EXHIBIT 10.1
(EXECUTION COPY)
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$1,245,000,000
CREDIT AGREEMENT
DATED AS OF DECEMBER 20,2002
AMONG
SKF FOODS INC.
(TO BE KNOWN AFTER THE CONSUMMATION OF THE TRANSACTIONS AS
DEL MONTE CORPORATION),
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT,
COLLATERAL AGENT, SWINGLINE LENDER
AND ISSUING LENDER,
THE OTHER LENDERS PARTY HERETO,
JPMORGAN CHASE BANK,
AS SYNDICATION AGENT,
XXXXXX TRUST AND SAVINGS BANK,
XXXXXX XXXXXXX & CO. INCORPORATED AND
UBS WARBURG LLC,
AS CO-DOCUMENTATION AGENTS,
AND
BANC OF AMERICA SECURITIES LLC AND
X.X. XXXXXX SECURITIES INC.,
AS JOINT BOOK MANAGERS
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COBANK, ACB, GREENSTONE CAPITAL, FLEET NATIONAL BANK, FORTIS
CAPITAL CORP., SUNTRUST BANK,
AND
UNITED OVERSEAS BANK LTD., NEW YORK AGENCY,
AS MANAGING AGENTS
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THE BANK OF NEW YORK, CAPITAL FUNDING, UNIT OF GENERAL ELECTRIC
CAPITAL CORPORATION
AND
UNION BANK OF CALIFORNIA,
AS CO-AGENTS
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ARRANGED BY
BANC OF AMERICA SECURITIES LLC,
X.X. XXXXXX SECURITIES INC.,
XXXXXX XXXXXXX & CO. INCORPORATED
AND
UBS WARBURG LLC
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.1. Certain Defined Terms........................................................................... 2
Section 1.2. Other Interpretive Provisions................................................................... 47
Section 1.3. Accounting Principles........................................................................... 48
Section 1.4. Rounding........................................................................................ 48
Section 1.5. Times of Day.................................................................................... 48
Section 1.6. Letter of Credit Amounts........................................................................ 48
Section 1.7. Calculations of Euro-denominated Loans and Commitments ......................................... 48
ARTICLE II
THE LOANS
Section 2.1. The loans....................................................................................... 49
Section 2.2. Loan Accounts................................................................................... 50
Section 2.3. Procedure for Borrowing ........................................................................ 50
Section 2.4. Conversion and Continuation Elections........................................................... 52
Section 2.5. Swingline Loans................................................................................. 53
Section 2.6. Termination or Reduction of Commitments......................................................... 56
Section 2.7. Prepayments..................................................................................... 57
Section 2.8. Repayment....................................................................................... 60
Section 2.9. Interest........................................................................................ 62
Section 2.10. Fees............................................................................................ 62
Section 2.11. Computation of Fees and Interest ............................................................... 63
Section 2.12. Payments by the Company......................................................................... 63
Section 2.13. Sharing of Payments, Etc........................................................................ 65
..
ARTICLE III
THE LETTERS OF CREDIT
Section 3.1. The Letter of Credit Subfacility................................................................ 66
Section 3.2. Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters
of Credit...................................................................................... 67
Section 3.3. Risk Participations, Drawings and Reimbursements................................................ 69
Section 3.4. Repayment of Participations..................................................................... 70
Section 3.5. Role of the Issuing Lender...................................................................... 71
Section 3.6. Obligations Absolute............................................................................ 72
Section 3.7. Cash Collateral................................................................................. 73
Section 3.8. Letter of Credit Fees .......................................................................... 73
Section 3.9. Applicability of ISP98 and UCP; Conflict with L/C Application .................................. 74
Section 3.10. Non-Dollar Letters of Credit.................................................................... 74
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 4.1. Taxes........................................................................................... 76
Section 4.2. Illegality...................................................................................... 78
Section 4.3. Inability to Determine Rates.................................................................... 78
Section 4.4. Increased Cost and Reduced Return; Capital Adequacy;
Reserves on Eurocurrency Rate Loans and Eurodollar Rate Loans.................................. 79
Section 4.5. Funding Losses.................................................................................. 79
Section 4.6. Matters Applicable to All Requests for Compensation ............................................ 80
Section 4.7. Survival........................................................................................ 80
ARTICLE V
CONDITIONS PRECEDENT
Section 5.1. Conditions to Making of Term Loans.............................................................. 80
Section 5.2. Conditions to Occurrence of the Time of Merger.................................................. 82
Section 5.3. Conditions to All Credit Extensions ............................................................ 86
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1. Corporate Existence and Power................................................................... 87
Section 6.2. Corporate Authorization; No Contravention ...................................................... 87
Section 6.3. Governmental Authorization ..................................................................... 88
Section 6.4. Binding Effect.................................................................................. 88
Section 6.5. Litigation...................................................................................... 88
Section 6.6. No Default...................................................................................... 89
Section 6.7. ERISA Compliance................................................................................ 89
Section 6.8. Use of Proceeds; Margin Regulations............................................................. 89
Section 6.9. Title to Properties............................................................................. 89
Section 6.10. Taxes........................................................................................... 90
Section 6.11. Financial Condition............................................................................. 90
Section 6.12. Regulated Entities.............................................................................. 91
Section 6.13. No Burdensome Restrictions...................................................................... 91
Section 6.14. Copyrights, Patents, Trademarks and Licenses, Etc............................................... 91
Section 6.15. Subsidiaries.................................................................................... 92
Section 6.16. Insurance....................................................................................... 92
Section 6.17. Solvency, Etc................................................................................... 92
Section 6.18. RealProperty.................................................................................... 92
Section 6.19. Swap ObUgations................................................................................. 93
Section 6.20. Senior Indebtedness............................................................................. 93
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Section 6.21. Environmental Warranties ....................................................................... 93
Section 6.22. Full Disclosure................................................................................. 94
Section 6.23. The Transactions................................................................................ 94
Section 6.24. Perfection of Security Interest ................................................................ 95
Section 6.25. Existing Debt................................................................................... 95
Section 6.26. Surviving Debt.................................................................................. 95
ARTICLE VII
AFFIRMATIVE COVENANTS
Section 7.1. Financial Statements............................................................................ 95
Section 7.2. Certificates; Other Information................................................................. 96
Section 7.3. Notices......................................................................................... 97
Section 7.4. Preservation of Corporate Existence, Etc........................................................ 98
Section 7.5. Maintenance of Property......................................................................... 98
Section 7.6. Insurance....................................................................................... 99
Section 7.7. Payment of Obligations.......................................................................... 99
Section 7.8. Compliance with Laws ........................................................................... 99
Section 7.9. Compliance with ERISA........................................................................... 99
Section 7.10. Inspection of Property and Books and Records.................................................... 99
Section 7.11. Interest Rate Protection........................................................................ 100
Section 7.12. Environmental Covenant ......................................................................... 100
Section 7.13. Use of Proceeds................................................................................. 100
Section 7.14. Further Assurances.............................................................................. 100
Section 7.15. Covenant to Guarantee Obligations and Give Security ............................................ 101
Section 7.16. Control Agreements and Lockbox Arrangements .................................................... 106
ARTICLE VIII
NEGATIVE COVENANTS
Section 8.1. Limitation on Liens............................................................................. 106
Section 8.2. Disposition of Assets........................................................................... 108
Section 8.3. Consolidations and Mergers ..................................................................... 109
Section 8.4. Loans and Investments........................................................................... 110
Section 8.5. Limitation on Indebtedness...................................................................... 113
Section 8.6. Transactions with Affiliates.................................................................... 114
Section 8.7. Use of Proceeds................................................................................. 115
Section 8.8. Contingent Obligations ......................................................................... 115
Section 8.9. Joint Ventures.................................................................................. 115
Section 8.10. Lease Obligations............................................................................... 116
Section 8.11. Minimum Fixed Charge Coverage................................................................... 116
Section 8.12. Minimum Interest Coverage....................................................................... 116
Section 8.13. Maximum Total Debt Ratio........................................................................ 117
Section 8.14. Maximum Capital Expenditures.................................................................... 117
Section 8.15. Restricted Payments............................................................................. 117
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Section 8.16. ERISA........................................................................................... 119
Section 8.17. Limitations on Sale and Leaseback Transactions ................................................. 119
Section 8.18. Limitation on Restriction of Subsidiary Dividends and Distributions............................. 119
Section 8.19. Inconsistent Agreements......................................................................... 120
Section 8.20. Change in Business.............................................................................. 120
Section 8.21. Amendments to Certain Documents................................................................. 120
Section 8.22. Accounting Changes.............................................................................. 120
Section 8.23. Limitation on Issuance of Guaranty Obligations.................................................. 120
Section 8.24. Senior Debt Designation......................................................................... 121
Section 8.25. Amendment of Constitutive Documents............................................................. 121
Section 8.26. Partnerships, Etc. ............................................................................. 121
ARTICLE IX
EVENTS OF DEFAULT
Section 9.1. Event of Default................................................................................ 121
Section 9.2. Remedies........................................................................................ 124
Section 9.3. Application of Funds............................................................................ 125
Section 9.4. Rights Not Exclusive ........................................................................... 125
ARTICLE X
THE AGENTS
Section 10.1. Appointment and Authorization .................................................................. 126
Section 10.2. Delegation of Duties ........................................................................... 126
Section 10.3. Liability of Agents............................................................................. 127
Section 10.4. Reliance by Agents.............................................................................. 127
Section 10.5. Notice of Default............................................................................... 128
Section 10.6. Credit Decision; Disclosure of Information by Administrative Agent.............................. 128
Section 10.7. Indemnification of Agents ...................................................................... 000
Xxxxxxx 00.0. Xxxx xx Xxxxxxx, XXXxxxxx Chase, Harris Bank, Xxxxxx Xxxxxxx and UBS in
Their Individual Capacity...................................................................... 129
Section 10.9. Successor Administrative Agent.................................................................. 129
Section 10.10. Collateral Agent May File Proofs of Claim....................................................... 130
Section 10.11. Collateral and Guaranty Matters................................................................. 131
Section 10.12. Other Agents; Arrangers and Managers ........................................................... 131
ARTICLE XI
MISCELLANEOUS
Section 11.1. Amendments and Waivers.......................................................................... 132
Section 11.2. Notices and Other Communications; Facsimile Copies ............................................. 133
Section 11.3. No Waiver; Cumulative Remedies ................................................................. 135
Section 11.4. Costs and Expenses.............................................................................. 135
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Section 11.5. Company Indemnification ........................................................................ 136
Section 11.6. Payments Set Aside.............................................................................. 137
Section 11.7. Successors and Assigns.............................................. ........................... 137
Section 11.8. Confidentiality................................................................................. 141
Section 11.9. Set-off......................................................................................... 141
Section 11.10. Automatic Debits of Fees........................................................................ 142
Section 11.11. Notification of Addresses, Lending Offices, Etc ................................................ 142
Section 11.12. Interest Rate Limitation........................................................................ 142
Section 11.13. Counterparts.................................................................................... 142
Section 11.14. Integration..................................................................................... 143
Section 11.15. Survival of Representations and Warranties...................................................... 143
Section 11.16. Severability.................................................................................... 143
Section 11.17. Tax Forms....................................................................................... 143
Section 11.18. Replacement of Lenders ......................................................................... 145
Section 11.19. Third Parties................................................................................... 145
Section 11.20. Governing Law and Jurisdiction.................................................................. 145
Section 11.21. Waiver of Jury Trial............................................................................ 146
SCHEDULES
Schedule I Commitments and Percentages
Schedule II Subsidiary Guarantors
Schedule III Existing Letters of Credit
Schedule 6.5 Litigation
Schedule 6.7 ERISA Disclosure
Schedule 6.9 Liens
Schedule 6.11 Financial Condition
Schedule 6.14 Intellectual Property Disclosure
Schedule 6.15 Subsidiaries
Schedule 6.16 Insurance Disclosure
Schedule 6.18 Real Property Rights
Schedule 6.25 Existing Debt
Schedule 6.26 Surviving Debt
Schedule 8.2(f) Assets Held for Sale
Schedule 8.4(1) Investments
Schedule 8.8(c) Contingent Obligations
Schedule 11.2 Agent's Payment Office; Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Assignment and Assumption
Exhibit B Form of Bailee's Consent
Exhibit C Form of Borrowing Base Certificate
Exhibit D Form of Compliance Certificate
Exhibit E Form of Landlord's Consent
Exhibit F Form of Note
v
Exhibit G Form of Notice of Borrowing
Exhibit H Form of Notice of Conversion/Continuation
Exhibit I-1 Form of Solvency Certificate for the Company
Exhibit I-2 Form of Solvency Certificate for DMFC
Exhibit I-3 Form of Solvency Certificate for each Subsidiary Guarantor
Exhibit J Subordination Terms
Exhibit K Form of Warhouseman's Consent
Exhibit L-l Form of Heinz Guaranty
Exhibit L-2 Form of DMFC Guaranty
Exhibit L-3 Form of Subsidiary Guaranty
Exhibit M-l Form of legal opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP
Exhibit M-2 Form of internal counsel opinion to each of the Loan Parties
Exhibit M-3 Form of in-house or local counsel opinion in respect of
certain corporate matters relating to the Real Properties
Exhibit M-4 Form of local counsel opinion in respect of the Real
Properties
Exhibit N Form of Security Agreement
Exhibit O Form of Mortgage
Exhibit P Form of Intellectual Property Security Agreement
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of December 20, 2002,
among SKF FOODS INC. (hereinafter referred to as "SPINCO" or the "COMPANY") (to
be known after the consummation of the Transactions as Del Monte Corporation), a
Delaware corporation, the several financial institutions from time to time party
to this Agreement in their capacity as Lenders, BANK OF AMERICA, N.A., as
Administrative Agent, Collateral Agent, Swingline Lender and Issuing Lender,
JPMORGAN CHASE BANK, as Syndication Agent, and XXXXXX TRUST AND SAVINGS BANK,
XXXXXX XXXXXXX & CO. INCORPORATED and UBS WARBURG LLC, as Co-Documentation
Agents. Capitalized terms used herein shall have the meanings assigned thereto
in Section 1.1 of this Agreement.
W I T N E S S E T H :
WHEREAS, pursuant to (a) a Separation Agreement, dated as of
June 12, 2002 (the "SEPARATION AGREEMENT"), between X.X. Xxxxx Company, a
Pennsylvania corporation ("HEINZ"), and SpinCo and (b) an Agreement and Plan of
Merger, dated as of June 12, 2002 (the "AGREEMENT AND PLAN OF MERGER"), among
Heinz, SpinCo, Del Monte Corporation, a New York corporation (hereinafter
referred to as "EXISTING DEL MONTE"), and Del Monte Foods Company, a Delaware
corporation (hereinafter referred to as "DMFC"), pursuant to which the parties
thereto have agreed to enter into a series of transactions related to the
acquisition by DMFC of certain businesses from Heinz, as follows: (i) Heinz will
transfer (the "TRANSFER") to SpinCo the assets and operations comprising the
Businesses in exchange for all of the Equity Interests in SpinCo, cash in an
amount equal to the Bank Debt Amount (as such term is defined in the Separation
Agreement) and $300,000,000 in aggregate principal amount of New Subordinated
Notes (the "DISTRIBUTED NOTES"), (ii) immediately following the Transfer, Heinz
will transfer the Distributed Notes to X.X. Xxxxx Finance Company, a Delaware
corporation ("HEINZ FINANCE"), in satisfaction of Indebtedness owed by Heinz to
Heinz Finance (the "DEBT EXCHANGE"), (iii) immediately following the Debt
Exchange, Heinz will distribute the Equity Interests in SpinCo to its
shareholders (the "SPIN-OFF"), and (iv) immediately following the Spin-off,
Existing Del Monte will merge (the "MERGER", and collectively with the Transfer
and the Spin-off and any and all transactions related to each of the foregoing,
the "TRANSACTIONS") with and into SpinCo following which SpinCo will be the
surviving corporation (the "SURVIVING CORPORATION") in accordance with the terms
and conditions set forth in the Agreement and Plan of Merger;
WHEREAS, Existing Del Monte, DMFC, Bank of America, N.A., as
Administrative Agent, certain financial institutions in their capacity as
lenders, JPMorgan Chase Bank (as successor in interest to The Chase Manhattan
Bank), as Syndication Agent and Deutsche Bank AG, New York Branch (as successor
in interest to Bankers Trust Company), as Documentation Agent are parties to
that certain Third Amended and Restated Credit Agreement dated as of May
15, 2001 (as amended, modified or otherwise supplemented from time to time, the
"EXISTING CREDIT FACILITY"), which amended and restated a Second Amended and
Restated Credit Agreement, dated as of January 14, 2000, which amended and
restated an Amended and Restated Credit Agreement dated as of December 17, 1997
which amended and restated a Credit Agreement dated as of April 18,1997;
WHEREAS, SpinCo has requested that (a) (i) the Term A Lenders
lend to the Company up to $195,000,000 under a Term A loan facility (the "TERM A
LOAN FACILITY") and (ii) the Term B Lenders (including both the Euro Term B
Lenders and the Dollar Term B Lenders) lend to the Company up to $750,000,000
under a Term B loan facility (the "TERM B LOAN FACILITY"}, the proceeds of which
will be used by the Company to fund payment of the Bank Debt Amount to Heinz,
replace or refinance certain Indebtedness of the Surviving Corporation
(including, without limitation, Indebtedness outstanding under the Existing
Credit Facility) and to pay Transaction Costs and (b) the Revolving Credit
Lenders lend to the Company and issue letters of credit for the account of the
Company in an aggregate amount not to exceed $300,000,000 at any time
outstanding (the "REVOLVING CREDIT FACILITY", and together with the Term A
Facility and the Term B Facility, the "SENIOR CREDIT FACILITIES"), the proceeds
of which will be used to replace or refinance certain Indebtedness of the
Surviving Corporation (including, without limitation, Indebtedness outstanding
under the Existing Credit Facility), to pay Transaction Costs and otherwise be
available for general corporate purposes of the Company, including working
capital and Capital Expenditures;
WHEREAS, the Company intends to issue unsecured and
subordinated notes on terms and conditions satisfactory in all material respects
to the Arrangers in an aggregate face amount of up to $450,000,000, $300,000,000
of which shall be used as part of the consideration to be paid to Heinz in
connection with the consummation of the Transactions and the remainder of which
shall be used to replace or refinance certain Indebtedness of the Surviving
Corporation and to pay Transaction Costs and which shall in any case be
subordinated to the Obligations on the Subordination Terms (the "NEW
SUBORDINATED NOTES);
WHEREAS, the Lenders have indicated their willingness to offer
to lend amounts under the Senior Credit Facilities on the terms and conditions
of this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties hereto covenant and agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain Defined Terms. In this Agreement,
including the foregoing preamble and recitals, the following terms have the
following meanings:
"ACCEPTING LENDERS" has the meaning specified in Section
2.7(g).
"ACCOUNT DEBTOR" means any Person who is obligated to the
Company or any Domestic Subsidiary under, with respect to or an account
of any Receivable.
"ACQUIRED INDEBTEDNESS" means with respect to any Person,
mortgage Indebtedness or Indebtedness with respect to Capital Leases of
such Person existing at the time such Person became a Subsidiary of the
Company or assumed by the Company or a Subsidiary of the Company in an
Acquisition permitted hereunder (and not created or incurred in
connection with or in anticipation of such Acquisition); provided that
such Indebtedness is purchase money Indebtedness or Indebtedness with
respect to a Capital
2
Lease, as the case may be, and was incurred by such Person to finance
the acquisition of property or, in either case, such Indebtedness was
incurred to refinance such Indebtedness, and the principal amount of
such Indebtedness does not exceed the purchase price of such property.
"ACQUISITION" means any transaction or series of related
transactions for the purpose of, or resulting directly or indirectly
in, (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition
of in excess of 50% of the Equity Interests in any Person, or otherwise
causing any Person to become a Subsidiary of any Loan Party or (c) a
merger or consolidation or any other combination with another Person
(other than a Person that is a Loan Party or a Subsidiary thereof);
provided that the Company or a Subsidiary of the Company or DMFC is the
surviving entity.
"ACQUISITION PROSPECT means each Person whose Equity
Interests or assets are intended to be acquired in an Acquisition
permitted under Section 8.4(i) including, in each case, the assets and
the liabilities of such Person.
"ADMINISTRATIVE AGENT" means Bank of America in its capacity
as administrative agent for the Lenders hereunder and under any of the
other Loan Documents, and any successor administrative agent arising
under Section 10.9.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent and
provided by each Lender to the Company and the Administrative Agent.
"AFFILIATE" means, with respect to any Person, any other
Person which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. A Person shall be
deemed to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the direction of
the management and policies of such other Person, whether through the
ownership of Equity Interests in such Person by contract, or otherwise.
Without limiting the foregoing, any Person which is an officer,
director or shareholder of the Company, or a member of the immediate
family of any such officer, director or shareholder, shall be deemed to
be an Affiliate of the Company.
"AGENT" means the Administrative Agent, the Collateral Agent,
the Syndication Agent or any of the Co-Documentation Agents.
"AGENT-RELATED PERSONS" means the Administrative Agent, the
Collateral Agent and any successor administrative agent or collateral
agent arising under Section 10.9, the Issuing Lender and any successor
Issuing Lender, and the Swingline Lender and any successor Swingline
Lender, whether or not acting in such capacities, together with their
respective Affiliates (including Bane of America Securities LLC), and
the officers, directors, employees, agents and attorneys-in-fact of
such Persons and Affiliates.
3
"AGENT'S PAYMENT OFFICE" means the address for payments set
forth on Schedule 11.2 in relation to the Administrative Agent, or such
other address as the Administrative Agent may from time to time specify
in writing.
"AGREEMENT" means this Credit Agreement.
"AGREEMENT AND PLAN OF MERGER" has the meaning specified in
the preliminary statements hereto.
"AGREEMENT CURRENCY" has the meaning specified in
Section 3.10(b)(vi).
"ANNUALIZED AMOUNT" means with respect to any item or amount
for any Computation Period, the sum (a) of such item or amount (such
amount being the "ACTUAL AMOUNT") for each of the fiscal quarters
occurring in such Computation Period which ended on or after the date
of this Agreement (the "ACTUAL FISCAL QUARTERS") plus (b) an amount
equal to (i) the Actual Amount divided by the number of Actual Fiscal
Quarters multiplied by (ii) the number of fiscal quarters occurring in
such Computation Period which ended prior to the date of this
Agreement.
"APPLICABLE PERCENTAGE" means the following percentages per
annum, (a) for the period commencing with and including the date hereof
and ending with, but excluding, the six month anniversary of the
Initial Distribution Date, with respect to any Commercial Letter of
Credit, 3.00% and with respect to any Standby Letter of Credit, 3.50%
and (b) for each period commencing and including, the six month
anniversary of the Initial Distribution Date, to, but excluding the
date on which the Loans are paid in full, the percentage indicated
below during such period, based upon Total Debt Ratio as set forth in
the most recent Compliance Certificate received by the Administrative
Agent pursuant to Section 7.2(b):
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APPLICABLE PERCENTAGE FOR APPLICABLE PERCENTAGE FOR
TOTAL DEBT RATIO COMMERCIAL LETTER OF CREDIT STANDBY LETTERS OF CREDIT
----------------------------------------------------------------------------------------------------
>3.50:1.00 3.00% 3.50%
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< than = to 3.50:1 but > 3.00:1.00 2.75% 3.25%
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< than = to 3.00:1.00 but > 2.5:1.00 2.25% 2.75%
----------------------------------------------------------------------------------------------------
< than = to 2.50:1.00 2.00% 2.50%
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The "APPLICABLE PERCENTAGE" shall be adjusted, to the extent
applicable, not later than 45 days (or, in the case of the last fiscal
quarter of any year, not later than 90 days) after the end of each
fiscal quarter based on the Total Debt Ratio as of the last day of such
fiscal quarter; provided that (i) any such adjustment shall be
effective only upon the earlier of (A) delivery of a certificate signed
by a Responsible Officer calculating the Total Debt Ratio and (B)
delivery of the financial statements required by Section 7.1 (a) or
7.1(b), as applicable, with respect to such fiscal quarter, and the
related Compliance Certificate; (ii) if any adjustment becomes
effective pursuant to the preceding clause (i)(A) the Total Debt
Ratio shall be recalculated upon the first delivery of financial
statements pursuant to Section 7.1 (a) or 7.1(b) after the delivery of
the officer's certificate referred to in such
4
clause, and if such recalculation indicates that the Total Debt Ratio
on the last day of such fiscal quarter was different from that reported
in such officer's certificate, (I) the "APPLICABLE PERCENTAGE" shall be
readjusted based on the recalculated Total Debt Ratio and (II) if the
recalculated Total Debt Ratio is higher than that reported on the
officer's certificate and results in a higher Applicable Percentage,
the Company shall immediately pay an amount equal to the additional
letter of credit fees that would have accrued thereto if the adjustment
based on such officer's certificate had not occurred, which amounts
shall be paid (y) immediately, to the extent that any date of payment
of such letter of credit fees to which such amounts related have
occurred and (z) otherwise, on the dates scheduled for payment of
letter of credit fees to which such amounts relate, and (III) if the
Company fails to deliver the financial statements required by Section
7.1(a) or 7.1(b), as applicable, and the related Compliance Certificate
required by Section 7.2(b) by the 45th day (or, if applicable, the 90th
day) after any fiscal quarter, the highest fee rates set forth above
shall apply until such financial statements and Compliance Certificate
are delivered.
"APPLICABLE RATE" means the following percentages per annum,
(a) for the period commencing and including the date hereof ending
with, but excluding, the six month anniversary of the Initial
Distribution Date, (i) with respect to any Base Rate Revolving Credit
Loan, 2.50%, (ii) with respect to any Base Rate Term A Loan, 2.50%,
(iii) with respect to any Base Rate Term B Loan, 2,75%, (iv) with
respect to any Eurodollar Rate Revolving Credit Loan, 3.50%, (v) with
respect to any Eurodollar Rate Term A Loan, 3.50%, (vi) with respect to
any Eurocurrency Rate Term B Loan or Eurodollar Rate Term B Loan, 3.75%
and (b) for each period commencing with and including the six month
anniversary of the Initial Distribution Date, to, but excluding the
date on which the Loans are paid in full, the percentage indicated
below during such period, based upon Total Debt Ratio as set forth in
the most recent Compliance Certificate received by the Administrative
Agent pursuant to Section 7.2(b):
APPLICABLE RATE
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TOTAL DEBT RATIO >3.50:1.00 < than = to 3.50:1 BUT >3.00:1.00 < than = to 3.00:1 BUT >2.50:1OO < than = to 2.50:1.00
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BASE RATE REVOLVING 2.50% 2.25% 1.75% 1.50%
CREDIT LOANS
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BASE RATE TERM A LOANS 2.50% 2.25% 1.75% 1.50%
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BASE RATE TERM B LOANS 2.75% 2.75% 2.75% 2.75%
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EURODOLLAR RATE 3.50% 3.25% 2.75% 2.50%
REVOLVING CREDIT LOANS
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EURODOLLAR RATE TERM A 3.50% 3.25% 2.75% 2.50%
LOANS
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EUROCURRENCY RATE TERM 3.75% 3.75% 3.75% 3.75%
B LOANS AND EURODOLLAR
RATE TERM B LOANS
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The "APPLICABLE RATE" shall be adjusted, to the extent applicable, not
later than 45 days (or, in the case of the last fiscal quarter of any
year, not later than 90 days) after the end of each fiscal quarter
based on the Total Debt Ratio as of the last day of such fiscal
quarter; provided that (i) any such adjustment shall be effective only
upon the earlier of (A) delivery of a certificate signed by a
Responsible Officer calculating the Total Debt Ratio and (B) delivery
of the financial statements required by Section 7.1(a) or 7.1(b), as
applicable, with respect to such fiscal quarter, and the related
Compliance Certificate; (ii) if any adjustment becomes effective
pursuant to the preceding clause (i)(A), the Total Debt Ratio shall be
recalculated upon the first delivery of financial statements pursuant
to Section 7.1 (a) or 7.1(b) after the delivery of the officer's
certificate referred to in such clause, and if such recalculation
indicates that the Total Debt Ratio on the last day of such fiscal
quarter was different from that reported in such officer's certificate,
(I) the "APPLICABLE RATE" shall be readjusted based on the
recalculated Total Debt Ratio and (II) if the recalculated Total Debt
Ratio is higher than that reported on the officer's certificate and
results in a higher Applicable Rate, the Company shall immediately pay
an amount equal to the additional interest on the Loans that would have
accrued thereto if the adjustment based on such officer's certificate
had not occurred, which amounts shall be paid (y) immediately, to the
extent that any date of payment of the Interest Payment Date to which
such amounts related have occurred and (z) otherwise, on the Interest
Payment Dates to which such amounts relate, and (III) if the Company
fails to deliver the financial statements required by Section 7.1(a)
or 7.1(b), as applicable, and the related Compliance Certificate
required by Section 7.2(b) by the 45th day (or, if applicable, the 90th
day) after any fiscal quarter, the highest fee rates set forth above
shall apply until such financial statements and Compliance Certificate
are delivered.
"APPROVED BANK" has the meaning specified in the definition of
"CASH EQUIVALENT INVESTMENTS".
"APPROVED FUND" has the meaning specified in Section 11.7(g).
"ARRANGERS" means Bane of America Securities LLC, X.X. Xxxxxx
Securities Inc., Xxxxxx Xxxxxxx & Co. Incorporated, and UBS Warburg
LLC, each in its respective capacity as arranger.
"ASSET SALE" means the sale, transfer, license, lease or other
disposition of any property by any Person (including any sale and
leaseback transaction or any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts receivable
or any rights and claims associated therewith).
"ASSETS HELD FOR SALE" means assets of the Company and its
Subsidiaries listed on Schedule 8.2(f).
"ASSIGNED AGREEMENT" has the meaning specified in Section
7.15(e).
"ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption
substantially in the form of Exhibit A.
6
"ATTORNEY COSTS" means and includes all reasonable fees and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all
reasonable disbursements of internal counsel.
"AUTO-RENEWAL LETTER OF CREDIT" has the meaning specified in
Section 3. 2(c).
"BAILEE'S CONSENT" means a document substantially in the form
of Exhibit B, with appropriate insertions, or such other form as shall
be acceptable to the Collateral Agent or Required Revolving Credit
Lenders.
"BANK DEBT AMOUNT" has the meaning specified therefor in the
Separation Agreement.
"BANK OF AMERICA" means Bank of America, N.A., a national
banking association and its successors in interest.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. Section 101, et seq.).
"BASE AMOUNT" has the meaning specified in Section 8. 14.
"BASE RATE" means, with respect to any Revolving Credit Loan,
Term A Loan or Dollar Term B Loan, the Dollar Base Rate, and with
respect to any Euro Term B Loan, the Euro Base Rate.
"BASE RATE LOAN" means any Base Rate Revolving Credit Loan,
Base Rate Term A Loan, Dollar Base Rate Term B Loan, or Euro Base Rate
Loan, as the context may require.
"BASE RATE REVOLVING CREDIT LOAN" means a Revolving Credit
Loan that bears interest based on the Dollar Base Rate.
"BASE RATE TERM A LOAN" means a Term A Loan that bears
interest based on the Dollar Base Rate.
"BORROWING" means a Revolving Credit Borrowing, a Swingline
Borrowing, a Term A Borrowing, a Dollar Term B Borrowing or a Euro Term
B Borrowing, as the context may require.
"BORROWING BASE" means, as of any date of determination, an
amount equal to the total of (a) 85% of the unpaid amount (net of such
reserves and allowances as the Collateral Agent deems necessary in its
sole reasonable discretion and in accordance with its customary
commercial lending practices) of all Eligible Receivables plus (b) 70%
of all Eligible Inventory consisting of finished goods (whether labeled
or unlabeled) or bulk tomato paste, valued at the lower of cost and
market (net of such reserves and allowances as the Collateral Agent
deems necessary in its sole reasonable discretion and in accordance
with its customary commercial lending practices) plus (c) 20% of the
value of all other Eligible Inventory, valued at the lower of cost and
market (net of such reserves
7
and allowances as the Collateral Agent deems necessary in its sole
reasonable discretion and in accordance with its customary commercial
lending practices) plus (d) an amount equal to the positive difference,
if any, of (i) the aggregate cash purchase price paid by the Company
and its Domestic Subsidiaries (including any related fees and expenses
and amounts paid to refinance Indebtedness in connection therewith but
excluding the amount of any cash purchase price funded with the
proceeds of capital contributions to, or new Equity Interests in, the
Company issued by the Company) in Acquisitions permitted under Section
8.4(i) after the date hereof, to the extent funded with proceeds of
Revolving Credit Loans minus (ii) an amount equal to the average
calendar-month-end amount of the value of Receivables and Inventory of
the business acquired in each such Acquisition (to the extent the same
would have been eligible for inclusion in the Borrowing Base assuming
such Acquisition had occurred a year earlier) for the year preceding
such Acquisition, as shall be reasonably determined by a Responsible
Officer of the Company, in each case multiplied by the applicable
advance rate less (e) the net aggregate payable owing to growers or
other suppliers of crops or produce at such time, to the extent that
such payables are subject to statutory liens, trusts or priority
claims; provided that if the Company is holding any Inventory at
premises leased by the Company or with a bailee or warehouseman and
with respect to which the Company shall not have obtained a Landlord's
Consent, Bailee's Consent or Warehouseman's Consent, as applicable, the
Company may request that a reserve equal to all rent payable by the
Company with respect to such property for one year from the date of
determination of the reserve (in the case of leased premises) or such
other reserve in respect of storage, transportation and other charges
as shall be acceptable to the Collateral Agent or the Required
Revolving Credit Lenders (in the case of Inventory with a bailee or
warehouseman) be established, in which case such reserve shall be, if
any Inventory located at such premises is to be included in the
Borrowing Base, deducted from the Borrowing Base and such Inventory
shall not, solely by virtue of clause(c), clause (d) or clause (e) of
the definition of "ELIGIBLE INVENTORY", be deemed ineligible. Nothing
in this definition providing for reserves on Receivables or Inventory
shall be construed as requiring the Company to set up reserves for
financial reporting purposes.
"BORROWING BASE CERTIFICATE" means a certificate in
substantially the form of Exhibit C, duly certified by the Responsible
Officer of the Company.
"BORROWING DATE" means any date on which a Borrowing occurs
under Section 2.3.
"BUSINESS DAY" means any day of the year on which banks are
not required or authorized by law to close in New York City, San
Francisco or Charlotte, North Carolina and, if the applicable Business
Day relates to any Eurocurrency Rate Loan or Eurodollar Rate Loan, on
which dealings in Dollar deposits are conducted by and between banks in
the London interbank market, and in the case of any Eurocurrency Rate
Loan, on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System is open.
"BUSINESSES" means, collectively, Heinz' (a) dry and canned
pet food and pet snacks businesses in the United States and Canada, (b)
specialty pet food businesses
8
conducted under the "Nature's Recipe", "IVD", "TechniCal and "MediCal"
trademarks worldwide, (c) ambient tuna business in the United States,
(d) other ambient seafood products currently marketed by the Star-Xxxx
Seafood business unit in the United States, (e) retail private label
soup and retail private label gravy businesses in the United States,
(f) broth business conducted in the United States under the trademark
"College Inn" and (g) infant feeding business in the United States,
including pureed foods produced in the Pittsburgh plant.
"CAPITAL EXPENDITURES" means, with respect to any Person for
any period, any expenditure in respect of the purchase or other
acquisition of any fixed or capital asset, which, in accordance with
GAAP would be required to be capitalized, but excluding expenditures
made in connection with the replacement, substitution or restoration of
assets to the extent financed (a) from insurance proceeds (or other
similar recoveries) paid on account of the loss of or damage to the
assets being replaced or restored or (b) with awards of compensation
arising from the taking by eminent domain or condemnation of the assets
being replaced.
"CAPITAL LEASE" means any lease that has been or should be, in
accordance with GAAP, recorded as a capitalized lease.
"CASH COLLATERAL ACCOUNT" has the meaning specified in the
preliminary statements of the Security Agreement.
"CASH COLLATERALIZE" has the meaning specified in Section 3.7.
"CASH EQUIVALENT INVESTMENTS" means any of the following types
of Investments, to the extent owned by any Loan Party or any of their
respective Subsidiaries:
(a) securities 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) having maturities of not more than three
years from the date of acquisition;
(b) marketable direct obligations issued by any
State of the United States of America or any local government
or other political subdivision thereof rated (at the time of
acquisition of such security) at least "AA" by S&P, or the
equivalent thereof by Xxxxx'x having maturities of not more
than one year from the date of acquisition;
(c) time deposits (including eurodollar time
deposits), certificates of deposit (including eurodollar
certificates of deposit) and bankers, acceptances of (i) any
Lender or any Affiliate of any Lender, (ii) any commercial
bank of recognized standing either organized under the laws of
the United States (or any State or territory thereof) or
another country (or a political subdivision thereof) which is
a member of the Organization for Economic Cooperation and
Development and acting through a branch or agency located in
the United States, in either case having capital and surplus
in excess of $250,000,000 or (iii) any
9
bank whose short-term commercial paper rating (at the time of
acquisition of such security) by S&P is at least "A-1" or the
equivalent thereof (any such bank, an "APPROVED BANK"), in
each case with maturities of not more than six months from the
date of acquisition;
(d) commercial paper and variable or fixed rate
notes issued by any Lender or Approved Bank or by the parent
company of any Lender or Approved Bank and commercial paper
and variable rate notes issued by, or guaranteed by, any
industrial or financial company with a short-term commercial
paper rating (at the time of acquisition of such security) of
at least "A-1" or the equivalent thereof by S&P or at least
"P-1" or the equivalent thereof by Xxxxx'x, or guaranteed by
any industrial company with a long-term unsecured debt rating
(at the time of acquisition of such security) of at least "AA"
or the equivalent thereof by S&P or at least "Aa" or the
equivalent thereof by Xxxxx'x and in each case maturing within
one year after the date of acquisition; and
(e) repurchase agreements with any Lender or any
primary dealer maturing within one year from the date of
acquisition that are fully collateralized by investment
instruments that would otherwise be Cash Equivalent
Investments; provided that the terms of such repurchase
agreements comply with the guidelines set forth in the
"Federal Financial Institutions Examination Council
Supervisory Policy -- Repurchase Agreements of Depository
Institutions With Securities Dealers and Others, as adopted by
the Comptroller of the Currency on October 31, 1985".
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System, as maintained by the
U.S. Environmental Protection Agency.
"CHANGE OF CONTROL" means:
(a) any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act, but
excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity
as trustee, agent or other fiduciary or administrator of any
such plan) becomes (other than TPG Partners or its Affiliates
or pursuant to the Transactions) the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act,
directly or indirectly, of 35% or more of the Equity Interests
in DMFC entitled to vote for members of the Board of Directors
or equivalent governing body of DMFC on a fully diluted basis;
or
(b) after giving effect to the Transactions,
during any period of 24 consecutive months, a majority of the
Board of Directors or other equivalent governing body of DMFC
cease to be composed of individuals (i) who were
10
members of that Board or equivalent governing body on the
first day of such period, (ii) whose election or nomination to
that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at
the time of such election or nomination at least a majority of
that Board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent
governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such
election or nomination at least a majority of that Board or
equivalent governing body; or
(c) with the written consent or agreement of the
Company, DMFC or any of their respective Subsidiaries, any
Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into
a contract or arrangement that, upon consummation thereof,
will result in its or their acquisition of the power to
exercise, directly or indirectly, control over the Equity
Interests in DMFC entitled to vote for members of the Board of
Directors or equivalent governing body of DMFC on a fully
diluted basis representing 35% or more of the combined voting
power of such Equity Interests (other than TPG Partners or any
of its Affiliates or pursuant to the Agreement and Plan of
Merger); or
(d) after giving effect to the Transactions,
DMFC shall cease, directly or indirectly, to own and control
legally and beneficially all of the Equity Interests in the
Company; or
(e) any event similar to the events contemplated
in clauses (a) through (d) above (including any "Change in
Control" as defined in the Existing Subordinated Notes
Indenture or the New Subordinated Notes Indenture) however
designated shall occur with the effect that the Company, DMFC
or any other Loan Party is required to redeem or repurchase
any of the Existing Subordinated Notes, the New Subordinated
Notes or any other similar publicly traded subordinated debt
security issued by the Company, DMFC or any other Loan Party
either in connection with the refinancing of the Existing
Subordinated Notes, the New Subordinated Notes or otherwise.
"CODE" means the Internal Revenue Code of 1986.
"CO-DOCUMENTATION AGENTS" means each of Xxxxxx Trust and
Savings Bank, Xxxxxx Xxxxxxx & Co. Incorporated and UBS Warburg LLC, in
its capacity as documentation agent for the Lenders.
"COLLATERAL" means all of the "Collateral" referred to in the
Collateral Documents and all of the other property and assets that are
or are intended under the terms of the Collateral Documents to be
subject to Liens in favor of the Collateral Agent for the benefit of
the Secured Parties.
11
"COLLATERAL AGENT" means Bank of America in its capacity as
collateral agent for the Lenders hereunder and under the other Loan
Documents and any successor collateral agent arising under
Section 10.9.
"COLLATERAL DOCUMENTS" means, collectively, the Security
Agreement, the Intellectual Property Security Agreement, the Mortgages,
each of the mortgages, collateral assignments, supplements to the
Security Agreement, the Intellectual Property Security Agreement,
security agreements, pledge agreements or other similar agreements
delivered to the Collateral Agent and the Lenders pursuant to Section
7.15, and each of the other agreements, instruments or documents that
creates or purports to create a Lien in favor of the Collateral Agent
for the benefit of the Secured Parties.
"COMMERCIAL LETTER OF CREDIT" means any Letter of Credit which
is drawable upon presentation of a sight draft and other documents
evidencing the sale or shipment of goods purchased by the Company in
the ordinary course of business.
"COMMITMENT" means a Term A Commitment, a Term B Commitment or
a Revolving Credit Commitment, as the context may require.
"COMMON STOCK" means the common stock, par value $1.00 per
share, of the Company.
"COMPANY" has the meaning specified in the introductory
paragraph of this Agreement.
"COMPENSATION PERIOD" has the meaning specified in
Section 2.12(c)(ii).
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of Exhibit D.
"COMPUTATION PERIOD" means any period of four consecutive
fiscal quarters commencing with the four consecutive fiscal quarters
ending on or closest to April 30, 2003 and ending on the last day of a
fiscal quarter.
"CONSOLIDATED NET INCOME" means, for any period, with respect
to any Person and its Subsidiaries, the net income (or loss) of such
Person and its Subsidiaries on a consolidated basis for such period.
Notwithstanding the foregoing, "CONSOLIDATED NET INCOME" of DMFC shall
be calculated without giving effect to any charges arising from any
purchase accounting valuation adjustments over historical cost of any
Person or assets acquired, as required or permitted by Statements of
Financial Accounting Standards (SFAS) 141 and 142.
"CONTINGENT OBLIGATION" means, as to any Person, any direct or
indirect liability of such Person, whether or not contingent, with or
without recourse: (a) with respect to any Indebtedness, lease,
dividend, letter of credit or other obligation (the "PRIMARY
OBLIGATION") of another Person (the "PRIMARY OBLIGOR"), including any
obligation of such Person (i) to purchase, repurchase or otherwise
acquire such primary obligation or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any
12
primary obligation, or to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency
or any balance sheet item, level of income or financial condition of
the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any primary
obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless
the holder of any primary obligation against loss in respect thereof
(each, a "GUARANTY OBLIGATION"); (b) with respect to any Surety
Instrument (other than any Letter of Credit) issued for the account of
such Person or as to which such Person is otherwise liable for
reimbursement of drawings or payments; (c) to purchase any materials,
supplies or other property from, or to obtain the services of, another
Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property,
or for such services, shall be made regardless of whether delivery of
such materials, supplies or other property is ever made or tendered, or
such services are ever performed or tendered; or (d) in respect of any
Swap Contract. The amount of any Contingent Obligation shall (1) in the
case of Guaranty Obligations, be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or if indeterminable, the
maximum reasonably anticipated liability in respect thereof, (2) in the
case of Swap Contracts, be equal to the Swap Termination Value as of
any date of determination and (3) in the case of other Contingent
Obligations, be equal to the maximum reasonably anticipated liability
in respect thereof.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or by
which it or any of its property is bound.
