Property in any Proceeding relating to any Loan Document to which
it is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Supreme Court of the
State of New York sitting in New York County, the courts of the United States of
America for the Southern District of New York, and appellate courts from any
thereof; (II) consents that any such Proceeding may be brought in any such court
and waives trial by jury and any objection that it may now or hereafter have to
the venue of any such Proceeding in any such court or that such Proceeding was
brought in an inconvenient court and agrees not to plead or claim the same;
(III) agrees that service of process in any such Proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the Company at its address set forth
in Section 10.11 or at such other address of which Administrative Agent shall
have been notified pursuant thereto; and (IV) agrees that nothing herein shall
affect the right to effect service of process in any other manner permitted by
law or shall limit the right to xxx in any other jurisdiction.
10.20. WAIVER OF JURY TRIAL. THE COMPANY, THE GUARANTORS, THE AGENTS
AND THE LENDERS EACH WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN THE AGENTS OR
EITHER OF THEM, ANY LENDER AND THE COMPANY AND/OR ANY OF THE GUARANTORS ARISING
OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT
OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO. THE COMPANY, THE GUARANTORS, THE AGENTS AND THE LENDERS EACH
HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY OF THEM MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
10.21. Independence of Representations, Warranties and Covenants. The
representations, warranties and covenants contained herein shall be independent
of each other and no exception to any representation, warranty or covenant shall
be deemed to be an exception to any other representation, warranty or covenant
contained herein unless expressly provided, nor shall any such exception be
deemed to permit any action or omission that would be in contravention of
applicable law. Notwithstanding anything herein to the contrary, any matter
identified on a Schedule to this Agreement shall be deemed to be set forth on
all other Schedules to this Agreement for purposes of determining compliance
with any of the representations, warranties or covenants contained herein.
10.22. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provisions or the remaining provisions of this Agreement.
10.23. Acknowledgments. Each of the Company and the Guarantors hereby
acknowledge that: (a) each of them has been advised by counsel in connection
with the negotiation, execution and delivery of the Loan Documents; (b) no
Lender or Agent has any fiduciary or similar relationship to the Company or any
Guarantor and the relationship between the Lenders and Agent on the one hand,
and the Company and Guarantors, on the other hand, is solely that of debtor and
creditor; and (c) no joint venture exists among the Lenders and Agent or among
the Company and Guarantors and the Lenders and Agent.
Section 11. Subordination.
11.01. Agreement to Subordinate. The Company and each Guarantor agrees,
and each Lender by accepting a Note agrees, that the payment by the Company of
principal of, and premium, if any, and interest on the Loans and Notes, and by
each Guarantor of such amounts under its Guarantee (collectively, the "Loan
Indebtedness"), are subordinated to the prior payment in full in cash when due
of the principal of, and premium, if any, and accrued and unpaid interest on and
all other amounts owing in respect of all existing and future Senior
Indebtedness of the Company and of such Guarantor, as the case may be.
11.02. Liquidation; Dissolution; Bankruptcy. Upon any payment or
distribution to creditors of the Company or any Guarantor of the assets of the
Company or such Guarantor, as the case may be, of any kind or character in a
total or partial liquidation or dissolution of the Company or such Guarantor, as
the case may be, or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or such Guarantor, as the case may
be, whether voluntary or involuntary (including any assignment for the benefit
of creditors and proceedings for marshaling of assets and liabilities of the
Company or such Guarantor, as the case may be) (a "Insolvency or Liquidation
Proceeding"), the holders of all Senior Indebtedness of the Company or such
Guarantor, as the case may be, then outstanding will be entitled to payment in
full in cash (including interest accruing subsequent to the filing of petition
of bankruptcy or insolvency at the rate specified in the document relating to
the applicable Senior Indebtedness, whether or not such interest is an allowed
claim enforceable against the Company or such Guarantor, as the case may be,
under applicable law) before the Lenders are entitled to receive any payment on
or with respect to the Loan Indebtedness from the Company or such Guarantor, as
the case may be, and until all Senior Indebtedness of the Company or such
Guarantor, as the case may be, receives payment in full in cash, any
distribution to which the Lenders would be entitled will be made to holders of
Senior Indebtedness of the Company or such Guarantor, as the case may be.
11.03. No Payment on Loans and Notes in Certain Circumstances. (a) Upon
the occurrence of any default in the payment of any principal of or interest on
or other amounts due on any Designated Senior Indebtedness of the Company or any
Guarantor (a "Payment Default"), no payment of any kind or character shall be
made by the Company or such Guarantor, as the case may be (or by any other
Person on its or their behalf), with respect to the Loan Indebtedness unless and
until (i) such Payment Default shall have been cured or waived in accordance
with the instruments governing such Designated Senior Indebtedness or shall have
ceased to exist, (ii) such Designated Senior Indebtedness has been discharged or
paid in full in cash in accordance with the instruments governing such
Designated Senior Indebtedness or (iii) the benefits of this sentence have been
waived by the holders of such Designated Senior Indebtedness or their
representative immediately after which the Company or such Guarantor, as the
case may be, must resume making any and all required payments, including missed
payments, in respect of its obligations under the Loans and Notes.
(b) Upon (i) the occurrence and continuance of an event of default
(other than a Payment Default) relating to Designated Senior Indebtedness of the
Company or any Guarantor, as such event of default is defined therein or in the
instrument or agreement under which such Designated Senior Indebtedness is
outstanding, which event of default, pursuant to the instruments governing such
Designated Senior Indebtedness, entitles the holders (or a specified portion of
the holders) of such Designated Senior Indebtedness or their designated
representative to immediately accelerate without further notice (except such
notice as may be required to effect such acceleration) or the expiration of any
applicable grace period the maturity of such Designated Senior Indebtedness
(whether or not such acceleration has actually occurred) (a "Non-payment
Default") and (ii) the receipt by the Administrative Agent and the Company or
such Guarantor, as the case may be, from the trustee or other representative of
holders of such Designated Senior Indebtedness of written notice (a "Payment
Blockage Notice") of such occurrence, no payment is permitted to be made by the
Company or such Guarantor, as the case may be (or by any other Person on its or
their behalf), in respect of the Loan Indebtedness for a period (a "Payment
Blockage Period") commencing on the date of receipt by the Administrative Agent
of such notice and ending on the earliest to occur of the following events
(subject to any blockage of payments that may then be in effect due to a Payment
Default on Designated Senior Indebtedness): (w) such Non-payment Default has
been cured or waived or has ceased to exist; (x) a 179-consecutive-day period
commencing on the date such written notice is received by the Administrative
Agent has elapsed; (y) such Payment Blockage Period has been terminated by
written notice to the Administrative Agent from the trustee or other
representative of holders of such Designated Senior Indebtedness, whether or not
such Non-payment Default has been cured or waived or has ceased to exist; and
(z) such Designated Senior Indebtedness has been discharged or paid in full in
cash, immediately after which, in the case of clause (w), (x), (y) or (z), the
Company or such Guarantor, as the case may be, must resume making any and all
required payments, including missed payments, in respect of its obligations
under the Loans and Notes. Notwithstanding the foregoing, (A) not more than one
Payment Blockage Period may be commenced in any period of 360 consecutive days
and (B) no default or event of default with respect to the Designated Senior
Indebtedness of the Company or such Guarantor, as the case may be, that was the
subject of a Payment Blockage Notice which existed or was continuing on the date
of the giving of any Payment Blockage Notice shall be or serve as the basis for
the giving of a subsequent Payment Blockage Notice whether or not within a
period of 360 consecutive days unless such default or event of default shall
have been cured or waived for a period of at least 90 consecutive days after
such date. Notwithstanding anything to the contrary, in no event may the total
number of days during which any Payment Blockage Period or Periods are in effect
exceed 179 days in the aggregate during any 360 day consecutive period.
(c) Notwithstanding the foregoing, the Lenders may receive and retain
Permitted Junior Securities, and no such receipt or retention will be
contractually subordinated in right of payment to any Senior Indebtedness or
subject to the restrictions described in this Section 11.
11.04. Acceleration of Notes. If payment of the Loans and Notes is
accelerated because of an Event of Default, the Company shall promptly notify
the administrative agent under the Senior Credit Facility and each holder (or
Representative thereof) of the Senior Indebtedness of the Company or any
Guarantor of the acceleration.
11.05. When Distributions Must Be Paid Over. In the event that any
payment or distribution of assets of the Company or any Guarantor, whether in
cash, property or securities, shall be received by the Administrative Agent or
the Lenders at a time when such payment or distribution is prohibited by this
Section 11, such payment or distribution shall be segregated from other funds or
assets and held in trust for the benefit of the holders of Senior Indebtedness
of the Company or such Guarantor, as the case may be, and shall be paid or
delivered by the Administrative Agent or such Lenders, as the case may be, to
the holders of the Senior Indebtedness of the Company or such Guarantor, as the
case may be, remaining unpaid or unprovided for or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Senior Indebtedness of the Company
or such Guarantor, as the case may be, may have been issued, ratably according
to the aggregate amounts remaining unpaid on account of the Senior Indebtedness
of the Company or such Guarantor, as the case may be, held or represented by
each, for application to the payment of all Senior Indebtedness of the Company
or such Guarantor, as the case may be, remaining unpaid, to the extent necessary
to pay or to provide for the payment in full in cash of all such Senior
Indebtedness after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness.
With respect to the holders of Senior Indebtedness of the Company or
any Guarantor, the Administrative Agent undertakes to perform only such
obligations on its part as are specifically set forth in this Section 11, and no
implied covenants or obligations with respect to any holders of the Senior
Indebtedness of the Company or any Guarantor shall be read into this Agreement
against the Administrative Agent. The Administrative Agent shall not be deemed
to owe any fiduciary duty to the holders of the Senior Indebtedness of the
Company or any Guarantor and shall not be liable to any holders of such Senior
Indebtedness if the Administrative Agent shall pay over or distribute to, or on
behalf of, the Lenders or the Company or any other Person, money or assets to
which any holders of such Senior Indebtedness are entitled pursuant to this
Section 11, except if such payment is made at a time when the Administrative
Agent has knowledge that the terms of this Section 11 prohibit such payment.
11.06. Notice. The Administrative Agent shall not at any time be
charged with the knowledge of the existence of any facts that would prohibit the
making of any payment to or by the Administrative Agent under this Section 11,
unless and until the Administrative Agent shall have received written notice
thereof from the Company or such Guarantor or one or more holders of the Senior
Indebtedness of the Company or such Guarantor, as the case may be, or a
Representative of any holders of such Senior Indebtedness; and, prior to the
receipt of any such written notice, the Administrative Agent shall be entitled
to assume conclusively that no such facts exist. The Administrative Agent shall
be entitled to rely on the delivery to it of written notice by a Person
representing itself to be a holder of the Senior Indebtedness of the Company or
a Guarantor (or a Representative thereof) to establish that such notice has been
given.
The Company shall promptly notify the Administrative Agent in writing
of any facts it knows that would cause a payment of principal of, or premium, if
any, or interest on, the Loans and Notes to violate this Section 11, but failure
to give such notice shall not affect the subordination of the Loans and Notes to
the Senior Indebtedness of the Company or any Guarantor provided in this Section
11 or the rights of holders of such Senior Indebtedness under this Section 11.
11.07. Subrogation. After all Senior Indebtedness of the Company or any
Guarantor has been paid in full in cash and until the Loans and Notes are paid
in full, the Lenders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Loans and Notes) to the rights of holders of
such Senior Indebtedness to receive distributions applicable to such Senior
Indebtedness to the extent that distributions otherwise payable to the Lenders
have been applied to the payment of such Senior Indebtedness. A distribution
made under this Section 11 to holders of the Senior Indebtedness of the Company
or any Guarantor that otherwise would have been made to Lenders is not, as
between the Company or such Guarantor, as the case may be, and the Lenders, a
payment by the Company or such Guarantor, as the case may be, on its Senior
Indebtedness.
