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EXHIBIT 10.2
EXECUTION COPY
U.S. $250,000,000
CREDIT AGREEMENT,
dated as of January 28, 1999,
among
NEW WORLD PASTA COMPANY
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
CERTAIN FINANCIAL INSTITUTIONS
as the Co-Agents for the Lenders
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Syndication Agent,
and
THE BANK OF NOVA SCOTIA,
as the Lead Arranger and as the Administrative Agent for the Lenders.
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS........................3
SECTION 1.1. Defined Terms...........................................3
SECTION 1.2. Use of Defined Terms...................................33
SECTION 1.3. Cross-References.......................................33
SECTION 1.4. Accounting and Financial Determinations................33
ARTICLE II COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, AND NOTES AND LETTERS OF CREDIT............34
SECTION 2.1. Commitments............................................34
SECTION 2.1.1. Term Loan Commitments..................................34
SECTION 2.1.2. Revolving Loan Commitment and Swing Line Loan
Commitment.............................................35
SECTION 2.1.3. Letter of Credit Commitment............................35
SECTION 2.1.4. Lenders Not Permitted or Required To Make the Loans....35
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters
of Credit..............................................36
SECTION 2.2. Reduction of the Commitment Amounts....................36
SECTION 2.2.1. Optional...............................................36
SECTION 2.2.2. Mandatory..............................................37
SECTION 2.3. Borrowing Procedures and Funding Maintenance...........37
SECTION 2.3.1. Term Loans and Revolving Loans.........................37
SECTION 2.3.2. Swing Line Loans.......................................38
SECTION 2.4. Continuation and Conversion Elections..................39
SECTION 2.5. Funding................................................40
SECTION 2.6. Issuance Procedures....................................40
SECTION 2.6.1. Other Lenders' Participation...........................41
SECTION 2.6.2. Disbursements; Conversion to Revolving Loans...........41
SECTION 2.6.3. Reimbursement..........................................42
SECTION 2.6.4. Deemed Disbursements...................................42
SECTION 2.6.5. Nature of Reimbursement Obligations....................43
SECTION 2.7. Register; Notes........................................44
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES.............45
SECTION 3.1. Repayments and Prepayments; Application................45
SECTION 3.1.1. Repayments and Prepayments.............................45
SECTION 3.1.2. Application............................................51
SECTION 3.2. Interest Provisions....................................51
SECTION 3.2.1. Rates..................................................52
SECTION 3.2.2. Post-Maturity Rates....................................52
SECTION 3.2.3. Payment Dates..........................................52
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SECTION 3.3. Fees...................................................53
SECTION 3.3.1. Commitment Fee.........................................53
SECTION 3.3.2. Administrative Agent's Fee.............................53
SECTION 3.3.3. Letter of Credit Fee...................................53
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS.................54
SECTION 4.1. LIBO Rate Lending Unlawful.............................54
SECTION 4.2. Deposits Unavailable...................................54
SECTION 4.3. Increased LIBO Rate Loan Costs, etc....................55
SECTION 4.4. Funding Losses.........................................55
SECTION 4.5. Increased Capital Costs................................56
SECTION 4.6. Taxes..................................................56
SECTION 4.7. Payments, Computations, etc............................58
SECTION 4.8. Sharing of Payments....................................58
SECTION 4.9. Setoff.................................................59
SECTION 4.10. Mitigation.............................................59
ARTICLE V CONDITIONS TO CREDIT EXTENSIONS........................61
SECTION 5.1. Initial Credit Extension...............................61
SECTION 5.1.1. Resolutions, etc.......................................61
SECTION 5.1.2. Recapitalization Documents.............................62
SECTION 5.1.3. Transaction Certificate................................62
SECTION 5.1.4. Consummation of Transactions...........................62
SECTION 5.1.5. Closing Date Certificate...............................62
SECTION 5.1.6. Delivery of Notes......................................62
SECTION 5.1.7. Payment of Outstanding Indebtedness, etc...............62
SECTION 5.1.8. Subsidiary Guaranty....................................63
SECTION 5.1.9. Pledge Agreements......................................63
SECTION 5.1.10. Security Agreements....................................63
SECTION 5.1.11. Mortgages..............................................64