"CONVERSION/CONTINUATION DATE" means any date on which, under
Section 2.4, the Company (a) converts Loans of one Type to the other
Type or (b) continues as Eurocurrency Rate Loans or Eurodollar Rate
Loans, as the case may be, but with a new Interest Period, Eurocurrency
Rate Loans or Eurodollar Rate Loans, as the case may be, having
Interest Periods expiring on such date.
"DECLINING LENDER" has the meaning specified in
Section 2.7(g).
"DEFAULT" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied during such time) constitute an Event of Default.
"DESIGNATED PROCEEDS" has the meaning specified in
Section 2.7(b).
"DISCLOSED LITIGATION" has the meaning specified in
Section 5.1(d).
"DISTRIBUTED NOTES" has the meaning specified in the
preliminary statements hereto.
"DMFC" has the meaning specified in the preliminary statements
hereto.
13
"DOLLAR AMOUNT" means, in relation to any Indebtedness at any
time (a) denominated in Dollars, the amount of such Indebtedness, and
(b) denominated in a currency other than Dollars, the Dollar Equivalent
of the amount of such Indebtedness on the last day of the immediately
preceding calendar month.
"DOLLAR BASE RATE" means, for any day, with respect to any
Loan other than a Euro Term B Loan, a fluctuating rate per annum equal
to the higher of: (a) 0.50% per annum above the Federal Funds Rate and
(b) the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its "prime rate". The "prime
rate" is a rate set by Bank of America based upon various factors
including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above or below such
announced rate. Any change in such rate announced by Bank of America
shall take effect at the opening of business on the day specified in
the public announcement of such change.
"DOLLAR BASE RATE TERM B LOAN" means a Dollar Term B Loan that
bears interest based on the Dollar Base Rate.
"DOLLAR EQUIVALENT" means, in relation to an amount
denominated in a currency other than Dollars, the amount of Dollars
which could be purchased with such amount at the prevailing foreign
exchange spot rate.
"DOLLAR TERM B BORROWING" means a borrowing consisting of
simultaneous Dollar Term B Loans of the same Type made by the Dollar
Term B Lenders.
"DOLLAR TERM B LENDERS" means each of the Term B Lenders whose
Term B Commitment is denominated in Dollar on Schedule I hereto.
"DOLLAR TERM B LOAN" has the meaning specified in
Section 2.1(b)(i)
"DOLLARS" and "$" mean lawful money of the United States.
"DOMESTIC SUBSIDIARY" means, with respect to any Person, any
Subsidiary of such Person that is organized under the laws of any
political subdivision of the United States.
"EBITDA" means, for any Computation Period, with respect to
any Person,
(a) Consolidated Net Income of such Person for
such Computation Period excluding, to the extent reflected in
determining such Consolidated Net Income, extraordinary gains
and losses for such Computation Period plus
(b) to the extent deducted in determining
Consolidated Net Income and without duplication, Interest
Expense (including, without limitation, all costs incurred in
connection with the prepayment of any Indebtedness), income
tax expense, depreciation and amortization (including
amortization of goodwill and other intangible assets) of such
Person for such Computation Period, non-cash charges and
losses from sales of assets other than inventory sold in the
ordinary
14
course of business (provided that in the event cash
expenditures are made in such Computation Period to reduce any
non-cash charges established in such Computation Period or a
prior Computation Period, such cash expenditures shall be
deducted to calculate EBITDA for such Computation Period)
minus
(c) to the extent reflected in determining
Consolidated Net Income and without duplication, non-cash
credits and gains of such Person from sales of assets other
than inventory sold in the ordinary course of business
(provided that in the event cash payments are received in such
Computation Period to offset any non-cash credits established
in such Computation Period or a prior Computation Period, such
cash payments shall be added to calculate EBITDA for such
Computation Period) plus
(d) in the case of DMFC, to the extent deducted
in determining Consolidated Net Income of DMFC and without
duplication, Transaction Costs, Permitted Integration Expenses
and management incentive payments and other transaction fees,
costs and expenses incurred in connection with Acquisitions
permitted under Section 8.4(i);
provided that for purposes of calculating EBITDA of DMFC for any
calculation required to be made under the terms of this Agreement for
any fiscal quarter ending prior to, and including, the fiscal quarter
ending closest to October 31,2003, "EBITDA" shall be deemed to be
$105,600,000 for the fiscal quarter ending closest to July 31,2002, and
$ 119,900,000 for the fiscal quarter ending closest to October 31,2002;
provided further that for any other Computation Period (i) the EBITDA
(as calculated pursuant to clauses (a), (b), (c) and (d) above) of any
Person, or attributable to any assets, acquired by the Company, DMFC or
any of their respective Subsidiaries during such Computation Period
shall be included on a pro forma basis for such period (assuming the
consummation of each such acquisition and the incurrence or assumption
of any Indebtedness in connection therewith occurred on the first day
of such Computation Period, and including any pro forma expense and
cost reductions calculated on a basis consistent with Regulation S-X
under the Securities Act) if (A) either (1) the audited consolidated
balance sheet of such acquired Person and its consolidated Subsidiaries
as at the end of the fiscal year of such Person preceding the
acquisition of such Person and the related audited consolidated
statements of income, stockholders' equity and cash flows for such
fiscal year have been provided to the Administrative Agent and the
Lenders and have been reported on without a qualification arising from
the scope of the audit or a "going concern" or like qualification or
exception or (2) such other financial information furnished to the
Lenders with respect to such Computation Period and such acquisition
has been found acceptable by the Required Lenders and (B) either (1)
any subsequent unaudited financial statements for such Person for the
period prior to the acquisition of such Person were prepared on a basis
consistent with such audited financial statements, have been provided
to the Administrative Agent and the Lenders and have been reported on
without a qualification arising from the scope of the audit or a "going
concern" or like qualification or (2) such other financial information
furnished to the Lenders with respect to such Computation Period and
such acquisition has been found acceptable by the Required Lenders and
(ii) the EBITDA (as calculated pursuant to clauses (a),(b),(c) and (d)
above) of any Person,
15
or attributable to any division or similar business unit, disposed of
by the Company, DMFC or any of their respective Subsidiaries in an
Asset Sale during such Computation Period will be excluded on a pro
forma basis for such period (assuming the consummation of each such
Asset Sale occurred on the first day of such Computation Period).
"EFFECTIVE AMOUNT" means, as of any date (a) with respect to
any Revolving Credit Loans, Swingline Loans and Term Loans, the
aggregate outstanding principal amount thereof after giving effect to
any Borrowings and prepayments or repayments of Revolving Credit Loans,
Swingline Loans and Term Loans occurring on such date; and (b) with
respect to any outstanding L/C Obligations (i) the amount of such L/C
Obligations on such date after giving effect to any Issuances of
Letters of Credit occurring on such date and (ii) any other changes in
the aggregate amount of the L/C Obligations as of such date, including
as a result of any reimbursements of outstanding unpaid drawings under
any Letter of Credit or any reduction in the maximum amount available
for drawing under Letters of Credit taking effect on such date.
"ELIGIBLE ASSIGNEE" has the meaning specified in
Section 11.7(g).
"ELIGIBLE INVENTORY" means as of any date of determination
Inventory of the Company or any Domestic Subsidiary which meets the
following requirements:
(a) such Inventory is (i) subject to a perfected
Lien in favor of the Collateral Agent and (ii) not subject to
any other assignment, claim or Lien (other than Permitted
Liens of the type described in Section 8.1 (c) or Section
8.1(g) and statutory nonconsensual Liens in favor of growers);
provided that if the Company or such Domestic Subsidiary has
not delivered a Bailee's Consent, Warehouseman's Consent or
Landlord's Consent but the Collateral Agent has established
adequate reserves in respect thereof under the definition of
"BORROWING BASE", any claim or Lien of the related bailee,
warehouseman or landlord, if it is a Permitted Lien, shall not
cause the Inventory kept at such location to not constitute
"ELIGIBLE INVENTORY" solely by virtue of this clause (a);
(b) such Inventory is (except to the extent that
the Required Revolving Credit Lenders have otherwise agreed in
writing) salable;
(c) except as contemplated in clause (d) of this
definition or to the extent that the Required Revolving Credit
Lenders have otherwise agreed in writing, such Inventory is in
the possession and control of the Company or such Domestic
Subsidiary and it is stored and held in facilities owned by
the Company or such Domestic Subsidiary or, if such facilities
are not so owned, leased to the Company or such Domestic
Subsidiary and with respect to which the Collateral Agent has
received a Landlord's Consent; provided that (i) if the
Company or such Domestic Subsidiary has not delivered such
Landlord's Consent but the Collateral Agent has established
adequate reserves in respect thereof under the definition of
"BORROWING BASE" or (ii) if such Inventory has been acquired
in connection with any Acquisition permitted under
Section 8.4(i) in the
16
immediately preceding 60 days or for a period of 60 days after
the date hereof, if such Inventory is attributable to the
Businesses, such Inventory shall constitute "ELIGIBLE
INVENTORY" for purposes of this clause (c);
(d) if such Inventory is in the possession or
control of a bailee, warehouseman or processor, the Collateral
Agent is in possession of a Bailee's Consent, Warehouseman's
Consent or such other agreement, instrument or document as the
Collateral Agent may reasonably require in good faith,
including warehouse receipts in the Collateral Agent's name
covering such Inventory; provided that (i) if the Company or
such Domestic Subsidiary has not delivered such Bailee's
Consent, Warehouseman's Consent or such other documentation
but the Collateral Agent has established adequate reserves in
respect thereof under the definition of "BORROWING BASE" or
(ii) if such Inventory has been acquired in connection any
Acquisition permitted under Section 8.4(i) in the immediately
preceding 60 days or for a period of 60 days after the date
hereof, if such Inventory is attributable to the Businesses,
such Inventory shall constitute "ELIGIBLE INVENTORY" for
purposes of this clause (d);
(e) such Inventory was not produced in violation
of the Fair Labor Standards Act or subject to the "hot goods"
provisions contained in Title 29 U.S.C. Section 215;
(f) such Inventory is not subject to any
agreement which would restrict the Collateral Agent's ability
to sell or otherwise dispose of such Inventory or, to the
extent that such Inventory is subject to an agreement entered
into in the ordinary course of business with the relevant
bailee, warehouseman or landlord but the Collateral Agent has
established adequate reserves in respect thereof under the
definition of "BORROWING BASE" then such Inventory shall
constitute "ELIGIBLE INVENTORY" for purposes of this clause
(f);
(g) such Inventory is located in the United
States or in any territory or possession of the United States
which has adopted Article 9 of the Uniform Commercial Code or
such other jurisdiction as may be approved by the Collateral
Agent or the Required Revolving Credit Lenders;
(h) such Inventory is not "in transit" to the
Company or such Domestic Subsidiary or held by the Company or
such Domestic Subsidiary on consignment; and
(i) neither the Collateral Agent nor the
Required Revolving Credit Lenders have determined (which
determination shall be effective upon notice to the Company),
in its or their reasonable discretion and in accordance with
its or their customary commercial lending practices, that such
Inventory is unacceptable due to age, type, category, quality,
quantity or any other reason whatsoever.
Inventory which is at any time Eligible Inventory but which
subsequently fails to meet any of the foregoing requirements shall
forthwith cease to be Eligible Inventory.
17
"ELIGIBLE RECEIVABLE" means any Receivable owing to the
Company or any Domestic Subsidiary of the Company as of any date of
determination, which Receivable meets the following requirements:
(a) such Receivable arises from the sale of
goods or the rendering of services by the Company or such
Domestic Subsidiary, and if it arises from the sale of goods,
(i) such goods comply in all material respects with the
relevant Account Debtor's specifications (if any) and have
been shipped to such Account Debtor (other than "xxxx and
hold" Receivables that are not ineligible under clause (f) and
(ii) the Company has possession of, or if requested by the
Collateral Agent has delivered to the Collateral Agent,
shipping receipts evidencing such shipment;
(b) such Receivable is (i) subject to a
perfected Lien in favor of the Collateral Agent and (ii) not
subject to any other assignment, claim or Lien (other than
Permitted Liens of the type described in Section 8.1(c) or
Section 8.1(g) and statutory nonconsensual Liens in favor of
growers);
(c) such Receivable is a valid, legally
enforceable and unconditional obligation of the relevant
Account Debtor, and is not subject to any counterclaim,
credit, allowance, discount, rebate or adjustment by such
Account Debtor or to any claim by such Account Debtor denying
liability thereunder in whole or in part, and such Account
Debtor has not refused to accept any of the goods which are
the subject of such Receivable or offered or attempted to
return any of such goods; provided that in the event any
counterclaim, credit, allowance, rebate or adjustment is
asserted, or discount is granted, such Receivable shall only
be ineligible pursuant to this clause (c) to the extent of the
same;
(d) there is no Insolvency Proceeding by or
against the relevant Account Debtor;
(e) the relevant Account Debtor is a resident or
citizen of, and is located within, the United States or a
province of Canada in which the Personal Property Security Act
is in effect, unless (i) the sale of goods giving rise to such
Receivable is on letter of credit, bankers' acceptance or
other credit support terms reasonably satisfactory to the
Collateral Agent or (ii) such Receivable is payable by Plaza
Provision, a Puerto Rican corporation, or such other Account
Debtor in Puerto Rico or any other territory or possession of
the United States which has adopted Article 9 of the Uniform
Commercial Code or as may be approved by the Collateral Agent
or the Required Revolving Credit Lenders;
(f) such Receivable is not a Receivable arising
from a "sale on approval", "sale or return", "consignment" or
"xxxx and hold" or subject to any other repurchase or return
agreement; provided that "xxxx and hold" Receivables shall not
be ineligible solely by reason of this clause (f) if subject
to a written agreement reasonably acceptable to the Collateral
Agent or the Required
18
Revolving Credit Lenders to the effect that the relevant
Account Debtor's payment obligation with respect thereto is
irrevocable;
(g) such Receivable is not a Receivable with
respect to which possession or control of the goods sold
giving rise thereto is held, maintained or retained by the
Company or any Subsidiary (or by any agent or custodian of the
Company or any Subsidiary) for the account of or subject to
further of future direction from the relevant Account Debtor;
(h) such Receivable arises in the ordinary
course of business of the Company or such Domestic Subsidiary;
(i) if the relevant Account Debtor is the United
States or any department, agency or instrumentality thereof,
the Company or such Domestic Subsidiary has assigned its right
to payment of such Receivable to the Collateral Agent pursuant
to the Assignment of Claims Act of 1940; provided, however,
that any Receivable arising out of business conducted by the
Company consistent with business conducted prior to the date
of this Agreement shall not be subject to this clause (i);
(j) if the Company or such Domestic Subsidiary
maintains a credit limit for an Account Debtor, the aggregate
dollar amount of Receivables due from such Account Debtor,
including such Receivable, does not exceed such credit limit
(provided that (1) the Company or such Domestic Subsidiary may
grant exceptions to such credit limits consistent with past
practice and in the ordinary course of business and (2) only
the amount in excess of the credit limit shall be ineligible
under this clause (j);
(k) if such Receivable is evidenced by chattel
paper or an instrument, the originals of such chattel paper or
instrument shall have been endorsed or assigned and delivered
to the Collateral Agent in a manner reasonably satisfactory to
the Collateral Agent;
(l) such Receivable is not more than (i) 60 days
past the due date thereof or (ii) 120 days past the original
invoice date thereof, in each case according to the original
terms of sale;
(m) the relevant Account Debtor is not located
in any jurisdiction which has adopted a statute or other
requirement with respect to which any Person that obtains
business from within such jurisdiction must file a business
activity report or make any other required filings in a timely
manner in order to enforce its claims in such jurisdiction's
courts unless such business activity report has been duly and
timely filed or the Company or such Domestic Subsidiary is
exempt from filing such report and has provided the Collateral
Agent with satisfactory evidence of such exemption;
(n) less than 30% of the aggregate Dollar amount
of outstanding Receivables owed at such time by the relevant
Account Debtor to the Company
19
and its Domestic Subsidiaries are (i) more than 60 days past
the due date thereof or (ii) 120 days past the original
invoice date thereof, in each case according to the original
terms of sale; and
(o) the aggregate Dollar amount of all
Receivables owed by the relevant Account Debtor constitutes
(i) in the case of any Account Debtor rated at least "AA" by
S&P or "Aa2" by Xxxxx'x with a stable outlook, less than 30%
of all Receivables owed to the Company and its Domestic
Subsidiaries at such time and (ii) in all other cases, less
than 20% of all Receivables owed to the Company and its
Domestic Subsidiaries at such time; provided that only the
amount of such Receivables in excess of such percentage shall
not constitute an "ELIGIBLE RECEIVABLE" for purposes of this
clause (o).
A Receivable which is at any time an Eligible Receivable, but which
subsequently fails to meet any of the foregoing requirements, shall
forthwith cease to be an Eligible Receivable. Further, with respect to
any Receivable, if the Collateral Agent or the Required Revolving
Credit Lenders at any time hereafter determine in its or their
reasonable discretion and in accordance with its or their customary
commercial lending practices that the prospect of payment or
performance by the relevant Account Debtor is materially impaired for
any reason whatsoever, such Receivable shall cease to be an Eligible
Receivable after notice of such determination is given to the Company.
"ENVIRONMENTAL CLAIMS" means all claims, however asserted, by
any Governmental Authority or other Person alleging potential liability
under any Environmental Law or responsibility for violation of any
Environmental Law, or for release or injury to the environment.
"ENVIRONMENTAL LAWS" means CERCLA, the Resource Conservation
and Recovery Act and all other federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes relating to
pollution or protection of public or employee health or the
environment, together with all administrative orders, consent decrees,
licenses, authorizations and permits of any Governmental Authority
implementing them.
"EQUITY INTERESTS" means, with respect to any Person, all of
the shares of capital stock of (or other ownership or profit interests
in) such Person, all of the warrants, options or other rights for the
purchase or acquisition from such Person of shares of capital stock (or
other ownership or profit interests in) such Person, all of the
securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants,
rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership
or profit interests in such Person (including, without, limitation,
partnership, member or trust interests therein), whether voting or
nonvoting, and whether or not such shares, warrants, options, rights or
other interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974.
20
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with the Company (after giving
effect to the Merger) within the meaning of Section 414(b) or (c) of
the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section 4001
(a)(2) of ERISA) or a substantial cessation of operations which is
treated as such a withdrawal under Section 4062(a) of ERISA; (c) a
complete or partial withdrawal by the Company or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Pension Plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of proceedings by
the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an
event or condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any material liability
under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any ERISA
Affiliate.
"EURIBO RATE" means the rate per annum appearing on Page 248
of the Telerate screen (or on any successor thereof, or any successor
to or substitute for the Telerate screen, providing rate quotations
comparable to those currently provided on such page of the Telerate
screen, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to
deposits in Euros by reference to the Banking Federation of the
European Union Settlement Rates for deposits in Euros) at approximately
10:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, as the rate for deposits in Euros with a maturity
comparable to such Interest Period or, if for any reason such rate is
not available, the rate per annum determined by the Administrative
Agent as the rate of interest at which deposits in Euros for delivery
on the first day of such Interest Period in same day funds in the
approximate amount of the Euro Term B Loan being made, continued or
converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America's London Branch to
major banks in the European interbank market at 10:00 a.m. (London
time) two Business Days before the first day of such Interest Period.
"EURO" means the lawful currency of the European Union as
constituted by the Treaty of Rome which established the European
Community, as such treaty may be amended from time to time and as
referred to in the EMU legislation.
"EURO BASE RATE" means, for any day, with respect to any Euro
Term B Loan, the cost to the relevant Euro Term B Lender of compliance
with the requirements of (a) the Bank of England and/or the Financial
Services Authority (or in either case any other authority which
replaces all or any part of its functions) or (b) the European Central
Bank or any monetary or regulatory authority, as applicable, any such
cost, to be represented by the percentage rate per annum notified in
writing by the relevant Euro Term B Lender
21
to the Administrative Agent as soon as practicable and in any event at
least one Business Day prior to the Business Day on which interest is
due to be paid in respect of the Euro Base Rate Loans.
"EURO BASE RATE LOAN" means a Euro Term B Loan that bears
interest based on the Euro Base Rate.
"EURO TERM B BORROWING" means a borrowing consisting of
simultaneous Euro Term B Loans of the same Type made by the Euro Term B
Lenders.
"EURO TERM B LENDER" means each of the Term B Lenders whose
Term B Commitment is denominated in Euros on Schedule I hereto.
"EURO TERM B LOAN" has the meaning specified in Section 2.1(b)
(ii).
"EUROCURRENCY RATE" means for any Interest Period, a rate per
annum determined by the Administrative Agent pursuant to the following
formula:
Euribo Rate
Eurocurrency Rate = --------------------------------------
1.00 - Eurocurrency Reserve Percentage
"EUROCURRENCY RATE LOAN" means a Euro Term B Loan that bears
interest based on the Eurocurrency Rate.
"EUROCURRENCY RESERVE PERCENTAGE" means, for any day during
any Interest Period, the reserve percentage (expressed as a decimal,
carried out to five decimal places) in effect on such day, whether or
not applicable to any Lender, under regulations issued from time to
time by the FRB or any equivalent or similar regulatory body in any
applicable jurisdiction for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to eurocurrency funding (currently referred
to as "EUROCURRENCY LIABILITIES"). The Eurocurrency Rate for each
outstanding Eurocurrency Rate Loan or Eurodollar Rate Loan shall be
adjusted automatically as of the effective date of any change in the
Eurocurrency Reserve Percentage.
"EURODOLLAR BASE RATE" has the meaning specified in the
definition of "EURODOLLAR RATE".
"EURODOLLAR RATE" means for any Interest Period a rate per
annum determined by the Administrative Agent pursuant to the following
formula:
Eurodollar Base Rate
Eurodollar Rate = --------------------------------------
1.00 - Eurocurrency Reserve Percentage
Where,
22
"EURODOLLAR BASE RATE" means, for such Interest Period:
(a) the rate per annum equal to the rate
determined by the Administrative Agent to be the offered rate
that appears on the page of the Telerate screen (or any
successor thereto) that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, or
(b) if the rate referenced in the preceding
clause (a) does not appear on such page or service or such
page or service shall not be available, the rate per annum
equal to the rate determined by the Administrative Agent to be
the offered rate on such other page or other service that
displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00
a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(c) if the rates referenced in the preceding
clauses (a) and (b) are not available, the rate per annum
determined by the Administrative Agent as the rate of interest
at which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate
amount of the Eurodollar Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's
London Branch to major banks in the London interbank
Eurodollar market at their request at approximately 4:00 p.m.
(London time) two Business Days prior to the first day of such
Interest Period.
"EURODOLLAR RATE LOAN" means a Eurodollar Rate Revolving
Credit Loan, a Eurodollar Rate Term A Loan or a Eurodollar Rate Term B
Loan, as the context may require.
"EURODOLLAR RATE REVOLVING CREDIT LOAN" means a Revolving
Credit Loan that bears interest based on the Eurodollar Rate.
"EURODOLLAR RATE TERM A LOAN" means a Term A Loan that bears
interest based on the Eurodollar Rate.
"EURODOLLAR RATE TERM B LOAN" means a Dollar Term B Loan that
bears interest based on the Eurodollar Rate.
"EVENT OF DEFAULT" means any of the events or circumstances
specified in Section 9.1.
23
"EXCESS CASH FLOW" means, for any period, the remainder of
(a) EBITDA of DMFC for such period (without
giving effect to any amount included in such EBITDA on a pro
forma basis solely by virtue of the proviso to the definition
of "EBITDA") less
(b) the sum, without duplication, of
(i) repayments of principal of any of
the Term Loans pursuant to Section 2.9, regularly
scheduled principal payments arising with respect to
any other long-term Indebtedness of the Loan Parties
and their respective Subsidiaries, and the portion of
any regularly scheduled payments with respect to
Capital Leases allocable to principal, in each case
made during such period, and
(ii) voluntary prepayments of any of the
Term Loans pursuant to Section 2.7 during such
period, and
(iii) cash payments made in such period
with respect to Capital Expenditures by any of the
Loan Parties or any of their respective Subsidiaries,
and
(iv) all federal, state, local and
foreign income taxes paid by the Loan Parties and
their respective Subsidiaries during such period, and
(v) cash Interest Expense of the Loan
Parties and their respective Subsidiaries during such
period and, to the extent not deducted in determining
EBITDA of DMFC, cash payments (other than payments of
principal) made by the Company in connection with
prepayments and repayments of Term Loans under
clauses (b)(i) and (b)(ii) above, and
(vi) cash dividends of the Company
permitted under Section 8.15(b)(v) made in such
period, and
(vii) cash payments made by the Loan
Parties and their respective Subsidiaries in respect
of pension liability, workers' compensation and other
post-employment benefits to the extent such payments
exceed book expenses for such items reflected in the
calculation of EBITDA, and
(viii) cash payments made by the Loan
Parties and their respective Subsidiaries during such
period in respect of Transaction Costs, Permitted
Integration Expenses and fees, costs and expenses
incurred in connection with any Acquisitions
permitted under Section 8.4(i).
"EXCHANGE ACT" means the Securities Exchange Act of 1934.
"EXCLUDED TAXES" has the meaning specified in Section 4.1(a).
24
"EXISTING CREDIT FACILITY" has the meaning specified in the
preliminary statements hereto.
"EXISTING DEBT" means Indebtedness of each Loan Party and each
of their respective Subsidiaries outstanding immediately before giving
effect to the consummation of the Transactions.
"EXISTING DEL MONTE" has the meaning specified in the
preliminary statements hereto.
"EXISTING LETTERS OF CREDIT" means each of the letters of
credit set forth on Schedule III.
"EXISTING REVOLVING CREDIT LOANS" means the amount of any
Indebtedness outstanding as of any date of calculation under the
Existing Credit Facility which are or were the functional equivalent of
the Revolving Credit Loans to be advanced from time to time hereunder.
"EXISTING SUBORDINATED NOTES" means the $300,000,000 9.25%
Senior Subordinated Notes due May 15, 2011 of Existing Del Monte issued
under the Existing Subordinated Notes Indenture, the obligations of
which will be assumed by the Company in connection with the
consummation of the Transactions.
"EXISTING SUBORDINATED NOTES INDENTURE" means the indenture,
dated as of May 15, 2001 among Existing Del Monte, DMFC and Bankers
Trust Company, as Trustee.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum
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 on the Business Day next succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to
Bank of America on such day on such transactions as determined by the
Administrative Agent.
"FEE LETTER" HAS the meaning specified in Section 2.10(a).
"FIXED CHARGE COVERAGE RATIO" means, for any Computation
Period, the ratio of (a)(i) EBITDA of DMFC for such Computation Period
minus (ii) the sum of (A) Capital Expenditures (other than any
Synthetic Lease Capital Expenditure) made and (B) Permitted Integration
Expenses incurred, in either case, during such Computation Period by
DMFC, the Company or any of their respective Subsidiary to (b) the sum
of (i) Interest Expense of DMFC payable in cash for such Computation
Period plus (ii) the scheduled installments of principal of the Term
Loans for such Computation Period (excluding there from the last four
scheduled installments of principal of Term Loans to the extent that
such installments are refinanced with Indebtedness maturing after, and
25
having no mandatory prepayments or sinking fund payments prior to, June
20, 2010 and giving effect to any reduction of such scheduled
installments by virtue of the application of any prepayments or
repayments made which reduce scheduled installments pro rata or in
inverse order of maturity pursuant to Section 2.7) plus (iii) any
amounts paid as a dividend or distribution by DMFC to any holder of any
of its Equity Interests during such period plus (iv) cash income taxes
of DMFC and its Subsidiaries (including, without limitation, any such
taxes paid by Existing Del Monte and its subsidiaries during any such
period (or portion thereof) occurring prior to the date of this
Agreement) paid during such period (other than income taxes on income
arising directly from Asset Sales); provided that to the extent that
any Acquisition or any Asset Sale of a Person or a division or similar
business unit occurred during such Computation Period, all items in
clauses (a)(i), (a)(ii), b(i), b(ii) and (b)(iv) shall be calculated on
a pro forma basis as if each such Acquisition or Asset Sale of a Person
or a division or similar business unit occurred prior to the first day
of such Computation Period; provided further that with respect to any
calculation required to be made under the terms of this Agreement with
respect to any fiscal quarter ending on or prior to October 31, 2003,
(A) all items referred to in clauses (a)(ii)(A) and (b)(i) shall be
equal to the Annualized Amount of such item and (B) the amount of the
item referred to in clause (b)(ii) shall be deemed to be zero for any
period prior to the date of this Agreement.
"FOREIGN SUBSIDIARY" means, with respect to any Person, any
Subsidiary of such Person organized under the law of any jurisdiction
other than the United States or any political subdivision thereof.
"FOREIGN LENDER" has the meaning specified in Section
11.17(a).
"FRB" means the Board of Governors of the Federal Reserve
System of the United States, and any Governmental Authority succeeding
to any of its principal functions.
"FUND" has the meaning specified in Section 11.7(g).
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date
of determination.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, administrative tribunal,
central bank (or similar monetary or regulatory authority) thereof, or
any other entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock
or capital ownership or otherwise, by any of the foregoing.
26
"GRANTING LENDER" has the meaning specified in
Section 11.7(h).
"GUARANTEED OBLIGATIONS" means (a) all Obligations owing by
any Loan Party other than DMFC (including post-petition interest) and
(b) all Permitted Swap Obligations (monetary or otherwise) of any Loan
Party other than DMFC under any Permitted Secured Swap Contract.
"GUARANTOR" means (a) prior to the Time of Merger, Heinz and
(b) on and after the Time of Merger, DMFC and each Subsidiary
Guarantor.
"GUARANTY OBLIGATION" has the meaning specified in the
definition of "CONTINGENT OBLIGATION".
"XXXXXX BANK" means Xxxxxx Trust and Savings Bank and its
successors in interest.
"HAZARDOUS MATERIAL means
(a) any "hazardous substance", as defined by
CERCLA;
(b) any "hazardous waste", as defined by the
Resource Conservation and Recovery Act;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous or
toxic chemical, material or substance within the meaning of
any other Environmental Law.
"HEINZ" has the meaning specified in the preliminary
statements hereto.
"HEINZ FINANCE" has the meaning specified in the preliminary
statements hereto.
"HONOR DATE" has the meaning specified in Section 3.3(a).
"ICC" hasthe meaning specified in Section 3.9(a)
"INDEBTEDNESS" means, as to any Person at a particular time,
without duplication, all of the following, whether or not included as
indebtedness or liabilities in accordance with GAAP: (a) all
indebtedness of such Person for borrowed money; (b) all obligations
issued, undertaken or assumed by such Person as the deferred purchase
price of property or services (other than trade payables entered into
and accrued expenses arising in the ordinary course of business on
ordinary terms); (c) all non-contingent reimbursement or payment
obligations with respect to Surety Instruments; (d) all obligations of
such Person evidenced by notes, bonds, debentures or similar
instruments; (e) all indebtedness of such Person created or arising
under any conditional sale or other title retention agreement, or
incurred as financing, in either case with respect to property acquired
by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to
repossession or sale of such property); (f) all obligations of
27
such Person with respect to any Capital Lease; (g) all obligations of
such Person in respect of any synthetic lease entered into after the
date of this Agreement and, after the first anniversary of this
Agreement, any synthetic lease entered into on or prior to the date of
this Agreement to the extent still in existence on or after such date;
(h) all indebtedness referred to in clauses (a) through (g) above
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien
upon or in property (including accounts receivable and contract rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness; and (i) all Guaranty
Obligations of such Person in respect of indebtedness or obligations of
others of the kinds referred to in clauses (a) through (h) above.
For all purposes hereof, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture (other
than a joint venture that is itself a corporation or limited liability
company) in which such Person is a general partner or joint venturer,
unless such Indebtedness is expressly made non-recourse to such Person.
"INDEMNIFIED LIABILITIES" has the meaning specified in
Section 11.5.
"INDEMNIFIED PERSON" has the meaning specified in
Section 11.5.
"INDEPENDENT AUDITOR" has the meaning specified in
Section 7.1(a).
"INFORMATION" has the meaning specified in Section 11.8.
"INFORMATION MEMORANDUM" means the information memorandum
dated November 2002 used by the Arrangers in connection with the
syndication of the Commitments.
"INITIAL DISTRIBUTION BORROWING AMOUNT" means the aggregate
amount of Loans requested by SpinCo in connection with the occurrence
of the Initial Distribution Date in order to fund the payment of the
Bank Debt Amount to Heinz; provided that such amount shall not exceed
$800,000,000.
"INITIAL DISTRIBUTION DATE" has the meaning specified in
Section 5.1.
"INSOLVENCY PROCEEDING" means, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before any
court or other Governmental Authority consisting of bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors or (b) any general assignment for the
benefit of creditors, composition, marshaling of assets for creditors,
or other, similar arrangement in respect of such Person's creditors
generally or any substantial portion of such creditors; in each case
undertaken under any U.S. Federal, State or foreign law, including the
Bankruptcy Code.
"INTEGRATION EXPENSES" means, with respect to any Person for
any period, any expenditure incurred in connection with the integration
of the Businesses and Existing Del Monte.
28
"INTELLECTUAL PROPERTY" has the meaning specified in
Section 6.14.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" has the meaning
specified in Section 5.2(a)(iv).
"INTERCREDITOR AGREEMENT" means the Amended and Restated
Intercreditor Agreement, dated as of December 5, 1989 by and among
certain creditors of the Company.
"INTEREST COVERAGE RATIO" means, for any Computation Period,
the ratio of (a) EBITDA of DMFC for such Computation Period to (b)
Interest Expense of DMFC payable in cash for such Computation Period;
provided that to the extent that any Acquisition or any Asset Sale of a
Person or a division or similar business unit occurred during such
Computation Period, all items in clauses (a) and (b) shall be
calculated on a pro forma basis as if each such Acquisition or Asset
Sale occurred prior to the first day of such Computation Period;
provided further that with respect to any calculation required to be
made under the terms of this Agreement with respect to any fiscal
quarter ending on or prior to the fiscal quarter ending closest to
October 31, 2003, the amount of clause (b) shall be determined based on
the Annualized Amount of such Interest Expense.
"INTEREST EXPENSE" means for any period, with respect to any
Person, the consolidated interest expense of such Person and its
Subsidiaries for such period (including all imputed interest on Capital
Leases) excluding amortization or write-off of deferred financing
costs.
"INTEREST PAYMENT DATE" means (a) as to any Eurocurrency Rate
Loan or Eurodollar Rate Loan, the last day of each Interest Period
applicable to such Loan and the relevant Maturity Date for such Loan;
provided, however, that if any Interest Period for a Eurocurrency Rate
Loan or Eurodollar Rate Loan, as the case may be, exceeds three months,
the respective dates that fall every three months after the beginning
of such Interest Period shall be an Interest Payment Date, and (b) as
to any Base Rate Loan or Swingline Loan, the last Business Day of each
January, April, July and October and the relevant Maturity Date for
such Loan.
"INTEREST PERIOD" means, (a) with respect to each Eurodollar
Rate Term A Loan, Eurodollar Rate Term B Loan or Eurocurrency Rate
Loan, the period commencing on the Borrowing Date of such Loan or on
the Conversion/Continuation Date on which any such Eurodollar Rate Term
A Loan, Eurodollar Rate Term B Loan or Eurocurrency Rate Loan, as the
case may be, is converted into or continued as a Eurodollar Rate Loan
or Eurocurrency Rate Loan, as the case may be, and ending one, two,
three or six months thereafter, or, (b) with respect to each Eurodollar
Rate Revolving Credit Loan, the period commencing on the Borrowing Date
of such Loan or on the Conversion/Continuation Date on which any such
Eurodollar Rate Revolving Credit Loan is converted or continued as a
Eurodollar Rate Loan, and ending one week or one, two, three or six
months thereafter, in each case as selected by the Company in its
Notice of Borrowing or Notice of Conversion/Continuation delivered in
connection with such Loan; provided that:
29
(i) if any Interest Period would otherwise end
on a day that is not a Business Day, such Interest Period
shall be extended to the following 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 preceding Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest
Period;
(iii) no Interest Period applicable to a Term Loan
or any portion of any thereof shall extend beyond any date
upon which is due any scheduled principal payment in respect
of the Term Loans unless the aggregate principal amount of
Term Loans represented by Base Rate Loans, Eurocurrency Rate
Loans and Eurodollar Rate Loans having Interest Periods that
will expire on or before such date, equals or exceeds the
amount of such principal payment; and
(iv) no Interest Period for any Loan shall extend
beyond the applicable Maturity Date.
"INVENTORY" has the meaning specified in Section l(b) of the
Security Agreement.
"IP SECURITY AGREEMENT SUPPLEMENT" has the meaning specified
in Section 14(g) of the Security Agreement.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"ISDA MASTER AGREEMENT" means the Master Agreement
(Multicurrency - Cross Border) published by the International Swap and
Derivatives Association, Inc., as in effect from time to time.
"ISSUANCE DATE" has the meaning specified in Section 3.1(a).
"ISSUE" means, with respect to any Letter of Credit, to issue
or amend such Letter of Credit; and the terms "ISSUED", "ISSUING" and
"ISSUANCE" have corresponding meanings.
"ISSUING LENDER" means Bank of America in its capacity as
issuer of one or more Letters of Credit hereunder, together with any
replacement letter of credit issuer arising under Section 10.1(b) or
Section 10.9, or any successor thereto acceptable to the Company, the
Administrative Agent and the predecessor Issuing Lender.
"JOINT VENTURE" means a corporation, partnership, limited
liability company, joint venture or other similar legal arrangement
(whether created by contract or conducted through a separate legal
entity) which is not a Subsidiary of any Loan Party or any of their
respective Subsidiaries and which is now or hereafter formed by any
Loan Party or
30
any of their respective Subsidiaries with another Person in order to
conduct a common venture or enterprise with such Person.
"JPMORGAN CHASE" means JPMorgan Chase Bank and its successors
in interest.
"JUDGMENT CURRENCY" has the meaning specified in
Section 3.10(b)(vi).
"LANDLORD'S CONSENT" means a document substantially in the
form of Exhibit E, with appropriate insertions, or such other form as
shall be acceptable to the Collateral Agent or Required Revolving
Credit Lenders.
"L/C ADVANCE" means with respect to each Revolving Credit
Lender such Lender's funding of its participation in any L/C Borrowing
in accordance with its Revolving Credit Percentage.
"L/C APPLICATION" means an application and agreement for the
issuance or amendment of a standby or commercial documentary letter of
credit as shall at any time be in use at the Issuing Lender, as the
Issuing Lender shall request.
"L/C BORROWING" means an extension of credit resulting from a
drawing under any Letter of Credit which has not been reimbursed on the
date when made or refinanced as a Revolving Credit Borrowing under
Section 3.3(b).
"L/C COMMITMENT" means the commitment of the Issuing Lender to
Issue, and the commitments of the Revolving Credit Lenders severally to
participate in, Letters of Credit from time to time Issued or
outstanding under Article III, in an aggregate amount not to exceed on
any date the lesser of $85,000,000 and the amount of the aggregate
amount of all Revolving Credit Commitments on such date; it being
understood that the L/C Commitment is a part of the Revolving Credit
Commitments, rather than a separate, independent commitment.
"L/C OBLIGATIONS" means, as at any date of determination the
sum of (a) the aggregate undrawn amount of all Letters of Credit then
outstanding plus (b) the aggregate amount of all unreimbursed drawings
under all Letters of Credit, including all outstanding L/C Borrowings.
"L/C-RELATED DOCUMENTS" means the Letters of Credit, the L/C
Applications and any other document relating to any Letter of Credit,
including any of the Issuing Lender's standard form documents for
letter of credit issuances.
"LEASED REAL PROPERTIES" means those properties listed on
part(b) of Schedule 6.18 hereto.
"LENDERS" means each of the banks, institutional lenders and
other financial institutions party hereto from time to time as a
lender; provided that references to the "LENDERS" shall include Bank of
America in its capacity as the Issuing Lender and Bank of America in
its capacity as Swingline Lender; for purposes of clarification only,
to the extent that the Swingline Lender or the Issuing Lender may have
any rights or obligations
31
in addition to those of the other Lenders due to its status as
Swingline Lender or Issuing Lender, its status as such will be
specifically referenced.
"LENDING OFFICE" means, as to any Lender, the office or
offices of such Lender specified as its "Lending Office" or "Domestic
Lending Office" or "Eurocurrency Lending Office" or "Eurodollar Lending
Office", as the case may be, on Schedule 11.2, or such other office or
offices as such Lender may from time to time specify to the Company and
the Administrative Agent.
"LETTERS OF CREDIT" means any letters of credit (whether
standby letters of credit or commercial documentary letters of credit)
Issued by the Issuing Lender pursuant to Article III.
"LIABILITIES" means (a) all Obligations owing by the Company,
DMFC or any Subsidiary of either thereof (including post-petition
interest) and (b) all Permitted Swap Obligations (monetary or
otherwise) of the Company or DMFC or any of their respective
Subsidiaries under any Permitted Secured Swap Contract.
"LIEN" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a
Capital Lease, or any financing lease having substantially the same
economic effect as any of the foregoing, but not including the interest
of a lessor under an operating lease).
"LOAN" means an extension of credit by a Lender to the Company
under Article II or Article III in the form of a Revolving Credit Loan,
Term A Loan, Term B Loan, Swingline Loan or L/C Advance. Each Revolving
Credit Loan, each Term A Loan and each Term B Loan may be divided into
tranches which are Base Rate Loans, Eurocurrency Rate Loans or
Eurodollar Rate Loan (each a "TYPE" of Loan). For purposes of greater
clarity, a conversion of one Type of Loan to the other Type or the
continuation of an Eurocurrency Rate Loan or Eurodollar Rate Loan into
a different Interest Period is not the making of a "LOAN" hereunder.
"LOAN DOCUMENTS" means, collectively, this Agreement, any
Notes, the Fee Letter, the L/C-Related Documents, the Subsidiary
Guaranty, the Permitted Secured Swap Contracts, the Collateral
Documents and all other documents delivered to any Agents or any Lender
in connection herewith or therewith.
"LOAN PARTIES" means each of the Company, DMFC and each
Subsidiary Guarantor (other than any Non-Material Subsidiary Guarantor)
and prior to the Time of Merger, Existing Del Monte.
"MANDATORY PREPAYMENT EVENT" has the meaning specified in
Section 2.7(b).
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
32
"MATERIAL ADVERSE EFFECT" means: (a) a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise) or prospects of (i)
prior to the Time of Merger (A) SpinCo and the Businesses taken as a
whole, (B) Existing Del Monte and its Subsidiaries taken as a whole,
and (C) DMFC and its Subsidiaries taken as a whole and (ii) on and
after the Time of Merger (after giving effect to the Merger), (A) the
Company and its Subsidiaries taken as a whole and (B) DMFC and its
Subsidiaries taken as a whole; (b) a material impairment of the ability
of any Loan Party to perform any of its obligations under any Loan
Document to which it is or is to be a party; (c) a material adverse
effect upon the legality, validity, binding effect or enforceability
against any Loan Party of any Loan Document to which it is or is to be
a party; or (d) a material adverse effect upon the Lien of any
Collateral Document or a material impairment of the rights, powers and
remedies of the Administrative Agent, the Collateral Agent or any
Lender under any Loan Document.
"MATERIAL AGREEMENT" means any agreement, contract or
undertaking to which any Loan Party is a party the termination or
failure to maintain in full force and effect of which could reasonably
be expected to have a Material Adverse Effect.