11.08. Relative Rights. This Section 11 defines the relative rights of
the Lenders and holders of the Senior Indebtedness of the Company or any
Guarantor. Nothing in this Agreement shall: (1) impair, as between the Company
or a Guarantor, as the case may be, and the Lenders, the obligations of the
Company or any Guarantor, which are absolute and unconditional, to pay principal
of, and premium, if any, and interest on the Loans and Notes in accordance with
their terms; (2) affect the relative rights of the Lenders and the creditors of
the Company or any Guarantor other than their rights in relation to holders of
the Senior Indebtedness of the Company or any Guarantor; or (3) prevent the
Administrative Agent or any Lender from exercising its available remedies upon a
Default or Event of Default, subject to the rights of holders of the Senior
Indebtedness of the Company or any Guarantor to receive distributions and
payments otherwise payable to the Lenders.
Nothing contained in this Section 11 or elsewhere herein or in any Note
is intended to or shall impair, as between the Company, any Guarantor and the
Lenders, the obligations of the Company and the Guarantors, which are absolute
and unconditional, to pay to the Lenders the principal of, and premium, if any,
and interest on the Loans and Notes as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Lenders and creditors of the Company and the Guarantors
other than the holders of the Senior Indebtedness of the Company or any
Guarantor, nor shall anything herein or therein prevent the Administrative Agent
or any Lender from exercising all remedies otherwise permitted by applicable law
upon Default hereunder, subject to the rights, if any, under this Section 11 of
the holders of such Senior Indebtedness.
The failure to make a payment on account of principal of, or interest
on the Loans and Notes by reason of any provision of this Section 11 shall not
be construed as preventing the occurrence of an Event of Default under Section
8.01.
11.09. The Company, Guarantors and Lenders May Not Impair
Subordination. (a) No right of any holder of the Senior Indebtedness of the
Company or any Guarantor to enforce the subordination as provided in this
Section 11 shall at any time or in any way be prejudiced or impaired by any act
or failure to act by the Company or any Guarantor or by any noncompliance by the
Company or any Guarantor with the terms, provisions and covenants of this
Agreement or the Notes or any other agreement regardless of any knowledge
thereof with which any such holder may have or be otherwise charged.
(b) Without in any way limiting Section 11.09(a), the holders of any
Senior Indebtedness of the Company or any Guarantor may, at any time and from
time to time to the extent not otherwise prohibited by this Agreement, without
the consent of or notice to any Lenders, without incurring any liabilities to
any Lender and without impairing or releasing the subordination and other
benefits provided in this Agreement or the Lenders' obligations to the holders
of such Senior Indebtedness, even if any Lender's right of reimbursement or
subrogation or other right or remedy is affected, impaired or extinguished
thereby, do any one or more of the following: (i) amend, renew, exchange,
extend, modify, increase or supplement (to the extent permitted hereunder) in
any manner such Senior Indebtedness or any instrument evidencing or guaranteeing
or securing such Senior Indebtedness or any agreement under which such Senior
Indebtedness is outstanding (including, but not limited to, changing the manner,
place or terms of payment or changing or extending the time of payment of, or
renewing, exchanging, amending, increasing or altering (to the extent permitted
hereunder), (x) the terms of such Senior Indebtedness, (y) any security for, or
any guarantee of, such Senior Indebtedness, (z) any liability of any obligor on
such Senior Indebtedness (including any guarantor) or any liability incurred in
respect of such Senior Indebtedness) (ii) sell, exchange, release, surrender,
realize upon, enforce or otherwise deal with in any manner and in any order any
property pledged, mortgaged or otherwise securing such Senior Indebtedness or
any liability of any obligor thereon, to such holder, or any liability incurred
in respect thereof; (iii) settle or compromise any such Senior Indebtedness or
any other liability of any obligor of such Senior Indebtedness to such holder or
any security therefor or any liability incurred in respect thereof and apply any
sums by whomsoever paid and however realized to any liability (including,
without limitation, payment of any of the Senior Indebtedness) in any manner or
order; and (iv) fail to take or to record or otherwise perfect, for any reason
or for no reason, any lien or security interest securing such Senior
Indebtedness by whomsoever granted, exercise or delay in or refrain from
exercising any right or remedy against any obligor or any guarantor or any other
Person, elect any remedy and otherwise deal freely with any obligor and any
security for such Senior Indebtedness or any liability of any obligor to the
holders of such Senior Indebtedness or any liability incurred in respect of such
Senior Indebtedness.
11.10. Distribution or Notice to Representative. Whenever a
distribution is to be made, or a notice given, to holders of Senior Indebtedness
of the Company or any Guarantor, the distribution may be made and the notice
given to their Representative, if any. If any payment or distribution of the
Company's assets is required to be made to holders of any of the Senior
Indebtedness of the Company or any Guarantor pursuant to this Section 11, the
Administrative Agent and the Lenders shall be entitled to rely upon any order or
decree of any court of competent jurisdiction, or upon any certificate of a
Representative of such Senior Indebtedness or a custodian therefor, in
ascertaining the holders of such Senior Indebtedness entitled to participate in
any such payment or distribution, the amount to be paid or distributed to
holders of such Senior Indebtedness and all other facts pertinent to such
payment or distribution or to this Section 11.
11.11. Rights of Administrative Agent. The Administrative Agent may
continue to make payments on the Loans and Notes unless prior to any payment
date it has received written notice of facts that would cause a payment of
principal of, or premium, if any, or interest on the Loans and Notes to violate
this Section 11. Only the Company, a Guarantor, a Representative of Senior
Indebtedness, or a holder of Senior Indebtedness that has no Representative may
give such notice.
The Administrative Agent in its individual or any other capacity may
hold Indebtedness of the Company or any Guarantor (including Senior
Indebtedness) with the same rights it would have if it were not the
Administrative Agent.
11.12. Authorization to Effect Subordination. Each Lender by its
acceptance of a Note authorizes and directs the Administrative Agent on its
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Section 11, and appoints the Administrative
Agent as such Lender's attorney-in-fact for any and all such purposes
(including, without limitation, the timely filing of a claim for the unpaid
balance of the Loan and Note of such Lender in the form required in any
Insolvency or Liquidation Proceeding and causing such claim to be approved).
If a proper claim or proof of debt in the form required in such
proceeding is not filed by or on behalf of all Lenders prior to 30 days before
the expiration of the time to file such claims or proofs, then the holders or a
Representative of any Senior Indebtedness of the Company or any Guarantor are
hereby authorized, and shall have the right (without any duty), to file an
appropriate claim for and on behalf of the Lenders.
[Signature Pages Follow]
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
AGRILINK FOODS, INC., as the Company
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Power
Title: Chief Financial Officer
PRO-FAC COOPERATIVE, INC., as a Guarantor
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President Finance and
Assistant Treasurer
LINDEN OAKS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Pesident
XXXXXXX ENDEAVORS, INCORPORATED
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President and Secretary
UBS AG, Stamford Branch,
as Administrative Agent
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Executive Director Loan
Portfolio Support, US
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Director Global Project Finance
Address for Notices:
UBS AG, Stamford Branch
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Attention:
WARBURG DILLON READ LLC,
as Syndication Agent, and Arranger
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Managing Director
Leveraged Finance
By: /s/ Xxxxx Xxxxxxxxx
Name: Associate Director
Title: Leveraged Finance
Address for Notices:
Warburg Dillon Read LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
LENDER:
Initial Commitment Amount: $140,000,000 UBS AG, Stamford Branch
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Executive Director Loan
Portfolio Support US
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Director Global Project
Finance
Address for Notices:
UBS AG, Stamford Branch
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Attention:
LENDER:
Initial Commitment Amount: $20,000,000 XXXXXX TRUST AND SAVINGS BANK
By: /s/ H. Xxxx Xxxxxx
Name: H. Xxxx Xxxxxx
Title: Vice President
Address for Notices:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Agribusiness Division
LENDER:
Initial Commitment Amount: $40,000,000 BANK OF MONTREAL, Chicago Branch
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Director
Address for Notices:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Distribution
A-7
Annex A
Term Loan Covenants
Section A-1. Limitations on Additional Indebtedness. (a) The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, incur any Indebtedness (including without limitation Acquired
Indebtedness); provided that (i) the Company and its Restricted Subsidiaries may
incur Permitted Indebtedness and (ii) if no Default or Event of Default shall
have occurred and be continuing at the time of or as a consequence of the
incurrence of any such Indebtedness, the Company may incur additional
Indebtedness if, after giving effect thereto, the Company's Consolidated
Interest Coverage Ratio on the date thereof would be at least 2.0 to 1.0,
determined on a pro forma basis as if the incurrence of such additional
Indebtedness, and the application of the net proceeds therefrom, had occurred at
the beginning of the four-quarter period used to calculate the Company's
Consolidated Interest Coverage Ratio.
(b) Anything contained in this Section A-1 notwithstanding, the Company
may make demand loans to the Parent for working capital purposes aggregating in
an amount not exceeding $40.0 million at any time outstanding, each such demand
loan bearing an interest rate equal to the interest rate in effect on the date
of such loan under the Revolving Loan Facility; provided, however, that the
aggregate loan balance of such demand loans must be reduced to zero for a period
of not less than 15 consecutive days in each fiscal year. Except for (i) the
demand loans described in the preceding sentence, (ii) the Parent's guarantee
under the Senior Credit Facility, and (iii) the Parent's Guarantee of the Loan
Obligations under this Agreement, as long as the Parent has the right to borrow
under the Marketing Agreement, the Parent shall not incur any Indebtedness (it
being understood that the Parent's obligations in respect of retained earnings
allocated to its members shall not be deemed to be Indebtedness).
Section A-2. Payments Pursuant to the Marketing Agreement;
Reinvestments by the Parent. As promptly as practicable, and in any event within
ten Business Days, after receipt from the Company of any payment made in excess
of the Commercial Market Value for crops and other services pursuant to the
Marketing Agreement, the Parent will invest in cash as common equity interests
(other than Disqualified Capital Stock) in the Company an amount equal to 70% of
such excess. Without the consent of the holders of at least 75% in principal
amount of the Term Notes then outstanding, the Company will not: (a) amend the
calculation of amounts payable to the Parent under the Marketing Agreement in a
manner which would increase the payments made to the Parent or (b) amend the
Marketing Agreement to require that Affiliate Transactions involving the Parent
be approved by less than a majority of the Disinterested Directors.
Section A-3. Limitation on the Issuance of Capital Stock of Restricted
Subsidiaries. The Company will not permit any Restricted Subsidiary, directly or
indirectly, to issue or sell any shares of its Capital Stock (including options,
warrants or other rights to purchase shares of such Capital Stock) except (i) to
the Company or a Wholly-Owned Restricted Subsidiary, (ii) if, immediately after
giving effect to such issuance or sale, such Restricted Subsidiary would no
longer constitute a Restricted Subsidiary or (iii) to the extent such shares
represent directors' qualifying shares or shares required by applicable law to
be held by a Person other than the Company or a Wholly-Owned Restricted
Subsidiary. The proceeds of any sale of Capital Stock permitted hereunder and
referred to in clauses (ii) and (iii) above will be treated as Net Asset Sale
Proceeds and must be applied in a manner consistent with the provisions of the
Section 2.05 (a) (iii) (4).
Section A-4. Limitations on Layering Debt. Neither the Company nor any
Guarantor will incur any Indebtedness that is subordinate or junior in right of
payment to any Senior Indebtedness of the Company or such Guarantor, as the case
may be, unless such Indebtedness by its terms is pari passu with, or
subordinated to, the Term Loans and Term Notes or the Guarantee of such
Guarantor, as the case may be.