SECTION 5.1.12. Financial Information, etc.............................64
SECTION 5.1.13. Solvency, etc..........................................65
SECTION 5.1.14. Equity Purchase and Bridge Financing...................65
SECTION 5.1.15. Closing Fees, Expenses, etc............................65
SECTION 5.1.16. Trademark Security Agreements, Copyright Security
Agreement, Patent Security Agreement...................65
SECTION 5.1.17. Litigation.............................................65
SECTION 5.1.18. Material Adverse Change................................65
SECTION 5.1.19. Reliance Letters.......................................66
SECTION 5.1.20. Intentionally Omitted..................................66
SECTION 5.1.21. Opinions of Counsel....................................66
SECTION 5.2. All Credit Extensions..................................66
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SECTION 5.2.1. Compliance with Warranties, No Default, etc...........66
SECTION 5.2.2. Credit Extension Request..............................67
ARTICLE VI REPRESENTATIONS AND WARRANTIES........................67
SECTION 6.1. Organization, etc.....................................67
SECTION 6.2. Due Authorization, Non-Contravention, etc.............68
SECTION 6.3. Government Approval, Regulation, etc..................68
SECTION 6.4. Validity, etc.........................................68
SECTION 6.5. Financial Information.................................69
SECTION 6.6. No Material Adverse Change............................69
SECTION 6.7. Litigation, Labor Controversies, etc..................69
SECTION 6.8. Subsidiaries..........................................69
SECTION 6.9. Ownership of Properties...............................70
SECTION 6.10. Taxes.................................................70
SECTION 6.11. Pension and Welfare Plans.............................70
SECTION 6.12. Environmental Warranties..............................70
SECTION 6.13. Regulations U and X...................................72
SECTION 6.14. Accuracy of Information...............................72
SECTION 6.15. Seniority of Obligations, etc.........................72
SECTION 6.16. Solvency..............................................73
SECTION 6.17. Year 2000.............................................73
SECTION 6.18. Recapitalization Agreement............................73
ARTICLE VII COVENANTS.............................................74
SECTION 7.1. Affirmative Covenants.................................74
SECTION 7.1.1. Financial Information, Reports, Notices, etc..........74
SECTION 7.1.2. Compliance with Laws, etc.............................76
SECTION 7.1.3. Maintenance of Properties.............................76
SECTION 7.1.4. Insurance.............................................76
SECTION 7.1.5. Books and Records.....................................77
SECTION 7.1.6. Environmental Covenant................................78
SECTION 7.1.7. Future Subsidiaries...................................78
SECTION 7.1.8. Future Leased Property and Future Acquisitions of
Real Property.........................................79
SECTION 7.1.9. Use of Proceeds, etc..................................80
SECTION 7.1.10. Hedging Obligations...................................80
SECTION 7.1.11. Shareholder Pledge Agreement..........................81
SECTION 7.2. Negative Covenants....................................81
SECTION 7.2.1. Business Activities...................................81
SECTION 7.2.2. Indebtedness..........................................81
SECTION 7.2.3. Liens.................................................83
SECTION 7.2.4. Financial Condition...................................84
SECTION 7.2.5. Investments...........................................86
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SECTION 7.2.6. Restricted Payments, etc...............................88
SECTION 7.2.7. Capital Expenditures, etc..............................90
SECTION 7.2.8. Consolidation, Merger, etc.............................91
SECTION 7.2.9. Asset Dispositions, etc................................92
SECTION 7.2.10. Modification of Certain Agreements.....................92
SECTION 7.2.11. Transactions with Affiliates...........................93
SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc..........93
SECTION 7.2.13. Stock of Subsidiaries..................................94
SECTION 7.2.14. Sale and Leaseback.....................................94
ARTICLE VIII EVENTS OF DEFAULT......................................94
SECTION 8.1. Listing of Events of Default...........................94
SECTION 8.1.1. Non-Payment of Obligations.............................94
SECTION 8.1.2. Breach of Warranty.....................................94
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations...95
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations.....95
SECTION 8.1.5. Default on Other Indebtedness..........................95
SECTION 8.1.6. Judgments..............................................95
SECTION 8.1.7. Pension Plans..........................................95