"MATERIAL SUBSIDIARY" means a Subsidiary of DMFC (other than
the Company) that meets any of the following criteria:
(a) the assets of such Subsidiary and its
Subsidiaries exceed an amount equal to 3% of the consolidated
assets (giving effect to intercompany eliminations) of DMFC
and its Subsidiaries;
(b) the revenues of such Subsidiary and its
Subsidiaries for any fiscal quarter exceed an amount equal to
3% of the consolidated revenues (giving effect to intercompany
eliminations) of DMFC and its Subsidiaries for such period; or
(c) the investments of DMFC and its other
Subsidiaries in and advances to such Subsidiary and its
Subsidiaries exceed an amount equal to 3% of the consolidated
assets (giving effect to intercompany eliminations) of DMFC
and its Subsidiaries.
"MATURITY DATE" means (a) with respect to any Term A Loan, the
Term A Loan Maturity Date, (b) with respect to any Term B Loan, the
Term B Loan Maturity Date and (c) with respect to any Revolving Credit
Loan, the Revolving Credit Loan Maturity Date.
"MAXIMUM RATE" has the meaning specified in Section 11.12.
"MERGER" has the meaning specified in the preliminary
statements hereto.
"MERGER BORROWING AMOUNT" means the aggregate amount of Loans
requested by the Company at the Time of Merger in order to replace or
refinance certain Indebtedness of the Company (including Indebtedness
outstanding under the Existing Credit Facility) and to pay transaction
fees and expenses.
"MOODY'S" means Xxxxx'x Investors Service, Inc, and any
successor in interest.
33
"XXXXXX XXXXXXX" means Xxxxxx Xxxxxxx & Co. Incorporated and
its successors in interest.
"MORTGAGE POLICIES" has the meaning specified in
Section 7.15(d)(i)(B).
"MORTGAGES" has the meaning specified in Section 7.15(d).
"MULTIEMPLOYER PLAN" means a "multiemployer plan", within the
meaning of Section 4001 (a)(3) of ERISA, with respect to which the
Company or any ERISA Affiliate may have any liability.
"NET CASH PROCEEDS" means:
(a) with respect to any Asset Sale by any Person
(including any Equity Interests in any other Person or any
Receivables), the aggregate cash proceeds (including cash
proceeds received by way of deferred payment of principal
pursuant to a note, installment receivable or otherwise, but
only as and when received) received by such Person pursuant to
such Asset Sale, net of (i) the direct costs relating to such
Asset Sale (including sales commissions and legal, accounting
and investment banking fees), (ii) taxes paid or reasonably
estimated by such Person to be payable as a result thereof
(after taking into account any available tax credits or
deductions and any tax sharing arrangements), (iii) amounts
required to be applied to the repayment of any Indebtedness
secured by a Lien on the asset subject to such Asset Sale
(other than the Loans) and (iv) appropriate amounts to be
provided by such Person as a reserve, in accordance with GAAP,
against any liabilities associated with such Asset Sale and
retained by such Person after such Asset Sale, including
pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities
under any indemnification obligations associated with such
Asset Sale; provided that, if and to the extent that such
reserves are no longer required to be maintained in accordance
with GAAP, such amounts shall constitute Net Cash Proceeds, to
the extent such amounts would have otherwise constituted Net
Cash Proceeds under this clause (a); and
(b) with respect to any issuance of any Equity
Interests or Other Debt by any Person, the aggregate cash
proceeds received by such Person in connection with such
issuance, net of the direct costs relating to such issuance
(including sales and underwriter's commissions, private
placement fees and legal, accounting and investment banking
fees).
"NEW SUBORDINATED NOTES" has the meaning specified in the
preliminary statements hereto.
"NEW SUBORDINATED NOTES DOCUMENT" means the New Subordinated
Note Indenture and any other related agreements or instruments entered
into by any Loan Party or Subsidiary thereof in connection with the
issuance of the New Subordinated Notes.
34
"NEW SUBORDINATED NOTES INDENTURE" means the indenture to be
entered into by the Company in connection with the issuance of the New
Subordinated Notes which includes the Subordination Terms.
"NEW SUBORDINATED NOTES ISSUANCE DATE" means the date on which
any New Subordinated Notes are initially issued.
"NON-DOLLAR LETTERS OF CREDIT" has the meaning specified in
Section 3.10.
"NON-MATERIAL SUBSIDIARY GUARANTOR" has the meaning specified
in Section 6.15.
"NONRENEWAL NOTICE DATE" has the meaning specified in
Section 3.2(c).
"NOTE" means a promissory note executed by the Company in
favor of a Lender pursuant to Section 2.2(b), in substantially the form
of Exhibit F.
"NOTICE OF BORROWING" means a notice in substantially the form
of Exhibit G.
"NOTICE OF CONVERSION/CONTINUATION" means a notice in
substantially the form of Exhibit H.
"OBLIGATIONS" means all advances, debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any
Loan Document or otherwise with respect to any Loan or Letter of
Credit, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, or now
existing or hereafter arising and including interest and fees that
accrue after the commencement by or against any Loan Party of any
Insolvency Proceeding naming such Person as the debtor, regardless of
whether such interest and fees are allowed claims in such proceeding.
Without limiting the generality of the foregoing, the Obligations of
the Loan Parties under the Loan Documents include (a) the obligation to
pay principal, interest Letter of Credit commissions, charges,
expenses, fees, attorneys' fees and disbursements, indemnities and
other amounts payable by any Loan Party under any Loan Document and (b)
the obligation of any Loan Party to reimburse any amount in respect of
any of the foregoing that any Lender, in its sole discretion, may elect
to pay or advance on behalf of such Loan Party as a result of such Loan
Party's failure to pay such amount.
"ORGANIZATION DOCUMENTS" means (a) with respect to any
corporation, the certificate or articles of incorporation and the
bylaws (or equivalent or comparable constitutive documents with respect
to any non-U.S. jurisdiction); (b) with respect to any limited
liability company, certificate or articles of formation or organization
and operating agreement; and (c) with respect to any partnership, joint
venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and
any agreement, instrument, filing or notice with respect thereto filed
in connection with its formation or organization with the applicable
Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of
formation or organization of such entity.
35
"OTHER DEBT" means any Indebtedness of any Loan Party or any
of their respective Subsidiaries other than such Indebtedness permitted
to be incurred under Section 8.5.
"OTHER TAXES" has the meaning specified in Section 4.1(b).
"OVERNIGHT RATE" has the meaning specified in Section
3.10(b)(vii).
"OWNED REAL PROPERTIES" means those properties listed on part
(a) of Schedule 6.18 hereto.
"PARTICIPANT has the meaning specified in Section 11.7(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
"PENSION PLAN" means a pension plan (as defined in
Section 3(2) of ERISA) subject to Title IV of ERISA with respect to
which the Company or any ERISA Affiliate may have any liability other
than a Multiemployer Plan.
"PERMITTED ENCUMBRANCES" has the meaning specified in the
Mortgages.
"PERMITTED INTEGRATION EXPENSES" means (a) for each fiscal
year ending on or prior to the fiscal year ending closest to April
30,2005, the lesser of (i) the actual amount of Integration Expenses
paid by the Company during such fiscal year and (ii) (A) for the fiscal
year ending closest to April 30,2003, $10,000,000, (B) for the fiscal
year ending closest to April 30, 2004, $55,000,000 and (C) for the
fiscal year ending closest to April 30, 2005, $15,000,000 and (b) for
any other fiscal year, $0.
"PERMITTED LIENS" has the meaning specified in Section 8.1.
"PERMITTED RECEIVABLES FACILITY" means any receivables
financing facility arrangement entered into by the Company providing
for the discount, sale or other transfer of its Receivables in an
aggregate amount for all such receivables financing facility
arrangements not to exceed $100,000,000 on a nonrecourse basis for a
transfer price at least equivalent to the advance rate on such
Receivable hereunder and otherwise on terms and conditions (including
repurchase provisions) satisfactory to the Required Lenders and which
does not affect the calculation of the Loans as "Senior Debt" for
purposes of the Existing Subordinated Note Indenture or the New
Subordinated Note Indenture in any adverse fashion.
"PERMITTED SECURED SWAP CONTRACT" means any Swap Contract
entered into by a Loan Party or any of its Subsidiaries with any
Secured Swap Party, including, without limitation, Swap Contracts
evidenced by those certain Confirmations, dated August 3, 2001 and
August 9,2001, between Existing Del Monte, on the one hand, and The
Chase Manhattan Bank and Xxxxxx Trust & Savings Bank, respectively, on
the other hand, the obligations of which will be assumed by the Company
upon the consummation of the
36
Transactions, but excluding any Swap Contract which constitutes a
credit default swap or has a similar economic effect.
"PERMITTED SECURITY AGREEMENTS" means, collectively, the
Intellectual Property Security Agreements and Assignments between
Existing Del Monte and Wafer Limited and Existing Del Monte and Del
Monte Tropical Fruit Company, North America, each dated December 5,
1989, the Intellectual Property Security Agreement and Assignment dated
as of January 9,1990 between Existing Del Monte and Kikkoman
Corporation, the Intellectual Property Security Agreement and
Assignment dated as of May 9,1990 between Existing Del Monte and Del
Monte Foods Limited, the Intellectual Property Security Agreement and
Assignment dated as of May 9,1990 between Existing Del Monte and Del
Monte International, Inc., and any other security agreements between
the Company and a licensee of Intellectual Property to secure the
damages, if any, of such licensee resulting from the rejection of the
license of such licensee in a bankruptcy, reorganization or similar
proceeding with respect to the Company; provided that each such
Permitted Security Agreement shall be subject to the Intercreditor
Agreement.
"PERMITTED SWAP OBLIGATIONS" means (a) all obligations
(contingent or otherwise) of any Loan Party or any of their respective
Subsidiaries existing or arising under Swap Contracts (including,
without limitation, any Swap Contract entered into connection with any
commodity transaction); provided that each of the following criteria is
satisfied: (i) such obligations are (or were) entered into by such
Person in the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments or assets
held or reasonably anticipated by such Person, or changes in the value
of securities issued by such Person in conjunction with a securities
repurchase program not otherwise prohibited hereunder, and not for
purposes of speculation or taking a "market view" and (ii) such Swap
Contracts do not contain (A) any provision ("walk-away" provision)
exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party or (B) if
the counterparty is not a Secured Party, any provision creating or
permitting the declaration of an event of default, termination event or
similar event upon the occurrence of an Event of Default hereunder
(other than an Event of Default under Section 9.1(a)), (b) any Swap
Contract which is an asset of the Businesses for the 60-day period
commencing with the date of this Agreement without regard to whether
such Swap Contract complies with the provisions of clauses (a) and (b)
above, (c) that certain Swap Contract evidenced by the ISDA Master
Agreement, dated as of March 17,1998 by and between ABN AMRO Bank, N.V.
and Existing Del Monte, the obligations of which will be assumed by the
Company upon the consummation of the Transactions and (d) any Permitted
Secured Swap Contract; provided further that for the avoidance of
doubt, no Swap Contract which constitutes a credit default swap or
which would have a similar economic effect shall constitute a
"PERMITTED SWAP OBLIGATION".
"PERSON" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority,
37
"PLAN" means an employee benefit plan (as defined in
Section 3(3) of ERISA) with respect to which any Loan Party may have
any liability.
"PLEDGED DEBT" has the meaning specified in Section l(d)(iv)
of the Security Agreement.
"PREPAYMENT AMOUNT" has the meaning specified in
Section 2.7(g).
"PREPAYMENT DATE" has the meaning specified in Section 2.7(g).
"REAL PROPERTIES" means those properties listed on
Schedule 6,18 hereto.
"RECEIPT DATE" has the meaning specified in Section 2.7(g).
"RECEIVABLES" has the meaning specified in Section l(c) of the
Security Agreement.
"REDUCTION AMOUNT" has the meaning specified in Section
2.7(h).
"REGISTER" has the meaning specified in Section 11.7(c).
"RELATED DOCUMENTS" means the Agreement and Plan of Merger,
the Separation Agreement and the Tax Separation Agreement.
"RELEASE" means a "release", as such term is defined in
CERCLA.
"REPORTABLE EVENT" means any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder, other than any
such event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC or administrative
pronouncements.
"REQUIRED LENDERS" means, at any time, Lenders having an
aggregate Total Percentage of more than 50%.
"REQUIRED REVOLVING CREDIT LENDERS" means, at any time,
Revolving Credit Lenders having an aggregate Revolving Credit
Percentage of more than 50%.
"REQUIRED TERM A LENDERS" means, at any time, Term A Lenders
having an aggregate Term A Percentage of more than 50%.
"REQUIRED TERM B LENDERS" means, at any time, Term B Lenders
having an aggregate Term B Percentage of more than 50%.
"REQUIREMENT OF LAW" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of
an arbitrator or of a Governmental Authority, in each case applicable
to or binding upon such Person, any Responsible Officer of such Person
(in its capacity as a Responsible Officer of such Person) or any of its
property or to which such Person, Responsible Officer or any of its
property is subject.
38
"RESOURCE CONSERVATION AND RECOVERY ACT" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 690, et seq.
"RESPONSIBLE OFFICER" means, with respect to any Person, the
chief executive officer, chief operating officer, chief financial
officer, treasurer, assistant treasurer or the president of such
Person, or any other officer having substantially the same authority
and responsibility.
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Loans of the same Type made by the
Revolving Credit Lenders.
"REVOLVING CREDIT COMMITMENT" means, with respect to any
Revolving Credit Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Revolving Credit
Commitment" or, if such Lender has entered into one or more Assignment
and Acceptances, the aggregate amount set forth in such Assignment and
Acceptances as such Lender's "Revolving Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section 2.6.
"REVOLVING CREDIT FACILITY" has the meaning specified in the
preliminary statements hereto.
"REVOLVING CREDIT LENDER" means, at any time, a Lender which
has a Revolving Credit Commitment at such time or is owed any Revolving
Credit Loans at such time.
"REVOLVING CREDIT LOAN" has the meaning specified in
Section 2. 1(c).
"REVOLVING CREDIT LOAN MATURITY DATE" means the sixth
anniversary of the date of this Agreement.
"REVOLVING CREDIT PERCENTAGE" means, with respect to any
Revolving Credit Lender at any time, a fraction (expressed as a
percentage, carried out to the ninth decimal place), (a) prior to the
termination of the Revolving Credit Commitments in full, the numerator
of which is the amount of the Revolving Credit Commitment of such
Lender at such time and the denominator of which is the amount of the
aggregate amount of the Revolving Credit Commitments at such time and
(b) after the termination of the Revolving Credit Commitments in full,
the numerator of which is the principal amount of the Revolving Credit
Loans owed to such Lender at such time and the denominator of which is
the amount of the aggregate principal amount of the Revolving Credit
Loans owed to all Revolving Credit Lenders at such time.
"REVOLVING CREDIT TERMINATION DATE" means the earlier to occur
of (a) the Revolving Credit Loan Maturity Date and (b) the date on
which the Revolving Credit Commitments are terminated in full in
accordance with the provisions of this Agreement.
"SALE/LEASEBACK TRANSACTION" has the meaning specified in
Section 8.17.
"S&P" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., and any successor in interest.
39
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"SECURED PARTY" means any Lender, Agent or Secured Swap Party.
"SECURED SWAP PARTY" means any Lender or Affiliate thereof
party to any Swap Contract with any Loan Party or any of their
respective Subsidiaries.
"SECURITIES ACT" means the Securities Act of 1933.
"SECURITY AGREEMENT" has the meaning specified in Section
5.2(a)(iii).
"SECURITY AGREEMENT SUPPLEMENT" has the meaning specified in
Section 25(b) of the Security Agreement.
"SENIOR CREDIT FACILITIES" has the meaning specified in the
preliminary statements hereto.
"SEPARATION AGREEMENT" has the meaning specified in the
preliminary statements hereto.
"SOLVENCY CERTIFICATE" means, (a) with respect to the Company,
a certificate, substantially in the form of Exhibit I-1, (b) with
respect to DMFC, a certificate, substantially in the form of Exhibit
I-2, and (c) with respect to any Subsidiary Guarantor, a certificate,
substantially in the form of Exhibit I-3.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on
any date of determination, that on such date (a) the fair value of the
property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of
such Person, (b) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person's ability
to pay such debts and liabilities as they mature and (d) such Person is
not engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"SPC" has the meaning specified in Section 11.7(h).
"SPINCO" has the meaning specified in the introductory
paragraph of this Agreement.
"SPIN-OFF" has the meaning specified in the preliminary
statements hereto.
40
"STANDBY LETTER OF CREDIT" means any Letter of Credit that is
not a Commercial Letter of Credit.
"SUBORDINATED DEBT" means (a) the Existing Subordinated Notes,
(b) on and after the New Subordinated Notes Issuance Date, the New
Subordinated Notes and (c) all other unsecured Indebtedness of any Loan
Party or any Subsidiary thereof for borrowed money which is subject to,
and is only entitled to the benefits of, terms and provisions
(including maturity, amortization, acceleration, interest rate, sinking
fund, covenant, default and subordination provisions) satisfactory in
form and substance to the Required Lenders, as evidenced by their
written approval thereof (which may be granted or withheld in their
sole discretion).
"SUBORDINATED DEBT DOCUMENT" means (a) each Existing
Subordinated Notes Document, (b) each New Subordinated Notes Document
entered into by any Loan Party or any Subsidiary thereof in connection
with the issuance of such New Subordinated Notes and (c) any other
contract, loan agreement, indenture, guaranty agreement, security
agreement, subordination agreement, intercreditor agreement or other
instrument entered into by any Loan Party or any Subsidiary thereof in
connection with any Loan Party's issuance or incurrence of any
Subordinated Debt.
"SUBORDINATION TERMS" means the terms and conditions set forth
in Exhibit J hereto.
"SUBSIDIARY" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests
or other equity interests is owned or controlled directly or indirectly
by such Person, or one or more of the Subsidiaries of such Person, or a
combination thereof.
"SUBSIDIARY GUARANTOR" means the Subsidiaries of the Company
(after giving effect to the Merger) and DMFC (other than the Company)
listed on Schedule II hereto and each other Subsidiary of the Company
or DMFC that shall be required to execute and deliver a guaranty
pursuant to Section 7.15.
"SUBSIDIARY GUARANTY" has the meaning specified in Section
5.2(a)(ii).
"SURETY INSTRUMENTS" means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties, surety
bonds and similar instruments.
"SURVIVING CORPORATION" has the meaning specified in the
preliminary statements hereto.
"SURVIVING DEBT" means Indebtedness of each Loan Party and
each of their respective Subsidiaries outstanding immediately before
and after giving effect to the consummation of the Transactions.
41
"SWAP CONTRACT" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap or option, bond, note or xxxx option, interest rate
option, forward foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap, swap option,
currency option or any other, similar transaction (including any option
to enter into any of the foregoing) or any combination of the
foregoing, and, unless the context otherwise clearly requires, any
master agreement relating to or governing any or all of the foregoing.
"SWAP TERMINATION VALUE" means, with respect to each Swap
Contract, on any date of determination, an amount equal to the greater
of:
(a) in the case of any Swap Contract documented
pursuant to an ISDA Master Agreement, the amount, if any,
that would be payable by any of the Loan Parties or any of
their respective Subsidiaries to its counterparty to such Swap
Contract, as if (i) such Swap Contract was being terminated
early on such date of determination, (ii) such Loan Party or
such Subsidiary, as the case may be, was the sole Affected
Party (as defined in the applicable Master Agreement) and
(iii) reflecting the average of at least two mid-market
quotations obtained from leading dealers in the relevant
market for the product type reflected by the relevant Swap
Contract (with such leading dealers making such determination
pursuant to the provisions of the relevant Swap Contract and
ISDA Master Agreement governing such Swap Contract); or
(b) in the case of a Swap Contract traded on an
exchange, the xxxx-to-market value of such Swap Contract,
which will be the unrealized loss on such Swap Contract to the
Loan Party or any of their respective Subsidiaries party to
such Swap Contract (determined by the Administrative Agent
based on the average settlement price of exchange-traded
contracts similar to such Swap Contract on such date, as
reflected by the actual settlement prices for similar
contracts settling across the relevant exchange on such date);
or
(c) in all other cases, the xxxx-to-market value
of such Swap Contract, which will be the unrealized loss on
such Swap Contract to the Loan Party or any of their
respective Subsidiaries party to such Swap Contract
(determined by the Administrative Agent based on the amount,
if any, by which (i) the present value of the future cash
flows to be paid by such Loan Party or such Subsidiary, as the
case may be, exceeds (ii) the present value of the future cash
flows to be received by such Loan Party or such Subsidiary, as
the case may be, pursuant to such Swap Contract).
"SWINGLINE LENDER" means Bank of America in its capacity as
lender of Swingline Loans together with any replacement lender of
Swingline Loans arising under Section 10.9.
"SWINGLINE LOAN" has the meaning specified in Section 2.5(a).
42
"SYNDICATION AGENT" means JPMorgan Chase, in its capacity as
syndication agent for the Lenders.
"SYNTHETIC LEASE CAPITAL EXPENDITURE" means any Capital
Expenditure incurred by the Company in connection with unwinding any
synthetic lease obligations in existence as of the date hereof in an
aggregate amount not to exceed $40,000,000.
"TAX SEPARATION AGREEMENT" has the meaning specified in the
Separation Agreement.
"TAX SHARING AGREEMENT" means the Tax Sharing Agreement dated
as of January 9, 1990 by and between DMFC and Existing Del Monte, as
the same may be amended from time to time in accordance with Section
8.21.
"TAXES" has the meaning specified in Section 4.1(a).
"TERM A BORROWING" means a borrowing consisting of
simultaneous Term A Loans of the same Type made by the Term A Lenders.
"TERM A COMMITMENT" means, with respect to any Term A Lender
at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Term A Commitment" or, if such
Lender has entered into one or more Assignment and Acceptances, the
aggregate amount set forth in such Assignment and Acceptances as such
Lender's "Term A Commitment", as such amount may be reduced at or prior
to such time pursuant to Section 2.6.
"TERM A FACILITY" has the meaning specified in the preliminary
statements hereto.
"TERM A LENDER" means, at any time, a Lender which has a Term
A Commitment or is owed any Term A Loan at such time.
"TERM A LOAN" has the meaning specified in Section 2.1 (a).
"TERM A LOAN MATURITY DATE" means the sixth anniversary of the
date of this Agreement.
"TERM A PERCENTAGE" means, with respect to any Term A Lender
at any time, a fraction (expressed as a percentage, carried out to the
ninth decimal place), (a) prior to the termination of the Term A
Commitments in full, the numerator of which is the amount of the Term A
Commitment of such Lender at such time and the denominator of which is
the amount of the aggregate amount of the Term A Commitments of all
Term A Lenders at such time and (b) after the termination of the Term A
Commitments in full, the numerator of which is the principal amount of
the Term A Loan owed to such Lender at such time and the denominator of
which is the aggregate principal amount of the Term A Loans owed to all
Term A Lenders at such time.
"TERM B BORROWING" means a borrowing consisting of
simultaneous Term B Loans of the same Type made by the Term B Lenders.
43
"TERM B COMMITMENT" means, with respect to any Term B Lender
at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Term B Commitment" or, if such
Lender has entered into one or more Assignment and Acceptances the
aggregate amount set forth in such Assignment and Acceptances as such
Lender's "Term B Commitment", as such amount may be reduced at or prior
to such time pursuant to Section 2.6.
"TERM B FACILITY" has the meaning specified in the preliminary
statements hereto.
"TERM B LENDER" means, at any time, a Lender which has a Term
B Commitment or is owed any Term B Loan at such time.
"TERM B LOAN" has the meaning specified in Section 2.1(b).
"TERM B LOAN MATURITY DATE" means the eighth anniversary of
the date of this Agreement.
"TERM B PERCENTAGE" means, with respect to any Term B Lender
at any time, a fraction (expressed as a percentage, carried out to the
ninth decimal place), (a) prior to the termination of the Term B
Commitments in full, the numerator of which is the amount of the Term B
Commitment (calculated in the case of any Euro Term B Lender based on
the Dollar Equivalent determined as of the date of this Agreement) of
such Lender at such time and the denominator of which is the aggregate
amount of the Term B Commitments (calculated in the case of any Euro
Term B Lender based on the Dollar Equivalent determined as of the date
of this Agreement) of all Term B Lenders at such time and (b) after the
termination of the Term B Commitments in full, the numerator of which
is the principal amount of the Term B Loan (calculated in the case of
any Euro Term B Lender based on the Dollar Equivalent determined as of
the date of this Agreement) owed to such Lender at such time and the
denominator of which is the aggregate principal amount of the Term B
Loans (calculated in the case of any Euro Term B Lender based on the
Dollar Equivalent determined as of the date of this Agreement) owed to
all Term B Lenders at such time.
"TERM COMMITMENTS" means, collectively, the Term A
Commitments, and the Term B Commitments.
"TERM LENDERS" means, collectively, the Term A Lenders and the
Term B Lenders.
"TERM LOANS" means, collectively, the Term A Loans and the
Term B Loans.
"TERM PERCENTAGE" means, at any time, (a) as to any Term A
Lender, the Term A Percentage for such Lender at such time and (b) as
to any Term B Lender, the Term B Percentage for such Lender at such
time.
"TIME OF MERGER" has the meaning specified in Section 5.2.
44
"TOTAL DEBT" means (a) total Indebtedness of DMFC and its
Subsidiaries at the time of determination less (b) Indebtedness of the
type described in clause (c) of the definition of "INDEBTEDNESS" in
respect of Surety Instruments under which DMFC or any of its
Subsidiaries has only an unmatured payment obligation determined at
such time less (c) Indebtedness of the type described in clauses (h)
and (i) of the definition of "INDEBTEDNESS" in respect of Indebtedness
at such time described in clause (b) above.
"TOTAL DEBT RATIO" means for any Computation Period the ratio
of
(a) the sum of (i) the aggregate outstanding
principal amount of all Total Debt (other than Revolving
Credit Loans) outstanding on the last day of such Computation
Period plus (ii) without duplication, the aggregate
outstanding amount of any Permitted Receivables Facility as of
the last day of such Computation Period plus (iii) the
quotient of (A) the sum of the aggregate outstanding principal
amount of all Revolving Credit Loans outstanding on the last
day of each of the twelve fiscal months during such
Computation Period divided by (B) 12, to
(b) EBITDA of DMFC for such Computation Period;
provided that for purposes of any calculation required to be made under
the terms of this Agreement prior to October 31, 2003, clause (a)(iii)
of this definition shall be equal to the quotient of (A) the sum of (I)
the aggregate outstanding principal amount of all Revolving Credit
Loans outstanding on the last day of each of the fiscal months
occurring during such Computation Period plus (II) for any fiscal month
ending prior to December 31, 2002, the sum of (y) the Existing
Revolving Credit Loans outstanding on the last day of such fiscal month
plus (z) the positive difference between the aggregate principal amount
of the Revolving Credit Loans as of the Time of Merger (after giving
effect to any such Loans advanced at such time) and the Existing
Revolving Credit Loans outstanding immediately prior to giving effect
to any repayment to be made of Existing Revolving Credit Loans at the
Time of the Merger divided by (B) 12.
"TOTAL PERCENTAGE" means, as to any Lender at any time, a
fraction (expressed as a percentage, carried out to the ninth decimal
place, the numerator of which is the amount of the sum of the
Commitments (calculated in the case of any Euro Term B Lender based on
the Dollar Equivalent determined as of the date of this Agreement) of
such Lender plus the aggregate outstanding principal amount of the
Loans (calculated in the case of any Euro Term B Lender based on the
Dollar Equivalent determined as of the date of this Agreement) owed to
such Lender at such time and the denominator of which is the aggregate
amount of the sum of the Commitments (calculated in the case of any
Euro Term B Lender based on the Dollar Equivalent determined as of the
date of this Agreement) of all Lenders at such time plus the aggregate
outstanding principal amount of the Loans (calculated in the case of
any Euro Term B Lender based on the Dollar Equivalent determined as of
the date of this Agreement) owed to all Lenders at such time.
"TOTAL TERM PERCENTAGE" means, as to any Lender at any time, a
fraction (expressed as a percentage, carried out to the ninth decimal
place, the numerator of which
45
is the amount of the sum of the Term Commitments (calculated in the
case of any Euro Term B Lender based on the Dollar Equivalent
determined as of the date of this Agreement) of such Lender plus the
aggregate outstanding principal amount of the Term Loans (calculated in
the case of any Euro Term B Lender based on the Dollar Equivalent
determined as of the date of this Agreement) owed to such Lender at
such time and the denominator of which is the aggregate amount of the
sum of the Term Commitments (calculated in the case of any Euro Term B
Lender based on the Dollar Equivalent determined as of the date of this
Agreement) of all Lenders at such time plus the aggregate outstanding
principal amount of the Term Loans (calculated in the case of any Euro
Term B Lender based on the Dollar Equivalent determined as of the date
of this Agreement) owed to all Lenders at such time.
"TPG ACQUISITION PREFERRED STOCK" means the 14% Series A
Redeemable Preferred Stock, original liquidation preference 1,000 per
share, issued by DMFC.
"TPG AGREEMENTS" means (a) the Management Advisory Agreement,
dated as of April 18,1997, between Existing Del Monte and TPG Partners
and (b) the Transaction Advisory Agreement, dated as of April 18, 1997,
between Existing Del Monte and TPG Partners, in each case as amended
from time to time in accordance with Section 8.21.
"TPG PARTNERS" means TPG Partners, L.P., a Delaware limited
partnership.
"TRANSACTION COSTS" means any fees, costs or expenses incurred
by the Company in connection with the consummation of the Transactions.
"TRANSACTION DOCUMENTS" means, collectively, the Loan
Documents and the Related Documents.
"TRANSACTIONS" has the meaning specified in the preliminary
statements hereto.
"TRANSFER" has the meaning specified in the preliminary
statements hereto.
"TYPE" has the meaning specified in the definition of "LOAN".
"UBS" means UBS Warburg LLC and its successors in interest.
"UNITED STATES" and "U.S." each mean the United States of
America.
"VOTING INTERESTS" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing
similar functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency,
"WAREHOUSEMAN'S CONSENT" means a document substantially in the
form of Exhibit K with appropriate insertions, or such other form as
shall be acceptable to the Collateral Agent or the Required Revolving
Credit Lenders.
46
"WHOLLY-OWNED SUBSIDIARY" means with respect to any Person in
which (other than directors" qualifying shares or due to native
ownership requirements) 100% of the Voting Interests in such Person of
each class is owned beneficially and of record by such Person or by one
or more Wholly-Owned Subsidiaries of such Person.
Section 1.2. Other Interpretive Provisions. (a) The meanings
of defined terms are equally applicable to the singular and plural forms of the
defined terms.
(b) (i) The words "hereof", "herein", "hereunder" and
similar words, when used in any Loan Document, shall refer to such Loan Document
as a whole and not to any particular provision thereof.
(ii) Article, Section, subsection, clause, Exhibit or
Schedule references are to the Loan Document in which such reference appears.
Section, clause, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(iii) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures, notices and other
writings, however evidenced, whether in physical or electronic form.
(iv) The term "including" is not limiting and means
"including without limitation".
(v) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but excluding"; and the
word "through" means "to and including".
(c) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement, or any other Loan Document)
and other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent such amendments, restatements, extensions,
supplements and other modifications hereto are not prohibited by the terms of
any Loan Document and (ii) references to any statute or regulation are to be
construed as including all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such statute or regulation.
(d) The captions and headings of this Agreement or any
other Loan Document are for convenience of reference only and shall not affect
the interpretation of this Agreement or any other Loan Document.
(e) This Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are cumulative and
shall each be performed in accordance with their terms. Unless otherwise
expressly provided herein, any reference to any action of the Administrative
Agent, the Collateral Agent, the Lenders, the Required Lenders, the Required
Term A Lenders, the Required Term B Lenders or the Required Revolving Credit
Lenders by way of consent, approval or waiver shall be deemed modified by the
phrase "in its or their sole discretion".
47
(f) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agents, the Company
and the other parties, and are the products of all parties. Accordingly, they
shall not be construed against the Lenders or the Agents merely because of the
Lenders' or the Agents' involvement in their preparation.
Section 1.3. Accounting Principles. (a) All accounting terms not
specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either
the Company or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Company shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Company shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
(c) References herein to "fiscal year", "fiscal quarter" and
"fiscal month" refer to such fiscal periods of DMFC. After giving effect to the
Transactions, the "fiscal year" of DMFC shall end on the Sunday closest to April
30th of each calendar year.
Section 1.4. Rounding. Any financial ratios required to be maintained
by any Loan Party pursuant to this Agreement or any other Loan Document shall be
calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such
ratio is expressed herein and rounding the result up or down to the nearest
number (with a rounding-up if there is no nearest number).
Section 1.5. Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).
Section 1.6. Letter of Credit Amounts. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all increases thereof contemplated by such Letter of Credit or the L/C
Application therefor, whether or not such maximum face amount is in effect at
such time.
Section 1.7. Calculations of Euro-denominated Loans and Commitments.
For purposes of calculating any Euro Term B Lender's Term B Percentage, Total
Term Percentage or Total Percentage, such Euro Term B Lender's Term B Commitment
or the Euro Term B Loans owed to such Euro Term B Lender as of any date shall be
calculated using the Dollar
48
Equivalent as of the date of this Agreement of the amount of such Term B
Commitment or Euro Term B Loans as the case may be.
ARTICLE II
THE LOANS
Section 2. 1 The Loans. (a) Subject to the terms and conditions set
forth herein, each Term A Lender severally agrees to make (i) a single loan to
the Company on the Initial Distribution Date in Dollars and in an amount not to
exceed such Lender's Total Term Percentage of the Initial Distribution Borrowing
Amount and (ii) a single loan to the Company at the Time of the Merger in
Dollars and in an amount not to exceed such Lender's Total Term Percentage of
the Merger Borrowing Amount; provided that in no event shall the aggregate
amount of loans advanced by any Term A Lender pursuant to this Section 2.1 (a)
exceed such Lender's Term A Commitment as of the Initial Distribution Date. Any
loan advanced pursuant to this Section 2.1 (a) being a "'TERM A LOAN"). Each
Term A Borrowing shall consist of Term A Loans made simultaneously by the Term A
Lenders ratably according to their Term A Commitments. Amounts borrowed under
this Section 2.1 (a) and repaid or prepaid may not be reborrowed.
(b) Subject to the terms and conditions set forth herein, (i) each
Dollar Term B Lender severally agrees to make (A) a single loan to the Company
on the Initial Distribution Date in Dollars and in an aggregate amount not to
exceed such Lender's Total Term Percentage of the Initial Distribution Borrowing
Amount and (B) a single loan to the Company at the Time of the Merger in Dollars
and in an amount not to exceed such Lender's Total Term Percentage of the Merger
Borrowing Amount (each loan advanced by any Dollar Term B Lender being a "DOLLAR
TERM B LOAN") and (ii) each Euro Term B Lender severally agrees to make (A) a
single loan to the Company on the Initial Distribution Date in Euros and in an
aggregate amount not to exceed such Lender's Total Term Percentage of the
Initial Distribution Borrowing Amount and (B) a single loan to the Company at
the Time of Merger in Euros and in an amount not to exceed such Lender's Total
Term Percentage of the Merger Borrowing Amount (each loan advanced by any Euro
Term B Lender being a "EURO TERM B LOAN" and together with the "DOLLAR TERM B
LOANS", the "TERM B LOANS"); provided that in no event shall the aggregate
amount of loans advanced pursuant to this Section 2.1(b) exceed such Lender's
Term B Commitment as of the Initial Distribution Date. Each Term B Borrowing
shall be in Dollars or in Euros and shall consist of Term B Loans made
simultaneously by the Term B Lenders ratably according to their Term B
Commitments. Amounts borrowed under this Section 2.1(b) and repaid or prepaid
may not be reborrowed.
(c) Subject to the terms and conditions set forth herein, each
Revolving Credit Lender severally agrees to make loans to the Company in
Dollars (each such loan, a "REVOLVING CREDIT LOAN"), from time to time on any
Business Day during the period on or after the Time of Merger through to, but
excluding, the Revolving Credit Termination Date, in an aggregate amount not to
exceed at any time outstanding such Lender's Revolving Credit Commitment at
such time; provided that after giving effect to any Revolving Credit Borrowing,
the aggregate Effective Amount of the Revolving Credit Loans owed to any Lender
plus such Lender's Revolving Credit Percentage of the Effective Amount of all
Swingline Loans plus such Lender's
49
Revolving Credit Percentage of the Effective Amount of all L/C Obligations shall
not exceed (i) the lesser of such Lender's Revolving Credit Commitment and (ii)
such Lender's Revolving Credit Percentage of the Borrowing Base. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Company may borrow under this Section 2.1(c), prepay under Section 2.7 and
reborrow under this Section 2.1(c).
Section 2.2. Loan Accounts. (a) The Loans made by each Lender and the
Letters of Credit Issued by the Issuing Lender shall be evidenced by one or more
accounts or records maintained by such Lender or the Issuing Lender, as the case
may be, and the Administrative Agent in the ordinary course of business. The
accounts or records maintained by the Administrative Agent or any Lender
(including the Issuing Lender) shall be prima facie evidence as to the amount of
the Loans made by the Lenders to the Company and the Letters of Credit Issued
for the account of the Company, and the interest and payments thereon. Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Company hereunder to pay any amount owing
with respect to any Loan or Letter of Credit. In the event of any conflict
between the accounts and records maintained by any Lender (including the Issuing
Lender) and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
(b) Upon the request of any Lender made through the Administrative
Agent, the Company shall execute and deliver to such Lender (through the
Administrative Agent), a Note or Notes which shall evidence the Loans made by
such Render in addition to the accounts and records referred to in Section
2.2(a). Each such Lender is hereby authorized to endorse on the schedules
annexed to its Note(s) the date, amount and maturity of each Loan made by it and
the amount of each payment of principal made by the Company with respect
thereto. Each such Lender is irrevocably authorized by the Company to endorse
its Note(s) and each Lender's record shall be conclusive absent manifest error;
provided that the failure of a Lender to make, or an error in making, a notation
thereon with respect to any Loan shall not limit or otherwise affect the
obligations of the Company hereunder or under any Note to such Lender.
(c) In addition to the accounts and records referred to in Section
2.2(a), each Lender and the Administrative Agent shall maintain in accordance
with its usual practice accounts or records evidencing the purchases and sales
by such Lender of participations in Letters of Credit and Swingline Loans. In
the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
Section 2.3. Procedure for Borrowing, (a) Each Borrowing shall be made
upon the Company's irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Administrative
Agent (i) prior to 12:00 p.m. at least one Business Day prior to the Initial
Distribution Date in connection with any of the Borrowings to be made on the
Initial Distribution Date or Time of Merger, (ii) at least three Business Days
prior to the requested Borrowing Date, in the case of Eurodollar Revolving Rate
Credit Loans and (iii) prior to 12:00 p.m. at least one Business Day prior to
the requested Borrowing Date, in the case of Base Rate Loans. Each telephone
notice by the Company
50
pursuant to this Section 2.3(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Notice of Borrowing, appropriately completed
and signed by a Responsible Officer of the Company. Each Notice of Borrowing
(whether telephonic or written) shall specify:
(A) (i) in the case of the Term Borrowings to be made in
connection with the occurrence of the Initial Distribution Date, the
Initial Distribution Borrowing Amount, (ii) in the case of the Term
Borrowings to be made in connection with the occurrence of the Time of
Merger, the Merger Borrowing Amount and (iii) in the case of any
Revolving Credit Borrowing, the amount of such Revolving Credit
Borrowing, which shall be in an amount of at least $5,000,000 or a
higher integral multiple of $100,000;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Borrowing;
(D) in the case of any Term Borrowing, the aggregate
principal amount of the Initial Distribution Borrowing Amount or Merger
Borrowing Amount, as the case may be, to be denominated in Euros; and
(E) in the case of Eurocurrency Rate Loans and Eurodollar
Rate Loans, the duration of the Interest Period applicable to such
Loans included in such notice.
(b) The Administrative Agent will promptly notify each
Lender of its receipt of any Notice of Borrowing and of the amount of such
Lender's share of the related Borrowing based, as applicable, upon such Lender's
Revolving Credit Percentage or such Lender's applicable Term Percentage.
(c) Each Lender will make the amount of its share of each
Borrowing available to the Administrative Agent for the account of the Company
at the Agent's Payment Office by 2:00 p.m. on the Borrowing Date requested by
the Company in funds immediately available to the Administrative Agent. Upon
satisfaction of the applicable conditions set forth in Section 5.3 (and, if such
Borrowing is being made in connection with the occurrence of the Initial
Distribution Date, Section 5.1 or if such Borrowing is being made at the Time of
Merger, Section 5.2), the Administrative Agent shall make all funds so received
available to the Company in like funds as received by the Administrative Agent
either by (i) crediting the account of the Company on the books of Bank of
America with the aggregate of the amounts made available to the Administrative
Agent by the Lenders or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Company; provided, however, that if, on the date the
Notice of Borrowing with respect to such Borrowing, there are Swingline Loans or
L/C Advances outstanding, then the proceeds of such Borrowing shall be applied,
first, to the payment in full of any such L/C Advances, second, to the payment
in full of any such Swingline Loans, and third, to the Company as provided
above.
(d) After giving effect to any Borrowing, there may not
be more than 12 different Interest Periods in effect.
51
Section 2.4. Conversion and Continuation Elections, (a) The
Company may, upon irrevocable notice (which may be given by telephone) to the
Administrative Agent:
(i) elect to convert, on any Business Day, any Base Rate
Loans (in an aggregate amount of $5,000,000 (or the currency equivalent
thereof) or a higher integral multiple of $100,000 (or the currency
equivalent thereof)) into Eurocurrency Rate Loans or Eurodollar Rate
Loans, as the case may be;
(ii) elect to convert, on the last day of the applicable
Interest Period, any Eurocurrency Rate Loans or Eurodollar Rate Loans,
as the case may be (or any part thereof in an aggregate amount of
$5,000,000 (or the currency equivalent thereof) or a higher integral
multiple of $100,000 (or the currency equivalent thereof)), into Base
Rate Loans; or
(iii) elect to continue, as of the last day of the
applicable Interest Period, any Eurocurrency Rate Loans or Eurodollar
Rate Loans, as the case may be, having Interest Periods expiring on
such day (or any part thereof in an aggregate amount of $5,000,000 (or
the currency equivalent thereof) or a higher integral multiple of
$100,000 (or the currency equivalent thereof));
provided that if at any time the aggregate amount of Eurocurrency Rate Loans or
Eurodollar Rate Loans, as the case may be, in respect of any Borrowing shall
have been reduced, by payment, prepayment or conversion of part thereof, to be
less than $5,000,000 (or the currency equivalent thereof), such Eurocurrency
Rate Loans or Eurodollar Rate Loans, as the case may be, shall automatically
convert into Base Rate Loans.
(b) Each notice of conversion or continuation of Loans
delivered pursuant to Section 2.4(a) must be delivered by the Company to, and
received by, the Administrative Agent (i) prior to 12:00 p.m. at least four
Business Days prior to the Conversion Continuation Date, if the Loans are to be
converted into or continued as Eurocurrency Rate Loans, (ii) prior to 12:00
p.m. at least three Business Days prior to the Conversion/Continuation Date, if
the Loans are to be converted into or continued as Eurodollar Rate Loans and
(iii) prior to 12:00 p.m. at least one Business Day prior to the
Conversion/Continuation Date, if the Loans are to be converted into Base Rate
Loans. Each telephone notice by the Company pursuant to Section 2.4(a) must be
confirmed promptly by delivery to the Administrative Agent of a written Notice
of Conversion/Continuation, appropriately completed and signed by a Responsible
Officer of the Company. Each Notice of Conversion/Continuation (whether
telephonic or written) shall specify:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate principal amount of Loans to be
converted or continued;
(C) the Type of Loans resulting from the proposed
conversion or continuation; and
(D) in the case of conversions into Eurocurrency Rate
Loans or Eurodollar Rate Loans, the duration of the requested Interest
Period.