Section A-5. Limitations on Restricted Payments. (a) The Company will
not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, make any Restricted Payment (except as permitted below) if at the
time of such Restricted Payment:
(1) a Default or Event of Default shall have occurred and be
continuing or shall occur as a consequence thereof;
(2) the Company would be unable to meet the Coverage Ratio
Incurrence Condition; or
(3) the amount of such Restricted Payment, when added to the
aggregate amount of all other Restricted Payments (except as expressly
provided in the second paragraph under paragraph (b) of this Section
A-5) made on or after the first day of the last completed fiscal
quarter of the Company, exceeds the sum of (A) 50% of the Company's
Consolidated Net Income (taken as one accounting period) from the first
day of the last completed fiscal quarter of the Company to the end of
the Company's most recently ended fiscal quarter for which financial
statements are available at the time of such Restricted Payment (or, if
such aggregate Consolidated Net Income shall be a deficit, minus 100%
of such aggregate deficit) plus (B) the net cash proceeds from the
issuance and sale (other than to a Subsidiary of the Company or the
Parent) after the Conversion Date of (1) the Company's Capital Stock
that is not Disqualified Capital Stock (excluding amounts contributed
to the Company pursuant to clause (E) of this paragraph and excluding
Capital Stock purchased with the proceeds of loans from the Company or
any of its Subsidiaries) or (2) debt securities of the Company that
have been converted into the Company's Capital Stock that is not
Disqualified Capital Stock and that is not then held by a Subsidiary of
the Company, plus (C) to the extent that any Restricted Investment that
was made after the Conversion Date is sold for cash or otherwise
liquidated or repaid for cash, the lesser of (x) the cash return of
capital with respect to such Restricted Investment (less the cost of
disposition, if any) and (y) the initial amount of such Restricted
Investment, plus (D) the amount of any Restricted Investment
outstanding in an Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary of the Company in
accordance with the definition of "Unrestricted Subsidiary" in Annex B
plus (E) 40% of the aggregate contributions by the Parent to the
Company pursuant to Section A-2 subsequent to the Conversion Date, plus
(F) $7.5 million.
(b) The provisions of clauses (ii) and (iii) of paragraph (a) of this
Section A-5 will not prohibit (1) the payment of any dividend by the Company or
any Restricted Subsidiary within 60 days after the date of declaration thereof,
if at said date of declaration such payment would have complied with the
provisions of this Agreement; (2) the redemption, repurchase, retirement or
other acquisition of any Capital Stock of the Company in exchange for, or out of
the proceeds of, the substantially concurrent sale (other than to a Subsidiary
of the Company or the Parent) of other Capital Stock of the Company (other than
any Disqualified Capital Stock); (3) the defeasance, redemption, repurchase or
other retirement of Subordinated Indebtedness in exchange for, or out of the
proceeds of, the substantially concurrent issue and sale of Capital Stock of the
Company (other than (x) Disqualified Capital Stock, (y) Capital Stock sold to a
Subsidiary of the Company or the Parent and (z) Capital Stock purchased with the
proceeds of loans from the Company or any of its Subsidiaries); (4) the payment
of amounts required to fund the Parent's reasonable operating expenses, not in
excess of $250,000, as adjusted to reflect changes in the Consumer Price Index
between the Conversion Date and the date of any such payment, in any fiscal
year; (5) the payments of dividends or distributions to the Parent solely in
amounts and at the times necessary to permit the Parent to purchase, redeem,
acquire, cancel or otherwise retire for value Capital Stock of the Parent (i)
held by officers, directors or employees or former officers, directors or
employees (or their transferees, estates or beneficiaries under their estates),
or a trust established for the benefit of any of the foregoing, of the Parent,
the Company or its Subsidiaries, upon death, disability, retirement, severance
or termination of employment or service or pursuant to any agreement under which
such Capital Stock or related rights were issued or (ii) held by members or
former members of the Parent, upon the departure of such Persons as members of
the Parent or upon the discontinuance by any such Person of one or more crops;
provided that the amount of such payments under this clause (5) does not exceed
in the aggregate $2.0 million in any fiscal year; or (6) Restricted Investments
the amount of which, together with the amount of all other Restricted
Investments made pursuant to this clause (6) after the Conversion Date, does not
exceed $15.0 million.
Each Restricted Payment permitted pursuant to the preceding paragraph
(other than the Restricted Payments referred to in clauses (2) and (3) thereof,
and, to the extent deducted in determining Consolidated Net Income in any
period, the Restricted Payments referred to in clause (5) thereof) shall be
included once in calculating whether the conditions of clause (iii) of paragraph
(a) of this Section A-5 of have been met with respect to any subsequent
Restricted Payments. For purposes of determining compliance with this Section
A-5, in the event that a transaction meets the criteria of more than one of the
types of Restricted Payments described in the clauses of the immediately
preceding paragraph or of the clauses of the definition of "Restricted Payment,"
the Company, in its sole discretion, shall classify such transaction and only be
required to include the amount and type of such transaction in one of such
clauses. If an issuance of Capital Stock of the Company is applied to make a
Restricted Payment pursuant to clause (2) or (3) above, then, in calculating
whether the conditions of clause (iii) of paragraph (a) of this Section A-5 have
been met with respect to any subsequent Restricted Payments, the proceeds of any
such issuance shall be included under such clause (iii) only to the extent such
proceeds are not applied as so described in this sentence.
(c) Not later than the date of making any Restricted Payment, the
Company shall deliver to the Administrative Agent an Officers' Certificate
stating that such Restricted Payment is permitted and setting forth the basis
upon which the calculations required by this Section A-5 were computed, which
calculations shall be based upon the Company's latest available financial
statements.
Section A-6. Limitations on Restrictions on Distributions from
Restricted Subsidiaries. The Company will not, and will not permit any of its
Restricted Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any Payment Restriction with respect to any of its Restricted
Subsidiaries, except for (a) any such Payment Restriction in effect on the
Closing Date under the Senior Credit Facility or any similar Payment Restriction
under any similar credit facility, or any amendment, restatement, renewal,
replacement or refinancing of any of the foregoing, provided that such similar
Payment Restrictions are not, taken as a whole, materially more restrictive than
the Payment Restrictions in effect on the Closing Date under the Senior Credit
Facility; (b) any such Payment Restriction under any agreement evidencing any
Acquired Indebtedness that was permitted to be incurred pursuant to the
Agreement in effect at the time of such incurrence and not created in
contemplation of such event, provided that such Payment Restriction is not
extended to apply to any of the assets of the entities not previously subject
thereto; (c) any such Payment Restriction arising in connection with Refinancing
Indebtedness; provided that any such Payment Restrictions that arise under such
Refinancing Indebtedness are not, taken as a whole, materially more restrictive
than those under the agreement creating or evidencing the Indebtedness being
refunded or refinanced; (d) any such restriction by reason of customary
provisions restricting assignments, subletting or other transfers contained in
leases, licenses and similar agreements entered into in the ordinary course of
business; and (e) Payment Restrictions arising under applicable law.
Section A-7. Limitations on Transactions with Affiliates. The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, in one transaction or a series of related transactions, sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from or enter into any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each of the foregoing, an "Affiliate Transaction"), unless (i) such
Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person and (ii) the Company delivers to the Administrative Agent (a)
with respect to any Affiliate Transaction (or series of related transactions)
involving the Parent (including, without limitation, any amendment to or waiver
under the Marketing Agreement and any agreement for the purchase of crops
entered into pursuant to the Marketing Agreement) or involving aggregate
payments in excess of $1.0 million, an Officers' Certificate certifying that
such Affiliate Transaction complies with clause (i) above and which sets forth
and authenticates a resolution that has been adopted by a vote of a majority of
the Disinterested Directors approving such Affiliate Transaction and (b) with
respect to any Affiliate Transaction (or series of related transactions)
involving aggregate payments in excess of $5.0 million (other than relating to
the Marketing Agreement or any agreement for the purchase of crops entered into
pursuant to the Marketing Agreement), the Officers' Certificate described in the
preceding clause (a) and an opinion as to the fairness to the Company or such
Subsidiary from a financial point of view of such Affiliate Transaction (or
series of related transactions) issued by an Independent Financial Advisor;
provided, however, that the following shall not be deemed to be Affiliate
Transactions: (i) transactions exclusively between or among (1) the Company and
one or more Restricted Subsidiaries or (2) Restricted Subsidiaries, provided, in
each case, that no Affiliate of the Company (other than another Restricted
Subsidiary) owns Capital Stock of any such Restricted Subsidiary; (ii)
transactions between the Company or any Restricted Subsidiary and any qualified
employee stock ownership plan established for the benefit of the Company's
employees, or the establishment or maintenance of any such plan; (iii)
reasonable director, officer and employee compensation and other benefit and
indemnification arrangements entered into in the ordinary course of business and
consistent with past practice; (iv) transactions permitted by Section A-5 or
excluded from the definition of "Restricted Payments;" (v) the pledge of Capital
Stock of Unrestricted Subsidiaries to support the Indebtedness thereof; (vi)
transactions between the Company or any Restricted Subsidiary and any Affiliate
of the Company or such Restricted Subsidiary that is a joint venture, provided
that no direct or indirect holder of an equity interest in such joint venture
(other than the Company or a Restricted Subsidiary) is an Affiliate of the
Company or such Restricted Subsidiary; and (vii) except as set forth in clause
(a) above, the Marketing Agreement and any transaction effected pursuant
thereto.
Section A-8. Limitations on Liens. (a) The Company will not, and will
not permit any of its Restricted Subsidiaries to, directly or indirectly, incur
or permit to exist any Lien of any nature whatsoever on any property of the
Company or any Restricted Subsidiary (including Capital Stock of a Restricted
Subsidiary), or any proceeds, income or profit therefrom, whether owned at the
Conversion Date or thereafter acquired, which secures Indebtedness that is not
Senior Indebtedness unless contemporaneously therewith effective provision is
made to secure the Term Loan and Term Notes equally and ratably with (or if such
Lien secures Indebtedness that is subordinated to the Term Loan and Term Notes,
prior to) such Indebtedness for so long as such Indebtedness is secured by a
Lien.
(b) The restrictions in paragraph (a) of this Section A-8 shall not
apply to (i) Liens existing on the Conversion Date securing Indebtedness
outstanding on the Conversion Date; (ii) Liens in favor of the Company; (iii)
Liens to secure Non-Recourse Purchase Money Indebtedness; (iv) Liens securing
Acquired Indebtedness permitted to be incurred under the Indenture, provided
that the Liens do not extend to property or assets not subject to such Lien at
the time of acquisition (other than improvements thereon); or (v) Liens on
property of a Person existing at the time such Person is acquired or merged with
or into or consolidated with the Company or any such Restricted Subsidiary (and
not created in anticipation or contemplation thereof); (vi) Liens to secure
Refinancing Indebtedness of Indebtedness secured by Liens referred to in the
foregoing clauses (iv) and (v), provided that in each case such Liens do not
extend to any additional property or assets (other than improvements thereon).
Section A-9. Limitations on Mergers and Certain Other Transactions. (a)
The Company will not, in a single transaction or a series of related
transactions, (i) consolidate or merge with or into (other than a merger with a
Wholly-Owned Restricted Subsidiary solely for the purpose of changing the
Company's jurisdiction of incorporation to another State of the United States;
provided that clauses (a) and (d) below are complied with), or sell, lease,
transfer, convey or otherwise dispose of or assign all or substantially all of
the assets of the Company or the Company and its Subsidiaries (taken as a
whole), or permit any of its Restricted Subsidiaries to do so if such
transaction would result in the transfer of all or substantially all of the
assets of the Company and its Subsidiaries (taken as a whole), or assign any of
its obligations under the Term Loan and Term Notes and this Agreement, to any
Person or (ii) adopt a Plan of Liquidation unless, in either case: (a) the
Person formed by or surviving such consolidation or merger (if other than the
Company) or to which such sale, lease, conveyance or other disposition or
assignment shall be made (or, in the case of a Plan of Liquidation, any Person
to which assets are transferred) (collectively, the "Successor"), is a
corporation organized and existing under the laws of any State of the United
States of America or the District of Columbia, and the Successor assumes by
agreement Term Loan and Term Notes a form satisfactory to the Administrative
Agent all of the obligations of the Company under the Term Loan and Term Notes
and this Agreement; (b) immediately prior to and immediately after giving effect
to such transaction and the assumption of the obligations as set forth in clause
(a) above and the incurrence of any Indebtedness to be incurred in connection
therewith, no Default or Event of Default shall have occurred and be continuing;
and (c) immediately after and giving effect to such transaction and the
assumption of the obligations set forth in clause (a) above and the incurrence
of any Indebtedness to be incurred in connection therewith, and the use of any
net proceeds therefrom on a pro forma basis, the Company or the Successor, as
the case may be, could meet the Coverage Ratio Incurrence Condition; and (d)
each Guarantor, unless it is the other party to the transactions described
above, shall have by amendment to its Guarantee confirmed that its Guarantee
shall apply to the obligations of the Company or the Successor under the Term
Loan and Term Notes. For purposes of this covenant, any Indebtedness of the
Successor which was not Indebtedness of the Company immediately prior to the
transaction shall be deemed to have been incurred in connection with such
transaction.