SECTION 8.1.8. Change in Control......................................95
SECTION 8.1.9. Bankruptcy, Insolvency, etc............................96
SECTION 8.1.10. Impairment of Security, etc............................96
SECTION 8.1.11. Subordinated Notes and Senior Subordinated High
Yield Notes............................................97
SECTION 8.1.12. Redemption.............................................97
SECTION 8.2. Action if Bankruptcy, etc..............................97
SECTION 8.3. Action if Other Event of Default.......................97
ARTICLE IX THE AGENTS.............................................98
SECTION 9.1. Actions................................................98
SECTION 9.2. Funding Reliance, etc..................................98
SECTION 9.3. Exculpation............................................99
SECTION 9.4. Successor..............................................99
SECTION 9.5. Credit Extensions by each Agent.......................100
SECTION 9.6. Credit Decisions......................................100
SECTION 9.7. Copies, etc...........................................100
SECTION 9.8. The Co-Agents.........................................100
ARTICLE X MISCELLANEOUS PROVISIONS..............................101
SECTION 10.1. Waivers, Amendments, etc..............................101
SECTION 10.2. Notices...............................................102
SECTION 10.3. Payment of Costs and Expenses.........................102
SECTION 10.4. Indemnification.......................................103
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SECTION 10.5. Survival..............................................104
SECTION 10.6. Severability..........................................104
SECTION 10.7. Headings..............................................104
SECTION 10.8. Execution in Counterparts, Effectiveness, etc.........105
SECTION 10.9. Governing Law; Entire Agreement.......................105
SECTION 10.10. Successors and Assigns................................105
SECTION 10.11. Sale and Transfer of Loans and Notes; Participations
in Loans and Notes....................................105
SECTION 10.11.1. Assignments...........................................105
SECTION 10.11.2. Participations........................................107
SECTION 10.12. Other Transactions....................................108
SECTION 10.13. Forum Selection and Consent to Jurisdiction...........108
SECTION 10.14. Waiver of Jury Trial..................................109
SECTION 10.15. Confidentiality.......................................109
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SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentage
SCHEDULE III - Domestic Office
SCHEDULE IV - Fiscal Quarters
SCHEDULE V - Recapitalization Transactions
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term-A Note
EXHIBIT A-3 - Form of Term-B Note
EXHIBIT A-4 Form of Swing Line Note
EXHIBIT B - Form of Borrowing Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Closing Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F-1 - Form of Borrower Security Agreement
EXHIBIT F-2 - Form of Subsidiary Security Agreement
EXHIBIT G-1 - Form of Borrower Pledge Agreement
EXHIBIT G-2 - Form of Subsidiary Pledge Agreement
EXHIBIT G-3 - Form of Shareholder Pledge Agreement
EXHIBIT H-1 - Form of Subsidiary Guaranty
EXHIBIT I - Form of Mortgage
EXHIBIT J - Form of Lender Assignment Agreement
EXHIBIT K - Form of Intercompany Subordination Agreement
EXHIBIT L-1 - Form of Opinion of New York Counsel to the Borrower
EXHIBIT L-2 - Form of Opinion of Local Counsel to the Borrower
EXHIBIT M - Intentionally Omitted
EXHIBIT N - Form of Issuance Request
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of January 28, 1999, is among New World
Pasta Company (formerly known as Hershey Pasta Manufacturing Company), a
Delaware corporation (the "Borrower"), the various financial institutions as are
or may become parties hereto (collectively, the "Lenders"), the various
financial institutions as may become parties hereto as co-Agents (collectively
referred to as the "Co-Agents") for the Lenders, XXXXXX XXXXXXX SENIOR FUNDING,
INC., as syndication agent (the "Syndication Agent"), and THE BANK OF NOVA
SCOTIA ("Scotiabank"), as lead arranger (the "Lead Arranger") and administrative
agent (the "Administrative Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, on December 15, 1998, the Borrower entered into the
Recapitalization Agreement (such capitalized term, and other capitalized terms
used herein, to have the meanings provided in Section 1.1), pursuant to which
the Transferors, the Borrower and its Subsidiaries engaged in a recapitalization
(consisting of the transactions described on Schedule V) (the "Recapitalization
Transactions");
WHEREAS, as a result of the Recapitalization Transactions Pasta Group,
LLC, a Delaware limited liability company, and Winchester Pasta, LLC, a Delaware
limited liability company, became Subsidiaries of the Borrower, and, as of the
date hereof, are the only Subsidiaries of the Borrower;
WHEREAS, after giving effect to the Recapitalization Transactions, the