52
(c) If upon the expiration of any Interest Period
applicable to Eurocurrency Rate Loans or Eurodollar Rate Loans, the Company has
failed to select timely a new Interest Period to be applicable to such
Eurocurrency Rate Loans or Eurodollar Rate Loans, as the case may be, the
Company shall be deemed to have elected to convert such Eurocurrency Rate Loans
or Eurodollar Rate Loans, as the case may be, into Base Rate Loans effective as
of the expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify each
Lender of its receipt of a Notice of Conversion/Continuation or, if no timely
notice is provided by the Company, the Administrative Agent will promptly notify
each Lender of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective outstanding
principal amounts of the Loans held by each Lender with respect to which the
notice was given.
(e) A Eurocurrency Rate Loan or Eurodollar Rate Loan may
be continued or converted only on the last day of an Interest Period for such
Eurocurrency Rate Loan or Eurodollar Rate Loan, as the case may be. Unless the
Required Lenders otherwise agree, during the existence of a Default or Event of
Default, the Company may not elect to have a Loan converted into or continued as
a Eurocurrency Rate Loan or Eurodollar Rate Loan, as the case may be.
(f) After giving effect to any conversion or continuation
of Loans, there may not be more than 12 different Interest Periods in effect.
(g) For the avoidance of doubt, nothing in this Section
2.4 is intended to result in, or permit, any redenomination of any Euro Term B
Loan into a Dollar Term B Loan or of any Dollar Term B Loan into a Euro Term B
Loan.
Section 2.5. Swingline Loans. (a) Subject to the terms and
conditions hereof, the Swingline Lender may, in its sole discretion, make a
portion of the Revolving Credit Commitments available to the Company by making
swingline loans (each such loan, a "SWINGLINE LOAN") to the Company on any
Business Day during the period from the Time of Merger to the Revolving Credit
Loan Maturity Date in accordance with the procedures set forth in this Section
2.5 in an aggregate principal amount at any one time outstanding not to exceed
the lesser of (i) the aggregate available amount of the Revolving Credit
Commitments, (ii) the Borrowing Base and (iii) $25,000,000, notwithstanding the
fact that such Swingline Loans, when aggregated with the Swingline Lender's
outstanding Revolving Credit Loans, may exceed the Swingline Lender's Revolving
Credit Percentage of the aggregate amount of the Revolving Credit Commitments;
provided that (A) at no time shall the sum of the Effective Amount of all
Swingline Loans, Revolving Credit Loans and L/C Obligations exceed the aggregate
amount of the Revolving Credit Commitments, and (B) the aggregate Effective
Amount of the Revolving Credit Loans owed to any Lender plus such Lender's
Revolving Credit Percentage of the Effective Amount of all Swingline Loans plus
such Lender's Revolving Credit Percentage of the Effective Amount of all L/C
Obligations shall not exceed the lesser of (1) such Lender's Revolving Credit
Commitment and (2) such Lender's Revolving Credit Percentage of the Borrowing
Base. Subject to the other terms and conditions hereof, the Company may borrow
under this Section 2.5(a), prepay pursuant to Section 2.5(d) and reborrow
pursuant to this
53
Section 2.5(a) from time to time; provided that (A) the Swingline Lender shall
not be obligated to make any Swingline Loan and (B) the Company shall not use
the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan.
Each Swingline Loan shall be a Base Rate Loan. Immediately upon the making of a
Swingline Loan, each Revolving Credit Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swingline Lender a
risk participation in such Swingline Loan in an amount equal to the product of
such Revolving Credit Lender's Revolving Credit Percentage multiplied by the
amount of such Swingline Loan.
(b) The Company shall provide the Administrative Agent
and the Swingline Lender irrevocable written notice (or notice by a telephone
call confirmed promptly by facsimile) of any Swingline Loan requested hereunder
(which notice must be received by the Swingline Lender and the Administrative
Agent prior to 1:00 p.m. on the requested Borrowing Date) specifying (i) the
amount to be borrowed and (ii) the requested Borrowing Date, which must be a
Business Day. Upon receipt of such notice, the Swingline Lender will promptly
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such notice from the Company and, if
not, the Swingline Lender will provide the Administrative Agent with a copy
thereof. If and only if the Administrative Agent notifies the Swingline Lender
on the proposed Borrowing Date that it may make available to the Company the
amount of the requested Swingline Loan, then, subject to the terms and
conditions hereof, the Swingline Lender may make the amount of the requested
Swingline Loan available to the Company by crediting the account of the Company
on the books of Bank of America with the amount of such Swingline Loan. The
Administrative Agent will not so notify the Swingline Lender if the
Administrative Agent has knowledge that (A) the limitations set forth in the
proviso set forth in the first sentence of Section 2.5(a) are being violated or
would be violated by such Swingline Loan or (B) one or more of the conditions
specified in Article V is not then satisfied. Each Swingline Loan shall be in an
aggregate principal amount equal to $500,000 or a higher integral multiple of
$100,000. The Swingline Lender will promptly notify the Administrative Agent of
the amount of each Swingline Loan.
(c) Principal of and accrued interest on each Swingline
Loan shall be due and payable (i) on demand made by the Swingline Lender at any
time upon one Business Day's prior notice to the Company with a copy to the
Administrative Agent furnished at or before 11:45 a.m., and (ii) in any event on
the Revolving Credit Maturity Date. Interest on Swingline Loans shall be for the
sole account of the Swingline Lender (except to the extent that the other
Lenders have funded the purchase of participations therein pursuant to Section
2.5(e)).
(d) The Company may, from time to time on any Business
Day, make a voluntary prepayment, in whole or in part, of the outstanding
principal amount of any Swingline Loan, without incurring any premium or
penalty; provided that
(i) each such voluntary prepayment shall require prior
written notice given to the Administrative Agent and the Swingline
Lender no later than 12:00 p.m. on the day on which the Company intends
to make a voluntary prepayment, and
54
(ii) each such voluntary prepayment shall be in an amount
equal to $500,000 or a higher integral multiple of $100,000 (or, if
less, the aggregate outstanding principal amount of all Swingline Loans
then outstanding).
Voluntary prepayments of Swingline Loans shall be made by the Company to the
Swingline Lender at such office as the Swingline Lender may designate by notice
to the Company from time to time. All such payments shall be made in Dollars and
in immediately available funds no later than 5:00 p.m. on the date specified by
the Company pursuant to Section 2.5(d)(i) (and any payment received later than
such time shall be deemed to have been received on the next Business Day). The
Swingline Lender will promptly notify the Administrative Agent of the amount of
each prepayment of Swingline Loans.
(e) If (i) any Swingline Loan shall remain outstanding at
12:00 p.m. on the Business Day immediately prior to a Business Day on which
Swingline Loans are due and payable pursuant to Section 2.5(c) and by such time
on such Business Day the Administrative Agent shall have received neither (A) a
Notice of Borrowing delivered pursuant to Section 2.3 requesting that Revolving
Credit Loans be made pursuant to Section 2.l(c) on such following Business Day
in an amount at least equal to the aggregate principal amount of such Swingline
Loans, nor (B) any other notice indicating the Company's intent to repay such
Swingline Loans with funds obtained from other sources, or (ii) any Swingline
Loans shall remain outstanding during the existence of a Default or Event of
Default and the Swingline Lender shall in its sole discretion notify the
Administrative Agent that the Swingline Lender desires that such Swingline Loans
be converted into Revolving Credit Loans, then the Administrative Agent shall be
deemed to have received a Notice of Borrowing from the Company pursuant to
Section 2.3 requesting that Base Rate Loans be made pursuant to Section 2.1(c)
on the following Business Day in an amount equal to the aggregate amount of such
Swingline Loans, and the procedures set forth in Sections 2.3(b) and 2.3(c)
shall be followed in making such Base Rate Loans; provided that such Base Rate
Loans shall be made notwithstanding the Company's failure to comply with Section
5.3; and provided further that if a Borrowing of Revolving Credit Loans becomes
legally impracticable and if so required by the Swingline Lender at the time
such Revolving Credit Loans are required to be made by the Revolving Credit
Lenders in accordance with this Section 2.5(e), each Revolving Credit Lender
agrees that any notice from the Swingline Lender shall be deemed to be a request
by the Swingline Lender that each of the Revolving Credit Lenders fund its risk
participation in the relevant Swingline Loan and each Revolving Credit Lender's
payment to the Administrative Agent for the account of the Swingline Lender
pursuant to this Section 2.5(e) shall be deemed payment in respect of such
participation. The proceeds of such Base Rate Loans (or participations
purchased) shall be delivered by the Administrative Agent to the Swingline
Lender to repay such Swingline Loans (or as payment for such participations). A
copy of each notice given by the Administrative Agent to the Revolving Credit
Lenders pursuant to this Section 2.5(e) with respect to the making of Loans, or
the purchases of participations, shall be promptly delivered by the
Administrative Agent to the Company. Each Revolving Credit Lender's obligation
in accordance with this Agreement to make the Revolving Credit Loans, or
purchase the participations, as contemplated by this Section 2.5(e), shall be
absolute and unconditional and shall not be affected by any circumstance,
including (1) any set-off, counterclaim, recoupment, defense or other right
which such Revolving Credit Lender may have against the Swingline Lender, the
Company or any other Person for any reason whatsoever, (2) the occurrence or
continuance of a Default, Event of Default or any event that has or could
55
reasonably be expected to have Material Adverse Effect or (3) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing. No funding of risk participations pursuant to this Section 2.5(e)
shall relieve or otherwise impair the obligation of the Company to repay any
outstanding Swingline Loans, together with interest as provided herein.
(f) At any time after any Revolving Credit Lender has
purchased and funded a risk participation in a Swingline Loan, if the Swingline
Lender receives any payment on account of such Swingline Loan, the Swingline
Lender will distribute to such Lender an amount equal to such Lender's Revolving
Credit Percentage of such payment (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender's risk
participation was funded) in the same funds as those received by the Swingline
Lender. If any payment received by the Swingline Lender in respect of principal
or interest on any Swingline Loan is required to be returned by the Swingline
Lender under any of the circumstances described in Section 11.6 (including
pursuant to any settlement entered into by the Swingline Lender in its
discretion) each Revolving Credit Lender shall pay to the Swingline Lender in an
amount equal to such Lender's Revolving Credit Percentage thereof on demand of
the Administrative Agent plus interest thereon from the date of such demand to
the date such amount is returned, at a rate per annum equal to the Federal Funds
Rate. The Administrative Agent will make such demand upon the request of the
Swing Line Lender.
Section 2.6. Termination or Reduction of Commitments. (a) The
Term Commitments will automatically terminate in full on the earlier to occur
of (i) the Time of Merger (after giving effect to any Term Borrowings made on
such date) and (ii) March 31, 2003.
(b) The Company may, upon not less than three Business
Days' prior written notice to the Administrative Agent, permanently reduce the
Revolving Credit Commitments to an amount which is not less than the sum of the
Effective Amount of all Revolving Credit Loans plus the Effective Amount of all
Swingline Loans plus the Effective Amount of all L/C Obligations. Any such
reduction shall be in an aggregate amount of $10,000,000 or a higher integral
multiple of $5,000,000 and shall be applied to reduce the Revolving Credit
Commitment of each Revolving Credit Lender by an amount equal to such Lender's
Revolving Credit Percentage of the amount of any such reduction. The Company may
at any time on like notice terminate the Revolving Credit Commitments upon
payment in full of all Revolving Credit Loans and Swingline Loans and Cash
Collateralization in full of all L/C Obligations.
(c) After payment in full of all Term Loans pursuant to
Section 2.7(b), upon the occurrence of any Mandatory Prepayment Event, the
Revolving Credit Commitment of each Revolving Credit Lender shall be
automatically and permanently reduced by an amount equal to such Lender's
Revolving Credit Percentage of the Designated Proceeds resulting from such
Mandatory Prepayment Event, with each such reduction effective at the time
required in Section 2.7(b) for a prepayment of Loans resulting from such
Mandatory Prepayment Event.
(d) In the event that the Time of Merger has not occurred
on or prior to March 31, 2003, the Revolving Credit Commitments will
automatically terminate in full.
56
(e) Once reduced in accordance with this Section, the
Commitments may not be increased. All accrued commitment fees to, but not
including, the effective date of any reduction or termination of the any
Commitment shall be paid on the effective date of such reduction or termination.
Section 2.7. Prepayments. (a) The Company may, upon at least
one Business Day's notice in the case of Base Rate Loans and three Business
Day's notice in the case of Eurocurrency Rate Loans and Eurodollar Rate Loans,
in each case to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Company
shall, prepay the outstanding aggregate principal amount of the Loans comprising
part of the same Borrowing in whole or ratably in part, together with (i)
accrued interest to the date of such prepayment on the aggregate amount prepaid
and (ii) in the case of any such prepayment of any of the Term B Loans (A) on or
prior to the first anniversary of this Agreement, a premium of 2.00% or (B) on
or prior to the second anniversary of this Agreement, a premium of 1.00%, in
either case of the aggregate principal amount of Term B Loans being so prepaid;
provided, however, that (1) each partial prepayment shall be in an aggregate
principal amount of $5,000,000 (which in the case of any prepayment in respect
of the Term B Loan, shall include the Dollar Equivalent of any Euro Term B Loans
being so prepaid) or an integral multiple of $100,000 (which in the case of any
prepayment in respect of a Term B Loan, shall include the Dollar Equivalent of
any Euro Term B Loans being so prepaid) in excess thereof and if any prepayment
of a Eurocurrency Rate Loan or Eurodollar Rate Loan is made on a date other than
the last day of an Interest Period for such Loan, the Company shall also pay
amounts owing pursuant to Section 4.5. Any premium payable pursuant to this
Section 2.7(a) shall be payable to any Term B Lender only to the extent that any
such Term B Lender actually receives a prepayment of the Term B Loans, owing to
such Term B Lender, as the case may be. For the avoidance of doubt, the Company
shall not be required to pay any prepayment premium to any Term A Lender,
Revolving Credit Lender or any Declining Lender.
(b) The Company shall make a prepayment of the Loans upon
the occurrence of any of the following (each a "MANDATORY PREPAYMENT EVENT") at
the following times and in the following amounts (such applicable amounts being
referred to as "DESIGNATED PROCEEDS"):
(i) Within 180 days after any Asset Sale (other than any
Asset Sale permitted under Sections 8.2(a) through 8.2(i) (other than
as to any such Section which is addressed in clauses (ii) through (vi)
below) to a Person other than a Loan Party or any of their respective
Subsidiaries, in an amount equal to 100% of the Net Cash Proceeds
actually received by any Loan Party or Subsidiary thereof in connection
with such sale, transfer or other disposition; provided that (A) the
foregoing shall not apply (1) to Asset Sales, the proceeds (or an
amount equal to anticipated proceeds) of which are used or committed to
be used by the Company for the financing of fixed or capital assets to
be used in the business of the Company and its Subsidiaries prior to or
within 12 months after any such Asset Sale, (2) to the extent that the
Net Cash Proceeds of all such Asset Sales in any fiscal year are less
than the lesser of $10,000,000 and 10% of Consolidated Net Tangible
Assets.(as defined in the New Subordinated Notes Indenture) for the
most recently ended 12 consecutive month period for which a
consolidated balance sheet for the Company and its Subsidiaries has
been prepared or (3) to proceeds of Sale/Leaseback Transactions
permitted under Sections 8.2(g) and 8.17 and (B) the Company and its
Subsidiaries may
57
retain the first $25,000,000 of Net Cash Proceeds of any sale, transfer
or other disposition of the Company's San Xxxx Plant #3 received or to
be received by the Company and its Subsidiaries in the aggregate and
shall not be required to prepay Loans in an amount equal to such
proceeds, and such proceeds shall not constitute "DESIGNATED PROCEEDS"
hereunder.
(ii) Within 30 days after any Asset Sale (including by way
of merger or consolidation) by a Loan Party or any of their respective
Subsidiaries, of any of the Equity Interests in any such Loan Party's
Subsidiaries to a Person other than a Loan Party or any of their
respective Subsidiaries, in an amount equal to 100% of the Net Cash
Proceeds of such Asset Sale.
(iii) Promptly, and in any event within 15 days, after the
receipt of any Net Cash Proceeds from the issuance of any Other Debt of
the Company or any of its Subsidiaries, in an amount equal to 100% of
such Net Cash Proceeds.
(iv) Within 95 days after the end of each fiscal year
ending on or after April 30,2004, in an amount equal to 50% of Excess
Cash Flow for such fiscal year (provided that if the aggregate unpaid
principal amount of the Term Loans (based on in the case of any Euro
Term B Loans, the Dollar Equivalent thereof as of any date of
Calculation) as of the end of such fiscal year is less than
$400,000,000, then no prepayment shall be required pursuant to this
Section 2.7(b)(iv)).
(v) Concurrently with the actual receipt of any Net Cash
Proceeds from the issuance of any Indebtedness by DMFC, in an amount
equal to 100% of the Net Cash Proceeds thereof.
(vi) Immediately following any transfer by the Company or
any Subsidiary of Receivables pursuant to a Permitted Receivables
Facility, in an amount equal to the Net Cash Proceeds of such transfer;
provided that if the Permitted Receivables Facility is a revolving
program, the Designated Proceeds available for application to the Loans
from such Permitted Receivables Facility shall not exceed the maximum
outstanding amount of such Permitted Receivables Facility (without
giving effect to any reduction in such amount but giving effect to any
increase in such amount).
(c) Each prepayment of Term Loans pursuant to Section 2.7
(a) shall be applied ratably to the remaining installments of such Term Loans.
Each prepayment of Revolving Credit Loans pursuant to Section 2.7(a) shall be
applied in accordance with Section 2.7(h)
(d) Each prepayment of Loans pursuant to Section 2.7(b)
shall be applied, first, ratably to the remaining installments of each of Term
Loans and to such installments, subject to Section 2.7(g), in accordance with
each Term Lender's Term Percentage and second to the Revolving Credit Loans,
Swingline Loans and L/C Advances as set forth in Section 2.7(h).
(e) If on any day the Effective Amount of all Revolving
Credit Loans plus the Effective Amount of all Swingline Loans plus the Effective
Amount of all L/C Obligations exceeds the lesser of (i) the Revolving Credit
Commitments and (ii) the Borrowing Base, the
58
Company shall immediately prepay Revolving Credit Loans and/or Swingline Loans
or Cash Collateralize the outstanding Letters of Credit, or do a combination of
the foregoing, in an amount sufficient to eliminate such excess.
(f) If on any date the Effective Amount of L/C
Obligations exceeds the amount of the L/C Commitment, the Company shall Cash
Collateralize on such date the outstanding Letters of Credit in an amount equal
to the excess of the L/C Obligations over the amount of the L/C Commitment.
(g) With respect to any prepayment of Term Loans (other
than pursuant to Section 2.7(i)), the Administrative Agent shall ratably pay
the Term Lenders in accordance with their applicable Total Term Percentages;
provided, however, that any Term B Lender, at its option, to the extent that any
Term A Loans are then outstanding, may elect not to accept such prepayment. Upon
receipt by the Administrative Agent of any such prepayment, the amount of the
prepayment that is available to prepay the Term B Loans shall be deposited in a
cash collateral account on terms reasonably satisfactory to the Administrative
Agent and the Company (the "PREPAYMENT AMOUNT"), pending application of such
amount on the Prepayment Date as set forth below and promptly after such receipt
(the date of such receipt being the "RECEIPT DATE"), the Administrative Agent
shall give written notice to the Term B Lenders of the amount available to
prepay the Term B Loans (to the extent applicable) and the date on which such
prepayment shall be made (the "PREPAYMENT DATE"), which date shall be seven
Business Days after the Receipt Date. Any Term B Lender declining such
prepayment (a "DECLINING LENDER") shall given written notice to the
Administrative Agent by 11:00 a.m. at least three Business Days prior to the
Prepayment Date. On the Prepayment Date, an amount equal to that portion of the
Prepayment Amount accepted by the Term B Lenders other than the Declining
Lenders (such Lenders being the "ACCEPTING LENDERS") to prepay Term B Loans
owing to such Accepting Lenders shall be withdrawn from the cash collateral
account and applied to prepay Term B Loans owing to such Accepting Lenders on a
pro rata basis. Any amounts that would otherwise have been applied to prepay
Term B Loans owing to Declining Lenders shall instead be applied to prepay the
remaining Term A Loans as provided in this Section 2.7. Notwithstanding anything
herein to the contrary no "PREPAYMENT AMOUNT" shall include any premiums payable
to any Accepting Lenders pursuant to Section 2.7(a).
(h) Prepayments of Loans (other than Term Loans) made
pursuant to Sections 2.7(a), 2.7(b) and 2.7(e) shall be first applied to prepay
L/C Advances then outstanding until such L/C Advances are paid in full, second
applied to prepay Swingline Loans then outstanding in accordance with each
Revolving Credit Lender's Revolving Credit Percentage until such Loans are paid
in full, third applied to prepay Revolving Credit Loans then outstanding until
such Loans are paid in full and fourth applied to Cash Collateralize any
outstanding Letter of Credit; and, in the case of prepayments of Loans (other
than Term Loans) required pursuant to Sections 2.7(b) and 2.7(e), the amount
remaining (if any) after prepayment in full of all Loans then outstanding and
the 100% Cash Collateralization of any outstanding Letters of Credit (the sum of
such prepayment amounts, Cash Collateral amounts and remaining amounts being
referred to herein as the "REDUCTION AMOUNT") may be retained by the Company and
the Revolving Credit Commitments shall be permanently reduced as set forth in
Section 2.6(d).
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(i) If on the last Business Day of any January, April,
July or October, the aggregate outstanding Dollar Equivalent of the principal
amount of Euro Term B Loans exceeds the sum of (A) $45,000,000 less the Dollar
Equivalent of all repayments of the principal amount of any Euro Term B Loan as
of any date of calculation (the "BASE AMOUNT") plus (B) the product of the Base
Amount multiplied by 10%, the Company shall immediately following notice from
the Administrative Agent thereof prepay to the Administrative Agent for the
ratable benefit of the Euro Term B Loans the amount equal to the amount of such
excess.
Section 2.8. Repayment. (a) The Company shall repay to the
Administrative Agent for the ratable account of the Term A Lenders the aggregate
outstanding principal amount of the Term A Loans on the following dates in the
amounts represented by the percentages set forth below, as the respective
percentages of the aggregate outstanding principal amount of the Term A Loans
outstanding as of the Time of Merger (after giving effect to any Term A
Borrowing made on or prior to such time) (which amounts shall be reduced as a
result of the application of repayments in accordance with Section 2.7).
Date Percentage
---- ----------
4/30/2004 2.50%
7/30/2004 2.50%
10/29/2004 2.50%
1/28/2005 2.50%
4/29/2005 3.75%
7/29/2005 3.75%
10/28/2005 3.75%
1/27/2006 3.75%
4/28/2006 5.00%
7/28/2006 5.00%
10/27/2006 5.00%
1/26/2007 5.00%
4/27/2007 6.25%
7/27/2007 6.25%
10/26/2007 6.25%
1/25/2008 6.25%
4/25/2008 7.50%
7/25/2008 7.50%
10/24/2008 7.50%
Term A Loan
Maturity Date 7.50%
provided, however, that the final principal installments shall be repaid on the
Term A Loan Maturity Date in respect of the Term A Loans and in any event shall
be in an amount equal to the aggregate principal amount of the Term A Loans
outstanding on the Term A Loan Maturity Date.
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(b) The Company shall repay to the Administrative Agent
for the ratable account of the Term B Lenders the aggregate outstanding
principal amount of the Term B Loans on the following dates in the amounts
represented by the percentages set forth below, as the respective percentages of
the aggregate outstanding principal amount of the Term B Loans outstanding as of
the Time of Merger (after giving effect to any Term B Borrowing to be made on or
prior to such time) (which amounts shall be reduced as a result of the
application of prepayments in accordance with Section 2.7).
Date Percentage
---- ----------
4/25/2003 0.25%
7/25/2003 0.25%
10/24/2003 0.25%
1/23/2004 0.25%
4/30/2004 0.25%
7/30/2004 0.25%
10/29/2004 0.25%
1/28/2005 0.25%
4/29/2005 0.25%
7/29/2005 0.25%
10/28/2005 0.25%
1/27/2006 0.25%
4/28/2006 0.25%
7/28/2006 0.25%
10/27/2006 0.25%
1/26/2007 0.25%
4/27/2007 0.25%
7/27/2007 0.25%
10/26/2007 0.25%
1/25/2008 0.25%
4/25/2008 0.25%
7/25/2008 0.25%
10/24/2008 0.25%
1/23/2009 0.25%
5/1/2009 0.25%
7/31/2009 0.25%
10/30/2009 0.25%
1/29/2010 0.25%
4/30/2010 23.25%
7/30/2010 23.25%
10/29/2010 23.25%
Term B Loan
Maturity Date 23.25%
provided, however, that the final principal installment shall be repaid on the
Term B Loan Maturity Date in respect of the Term B Loans and in any event shall
be in an amount equal to the aggregate principal amount of the Term B Loans
outstanding on the Term B Loan Maturity Date.
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(c) The Company shall pay to the Administrative Agent,
for the ratable account of the Revolving Credit Lenders, on the Revolving Credit
Loan Maturity Date the aggregate principal amount of all Revolving Credit Loans
outstanding on the Revolving Credit Loan Maturity Date.
Section 2.9. Interest. (a) Each Revolving Credit Loan (other
than any Swingline Loan) and Term Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to (i) in the case of any Eurodollar Rate Loan, the Eurodollar Rate or
(ii) in the case of any Euro Term B Loan, the Eurocurrency Rate, and in either
case, the Base Rate, as the case may be (and subject to the Company's right to
convert to the other Type of Loans under Section 2.4), plus the Applicable Rate
as in effect from time to time with respect to such Revolving Credit Loan or
Term Loan, as the case may be. Each Swingline Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the Base Rate plus 1% per annum.
(b) Interest on each Loan shall be paid in arrears on
each Interest Payment Date therefor. Interest shall also be paid upon payment
(including prepayment) in full of any of the Loans.
(c) Notwithstanding Section 2.9(a), during the existence
of any Event of Default, the Company shall pay interest (after as well as before
entry of judgment thereon to the extent permitted by law) on the principal
amount of all outstanding Loans and, to the extent permitted by applicable law,
on any other amount payable hereunder or under any other Loan Document, at a
rate per annum equal to the rate otherwise applicable thereto pursuant to the
terms hereof or such other Loan Document (or, if no such rate is specified, the
Base Rate plus the Applicable Rate then in effect for Base Rate Revolving Credit
Loans) plus 2%. All such interest shall be payable on demand.
(d) Anything herein to the contrary notwithstanding the
obligation of the Company to any Lender in respect of interest payments
hereunder shall be subject to the limitations set forth in Section 11.12.
Section 2.10. Fees. In addition to certain fees described in
Section 3.8:
(a) The Company shall pay fees to the Agents and
Arrangers for their own accounts, as required by the letter agreement
among the Company, Heinz, the Arrangers and the Agents dated June
12, 2002, as modified by that certain letter agreement dated as of
November 13, 2002 (the "FEE LETTER").
(b) The Company shall pay to the Administrative Agent for
the account of each Term Lender a commitment fee calculated at a rate
per annum equal to 0.50% on the daily unused portion of such Term
Lenders' aggregate Term Commitments. The commitment fee payable
pursuant to this Section 2.10(b) shall accrue at all times from the
date hereof until the date of the termination in full of the Term
Commitments in accordance with Section 2.6, including at any time
during which one or more of the conditions in Article V is not met, and
shall be due and payable quarterly in arrears on the last Business Day
of each January, April, July and October, commencing with the first
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such date to occur after the date hereof, and on the date on which the
Term Commitments are terminated in full in accordance with Section 2.6.
(c) The Company shall pay to the Administrative Agent for
the account of each Revolving Credit Lender a commitment fee calculated
at a rate per annum equal to 0.50% on the average daily unused portion
of such Revolving Credit Lender's Revolving Credit Commitment. The
commitment fee payable pursuant to this Section 2.10(c) shall accrue at
all times from the date hereof until the occurrence of the Revolving
Credit Termination Date, including at any time during which one or more
of the conditions in Article V is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each January, April,
July and October, commencing with the first such date to occur after
the date hereof and on the Revolving Credit Termination Date based upon
the daily utilization for each such period as calculated by the
Administrative Agent. For purposes of calculating utilization Under
this Section 2.10(c), the Revolving Credit Commitments shall be deemed
used to the extent of the Effective Amount of all Revolving Credit
Loans then outstanding (but Swingline Loans shall not constitute usage
of any Revolving Credit Lender's Revolving Credit Commitment for the
purpose of calculating commitment fees)plus the Effective Amount of
all L/C Obligations then outstanding.
(d) Any fees paid pursuant to this Section 2.10, shall be
fully earned when paid and shall not be refundable for any reason
whatsoever.
Section 2.11. Computation of Fees and Interest. (a) All
computations of interest for Base Rate Loans when the Base Rate is determined by
Bank of America's "prime rate" shall be made on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed. All other computations of
interest and fees shall be made on the basis of a 360-day year and actual days
elapsed. Interest and fees shall accrue during each period during which interest
or such fees are computed from the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the
Administrative Agent shall be prima facie evidence thereof. The Administrative
Agent will, at the request of the Company or any Lender, deliver to the Company
or such Lender, as the case may be, a statement showing the quotations used by
the Administrative Agent in determining any interest rate and the resulting
interest rate.
Section 2.12. Payments by the Company. (a) All payments to be
made by the Company shall be made without condition or deduction for any
counter-claim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Company shall be made to the Administrative
Agent for the account of the Lenders at the Agent's Payment Office, and shall be
made in Dollars or Euros, as the case may be, and in immediately available
funds, no later than 2:00 p.m. on the date specified herein. Except as expressly
provided herein, the Administrative Agent will promptly distribute, in like
funds as received, to each Lender its Revolving Credit Percentage of any portion
of such payment related to the Revolving Credit Loans or its applicable Term
Percentage of any portion of such payment relating to any of the Term Loans. Any
payment received by the Administrative Agent later than
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2:00 p.m. shall be deemed to have been received on the following Business Day
and any applicable interest or fee shall continue to accrue.
(b) Whenever any payment is due on a day other than a
Business Day, such payment shall be made on the preceding Business Day or, in
the event such payment cannot be made on such preceding Business Day, the next
succeeding Business Day, and such shortening or lengthening of time shall in
such case be reflected in the computation of interest or fees, as the case may
be.
(c) Unless the Company or any Lender has notified the
Administrative Agent, prior to the date any payment is required to be made by
the Administrative Agent hereunder, that the Company or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Company or such Lender, as the case may be, has timely made such payment and may
(but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Company failed to make such payment, each
Lender shall forthwith on demand repay to the Administrative Agent the
portion of such assumed payment that was made available to such Lender
in immediately available funds, together with interest thereon in
respect of each day from and including the date such amount was made
available by the Administrative Agent to such Lender to the date such
amount is repaid to the Administrative Agent in immediately available
funds at the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such
Lender shall forthwith on demand pay to the Administrative Agent the
amount thereof in immediately available funds, together with interest
thereon for the period from the date such amount was made available by
the Administrative Agent to the Company to the date such amount is
recovered by the Administrative Agent (the "COMPENSATION PERIOD") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Loans included in the
applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent's demand therefor, the Administrative
Agent may make a demand therefor upon the Company, and the Company
shall pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to
fulfill its Commitment or to prejudice any rights which the
Administrative Agent or the Company may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the
Company with respect to any amount owing under this Section 2.12(c) shall be
conclusive, absent manifest error.
(d) If any Lender makes available to the Administrative
Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and
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such funds are not made available to the Company by the Administrative Agent
because the conditions to the applicable extension of credit set forth in
Article V are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall promptly return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(e) To the extent that the Administrative Agent receives
funds for application to the amounts owing by the Company under or in respect of
this Agreement or any Note in currencies other than the currency or currencies
required to enable the Administrative Agent to distribute funds to the Lenders
in accordance with the terms of this Agreement, the Administrative Agent shall
be entitled to convert or exchange such funds into Dollars or into Euros or from
Dollars to Euros or from a Euro to Dollars, as the case may be, to the extent
necessary to enable the Administrative Agent to distribute such funds in
accordance with the terms of this Agreement; provided that the Company and each
of the Lenders hereby agree that the Administrative Agent shall not be liable or
responsible for any loss, cost or expense suffered by the Company or such Lender
as a result of any conversion or exchange of currencies affected pursuant to
this Section 2.12(e) or as a result of the failure of the Administrative Agent
to effect any such conversion or exchange; and provided further that the Company
agrees to indemnify the Administrative Agent and each Lender, and hold the
Administrative Agent and each Lender harmless, for any and all losses, costs and
expenses incurred by the Administrative Agent or any Lender for any conversion
or exchange of currencies (or the failure to convert or exchange any currencies)
in accordance with this Section 2.12(e).
(f) The obligations of the Lenders hereunder to make
Loans and to fund participations in Letters of Credit and Swingline Loans are
several and not joint. The failure of any Lender to make any Loan or to fund any
such participation on any date required hereunder shall not relieve any other
Lender of its corresponding obligation to do so on such date, and no Lender
shall be responsible for the failure of any other Lender to so make its Loan or
purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained the funds for any
Loan in any particular place or manner.
Section 2.13. Sharing of Payments, Etc. If, other than as
expressly provided elsewhere herein, any Lender shall obtain on account of the
Loans made by it, or the participations in L/C Obligations or in Swingline Loans
held by it, any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) in excess of its ratable share (or other
share contemplated hereunder) thereof, such Lender shall immediately (a) notify
the Administrative Agent of such fact and (b) purchase from the other Lenders
such participations in the Loans made by them and/or such subparticipations in
the participations in L/C Obligations or Swingline Loans held by them, as the
case may be, as shall be necessary to cause such purchasing Lender to share the
excess payment in respect of such Loans or such participations, as the case may
be, pro rata with each of them; provided, however, that if all or any portion of
such excess payment is thereafter recovered from the purchasing Lender under any
of the circumstances described in Section 11.6 (including pursuant to any
settlement entered into by the purchasing Lender in its discretion), such
purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor,
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together with an amount equal to such paying Lender's ratable share (according
to the proportion of (i) the amount of such paying Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of
the total amount so recovered, without further interest thereon. The Company
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 11.9) with respect to
such participation as fully as if such Lender were the direct creditor of the
Company in the amount of such participation. The Administrative Agent will keep
records (which shall be conclusive and binding in the absence of manifest error)
of participations purchased under this Section and will in each case notify the
Lenders following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section shall from and after such purchase have
the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
ARTICLE III
THE LETTERS OF CREDIT
Section 3.1. The Letter of Credit Subfacility. (a) Subject to
the terms and conditions hereof: (i) the Issuing Lender agrees, in reliance upon
the agreements of the other Lenders set forth in this Article III, (A) from time
to time on any Business Day during the period from the Time of Merger to the
Revolving Credit Maturity Date to issue Letters of Credit for the account of the
Company, and to amend or renew Letters of Credit previously issued by it, in
accordance with Section 3.2, and (B) to honor drawings which comply with the
terms of the Letters of Credit Issued by it; and (ii) the Revolving Credit
Lenders severally agree to participate in Letters of Credit Issued for the
account of the Company; provided that the Issuing Lender shall not be obligated
to Issue, and no Revolving Credit Lender shall be obligated to participate in,
any Letter of Credit if as of the date of Issuance of such Letter of Credit (the
"ISSUANCE DATE") (1) the sum of the Effective Amount of all L/C Obligations,
Revolving Credit Loans and Swingline Loans exceeds the lesser of (y) the
aggregate amount of all Revolving Credit Commitments and (z) the Borrowing Base,
(2) the Effective Amount of all L/C Obligations exceeds the amount of the L/C
Commitment or (3) any Revolving Credit Lender's Revolving Credit Percentage of
the Effective Amount of all L/C Obligations plus such Lender's Revolving Credit
Percentage of the Effective Amount of all Swingline Loans plus the aggregate
Effective Amount of the Revolving Credit Loans owed to such Lender shall exceed
the lesser of (y) such Revolving Credit Lender's Revolving Credit Commitment and
(z) such Lender's Revolving Credit Percentage of the Borrowing Base. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Company's ability to obtain Letters of Credit shall be fully revolving, and,
accordingly, the Company may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit which have expired or which have been drawn
upon and reimbursed. All Existing Letters of Credit shall be deemed to have been
issued pursuant hereto, and from and after the Time of Merger shall be subject
to and governed by the terms and conditions hereof.
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(b) The Issuing Lender shall not Issue any Letter of
Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the Issuing Lender from Issuing such Letter of Credit, or any
Requirement of Law applicable to the Issuing Lender or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Issuing Lender shall
prohibit, or request that the Issuing Lender refrain from, the Issuance
of letters of credit generally or such Letter of Credit in particular
or shall impose upon the Issuing Lender with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the
Issuing Lender is not otherwise compensated hereunder) not in effect on
the date of this Agreement, or shall impose upon the Issuing Lender any
unreimbursed loss, cost or expense which was not applicable on the date
of this Agreement and which the Issuing Lender in good xxxxx xxxxx
material to it;
(ii) the Issuing Lender has received written notice from
any Lender, the Administrative Agent or the Company, on or prior to the
Business Day prior to the requested date of Issuance of such Letter of
Credit, that one or more of the applicable conditions contained in
Article V is not then satisfied;
(iii) subject to Section 3.2(c) the expiry date of such
requested Letter of Credit would occur more than 12 months after the
date of issuance or last renewal, unless the Required Revolving Credit
Lenders have approved such expiry date;
(iv) the expiry date of such Letter of Credit is less than
the fifth Business Day prior to the Revolving Credit Maturity Date,
unless all of the Revolving Credit Lenders have approved such expiry
date in writing;
(v) such Letter of Credit does not provide for drafts, or
is not otherwise in form and substance acceptable to the Issuing
Lender, or the Issuance of such Letter of Credit shall violate any
applicable policies of the Issuing Lender; or
(vi) except to the extent set forth in Section 3.10, such
Letter of Credit is denominated in a currency other than Dollars.
(c) The Issuing Lender shall be under no obligation to
amend any Letter of Credit if (i) the Issuing Lender would have no obligation at
such time to issue such Letter of Credit in its amended form under the terms
hereof, or (ii) the beneficiary of such Letter of Credit does not accept the
prepared amendment to such Letter of Credit.
Section 3.2. Procedures for Issuance and Amendment of Letters
of Credit: Auto-Renewal Letters of Credit. (a) Each Letter of Credit shall be
issued or amended, as the case may be, upon the request of the Company delivered
to the Issuing Lender (with a copy to the Administrative Agent) in the form of a
L/C Application, appropriately completed and signed by a Responsible Officer of
the Company. Such L/C Application must be received by the Issuing Lender and the
Administrative Agent not later than 11:00 a.m. at least two Business Days (or
such later date and time as the Issuing Lender may agree in a particular
instance in its sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In
67
the case of a request for an initial Issuance of a Letter of Credit, such L/C
Application shall specify in form and detail satisfactory to the Issuing Lender:
(i) the proposed issuance date of the requested Letter of Credit (which shall be
a Business Day); (ii) the amount thereof; (iii) the expiry date thereof; (iv)
the name and address of the beneficiary thereof; (v) the documents to be
presented by such beneficiary in case of any drawing thereunder; (vi) the full
text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (vii) such other matters as the Issuing Lender may
require. In the case of a request for an amendment of any outstanding Letter of
Credit, such L/C Application shall specify in form and detail satisfactory to
the Issuing Lender (i) the Letter of Credit to be amended; (ii) the proposed
date of amendment thereof (which shall be a Business Day); (iii) the nature of
the proposed amendment; and (iv) such other matters as the Issuing Lender may
require.
(b) Promptly after receipt of any L/C Application, the
Issuing Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such L/C
Application from the Company and, if not, the Issuing Lender will provide the
Administrative Agent with a copy thereof. Upon receipt by the Issuing Lender of
confirmation from the Administrative Agent that the requested Issuance or
amendment is permitted in accordance with the terms hereof, then, subject to the
terms and conditions hereof, the Issuing Lender shall, on the requested date,
Issue a Letter of Credit for the account of the Company or enter into the
applicable amendment, as the case may be, in each case in accordance with the
Issuing Lender's usual and customary business practices. Immediately upon the
Issuance of each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing Lender a
risk participation in such Letter of Credit in an amount equal to the product of
such Lender's Revolving Credit Percentage multiplied by the amount of such
Letter of Credit.
(c) If the Company so requests in any applicable L/C
Application, the Issuing Lender may, in its sole and absolute discretion, agree
to Issue a Letter of Credit that has automatic renewal provisions (each, an
"AUTO-RENEWAL LETTER OF CREDIT"); provided that any such Auto-Renewal Letter of
Credit must permit the Issuing Lender to prevent any such renewal at least once
in each twelve-month period (commencing with the date of issuance of such Letter
of Credit) by giving prior notice to the beneficiary thereof not later than a
day (the "NONRENEWAL NOTICE DATE") in each such twelve-month period to be agreed
upon at the time such Letter of Credit is issued and; provided further, that the
expiry date of such Auto-Renewal Letter of Credit shall not be later than the
fifth Business Day occurring prior to the Revolving Credit Maturity Date unless
all of the Revolving Credit Lenders shall have approved such expiry date in
writing. Unless otherwise directed by the Issuing Lender, the Company shall not
be required to make a specific request to the Issuing Lender for any such
renewal. Once an Auto-Renewal Letter of Credit has been Issued, the Lenders
shall be deemed to have authorized (but may not require) the Issuing Lender to
permit the renewal of such Letter of Credit at any time to an expiry date not
later than the Revolving Credit Maturity Date; provided, however, that the
Issuing Lender shall not permit any such renewal if (i) the Issuing Lender has
determined that it would have no obligation at such time to issue such Letter of
Credit in its renewed form under the terms hereof (by reason of the provisions
of Section 3.1(b) or otherwise), or (ii) it has received notice (which may be by
telephone or in writing) on or before the day that is two Business Days before
the Nonrenewal Notice Date (A) from the Administrative Agent that the Required
Revolving Credit Lenders have elected not to permit such renewal or (B) from the
Administrative Agent, any
68
Lender or the Company that one or more of the applicable conditions specified in
Section 5.3 is not then satisfied.
(d) Promptly after its delivery of any Letter of Credit
or any amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the Issuing Lender will also deliver to the
Company and the Administrative Agent a true and complete copy of such Letter of
Credit or amendment.
Section 3.3. Risk Participations, Drawings and Reimbursements.
(a) In the event of any request for a drawing under a Letter of Credit by the
beneficiary or transferee thereof, the Issuing Lender will promptly notify the
Company and the Administrative Agent. The Company shall reimburse the Issuing
Lender not later than 3:00 p.m. on each date that any amount is paid by the
Issuing Lender under any Letter of Credit to the extent it has received notice
that such payment is to be made by 1:00 p.m. on such date or, in the event such
notice is received after 1:00 p.m. on such date, by no later than 12:00 p.m. on
the next succeeding Business Day, (each such date, an "HONOR DATE") in an
amount equal to the amount so paid by the Issuing Lender. If the Company fails
to reimburse the Issuing Lender for the full amount of any drawing under any
Letter of Credit by the relevant time on the Honor Date, the Administrative
Agent will promptly notify each Revolving Credit Lender of the relevant Honor
Date, the amount of the unreimbursed drawing, and the amounts of such Lender's
Revolving Credit Percentage thereof. In such event, the Company shall be deemed
to have requested that Base Rate Loans be made by the Revolving Credit Lenders
to be disbursed on the relevant Honor Date in an amount equal to the
unreimbursed amount under such Letter of Credit, without regard to the minimum
and multiples specified in Section 2.3 for the principal amount of Base Rate
Loans, but subject to the amount of the unutilized portion of the Revolving
Credit Commitments and subject to the conditions set forth in Section 5.3 other
than Section 5.3(c). Any notice given by the Issuing Lender or the
Administrative Agent pursuant to this Section 3.3(a) may be oral if immediately
confirmed in writing (including by facsimile); provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.