(b) No Guarantor may consolidate with or merge with or into (whether or
not such Subsidiary Guarantor is the surviving Person) another Person whether or
not affiliated with such Guarantor unless (i) the Person formed by or surviving
any such consolidation or merger (if other than such Guarantor) assumes all of
the obligations of such Guarantor pursuant to an Additional Guarantor
Supplement, in form and substance satisfactory to the Administrative Agent,
under this Agreement, (ii) immediately after giving effect to such transaction,
no Default or Event of Default exists; and (iii) immediately after giving effect
to such transaction, the Coverage Ratio Incurrence Condition would be met.
Section A-10. Limitations on Asset Sales. The Company will not, and
will not permit any of its Restricted Subsidiaries to, consummate any Asset Sale
(as defined in the definition of "Net Asset Sale Proceeds") unless (i) the
Company or such Restricted Subsidiary receives consideration at the time of such
Asset Sale at least equal to the Fair Market Value of the assets included in
such Asset Sale (evidenced by the delivery by the Company to the Administrative
Agent of an Officers' Certificate certifying that such Asset Sale complies with
this clause (i), (ii) immediately after giving effect to such Asset Sale, no
Default or Event of Default shall have occurred and be continuing, and (iii) at
least 80% of the consideration received by the Company or such Restricted
Subsidiary therefor is in the form of cash paid at the closing thereof. The
amount (without duplication) of any (x) Indebtedness (other than Subordinated
Indebtedness) of the Company or such Restricted Subsidiary that is expressly
assumed by the transferee in such Asset Sale and with respect to which the
Company or such Restricted Subsidiary, as the case may be, is unconditionally
released by the holder of such Indebtedness, and (y) any Cash Equivalents, or
other notes, securities or items of property received from such transferee that
are promptly (but in any event within 15 days) converted by the Company or such
Restricted Subsidiary to cash (to the extent of the cash actually so received),
shall be deemed to be cash for purposes of clause (iii) of the preceding
sentence and, in the case of clause (x) above, shall also be deemed to
constitute a repayment of, and a permanent reduction in, the amount of such
Indebtedness for purposes of Section 2.05(a)(iii)(4). If at any time any
non-cash consideration received by the Company or any Restricted Subsidiary of
the Company, as the case may be, in connection with any Asset Sale is converted
into or sold or otherwise disposed of for cash (other than interest received
with respect to any such non-cash consideration), then the date of such
conversion or disposition shall be deemed to constitute the date of an Asset
Sale hereunder and the Net Asset Sale Proceeds thereof shall be applied in
accordance with Section 2.05(a)(iii)(4). A transfer of assets by the Company to
a Restricted Subsidiary or by a Restricted Subsidiary to the Company or to a
Restricted Subsidiary will not be deemed to be an Asset Sale, and a transfer of
assets that is excluded from the definition of "Restricted Payments" or that
constitutes a Restricted Investment and that is permitted under Section A-5 will
not be deemed to be an Asset Sale. The Company shall comply with Section
2.05(a)(iii)(4) with respect to the Net Asset Sale Proceeds of any Asset Sale.
Annex B
Definitions Applicable to Term Loan Covenants
Set forth below is certain of the defined terms used in Annex A. To the
extent that a term is defined in both Section 1.01 and this Annex B, for
purposes of the provisions of Annex A the term as defined in Annex B shall
govern.
"Acquired Indebtedness" means (a) with respect to any Person that
becomes a Restricted Subsidiary after the Conversion Date, Indebtedness of such
Person and its Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary that was not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary and (b) with
respect to the Company or any of its Restricted Subsidiaries, any Indebtedness
of a Person (other than the Company or a Restricted Subsidiary) existing at the
time such Person is merged with or into the Company or a Restricted Subsidiary,
or Indebtedness assumed by the Company or any of its Restricted Subsidiaries in
connection with the acquisition of an asset or assets from another Person, which
Indebtedness was not, in any case, incurred by such other Person in connection
with, or in contemplation of, such merger or acquisition.
"Affiliate" of any specified Person means (i) any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person and (ii) with respect to the Parent and the
Company, any member of the Parent that is a director of the Parent or that has
beneficial ownership of more than 1% of the outstanding voting securities of the
Parent. For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and under "common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities,
by agreement or otherwise; provided, however, that beneficial ownership of 10%
or more of the voting securities of a Person shall be deemed to be control.
"Attributable Indebtedness," when used with respect to any Sale and
Leaseback Transaction, means, as at the time of determination, the present value
(discounted at a rate equivalent to the Company's then-current weighted average
cost of funds for borrowed money as at the time of determination, compounded on
a semi-annual basis) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in any such Sale and Leaseback
Transaction.
"Board Resolution" means a duly adopted resolution of the Board of
Directors of the Company.
"Capital Stock" of any Person means (i) any and all shares or other
equity interests (including without limitation common stock, preferred stock and
partnership interests) in such Person and (ii) all rights to purchase, warrants
or options (whether or not currently exercisable), participations or other
equivalents of or interests in (however designated) such shares or other
interests in such Person.
"Capitalized Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
"Cash Equivalents" means (i) marketable obligations with a maturity of
360 days or less issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States of America is pledged in support
thereof); (ii) U.S. dollar denominated time deposits and certificates of deposit
of any financial institution (a) that is a member of the Federal Reserve System
having combined capital and surplus and undivided profits of not less than $500
million or (b) whose short-term commercial paper rating or that of its parent
company is at least A-1 or the equivalent thereof from S&P or P-1 or the
equivalent thereof from Moody's (any such bank, an "Approved Bank"), in each
case with a maturity of 360 days or less from the date of acquisition; (iii)
commercial paper issued by any Approved Bank or by the parent company of any
Approved Bank and commercial paper issued by, or guaranteed by, any industrial
or financial company with a short-term commercial paper rating of at least A-1
or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Moody's, or guaranteed by any industrial company with a long term unsecured debt
rating of at least A or A2, or the equivalent of each thereof, from S&P or
Moody's, as the case may be, and in each case maturing no more than 360 days
from the date of acquisition; (iv) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clause
(i) above entered into with any commercial bank meeting the specifications of
clause (ii)(a) above; and (v) investments in money market or other mutual funds
substantially all of whose assets comprise securities of the types described in
clauses (i) through (iv) above.
"Change of Control" means the occurrence of any of the following on or
after the Conversion Date: (i) the sale, lease or transfer, in one or a series
of related transactions, of all or substantially all of the Parent's or the
Company's assets to any Person or group (as such term is used in Section
13(d)(3) of the Exchange Act); (ii) the consummation of any transaction the
result of which is that any Person or group (as such term is used in Section
13(d)(3) of the Exchange Act) (other than the Parent in the case of clause (y))
owns, directly or indirectly, (A) more than 50% of the voting power of the
voting stock of either (x) the Parent or (y) the Company or (B) more than 30% of
the voting power of the voting stock of the Company if the Parent owns, directly
or indirectly, a lesser percentage than such Person or group of the voting power
of the voting stock of the Company; (iii) the first date on which any Person or
group (as defined above) shall have elected, or caused to be elected, a
sufficient number of its or their nominees to the Board of Directors of the
Parent or the Company such that the nominees so elected (regardless of when
elected) shall collectively constitute a majority of the Board of Directors of
the Parent or the Company, as the case may be; or (iv) for a period of 120
consecutive days, the number of Disinterested Directors on the Board of
Directors of the Company being less than the greater of (A) two and (B) the
number of directors of the Company who are the Parent Directors. For purposes of
this definition, any transfer of an equity interest of an entity that was formed
for the purpose of acquiring voting stock of the Parent or the Company shall be
deemed to be a transfer of such portion of the voting stock owned by such entity
as corresponds to the portion of the equity of such entity that has been so
transferred.
"Commercial Market Value" means Commercial Market Value determined in
accordance with the Marketing Agreement.
"Consolidated Amortization Expense" for any period means the
amortization expense of the Company and its Restricted Subsidiaries for such
period (to the extent included in the computation of Consolidated Net Income),
determined on a consolidated basis in accordance with GAAP.
"Consolidated Depreciation Expense" for any period means the
depreciation expense of the Company and its Restricted Subsidiaries for such
period (to the extent included in the computation of Consolidated Net Income),
determined on a consolidated basis in accordance with GAAP.
"Consolidated Income Tax Expense" for any period means the provision
for taxes based on income and profits of the Company and its Restricted
Subsidiaries to the extent such income or profits were included in computing
Consolidated Net Income for such period.
"Consolidated Interest Coverage Ratio" means, with respect to any
determination date, the ratio of (a) EBITDA for the four full fiscal quarters
immediately preceding the determination date (for any determination, the
"Reference Period"), to (b) Consolidated Interest Expense for such Reference
Period. In making such computations, (i) EBITDA and Consolidated Interest
Expense shall be calculated on a pro forma basis assuming that (A) the
Indebtedness to be incurred or the Disqualified Capital Stock to be issued (and
all other Indebtedness incurred or Disqualified Capital Stock issued after the
first day of such Reference Period referred to in Section A-1 of Annex A through
and including the date of determination), and (if applicable) the application of
the net proceeds therefrom (and from any other such Indebtedness or Disqualified
Capital Stock), including the refinancing of other Indebtedness, had been
incurred on the first day of such Reference Period and, in the case of Acquired
Indebtedness, on the assumption that the related transaction (whether by means
of purchase, merger or otherwise) also had occurred on such date with EBITDA
(including any pro forma expense and cost reductions calculated on a basis
consistent with Regulation S-X under the Securities Act) attributable to the
assets which are the subject of such acquisition being included in such pro
forma calculation and (B) any acquisition or disposition by the Company or any
Restricted Subsidiary of any properties or assets outside the ordinary course of
business or any repayment of any principal amount of any Indebtedness of the
Company or any Restricted Subsidiary prior to the stated maturity thereof, in
either case since the first day of such Reference Period through and including
the date of determination, had been consummated on such first day of such
Reference Period; (ii) the Consolidated Interest Expense attributable to
interest on any Indebtedness required to be computed on a pro forma basis in
accordance with Section A-1 of Annex A and (A) bearing a floating interest rate
shall be computed as if the rate in effect on the date of computation had been
the applicable rate for the entire period and (B) which was not outstanding
during the period for which the computation is being made but which bears, at
the option of the Company, a fixed or floating rate of interest, shall be
computed by applying, at the option of the Company, either the fixed or floating
rate; (iii) the Consolidated Interest Expense attributable to interest on any
Indebtedness under a revolving credit facility required to be computed on a pro
forma basis in accordance with Section A-1 of Annex A shall be computed based
upon the average daily balance of such Indebtedness during the applicable
period, provided that such average daily balance shall be reduced by the amount
of any repayment of Indebtedness under a revolving credit facility during the
applicable period, which repayment permanently reduced the commitments or
amounts available to be reborrowed under such facility; (iv) notwithstanding the
foregoing clauses (ii) and (iii), interest on Indebtedness determined on a
floating rate basis, to the extent such interest is covered by agreements
relating to Hedging Obligations, shall be deemed to have accrued at the rate per
annum resulting after giving effect to the operation of such agreements; and (v)
if after the first day of the applicable Reference Period and before the date of
determination, the Company has permanently retired any Indebtedness out of the
net proceeds of the issuance and sale of shares of Capital Stock (other than
Disqualified Capital Stock) of the Company within 60 days of such issuance and
sale, Consolidated Interest Expense shall be calculated on a pro forma basis as
if such Indebtedness had been retired on the first day of such period.