Bridge Financing, the Equity Purchase and the transactions contemplated hereby
and the Recapitalization Agreement (collectively, the "Transactions"), (a) the
Borrower and its Subsidiaries will own the Business; and (b) approximately
83.4%, 6.0% and 10.6% of the outstanding Common Stock of the Borrower will be
owned by New World Pasta LLC (an affiliate of JLL), HFC and the Management
Investor, respectively, and approximately 88.8% and 11.2% of the Preferred Stock
of the Borrower will be owned by New World Pasta LLC and the Management
Investor;
WHEREAS, as part of the Recapitalization Transactions, the Borrower
will issue a Note (the "Seller Note") to HFC in a principal amount of
$307,685,000 in payment of the redemption price of 30,768,500 shares of Common
Stock owned by HFC, which Seller Note will be repaid in full on the Closing
Date;
WHEREAS, in connection with the Transactions, the Borrower will incur
$110,000,000 of Bridge Financing and will incur transaction costs and expenses
(of which not more than $19,000,000 of such costs and expenses (exclusive of any
amounts which may be reimbursed by HFC or any other person pursuant to the
Recapitalization Agreement) may be paid from the proceeds of the Loans made
hereunder to the extent permitted hereby;
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WHEREAS, in connection with the Transaction and the ongoing working
capital and general corporate needs of the Borrower and its Subsidiaries, the
Borrower desires to obtain from the Lenders (and the Issuer, as the case may be)
(i) a Term-A Loan Commitment and a Term-B Loan
Commitment pursuant to which Borrowings of Term Loans will be
made in a maximum, original principal amount of $50,000,000
(in the case of Term-A Loans) and $150,000,000 (in the case of
Term-B Loans) to the Borrower in a single Borrowing to occur
on the Closing Date;
(ii) a Revolving Loan Commitment (to include
availability for Revolving Loans, Swing Line Loans and
Letters of Credit) pursuant to which Borrowings of Revolving
Loans, in a maximum aggregate principal amount (together with
all Swing Line Loans and Letter of Credit Outstandings) not to
exceed $50,000,000, will be made to the Borrower from time to
time on and subsequent to the Closing Date but prior to the
Revolving Loan Commitment Termination Date;
(iii) a Letter of Credit Commitment pursuant to which
the Issuer will issue Letters of Credit for the account of the
Borrower and its Subsidiaries from time to time on and
subsequent to the Closing Date but prior to the Revolving Loan
Commitment Termination Date in a maximum aggregate Stated
Amount at any one time outstanding not to exceed $10,000,000
(provided that the aggregate outstanding principal amount of
Revolving Loans, Swing Line Loans and Letter of Credit
Outstandings at any time shall not exceed the then existing
Revolving Loan Commitment Amount); and
(iv) a Swing Line Loan Commitment pursuant to which
Borrowings of Swing Line Loans in an aggregate outstanding
principal amount not to exceed $5,000,000 will be made on and
subsequent to the Closing Date but prior to the Revolving Loan
Commitment Termination Date (provided, that the aggregate
outstanding principal amount of Swing Line Loans, Revolving
Loans and Letter of Credit Outstandings at any time shall not
exceed the then existing Revolving Loan Commitment Amount);
with all the proceeds of the Credit Extensions to be used for the purposes set
forth in Section 7.1.9; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend such
Commitments and make such Loans to the Borrower;
NOW, THEREFORE, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Acquisition Investment" means the acquisition, by an Investment or
through the purchase or other acquisition of assets comprising all or
substantially all of the assets of another Person or the assets comprising a
business or division of another Person) provided that if the acquisition is of
Capital Stock of such Person it shall result in such Person becoming (to the
extent it is not already) a Subsidiary of the Borrower.
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 15% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or
managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
Notwithstanding the foregoing, Xxxxxx Milling Corp. shall be deemed to be an
Affiliate of the Borrower.
"Agents" means, collectively, the Administrative Agent, the Syndication
Agent and the Co-Agents.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Alternate Base Rate" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the
Administrative Agent at its Domestic Office as its base rate for Dollar
loans in the United States; and
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(b) the Federal Funds Rate most recently determined by the
Administrative Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions of
credit. Changes in the rate of interest on that portion of any Loans maintained
as Base Rate Loans will take effect simultaneously with each change in the
Alternate Base Rate. The Administrative Agent will give notice promptly to the
Borrower and the Lenders of changes in the Alternate Base Rate.