(b) Each Revolving Credit Lender (including the Revolving
Credit Lender acting as Issuing Lender) shall upon any notice pursuant to
Section 3.3(a) make funds available to the Administrative Agent for the account
of the Issuing Lender at the Agent's Payment Office in an amount equal to its
Revolving Credit Percentage of the amount of the drawing, not later than 1:00
p.m. on the Business Day specified in such notice by the Administrative Agent,
whereupon the participating Revolving Credit Lenders shall (subject to Section
3.3(c)) each be deemed to have made a Revolving Credit Loan consisting of a Base
Rate Loan to the Company in such amount. The Administrative Agent shall remit
the funds so received to the Issuing Lender.
(c) With respect to any unreimbursed drawing that is not
converted into Revolving Credit Loans consisting of Base Rate Loans in whole or
in part, because of the Company's failure to satisfy the conditions set forth in
Section 5.3 (other than Section 5.3(c), which need not be satisfied) or for any
other reason, the Company shall be deemed to have incurred from the Issuing
Lender an L/C Borrowing in the amount of such drawing, which L/C Borrowing shall
be due and payable on demand (together with interest) and shall bear interest at
a rate per annum equal to the Base Rate plus the Applicable Margin then in
effect for Base Rate
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Revolving Credit Loans plus 2% per annum. In such event, each Revolving Credit
Lender's payment to the Issuing Lender pursuant to Section 3.3(b) shall be
deemed payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Revolving Credit Lender in satisfaction of
its participation obligation under this Section 3.3.
(d) Until each Revolving Credit Lender funds its
Revolving Credit Loan or L/C Advance pursuant to this Section 3.3 to reimburse
the Issuing Lender for any amount drawn under any Letter of Credit, interest in
respect of such Lender's Revolving Credit Percentage of such amount shall be
solely for the account of the Issuing Lender.
(e) Each Revolving Credit Lender's obligation in
accordance with this Agreement to make Revolving Credit Loans or L/C Advances,
as contemplated by this Section 3.3, as a result of a drawing under a Letter of
Credit, shall be absolute and unconditional and without recourse to the Issuing
Lender and shall not be affected by any circumstance, including (i) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Credit
Lender may have against the Issuing Lender, the Company or any other Person for
any reason whatsoever, (ii) the occurrence or continuance of a Default, Event of
Default or any event that has resulted in, or could reasonably be expected to
have, a Material Adverse Effect or (iii) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing; provided that
each Revolving Credit Lender's obligation to make Revolving Credit Loans under
this Section 3.3 is subject to the conditions set forth in Section 5.3 (other
than Section 5.3(c), which need not be satisfied). No such revolving of an L/C
Advance shall relieve or otherwise impair the obligation of the Company to
reimburse the Issuing Lender for the amount of any payment made by the Issuing
Lender under any Letter of Credit, together with interest as provided herein.
(f) If any Revolving Credit Lender fails to make
available to the Administrative Agent for the account of the Issuing Lender any
amount required to be paid by such Revolving Credit Lender pursuant to the
foregoing provisions of this Section 3.3 by the time specified in Section
3.3(b), the Issuing Lender shall be entitled to recover from such Revolving
Credit Lender (acting through the Administrative Agent), on demand, such amount
with interest thereon for the period from the date such payment is required to
the date on which such payment is immediately available to the Issuing Lender at
a rate per annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the Issuing Lender submitted to any Revolving Credit Lender
(through the Administrative Agent) with respect to any amounts owing under this
Section 3.3(f) shall be conclusive absent manifest error.
Section 3.4. Repayment of Participations. (a) Upon (and only
upon) receipt by the Administrative Agent for the account of the Issuing Lender
of immediately available funds from the Company (i) in reimbursement of any
payment made by the Issuing Lender under a Letter of Credit with respect to
which any Revolving Credit Lender has paid the Administrative Agent for the
account of the Issuing Lender for such Revolving Credit Lender's participation
in such Letter of Credit pursuant to Section 3.3 or (ii) in payment of interest
thereon (whether directly from the Company or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will pay to each Revolving Credit Lender, in like funds as
those received by the Administrative Agent for the account of the Issuing
Lender, the amount of such Revolving Credit Lender's Revolving Credit
Percentage of
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such funds (appropriately adjusted, in the case of payment of interest, to
reflect the period of time during which such Revolving Credit Lender's L/C
Advance was outstanding), and the Issuing Lender shall receive the amount of
the Revolving Credit Percentage of such funds of any Revolving Credit Lender
that did not so pay the Administrative Agent for the account of the Issuing
Lender.
(b) If any payment received by the Administrative Agent
for the account of the Issuing Lender pursuant to Section 3.3(a) is required to
be returned under any of the circumstances described in Section 11.6 (including
pursuant to any settlement entered into by the Issuing Lender in its
discretion), each Revolving Credit Lender shall pay the Administrative Agent for
the account of the Issuing Lender its Revolving Credit Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Revolving Credit Lender, at a
rate per annum equal to the Federal Funds Rate from time to time in effect.
Section 3.5. Role of the Issuing Lender Each Revolving Credit
Lender and the Company agree that, in paying any drawing under a Letter of
Credit, the Issuing Lender shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document. None of the Issuing Lender, any Agent-Related
Person nor any of the respective correspondents, participants or assignees of
the Issuing Lender shall be liable to any Lender for (a) any action taken or
omitted in connection herewith at the request or with the approval of the
Lenders, the Required Lenders or the Required Revolving Credit Lenders, as
applicable; (b) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (c) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
L/C Application. The Company hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Company's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the Issuing Lender, any Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuing Lender shall be liable
or responsible for any of the matters described in Section 3.6; provided,
however, that anything in such clauses to the contrary notwithstanding, the
Company may have a claim against the Issuing Lender, and the Issuing Lender may
be liable to the Company, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the Company which
the Company proves were caused by the Issuing Lender's willful misconduct or
gross negligence or the Issuing Lender's willful failure to pay under any.
Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions of a
Letter of Credit. In furtherance and not in limitation of the foregoing, the
Issuing Lender may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary, and the Issuing Lender shall not be responsible for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
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Section 3.6. Obligations Absolute. The obligations of the
Company under this Agreement and any L/C-Related Document to reimburse the
Issuing Lender for a drawing under a Letter of Credit, and to repay any L/C
Borrowing and any drawing under a Letter of Credit converted into Revolving
Credit Loans, shall be unconditional and irrevocable, and shall be paid strictly
in accordance with the terms of this Agreement and each such other L/C-Related
Document under all circumstances, including the following:
(a) any lack of validity or enforceability of this
Agreement or any L/C-Related Document;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the obligations of the
Company in respect of any Letter of Credit or any other amendment or
waiver of or any consent to departure from all or any of the
L/C-Related Documents;
(c) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any beneficiary or
any transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Issuing Lender
or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C-Related Documents or any
unrelated transaction;
(d) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit;
(e) any payment by the Issuing Lender under any Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by the Issuing Lender under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
any Letter of Credit, including any arising in connection with any
Insolvency Proceeding;
(f) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the obligations of the
Company in respect of any Letter of Credit; or
(g) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the Company or a guarantor.
The Company shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Company's instructions or other irregularity, the
Company will immediately notify the Issuing
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Lender. The Company shall have conclusively deemed to have waived any such claim
against the Issuing Lender and its correspondents unless such notice is given as
aforesaid.
Section 3.7. Cash Collateral. Upon the request of the
Administrative Agent, (a) if the Issuing Lender has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in an
L/C Borrowing, or (b) if, as of the Revolving Credit Maturity Date, any Letter
of Credit may for any reason remain outstanding and partially or wholly undrawn,
the Company shall immediately Cash Collateralize the then Effective Amount of
all L/C Obligations (in an amount equal to 105% of the Effective Amount
determined as of the date of such L/C Borrowing or the Revolving Credit Maturity
Date, as the case may be). For purposes hereof, "CASH COLLATERALIZE" means to
pledge and deposit with or deliver to the Collateral Agent, for the benefit of
the Issuing Lender and the Revolving Credit Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form
and substance satisfactory to the Collateral Agent and the Issuing Lender (which
documents are hereby consented to by the Lenders). Derivatives of such term have
corresponding meanings. The Company hereby grants to the Collateral Agent, for
the benefit of the Issuing Lender and the Revolving Credit Lenders, a security
interest in all such cash, deposit accounts and all balances therein and all
proceeds of the foregoing. Cash collateral shall be maintained in blocked,
non-interest bearing deposit accounts at Bank of America. If at any time the
Collateral Agent determines that any funds held as Cash Collateral are subject
to any right or claim of any Person other than the Collateral Agent or that the
total amount of such funds is less than 105% of the aggregate Effective Amount
of all L/C Obligations, the Company will, forthwith upon demand by the
Collateral Agent, pay to the Collateral Agent, as additional funds to be
deposited and held in the deposit accounts at Bank of America as aforesaid, an
amount equal to the excess of (i) 105% of such aggregate Effective Amount over
(ii) the total amount of funds, if any, then held as Cash Collateral that the
Collateral Agent determines to be free and clear of any such right and claim.
Upon the drawing of any Letter of Credit for which funds are on deposit as Cash
Collateral, such fluids shall be applied, to the extent permitted under
applicable law, to reimburse the Issuing Lender.
Section 3.8. Letter of Credit Fees. (a) The Company shall pay
to the Administrative Agent for the account of each Revolving Credit Lender in
accordance with its Revolving Credit Percentage a Letter of Credit fee for each
Letter of Credit equal to the Applicable Percentage for the relevant Letter of
Credit as in effect from time to time multiplied by the daily maximum amount
available to be drawn under such Letter of Credit (whether or not such maximum
amount is then in effect under such Letter of Credit). Such Letter of Credit
fees shall be computed on a quarterly basis in arrears. Such Letter of Credit
fees shall be due and payable on the last Business Day of each January, April,
July and October, commencing with the first such date to occur after the
issuance or such Letter of Credit, on the relevant expiration date for such
Letter of Credit and thereafter on demand; provided that during the existence of
any Event of Default, the Letter of Credit fees set forth in this Section 3.8(a)
shall be increased by 2% per annum. If there is any change in the Applicable
Percentage during any quarter, the daily maximum amount of each Letter of Credit
shall be computed and multiplied by such Applicable Percentage separately for
each period during such quarter that such Applicable Percentage was in effect.
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(b) The Company shall pay to the Issuing Lender a letter
of credit fronting fee for each Letter of Credit Issued equal to 0.25% per annum
of the daily maximum amount available to be drawn on such Letter of Credit,
computed for each day such Letter of Credit is outstanding, on the last Business
Day of each fiscal quarter and on the Revolving Credit Loan Maturity Date (or
such later date on which such Letter of Credit shall expire or be fully drawn).
(c) The letter of credit fees payable under Section
3.8(a) and the fronting fees payable under Section 3.8(b) shall be due and
payable quarterly in arrears on the last Business Day of each January, April,
July and October, commencing on the first such date to occur after the date
hereof during which Letters of Credit are outstanding to the Revolving Credit
Maturity Date (or such later date upon which all outstanding Letters of Credit
shall expire or be fully drawn), with the final payment to be made on the
Revolving Credit Maturity Date (or such later date). For purposes of calculating
the fees payable under Section 3.8(a) and Section 3.8(b), any undrawn Commercial
Letter of Credit shall be considered outstanding and available to be drawn upon
for 15 days after its expiry date.
(d) The Company shall pay to the Issuing Lender from time
to time on demand the normal issuance, payment, amendment and other processing
fees, and other standard costs and charges, of the Issuing Lender relating to
letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.
Section 3.9. Applicability of ISP98 and UCP; Conflict with L/C
Application, (a) Unless otherwise expressly agreed by the Issuing Lender and the
Company when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance) shall apply to each Standby Letter of Credit, and (ii) the rules of
the Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce (the "ICC") at the time of
issuance (including the ICC decision published by the Commission on Banking
Technique and Practice on April 6,1998 regarding the European single currency
(euro)) shall apply to each Commercial Letter of Credit.
(b) In the event of any conflict between the terms hereof
and the terms of any L/C Application, the terms hereof shall control.
Section 3.10. Non-Dollar Letters of Credit. The Company, the
Administrative Agent, the Issuing Lender and all of the Lenders (a) agree that,
upon the request of the Company, the Issuing Lender may (in its sole
discretion) issue Letters of Credit ("NON-DOLLAR LETTERS OF CREDIT") in
currencies other than Dollars and (b) further agree as follows with respect to
such Non-Dollar Letters of Credit:
(i) The Company agrees that its reimbursement obligation
under Section 3.3(a) and any resulting L/C Borrowing in each case in
respect of a drawing under any Non-Dollar Letter of Credit, (i) shall
be payable in Dollars at the Dollar Equivalent of such obligation in
the currency in which such Non-Dollar Letter of Credit was issued
(determined on the date of payment) and (ii) shall bear interest at a
rate per
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annum equal to the sum of the Overnight Rate plus the Applicable Rate
for Eurodollar Rate Revolving Credit Loans plus 3% for each day from
and including the Honor Date to but excluding the date such obligation
is paid in full; provided that any payment received after 3:00
p.m. on any day shall be deemed received on the following Business Day.
(ii) Each Lender agrees that its obligation to make
Revolving Credit Loans under Section 3.3(a) and to make L/C Advances
for any unpaid reimbursement obligation or L/C Borrowing in respect of
a drawing under any Non-Dollar Letter of Credit shall be payable in
Dollars at the Dollar Equivalent of such obligation in the currency in
which such Non-Dollar Letter of Credit was issued (calculated on the
date of payment) (and any such amount which is not paid when due shall
bear interest at a rate per annum equal to the Overnight Rate plus,
beginning on the third Business Day after such amount was due, the
Applicable Rate for Eurodollar Rate Revolving Credit Loans as in effect
from time to time).
(iii) For purposes of determining whether there is
availability for the Company to request, continue or convert any Loan,
or request, extend or increase the face amount of any Letter of Credit,
the Dollar Equivalent of the Effective Amount of each Non-Dollar Letter
of Credit shall be calculated on the date such Loan is to be made,
continued or converted or such Letter of Credit is to be issued,
extended or increased.
(iv) For purposes of determining (A) the amount of the
unused portion of the Revolving Credit Commitments under Section
2.10(c),(B) the letter of credit fee under Section 3.8(a) and (C) the
letter of credit fronting fee under Section 3.8(b\ the Dollar
Equivalent of the Effective Amount of any Non-Dollar Letter of Credit
shall be determined on each of (1) the date of an issuance, extension
or change in the stated amount of such Non-Dollar Letter of Credit, (2)
the date of any payment by the Issuing Lender in respect of a drawing
under such Non-Dollar Letter of Credit, (3) the last day of each
calendar month and (4) each day on which the aggregate amount of the
Revolving Credit Commitments and/or L/C Commitment is reduced.
(v) If, on the last day of any calendar month or any day
on which the aggregate amount of the Revolving Credit Commitments
and/or L/C Commitment is reduced, the sum of the Effective Amount of
all Revolving Credit Loans plus the Effective Amount of all Letters of
Credit plus the Effective Amount of all Swingline Loans (valuing the
Effective Amount of, and all reimbursement obligations and L/C
Borrowings of the Company in respect of, any Non-Dollar Letter of
Credit at the Dollar Equivalent thereof as of such day) would exceed
the aggregate amount of the Revolving Credit Commitments, then the
Company will immediately eliminate such excess by prepaying Revolving
Credit Loans or Swingline Loans and/or causing one or more Letters of
Credit to be reduced or terminated.
(vi) If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due in respect of any
Non-Dollar Letter of Credit in one currency into another currency, the
rate of exchange used shall be that at which in accordance with normal
banking procedures the Issuing Lender could purchase the first currency
with
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such other currency on the Business Day preceding that on which final
judgment is given. The obligation of the Company in respect of any such
sum due from it to the Administrative Agent, the Issuing Lender or any
Lender hereunder shall, notwithstanding any judgment in a currency (the
"JUDGMENT CURRENCY")other than that in which such sum is denominated in
accordance with the applicable provisions of the applicable Non- Dollar
Letter of Credit (the "AGREEMENT CURRENCY"), be discharged only to the
extent that on the Business Day following receipt by the Issuing Lender
of any sum adjudged to be so due in the Judgment Currency, the Issuing
Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency. If the amount of the
Agreement Currency so purchased is less than the sum originally due to
the Issuing Lender in the Agreement Currency, the Company agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify
the Administrative Agent, the Issuing Lender or the Lender to whom such
obligation was owing against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to the
Issuing Lender in such currency, the Issuing Lender agrees to return
the amount of any excess to the Company (or to any other Person who may
be entitled thereto under applicable law).
(vii) For purposes of this Section "OVERNIGHT RATE" means,
for any day, the rate of interest per annum at which overnight deposits
in the applicable currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be
offered for such day by the London Branch of Bank of America to major
banks in the London or other applicable offshore interbank market. The
Overnight Rate for any day which is not a Business Day (or on which
dealings are not carried on in the applicable offshore interbank
market) shall be the Overnight Rate for the immediately preceding
Business Day.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 4.1. Taxes. (a) Unless otherwise required by law, any
and all payments by any Loan Party to or for the account of any Agent or Lender
under any Loan Document shall be made free and clear of and without deduction
for any and all present or future taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and all liabilities with
respect thereto, excluding, in the case of each Agent and Lender, taxes imposed
on or measured by its overall net income, and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political subdivision
thereof) under the laws of which such Agent or Lender, as the case may be, is
organized or maintains a Lending Office (all such nonexcluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges,
and liabilities being hereinafter referred to as "TAXES") and all such excluded
taxes, duties, levies, imposts, deductions, assessments, fee, withholding or
similar charges, and liabilities being hereinafter referred to as "EXCLUDED
TAXES"). If any Loan Party shall be required by any law to deduct any Taxes from
or in respect of any sum payable under any Loan Document to any Agent or Lender,
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section), such Agent or Lender, as the case may be, receives an
amount equal to the
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sum it would have received had no such deductions been made, (ii) the relevant
Loan Party shall make such deductions, (iii) the relevant Loan Party shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable laws, and (iv) within 30 days after the date of
such payment, the relevant Loan Party, as the case may be, shall furnish to the
Administrative Agent (which shall forward the same to the relevant Agent or
Lender) the original or a certified copy of a receipt evidencing payment thereof
or other evidence of payment satisfactory to the Administrative Agent.
(b) In addition, the Company agrees to and to cause each
other Loan Party (other than DMFC) to pay any and all present or future stamp,
court, intangible, mortgage recording or documentary taxes and any other excise
or property taxes or charges or similar levies which arise from any payment made
under any Loan Document or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, any Loan Document
(hereinafter referred to as "OTHER TAXES").
(c) If any Loan Party shall be required to deduct or pay
any Taxes or Other Taxes from or in respect of any sum payable under any Loan
Document to any Agent or Lender, such Loan Party shall also pay to the relevant
Agent or Lender, at the time interest is paid, such additional amount that such
Agent or Lender specifies is necessary to preserve the after-tax yield (after
factoring in all taxes, including taxes imposed on or measured by net income)
that such Agent or Lender would have received if such Taxes or Other Taxes had
not been imposed.
(d) The Company agrees to indemnify each Agent and Lender
for (i) the full amount of Taxes and Other Taxes (including any Taxes or Other
Taxes imposed or asserted by any jurisdiction on amounts payable under this
Section) paid by such Agent or Lender, (ii) amounts payable under Section 4.
l(c) and (iii) any liability (including additions to tax, penalties, interest
and expenses) arising therefrom or with respect thereto, in each case whether or
not such Taxes or Other Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority. Payment under this Section 4.1(d) shall be
made within 30 days after the date any Agent or Lender makes a demand therefor.
(e) If the Company is required to pay additional amounts
to any Lender or any Agent pursuant to this Section 4.1, then such Lender or
Agent shall use reasonable efforts (consistent with internal policy and legal
and regulatory restrictions) to change the jurisdiction of its Lending Office so
as to reduce or eliminate any such additional payment by the Company which may
thereafter accrue, if such change in the good faith judgment of such Lender or
Agent is not otherwise materially disadvantageous to such Lender or Agent.
(f) If the Company pays any additional amounts in respect
of any Taxes or Other Taxes pursuant to this Section 4.1 which results in any
Lender or Agent actually receiving from the taxing authority imposing such Taxes
or Other Taxes a refund of such Taxes or Other Taxes, such Lender shall within
90 days of receipt of such refund pay to the Company an amount equal to the
amount of such refund actually received by such Lender or Agent and reasonably
attributable to Taxes or Other Taxes that have been paid by the Company under
this Section 4.1 with respect to such refund, net of all out of pocket expenses,
and without any interest; provided that each Lender or Agent shall only be
required to pay to the Company such amounts as such
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Lender or Agent, as the case may be, in its good faith judgment, determines are
attributable to taxes or Other Taxes paid by the Company.
(g) Without prejudice to the survival of any other
agreement of the Company hereunder or under any other Loan Document, the
agreements and obligations of the Company contained in this Section 4.1 shall
survive the payment in full of principal and interest hereunder and under the
Notes.
Section 4.2. Illegality. If any Lender determines that any law
has made it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund Eurocurrency Rate Loans or Eurodollar Rate Loans, as the case may be, or to
determine or charge interest rates based upon the Eurocurrency Rate, then, on
notice thereof by such Lender to the Company through the Administrative Agent,
any obligation of such Lender to make or continue Eurocurrency Rate Loans or
Eurodollar Rate Loans, as the case may be, or to convert Base Rate Loans to
Eurocurrency Rate Loans or Eurodollar Rate Loans, as the case may be, shall be
suspended until such Lender notifies the Administrative Agent and the Company
that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Company shall, upon demand from such Lender (with a
copy to the Administrative Agent), prepay or, if applicable, (a) convert all
Eurocurrency Rate Loans or Eurodollar Rate Loans, as the case may be, of such
Lender to Base Rate Loans, either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurocurrency
Rate Loans or Eurodollar Rate Loans, as the case may be, to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurocurrency Rate Loans or Eurodollar Rate Loans, as the case may be, and (b) in
the case of any Eurocurrency Rate Loan, redenominated such Eurocurrency Rate
Loan into a Eurodollar Rate B Loan thereof. Upon any such prepayment, conversion
or exchange, the Company shall also pay accrued interest on the amount so
prepaid, converted or redenominated. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
Section 4.3. Inability to Determine Rates. If the Required
Lenders determine that for any reason adequate and reasonable means do not exist
for determining the Eurodollar Base Rate or Euribo Rate for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan or Eurodollar
Rate Loans, as the case may be, or that the Eurodollar Base Rate or Euribo Rate,
as the case may be, for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such
Lenders of funding such Loan, the Administrative Agent will promptly so notify
the Company and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Eurocurrency Rate Loans or Eurodollar Rate Loans, as the case may
be, shall be suspended until the Administrative Agent (upon the instruction of
the Required Lenders) revokes such notice. Upon receipt of such notice, the
Company may revoke any pending request for a conversion to or continuation of
Eurocurrency Rate Loans or Eurodollar Rate Loans, as the case may be, or,
failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
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Section 4.4. Increased Cost and Reduced Return: Capital
Adequacy; Reserves on Eurocurrency Rate Loans and Eurodollar Rate Loans, (a) If
any Lender determines that as a result of the introduction of or any change in
or in the interpretation of any law occurring after the date hereof, or such
Lender's compliance therewith, there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining Eurocurrency Rate
Loans or Eurodollar Rate Loans, as the case may be, or issuing or participating
in Letters of Credit, or a reduction in the amount received or receivable by
such Lender in connection with any of the foregoing (excluding for purposes of
this Section 4.4(a) any such increased costs or reduction in amount resulting
from (i) Taxes or Other Taxes (as to which Section 4.1 shall govern), (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or any other jurisdiction or any political subdivision of
either thereof under the laws of which such Lender is organized or has its
Lending Office, and (iii) reserve requirements utilized in the determination of
the Eurocurrency Rate or Eurodollar Rate, as the case may be), then from time
to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Company shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any
law regarding capital adequacy or any change therein or in the interpretation
thereof occurring after the date hereof or compliance by such Lender (or its
Lending Office) therewith, has the effect of reducing the rate of return on the
capital of such Lender or any corporation controlling such Lender as a
consequence of such Lender's obligations hereunder (taking into consideration
its policies with respect to capital adequacy and such Lender's desired return
on capital), then from time to time upon demand of such Lender (with a copy of
such demand to the Administrative Agent), the Company shall pay to such Lender
such additional amounts as will compensate such Lender for such reduction.
(c) This Section 4.4 shall not require the Company to
reimburse any Agent or Lender for any Taxes which are otherwise fully covered by
the indemnity set forth in Section 4.1 or constitute Excluded Taxes.
Section 4.5. Funding Losses. Upon demand of any Lender
(with a copy to the Administrative Agent) from time to time, the Company shall
promptly compensate such Lender for and hold such Lender harmless from any loss,
cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment
of any Loan other than a Base Rate Loan on a day other than the last
day of the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise);
(b) any failure by the Company (for a reason other than
the failure of such Lender to make a Loan) to prepay, borrow, continue
or convert any Loan other than a Base Rate Loan on the date or in the
amount notified by the Company; or
(c) any assignment of a Eurocurrency Rate Loan or
Eurodollar Rate Loan, as the case may be, on a day other than the last
day of the Interest Period therefor as a result of a request by the
Company pursuant to Section 11.18;
79
including any loss or expense (but excluding any loss of anticipated profits)
arising from the liquidation or reemployment of funds obtained by it to maintain
such Loan or from fees payable to terminate the deposits from which such funds
were obtained. The Company shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Company to
the Lenders under this Section 4.5, each Lender shall be deemed to have funded
each Eurocurrency Rate Loan or Eurodollar Rate Loan, as the case may be, made by
it at the Eurodollar Base Rate or Euribo Rate, as the case may be, used in
determining the Eurodollar Rate or Eurocurrency Rate, as the case may be, for
such Loan by a matching deposit or other borrowing in the London interbank
eurocurrency market for a comparable amount and for a comparable period, whether
or not such Eurocurrency Rate Loan or Eurodollar Rate Loan, as the case may be,
was in fact so funded.
Section 4.6. Matters Applicable to All Requests for
Compensation, (a) Any Lender or Agent claiming reimbursement or compensation
under this Article IV shall deliver to the Company (with a copy to the
Administrative Agent) a certificate setting forth in reasonable detail the basis
for such claim and a calculation of the amount payable to such Lender or Agent
and such certificate shall be prima facie evidence thereof. In determining such
amount, any Agent or Lender may use any reasonable averaging or attribution
methods. The Company shall not be required to make any payment to any Agent or
Lender pursuant to this Section 4.6 which is attributable to any period of time
occurring more than 180 days prior to the date of any certificate described in
the first sentence of this Section 4.6 delivered by such Lender or Agent to the
Company; provided that if the event or circumstance giving rise to any such
payment is retroactive, the 180-day period referred to above will be extended to
include the period of retroactive effect of the event or circumstance giving
rise to such payment.
(b) Upon any Lender's making a claim for compensation
under Section 4.1. or Section 4.4, or upon the occurrence of the circumstances
described in Section 4.2 with respect to such Lender, the Company may replace
such Lender in accordance with Section 11.18.
(c) Each Lender and Agent agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to mitigate any amounts that would otherwise be payable by the
Company pursuant to this Article IV; provided that no Lender or Agent shall
required to take any action or step which would in the good faith judgment of
such Agent or Lender be otherwise disadvantageous to such Lender or Agent.
Section 4.7. Survival. All of the Company's and DMFC's
obligations under this Article IV shall survive termination of the Commitments
and repayment of all other Obligations hereunder.
ARTICLE V
CONDITIONS PRECEDENT
Section 5.1. Conditions to Making of Term Loans. The
obligation of any Lender to make its initial Term Loan shall become effective on
the date each of the following conditions
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precedent has been satisfied or waived with the consent of the Required Lenders
(or, with respect to Sections 5.1(b), with the consent of the Persons
entitled to receive payment in respect thereof) (such date being the "INITIAL
DISTRIBUTION DATE").
(a) The Administrative Agent's receipt of the following,
each of which shall be originals or facsimiles (followed promptly by
originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Initial
Distribution Date (or, in the case of certificates of governmental
officials, a recent date before the Initial Distribution Date) and each
in form and substance satisfactory to the Agents and the Arrangers and
their legal counsel:
(i) executed counterparts of this Agreement,
sufficient in number for distribution to each Agent, each
Lender and the Company;
(ii) a Note executed by the Company in favor of
each Lender requesting a Note pursuant to Section 2.2(b);
(iii) a guaranty agreement, in substantially the
form of Exhibit L-l hereto (as amended, the "HEINZ GUARANTY"),
duly executed by Heinz; and
(iv) such other assurances, certificates,
documents, consents or opinions as any Agent or the Required
Lenders reasonably may require.
(b) Any fees required to be paid on or before the Initial
Distribution Date shall have been paid.
(c) The Initial Distribution Date shall have occurred on
or before March 31, 2003.
(d) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Company, Heinz, Existing Del
Monte, DMFC or any of their respective Subsidiaries pending or
threatened before any Governmental Authority or arbitrator that (i)
could be reasonably likely to have a Material Adverse Effect other than
the matters described on Schedule 6.5 hereto (the "DISCLOSED
LITIGATION") or (ii) purports to affect the legality, validity or
enforceability of any Loan Document or the consummation of the
Transactions, and there shall have been no adverse change in the
status, or financial effect on, the Company, Heinz, Existing Del Monte,
DMFC or any of their respective Subsidiaries, of the Disclosed
Litigation from that described on Schedule 6.5 hereto.
(e) All governmental authorizations and all third party
consents and approvals necessary in connection with the Transactions
shall have been obtained (without the imposition of any conditions that
are not acceptable to the Lenders) and shall remain in effect; all
applicable waiting periods in connection with the Transactions shall
have expired without any action being taken by any competent authority,
and no law shall be applicable in the judgment of the Lenders, in each
case that restrains, prevents or imposes materially adverse conditions
upon the Transactions or the rights of the Company, Heinz, Existing Del
Monte, DMFC or any of their respective Subsidiaries freely to transfer
or
81
otherwise dispose of, or to create any Lien on, any properties now
owned or hereafter acquired by any of them.
(f) The Agreement and Plan of Merger shall be in full
force and effect.
(g) There shall not have occurred any event that could
reasonably be expected to result in any Subordinated Debt (including,
without limitation, the Existing Subordinated Notes) becoming due in
advance of its regularly scheduled maturity or require that the
Company, Existing Del Monte, DMFC or any of their respective
Subsidiaries repurchase or redeem any such Subordinated Debt in advance
of its regularly scheduled maturity.
Section 5.2. Conditions to Occurrence of the Time of Merger.
The obligation of any Lender to make any additional Term Loan or Revolving
Credit Loan or of the Issuing Lender to Issue any Letter of Credit pursuant to
the terms of this Agreement shall become effective at the time each of the
following conditions precedent has been satisfied or waived with the consent of
the Required Lenders (or, with respect to Sections 5.2 (b) and 5.2 (c), with the
consent of the Persons entitled to receive payments in respect thereof) (such
time being the "TIME OF MERGER"):
(a) The Administrative Agent's receipt of the following,
each of which shall be originals or facsimiles (followed promptly by
originals) unless otherwise specified each properly executed by a
Responsible Officer of the signing Loan Party, each dated on the date
on which the Time of Merger occurs (or, in the case of certificates of
government officials a recent date before such date) and each in form
and substance satisfactory to the Agents and the Arrangers and their
legal counsel:
(i) executed counterparts of a guaranty,
sufficient in number for distribution to each Agent and each
Lender, in substantially the form of Exhibit L-2 hereto (as
amended, the "DMFC GUARANTY"), duly executed by DMFC;
(ii) executed counterparts of a guaranty,
sufficient in number for distribution each Agent and each
Lender, in substantially the form of Exhibit L-3 hereto
(together with each other guaranty agreement and guaranty
agreement supplement delivered pursuant to the Loan Documents,
in each case as amended, the "SUBSIDIARY GUARANTY", duly
executed by each of the Subsidiary Guarantors);
(iii) a security agreement, in substantially the
form of Exhibit N hereto (together with each other security
agreement and security agreement supplement delivered pursuant
to Section 7.15, in each case as amended, the "SECURITY
AGREEMENT"), duly executed by each of the Loan Parties,
together with:
(A) certificates representing the
Pledged Interests referred to therein accompanied by
undated stock powers executed in blank and
instruments evidencing the Pledged Debt referred to
therein indorsed in blank,
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(B) proper termination statements (Form
UCC-3 or a comparable form) or the equivalent thereof
under the Uniform Commercial Code (or any similar
applicable law) of all jurisdictions that may be
necessary or that the Collateral Agent may deem
necessary in order to terminate or amend existing
Liens on the Collateral described in the Security
Agreement, other than with respect to any financing
statements which identify Bank of America, N.A., as
agent as the secured party,
(C) proper financing statements (Form
UCC-1 or a comparable form) or the equivalent thereof
under the Uniform Commercial Code (or any similar
applicable law), duly executed on or before the Time
of Merger of all jurisdictions that the Collateral
Agent may deem necessary in order to perfect the
Liens created under the Security Agreement, covering
the Collateral described in the Security Agreement,
(D) a consent to assignment of each of
the Related Documents and all of the Company's and
DMFC's rights in respect of any other agreement,
instruments and other documents delivered in
connection therewith in form and substance
satisfactory to the Collateral Agent duly executed by
Heinz and Heinz Finance,
(E) evidence of the insurance required
by the terms of the Security Agreement, and
(F) evidence that all other action that
the Collateral Agent may deem necessary or desirable
in order to perfect and protect the first priority
liens and security interests created under the
Security Agreement has been taken (including, without
limitation, receipt of duly executed payoff letters,
UCC-3 termination statements and landlords' and
bailees' waiver and consent agreements);
(iv) an intellectual property security agreement,
in substantially the form of Exhibit P hereto (together with
each other intellectual property security agreement and
intellectual property security agreement supplement delivered
pursuant to Section 7.15, in each case as amended, the
"INTELLECTUAL PROPERTY SECURITY AGREEMENT"), duly executed by
the Company and each other Loan Party, together with evidence
that all action that the Administrative Agent may deem
reasonably necessary or desirable in order to perfect and
protect the first priority liens and security interests
created under the Intellectual Property Security Agreement has
been taken;
(v) such certificates of resolutions or other
action, incumbency certificates or other certificates of
Responsible Officers of each Loan Party (after giving effect
to the Merger) as the Administrative Agent may require
evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized
83
to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan
Party is a party or is to be a party;
(vi) such documents and certifications as the
Administrative Agent may reasonably require to evidence that
each Loan Party (after giving effect to the Merger) is duly
organized or formed, and that each Loan Party is validly
existing, in good standing (to the extent applicable) in any
relevant jurisdiction and qualified to engage in business in
each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such
qualification;
(vii) a favorable opinion of Xxxxxx, Xxxx &
Xxxxxxxx LLP, special counsel to the Loan Parties (after
giving effect to the Merger), in substantially the form of
Exhibit M-l;
(viii) a favorable opinion of internal counsel to
each of the Loan Parties (after giving effect to the Merger)
in substantially the form of Exhibit M-2;
(ix) executed counterparts of this Agreement
countersigned by Del Monte Company (after giving effect to the
Merger) and ratifying the terms of this Agreement, sufficient
in number for distribution to each Agent, Lender and the
Company;
(x) a certificate of a Responsible Officer of
each Loan Party (after giving effect to the Merger) either (A)
certifying that all consents, licenses and approvals required
in connection with the execution, delivery and performance by
such Loan Party and the validity against such Loan Party of
the Loan Documents to which it is a party have be obtained,
and such consents, licenses and approvals shall be in full
force and effect or (B) stating that no such consents,
licenses or approvals are so required;
(xi) a certificate signed by a Responsible
Officer of each of the Company and DMFC certifying (A) that
the conditions specified in Sections 5.3(a) and 5.3(b) have
been satisfied and (B) that there has been no event or
circumstance since June 30, 2002 that has had or would be
reasonably expected to have, either individually or in the
aggregate, before and after giving pro forma effect to the
Transaction, a Material Adverse Effect;
(xii) pro forma financial statements as to the
Company (after giving effect to the Merger) and forecasts
prepared by management of the Company, in form and substance
satisfactory to the Arrangers, of balance sheets, income
statements and cash flow statements on an annual basis for
each year following the Initial Distribution Date until the
ninth anniversary of the Initial Distribution Date;
(xiii) audited statements of assets and liabilities
of the Businesses as of May 1, 2002, May 2, 2001 and May 3,
2000 and audited combined statements of operations (and for
the year ended May 2, 2001, audited combined statements of
cash flows) of the Businesses for the years ended May 1,
2002, May 2, 2001 and
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May 3, 2000, in each case which financial statements are
consistent in all material respects with the information
relating thereto furnished to the Agents, Arrangers and
Lenders pursuant to the Information Memorandum;
(xiv) certified copies of each of the Related
Documents, duly executed by the parties thereto and in form
and substance satisfactory to the Lenders, together with all
agreements, instruments and other documents delivered in
connection therewith as the Administrative Agent shall
request;
(xv) certified copies of all of the New
Subordinated Notes Documents, duly executed by the parties
thereto and in form and substance satisfactory to the Lenders,
together with all agreements, instruments and other documents
delivered in connection therewith as the Administrative Agent
shall request;
(xvi) a Solvency Certificate executed by the
Treasurer of each Loan Party (after giving effect to the
Merger);
(xvii) evidence that all insurance required to be
maintained pursuant to the Loan Documents has been obtained
and is in effect;
(xviii) certified copies of a certificate of merger
or other confirmation satisfactory to the Arrangers of the
consummation of the Merger from the Secretary of State of the
State of Delaware and the State of New York; and
(xix) evidence that the Existing Credit Facility
has been or concurrently with the Time of Merger is being
terminated and all Liens securing obligations under the
Existing Credit Facility have been or concurrently at the Time
of Merger are being released.
(b) Any fees required to be paid on or before the Time of
Merger shall have been paid.
(c) The Company shall have paid all Attorney Costs of the
Agents and the Arrangers to the extent invoiced at least 2 days prior
to the Initial Distribution Date.
(d) The Initial Distribution Date shall have occurred.
(e) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of their
respective Subsidiaries pending or threatened before any Governmental
Authority or arbitrator that (i) other than the Disclosed Litigation,
could be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of any Loan
Document or the consummation of the Transactions, and there shall have
been no material adverse change in the status, or financial effect on,
any Loan Party or any of their respective Subsidiaries, of the
Disclosed Litigation from that described on Schedule 6.5 hereto.
(f) All governmental authorizations and all third party
consents and approvals necessary in connection with the Transactions
shall have been obtained (without the
85
imposition of any conditions that are not acceptable to the Lenders)
and shall remain in effect; all applicable waiting periods in
connection with the Transactions shall have expired without any action
being taken by any competent authority, and no law shall be applicable
in the judgment of the Lenders, in each case that restrains, prevents
or imposes materially adverse conditions upon the Transactions or the
rights of the Loan Parties or any of their respective Subsidiaries
freely to transfer or otherwise dispose of, or to create any Lien on,
any properties now owned or hereafter acquired by any of them.
(g) The Transactions shall have been consummated in
accordance with the terms of the Agreement and Plan of Merger and the
Separation Agreement, without any waiver or amendment not consented to
by the Arrangers of any term, provision or condition set forth therein
(other than Section 8.2(c)(ii) of the Agreement and Plan of Merger),
and in compliance with all applicable Requirements of Law.
(h) The Agreement and Plan of Merger shall be in full
force and effect.
(i) The Arrangers shall be satisfied that all Existing
Debt, other than Surviving Debt, has been prepaid, redeemed or defeased
in full or otherwise satisfied and extinguished and all Surviving Debt
shall be on terms and conditions satisfactory to the Arrangers.
(j) After giving effect to the Transactions, there shall
not have occurred any event that could reasonably be expected to result
in any Subordinated Debt (including, without limitation, the Existing
Subordinated Notes) becoming due in advance of its regularly scheduled
maturity or require that the Company or any other Loan Party repurchase
or redeem any such Subordinated Debt in advance of its regularly
scheduled maturity.
Section 5.3. Conditions to All Credit Extensions. The
obligation of each Lender to make any Loan to be made by it and the obligation
of the Issuing Lender to issue any Letter of Credit is subject to the
satisfaction of the following conditions precedent on the relevant Borrowing
Date or Issuing Date:
(a) The representations and warranties of the Company and
each other Loan Party contained in Article VI or any other Loan
Document, or which are contained in any document furnished at any time
under or in connection herewith or therewith, shall be true and correct
in all material respects on and as of the date of such credit extension
(provided that with respect to the initial credit extension, all such
representations and warranties shall only be required to be true and
correct after giving pro forma effect to the Merger), except to the
extent that such representations and warranties specifically refer to
an earlier date, in which case they shall be true and correct as of
such earlier date.
(b) No Default or Event of Default shall exist, or would
result from the making of such Loan or the Issuance of such Letter of
Credit from the application of the proceeds therefrom; provided that
with respect to the Borrowings to be made on or prior to the Time of
Merger there shall be no Default or Event of Default after giving pro
forma effect to the consummation of the Transactions.
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(c) In the case of any requested making of a Loan, the
Administrative Agent shall have received a Notice of Borrowing (either
by telephone or in writing as provided for in Section 2.3) in respect
of such Loan and, in the case of any requested Issuance of a Letter of
Credit, the Issuing Lender and the Administrative Agent shall have
received an L/C Application.
(d) At the time of the making of any Revolving Credit
Loan or Swingline Loan or the Issuance of any Letter of Credit, the sum
of the Effective Amount of all L/C Obligations, Revolving Credit Loans
and Swingline Loans does not exceed the Borrowing Base at such time
after giving effect to the making of such Loan or the Issuance of such
Letter of Credit.
Each Notice of Borrowing or L/C Application submitted by the Company shall be
deemed to be a representation and warranty that the conditions specified in
Sections 5.3(a) and 5.3(b) have been satisfied on and as of the date of such
notice.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each Agent and each
Lender (each such representation and warranty being hereby made after giving pro
forma effect to the Transactions) that:
Section 6.1. Corporate Existence and Power. Each Loan Party
and each of its Subsidiaries:
(a) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation;
(b) has the power and authority and all governmental
licenses, authorizations, consents and approvals (i) to own its assets
and to carry on its business and (ii) to execute, deliver and perform
its obligations under any of the Transaction Documents to which it is a
party;
(c) is duly qualified as a foreign corporation and is
licensed and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its
business requires such qualification or license; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in clause (b)(i), (c) or (d), to the extent
that the failure to do so would not reasonably be expected to have a Material
Adverse Effect.
Section 6.2. Corporate Authorization; No Contravention. The
execution and delivery by each Loan Party of this Agreement and each other
Transaction Document to which it is a party, the Borrowings hereunder, the
performance by each of the Loan Parties of its obligations under each
Transaction Document to which it is a party, the consummation of the
87
Transactions and the incurrence of the Obligations (i) are within the corporate
powers of such Loan Party, (ii) have been duly authorized by all necessary
corporate action on the part of each Loan Party, (including any necessary
shareholder action) and (iii) do not and will not:
(a) contravene the terms of any of the Organization
Documents of such Loan Party or any Subsidiary thereof;
(b) conflict with or result in a breach or contravention
of, or the creation of any Lien (other than Liens in favor of the
Collateral Agent) under, any document evidencing any Contractual
Obligation to which such Loan Party or any Subsidiary thereof is a
party or any order, injunction, writ or decree of any Governmental
Authority to which such Loan Party or any Subsidiary or any respective
properties are subject; or
(c) violate any Requirement of Law.
Section 6.3 Governmental Authorization. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with (a) the
execution, delivery or performance by, or enforcement against, any Loan Party
under this Agreement or any other Transaction Document or for the consummation
of the Transactions, (b) the grant by any Loan Party of the Liens granted by it
pursuant to the Collateral Documents, (c) the perfection or maintenance of the
Liens created under the Collateral Documents (including the first priority
nature thereof) or (d) the exercise by any Agent or any Lender of its rights
under the Loan Documents or the remedies in respect of the Collateral pursuant
to the Collateral Documents, except for such authorizations, approvals, actions,
notices and filings which have been duly obtained, taken, given or made and are
in full force and effect. All applicable waiting periods in connection with the
Transactions have expired without any action having been taken by any competent
authority restraining, preventing or imposing materially adverse conditions upon
the Transactions or the rights of the Loan Parties or any of their respective
Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien
on, any properties now owned or hereafter acquired by any of them. The
Transactions have been consummated in accordance with the Transaction Documents
and Requirements of Law.