"Consolidated Interest Expense" for any period means the sum, without
duplication, of the total interest expense of the Company and its consolidated
Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP and including, without limitation (i) imputed interest on
Capitalized Lease Obligations and Attributable Indebtedness; (ii) commissions,
discounts and other fees and charges owed with respect to letters of credit
securing financial obligations and bankers' acceptance financing; (iii) the net
costs associated with Hedging Obligations; (iv) amortization of other financing
fees and expenses; (v) the interest portion of any deferred payment obligations;
(vi) amortization of debt discount or premium, if any; (vii) all other non-cash
interest expense; (viii) capitalized interest, (ix) all cash dividend payments
(and non-cash dividend payments in the case of a Restricted Subsidiary) on any
series of preferred stock of the Company or any Restricted Subsidiary; (x) all
interest payable with respect to discontinued operations; and (xi) all interest
on any Indebtedness of any other Person guaranteed by the Company or any
Restricted Subsidiary to the extent paid by the Company or such Restricted
Subsidiary.
"Consolidated Net Income" for any period means the net income (or loss)
of the Company and its consolidated Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; provided that there
shall be excluded from such net income (to the extent otherwise included
therein), without duplication (i) the net income (or loss) of any Person (other
than a Restricted Subsidiary) in which any Person other than the Company and its
Restricted Subsidiaries has an ownership interest, except to the extent that any
such income has actually been received by the Company and its Restricted
Subsidiaries (unless and to the extent such Restricted Subsidiary is subject to
clause (iii) below) in the form of cash dividends or distributions during such
period; (ii) except to the extent includible in the consolidated net income of
the Company pursuant to the foregoing clause (i), the net income (or loss) of
any Person that accrued prior to the date that (a) such Person becomes a
Restricted Subsidiary or is merged into or consolidated with the Company or any
Restricted Subsidiary or (b) the assets of such Person are acquired by the
Company or any Restricted Subsidiary; (iii) the net income of any Restricted
Subsidiary during such period to the extent that the declaration or payment of
dividends or similar distributions by such Restricted Subsidiary of that income
(a) is not permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary during such period or (b) would be
subject to any taxes payable on such dividend or distribution; (iv) any gain
(or, only in the case of a determination of Consolidated Net Income as used in
EBITDA, any loss), together with any related provisions for taxes on any such
gain (or, if applicable, the tax effects of such loss), realized during such
period by the Company or any Restricted Subsidiary upon (a) the acquisition of
any securities, or the extinguishment of any Indebtedness, of the Company or any
Restricted Subsidiary or (b) any Asset Sale by the Company or any of its
Restricted Subsidiaries; provided, however, that there shall be excluded from
Consolidated Net Income for all purposes any loss realized by the Company or any
Restricted Subsidiary upon the acquisition of any securities, or the
extinguishment of any Indebtedness, of the Company or any Restricted Subsidiary,
or the write-off of deferred financing costs, in connection with the Acquisition
and all refinancings of Indebtedness consummated in connection therewith; (v)
any extraordinary gain (or, only in the case of a determination of Consolidated
Net Income as used in EBITDA, any extraordinary loss), together with any related
provision for taxes on any such extraordinary gain (or, if applicable, the tax
effects of such extraordinary loss), realized by the Company or any Restricted
Subsidiary during such period; and (vi) in the case of a successor to the
Company by consolidation, merger or transfer of its assets, any earnings of the
successor prior to such merger, consolidation or transfer of assets; and
provided, further, that any gain referred to in clauses (iv) and (v) above that
relates to a Restricted Investment and which is received in cash by the Company
or a Restricted Subsidiary during such period shall be included in the
Consolidated Net Income of the Company.
"Consolidated Net Worth" means, with respect to any Person as of any
date, the consolidated equity of the common stockholders of such Person and its
consolidated Subsidiaries as of such date, less all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within twelve months after the
acquisition of such business) subsequent to the Conversion Date in the book
value of any asset owned by such Person or a Subsidiary of such Person.
"Coverage Ratio Incurrence Condition" would be met at any specified
time only if the Company (or its Successor, as the case may be) would be able to
incur $1.00 of additional Indebtedness at such specified time pursuant to the
Consolidated Interest Coverage Ratio test set forth Section A-1 of Annex A.
"Disqualified Capital Stock" means any Capital Stock of a Person or any
of its Subsidiaries that, by its terms, by the terms of any agreement related
thereto or by the terms of any security into which it is convertible, puttable
or exchangeable, is, or upon the happening of any event or the passage of time
would be, required to be redeemed or repurchased by such Person or any to its
Subsidiaries, whether or not at the option of the holder thereof, or matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
in whole or in part, on or prior to the Maturity Date.
"EBITDA" for any period means, without duplication, the sum of the
amounts for such period of (i) Consolidated Net Income, plus (ii) in each case
to the extent deducted in determining Consolidated Net Income for such period
(and without duplication), (A) Consolidated Income Tax Expense, (B) Consolidated
Amortization Expense (but only to the extent not included in Consolidated
Interest Expense), (C) Consolidated Depreciation Expense, (D) Consolidated
Interest Expense, (E) all other non-cash items reducing the Consolidated Net
Income (excluding any such non-cash charge that results in an accrual of a
reserve for cash charges in any future period) for such period, in each case
determined on a consolidated basis in accordance with GAAP, plus (iii) in the
case of the Company, the Parent share of earnings (loss) as determined in
accordance with the Marketing Agreement, minus (iv) the aggregate amount of all
non-cash items, determined on a consolidated basis, to the extent such items
increased Consolidated Net Income for such period.
"Existing Indebtedness" means all of the Indebtedness of the Company
and its Restricted Subsidiaries that is outstanding on the Conversion Date, plus
additional promissory notes issued on the Subordinated Promissory Note issued to
Xxxx Foods in connection with the Acquisition.
"Fair Market Value" of any asset or items means the fair market value
of such asset or items as determined in good faith by the Board of Directors and
evidenced by a Board Resolution.
"incur" means, with respect to any Indebtedness or Obligation, incur,
create, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to such Indebtedness or
Obligation; provided that (i) the Indebtedness of a Person existing at the time
such Person became a Restricted Subsidiary shall be deemed to have been incurred
by such Restricted Subsidiary and (ii) neither the accrual of interest nor the
accretion of accreted value shall be deemed to be an incurrence of Indebtedness.
"Indebtedness" of any Person at any date means, without duplication:
(i) all liabilities, contingent or otherwise, of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such
person or only to a portion thereof); (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments; (iii) all
obligations of such Person in respect of letters of credit or other similar
instruments (or reimbursement obligations with respect thereto); (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except trade payables and accrued expenses incurred by
such Person in the ordinary course of business in connection with obtaining
goods, materials or services, which payable is not overdue by more than 60 days
according to the original terms of sale unless such payable is being contested
in good faith; (v) the maximum fixed redemption or repurchase price of all
Disqualified Capital Stock of such Person; (vi) all Capitalized Lease
Obligations of such Person; (vii) all Indebtedness of others secured by a Lien
on any asset of such Person, whether or not such Indebtedness is assumed by such
Person; (viii) all Indebtedness of others guaranteed by such Person to the
extent of such guarantee; provided that Indebtedness of the Company or its
Restricted Subsidiaries that is guaranteed by the Company or the Company's
Restricted Subsidiaries shall only be counted once in the calculation of the
amount of Indebtedness of the Company and its Restricted Subsidiaries on a
consolidated basis; (ix) all Attributable Indebtedness; and (x) to the extent
not otherwise included in this definition, Hedging Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above, the
maximum liability of such Person for any such contingent obligations at such
date and, in the case of clause (vii), the lesser of (A) the Fair Market Value
of any asset subject to a Lien securing the Indebtedness of others on the date
that the Lien attaches and (B) the amount of the Indebtedness secured. For
purposes of the preceding sentence, the "maximum fixed redemption or repurchase
price" of any Disqualified Capital Stock that does not have a fixed redemption
or repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
or redeemed on any date on which Indebtedness shall be required to be determined
pursuant to this Agreement, and if such price is based upon, or measured by, the
fair market value of such Disqualified Capital Stock (or any equity security for
which it may be exchanged or converted), such fair market value shall be
determined in good faith by the Board of Directors of such Person, which
determination shall be evidenced by a Board Resolution.
"Independent Financial Advisor" means an accounting, appraisal
or investment banking firm of nationally recognized standing that is, in the
reasonable judgment of the Company's Board of Directors, qualified to perform
the task for which it has been engaged and disinterested and independent with
respect to the Company and its Affiliates.
"Investments" of any Person means (i) all investments by such Person in
any other Person in the form of loans, advances or capital contributions
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business) or similar credit extensions
constituting Indebtedness of such Person, and any guarantee of Indebtedness of
any other Person, (ii) all purchases (or other acquisitions for consideration)
by such Person of Indebtedness, Capital Stock or other securities of any other
Person and (iii) all other items that would be classified as investments
(including without limitation purchases of assets outside the ordinary course of
business) on a balance sheet of such Person prepared in accordance with GAAP.
"Lien" means, with respect to any asset or property, any mortgage, deed
of trust, lien (statutory or other), pledge, lease, easement, restriction,
covenant, charge, security interest or other encumbrance of any kind or nature
in respect of such asset or property, whether or not filed, recorded or
otherwise perfected under applicable law, including without limitation any
conditional sale or other title retention agreement, and any lease in the nature
thereof, any option or other agreement to sell, and any filing of, or agreement
to give, any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction (other than cautionary filings in
respect of operating leases).
"Moody's" means Xxxxx'x Investors Service, Inc., and its successors.
"Non-Recourse Purchase Money Indebtedness" means Indebtedness of the
Company or any of its Restricted Subsidiaries incurred (a) to finance the
purchase of any assets of the Company or any of its Restricted Subsidiaries
within 90 days of such purchase, (b) to the extent the amount of Indebtedness
thereunder does not exceed 100% of the purchase cost of such assets, (c) to the
extent the purchase cost of such assets is or should be included in "additions
to property, plant and equipment" in accordance with GAAP, and (d) to the extent
that such Indebtedness is non-recourse to the Company or any of its Restricted
Subsidiaries or any of their respective assets other than the assets so
purchased.
"Opinion of Counsel" means a written opinion from legal counsel (such
counsel may be an employee of or counsel to the Company or the Administrative
Agent) that complies with the requirements of this Agreement.
"Parent Director" means any Person who, as a director, officer
or other designee of the Parent, serves as a director of the Company.
"Payment Restriction" with respect to a Subsidiary of any Person, means
any encumbrance, restriction of limitation, whether by operation of the terms of
its charter or by reason of any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation, on the ability of (i) such Subsidiary
to (a) pay dividends or make other distributions on its Capital Stock or make
payments on any obligation, liability or Indebtedness owed to such Person or any
other Subsidiary of such Person, (b) make loans or advances to such Person or
any other Subsidiary or such Person, (c) guarantee any Indebtedness of the
Company or any Restricted Subsidiary or (d) transfer any of its properties or
assets to such Person or any other Subsidiary of such Person (other than
customary restrictions on transfers of property subject to a Lien permitted
under the Indenture) or (ii) such Person or any other Subsidiary of such Person
to receive or retain any such dividends, distributions or payments, loans or
advances, guarantee, or transfer of properties or assets.