"Applicable Commitment Fee Margin" means at all times during the
applicable periods set forth below, (a) until the delivery of unaudited
financial statements of the Borrower for the six months ended June 30, 1999
pursuant to clause (a) of Section 7.1.1, .50% per annum, and (b) thereafter, the
applicable percentage per annum set forth below under the column entitled
"Applicable Commitment Fee Margin":
Applicable
Debt to EBITDA Ratio Commitment Fee Margin
greater than 5.00:1 .500%
greater than or equal to 4.00:1 but less than or equal to 5.00:1 .375%
less than or equal to 4.00:1 .325%
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The Debt to EBITDA Ratio used to compute the Applicable Commitment Fee Margin
shall be the Debt to EBITDA Ratio set forth in the Compliance Certificate most
recently delivered by the Borrower to the Administrative Agent pursuant to
clause (d) of Section 7.1.1; changes in the Applicable Commitment Fee Margin
resulting from a change in the Debt to EBITDA Ratio shall become effective upon
delivery by the Borrower to the Administrative Agent of a new Compliance
Certificate pursuant to clause (d) of Section 7.1.1. If the Borrower shall fail
to deliver a Compliance Certificate within the number of days after the end of
any Fiscal Quarter as required pursuant to clause (d) of Section 7.1.1 (without
giving effect to any grace period), the Applicable Commitment Fee Margin from
and including the first day after the date on which such Compliance Certificate
was required to be delivered to but not including the date the Borrower delivers
to the Administrative Agent a Compliance Certificate shall conclusively equal
the highest Applicable Commitment Fee Margin set forth above. After such
delivery, the Applicable Commitment Fee Margin shall be determined as provided
above.
"Applicable Margin" means at all times during the applicable periods
set forth below,
(a) with respect to the unpaid principal amount of each
Revolving Loan and each Term-A Loan maintained as a Base Rate Loan, (i)
until the delivery of unaudited financial statements of the Borrower
for the six months ended June 30, 1999 pursuant to clause (a) of
Section 7.1.1, 1.75% per annum, and (ii) thereafter, the applicable
percent-
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age per annum set forth below under the column entitled "Applicable
Margin for Base Rate Loans";
(b) with respect to the unpaid principal amount of each
Revolving Loan and each Term-A Loan maintained as a LIBO Rate Loan, (i)
until the delivery of unaudited financial statements of the Borrower
for the six months ended June 30, 1999 pursuant to clause (a) of
Section 7.1.1, 2.75% per annum, and (ii) thereafter, the applicable
percentage per annum set forth below under the column entitled
"Applicable Margin for LIBO Rate Loans":
For Revolving Loans and Term-A Loans:
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Applicable Applicable
Margin for Base Margin for LIBO
Debt to EBITDA Ratio Rate Loans Rate Loans
-------------------------------------------------------------------------------------------------------------
greater than 5.75:1 2.00% 3.00%
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greater than 5.00:1 but less than or equal to 5.75:1 1.75% 2.75%
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greater than 4.50:1 but less than or equal to 5.00:1 1.50% 2.50%
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greater than 4.00:1 but less than or equal to 4.50:1 1.25% 2.25%
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less than or equal to 4.00:1 1.00% 2.00%
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(c) with respect to the unpaid principal amount of each Term-B
Loan maintained as a Base Rate Loan, (i) until the delivery of
unaudited financial statements of the Borrower for the six months ended
June 30, 1999 pursuant to clause (a) of Section 7.1.1, 2.25% per annum,
and (ii) thereafter, the applicable percentage per annum set forth
below under the column entitled "Applicable Margin for Base Rate
Loans"; and
(d) with respect to the unpaid principal amount of each Term-B
Loan maintained as a LIBO Rate Loan, (i) until the delivery of
unaudited financial statements of the Borrower for the six months ended
June 30, 1999 pursuant to clause (a) of Section 7.1.1, 3.25% per annum,
and (ii) thereafter, the applicable percentage per annum set forth
below under the column entitled "Applicable Margin for LIBO Rate
Loans":
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For Term-B Loans:
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Applicable Applicable
Margin for Base Margin for LIBO
Debt to EBITDA Ratio Rate Loans Rate Loans
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greater than 5.75:1 2.25% 3.25%
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greater than 5.00:1 but less than or equal to 5.75:1 2.25% 3.25%
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greater than 4.50:1 but less than or equal to 5.00:1 2.00% 3.00%
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greater than 4.00:1 but less than or equal to 4.50:1 2.00% 3.00%
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less than or equal to 4.00:1 2.00% 3.00%
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Except as provided above, the Debt to EBITDA Ratio used to compute the
Applicable Margin for Revolving Loans and Term Loans shall be the Debt to EBITDA
Ratio set forth in the Compliance Certificate most recently delivered by the
Borrower to the Administrative Agent pursuant to clause (d) of Section 7.1.1;
changes in the Applicable Margin for Revolving Loans and Term Loans resulting
from a change in the Debt to EBITDA Ratio shall become effective upon delivery
by the Borrower to the Administrative Agent of a new Compliance Certificate
pursuant to clause (d) of Section 7.1.1. If the Borrower shall fail to deliver a
Compliance Certificate within the number of days after the end of any Fiscal
Quarter as required pursuant to clause (d) of Section 7.1.1 (without giving
effect to any grace period), the Applicable Margin for Revolving Loans and Term
Loans from and including the first day after the date on which such Compliance
Certificate was required to be delivered to but not including the date the
Borrower delivers to the Administrative Agent a Compliance Certificate shall
conclusively equal the highest Applicable Margin for Revolving Loans and Term
Loans set forth above. After such delivery, the Applicable Margins shall be
determined as provided above.