Section 6.4. Binding Effect. This Agreement has been, and each
other Transaction Document, when delivered hereunder, will have been, duly
executed and delivered by each Loan Party that is party thereto. This Agreement
and each other Transaction Document to which any Loan Party is a party
constitutes the legal, valid and binding obligation of such Loan Party,
enforceable against such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
Section 6.5. Litigation. There are no actions, suits,
proceedings, claims or disputes pending or, to the best of its knowledge,
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against any Loan Party or any of their respective
Subsidiaries or any of their respective properties which: (a) purport to affect
or pertain to this Agreement or any other Transaction Document or any of the
transactions
88
contemplated hereby or thereby (including, without limitation, the
Transactions), or (b) except for Disclosed Litigation, either individually or in
the aggregate would reasonably be expected to have a Material Adverse Effect,
and there has been no adverse change in the status or financial effect on any
Loan Party or any of their respective Subsidiaries, of the Disclosed Litigation.
No injunction, writ, temporary restraining order or other order of any nature
has been issued by any court or other Governmental Authority purporting to
enjoin or restrain the execution, delivery or performance of this Agreement or
any other Transaction Document, or directing that the transactions provided for
herein or therein not be consummated as herein or therein provided.
Section 6.6. No Default. No Default or Event of Default exists
or would result from the incurrence of any Obligations by any Loan Party or the
consummation of the Transactions. Neither any Loan Party nor any of their
respective Subsidiaries thereof is in default under or with respect to any
Contractual Obligation in any respect that, individually or together with all
such defaults, would reasonably be expected to have a Material Adverse Effect,
or that would, if such default had occurred after the date on which this
representation is made, create an Event of Default under Section 9.1(e).
Section 6.7. ERISA Compliance. (a) Except as specifically
disclosed in Schedule 6.7, each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and other federal or state
law. To its best knowledge, nothing has occurred which would cause any Plan
which is intended to qualify under Section 401 (a) of the Code to fail to be so
qualified. Each of the Loan Parties and each of their respective ERISA
Affiliates has made all required contributions to any Plan subject to Section
412 of the Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made within the
last five years with respect to any Plan.
(b) Except as specifically disclosed in Schedule 6.7,
there are no pending or, to the best of its knowledge, threatened claims,
actions or lawsuits, or actions by any Governmental Authority, with respect to
any Plan which has resulted or would reasonably be expected to result in a
Material Adverse Effect. There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan which has
resulted or would reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably
expected to occur that would reasonably be expected to have a Material Adverse
Effect; (ii) no contribution failure has occurred with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA; and (iii)
except as specifically disclosed in Schedule 6.7, neither any Loan Party nor any
of their respective ERISA Affiliates has incurred, or reasonably expects to
incur, any material liability to the PBGC under Title IV of ERISA with respect
to any Pension Plan.
Section 6.8. Use of Proceeds; Margin Regulations. The proceeds
of the Loans are to be used solely for the purposes set forth in and permitted
by Sections 7.13 and 8.7. No Loan Party is generally engaged in the business of
purchasing or selling Margin Stock or extending credit for the purpose of
purchasing or carrying Margin Stock.
Section 6.9. Title to Properties. (a) Each Loan Party has good
record and marketable title in fee simple to, or a valid leasehold interest in,
all real property necessary or
89
used in the ordinary conduct of its businesses, except for such defects in title
as would not, individually or in the aggregate, have a Material Adverse Effect.
Each Loan Party and each of its Subsidiaries has good title to all their other
respective material properties and assets (except for those assets disposed of
not in violation of this Agreement and the other Loan Documents and except for
encumbrances and title defects that would not be reasonably likely to have a
Material Adverse Effect).
(b) Set forth on Schedule 6.9 is a complete and accurate
list of all Liens on the property or assets of each Loan Party (other than
Heinz) showing as of the date hereof the lienholder thereof, the principal
amount of the obligations secured thereby and the property or assets of such
Loan Party other than with respect to any Lien, the existence of which would not
be reasonably likely to have a Material Adverse Effect. The property of each
Loan Party (other than Heinz) is not subject to any Liens, other than Liens set
forth on Schedule 6.9 and as otherwise permitted by Section 8.1.
Section 6.10. Taxes. Each Loan Party and each of their
respective Subsidiaries has filed all federal and state income tax returns and
all other material tax returns and reports required to be filed, and have paid
all federal and state income taxes and all other material taxes, assessments,
fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are
being contested in good faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against any Loan Party or any of their respective Subsidiaries that
would, if made, have a Material Adverse Effect. The Tax Sharing Agreement and
the Tax Separation Agreement are the only agreements among the Loan Parties
regarding tax sharing, tax reimbursement or tax indemnification. The
consummation of the Transactions will not be taxable to the Company or any of
its Subsidiaries or Affiliates.
Section 6.11. Financial Condition, (a) The audited
consolidated financial statements of DMFC dated June 30, 2002 and such other
audited consolidated financial statements of DMFC delivered pursuant to Section
7.1 (a) from time to time, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for the fiscal periods referred
to therein:
(i) were prepared in accordance with GAAP consistently
applied throughout the periods covered thereby, except as otherwise
expressly noted therein;
(ii) present fairly the financial condition of DMFC and
its Subsidiaries as of the dates thereof and results of operations for
the periods covered thereby; and
(iii) except as specifically disclosed in Schedule 6.11,
show all material indebtedness and other liabilities, direct or
contingent, of DMFC and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Contingent
Obligations, to the extent required by GAAP to be shown on such
financial statements.
(b) Since June 30, 2002, on a pro forma basis, after
giving effect to the Transactions, there has been no event or circumstance,
either individually or in the aggregate, that has had or would reasonably be
expected to have a Material Adverse Effect.
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(c) The audited financial statements of the assets and
liabilities of the Businesses as of May 1, 2002, May 2, 2001 and May 3, 2000 and
the related audited combined statements of operations or cash flows of the
Businesses for the corresponding periods delivered to the Agents and the Lenders
pursuant to Section 5.2(a)(xiii):
(i) were prepared in accordance with GAAP consistently
applied throughout the periods covered thereby, except as otherwise
expressly noted therein;
(ii) present fairly in all material respects the financial
condition of the Businesses as of the dates thereof and the results of
operations for the periods covered thereby; and
(iii) show all material indebtedness and other liabilities,
direct or contingent, of the Businesses as of the date thereof,
including liabilities for taxes, material commitments and Contingent
Obligations, to the extent required by GAAP to be shown on such
financial statements.
(d) The pro forma forecasted balance sheets, statements
of income and statements of cash flows of the Company (after giving effect to
the Merger) and its Subsidiaries delivered to the Agents and Lenders pursuant to
Section 5.2(a)(xii) were prepared in good faith by the Company and its
Subsidiaries on the basis of information and assumptions that the Company and
its senior management believed to be reasonable as of the date of such
projections and such assumptions are reasonable as of the Initial Distribution
Date; provided that it is understood that projections are subject to significant
uncertainties and contingencies, many of which are beyond the Company's control,
and that no assurance can be given that the projections will be realized.
Section 6.12. Regulated Entities. Neither any Loan Party nor
any of their respective Subsidiaries is an "investment company" within the
meaning of the Investment Company Act of 1940. Neither any Loan Party nor any of
their respective Subsidiaries is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce Act,
any state public utilities code or any other Federal or state statute or
regulation limiting its ability to incur Indebtedness.
Section 6.13. No Burdensome Restrictions. Neither any Loan
Party nor any of their respective Subsidiaries is a party to or bound by any
Contractual Obligation or subject to any restriction in any Organization
Document or any Requirement of Law which would reasonably be expected to have a
Material Adverse Effect.
Section 6.14. Copyrights. Patents, Trademarks and Licenses.
Etc. Each Loan Party and their respective Subsidiaries own or are licensed or
otherwise have the right to use all of the patents, trademarks, service marks,
trade names, copyrights, trade secrets and other similar rights (collectively,
"INTELLECTUAL PROPERTY") that are necessary for the operation of their
respective businesses, without conflict with the rights of any other Person
except for Intellectual Property the failure of which to own or be licensed or
otherwise have the right to use, individually or in the aggregate, would not be
reasonably likely to have a Material Adverse Effect. All of such Intellectual
Property is subsisting, valid and enforceable, except to the extent
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that the failure to be subsisting, valid and enforceable would not be reasonably
expected to have a Material Adverse Effect. Except to the extent set forth on
Schedule 6.14, there is no individual item of Intellectual Property the loss of
which would reasonably by expected to have a Material Adverse Effect. To the
best of its knowledge, no slogan or other advertising device, product, process,
method, substance, part or other material now employed, or now contemplated to
be employed, by any Loan Party or any of their respective Subsidiaries infringes
upon any rights held by any other Person except for any infringement which,
individually or in the aggregate, would not reasonably likely to have a Material
Adverse Effect. Except as specifically disclosed on Schedule 6.5. no claim or
litigation regarding any of the foregoing is pending or, to its knowledge,
threatened against any Loan Party or any of their respective Subsidiaries, and
no patent, invention, device, application, principle or any statute, law, rule,
regulation, standard or code, relating in each case to Intellectual Property,
is, to its knowledge, pending or proposed, which, in either case, would
reasonably by expected to have a Material Adverse Effect.
Section 6.15. Subsidiaries. As of the date hereof, each Loan
Party has no Subsidiaries other than those specifically disclosed in part(a) of
Schedule 6.15 and all of the outstanding Equity Interests in such Subsidiaries
have been validly issued, are fully paid and non-assessable and are owned by a
Loan Party in the amounts specified on part (a) of Schedule 6.15 free and clear
of all Liens, other than Liens created or permitted by the Loan Documents. Each
Loan Party has no equity investments in any other Person other than those
specifically disclosed in part (b) of Schedule 6.15. The only Material
Subsidiaries of the Company are those identifies on part (c) of Schedule 6.15
and such other Subsidiaries of the Company as have executed and delivered a
guaranty or guaranty supplement and security agreement or security agreement
supplement in accordance with the provisions of Section 7.14 or 7.15 after the
date hereof. Neither or Marine Trading Pacific, Inc. nor Star-Xxxx Mauritius,
Inc. is a Material Subsidiary of the Company of DMFC (collectively, the
"NON-MATERIAL SUBSIDIARY GUARANTORS").
Section 6.16. Insurance. Except as specifically disclosed on
Schedule 6.16, the properties of each of the Loan Parties and their respective
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of any of the Loan Parties, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
such Loan Party or Subsidiary operates.
Section 6.17. Solvency, Etc. As of the date hereof (or, in the
case of any Person that becomes a party to any Loan Document after the date
hereof, on the date such Person becomes such a party), and immediately prior to
and after giving effect to the Issuance of each Letter of Credit and each
Borrowing hereunder and the use of the proceeds thereof, each of the Company,
DMFC and each Material Subsidiary is Solvent.
Section 6.18. Real Property. (a) Set forth on part (a) of
Schedule 6.18 is a complete and accurate list, as of the date hereof, of the
address, the legal description any real property owned by Existing Del Monte,
SpinCo or any Material Domestic Subsidiary of either thereof. Except as set
forth on Schedule 6.18. (i) prior to the Time of Merger, each of Existing Del
Monte, SpinCo and (ii) on and after the Time of Merger, each of the Company or
such
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Material Domestic Subsidiary has good, marketable and insurable fee simple title
to such real property, free and clear of all Liens, other than Permitted Liens.
(b) Set forth on part (b) of Schedule 6.18 is a complete
and accurate list, as of the date hereof, of all leases of the real property
under which Existing Del Monte, SpinCo or any Material Subsidiary of either
thereof is the lessee, showing as of the date hereof the material terms thereof
to the reasonable satisfaction of the Collateral Agent.
Section 6.19. Swap Obligations. No Loan Party nor any of their
respective Subsidiaries has incurred any outstanding obligations under any Swap
Contracts, other than Permitted Swap Obligations. The Company has undertaken its
own independent assessment of its consolidated assets, liabilities and
commitments and has considered appropriate means of mitigating and managing
risks associated with such matters and has not relied on any swap counterparty
or any Affiliate of any swap counterparty in determining whether to enter into
any Swap Contract.
Section 6.20. Senior Indebtedness. After giving effect to the
Merger, the Company's Obligations constitute "Designated Senior Debt" of the
Company as such term is defined in the Existing Subordinated Notes Indenture and
the "New Subordinated Notes Indenture. After giving effect to the Merger, DMFC's
Obligations constitute "Guarantor Designated Senior Debt" of DMFC as such term
is defined in the Existing Subordinated Notes Indenture.
Section 6.21. Environmental Warranties, (a) All facilities and
property (including underlying groundwater) owned or leased by each Loan Party
and each of their respective Subsidiaries are in compliance with all
Environmental Laws, except for such non-compliance as would not reasonably be
expected to result in a Material Adverse Effect.
(b) There are no pending or, to the best of its
knowledge, threatened Environmental Claims against any Loan Party or any of
their respective Subsidiaries, except for such Environmental Claims that are not
reasonably likely, either singly or in the aggregate, to result in a Material
Adverse Effect.
(c) There have been no Releases of Hazardous Materials
at, on or under any property now or, to the best of its knowledge, previously
owned or leased by any Loan Party or any of their respective Subsidiaries that,
singly or in the aggregate, have, or may reasonably be expected to have, a
Material Adverse Effect.
(d) Each Loan Party and each of their respective
Subsidiaries have been issued and are in compliance with all permits,
certificates, approvals, licenses and other authorizations relating to
environmental matters and necessary or desirable for their businesses, except to
the extent that the failure to have or comply with such permits, certificates,
approvals, licenses and other authorizations relating to environmental matters
would not be reasonably likely to have a Material Adverse Effect.
(e) No property now or, to the best of its knowledge,
previously owned or leased by any Loan Party and each of their respective
Subsidiaries is listed or proposed for listing on the National Priorities List
pursuant to CERCLA or any similar state law, or, to the best of its
93
knowledge, is on the CERCLIS or on any similar state list of sites requiring
investigation or clean-up, except, in each case, for any such listing that,
singly or in the aggregate would not reasonably be expected to have a Material
Adverse Effect.
(f) To the best of its knowledge, no Loan Party nor any
of their respective Subsidiaries has directly transported or directly arranged
for the transportation of any Hazardous Material to any location which is listed
or proposed for listing on the National Priorities List pursuant to CERCLA, or
which is the subject of Federal, state or local enforcement actions or other
investigations which may lead to Environmental Claims against such Loan Party or
Subsidiary except, in each case, to the extent that the foregoing would not
reasonably be expected to have Material Adverse Effect.
Section 6.22. Full Disclosure. None of the representations or
warranties made by any Loan Party in the Loan Documents as of the date such
representations and warranties are made or deemed made and none of the written
statements contained in the Information Memorandum or any exhibit, report,
statement or certificate furnished by or on behalf of any Loan Party in
connection with the Loan Documents, considering each of the foregoing and in the
context in which it was made and together with all other representations,
warranties and written statements theretofore furnished by such Loan Party to
the Agents and the Lenders in connection with the Loan Document, contains any
untrue statement of a material fact or omits any material fact required to be
stated therein or necessary to make such representation, warranty or written
statement, in light of the circumstances under which it is made, not misleading
as of the time when made or delivered; provided that the Company's
representation and warranty as to any forecast, projection or other statement
regarding future performance, future financial results or other future
development is limited to the fact that such forecast, projection or statement
was prepared in good faith on the basis of information and assumptions that the
Company believed to be reasonable as of the date such material was prepared (it
being understood that projections are subject to significant uncertainties and
contingencies, many of which are beyond the Company's control, and that no
assurance can be given that the projections will be realized).
Section 6.23. The Transactions. At the time of consummation
thereof, each of the Transactions shall have been consummated in accordance with
the respective Transaction Documents applicable thereto and in compliance with
all applicable laws (including the Securities Act and all other Federal and
state securities laws). At the time of consummation thereof, all consents and
approvals of, and filings and registrations with, and all other actions in
respect of, all Governmental Authorities required in order to consummate the
Transactions shall have been obtained, given, filed or taken and are or will be
in full force and effect. All applicable waiting periods with respect to the
Transactions have expired without any action being taken by any competent
Governmental Authority which restrains, prevents or imposes material adverse
conditions upon the consummation of any such transaction. At the time of
consummation thereof, there shall not exist any judgment, order of injunction
prohibiting or imposing material adverse conditions on any of the Transactions.
The execution and delivery of the Transaction Documents did not, and the
consummation of the Transactions will not, violate in any material respect any
Requirement of Law, or result in a breach of, or constitute a default under, any
Contractual Obligation affecting any of the Loan Parties or any of their
respective Subsidiaries. None of the Transaction Documents contains any untrue
statement of a material
94
fact or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
Section 6.24. Perfection of Security Interest. The Collateral
Documents (to the extent then in effect) create valid Liens on all of the
Collateral in favor of the Collateral Agent for the benefit of the Secured
Parties, securing the payment of the Obligations. Subject to the filing of any
financing statements, mortgages or other documents required to be delivered to
the Collateral Agent pursuant to Section 5.2(a)(iii)(B), 5.2(a)(iii)(C) or 7.15,
all filings and other actions necessary or desirable to perfect and protect the
security interest in the Collateral created under the Collateral Documents
(including the first priority nature thereof (but subject to Permitted Liens))
have been duly made or taken and are in full force and effect or will be duly
made or taken in accordance with the terms of the Loan Documents. The Loan
Parties are the legal and beneficial owners of the Collateral free and clear of
any Lien, except for the Liens and other security interests created or permitted
under the Loan Documents.
Section 6.25. Existing Debt. Set forth on Schedule 6.25 hereto
is a complete and accurate list of all Existing Debt with an aggregate
outstanding principal amount in excess of $1,000,000 (other than Surviving
Debt), showing as of the date hereof the obligor and the principal amount
outstanding thereunder.
Section 6.26. Surviving Debt. Set forth on Schedule 6.26
hereto is a complete and accurate list of all Surviving Debt with an aggregate
outstanding principal amount in excess of $1,000,000, showing as of the date
hereof the obligor and the principal amount outstanding thereunder, the maturity
date thereof and the amortization schedule therefor.
ARTICLE VII
AFFIRMATIVE COVENANTS
Commencing on the Time of Merger for so long as any Lender
shall have any Commitment hereunder, or any Loan or other Obligation shall
remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
unless the Required Lenders waive compliance in writing:
Section 7.1. Financial Statements. The Company shall deliver
(or cause to be delivered) to the Administrative Agent (which shall promptly
provide copies to each Lender), in form and detail satisfactory to the Required
Lenders:
(a) As soon as available, but not later than 90 days
after the end of each fiscal year, a copy of the audited consolidated
balance sheet of DMFC and its Subsidiaries as at the end of such year
and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such year, setting forth in
each case in comparative form the figures for the previous fiscal year,
and accompanied by (i) the opinion of a nationally-recognized
independent public accounting firm (the "INDEPENDENT AUDITOR"), which
report (A) shall state that such consolidated financial statements
present fairly the consolidated financial position of DMFC and its
Subsidiaries for the periods indicated in conformity with GAAP applied
on a basis consistent with prior years and
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(B) shall not be qualified or limited because of a restricted or
limited examination by the Independent Auditor of any material portion
of DMFC's or any of its Subsidiaries' records and (ii) a comparison
with the budget for such fiscal year; provided that with respect to the
fiscal year ending April 30, 2003, such statements of income or
operations, shareholders' equity and cash flows shall be for the period
commencing with the date on which the Time of Merger occurs and ending
on April 30, 2003;
(b) Promptly when available, and in any event within 30
days after the end of each month that is not the end of a fiscal
quarter, and within 45 days after the end of each month that is the end
of a fiscal quarter (other than the last month of each fiscal year), a
copy of the unaudited consolidated balance sheet of DMFC and its
Subsidiaries as of the end of such month and the related consolidated
statements of income, shareholders' equity and cash flows for the
period commencing on the first day and ending on the last day of such
month, including a comparison with the corresponding month and period
of the previous fiscal year and a comparison with the budget for such
month and for such period of the current fiscal year, together with a
certificate of a Responsible Officer of the Company that each such
statement fairly presents the financial condition and results of
operations (subject to normal year-end audit adjustments) of DMFC and
its Subsidiaries and has been prepared in accordance with GAAP
consistently applied; and
(c) Not later than 60 days after the end of each fiscal
year, a copy of the projections of DMFC of the consolidated operating
budget and cash flow budget of DMFC and its Subsidiaries for the
succeeding fiscal year (including an explanation of the assumptions
used in preparing such budgets), such projections to be accompanied by
a certificate of a Responsible Officer of the Company to the effect
that (i) such projections were prepared by the Company in good faith,
(ii) the Company has a reasonable basis for the assumptions contained
in such projections and (iii) such projections have been prepared
according to such assumptions.
Section 7.2. Certificates; Other Information. The Company
shall furnish to the Administrative Agent (which shall promptly provide copies
to each Lender):
(a) concurrently with the delivery of the financial
statements referred to in Section 7.1(a), a certificate of the
Independent Auditor stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of Default,
except as specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in Section 7.1(a) and each set of quarterly
statements referred to in Section 7.1(b), a Compliance Certificate
executed by a Responsible Officer of the Company;
(c) promptly, copies of all financial statements and
regular, periodic or special reports (including Forms 10K, 10Q and 8K)
that any Loan Party or any of their respective Subsidiaries may make
to, or file with, the SEC;
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(d) promptly from time to time, any notices (including
notices of default or acceleration thereunder) received from any holder
or trustee of, under or with respect to any Subordinated Debt of the
Company;
(e) forthwith upon the issuance or incurrence of any
Indebtedness permitted under Section 8.5(e) with respect to the
Existing Subordinated Notes or New Subordinated Notes, a copy of the
loan or credit agreement, indenture, trust agreement, note purchase
agreement, intercreditor agreement, subordination agreement, collateral
agreement, guaranty or similar agreement or instrument entered into or
issued by any Loan Party in connection with the issuance or incurrence
of any such Indebtedness, certified as true and correct by a
Responsible Officer of the Company;
(f) within 30 days of the end of each fiscal quarter, a
Borrowing Base Certificate dated as of the end of such fiscal quarter
duly executed by a Responsible Officer of the Company; provided that if
any Event of Default shall have occurred and be continuing, the
Required Revolving Credit Lenders may request that the Company provide
and, if so requested the Company shall provide, a Borrowing Base
Certificate more frequently; and
(g) promptly, such additional information regarding the
business, financial or corporate affairs of any Loan Party or
Subsidiary thereof as the Administrative Agent, at the request of any
Lender, may from time to time reasonably request.
Section 7.3. Notices. Promptly upon a Responsible Officer of
the Company obtaining knowledge thereof, the Company shall notify the
Administrative Agent (which shall promptly provide copies to each Lender) of:
(a) the occurrence of any Default or Event of Default;
(b) any matter that has resulted or would reasonably be
expected to result in a Material Adverse Effect, including, if
applicable, (i) any breach or non-performance of, or any default under,
a Contractual Obligation of any Loan Party or any of their respective
Subsidiaries thereof, (ii) any dispute, litigation, investigation,
proceeding or suspension between any Loan Party or any Subsidiary
thereof and any Governmental Authority or (iii) the commencement of, or
any material development in, any litigation or proceeding affecting any
Loan Party or any Subsidiary thereof;
(c) the occurrence of any of the following events
affecting any Loan Party or any of their respective ERISA Affiliates
(but in no event more than ten days after such event), and deliver to
the Administrative Agent (which shall promptly deliver to each Lender a
copy thereof) a copy of any notice with respect to such event that is
filed with a Governmental Authority and any notice delivered by a
Governmental Authority to such Loan Party or ERISA Affiliate with
respect to such event:
(i) any ERISA Event; or
(ii) a contribution failure with respect to a
Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA;
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(d) any material change in accounting policies or
financial reporting practices by any Loan Party or any of its
consolidated Subsidiaries;
(e) any Mandatory Prepayment Event;
(f) other than payments permitted by Section 8.15(b)(vi)
or Section 8.15(b)(vii), any proposed payment of principal of
Subordinated Debt no later than contemporaneously with the making
thereof; and
(g) upon the request from time to time of the
Administrative Agent, the Swap Termination Values, together with a
description of the method by which such values were determined,
relating to any then-outstanding Swap Contracts to which any Loan Party
or any Subsidiary thereof is party.
Each notice under this Section shall be accompanied by a written statement by a
Responsible Officer of the Company setting forth details of the occurrence
referred to therein and stating what action the Company or any other affected
Loan Party or any of their respective Subsidiaries proposes to take with respect
thereto and at what time. Each notice under Section 7.3(a) shall describe with
particularity any and all clauses or provisions of this Agreement or any other
Loan Document that have been breached or violated.
Section 7.4. Preservation of Corporate Existence, Etc. The
Company shall, and shall cause each of its Subsidiaries to:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state or
jurisdiction of incorporation; provided, however, that (i) a Subsidiary
of the Company need not be in compliance with the foregoing to the
extent such Subsidiary is sold pursuant to Section 8.2 or merged or
consolidated into another Person pursuant to Section 8.3 and (ii) the
Company may consummate the Merger;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises, in each case which are material and which are necessary or
desirable in the normal conduct of its business, except in connection
with transactions permitted by Section 8.3 and dispositions of assets
permitted by Section 8.2; and
(c) preserve or renew all of its registered patents,
copyrights, trademarks, trade names and service marks, the
non-preservation of which would reasonably be expected to have a
Material Adverse Effect.
Section 7.5. Maintenance of Property. The Company shall, and
shall cause each of its Subsidiaries to, maintain and preserve all property
material to the normal conduct of its business in good working order and
condition, ordinary wear and tear excepted, other than obsolete, worn out or
surplus equipment and will from time to time make all appropriate renewals and
replacements thereof except where the failure to do so would not have a Material
Adverse Effect.
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Section 7.6. Insurance. The Company shall, and shall cause
each of its Subsidiaries to, maintain with financially sound and reputable
independent insurers, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons.
Section 7.7. Payment of Obligations. The Company shall, and
shall cause each of its Subsidiaries to, pay and discharge as the same shall
become due and payable, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Company or such Subsidiary in respect thereof, all of its
obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets; and
(b) all lawful claims which, if unpaid, would by law
become a Lien upon its property;
provided that no violation of this Section 7.7 with respect to any Indebtedness
shall constitute an Event of Default unless such violation is also an Event of
Default under Section 9.l(e).
Section 7.8. Compliance with Laws. The Company shall, and
shall cause each of its Subsidiaries to, comply in all material respects with
all Requirements of Law of any Governmental Authority having jurisdiction over
it or its business (including the Federal Fair Labor Standards Act), except such
as may be contested in good faith or as to which a bona fide dispute may exist.
Section 7.9. Compliance with ERISA. The Company shall, and
shall cause each of its ERISA Affiliates to: (a) maintain each Plan in
compliance in all material respects with the applicable provisions of ERISA, the
Code and other Federal or state law; (b) cause each Plan which is qualified
under Section 401 (a) of the Code to maintain such qualification; and (c) make
all required contributions to any Plan subject to Section 412 of the Code.
Section 7. 10. Inspection of Property and Books and Records.
The Company shall, and shall cause each of its Subsidiaries to, maintain proper
books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Company and
such Subsidiary. The Company shall permit, and will cause each of its
Subsidiaries to permit, representatives and independent contractors of any Agent
or Lender (a) to visit and inspect any of their respective properties, to
examine their respective corporate, financial and operating records, and to make
copies thereof or abstracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective directors, officers, and independent
public accountants and (b) to inspect any of their Inventory and equipment, to
perform appraisals of any of their equipment, and to inspect, audit, check and
make copies and/or extracts from the books, records, computer data and records,
computer programs, journals, orders, receipts, correspondence and other data
relating to Inventory, Receivables, contract rights, general intangibles,
equipment and any other Collateral, or relating to any other transactions
between the
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parties hereto; at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Company; provided, however, that when an Event of Default exists, any Agent or
Lender may do any of the foregoing without advance notice. After the occurrence
and during the continuance of an Event of Default, any such inspection shall be
at the Company's expense.
Section 7.11. Interest Rate Protection. The Company shall,
within 120 days of Initial Distribution Date, enter into and thereafter maintain
one or more Permitted Swap Obligations for a notional amount of at least
$300,000,000 for a term of at least three years, on terms and conditions
reasonably satisfactory to the Administrative Agent, and, except for interest
rate caps for which all of the Company's obligations are paid in full upon the
Company's entering into such Permitted Swap Obligations, on an ISDA Master
Agreement with one or more Lenders or Affiliates thereof or with counterparties
reasonably acceptable to the Administrative Agent.
Section 7.12. Environmental Covenant. The Company shall, and
shall cause each of its Subsidiaries to:
(a) use and operate all of its facilities and properties
in material compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in material
compliance therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws;
(b) promptly notify the Administrative Agent and provide
copies of all written material Environmental Claims, and act in a
diligent and prudent fashion to address such Environmental Claims,
including Environmental Claims that allege that the Company or any of
its Subsidiaries is not in compliance with Environmental Laws; and
(c) provide such information (including, without
limitation, environmental assessment or audit reports) and
certifications which the Administrative Agent may reasonably request
from time to time to evidence compliance with this Section 7.12.
Section 7.13. Use of Proceeds. The Company shall use (a) the
proceeds of the Term Loans solely to fund the Bank Debt Amount, to replace or
refinance certain Indebtedness of the Company and to pay related transaction
fees and expenses and (b) the proceeds of the Revolving Credit Loans for working
capital and other general corporate purposes not in contravention of any
Requirement of Law or of any Loan Document; provided that such Revolving Credit
Loans may be used to finance Acquisitions permitted in accordance with Section
8.4(i).
Section 7.14. Further Assurances. The Company shall, and shall
cause each of its Material Domestic Subsidiaries to, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register, any and all
such further acts, deeds, conveyances, security agreement, mortgages,
assignments, estoppel certificates, financing statements and continuations
thereof, termination statements, notices of assignment, transfers, certificates,
assurances and other instruments the Collateral Agent or the Required Lenders,
as the case may be, may reasonably
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request from time to time in order (a) to ensure that (i) the obligations of the
Company hereunder and under the other Loan Documents are secured by
substantially all assets of the Company; provided that unless otherwise
reasonably required by the Required Lenders, the pledge of the Voting Interests
in a Foreign Subsidiary of the Company shall be limited to 66% of the
outstanding Voting Interests in such Foreign Subsidiary and guaranteed, pursuant
to the Loan Documents, by (1) prior to the Time of Merger, Heinz and (2) from
and after the Time of Merger, DMFC and all Material Domestic Subsidiaries of the
Company and DMFC (including, promptly upon the acquisition or creation thereof,
any Material Domestic Subsidiary created or acquired after the date hereof) and
(ii) the obligations of DMFC and each Subsidiary Guarantor under the Loan
Documents are secured by substantially all of the assets of DMFC and each such
Subsidiary Guarantor; provided that the pledge of the Voting Interests in a
Foreign Subsidiary of DMFC or any Subsidiary Guarantor shall be limited to 66%
of the outstanding Voting Interests in such Foreign Subsidiary, (b) to perfect
and maintain the validity, effectiveness and priority of any of the Collateral
Documents and the Liens intended to be created thereby and (c) to better assure,
convey, grant, assign, transfer, preserve, protect and confirm to the Collateral
Agent and the Lenders the rights granted or now or hereafter intended to be
granted to the Collateral Agent and the Lenders under any Loan Document or under
any other document executed in connection therewith. Contemporaneously with the
execution and delivery of any document referred to above, the Company shall, and
shall cause each of its Material Domestic Subsidiaries to, deliver all
resolutions, opinions and corporate documents as the Collateral Agent or the
Required Lenders may reasonably request to confirm the enforceability of such
document and the perfection of the security interest created thereby, if
applicable. The Company shall, and shall cause its Material Domestic
Subsidiaries to, use all commercially reasonable efforts to obtain consents of
landlords to the granting of security interests and Liens in favor of the
Collateral Agent for the benefit of the Secured Parties in all leasehold
interests of the Company or any of its Domestic Subsidiaries of real property
that is used for distribution or warehousing and has aggregate improvements of
100,000 square feet or greater and such other leased properties as the
Collateral Agent may reasonably request; provided that such best efforts
obligation shall not require the Company or any other Loan Party to make any
payment of money or property.
Section 7.15. Covenant to Guarantee Obligations and Give
Security, (a) Upon (i) the formation or acquisition of any new direct or
indirect Material Domestic Subsidiary by any Loan Party or (ii) the acquisition
of any property by any Loan Party, and such property, in the judgment of the
Collateral Agent, shall not already be subject to a perfected security interest
in favor of the Collateral Agent for the benefit of the Secured Parties, then
the Company shall, in each case at the Company's expense:
(A) in connection with the formation or acquisition of
any Material Domestic Subsidiary, within ten days after such formation
or acquisition, cause each such Material Domestic Subsidiary to duly
execute and deliver to the Collateral Agent a guaranty or guaranty
supplement, in form and substance satisfactory to the Collateral Agent,
guaranteeing the other Loan Parties' obligations under the Loan
Documents;
(B) within ten days after such formation or acquisition,
furnish to the Collateral Agent a description of the real and personal
properties of the Loan Parties and any newly formed or acquired
Material Domestic Subsidiary in detail satisfactory to the Collateral
Agent;
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(C) within 15 days after such formation or acquisition,
duly execute and deliver, and cause each newly formed or acquired
Material Domestic Subsidiary to duly execute and deliver, to the
Collateral Agent mortgages, deeds of trust, pledges, assignments,
Security Agreement Supplements, IP Security Agreement Supplements and
other security agreements, as specified by and in form and substance
reasonably satisfactory to the Collateral Agent, securing payment of
all the Obligations of the applicable Loan Party or such Material
Domestic Subsidiary, as the case may be, under the Loan Documents and
constituting Liens on all properties of such Loan Party or newly formed
or acquired Material Domestic Subsidiary; provided that the pledge of
any Voting Interests held in any Foreign Subsidiary by any Loan Party
or newly created or acquired Material Domestic Subsidiary shall be
limited to 66% of the outstanding Voting Interests in such Foreign
Subsidiary;
(D) within 30 days after such formation or acquisition,
take, and cause each newly formed or acquired Material Domestic
Subsidiary to take, whatever action (including, without limitation, the
recording of mortgages, the filing of Uniform Commercial Code financing
statements, the giving of notices and the endorsement of notices on
title documents) may be necessary or advisable in the opinion of the
Collateral Agent to vest in the Collateral Agent (or in any
representative of the Collateral Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the
mortgages, pledges, assignments, Security Agreement Supplements, IP
Security Agreement Supplements and security agreements delivered
pursuant to this Section 7.15(a) enforceable against all third parties
in accordance with their terms;
(E) within 60 days after such formation or acquisition,
deliver to the Administrative Agent, upon the request of the Collateral
Agent in its sole discretion, a signed copy of a favorable opinion,
addressed to the Collateral Agent and the other Secured Parties, of
counsel for the Loan Parties acceptable to the Collateral Agent as to
the matters contained in clauses (A), (C) and (D) above, as to such
guaranties, guaranty supplements, mortgages, pledges, assignments,
Security Agreement Supplements, IP Security Agreement Supplements and
security agreements being legal, valid and binding obligations of each
Loan Party thereto enforceable in accordance with their terms, as to
the matters contained in clause (D) above, as to such recordings,
filings, notices, endorsements and other actions being sufficient to
create valid perfected Liens on such properties, and as to such other
matters as the Collateral Agent may reasonably request; and
(F) as promptly as practicable after such formation or
acquisition, deliver, upon the request of the Collateral Agent in its
sole discretion, to the Collateral Agent with respect to each parcel of
real property owned, leased or held by the entity that is the subject
of such request, formation or acquisition all documents, instruments
and items required to be delivered under Section 7.15(d) (which Section
shall similarly apply hereto), including, without limitation, title
insurance, surveys and engineering, soils and other reports, and
environmental assessment reports, each in scope, form and substance
reasonably satisfactory to the Collateral Agent; provided, however,
that to the extent that any Loan Party shall have otherwise received
any of the foregoing items with respect to
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such real property, such items shall, promptly after receipt thereof,
be delivered to the Collateral Agent.
(b) Upon the request of the Collateral Agent following
the occurrence and during the continuance of any Event of Default, the Company
shall, at the Company's expense:
(i) within 10 days of such request cause any of its
direct or indirect Subsidiaries (other than any such Subsidiary which
is already a Loan Party at such time) to duly execute and deliver to
the Collateral Agent a guaranty or guaranty supplement in form and
substance satisfactory to the Collateral Agent, guaranteeing the other
Loan Parties' obligations under the Loan Documents;
(ii) within 15 days of such request cause each of its
direct or indirect Subsidiaries (other than any such Subsidiary which
is already a Loan Party at such time) to duly execute and deliver to
the Collateral Agent mortgages, deeds of trust, pledges, assignments,
Security Agreement Supplements, IP Security Agreement Supplements and
other security agreements, as specified by and in form and substance
reasonably satisfactory to the Collateral Agent, securing payment of
all the Obligations of such Subsidiary and the other Loan Parties under
the Loan Documents and constituting Liens on all properties of such
Subsidiary;
(iii) within 30 days of such request take and cause each of
its direct or indirect Subsidiaries to take, whatever action
(including, without limitation, the recording of mortgages, the filing
of Uniform Commercial Code financing statements, the giving of notices
and the endorsement of notices on title documents) may be necessary or
advisable in the opinion of the Collateral Agent to vest in the
Collateral Agent (or in any representative of the Collateral Agent
designated by it) valid and subsisting Liens on the properties
purported to be subject to the mortgages, pledges, assignments,
Security Agreement Supplements, IP Security Agreement Supplements and
security agreements delivered pursuant to this Section 7.15(b),
enforceable against all third parties in accordance with their terms;
(iv) within 60 days of such request deliver to the
Administrative Agent, upon the request of the Collateral Agent in its
sole discretion, a signed copy of a favorable opinion, addressed to the
Collateral Agent and the other Secured Parties of counsel for the Loan
Parties acceptable to the Collateral Agent as to the matters contained
in clauses (i), (ii) and (iii) above, as to such guaranties, guaranty
supplements, mortgages, pledges, assignments, Security Agreement
Supplements, IP Security Agreement Supplements and security agreements
being legal, valid and binding obligations of each Loan Party thereto
enforceable in accordance with their terms, as to the matters contained
in clause (iii) above, as to such recordings, filings, notices,
endorsements and other actions being sufficient to create valid
perfected Liens on such properties, and as to such other matters as the
Collateral Agent may reasonably request; and
(v) promptly cause to be deposited any and all cash
dividends paid or payable to it or any of its Subsidiaries from any of
its Subsidiaries from time to time into the Cash Collateral Account,
and with respect to all other dividends paid or payable to it or any of
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its Subsidiaries from time to time, promptly execute and deliver, or
cause such Subsidiary to promptly execute and deliver, as the case may
be, any and all further instruments and take or cause such Subsidiary
to take, as the case may be, all such other action as the Collateral
Agent may deem necessary or desirable in order to obtain and maintain
from and after the time such dividend is paid or payable a perfected,
first priority lien on and security interest in such dividends.
(c) As promptly as practicable after receipt thereof,
furnish (or caused to be furnished) to the Administrative Agent acknowledgment
copies of proper financing statements filed under the Uniform Commercial Code of
all jurisdictions that the Collateral Agent may deem necessary or desirable in
order to perfect and protect the first priority liens and security interests
created under the Security Agreement, covering the Collateral described in the
Security Agreements.
(d) As promptly as practical after the date hereof, but
in any event, no later than (x) 60 days after the Initial Distribution Date in
the case of any of the Owned Real Properties and (y) as soon as reasonably
possible thereafter (based on the Company's use of its best efforts) with
respect to any Leased Real Properties or the consents, agreements and
confirmations required to be delivered under clause (d)(i)(F) below, furnish to
the Administrative Agent:
(i) deeds of trust, trust deeds, mortgages, leasehold
mortgages and leasehold deeds of trust, in substantially the form of
Exhibit O hereto (with such changes as may be required to account for
local law matters) and otherwise in form and substance satisfactory to
the Administrative Agent, and covering those Real Properties identified
as being required to be mortgaged on Schedule 6.18 hereto (together
with each other mortgage delivered pursuant to Section 7.15, in each
case as amended, the "MORTGAGES"), duly executed by the appropriate
Loan Party, together with:
(A) evidence that counterparts of the Mortgages
have been duly recorded in all filing or recording offices
that the Collateral Agent may deem necessary or desirable in
order to create a valid first and subsisting Lien on the
property described therein in favor of the Collateral Agent
for the benefit of the Secured Parties and that all filing and
recording taxes and fees have been paid,
(B) fully paid American Land Title Association
Lender's Extended Coverage title insurance policies (the
"MORTGAGE POLICIES") in form and substance, with endorsements
and in amounts acceptable to the Collateral Agent, issued,
coinsured and reinsured by title insurers acceptable to the
Collateral Agent, insuring the Mortgages to be valid first and
subsisting Liens on the property described therein, free and
clear of all defects (including, but not limited to,
mechanics' and materialmen's Liens) and encumbrances,
excepting only Permitted Encumbrances, and providing for such
other affirmative insurance (including endorsements for future
advances under the Loan Documents and for mechanics' and
materialmen's Liens) and such coinsurance and direct access
reinsurance as the Collateral Agent may deem necessary or
desirable,
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(C) American Land Title Association/American
Congress on Surveying and Mapping form surveys for those
properties identified on Schedule 6.18 as requiring surveys
for which all necessary fees (where applicable) have been paid
and dated no more than 60 days before the date on which the
Mortgages are delivered pursuant to this Section, certified to
the Collateral Agent and the issuer of the Mortgage Policies
in a manner satisfactory to the Collateral Agent by a land
surveyor duly registered and licensed in the States in which
the property described in such surveys is located and
acceptable to the Collateral Agent, showing all buildings and
other improvements, any off-site improvements, the location of
any easements, parking spaces, rights of way, building
set-back lines and other dimensional regulations and the
absence of encroachments, either by such improvements or on to
such property, and other defects, other than encroachments and
other defects acceptable to the Collateral Agent,
(D) estoppel and consent agreements, in form and
substance satisfactory to the Collateral Agent, executed by
each of the lessors of the Leased Real Properties, along with
(1) a memorandum of lease in recordable form with respect to
such leasehold interest, executed and acknowledged by the
owner of the affected real property, as lessor, or (2)
evidence that the applicable lease with respect to such
leasehold interest or a memorandum thereof has been recorded
in all places necessary or desirable, in the Collateral
Agent's reasonable judgment, to give constructive notice to
third-party purchasers of such leasehold interest, or (3) if
such leasehold interest was acquired or subleased from the
holder of a recorded leasehold interest, the applicable
assignment or sublease document, executed and acknowledged by
such holder in each case in form sufficient to give such
constructive notice upon recordation and otherwise in form
satisfactory to the Collateral Agent,
(E) evidence of the insurance required by the
terms of the Mortgages, and
(F) such other consents, agreements and
confirmations of lessors and third parties as the Collateral
Agent may reasonably deem necessary or desirable and evidence
that all other actions that the Collateral Agent may deem
necessary or desirable in order to create valid first and
subsisting Liens on the property described in the Mortgages
has been taken; and
(ii) opinions of (A) in-house or local counsel for each of
the Loan Parties with respect to certain corporate matters
substantially in the form of Exhibit M-3 and (B) local counsel for the
Loan Parties in states in which the Owned Real Properties are located,
with respect to the enforceability and perfection of the Mortgages and
any related fixture filings substantially in the form of Exhibit M-4,
and, in either case, otherwise in form and substance satisfactory to
the Administrative Agent.