"Permitted Indebtedness" means any of the following:
(i) Indebtedness of the Company and the related guarantees of
the Subsidiary Guarantors under the Senior Credit Facility in an
aggregate principal amount at any time outstanding not to exceed (a)
under the Term Loan Facilities, $455.0 million, less any required
permanent repayments actually made thereunder (excluding any such
repayment to the extent refinanced and replaced at the time of
payment), and (b) under the Revolving Loan Facility, the greater of (x)
$200.0 million and (y) the sum of (A) 80% of the face amount of all
accounts receivable owned by the Company and its Restricted
Subsidiaries and (B) 50% of the book value of all inventory owned by
the Company and its Restricted Subsidiaries, in each case computed on a
consolidated basis in accordance with GAAP as of the end of the last
fiscal month of the Company, reduced by any required permanent
repayments actually made (which are accompanied by a corresponding
permanent commitment reduction) in respect of the Revolving Loan
Facility (excluding any such repayment and commitment reductions to the
extent refinanced and replaced at the time of payment);
(ii) Indebtedness owing to the Administrative Agent and the
Lenders under this Agreement or any of the other Loan Documents;
(iii) Existing Indebtedness;
(iv) Indebtedness under Hedging Obligations, provided that (1)
such Hedging Obligations are related to payment obligations on
Permitted Indebtedness or Indebtedness otherwise permitted by Section
A-1 of Annex A, and (2) the notional principal amount of such Hedging
Obligations at the time incurred does not exceed the principal amount
of such Indebtedness to which such Hedging Obligations relate;
(v) Indebtedness of the Company to a Subsidiary Guarantor and
Indebtedness of any Subsidiary Guarantor to the Company or any other
Subsidiary Guarantor; provided, however, that upon either (1) the
subsequent issuance (other than directors' qualifying shares), sale,
transfer or other disposition of any Capital Stock or any other event
which results in any such Subsidiary Guarantor ceasing to be a
Subsidiary Guarantor or (2) the transfer or other disposition of any
such Indebtedness (except to the Company or a Subsidiary Guarantor),
the provisions of this clause (v) shall no longer be applicable to such
Indebtedness and such Indebtedness shall be deemed, in each case, to be
incurred and shall be treated as an incurrence for purposes of Section
A-1 of Annex A at the time the Subsidiary Guarantor in question ceased
to be a Subsidiary Guarantor or the time such transfer or other
disposition occurred;
(vi) Indebtedness in respect of bid, performance or surety
bonds or insurance of self-reinsurance obligations (including to secure
worker's compensation and other similar insurance coverage) issued for
the account of the Company in the ordinary course of business
consistent with past practice, including guarantees or obligations of
the Company with respect to letters of credit supporting such bid,
performance or surety obligations or such insurance or self-insurance
obligations (in each case other than for an obligation for money
borrowed);
(vii) Indebtedness in respect of Non-Recourse Purchase Money
Indebtedness incurred by the Company or any Restricted Subsidiary;
(viii) Refinancing Indebtedness; and
(ix) Indebtedness, in addition to Indebtedness incurred
pursuant to the foregoing clauses of this definition, with an aggregate
principal face or stated amount (as applicable) at any time outstanding
for all such Indebtedness incurred pursuant to this clause not in
excess of $25.0 million.
"Plan of Liquidation" with respect to any Person, means a plan that
provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise): (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety; and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease, conveyance or other disposition and all
or substantially all of the remaining assets of such Person to holders of
Capital Stock of such Person.
"Refinancing Indebtedness" means Indebtedness of the Company or a
Restricted Subsidiary issued in exchange for, or the proceeds from the issuance
and sale or disbursement of which are used substantially concurrently to repay,
redeem, refund, refinance, discharge or otherwise retire for value, in whole or
in part (collectively, "repay"), or constituting an amendment, modification or
supplement to or a deferral or renewal of (collectively, an "amendment"), any
Indebtedness of the Company or any Restricted Subsidiary (the "Refinanced
Indebtedness") in a principal amount not in excess of the principal amount of
the Refinanced Indebtedness (or, if such Refinancing Indebtedness refinances
Indebtedness under a revolving credit facility or other agreement providing a
commitment for subsequent borrowings, with a maximum commitment not to exceed
the maximum commitment under such revolving credit facility or other agreement),
plus the amount of accrued but unpaid interest thereon and the amount of any
reasonably determined prepayment premium necessary to accomplish such
refinancing and such reasonable fees and expenses incurred in connection
therewith; provided that: (i) the Refinancing Indebtedness is the obligation of
the same Person as that of the Refinanced Indebtedness; (ii) if the Refinanced
Indebtedness was subordinated to or pari passu with the Loan Indebtedness, then
such Refinancing Indebtedness, by its terms, is expressly pari passu with (in
the case of Refinanced Indebtedness that was pari passu with) the Loan
Indebtedness, or subordinate in right of payment to (in the case of Refinanced
Indebtedness that was subordinated to) the Loan Indebtedness at least to the
same extent as the Refinanced Indebtedness; (iii) the portion, if any, of the
Refinancing Indebtedness that is scheduled to mature on or prior to the Maturity
Date has a Weighted Average Life to Maturity at the time such Refinancing
Indebtedness is incurred that is equal to or greater than the Weighted Average
Life to Maturity of the portion of the Refinanced Indebtedness being repaid that
is scheduled to mature on or prior to the Maturity Date; and (iv) the
Refinancing Indebtedness is secured only to the extent, if at all, and by the
assets (which may include after-acquired assets), that the Refinanced
Indebtedness is secured.
"Restricted Debt Payment" means any purchase, redemption, defeasance
(including without limitation in substance or legal defeasance) or other
acquisition or retirement for value, directly or indirectly, by the Company or a
Restricted Subsidiary, prior to the scheduled maturity or prior to any scheduled
repayment of principal or sinking fund payment, as the case may be, in respect
of Subordinated Indebtedness.
"Restricted Investment" means any Investment by the Company or any
Restricted Subsidiary (other than investments in Cash Equivalents) in any Person
that is not the Company or a Restricted Subsidiary, including in any
Unrestricted Subsidiary, but shall not include (i) Investments by the Company or
any Restricted Subsidiary in a Person, if as a result of such Investment (a)
such Person becomes a Restricted Subsidiary of the Company that is engaged in a
Related Business or (b) such Person is merged, consolidated or amalgamated with
or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company that is
engaged in a Related Business; (ii) loans by the Company or any of its
Restricted Subsidiaries to employees of the Company or any of its Restricted
Subsidiaries the proceeds of which are applied to purchase Capital Stock of the
Parent in amount not to exceed $2.0 million at any time outstanding; or (iii)
demand loans for working capital purposes from the Company to the Parent, not
exceeding $40.0 million at any time outstanding, which will be reduced to zero
for a period of not less than 15 consecutive days in each fiscal year.
"Restricted Payment" means with respect to any Person: (i) the
declaration or payment of any dividend (other than a dividend declared and paid
(x) by a Wholly-Owned Restricted Subsidiary to holders of its Capital Stock, or
(y) by a Subsidiary (other than a Wholly-Owned Restricted Subsidiary) to its
shareholders on a pro rata basis, but only to the extent of the dividends
actually received by the Company or a Restricted Subsidiary) or the making of
any other payment or distribution of cash, securities or other property or
assets in respect of such Person's Capital Stock (except that a dividend payable
solely in Capital Stock (other than Disqualified Capital Stock) of such Person
shall not constitute a Restricted Payment); (ii) any payment on account of the
purchase, redemption, retirement or other acquisition for value of (A) the
Capital Stock of the Company or (B) the Capital Stock of any Restricted
Subsidiary, or any other payment or distribution made in respect thereof, either
directly or indirectly (other than a payment solely in Capital Stock that is not
Disqualified Capital Stock, and excluding any such payment to the extent
actually received by the Company or a Restricted Subsidiary); (iii) any
Restricted Investment; or (iv) any Restricted Debt Payment.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Services, a division of the
XxXxxx-Xxxx Companies, Inc., and its successors.
"Sale and Leaseback Transactions" means with respect to any Person an
arrangement with any bank, insurance company or other lender or investor or to
which such lender or investor is a party, providing for the leasing by such
Person of any property or asset of such Person which has been or is being sold
or transferred by such Person to such lender or investor or to any Person to
whom funds have been or are to be advanced by such lender or investor on the
security of such property or asset.
"Senior Subordinated Indebtedness" of the Company means the Term Loan
and Term Notes and any other Indebtedness of the Company (including the Existing
Notes) that specifically provides that such Indebtedness is to rank pari passu
with the Term Loan and Term Notes in right of payment and is not subordinated by
its terms in right of payment to any Indebtedness or other obligation of the
Company which is not Senior Indebtedness. "Senior Subordinated Indebtedness" of
any Guarantor has a correlative meaning.
"Subsidiary" of any Person means (i) any corporation of which at least
a majority of the aggregate voting power of all classes of the Voting Stock is
owned by such Person directly or through one or more other Subsidiaries of such
Person and (ii) any entity other than a corporation in which such Person,
directly or indirectly, owns at least a majority of the Voting Stock of such
entity entitling the holder thereof to vote or otherwise participate in the
selection of the governing body, partners, managers or others that control the
management and policies of such entity. Unless otherwise specified, "Subsidiary"
means a Subsidiary of the Company.
"Subsidiary Guarantor" means each Restricted Subsidiary of the Company
and each other Restricted Subsidiary who is required to become pursuant to
Section 7.16 (or whom the Company otherwise causes to become) a Guarantor under
the Agreement.
"Unrestricted Subsidiary" means (i) any Subsidiary that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board of
Directors of the Company in the manner provided below and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors of the Company may designate
any Restricted Subsidiary to be an Unrestricted Subsidiary, and any such
designation shall be deemed to be a Restricted Investment at the time of and
immediately upon such designation by the Company and its Restricted Subsidiaries
in the amount of the Consolidated Net Worth of such designated Subsidiary and
its consolidated Subsidiaries at such time, provided that such designation shall
be permitted only if (A) the Company and its Restricted Subsidiaries would be
able to make the Restricted Investment deemed made pursuant to such designation
at such time, (B) no portion of the Indebtedness or any other obligation
(contingent or otherwise) of such Subsidiary (x) is Guaranteed by the Company or
any Restricted Subsidiary, (y) is recourse to the Company or any Restricted
Subsidiary or (z) subjects any property or asset of the Company or any
Restricted Subsidiary, directly or indirectly, contingently or otherwise, to the
satisfaction thereof and (C) no default or event of default with respect to any
Indebtedness of such Subsidiary would permit any holder of any Indebtedness of
the Company or any Restricted Subsidiary to declare such Indebtedness of the
Company or any Restricted Subsidiary due and payable prior to its maturity. The
Board of Directors of the Company may designate any Unrestricted Subsidiary to
be a Restricted Subsidiary, and any such designation shall be deemed to be an
incurrence by the Company and its Restricted Subsidiaries of the Indebtedness
(if any) of such Subsidiary so designated for purposes of Section A-1 of Annex A
as of the date of such designation, provided that such designation shall be
permitted only if immediately after giving effect to such designation and the
incurrence of any such additional Indebtedness deemed to have been incurred
thereby (x) the Company would meet the Coverage Ratio Incurrence Condition and
(y) no Default or Event of Default shall have occurred and be continuing. Any
such designation by the Board of Directors described in the two preceding
sentences shall be evidenced to the Administrative Agent by the filing with the
Administrative Agent of a certified copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing conditions and setting forth the
underlying calculations of such certificate.
"Voting Stock" with respect to any Person, means securities of any
class of Capital Stock of such Person entitling the holders thereof (whether at
all times or only so long as no senior class of stock or other relevant equity
interest has voting power by reason of any contingency) to vote in the election
of members of the board of directors of such Person.
"Wholly-Owned Restricted Subsidiary" means a Restricted Subsidiary of
which 100% of the Capital Stock (except for directors' qualifying shares or
certain minority interests owned by other Persons solely due to local law
requirements that there be more than one stockholder, but which interest is not
in excess of what is required for such purpose) is owned directly by the Company
or through one or more Wholly-Owned Restricted Subsidiaries.