(e) (i) As promptly as practical after the date hereof,
but in any event, no later than 60 days after the Initial Distribution Date,
furnish to the Administrative Agent a completed schedule identifying each
Material Agreement in effect as of the date such schedule is delivered,
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(ii) As promptly as practical after the delivery of the
schedule referred to in clause (i) above, using its best efforts, deliver to the
Collateral Agent, a consent to assignment of each Material Agreement listed on
the schedule delivered pursuant to clause (i) above, in substantially the form
of Exhibit C to the Security Agreement, duly executed by each party (other than
the Loan Parties) to each such Material Agreement.
Section 7.16. Control Agreements and Lockbox Arrangements.
Promptly upon the request of the Collateral Agent following the occurrence of
and during the continuance of any Event of Default, the Company shall cause each
financial institution at which DMFC, the Company or any Material Domestic
Subsidiary of the Company or DMFC maintains any deposit account or other similar
account with a balance in excess of $5,000,000 to deliver to the Collateral
Agent and the Company a written agreement in form and substance satisfactory to
the Collateral Agent by each such financial institution pursuant to which such
financial institution agrees to, among other things, comply with the
instructions originated by the Collateral Agent directing the disposition of
funds in any such account without the further consent of DMFC, the Company or
any Material Domestic Subsidiary and shall put customary lockbox arrangements
into place with respect to its deposit accounts or other similar accounts to the
extent requested by the Collateral Agent.
ARTICLE VIII
NEGATIVE COVENANTS
Commencing with the Time of Merger for so long as any Lender
shall have any Commitment hereunder, or any Loan or other Obligation shall
remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
unless the Required Lenders waive compliance in writing:
Section 8.1. Limitation on Liens. The Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, make,
create, incur, assume or suffer to exist any Lien upon or with respect to any
part of its property, whether now owned or hereafter acquired, other than the
following "PERMITTED LIENS"):
(a) any Lien existing on property of any Loan Party on
the date hereof and set forth on Schedule 6.9 securing Indebtedness
outstanding on such date and any Lien on the property of any of the
Loan Parties or any Subsidiaries thereof in existence as of the date
hereof which could not reasonably be expected to have an Material
Adverse Effect;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable without
penalty, or to the extent that non-payment thereof is permitted by
Section 7.7; provided that no notice of lien has been filed or recorded
under the Code;
(d) growers', carriers', warehousemen's, mechanics',
landlords', materialmen's, repairmen's or other similar Liens arising
in the ordinary course of business which are not delinquent or which
are being contested in good faith and by
106
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other social security legislation;
(f) Liens on property of the Company or any of its
Subsidiaries securing (i) the non-delinquent performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, (ii) surety bonds (excluding appeal bonds and other bonds
posted in connection with court proceedings or judgments) and (iii)
other non-delinquent obligations of a like nature, in each case,
incurred in the ordinary course of business; provided that all such
Liens in the aggregate would not (even if enforced) cause a Material
Adverse Effect;
(g) Liens consisting of judgment or judicial attachment
Liens and Liens securing contingent obligations on appeal bonds and
other bonds posted in connection with court proceedings or judgments;
provided that the enforcement of such Liens is effectively stayed;
(h) easements (including reciprocal easement agreements),
rights-of-way, restrictions, municipal, building and zoning ordinances
and other similar encumbrances charges, utility agreements, covenants,
reservations, restrictions, encroachments, title defects or other
irregularities that were not incurred in connection with and do not
secure any Indebtedness, and which are incurred in the ordinary course
of business which, in the aggregate, are not substantial in amount, and
which do not in any case materially detract from the value of the
property subject thereto or interfere with the ordinary conduct of the
businesses of the Company and its Subsidiaries for their intended
purposes;
(i) purchase money security interests on any property
acquired by the Company or any of its Subsidiaries in the ordinary
course of business, securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such
property; provided that (i) any such Lien attaches to such property
concurrently with or within 45 days after the acquisition thereof, (ii)
such Lien attaches solely to the property so acquired in such
transaction, (iii) the principal amount of the Indebtedness secured
thereby does not exceed 100% of the cost of such property and (iv) the
principal amount of the Indebtedness secured by all such purchase money
security interests shall not at any time exceed $30,000,000;
(j) Liens securing obligations in respect of Capital
Leases on assets subject to such leases (and secured by only the assets
subject to such leases); provided that such Capital Leases are
otherwise permitted hereunder or Liens on property sold in a
Sale/Leaseback Transaction; provided that such Liens shall cover only
the property subject to such Sale/Leaseback Transaction and the amount
of Indebtedness secured thereby shall not exceed $45,000,000;
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(k) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-off or
similar rights and remedies as to deposit accounts or other funds
maintained with a creditor depository institution; provided that (i)
such deposit account is not a dedicated cash collateral account and is
not subject to restrictions against access by the Company in excess of
those set forth by regulations promulgated by the FRB and (ii) such
deposit account is not intended by the Company or any of its
Subsidiaries to provide collateral to the depository institution;
(l) Liens under the Permitted Security Agreements;
(m) Liens in connection with a Permitted Receivables
Facility;
(n) Liens securing Acquired Indebtedness permitted by
Section 8.5(i); provided that such Liens were in existence prior to the
contemplation of the related Acquisition and do not extend to any
assets other than the property financed with such Acquired
Indebtedness;
(o) Permitted Encumbrances;
(p) extensions, renewals and replacements of Liens
referred to in clauses (a) through (o) above; provided that any such
extension, renewal or replacement Lien is limited to the property or
assets covered by the Lien extended, renewed or replaced and does not
secure any Indebtedness in addition to that secured immediately prior
to such extension, renewal or replacement;
(q) Liens securing other Indebtedness of the Company and
its Subsidiaries not expressly permitted by clauses (a) through (p)
above; provided that the aggregate amount of the Indebtedness secured
by Liens permitted pursuant to this clause (q) shall not exceed
$25,000,000 in the aggregate outstanding at any time; and
(r) leases, subleases, licenses and rights-of-use granted
to others incurred in the ordinary course of business and that do not
materially and adversely affect the use of the property encumbered
thereby for its intended purposes.
Section 8.2. Disposition of Assets. The Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, sell,
assign, lease, convey, transfer or otherwise dispose of (whether in one or a
series of transactions) any property (including accounts and notes receivable,
with or without recourse), except:
(a) dispositions of obsolete or worn out property,
whether now owned or hereafter acquired, in the ordinary course of
business;
(b) dispositions of Inventory in the ordinary course of
business;
(c) sales of equipment to the extent that (i) such
equipment is exchanged for credit against the purchase price of similar
replacement equipment or (ii) the proceeds of such sale are reasonably
promptly applied to the purchase price of such replacement equipment;
108
(d) dispositions of property by any Subsidiary to the
Company or to a Wholly-Owned Subsidiary of the Company; provided that
if the transferor of such property is a Subsidiary Guarantor, the
transferee thereof must either be the Company or a Subsidiary
Guarantor;
(e) mergers permitted under Section 8.3;
(f) dispositions (including by means of a Sale/Leaseback
Transaction) of Assets Held for Sale by the Company or any of its
Subsidiaries for consideration of not less than the fair market value
of the assets disposed of;
(g) dispositions of assets for not less than fair market
value in Sale/Leaseback Transactions permitted under Section 8.17;
provided that the aggregate fair market value of all property sold
pursuant to this clause (g) may not exceed $45,000,000;
(h) non-exclusive licenses of Intellectual Property
granted in the ordinary course of business;
(i) transfers of Receivables under a Permitted
Receivables Facility;
(j) leases or subleases of interests in real property of
the Company or any Subsidiary entered into in the ordinary course of
business; and
(k) dispositions not otherwise permitted under this
Section 8.2 (including the disposition of all of the Equity Interests
in any operating Subsidiary of the Company by sale of such Equity
Interests or by merger of such Subsidiary with or into another Person,
but excluding any Sale/Leaseback transaction) which are made for fair
market value; provided that (i) at the time of such disposition no
Default or Event of Default shall exist or would result from such
disposition; (ii) the aggregate fair market value of all property
disposed of in reliance on this clause (i) in any (A) fiscal year shall
not exceed $10,000,000 or (B) since the date of this Agreement shall
not exceed $45,000,000; (iii) the purchase price for such asset is paid
to the Company or such Subsidiary, as the case may be, in cash or Cash
Equivalent Investments; and (iv) the proceeds from any such disposition
shall be applied in accordance with Section 2.7(b).
Section 8.3. Consolidations and Mergers. The Company shall
not, and shall not permit any of its Subsidiaries to, merge, dissolve,
liquidate, consolidate with or into another Person or dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person,
except that, so long as no Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Company,
provided that the Company shall be the continuing or surviving Person
or (ii) any one or more other Subsidiaries; provided further that, when
any Subsidiary Guarantor is merging with another Subsidiary, the
Subsidiary Guarantor shall be the continuing or surviving Person or
Surviving Person shall become a Subsidiary Guarantor contemporaneously
with the consummation of such merger and takes or has taken such other
action as is necessary or desirable, or as the Collateral Agent may
request, to preserve the Liens, and continue the
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perfection thereof with the same priority as granted and provided for
in the Collateral Documents;
(b) any Subsidiary may dispose of all or substantially
all of its assets (upon voluntary liquidation or otherwise) to the
Company or to another Subsidiary; provided the transferor in such a
transaction is a Subsidiary Guarantor, the transferee must either be
the Company or a Subsidiary Guarantor;
(c) the Company may consummate the Merger; and
(d) in connection with any Acquisition permitted under
Section 8.4(i), any Subsidiary of the Company may merge into or
consolidate with any other Person or permit any other Person to merge
into or consolidate with it; provided that when any Subsidiary
Guarantor is merging or consolidating with such other Person the Person
surviving such merger shall be a Subsidiary Guarantor;
provided, however, that in each case, immediately after giving effect thereto,
in the case of any such merger to which the Company is a party, either (i) the
Company is the surviving corporation, or (ii) the corporation formed by such
merger or consolidation, (A) assumes the Company's Obligations and performance
of the Company's covenants under the Loan Documents to which it is or is to be a
party in a writing satisfactory in form and substance to the Required Lenders
and (B) takes or has taken such other action as may be necessary or desirable,
or as the Collateral Agent may request, in order to preserve the Liens, and
continue the perfection thereof with the same priority as granted and provided
for or purported to be granted and provided for by the Security Agreement, the
Intellectual Property Security Agreement or any Mortgage.
Section 8.4. Loans and Investments. The Company shall not, and
shall not permit any of its Subsidiaries to, purchase or acquire, or make any
commitment to purchase or acquire any of its Equity Interests in or other
obligations or securities of, or any interest in, any other Person, or make any
Acquisition, or make any advance, loan, extension of credit or capital
contribution to or any other investment in, any other Person, except for:
(a) investments in Cash Equivalent Investments;
(b) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease of goods
or services in the ordinary course of business;
(c) investments by the Company in its Wholly-Owned
Subsidiaries or by any Subsidiary of the Company in any of its
Wholly-Owned Subsidiaries, in the form of contributions to capital or
loans or advances; provided that, immediately before and after giving
effect to such investment, no Default or Event of Default shall have
occurred and be continuing and the aggregate amount invested in Foreign
Subsidiaries of the Company since the date hereof shall not exceed
$20,000,000;
(d) loans or advances made by any Subsidiary of the
Company to the Company;
110
(e) subject to Requirements of Law, loans and advances to
employees in the ordinary course of business (such as travel advances)
in an aggregate amount not to exceed $15,000,000 at any time
outstanding;
(f) investments by the Company and its Subsidiaries in
Joint Ventures in the form of contributions of capital, loans, advances
or Contingent Obligations; provided that, immediately before and after
giving effect to such investment, no Default or Event of Default shall
have occurred and be continuing, including as a result of any failure
by the Company to comply with Section 8.9, and the aggregate amount of
all investments pursuant to this clause (f) shall not exceed
$30,000,000 in the aggregate outstanding at any time;
(g) investments constituting Permitted Swap Obligations
or payments or advances under Swap Contracts relating to Permitted Swap
Obligations;
(h) other investments in an aggregate amount not
exceeding $20,000,000 on and after the date hereof (with all such
investments valued at the time of investment at the cash amount
thereof, if in cash, the fair market value thereof as determined by the
board of directors of the Company, if in property, and at the maximum
amount thereof if in Contingent Obligations);
(i) Acquisitions; provided that:
(i) any such newly created or acquired
Subsidiary shall comply with the requirements of Section 7.15;
(ii) the Company shall have delivered to the
Administrative Agent evidence in form and substance reasonably
satisfactory to the Administrative Agent that the financial
conditions referred to in clause (iii) below with respect to
such Acquisition will be satisfied, together with a statement
of a Responsible Officer of the Company detailing all amounts
required to consummate the prospective Acquisition and a
business description and summary of terms of the prospective
Acquisition,
(iii) all financial covenants in Sections 8.11,
8.12 and 8.13 shall be complied with on a pro forma basis for
the period of four consecutive fiscal quarters ending on the
last day of the last completed fiscal quarter immediately
preceding the proposed date of consummation of the prospective
Acquisition (on the assumption such Acquisition occurred on
the first day of such four fiscal quarter period and using
historical results of the Company and its Subsidiaries and the
related Acquisition Prospect for such period, and including
any pro forma expense and cost reductions calculated on a
basis consistent with Regulation S-X under the Securities
Act),
(iv) such Acquisition shall be consummated in
accordance with all Requirements of Law and the Company and
its Subsidiaries shall have obtained all consents and
approvals necessary or desirable to such consummation and the
111
business operations of such Acquisition Prospect after such
Acquisition, including governmental and contractual approvals,
(v) no Default or Event of Default shall exist
at the time of consummation thereof or would result therefrom,
(vi) the Person to be acquired (or its Board of
Directors or equivalent governing body) has not (A) announced
it will oppose such Acquisition or (B) commenced any action
which alleges that such Acquisition violates, or will violate,
any Requirement of Law, and
(vii) the total consideration for all such
Acquisitions (including cash and noncash purchase price,
liabilities assumed, deferred or financed purchase price,
purchase price characterized as noncompetition payments and
the like) does not exceed in the aggregate during the term of
this Agreement an amount equal to the sum of (A) $200,000,000
plus (B) an amount equal to the aggregate amount received by
the Company as capital contributions from DMFC since the date
of this Agreement; provided that no more than $150,000,000
plus an amount equal to the aggregate amount received by the
Company as capital contributions from DMFC since the date of
this Agreement of such total consideration may be paid with
the proceeds of Indebtedness;
(j) investments in Subsidiaries acquired in Acquisitions
permitted under Section 8.4(i) that are not Wholly-Owned Subsidiaries;
provided that the amount of all such investments, together with the
aggregate total consideration paid in connection with all Acquisitions
permitted by Section 8.4(i) (calculated in the manner set forth in
Section 8.4(i)(vii)) does not exceed in the aggregate during the term
of this Agreement an amount equal to the sum of (A) $200,000,000 plus
(B) an amount equal to the aggregate amount received by the Company as
capital contributions from DMFC after the date hereof; provided further
that all of the other conditions contemplated in Section 8.4(i) are
also met with respect to such investment;
(k) such commitments to enter into transactions otherwise
prohibited by this Section 8.4 to the extent such commitments are
conditioned upon either (i) the receipt of the consent of the Required
Lenders to the consummation of such transaction or (ii) receipt of
proceeds sufficient to repay all amounts outstanding under this
Agreement and the repayment thereof with such proceeds prior to or
contemporaneously with the consummation of such transaction; provided
that in the event that the Total Debt Ratio as of the end of each of
the two most recently consecutive fiscal quarters is less than or equal
to 2.75:1.00 and so long as no Default has occurred and is continuing
the Company and its Subsidiaries shall be permitted to enter into
commitments to enter into transactions otherwise prohibited by this
Section 8.4 without regard to either of the preceding conditions; and
(1) investments in existence on the date hereof which are
set forth on Schedule 8.4(1).
112
For purposes of this Section 8.4 and Section 8.5(l), the amount of any
investment outstanding at any time shall be the total of (x) the original cost
of such investment (meaning the cash amount thereof, if in cash, or the fair
market value thereof as determined by the senior management of the Company, if
in property), without any adjustment for increases or decreases in value or any
writeup or writedown with respect to such investment; provided that any
investment in the form of Contingent Obligations shall be valued at the maximum
reasonably expected liability thereof, minus (y) an amount equal to the lesser
of the return of cash with respect to any such investment (other than a
Contingent Obligation) and the initial amount of such investment, in either
case, less the cost of disposition of such investment.
Section 8.5. Limitation on Indebtedness. The Company shall
not, and shall not permit any of its Subsidiaries to, create, incur, assume,
suffer to exist, or otherwise become or remain directly or indirectly liable
with respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement, the
Subsidiary Guaranty and the other Loan Documents;
(b) Surviving Debt listed on Schedule 6.26 hereof;
(c) Indebtedness in respect of the New Subordinated
Notes; provided that the Subordination Terms are in full force and
effect with respect thereof;
(d) Indebtedness consisting of Contingent Obligations
permitted pursuant to Section 8.8;
(e) so long as No Default or Event of Default has
occurred and is continuing, Indebtedness resulting from any
refinancing, renewal or extension of any Surviving Debt or the New
Subordinated Notes; provided that the amount of such Indebtedness is
not increased at the time of such refinancing, refunding, renewal or
extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder; provided further that (i) no
additional direct obligor or contingent support is provided with
respect to the Indebtedness being so incurred from such contingent
support as is applicable to the Indebtedness being so refinanced,
renewed or extended (including, without limitation, the provision of
any additional guarantees with respect thereto) and (ii) the terms
relating to principal amount, amortization, maturity, collateral (if
any) and subordination (if any), and other material terms taken as a
whole, of any such extending, refunding, or refinancing Indebtedness,
and of any agreement entered into and of any instrument issued in
connection therewith, are not less favorable in any material respect to
the Loan Parties or the Lenders than the terms of any agreement or
instrument governing the Indebtedness being extended, refunded or
refinanced and the interest rate applicable to any such extending,
refunding or refinancing Indebtedness does not exceed the then
applicable market interest rate;
(f) Indebtedness of Subsidiaries of the Company owed to
the Company or Wholly-Owned Subsidiaries of the Company; provided that
(i) any such Indebtedness
113
shall constitute Pledged Debt; and (ii) the aggregate amount of all
such Indebtedness owed by Foreign Subsidiaries of the Company shall not
exceed $40,000,000 at any one time outstanding;
(g) purchase money Indebtedness secured by Liens
permitted by Section 8.1(i); provided, however, that the aggregate
amount of all Indebtedness at any one time outstanding and permitted to
be incurred under this Section 8.5(g) or Section 8.5(h) shall not
exceed $30,000,000;
(h) Indebtedness incurred in respect of any Capital
Leases permitted under Section 8.10; provided, however, that the
aggregate amount of all Indebtedness at any one time outstanding and
permitted to be incurred under this Section 8.5(h) or Section 8.5(g)
shall not exceed $30,000,000;
(i) Indebtedness of the Company or any Subsidiary of the
Company in connection with guaranties resulting from endorsement of
negotiable instruments in the ordinary course of business;
(j) surety bonds and appeal bonds required in the
ordinary course of business or in connection with the enforcement of
rights or claims of the Company or in connection with judgments that do
not result in a Default or Event of Default;
(k) Indebtedness arising under a Permitted Receivables
Facility; provided that the aggregate amount of any such Indebtedness
shall not exceed $100,000,000;
(l) Acquired Indebtedness assumed in Acquisitions
permitted under Section 8.4(i); provided, however, that the aggregate
amount of such Acquired Indebtedness at any one time outstanding shall
not exceed $40,000,000;
(m) Indebtedness incurred in a Sale/Leaseback Transaction
permitted under Section 8.17; and
(n) other Indebtedness in an aggregate principal amount
not to exceed $25,000,000 at any time outstanding.
It is understood that any Indebtedness borrowed in a foreign currency shall
continue to be permitted under this Section, notwithstanding any fluctuation in
the Dollar Amount of such Indebtedness, as long as the outstanding principal
balance of such Indebtedness (denominated in its original currency) does not
exceed the maximum amount of such Indebtedness (denominated in such currency)
permitted to be outstanding on the date such Indebtedness was incurred.
Section 8.6. Transactions with Affiliates. The Company shall
not, and shall not permit any of its Subsidiaries to, enter into any transaction
with any Affiliate of the Company except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary than would be obtainable in a
comparable arm's-length transaction with a Person not an Affiliate of the
Company; provided that the TPG Agreement and the Tax Sharing Agreement shall be
deemed not to violate this Section 8.6.
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Section 8.7. Use of Proceeds. The Company shall not, and shall
not permit any of its Subsidiaries to, use any portion of the proceeds of any
Loan or any Letter of Credit, directly or indirectly, (a) to purchase or carry
Margin Stock, (b) to repay or otherwise refinance indebtedness of the Company or
others incurred to purchase or carry Margin Stock, (c) to extend credit for the
purpose of purchasing or carrying any Margin Stock or (d) to acquire any
security in any transaction that is subject to Section 13 or 14 of the Exchange
Act.
Section 8.8. Contingent Obligations. The Company shall not,
and shall not permit any of its Subsidiaries to, create, incur, assume or suffer
to exist any Contingent Obligation except:
(a) endorsements for collection or deposit in the
ordinary course of business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of the Company and its
Subsidiaries existing as of the date hereof and listed on Schedule
8.8(c) or incurred in connection with the issuance of the New
Subordinated Notes and any replacement, renewal or extension of any
such Contingent Obligation; provided that the amount of any such
Contingent Obligations are not increased at the time of such
replacement, renewal or extension of such Contingent Obligations except
by an amount equal to a reasonable premium or other reasonable amount
paid in respect of the underlying obligations and fees and expenses
reasonably incurred in connection with such replacement, renewal or
extension; provided further that the terms relating to collateral (if
any) and subordination (if any) and other material terms taken as a
whole in respect of such replacement, renewed or extended Contingent
Obligations and of any agreement entered into and of any instrument
issued in connection therewith, are not less favorable in any material
respect to the Loan Parties or the Lenders than the terms of any
agreement or instrument governing the Contingent Obligations being
replaced, renewed or extended;
(d) Contingent Obligations arising under the Loan
Documents;
(e) Guaranty Obligations with respect to or constituting
obligations of the Company or any of its Subsidiaries that are
permitted under Section 8.5; and
(f) Contingent Obligations with respect to Joint Ventures
to the extent permitted by Section 8.9.
Section 8.9. Joint Ventures. The Company shall not, and shall
not permit any of its Subsidiaries to, enter into any Joint Venture, except that
the Company or any such Subsidiary may enter into any Joint Venture so long as
the aggregate amount invested by the Company and its Subsidiaries in all Joint
Ventures in any form (including by capital contribution, incurrence of
Indebtedness by any such Joint Venture to the Company or any such Subsidiary or
the incurrence of Contingent Obligations by the Company or any of its
Subsidiaries with respect to any such Joint Venture), during the term of this
Agreement does not exceed $40,000,000; provided, however, that for purposes of
determining the aggregate amount invested in Joint Ventures hereunder (a) any
return of principal or equity received in cash on any amount invested
115
hereunder and (b) the fair market value of any other property received in
exchange for any amount invested hereunder shall be deducted.
Section 8.10. Lease Obligations. The Company shall not, and
shall not permit any of its Subsidiaries to, create or suffer to exist any
obligations for the payment of rent for any property under lease or agreement to
lease, except for:
(a) leases of the Company, Existing Del Monte and their
respective Subsidiaries in existence on the date hereof and in the case
of any Loan Party, set forth on part (b) of Schedule 6.18 and any
renewal, extension or refinancing of any thereof;
(b) operating leases entered into by the Company or any
of its Subsidiaries after the date hereof in the ordinary course of
business;
(c) Capital Leases entered into by the Company or any of
its Subsidiaries; provided that no Default or Event of Default has
occurred and is continuing or will result from the incurrence of the
obligations contemplated thereby; and
(d) operating leases entered into by the Company or any
of its Subsidiaries in connection with any Sale/Leaseback Transaction
permitted under Section 8.17; provided that no Default or Event of
Default has occurred and is continuing or will result from the
incurrence of the obligations contemplated thereby.
Section 8.11. Minimum Fixed Charge Coverage. The Fixed Charge
Coverage Ratio for any Computation Period set forth herein shall not be less
than the ratio set forth below opposite the period in which such Computation
Period ends:
Period Ratio
------ -----
December 20, 2002 through the fiscal year 1.40:1.00
ending closest to April 30,2005
July 31, 2005 and thereafter 1.50:1.00
Section 8.12. Minimum Interest Coverage. The Interest Coverage
Ratio for any Computation Period set forth below shall not be less than the
ratio set forth below opposite the period in which such Computation Period ends:
116
Period Ratio
------ -----
December 20, 2002 through the fiscal year 3.25:1.00
ending closest to April 30, 2004
July 31, 2004 through the fiscal year ending 3.75:1.00
closest to April 30, 2005
July 31, 2005 and thereafter 4.25:1.00
Section 8.13. Maximum Total Debt Ratio. The Total Debt Ratio
for any Computation Period set forth below shall not exceed the ratio set forth
below opposite the period in which such Computation Period ends:
Period Ratio
------ -----
December 20, 2002 through the fiscal year 4.00:1.00
ending closest to April 30,2004
July 31, 2004 through the fiscal year ending 3.25:1.00
closest to April 30, 2005
July 31, 2005 and thereafter 2.50:1.00
Section 8.14. Maximum Capital Expenditures. The Company shall
not permit the aggregate amount of all Capital Expenditures (but excluding for
the purpose of the fiscal year ending on April 30, 2003, any Capital Expenditure
incurred prior to the date hereof) by it and its Subsidiaries made during any
fiscal year to exceed the Base Amount (as defined below); provided that to the
extent Capital Expenditures actually made in any fiscal year (beginning with the
fiscal year ending April 30, 2003) are less than the Base Amount for such fiscal
year, the lesser of (a) the amount of the difference and (b) $25,000,000 may be
carried forward and used to make Capital Expenditures in the two next succeeding
fiscal years; provided further that in any fiscal year, Capital Expenditures
made shall be applied first to the Base Amount for such fiscal year and second
to reduce a carryforward from the least recent fiscal year prior to reducing any
other carryforward. When used herein, "BASE AMOUNT" means, with respect to each
fiscal year ending on or closest to (i) April 30, 2003, $60,000,000, (ii) April
30, 2004 or April 30, 2005, $105,000,000 and (iii) April 30, 2006 and
thereafter, $80,000,000. Notwithstanding the foregoing, the Company shall be
entitled to incur the Synthetic Lease Capital Expenditure.
Section 8.15. Restricted Payments. The Company shall not, and
shall not permit any of its Subsidiaries to, (a) declare or make any dividend
payment or other distribution of assets, properties, cash, rights, obligations
or securities on account of any shares of any class of Equity Interests in such
Person, or purchase, redeem or otherwise acquire for value any shares of Equity
Interests in such Person or any warrants, rights or options to acquire such
shares, now or hereafter outstanding, or (b) make any redemptions, prepayments,
defeasances or repurchases of any Subordinated Debt except that:
117
(i) any Subsidiary of the Company may declare and pay
dividends to the Company or a Wholly-Owned Subsidiary of the Company;
(ii) the Company may declare and make dividend payments or
other distributions payable solely in Common Stock;
(iii) any Surviving Debt or the New Subordinated Notes may
be repaid using the Net Cash Proceeds of any Indebtedness permitted to
be incurred in connection with the refinancing of such Indebtedness
pursuant to Section 8.5(1) or, in the case of the Existing Subordinated
Notes or New Subordinated Notes, exchanged for other notes or debt
securities meeting the requirements of Section 8.5(e);
(iv) so long as no Default or Event of Default has
occurred and is continuing or would result therefrom, the Company or
any of its Subsidiaries may purchase (or may pay a dividend to DMFC to
enable DMFC to purchase) (A) Equity Interests in any Loan Party or
options with respect to Equity Interests in any Loan Party held by
employees or management of DMFC or any of its Subsidiaries in
connection with the termination of employment of any such employees or
management and (B) Equity Interests in any Loan Party for the purpose
of holding such Equity Interest for future issuance under an employee
stock plan; provided that all such payments in the aggregate for
clauses (A) and (B) do not exceed $10,000,000 in any fiscal year or
$15,000,000 in the aggregate from and after the date hereof;
(v) so long as no Default or Event of Default has
occurred and is continuing or would result therefrom, the Company may
pay dividends to DMFC in an amount not to exceed 25% of Consolidated
Net Income of the Company in any fiscal year; provided that the Company
may only pay dividends pursuant to this clause (v) if, after giving
effect thereto, the Company's pro forma Total Debt Ratio for the last
four fiscal quarters immediately preceding the date of such dividend
(determined as if such all dividends had been made on the first day of
such period), would be less than 2,75:1.0;
(vi) so long as no Default or Event of Default has
occurred and is continuing or would result therefrom, the Company may
repurchase or redeem up to $25,000,000 of Existing Subordinated Notes
or New Subordinated Notes;
(vii) so long as no Default or Event of Default has
occurred and is continuing or would result therefrom, the Company may
repurchase or redeem Existing Subordinated Notes or New Subordinated
Notes in an amount not to exceed the portion of Net Cash Proceeds of an
issuance of Equity Interests in DMFC that is not used to finance
Acquisitions under Section 8.4(i); provided that any such repurchase or
redemption shall be made within 60 days of the receipt of such Net Cash
Proceeds;
(viii) the Company may make payments to DMFC at the times
and in the amounts provided for in the Tax Sharing Agreement; and
(ix) the Company may make payments to DMFC in amounts not
to exceed $2,500,000 per fiscal year to reimburse DMFC for expenses
incurred by DMFC in the ordinary course of business.
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Section 8.16. ERISA. The Company shall not, and shall not
permit any of its ERISA Affiliates to: (a) engage in a prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan which
has resulted or would reasonably be expected to result in a Material Adverse
Effect; or (b) engage in a transaction that could reasonably be expected to be
subject to Section 4069 or 4212(c) of ERISA.
Section 8.17. Limitations on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Subsidiaries to, enter
into any arrangement with any Person providing for the leasing by the Company or
any of its Subsidiaries of any real or personal property, which property is or
has been sold or transferred by the Company or any of its Subsidiaries to such
Person in contemplation of taking back a lease thereof (a "SALE/LEASEBACK
TRANSACTION"); provided, however, that the Company or any of its Subsidiaries
may enter into Sale/Leaseback Transactions if, with respect to each such
Sale/Leaseback Transaction (a) the Company or such Subsidiary is permitted to
incur or suffer to exist the Lien resulting therefrom and the Indebtedness
related thereto under Section 8.1(j), (b) the Company or such Subsidiary is
permitted to dispose of the property disposed of in such Sale/Leaseback
Transaction under Section 8.2(f) or 8.2(g) and (c) the Company or such
Subsidiary is permitted to lease the property relating thereto under Section
8.10.
Section 8.18. Limitation on Restriction of Subsidiary
Dividends and Distributions. The Company shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer
to exist or become effective any encumbrance or restriction on the ability of
any Subsidiary of the Company to (a) pay dividends or make other distributions
on its Equity Interests owned by the Company or any Subsidiary of the Company,
or pay any Indebtedness owed to the Company or any Subsidiary of the Company,
(b) make loans or advances to the Company or (c) transfer any of its assets or
properties to the Company, except for such encumbrances or restrictions existing
by reason of or under (i) Requirements of Law, (ii) this Agreement and the other
Loan Documents, (iii) customary non-assignment provisions of any contract or
lease governing a leasehold or ownership interest of any Subsidiary of the
Company, (iv) any instrument governing Acquired Indebtedness, which encumbrance
or restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person or the properties or assets of the Person so
acquired, (v) customary net worth provisions contained in leases and other
agreements entered into by a Subsidiary of the Company in the ordinary course of
business, (vi) customary restrictions with respect to a Subsidiary of the
Company pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Equity Interests in such
Subsidiary, (vii) customary provisions in joint venture agreements and other
similar agreements relating solely to the securities, assets and revenues of
such joint venture or other business venture, (viii) the Existing Subordinated
Notes Indenture, as in effect on the date hereof and the New Subordinated Note
Documents and (ix) any agreement governing Indebtedness incurred to refinance
the Indebtedness issued, assumed or incurred pursuant to an agreement referred
to in clause (iv) above; provided, however, that the provisions relating to such
encumbrance or restriction contained in any such Indebtedness are not, in the
aggregate, materially less favorable to the Company as determined by the Board
of Directors of the Company in its reasonable and good faith judgment than the
provisions relating to such encumbrance or restriction contained in the
agreements referred to in such clause (iv).
119
Section 8.19. Inconsistent Agreements. The Company shall not,
and shall not permit any of its Subsidiaries to, enter into any agreement
containing any provision which would be violated or breached by any borrowing by
the Company hereunder or by the performance by any Loan Party of their
respective obligations hereunder or under any other Loan Document. The Company
will not, and will not permit any of its Subsidiaries to, enter into any
agreement (other than this Agreement and the other Loan Documents) prohibiting
the creation or assumption of any Lien upon its properties, revenues or assets,
whether now owned or hereafter acquired, or the ability of the Company and its
Subsidiaries to amend or modify this Agreement or any other Loan Document, other
than (i) the Existing Subordinated Notes Indenture, (ii) the New Subordinated
Notes Documents, (iii) any agreement in connection with Permitted Liens
described in Sections 8.1(i) and 8.1(j) if such prohibition is by its terms
effective only against the assets subject to such Permitted Lien, and (iv) in
favor of the Secured Parties.
Section 8.20. Change in Business. The Company shall not, and
shall not permit any of its Subsidiaries to, engage in any material business
other than production, processing and related distribution of food and beverage
products and other related businesses.
Section 8.21. Amendments to Certain Documents. The Company
shall not make or agree to any amendment to or modification of, or waive any of
their respective rights under, any of the terms of (a) any Related Document, (b)
any Existing Subordinated Notes Document, (c) any New Subordinated Notes
Document, (d) any other Subordinated Debt Document, (e) the Tax Sharing
Agreement or (f) the TPG Agreements, unless, in any case, any such amendment,
modification or waiver is not adverse in any respect to the Lenders.
Section 8.22. Accounting Changes. The Company shall not, and
shall not permit any Material Subsidiary to, (a) change accounting policies or
reporting practices, except as required by generally accepted accounting
principles, or (b) change its fiscal year; provided that any Material Subsidiary
acquired in an Acquisition permitted hereunder may change its fiscal year to the
Sunday closest to April 30.
Section 8.23. Limitation on Issuance of Guaranty Obligations.
The Company shall not permit any of its Subsidiaries to create, incur, assume,
suffer to exist, or otherwise become or remain directly or indirectly liable
with respect to any Guaranty Obligation of such Subsidiary relating to any
Indebtedness of the Company or any other Loan Party unless:
(a) such Subsidiary, if it is not already a party to the
Subsidiary Guaranty, simultaneously executes and delivers to the
Administrative Agent a counterpart to the Subsidiary Guaranty, together
with such supporting documentation as the Administrative Agent may
reasonably request, notwithstanding Section 7.15,
(b) if such Indebtedness is by its terms subordinated to
the Obligations, any such assumption, guaranty or other liability of
such Subsidiary with respect to such Indebtedness shall be
subordinated, in form and substance satisfactory to the Administrative
Agent, to such Subsidiary's Guaranty Obligation with respect to the
Obligations to the same extent as such Indebtedness is subordinated to
the Obligations; provided that such Subsidiary's Guaranty Obligation of
such Indebtedness of the Company shall be subordinated to the full
amount of such Subsidiary's Guaranty
120
Obligation under the Subsidiary Guaranty without giving effect to any
reduction thereto necessary to render the Guaranty Obligation of such
Subsidiary thereunder not voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer, and
(c) such Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any right of
reimbursement, indemnity or subrogation or any other rights against the
Company or any other Subsidiary as a result of any payment by such
Subsidiary under such Guaranty Obligation unless and until payment in
full in cash is made of such Indebtedness of the Company.
Section 8.24. Senior Debt Designation. The Company shall not
designate any Indebtedness as "Designated Senior Debt" pursuant to the terms of
the Existing Subordinated Notes Indenture or the New Subordinated Notes
Indenture (or make any comparable designation with respect to any Subordinated
Debt Notes Document). The Company shall not permit any of its Subsidiaries to,
designate any Indebtedness as "Guarantor Designated Senior Debt" pursuant to the
terms of the Existing Subordinated Indenture or the New Subordinated Notes
Indenture (or make any comparable designation with respect to any Subordinated
Debt Document).
Section 8.25. Amendment of Constitutive Documents. The Company
shall not, and shall not permit any of its Subsidiaries to, amend its
Organizational Documents, unless, in any case, any such amendment is not
materially adverse in any respect to the Lenders.
Section 8.26. Partnerships, Etc. The Company shall not, and
shall not permit any of its Subsidiaries to, become a general partner in any
general or limited partnership or joint venture, other than any newly created
Subsidiary (a) the sole assets of which consist of its interest in such
partnership or joint venture, and (b) the assets of which shall have been
isolated from the assets of the Company or any of the other Loan Parties.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.1. Event of Default. Any of the following shall
constitute an "EVENT OF DEFAULT":
(a) Non-Payment. The Company fails to pay, when and as
required to be paid herein, any amount of principal of any Loan or of
any L/C Obligation, or, within three days after the same becomes due,
any amount of interest or any fees or other amounts payable hereunder
or under any other Loan Document.
(b) Representation or Warranty. Any representation or
warranty by any Loan Party made or deemed made herein or in any other
Loan Document, or which is contained in any certificate, document or
financial or other statement by any Loan Party or any Responsible
Officer of any thereof furnished at any time under this Agreement or
any other Loan Document, is incorrect in any material respect on or as
of the date made or deemed made.
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(c) Specific Defaults. The Company fails to perform or
observe any term, covenant or agreement contained in any of Section 7.3
or Article VIII (other than Section 8.1, 8.5, 8.6, 8.17, 8.24 or
8.25).
(d) Other Defaults. The Company or DMFC fails to perform
or observe any term or covenant contained in Section 8.1, 8.5, 8.6,
8.17 or 8.24 of this Agreement or Section 7(j) of the DMFC Guaranty and
such default shall continue unremedied for a period of 10 days after
the earlier of (i) the date upon which a Responsible Officer knew or
reasonably should have known of such failure or (ii) the date upon
which written notice thereof is given to the Company by the
Administrative Agent or any Lender; or any Loan Party fails to perform
or observe any other term or covenant contained in this Agreement
(other than Section 7.3, Article VIII or Section 7(j) of the DMFC
Guaranty) or any other Loan Document, and such default shall continue
unremedied for a period of 30 days after the earlier of (A) the date
upon which a Responsible Officer of such Loan Party knew or reasonably
should have known of such failure or (B) the date upon which written
notice thereof is given to the Company by the Administrative Agent or
any Lender.
(e) Cross-Default. (i) Any Loan Party or any of their
respective Subsidiaries (A) fails to make any payment when due (whether
by scheduled maturity, required prepayment, acceleration, demand or
otherwise, but subject to any applicable grace period) in respect of
any Indebtedness or Contingent Obligation (other than in respect of
Swap Contracts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) or more than $25,000,000, or
(B) fails to observe or perform any other agreement or condition
relating to any such Indebtedness or Contingent Obligation or contained
in any instrument or agreement evidencing, security or relating
thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Contingent
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to be demanded or become due or to be
repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such
Contingent Obligation to become payable or cash collateral in respect
thereof to be demanded; or (ii) there occurs under any Swap Contract an
Early Termination Date (as defined in such Swap Contract) resulting
from (A) any event of default under such Swap Contract as to which any
Loan Party is the Defaulting Party (as defined in such Swap Contract)
or (b) any Termination Event (as defined in such Swap Contract) under
such Swap Contract as to which any Loan Party is an Affected Party (as
defined in such Swap Contract) and, in either event, the Swap
Termination Value owed by the relevant Loan Party or such Subsidiary as
a result thereof is greater than $10,000,000.
(f) Insolvency, Voluntary Proceedings. The Company, DMFC
or any of their respective Material Subsidiaries: (i) generally fails
to pay, or admits in writing its inability to pay, its debts as they
become due; (ii) voluntarily ceases to conduct its business in the
ordinary course (other than as expressly permitted under this
Agreement);
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(iii) commences any Insolvency Proceeding with respect to itself; or
(iv) takes any action to effectuate or authorize any of the foregoing.
(g) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the Company, DMFC
or any of their respective Material Subsidiaries, or any writ,
judgment, warrant of attachment, warrant of execution or similar
process is issued or levied against a substantial part of the
Company's, DMFC's or any of their respective Material Subsidiaries'
properties, and such proceeding or petition shall not be dismissed, or
such writ, judgment, warrant of attachment, warrant of execution or
similar process shall not be released, vacated or fully bonded within
60 days after commencement, filing or levy; (ii) the Company, DMFC or
any Material Subsidiary of either thereof admits the material
allegations of a petition against it in any Insolvency Proceeding, or
an order for relief (or similar order under non-U.S. law) is ordered in
any Insolvency Proceeding; or (iii) the Company, DMFC or any Material
Subsidiary of either thereof acquiesces in the appointment of a
receiver, trustee, custodian, conservator, liquidator, mortgagee in
possession (or agent therefor) or other similar Person for itself or a
substantial portion of its property or business.
(h) ERISA. (i) One or more ERISA Events shall occur with
respect to a Pension Plan or Multiemployer Plan which has resulted or
could reasonably be expected to result in liability of the Company
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the
PBGC in an aggregate amount in excess of $25,000,000; (ii) a
contribution failure shall have occurred with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA; or
(iii) the Company or any of its ERISA Affiliates shall fail to pay
when due, after the expiration of any applicable grace period, one or
more installment payments with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan which results
in an aggregate withdrawal liability in excess of $25,000,000.
(i) Monetary Judgments. One or more judgments, orders,
decrees or arbitration awards is entered against the Company, DMFC or
any of their respective Subsidiaries involving in the aggregate a
liability (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), as to any
single or related series of transactions, incidents or conditions, of
$25,000,000 or more, and the same shall remain undischarged, unvacated
and unstayed pending appeal for a period of 30 days after the entry
thereof, or the Company, DMFC or any of their respective Subsidiaries
shall enter into any agreement to settle or compromise any pending or
threatened litigation, as to any single or related series of claims,
involving payment by the Company, DMFC or any of their respective
Subsidiaries of $25,000,000 or more.
(j) Non-Monetary Judgments. Any non-monetary judgment,
order or decree is entered against the Company, DMFC or any of their
respective Subsidiaries which has or would reasonably be expected to
have a Material Adverse Effect, and there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect.
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(k) Change of Control. Any Change of Control occurs.
(l) Guarantor Defaults. Any Guaranty shall cease to be in
full force and effect with respect to any Guarantor (other than as
expressly permitted hereunder), or any Guarantor (or any Person acting
by, through or on behalf of such Guarantor) shall contest in any manner
the validity, binding nature or enforceability of any Guaranty with
respect to such Guarantor.
(m) Collateral Documents, Etc. At any time after the Time
of Merger, any Collateral Document shall cease to be in full force and
effect with respect to the Company, DMFC or any other Loan Party (other
than pursuant to its terms or as expressly permitted hereunder), or the
Company, DMFC or any other Loan Party (or any Person acting by, through
or on behalf of the Company, DMFC or any other Loan Party) shall
contest in any manner the validity, binding nature or enforceability of
any Collateral Document.
(n) Merger. The Time of Merger shall not have occurred
within 24 hours of the Initial Distribution Date.
Section 9.2. Remedies. If any Event of Default occurs, the
Administrative Agent shall, at the request of, or may, with the consent of, the
Required Lenders do any or all of the following:
(a) declare the commitment of each Lender to make Loans
and any obligation of the Issuing Lender to Issue Letters of Credit to
be terminated, whereupon such commitments and obligations shall be
terminated; provided that if any Event of Default occurs after the
making of the Term Loans, the Revolving Credit Commitments shall, at
the request of, or may, with the consent of, the Required Revolving
Credit Lenders (and not the Required Lenders), be terminated;
(b) declare an amount equal to the maximum aggregate
amount that is or at any time thereafter may become available for
drawing under any outstanding Letter of Credit (whether or not any
beneficiary shall have presented, or shall be entitled at such time to
present, the drafts or other documents required to draw under such
Letter of Credit) to be immediately due and payable, and declare the
unpaid principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Company;
(c) require that the Company Cash Collateralize the L/C
Obligations in an amount equal to 105% of the aggregate undrawn amount
of Letters of Credit; and
(d) exercise on behalf of itself and the Lenders all
rights and remedies available to it and the Lenders under the Loan
Documents or applicable law;
provided, however, that upon the occurrence of any Event of Default specified in
Section 9.1(f)or 9.1(g), the obligation of each Lender to make Loans and the
obligation of the Issuing Lender
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to Issue Letters of Credit shall automatically terminate, the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable, and the obligation of the Company to
Cash Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent, the
Issuing Lender or any other Lender.
Section 9.3. Application of Funds. After the exercise of
remedies provided for in Section 9.2 (or after the Loans have automatically
become immediately due and payable and the L/C Obligations have automatically
been required to be Cash Collateralized as set forth in the proviso to Section
9.2), any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:
first, to payment of that portion of the Obligations
constituting fees, indemnities, expenses and other amounts (including
Attorney Costs payable under Section 11.4 and amounts payable under
Article IV) payable to the Administrative Agent and the Collateral
Agent in their respective capacities as such;
second, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts (other than principal
and interest) payable to the Lenders (including Attorney Costs payable
under Section 11.4 and amounts payable under Article IV), ratably among
them in proportion to the amounts described in this clause second
payable to them;
third, to payment of that portion of the Obligations
constituting accrued and unpaid interest on the Loans and L/C
Borrowings, ratably among the Lenders in proportion to the respective
amounts described in this clause third payable to them;
fourth, to payment of that portion of the Obligations
constituting unpaid principal of the Loans and L/C Borrowings, ratably
among the Lenders in proportion to the respective amounts described in
this clause fourth held by them;
fifth, to the Administrative Agent for the account of the
Issuing Lender, to Cash Collateralize that portion of L/C Obligations
in an amount equal to 105% of the aggregate undrawn amount of Letters
of Credit; and
last, the balance, if any, after all of the Obligations have
been indefeasibly paid in full, to the Company or as otherwise required
by law.
Subject to Section 3.3, amounts used to Cash Collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause fifth above shall be applied to
satisfy drawings under such Letters of Credit as they occur. If any amount
remains on deposit as Cash Collateral after all Letters of Credit have either
been fully drawn, cancelled, terminated or expired, such remaining amount shall
be applied to the other Obligations, if any, in the order set forth above.
Section 9.4. Rights Not Exclusive. The rights provided for in
this Agreement and the other Loan Documents are cumulative and are not exclusive
of any other rights, powers, privileges or remedies provided by law or in
equity, or under any other instrument, document or agreement now existing or
hereafter arising.
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ARTICLE X
THE AGENTS
Section 10.1. Appointment and Authorization. (a) Each Lender
(in its capacity as a Lender, Swingline Lender (if applicable), Issuing Lender
(if applicable) and a potential hedge counterparty) hereby irrevocably (subject
to Section 10.9) appoints, designates and authorizes Bank of America as the
Administrative Agent and Collateral Agent for the Lenders or Secured Parties as
the case may be, to take such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such powers and perform
such duties as are expressly delegated to it by the terms of this Agreement or
any other Loan Document, together with such powers as are reasonably incidental
thereto. Each Lender hereby further appoints JPMorgan Chase as Syndication Agent
for the Lenders and Xxxxxx Xxxxxxx and UBS, as Co-Documentation Agents for the
Lenders. The Syndication Agent and the Co-Documentation Agents, in their
respective capacities as such, shall have no rights or duties hereunder or under
any other Loan Document. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document, neither the
Administrative Agent nor the Collateral Agent shall have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent or the Collateral Agent have or be deemed to have any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent or the Collateral Agent. Without limiting the generality of
the foregoing sentence, the use of the term "agent" in this Agreement and in the
other Loan Documents with reference to the Administrative Agent or the
Collateral Agent is not intended to connote any fiduciary or other implied (or
express) obligation arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b) The Issuing Lender shall act on behalf of the Lenders
with respect to any Letters of Credit Issued by it and the documents associated
therewith, and the Issuing Lender shall have all of the benefits and immunities
(i) provided to the Administrative Agent in this Article X with respect to any
acts taken or omissions suffered by the Issuing Lender in connection with
Letters of Credit Issued by it or proposed to be Issued by it and the
applications and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Administrative Agent", as used in this Article X
and in the definition of "Agent-Related Person" included the Issuing Lender with
respect to such acts or omissions and (ii) as additionally provided in this
Agreement with respect to the Issuing Lender.
Section 10.2. Delegation of Duties. The Administrative Agent
and the Collateral Agent may execute any of their duties under this Agreement or
any other Loan Document (including for purposes of holding or enforcing any Lien
on the Collateral (or any portion thereof) granted under the Collateral
Documents or of exercising any rights and remedies thereunder) by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. Neither the Administrative Agent nor the Collateral Agent shall be
responsible for the negligence
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or misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
Section 10.3. Liability of Agents. None of the Agent-Related
Persons shall (a) be liable for any action taken or omitted to be taken by any
of them under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct in connection with its duties expressly set forth herein) or
(b) be responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party or any Subsidiary
or Affiliate thereof, or any officer thereof, contained in this Agreement or in
any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
or the Collateral Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or the existence,
creation, validity, attachment, perfection, enforceability, value or sufficiency
of any collateral security for the Obligations or for any failure of the Company
or any other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
or participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any Loan
Party or any of their respective Subsidiaries or Affiliates.
Section 10.4. Reliance by Agents. (a) The Administrative Agent
and the Collateral Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to any Loan Party),
independent accountants and other experts selected by the Administrative Agent
and the Collateral Agent. The Administrative Agent and the Collateral 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 Required Lenders as it deems appropriate and, if it so
requests, 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. The Administrative Agent and
the Collateral Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Required Lenders (or such greater
number of Lenders or may be expressly required hereby in any instance) and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all of the Lenders.
(b) For purposes of determining compliance with the
conditions specified in Section 5.1, each Lender that has signed this Agreement
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 a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Initial
Distribution Date specifying its objection thereto.
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Section 10.5. Notice of Default. Neither the Administrative
Agent nor the Collateral Agent shall be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default except, in the case of the
Administrative Agent, with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent or the Collateral Agent,
as the case may be, shall have received written notice from a Lender or the
Company referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default". Each of the
Administrative Agent and the Collateral Agent will notify the Lenders of its
receipt of any such notice. The Administrative Agent shall take such action with
respect to such Default or Event of Default as may be directed by the Required
Lenders in accordance with Article IX; provided, however, that unless and until
the Administrative Agent or the Collateral Agent, as the case may be, has
received any such direction, the Administrative Agent or the Collateral Agent,
as the case may be, may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Lenders.
Section 10.6. Credit Decision; Disclosure of Information by
Administrative Agent. Each Lender acknowledges that none of the Agent-Related
Persons has made any representation or warranty to it, and that no act by the
Administrative Agent or the Collateral Agent hereafter taken, including any
consent to and acceptance of any assignment or review of the affairs of any Loan
Party and its Subsidiaries and Affiliates, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender as to any
matter, including whether Agent-Related Persons have disclosed material
information in their possession. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their respective Affiliates, and all applicable bank or other
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Company
and the other Loan Parties hereunder. Each Lender also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company and the other Loan Parties. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Administrative Agent, or the Collateral Agent, as the case may
be, neither the Administrative Agent nor the Collateral Agent shall have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any Loan Party and their respective
Affiliates which may come into the possession of any of the Agent-Related
Persons.
Section 10.7. Indemnification of Agents. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand the Agents and the Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Company or any Guarantor and without limiting
the obligation of the Company or any such Guarantor to do
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so), pro rata, and hold harmless the Agents and the Agent-Related Persons from
and against any and all Indemnified Liabilities incurred by the Agents or the
Agent-Related Persons in their capacities as such; provided, however, that no
Lender shall be liable for the payment to any Agent or Agent-Related Person of
any portion of the Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent's or such Agent-Related Person's own gross negligence or willful
misconduct; provided further, however, that no action taken in accordance with
the directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section. In the case of
any investigation, litigation or proceeding giving rise to any Indemnified
Liabilities, this Section 10.7 applies whether any such investigation,
litigation or proceeding is brought by an Lender or any other Person. Without
limitation of the foregoing, each Lender shall reimburse each Agent upon demand
for its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by such Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that such Agent is not reimbursed for such expenses by or on behalf of the
Company. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of any Agent.
Section 10.8. Bank of America, JPMorgan Chase, Harris Bank,
Xxxxxx Xxxxxxx and UBS in Their Individual Capacity. Each of Bank of America,
JPMorgan Chase, Harris Bank, Xxxxxx Xxxxxxx and UBS and each of their respective
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the Loan
Parties and their respective Affiliates as though Bank of America, JPMorgan
Chase, Harris Bank, Xxxxxx Xxxxxxx or UBS, as the case may be, were not an Agent
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, each of Bank of America, JPMorgan
Chase, Harris Bank, Xxxxxx Xxxxxxx or UBS or any of their respective Affiliates
may receive information regarding the Loan Parties or their respective
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Loan Parties or such Affiliates) and acknowledge
that no Agent shall be under any obligation to provide such information to them.
With respect to its Loans, each of Bank of America, JPMorgan Chase, Harris Bank,
Xxxxxx Xxxxxxx or UBS or any of their respective Affiliates shall have the same
rights and powers under this Agreement as any other Lender Parties and may
exercise such rights and powers as though, and the terms "Lender" and "Lenders"
include Bank of America, JPMorgan Chase, Harris Bank, Xxxxxx Xxxxxxx and UBS
even in its individual capacity.
Section 10.9. Successor Administrative Agent. The
Administrative Agent may, and at the request of the Required Lenders shall,
resign as Administrative Agent upon 30 days' notice to the Lenders and the
Company; provided that any such resignation by Bank of America shall also
constitute a resignation as Collateral Agent, Issuing Lender and Swingline
Lender. If the Administrative Agent resigns under this Agreement, the Required
Lenders shall, with the consent of the Company so long as no Default or Event of
Default has occurred and is continuing (which consent shall not be unreasonably
withheld or delayed), appoint from among the Lenders a successor agent for the
Lenders. If no successor administrative agent is appointed prior to the
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effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Company, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent, Collateral Agent, Issuing Lender
and Swingline Lender and the respective terms "Administrative Agent",
"Collateral Agent", "Issuing Lender" and "Swingline Lender" shall mean such
successor administrative agent, collateral agent, Letter of Credit issuer and
swing line lender, and the retiring Administrative Agent's appointment, powers
and duties as Administrative Agent shall be terminated and the retiring
Collateral Agent's, Issuing Lender's and Swingline Lender's rights, powers and
duties as such shall be terminated, without any other or further act or deed on
the part of such retiring Collateral Agent, Issuing Lender or Swingline Lender
or any other Lender, other than the obligation of the successor Issuing Lender
to issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or to make other arrangements
satisfactory to the retiring Issuing Lender to effectively assume the
obligations of the retiring Issuing Lender with respect to such Letters of
Credit. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article X and Sections 11.4 and
11.5 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
agent has accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.
Section 10.10. Collateral Agent May File Proofs of Claim. In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Collateral Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Collateral Agent shall have made any demand on the Company) shall be
entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable in order to
have the claims of the Lenders and the Collateral Agent (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders and the Collateral Agent and their respective
agents and counsel and all other amounts due the Lenders and the
Collateral Agent under Sections 2.10, 3.8 and 11.4) allowed in such
judicial proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the
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Collateral Agent and, in the event that the Collateral Agent shall consent to
the making of such payments directly to the Lenders, to pay to the Collateral
Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Collateral Agent and its agents and counsel, and any other
amounts due the Collateral Agent under Sections 2.10 and 11.4.
Nothing contained herein shall be deemed to authorize the
Collateral Agent to authorize or consent to or accept or adopt on behalf of any
Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Collateral Agent to vote in respect of the claim of any Lender in any such
proceeding.
Section 10.11. Collateral and Guaranty Matters. The Lenders
irrevocably authorize the Collateral Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or
held by the Collateral Agent under any Loan Document (i) upon
termination of the Commitments and payment in full of all Obligations
(other than contingent indemnification obligations) and the expiration,
termination, cancellation or cash collateralization of all Letters of
Credit, (ii) that is sold or to be sold as part of or in connection
with any sale permitted hereunder or under any other Loan Document, or
(iii) subject to, Section 11.1, if approved, authorized or ratified in
writing by the Required Lenders;
(b) to subordinate any Lien on any property granted to or
held by the Collateral Agent under any Loan Document to the holder of
any Lien on such property that is permitted by Section 8.1(i) or
8.1(j); and
(c) to release any Material Subsidiary from its
obligations under any Loan Document to which it is a party if such
ceases to be a Material Subsidiary of the Company or DMFC as a result
of a transaction permitted hereunder.
Upon request by the Collateral Agent at any time, the Required
Lenders will confirm in writing the Collateral Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section
10.11.
Section 10.12. Other Agents; Arrangers and Managers. None of
the Lenders or other Persons identified on the facing page or signature pages of
this Agreement as a "syndication agent", "co-documentation agent", "co-agent",
"book manager", "lead manager", "arranger", "lead arranger" or "co-arranger"
shall have any right, power, obligation, liability, responsibility or duty under
this Agreement other than, in the case of such Lenders, those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders or other
Persons so identified shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders or other Persons so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
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ARTICLE XI
MISCELLANEOUS
Section 11.1. Amendments and Waivers. No amendment or waiver
of any provision of this Agreement or any other Loan Document, and no consent
with respect to any departure by any Loan Party therefrom, shall be effective
unless the same shall be in writing and signed by the Required Lenders and such
Loan Party and acknowledged by the Administrative Agent, and then any such
waiver or consent shall be effective only if in writing and in the specific
instance and for the specific purpose for which given; provided that no such
amendment, waiver or consent shall:
(a) waive any condition set forth in Section 5.1 or 5.2
without the written consent of each Lender;
(b) extend or increase any Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 9.2) or require
any Lender to make any Loan in excess of such Lender's ratable share of
any Borrowing without the written consent of such Lender;
(c) postpone any date scheduled for any payment of
principal (or reduce the amount of principal scheduled for payment on
such date) or interest under Section 2.8 or 2.9 or any date fixed by
the Administrative Agent for the payment of fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan
Document without the written consent of each Lender directly affected
thereby;
(d) reduce the principal of, or the rate of interest
specified herein on, any Loan or L/C Borrowing, or any fees or other
amounts payable hereunder or under any other Loan Document, or change
the computation of any financial ratio (including any change in any
applicable defined term) used in determining the Applicable Percentage
or Applicable Rate that would result in a reduction of any interest
rate on any Loan or any fee payable hereunder without the written
consent of each Lender directly affected thereby;
(e) change Section 2.13 or Section 9.3 in a manner that
would alter the pro rata sharing or application of payments required
thereby without the prior written consent of each of the Required Term
A Lenders, the Required Term B Lenders and the Required Revolving
Credit Lenders;
(f) change the order of application of any reduction in
the Commitments in the applicable provisions of Section 2.6 in any
manner that materially and adversely affects the Lenders under such
Facilities, without the written consent of each Lender so affected;
(g) change any provision of this Section 11.1 or the
definition of "REQUIRED LENDERS", "REQUIRED REVOLVING CREDIT LENDERS",
"REQUIRED TERM A LENDERS" or "REQUIRED TERM B LENDERS" or any other
provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights
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hereunder or make any determination or grant any consent hereunder,
without the written consent of each relevant Lender;
(h) waive, amend or consent to any change in the advance
rates or any other term of the definition of "BORROWING BASE" or the
definitions of "ELIGIBLE INVENTORY" or "ELIGIBLE RECEIVABLES" or this
Section 11.1(h) without the written consent of the Required Term A
Lenders, Required Term B Lenders and the Required Revolving Credit
Lenders;
(i) waive, amend or consent to any change in the
definition of "MANDATORY PREPAYMENT EVENT" or any provision of this
Agreement or any other Loan Document which would result in any change
in the allocation of Designated Proceeds to prepay any of the
outstanding Loans pursuant to Section 2.7 or this Section 11.1(i)
without the written consent of the Required Term A Lenders, Required
Term B Lenders and the Required Revolving Credit Lenders;
(j) waive, amend or consent to any change in respect of
Section 2.7(a)(ii) or Section 2.7(g) to the extent such provision
specifically relates to the Term B Lenders, without the written consent
of the Required Term B Lenders;
(k) release all or substantially all of the Collateral in
any transaction or series of related transactions without the written
consent of each Lender; or
(1) release any Guarantor (other than any Non-Material
Subsidiary Guarantor) from any Guaranty Obligation under the Loan
Documents without the written consent of each Lender;
and provided further that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Lender in addition to the Lenders required
above, affect the rights or duties of the Issuing Lender under this Agreement or
any Letter of Credit Application relating to any Letter of Credit issued or to
be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above,
affect the rights or duties of the Swing Line Lender under this Agreement; (iii)
no amendment, waiver or consent shall, unless in writing and signed by any
relevant Agent in addition to the Lenders required above, affect the rights or
duties of such Agent under this Agreement or any other Loan Document; (iv)
Section 11.7(h) may not be amended, waived or otherwise modified without the
consent of each Granting Lender all or any part of whose Loans are being funded
by an SPC at the time of such amendment, waiver or other modification; (v) prior
to the Time of Merger, no amendment, waiver or consent shall be effective unless
in writing and signed by Existing Del Monte; (vi) any waiver of any failure to
comply with the provisions of Section 7.15(d) or 7.15(e) for a period of thirty
days after the period provided for in such Section for compliance therewith
shall be effective with the sole written consent of each of the Arrangers; and
(vii) the Fee Letter may be amended, or rights or privileges thereunder waived,
in a writing executed only by the parties thereto.
Section 11.2. Notices and Other Communications; Facsimile
Copies. (a) General. Unless otherwise expressly provided herein, all notices and
other communications
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provided for hereunder shall be in writing (including by facsimile
transmission). All such written notices shall be mailed, faxed or delivered to
the applicable address, facsimile number or (subject to clause (c) below)
electronic mail address, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:
(i) if to the Company, the Administrative Agent, the
Collateral Agent, the Issuing Lender or the Swingline Lender, to the
address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 11.2 or to such other address,
facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile
number, electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Company, the Administrative
Agent, the Issuing Lender and the Swingline Lender.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails (certified or registered), postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone;
and (D) if delivered by electronic mail (which form of delivery is subject to
the provisions of Section 11.2(c) below), when delivered; provided, however,
that notices and other communications to the Administrative Agent, the Issuing
Lender and the Swingline Lender pursuant to Article II shall not be effective
until actually received by such Person. In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures.
Loan Documents may be transmitted and/or signed by facsimile. The effectiveness
of any such documents and signatures shall, subject to applicable law, have the
same force and effect as manually-signed originals and shall be binding on each
Loan Party, the Agents and the Lenders. The Administrative Agent may also
require that any such documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the failure to request or deliver the
same shall not limit the effectiveness of any facsimile document or signature.
(c) Electronic Communications. Notices and other
communications to the Agents, the Lenders, the Issuing Lender or the Swingline
Lender hereunder may be delivered or furnished by electronic communications
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II or III unless otherwise agreed by the
Administrative Agent and the applicable Lender and, to the extent applicable,
Swingline Lender and the Issuing Lender. The Administrative Agent or the Company
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices
or communications.
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(d) Reliance by Agents and Lenders. The Administrative
Agent, the Collateral Agent and the Lenders shall be entitled to rely and act
upon any notices (including telephonic Notices of Borrowing and Notices of
Conversion/Continuation) purportedly given by or on behalf of the Company even
if (i) such notices were not made in a manner specified herein, were incomplete
or were not preceded or followed by any other form of notice specified herein,
or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Company shall indemnify each Agent-Related Person and
each Lender from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the
Company. All telephonic notices to and other communications with the
Administrative Agent and the Collateral Agent may be recorded by the
Administrative Agent and the Collateral Agent, and each of the parties hereto
hereby consents to such recording.
Section 11.3. No Waiver; Cumulative Remedies. No failure by
any Lender, the Administrative Agent or the Collateral Agent to exercise, and no
delay by any such Person in exercising any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
Section 11.4. Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby
are consummated, pay or reimburse the Agents and the Arrangers and
their Affiliates (including Bank of America in its capacities as
Swingline Lender and Issuing Lender) within five Business Days after
demand therefor (subject to Sections 5.1(b), 5.2(b) and S.2(c)) for all
reasonable and documented costs and expenses incurred by the Agents and
the Arrangers and their Affiliates in connection with the development,
preparation, delivery, administration and execution of, and any
amendment, supplement, waiver or modification to (in each case, whether
or not consummated), this Agreement, any Loan Document and any other
document prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby,
including Attorney Costs incurred by the Agents and the Arrangers with
respect thereto; and
(b) pay or reimburse the Administrative Agent, the
Collateral Agent and each Lender within five Business Days after demand
therefor (subject to Sections 5.1(b), 5.2(b) and 5.2(c)) (i) for so
long as no Insolvency Proceeding with respect to any Loan Party or any
enforcement action with respect to the Collateral has been commenced,
the Attorney Costs of the Administrative Agent and the Collateral Agent
and all other costs and expenses incurred by either thereof or any
Lender (other than any Attorney Costs) or (ii) in the event (A) any
Insolvency Proceeding has been commenced with respect to any Loan Party
or (B) any enforcement action with respect to the Collateral has been
commenced, the Attorney Costs of the Administrative Agent, the
Collateral Agent and each Lender and all other costs and expenses
incurred by them in connection, in either case, with the enforcement,
attempted enforcement or preservation of any right or remedy under this
Agreement or any other Loan Document.
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The foregoing costs and expenses shall include all search,
filing, recording, title insurance and appraisal charges and fees and taxes
related thereto, and other out-of-pocket expenses incurred by the Administrative
Agent, the Collateral Agent and the cost of independent public accountants and
other outside experts retained by the Administrative Agent, the Collateral Agent
or any Lender. The agreements in this Section shall survive the termination of
the Commitments and repayment of all other Obligations.
Section 11.5. Company Indemnification. Whether or not the
transactions contemplated hereby are consummated, the Company shall indemnify
and hold the Agent-Related Persons, each Agent and each Lender and each of their
respective Affiliates, officers, directors, employees, counsel, agents,
investment advisers, trustees and attorneys-in-fact (each an "INDEMNIFIED
PERSON") harmless from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, charges,
expenses and disbursements (including Attorney Costs) of any kind or nature
whatsoever (excluding costs and expenses specifically referred to in Section
11.4) which may at any time (including at any time following repayment of the
Loans, the termination of the Letters of Credit and the termination, resignation
or replacement of any Agent or replacement of any Lender) be imposed on,
incurred by or asserted against any such Indemnified Person in any way relating
to or arising out of or in connection with (a) the execution, delivery,
enforcement, performance or administration of any Loan Document or any other
agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the transactions contemplated
thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use
of the proceeds therefrom (including any refusal by the Issuing Lender to honor
a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (c) any actual or alleged presence or release of Hazardous Materials
on or from any property currently or formerly owned or operated by any Loan
Party or Affiliate thereof, or any environmental liability related in any way to
any Loan Party or Affiliate thereof, or (d) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including any investigation
of, preparation for, or defense of any pending or threatened claim,
investigation, litigation or proceeding) and regardless of whether any
Indemnified Person is a party thereto (all the foregoing, collectively, the
"INDEMNIFIED LIABILITIES"), in all cases, whether or not caused by or arising,
in whole or in part, out of the negligence of any Indemnified Person; provided
that such indemnity shall not, as to any Indemnified Person, be available to the
extent that such Indemnified Liabilities are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted directly and
primarily from the gross negligence or willful misconduct of such Indemnified
Person. No Indemnified Person shall be liable for any damages arising from the
use by others of any information or other materials obtained through IntraLinks
or other similar information transmission systems in connection with this
Agreement, nor shall any Indemnified Person have any liability for any indirect
or consequential damages relating to this Agreement or any other Loan Document
or arising out of its activities in connection herewith or therewith (whether
before or after the date hereof). In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 11.5 applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party or any other Person, whether or not an
Indemnified Person is otherwise a party thereto and whether or not any of the
transactions contemplated hereunder or under any of the other Loan Documents
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are consummated. All amounts due under this Section 11.5 shall be payable within
five Business Days after demand therefor. The agreements in this Section shall
survive the resignation of any Agent, the replacement of any Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of
all the other Obligations. Each Agent-Related Person and each Lender agrees that
in the event that any investigation, litigation or proceeding is asserted or
threatened in writing or instituted against it or any other Indemnified Person,
or any remedial, removal or response action which is requested of it or any
other Indemnified Person, for which any Agent-Related Person or Lender may
desire indemnity or defense hereunder, such Agent-Related Person or such Lender
shall notify the Company in writing of such event; provided that failure to so
notify the Company shall not affect the right of any Agent-Related Person or
Lender to seek indemnification under this Section.
Section 11.6. Payments Set Aside. To the extent that any
payment by or on behalf of the Company is made to any Agent or the Lenders, or
any Agent or the Lenders exercise their right of set-off, and such payment or
the proceeds of such set-off or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by such Agent or Lender in its
discretion) to be repaid to a trustee or receiver, or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Lender
severally agrees to pay to the Administrative Agent or the Collateral Agent, as
the case may be, upon demand its pro rata share of any amount so recovered from
or repaid by the Administrative Agent or the Collateral Agent, as the case may
be, plus interest thereon from the date of such demand to the date such payment
is made at a rate per annum equal to the Federal Fund Rate from time to time in
effect.
Section 11.7. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that
the Company may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of Section 11.7(b), (ii) by way of participation in accordance with the
provisions of Section 11.7(d), (iii) by way of pledge or assignment of a
security interest subject to the restrictions of Section 11.7(f) or (i) of this
Section, or (iv) to an SPC in accordance with the provisions of Section 11.7(h)
of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in 11.7(d) of this Section and, to the extent expressly
contemplated hereby, the Indemnified Persons) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans (including
for purposes of this Section 11.7(b), participations in L/C Obligations and in
Swingline Loans) at the time owing to it); provided that (i) except in the case
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of an assignment of the entire remaining amount of the assigning Lender's
Commitment and the Loans at the time owing to it or in the case of an assignment
to a Lender or an Affiliate of a Lender or an Approved Fund (as defined in
Section 11.7(j)) of any Lender, the aggregate amount of the Commitment (which
for this purpose includes Loans outstanding thereunder) subject to each such
assignment, determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if "Trade Date"
is specified in the Assignment and Assumption, as of the Trade Date, shall not
be less than $5,000,000 in the case of any assignment of any rights or
obligations in respect of any of the Term A Facility or the Revolving Credit
Facility or $1,000,000 or Euro 1,000,000, as applicable, in the case of any
assignment of any rights or obligations in respect of the Term B Facility unless
each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Company otherwise consents (each such consent
not to be unreasonably withheld or delayed); (ii) each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the Loans or the
Commitment assigned, except that this clause (ii) shall not apply to rights in
respect of Swingline Loans; (iii) any assignment of a Commitment must be
approved by the Administrative Agent, the Issuing Lender and the Swingline
Lender unless the Person that is the proposed assignee is itself a Lender
(whether or not the proposed assignee would otherwise qualify as an Eligible
Assignee); and (iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500. Subject to acceptance and recording
thereof by the Administrative Agent pursuant to Section 11.7(c), from and after
the effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
4.1, 4.4, 4.5, 11.4 and 11.5 with respect to facts and circumstances occurring
prior to the effective date of such assignment); provided, however, the Company
shall not as a result of any assignment, delegation or participation by any
Lender, incur any increased liability for Taxes or Other Taxes pursuant to
Section 4.1 at the time of such assignment, delegation or participation. Upon
request, the Company (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this subsection shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with Section 11.7(d).
(c) The Administrative Agent, acting solely for this
purpose as an agent of the Company, shall maintain at the Agent's Payment Office
a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "REGISTER"). The entries in
the Register shall be conclusive, and the Company, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the
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contrary. The Register shall be available for inspection by the Company and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Any Lender may at any time, without the consent of,
or notice to, the Company or the Administrative Agent, sell participations to
any Person (other than a natural person or the Company or any of the Company's
Affiliates or Subsidiaries) (each, a "PARTICIPANT") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swingline Loans) owing to it); provided
that (i) such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Company, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 11.1 that directly affects such Participant. Subject to subsection (e)
of this Section, the Company agrees that each Participant shall be entitled to
the benefits of Sections 4.1,4.4 and 4.5 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 11.9 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any
greater payment under Section 4.1 or 4.4 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Company's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 4.1
unless the Company is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Company, to comply with Section
11.17 as though it were a Lender.
(f) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) As used herein, the following terms have the
following meanings:
"ELIGIBLE ASSIGNEE" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) an Approved Fund; and (iv) any other Person (other than a
natural person) approved by (A) the Administrative Agent, the Issuing
Lender and the Swingline Lender, and (B) unless an Event of Default has
occurred and is continuing, the Company (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding the
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foregoing, "ELIGIBLE ASSIGNEE" shall not include the Company or any of
the Company's Affiliates or Subsidiaries.
"FUND" means any Person (other than a natural person) that is
(or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the
ordinary course of its business.
"APPROVED FUND" means any Fund that is administered or managed
by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an
Affiliate of an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained
herein, any Lender (a "GRANTING LENDER") may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Company (an "SPC") the option to provide all
or any part of any Loan that such Granting Lender would otherwise be obligated
to make pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to fund any Loan, and (ii) if an SPC elects
not to exercise such option or otherwise fails to make all or any part of such
Loan, the Granting Lender shall be obligated to make such Loan pursuant to the
terms hereof. Each party hereto hereby agrees that (i) neither the grant to any
SPC nor the exercise by any SPC of such option shall increase the costs or
expenses or otherwise increase or change the obligations of the Company under
this Agreement (including its obligations under Section 4.4), (ii) no SPC shall
be liable for any indemnity or similar payment obligation under this Agreement
for which a Lender would be liable, and (iii) the Granting Lender shall for all
purposes, including the approval of any amendment, waiver or other modification
of any provision of any Loan Document, remain the lender of record hereunder.
The making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior debt of any SPC, it will not
institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained herein, any SPC may (i) with notice to, but
without prior consent of the Company and the Administrative Agent and without
paying any processing fee therefor assign all or any portion of its right to
receive payment with respect to any Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its
funding of Loans to any rating agency, commercial paper dealer or provider of
any surety or Guarantee or credit or liquidity enhancement to such SPC.
(i) Notwithstanding anything to the contrary contained
herein, any Lender that is a Fund may create a security interest in all or any
portion of the Loans owing to it and the Note, if any, held by it to the trustee
for holders of obligations owed, or securities issued, by such Fund as security
for such obligations or securities; provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
Section 11.7, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender
140
under the Loan Documents even though such trustee may have acquired ownership
rights with respect to the pledged interest through foreclosure or otherwise.
Section 11.8. Confidentiality. Each of the Administrative
Agent, the Collateral Agent and the Lenders agrees to maintain, and to cause its
Affiliates to maintain, the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (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); (b) to the extent requested
by any regulatory authority; (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process; (d) to any other party
to this Agreement; (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any Eligible Assignee of
or Participant in, or any prospective Eligible Assignee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of any Loan Party;
(g) with the consent of the Company; (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent, the Collateral Agent or any
Lender on a nonconfidential basis from a source other than the Company; or (i)
to the National Association of Insurance Commissioners or any other similar
organization. In addition, the Administrative Agent and the Lenders may disclose
the existence of this Agreement and information about this Agreement to market
data collectors, similar service providers to the lending industry, and service
providers to the Administrative Agent, the Collateral Agent and the Lenders in
connection with the administration and management of this Agreement, the other
Loan Documents, the Commitments, and the extensions of credit hereunder. For the
purposes of this Section, "INFORMATION" means all information received from any
Loan Party relating to any Loan Party or their respective businesses, other than
any such information that is available to the Administrative Agent, the
Collateral Agent or any Lender on a nonconfidential basis prior to disclosure by
any Loan Party.
Section 11.9. Set-off. (a) In addition to any right or remedy
of the Lenders provided by law, if an Event of Default exists, or the Loans have
been accelerated, each Lender is authorized at any time and from time to time,
without prior notice to the Loan Party, any such notice being waived by such
Loan Party to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held by, and other indebtedness at any time owing by, such Lender or any
Affiliate of such Lender to or for the credit or the account of such Loan Party
against any and all Obligations then due and owing to such Lender and each
Affiliate of such Lender and each Lender and Affiliate of such Lender is hereby
irrevocably authorized to permit such set-off and application. Each Lender
agrees promptly to notify the Company and the Administrative Agent after any
such set-off and application made by such Lender or its Affiliates; provided
that the failure to give such notice shall not affect the validity of such
set-off and application.
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(b) Notwithstanding anything in clause (a) to the
contrary, if at any time the Obligations shall be secured by real property
located in the State of California, no Lender shall exercise any such right of
set-off or take any other similar action unless such action is taken by the
Collateral Agent or the Required Lenders or approved in writing by the
Collateral Agent or Required Lenders, if the effect of such set-off or other
action would or might (pursuant to Sections 580a, 580b, 580d and 726 of the
California Code of Civil Procedure or Section 2924 of the California Civil Code,
if applicable, or otherwise) affect or impair the validity, priority or
enforceability of the Liens granted to the Secured Parties pursuant to the
Collateral Documents or the enforceability of the notes or any of the other
Obligations, and any attempted exercise by an Lender of any such right without
obtaining such consent of the Collateral Agent or the Required Lenders shall be
null and void. This clause (b) shall be solely for the benefit of each of the
Lenders.
Section 11.10. Automatic Debits of Fees. With respect to any
commitment fee, arrangement fee, agency fee, letter of credit fee or other fee,
or any other cost or expense (including Attorney Costs) due and payable to the
Administrative Agent, the Collateral Agent, the Swingline Lender or the Issuing
Lender under the Loan Documents, the Company or any of its Subsidiaries hereby
irrevocably authorizes Bank of America to debit any deposit account of the
Company or any of its Subsidiaries with Bank of America in an amount such that
the aggregate amount debited from all such deposit accounts does not exceed such
fee or other cost or expense. If there are insufficient funds in such deposit
accounts to cover the amount of the fee or other cost or expense then due, such
debits will be reversed (in whole or in part, in Bank of America's sole
discretion) and such amount not debited shall be deemed to be unpaid. No such
debit under this Section shall be deemed a set-off.
Section 11.11. Notification of Addresses, Lending Offices,
Etc. Each Lender shall notify the Administrative Agent in writing of any change
in the address to which notices to such Lender should be directed, of addresses
of any Lending Office, of payment instructions in respect of all payments to be
made to it hereunder and of such other administrative information as the
Administrative Agent shall reasonably request.
Section 11.12. Interest Rate Limitation. Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable law (the "MAXIMUM RATE"). If the
Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to the Company.
In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.
Section 11.13. Counterparts. This Agreement may be executed in
any number of separate counterparts, each of which, when so executed, shall be
deemed an original, and all of which taken together shall constitute but one and
the same instrument.
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Section 11.14. Integration. This Agreement, together with the
other Loan Documents, comprises the complete and integrated agreement of the
parties on the subject matter hereof and thereof and supersedes all prior
agreements, written or oral, on such subject matter. In the event of any
conflict between the provisions of this Agreement and those of any other Loan
Document, the provisions of this Agreement shall control; provided that the
inclusion of supplemental rights or remedies in favor of the Administrative
Agent, the Collateral Agent or the Lenders in any other Loan Document shall not
be deemed a conflict with this Agreement. Each Loan Document was drafted with
the joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
Section 11.15. Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent, the Collateral Agent and each Lender, regardless of any
investigation made by the Administrative Agent, the Collateral Agent or any
Lender or on their behalf and notwithstanding that the Administrative Agent, the
Collateral Agent or any Lender may have had notice or knowledge of any Default
at the time of any extension of credit hereunder, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
Section 11.16. Severability. If any provision of this
Agreement or the other Loan Documents is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of this Agreement and the other Loan Documents shall not be affected
or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 11.17. Tax Forms. (a) (i) Each Lender that is not a
"United States person" within the meaning of Section 7701(a)(30) of the Code (a
"FOREIGN LENDER") shall deliver to the Administrative Agent and the Company,
prior to receipt of any payment subject to withholding under the Code (or upon
accepting an assignment of an interest herein), two duly signed completed copies
of either IRS Form W-8BEN or any successor thereto (relating to such Foreign
Lender and entitling it to an exemption from, or reduction of, withholding tax
on all payments to be made to such Foreign Lender by any Loan Party pursuant to
this Agreement or any other Loan Document) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Foreign Lender by the Loan
Party pursuant to this Agreement or any other Loan Document) or such other
evidence satisfactory to the Loan Party and the Administrative Agent and the
Company that such Foreign Lender is entitled to an exemption from, or reduction
of, U.S. withholding tax, including any exemption pursuant to Section 881(c) of
the Code. Thereafter and from time to time, each such Foreign Lender shall (A)
upon the written request of the Administrative Agent, the Company or any other
Loan Party promptly submit to the Administrative Agent and the Company such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by
143
the relevant United States taxing authorities) as may then be available under
then current United States laws and regulations to avoid, or such evidence as is
satisfactory to the Company and the Administrative Agent of any available
exemption from or reduction of, United States withholding taxes in respect of
all payments to be made to such Foreign Lender by the Loan Party pursuant to
this Agreement and (B) promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(ii) Each Foreign Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of any sums paid
or payable to such Lender under any of the Loan Documents (for example, in the
case of a typical participation by such Lender), shall deliver to the
Administrative Agent and the Company on the date when such Foreign Lender ceases
to act for its own account with respect to any portion of any such sums paid or
payable, and at such other times as may be necessary in the determination of the
Administrative Agent (in the reasonable exercise of its discretion), (A) two
duly signed completed copies of the forms or statements required to be provided
by such Lender as set forth above, to establish the portion of any such sums
paid or payable with respect to which such Lender acts for its own account that
is not subject to U.S. withholding tax, and (B) two duly signed completed copies
of IRS Form W-8IMY (or any successor thereto), together with any information
such Lender chooses to transmit with such form, and any other certificate or
statement of exemption required under the Code, to establish that such Lender is
not acting for its own account with respect to a portion of any such sums
payable to such Lender.
(iii) No Loan Party shall be required to pay any additional
amount to any Foreign Lender under Section 4.1 (A) with respect to any Taxes
required to be deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender transmits with an IRS Form
W-8IMY pursuant to this Section 11.17(a) or (B) if such Lender shall have failed
to satisfy the foregoing provisions of this Section 11.17(a); provided that if
such Lender shall have satisfied the requirement of this Section 11.17(a) on the
date such Lender became a Lender or ceased to act for its own account with
respect to any payment under any of the Loan Documents, nothing in this Section
11.17(a) shall relieve any Loan Party of its obligation to pay any amounts
pursuant to Section 4.1 in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation or order, or any change
in the interpretation, administration or application thereof, such Lender is no
longer properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender or other Person for the
account of which such Lender receives any sums payable under any of the Loan
Documents is not subject to withholding or is subject to withholding at a
reduced rate.
(iv) The Administrative Agent may, without reduction,
withhold any Taxes required to be deducted and withheld from any payment under
any of the Loan Documents with respect to which any Loan Party is not required
to pay additional amounts under this Section 11.17(a).
(b) Upon the request of the Administrative Agent, each
Lender that is a "United States person" within the meaning of Section
7701(a)(30) of the Code shall deliver to the Administrative Agent two duly
signed completed copies of IRS Form W-9. If such Lender
144
fails to deliver such forms, then the Administrative Agent may withhold from any
interest payment to such Lender an amount equivalent to the applicable back-up
withholding tax imposed by the Code, without reduction.
(c) If any Governmental Authority asserts that the
Administrative Agent did not properly withhold or backup withhold, as the case
may be, any tax or other amount from payments made to or for the account of any
Lender, such Lender shall indemnify the Administrative Agent therefor, including
all penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation of the
Lenders under this Section shall survive the termination of the Commitments,
repayment of all other Obligations hereunder and the resignation of the
Administrative Agent.
Section 11.18. Replacement of Lenders. Under any circumstances
set forth herein providing that the Company shall have the right to replace a
Lender as a party to this Agreement, the Company may, upon notice to such Lender
and the Administrative Agent, replace such Lender by causing such Lender to
assign its Commitments (with the assignment fee to be paid by the Company in
such instance) pursuant to Section 11.7(b) to one or more other Lenders or
Eligible Assignees procured by the Company; provided, however, that if the
Company elects to exercise such right with respect to any Lender pursuant to
Section 4.6(b), it shall be obligated to replace all Lenders that have made
similar requests for compensation pursuant to Section 4.1 or 4.4. The Company
shall (a) pay in full all principal, interest, fees and other amounts owing to
such Lender through the date of replacement (including any amounts payable
pursuant to Section 4.5), (b) provide appropriate assurances and indemnities
(which may include letters of credit) to the Issuing Lender and the Swingline
Lender as each may reasonably require with respect to any continuing obligation
to fund participation interests in any L/C Obligations or any Swingline Loans
then outstanding, and (c) release such Lender from its obligations under the
Loan Documents. Any Lender being replaced shall execute and deliver an
Assignment and Assumption with respect to such Lender's Commitments and
outstanding Loans and participations in L/C Obligations and Swingline Loans.
Section 11.19. Third Parties. Other than with respect to
Existing Del Monte prior to the Time of Merger, this Agreement is made and
entered into for the sole protection and legal benefit of the Company, the
Secured Parties, the Administrative Agent and the Agent-Related Persons, and
their permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement or any other Loan Document.
Section 11.20. Governing Law and Jurisdiction. (a) THIS
AGREEMENT AND ANY NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE ADMINISTRATIVE AGENT, THE
COLLATERAL AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL
LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE XXXXX
XX XXX XXXX XX XX XXX XXXXXX XXXXXX FOR THE
000
XXXXXXXX XXXXXXXX XX XXX XXXX, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE
LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE LENDERS IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE AGENT,
THE COLLATERAL AGENT AND THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
NEW YORK LAW.
Section 11.21. Waiver of Jury Trial. THE COMPANY, THE LENDERS,
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT EACH WAIVE THEIR RESPECTIVE
RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE COMPANY, THE LENDERS, THE
ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT EACH AGREE THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY
JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENT, RENEWAL,
SUPPLEMENT OR MODIFICATION TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
146
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
SKF FOODS INC. (to be known after the
consummation of the Transactions as DEL MONTE
CORPORATION),
By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Treasurer
RATIFIED (after giving effect to the Merger):
DEL MONTE CORPORATION (formerly known
as SKF FOODS INC.)
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
_________________________________
Title: Treasurer
________________________________
BANK OF AMERICA, N.A.,
as Administrative Agent, Collateral Agent,
Issuing Lender and Swingline Lender
By:
----------------------------------
Name: ________________________________
Title:________________________________
JPMORGAN CHASE BANK, as Syndication
Agent
By: /s/ B. Xxxxxx Xxxxxx
----------------------------------
Name: B. Xxxxxx Xxxxxx
Title: Managing Director
XXXXXX TRUST AND SAVINGS BANK,
as Co-Documentation Agent
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
XXXXXX XXXXXXX & CO. INCORPORATED,
as Co-Documentation Agent
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
UBS WARBURG LLC, as Co-Documentation
Agent
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Executive Director
By: /s/ Xxxxxx X.X. Xxxxxx
---------------------------------
Name: Xxxxxx X.X. Xxxxxx
Title: Director
BANK OF AMERICA, N.A., as Lender
By:
----------------------------------
Name: ________________________________
Title:________________________________