[Form of Initial Note]
AGRILINK FOODS, INC.
SENIOR SUBORDINATED PROMISSORY NOTE
New York, New York
$[ ] September 23, 1998
FOR VALUE RECEIVED, Agrilink Foods, Inc., a New York corporation (the
"Company"), promises to pay to the order of [ ] (the "Payee"), on the Conversion
Date (as defined in the Senior Subordinated Credit Agreement dated as of
September 23, 1998 as the same may at any time be amended, modified or
supplemented and in effect (the "Credit Agreement") between the Company, Pro-Fac
Cooperative, Inc., the other Guarantors named therein, the Lenders named
therein, Warburg Dillon Read LLC, as Arranger and Syndication Agent, and UBS AG,
Stamford Branch, as Administrative Agent), the principal amount of [ ] Dollars
($[ ]).
The Company also promises to pay interest on the unpaid principal
amount hereof from the date hereof until paid in full at the rates and at the
times which shall be determined in accordance with the provisions of the Credit
Agreement.
This Note is issued pursuant to and entitled to the benefits of the
Credit Agreement, to which reference is hereby made for a more complete
statement of the terms and conditions under which the Initial Loan evidenced
hereby was made and is to be repaid. Capitalized terms used herein without
definition shall have the meanings set forth in the Credit Agreement.
All payments of principal and interest (other than Subsequent Initial
Notes issued in payment of PIK Interest Amounts) in respect of this Note shall
be made in lawful money of the United States of America in same day funds to
Payee at the office of UBS AG, Stamford Branch located at 000 Xxxxxxxxxx Xxxx.,
Xxxxxxxx, XX 00000, or at such other place as shall be designated in writing for
such purpose in accordance with the terms of the Credit Agreement. Each of Payee
and any subsequent holder of this Note agrees, by its acceptance hereof, that
before disposing of this Note or any part hereof it will make a notation hereon
of all principal payments previously made hereunder and of the date to which
interest hereon has been paid; provided, however, that the failure to make a
notation of any payment made on this Note shall not limit or otherwise affect
the obligation of the Company hereunder with respect to payments of principal or
interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in Section
2.05(a)(iii)(1), (2) and (5) of the Credit Agreement and prepayment at the
option of the Company as provided in subsection 2.05(a)(i) of the Credit
Agreement. The Company must make an offer to purchase this Note with certain of
the Net Asset Sale Proceeds of Asset Sales pursuant to Section 2.05(a)(iii)(4)
of the Credit Agreement. This Note may be repaid on the Conversion Date by
conversion of this Note into a Term Loan pursuant to Section 2.02 of the Credit
Agreement.
This Note is subordinated in right of payment to all Senior
Indebtedness of the Company as and to the extent provided in Section 11 of the
Credit Agreement.
The obligations of the Company under this Note are guaranteed, on a
senior subordinated basis, by the Guarantors as provided in Section 4 of the
Credit Agreement. Attached hereto are endorsements of the Guarantors evidencing
the Guarantees.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued but unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
The Company promises to pay all costs and expenses, including all
attorneys' fees, all as provided in Section 10.03 of the Credit Agreement,
incurred in the collection and enforcement of this Note. The Company and
endorsers of this Note hereby consent to renewals and extensions of time at or
after the maturity hereof, without notice, and hereby waive diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
IN WITNESS WHEREOF, the Company has caused this Note to be executed and
delivered by its duly authorized officer, as of the day and year and at the
place first above written.
AGRILINK FOODS, INC.
By:
Name:
Title:
TRANSACTIONS ON INITIAL NOTE
Amount of Outstanding
Principal Principal
Paid Balance Notation
Date This Date This Date Made By
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to elect to have this Initial Note purchased by the Company
pursuant to Section 2.05(a)(iii)(4) of the Credit Agreement, check the box: [__]
If you wish to elect to have only part of this Initial Note purchased
by the Company pursuant to Section 2.05(a)(iii)(4) of the Credit Agreement,
state the amount: $[ ]
Date: Your Signature:
(Sign exactly as
your name appears
on the other side
of this Initial Note)
Signature Guarantee:
GUARANTEES
The Guarantors (as defined in the Senior Subordinated Credit Agreement
(the "Credit Agreement") referred to in the Note upon which this notation is
endorsed and each hereinafter referred to as a "Guarantor") have unconditionally
guaranteed on a senior subordinated basis (such guarantee by each Guarantor
being referred to herein as the "Guarantee") (i) the due and punctual payment of
the principal of, and the interest on, the Notes, subject to any applicable
grace period, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal and interest, if any, on
the Notes, to the extent lawful, and the due and punctual performance of all
other Loan Obligations of the Company to the holders of the Notes all in
accordance with the terms set forth in the Credit Agreement and (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other
Loan Obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
The obligations of each Guarantor to the holders of the Notes pursuant
to the Guarantee and the Credit Agreement are expressly set forth and are
expressly subordinated and subject in right of payment to the prior payment in
full of all Senior Indebtedness of such Guarantor, to the extent and in the
manner provided, in Section 11 of the Credit Agreement, and reference is hereby
made to such Credit Agreement for the precise terms of the Guarantee therein
made.
GUARANTORS:
PRO-FAC COOPERATIVE, INC.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President and
Chief Financial Officer
LINDEN OAKS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: President
XXXXXXX ENDEAVORS INCORPORATED
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President and Secretary
Exhibit A-2
[Form of Term Note]
AGRILINK FOODS, INC.
SENIOR SUBORDINATED PROMISSORY NOTE
New York, New York
[ ], 1999
$[ ]
FOR VALUE RECEIVED, AGRILINK FOODS, INC., a New York corporation (the
"Company"), promises to pay to the order of [ ] ("Payee"), on September [ ],
2006, [ ] Dollars ($[ ]).
The Company also promises to pay interest on the unpaid principal
amount hereof from the date hereof until paid in full at the rates and at the
times which shall be determined in accordance with the provisions of the Senior
Subordinated Credit Agreement dated as of September 23, 1998, as the same may at
any time be amended, modified or supplemented and in effect (the "Credit
Agreement") between the Company, Pro-Fac Cooperative, Inc., as Guarantor, the
other Guarantors named therein, the Lenders named therein, Warburg Dillon Read
LLC, as Arranger and Syndication Agent, and UBS AG, Stamford Branch, as
Administrative Agent.
This Note is issued pursuant to and entitled to the benefits of the
Credit Agreement to which reference is hereby made for a more complete statement
of the terms and conditions under which the Term Loan evidenced hereby was made
and is to be repaid. Capitalized terms used herein without definition shall have
the meanings set forth in the Credit Agreement.
All payments of principal and interest (other than Subsequent Term
Notes issued in payment of PIK Interest Amounts) in respect of this Note shall
be made in lawful money of the United States of America in same day funds to
Payee at the office of UBS AG, Stamford Branch, located at 000 Xxxxxxxxxx Xxxx.,
Xxxxxxxx, XX 00000, or at such other place as shall be designated in writing for
such purposes in accordance with the terms of the Credit Agreement. Each of
Payee and any subsequent holder of this Note agrees, by its acceptance hereof,
that before disposing of this Note or any part hereof it will make a notation
hereon of all principal payments previously made hereunder and of the date to
which interest hereon has been paid; provided, however, that the failure to make
a notation of any payment made on this Note shall not limit or otherwise affect
the obligation of the Company hereunder with respect to payments of principal or
interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in Section
2.05(a)(iii)(5) of the Credit Agreement and prepayment at the option of the
Company as provided in Section 2.05(a)(ii) of the Credit Agreement. The Company
must make an offer to purchase this Note in the event of a Change of Control
pursuant to Section 2.05(a)(iii)(3) of the Credit Agreement and with certain of
the Net Asset Sale Proceeds of Asset Sales pursuant to Section 2.05(a)(iii)(4)
of the Credit Agreement.
This Note is subordinated in right of payment to all Senior
Indebtedness of the Company as and to the extent provided in Section 11 of the
Credit Agreement.
The obligations of the Company under this Note are guaranteed, on a
senior subordinated basis, by the Guarantors as provided in Section 4 of the
Credit Agreement. Attached hereto are confirmations of the Guarantors evidencing
the Guarantees.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued but unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
The Company promises to pay all costs and expenses, including
reasonable attorneys' fees, as provided in Section 10.03 of the Credit
Agreement, incurred in the collection and enforcement of this Note. The Company
and endorsers of this Note hereby waive diligence, presentment, protest, demand
and notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, the Company has caused this Note to be executed and
delivered by its duly authorized officer, as of the day and year and at the
place first above written.
AGRILINK FOODS, INC.
By: /s/
Name:
Title:
TRANSACTIONS ON TERM NOTE
Amount of Outstanding
Principal Principal
Paid Balance Notation
Date This Date This Date Made By
CONVERSION OF TERM LOAN TO
FIXED RATE LOAN PURSUANT TO SECTION 2.03(a)(ii)
Outstanding Outstanding
Amount of Converted Unconverted
Principal Principal Principal
Converted Balance Balance Notation
Date This Date This Date This Date Made By
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to elect to have this Term Note purchased by the Company
pursuant to Section 2.05(a)(iii)(3) or Section 2.05(a)(iii)(4) of the Credit
Agreement, check the appropriate box:
Section 2.05(a)(iii)(3)
Section 2.05(a)(iii)(4)
If you wish to elect to have only part of this Term Note purchased by
the Company pursuant to Section 2.05(a)(iii)(3) or Section 2.05(a)(iii)(4) of
the Credit Agreement, state the amount: $[ ].
Date: Your Signature:
(Sign exactly as
your name appears
on the other side
of this Term Note)
Signature Guarantee:
GUARANTEES
The Guarantors (as defined in the Senior Subordinated Credit Agreement
(the "Credit Agreement") referred to in the Note upon which this notation is
endorsed and each hereinafter referred to as a "Guarantor") have unconditionally
guaranteed on a senior subordinated basis (such guarantee by each Guarantor
being referred to herein as the "Guarantee") (i) the due and punctual payment of
the principal of, and the interest on, the Notes, subject to any applicable
grace period, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal and interest, if any, on
the Notes, to the extent lawful, and the due and punctual performance of all
other Loan Obligations of the Company to the holders of the Notes all in
accordance with the terms set forth in the Credit Agreement and (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other
Loan Obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
The obligations of each Guarantor to the holders of the Notes pursuant
to the Guarantee and the Credit Agreement are expressly set forth and are
expressly subordinated and subject in right of payment to the prior payment in
full of all Senior Indebtedness of such Guarantor, to the extent and in the
manner provided, in Section 11 of the Credit Agreement, and reference is hereby
made to such Credit Agreement for the precise terms of the Guarantee therein
made.
GUARANTORS:
PRO-FAC COOPERATIVE, INC.
By:
Name:
Title:
LINDEN OAKS CORPORATION
By:
Name:
Title:
XXXXXXX ENDEAVORS INCORPORATED
By:
Name:
Title:
Exhibit B
[Form of Notice of Borrowing]
Warburg Dillon Read LLC,
as Arranger and Syndication Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS AG, Stamford Branch,
as Administrative Agent
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention:
Ladies and Gentlemen:
The undersigned, Agrilink Foods, Inc. (the "Company"), refers to the
Senior Subordinated Credit Agreement dated as of September 23, 1998, as amended,
supplemented or restated from time to time (the "Credit Agreement", the terms
defined therein being used herein as therein defined) among the Company, Pro-Fac
Cooperative, Inc., as Guarantor, the other Guarantors named therein, the Lenders
named therein, Warburg Dillon Read LLC, as Arranger and Syndication Agent, and
UBS AG, Stamford Branch, as Administrative Agent, and hereby gives you notice
pursuant to Section 2.01(b) of the Credit Agreement that the Company wishes to
borrow under Section 2.01 of the Credit Agreement and, in that connection, sets
forth below the information relating to such borrowing (the "Proposed
Borrowing") as required by Section 2.01(b) of the Credit Agreement:
(i) The date of the Proposed Borrowing, being a Business Day, is September
23, 1998.
(ii) The aggregate amount of the Proposed Borrowing is $200,000,000.
Yours truly,
AGRILINK FOODS, INC.
By:
Name:
Title:
Exhibit C
[Form of Notice of Conversion]
Pursuant to that certain Senior Subordinated Credit Agreement dated as
of September 23, 1998, as amended, supplemented or restated from time to time
(the "Credit Agreement", the terms defined therein being used herein as therein
defined) among Agrilink Foods, Inc. (the "Company"), Pro-Fac Cooperative, Inc.,
as Guarantor, the other Guarantors named therein, the Lenders named therein,
Warburg Dillon Read LLC, as Arranger and Syndication Agent and UBS AG, Stamford
Branch, as Administrative Agent, this represents the Company's request to
convert $[ ] in principal amount of presently outstanding Initial Notes to a
Term Loan on the Conversion Date.
DATED: __________________
AGRILINK FOODS, INC.
By:
Name:
Title:
Exhibit D
ADDITIONAL GUARANTOR SUPPLEMENT
______________, 19___
UBS AG, Stamford Branch, as Administrative
Agent for the Lenders under the Credit
Agreement dated as of September 23, 1998,
among Agrilink Foods, Inc., Pro-Fac
Marketing Cooperative, Inc. and certain
other Guarantors, Warburg Dillon Read LLC,
as Arranger and Syndication Agent, and such
Administrative Agent (the "Credit
Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
The undersigned, [name of Subsidiary], a [jurisdiction of
incorporation] corporation, hereby elects to be a "Guarantor" for all purposes
of the Credit Agreement, effective from the date hereof. The undersigned
confirms that the representations and warranties set forth in the Credit
Agreement are true and correct as to the undersigned as of the date hereof.
Without limiting the generality of the foregoing, the undersigned
hereby agrees to perform all the obligations of a Guarantor under, and to be
bound in all respects by the terms of, the Credit Agreement, including without
limitation Section 4 thereof, to the same extent and with the same force and
effect as if the undersigned were a signatory party thereto.
This Agreement shall be construed in accordance with and governed by
the internal laws of the State of New York.
Very truly yours,
[NAME OF SUBSIDIARY]
By:
Name:
Title:
Exhibit E
[Form of Assignment Agreement]
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT, (this "Assignment Agreement") dated as of
[ ] is made between [ ] (the "Assignor") and [ ] (the "Assignee").
RECITALS
The Assignor is party to the Credit Agreement dated as of September 23,
1998 (as amended, modified, supplemented or renewed, the "Credit Agreement")
among Agrilink Foods, Inc. ("Borrower"), Pro-Fac Cooperative, Inc., as
Guarantor, the other Guarantors party thereto from time to time, the Lenders
party thereto from time to time, UBS AG, Stamford Branch, as Administrative
Agent, and Warburg Dillon Read LLC, as Arranger and Syndication Agent. Terms
defined in the Credit Agreement and not defined in this Assignment Agreement are
used herein as defined in the Credit Agreement.
The Assignor wishes to assign to Assignee rights and obligations of the
Assignor under the Credit Agreement in respect of the [Initial Loan and Term
Loan Commitment][Term Loan] and the other rights and obligations of the Assignor
thereunder, and the Assignee wishes to accept assignment of such rights and to
assume such obligations from the Assignor to be assigned to it and assumed by
it, in each case on the terms and subject to the conditions of this Assignment
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Assignment Agreement.
(a) Subject to the terms and conditions of this Assignment
Agreement, (i) the Assignor hereby sells, transfers and assigns, and
(ii) the Assignee hereby purchases, assumes and undertakes from the
Assignor, without recourse and without representation or warranty
(except as provided in this Assignment Agreement),
(i) Assignor's [Initial Loan and Term Loan
Commitment][Term Loan] set forth on Annex 1 hereto;
(ii) all related rights, benefits, obligations,
liabilities and indemnities of the Assignor with respect to
such [Initial Loan and Term Loan Commitment][Term Loan]
assigned to the Assignee under and in connection with the
Credit Agreement and the other Loan Documents;
(all of the foregoing being herein called the "Assigned Rights and
Obligations").
(b) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Credit
Agreement and succeed to all of the rights and be obligated to perform
all of the obligations of a Lender under the Credit Agreement,
including the requirements concerning confidentiality and the payment
of indemnification for claims arising following the Effective Date,
with a pro rata share as of the Effective Date of the [Initial Loan and
Term Loan Commitment][Term Loan] equal to the percentages set forth on
Annex 1 hereto. The Assignee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender. It is
the intent of the parties hereto that (i) as of the Effective Date, the
pro rata share of the Assignor of the [Initial Loan and Term Loan
Commitment][Term Loan] shall be reduced by $[ ], as a result of the
assignment hereby to the Assignee and, after giving effect to all
assignments hereunder Assignor's pro rata share of the [Initial Loan
and Term Loan Commitment][Term Loan] shall be reduced to $[ ], and (ii)
the Assignor shall relinquish its rights and be released from its
obligations under the Credit Agreement to the extent such obligations
have been assumed by the Assignee; provided, however, that the Assignor
shall not relinquish its rights under Section 3 or Section 10.03 of the
Credit Agreement or be relieved of its obligations under Section 10.17
of the Credit Agreement in respect of the Assigned Rights and
Obligations to the extent such rights relate to the time prior to the
Effective Date.
(c) After giving effect to the assignments and assumptions set
forth herein, on the Effective Date the Assignee's and the Assignor's
outstanding Commitment and Loans will be as set forth on Annex 2
hereto.
2. Payments.
As consideration for the sale, assignment and transfer contemplated in
Section 1 hereof, the Assignee shall pay to the Assignor on the Effective Date
in immediately available funds an amount in U.S. dollars equal to the amount set
forth on Annex 3 hereto, representing the principal amount of all outstanding
and funded Loans and participations included within the Assigned Rights and
Obligations.
3. Reallocation of Payments.
Any interest, fees and other payments accrued to the Effective Date
with respect to all of the Assigned Rights and Obligations of the Assignee shall
be for the account of the Assignor. Any interest, fees and other payments
accrued on and after the Effective Date with respect to the Assigned Rights and
Obligations of any Assignee shall be for the account of each Assignee. Each of
the Assignor and the Assignee, severally, agrees that it will hold in trust for
the other party any interest, fees and other amounts which it may receive to
which the other party is entitled pursuant to the preceding two sentences and
pay to the other party any such amounts which it may receive promptly upon
receipt.
4. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent financial statements delivered on the Closing Date, and such other
documents and information as it has deemed appropriate to make its own credit
and legal analysis and decision to enter into this Assignment Agreement; and (b)
agrees that it will, independently and without reliance upon the Assignor, the
Arranger, the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit and legal decisions in taking or not taking action under the
Credit Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the effective
date for this Assignment Agreement shall be [ ] (the "Effective Date");
provided, however, that the following conditions precedent have been
satisfied on or before the Effective Date:
(i) this Assignment Agreement shall be executed and
delivered by the Assignor and the Assignee;
(ii) if required for an effective assignment of the
Assigned Rights and Obligations by the Assignor to the
Assignee under Section 10.07 of the Credit Agreement, the
consent of Borrower, and the Administrative Agent shall have
been duly obtained and shall be in full force and effect as of
the Effective Date; and
(iii) the Assignee shall pay to the Assignor all
amounts due to the Assignor from the Assignee under this
Assignment Agreement.
(iv) the information in this Assignment Agreement
shall be recorded in the Register pursuant to Section 10.07(b)
of the Credit Agreement.
(b) Promptly following the execution of this Assignment
Agreement, the Assignor shall deliver this Assignment Agreement to
Borrower and the Administrative Agent, for acknowledgment by the
Administrative Agent.
6. Representations and Warranties.
(a) The Assignor represents and warrants to the Assignee that
(i) it is the legal and beneficial owner of the interest being assigned
by it hereunder to the Assignee and that such interest is free and
clear of any lien or other adverse claim other than any lien or other
adverse claim created by the Assignee; (ii) it is duly organized and
existing and it has the full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment
Agreement and any other documents required or permitted to be executed
or delivered by it in connection with this Assignment Agreement and to
fulfill its obligations hereunder; (iii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any
already given or obtained) for its due execution, delivery and
performance of this Assignment Agreement, and apart from any agreements
or undertakings or filings required by the Credit Agreement, no further
action by, or notice to, or filing with, any Person is required of it
for such execution, delivery or performance; and (iv) this Assignment
Agreement has been duly executed and delivered by it and constitutes
the legal, valid and binding obligation of the Assignor, enforceable
against the Assignor in accordance with the terms hereof, subject, as
to enforcement, to bankruptcy, insolvency, moratorium, reorganization
and other laws of general application relating to or affecting
creditors' rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument or
document furnished pursuant thereto. The Assignor makes no
representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or
statements of Borrower or any Guarantor, or the performance or
observance by Borrower or any Guarantor of any of their obligations
under the Credit Agreement or any other instrument or document
furnished in connection therewith.
(c) The Assignee represents and warrants to Assignor that (i)
it is duly organized and existing and it has full power and authority
to take, and has taken, all action necessary to execute and deliver
this Assignment Agreement and any other documents required or permitted
to be executed or delivered by it in connection with this Assignment
Agreement, and to fulfill its obligations hereunder; (ii) no notices
to, or consents, authorizations or approvals of, any Person are
required (other than any already given or obtained) for its due
execution, delivery and performance of this Assignment Agreement; and
85
apart from any agreements or undertakings or filings required by the
Credit Agreement, no further action by, or notice to, or filing with,
any Person is required of it for such execution, delivery or
performance; (iii) this Assignment Agreement has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation
of the Assignee, enforceable against the Assignee in accordance with
the terms hereof, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general
application relating to or affecting creditors' rights and to general
equitable principles; and (iv) it is an Eligible Person.
7. Further Assurances.
The Assignor and the Assignee each hereby agree to execute and deliver
such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment Agreement, including the delivery of any notices or other documents
or instruments to Borrower or the Administrative Agent which may be required in
connection with the assignment and assumption contemplated hereby.
8. Miscellaneous.
(a) Any amendment or waiver of any provision of this
Assignment Agreement shall be in writing and signed by the parties
hereto to be affected thereby. No failure or delay by either party
hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, and any waiver of any breach of the
provisions of this Assignment Agreement shall be without prejudice to
any rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs
and expenses incurred in connection with the negotiation, preparation,
execution and performance of this Assignment Agreement.
86
(d) This Assignment Agreement may be executed in any number of
counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. The
Assignor and the Assignee each irrevocably submit to the non-exclusive
jurisdiction of any State or Federal court sitting in New York, New
York over any suit, action or proceeding arising out of or relating to
this Assignment Agreement and irrevocably agree that all claims in
respect of such action or proceeding may be heard and determined in
such New York State or Federal court. Each party to this Assignment
Agreement hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH THIS ASSIGNMENT AGREEMENT, THE CREDIT
AGREEMENT, ANY RELATED DOCUMENT OR AGREEMENT OR ANY COURSE OF CONDUCT,
COURSE OF DEALING OR STATEMENT (WHETHER ORAL OR WRITTEN).
[Signature Page Follows]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment Agreement to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By:
Name:
Title:
[ASSIGNEE]
By:
Name:
Title:
ANNEX 1
Assigned Initial Loan and Term Loan $
Commitment:
Assigned Term Loan: $
ANNEX 2
Immediately
Before [Initial Loan] [Term Loan
Effective Date: [Term Loan] Commitment]
Assignor: $ $
Assignee: $ $
On and After
Effective Date:
Assignor: $ $
Assignee: $ $
ANNEX 3
AMOUNT (IN DOLLARS)