"Approved Fund" means, with respect to any Lender that is a fund or
other investment vehicle that invests (in whole or in part) in bank loans, any
other fund or investment vehicle that invests (in whole or in part) in bank
loans and is managed or advised by the same investment advisor as such Lender or
by an affiliate of such investment advisor.
"Assignee Lender" is defined in Section 10.11.1.
"Authorized Officer" means, relative to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to the
Administrative Agent and the Lenders pursuant to Section 5.1.1.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
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"Borrower" means New World Pasta Company, formerly known as Hershey
Pasta Manufacturing Company, a Delaware corporation, and its permitted
successors and assigns.
"Borrower Pledge Agreement" means the Pledge Agreement executed and
delivered by the Borrower pursuant to clause (b) of Section 5.1.9, substantially
in the form of Exhibit G-1 hereto, as amended, supplemented, amended and
restated or otherwise modified from time to time pursuant to the terms thereof.
"Borrower Security Agreement," means the Security Agreement executed
and delivered by the Borrower pursuant to Section 5.1.10, substantially in the
form of Exhibit F-1 hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time pursuant to the terms thereof.
"Borrowing" means the Loans of the same type and, in the case of LIBO
Rate Loans, having the same Interest Period made by the relevant Lenders on the
same Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.1.
"Borrowing Request" means a loan request and certificate duly executed
by an Authorized Officer of the Borrower, substantially in the form of Exhibit B
hereto.
"Bridge Financing" means the issuance of $110,000,000 aggregate
principal amount of Subordinated Notes pursuant to the Senior Subordinated
Increasing Rate Note Purchase Agreement.
"Business" shall mean the business as conducted by the (i) Transferors,
(ii) Hershey Pasta Group Winchester, Inc., a Delaware corporation, and (iii) the
Borrower (and their predecessors in interest) relating to the manufacture,
marketing, sale and distribution at any time prior to the Closing Date of the
products listed on Schedule 1.2 to the Recapitalization Agreement and pasta and
noodle products similar to those listed on such Schedule.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York City; and
(b) relative to the making, continuing, prepaying or repaying
of any LIBO Rate Loans, any day on which dealings in Dollars are
carried on in the London interbank market.
"Capital Expenditures" means for any period, the sum, without
duplication, of
(a) the aggregate amount of all expenditures of the Borrower
and its Subsidiaries for fixed or capital assets made during such
period which, in accordance with GAAP, would be classified as capital
expenditures; and
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(b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period.
"Capital Stock" means, (i) any and all shares, interests,
participations or other equivalents of or interests in (however designated)
corporate stock, including, without limitation, shares of preferred or
preference stock, (ii) all partnership interests (whether general or limited) in
any Person which is a partnership, (iii) all membership interests or limited
liability company interests in any limited liability company, and (iv) all
equity or ownership interests in any Person of any other type.
"Capitalized Lease Liabilities" means, without duplication, all
monetary obligations of the Borrower or any of its Subsidiaries under any
leasing or similar arrangement which, in accordance with GAAP, would be
classified as capitalized leases, and, for purposes of this Agreement and each
other Loan Document, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP, and the stated maturity
thereof shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease may be terminated
by the lessee without payment of a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one
year after such time, issued or guaranteed by the United States
Government;
(b) commercial paper, maturing not more than nine months from
the date of issue, which is issued by
(i) a corporation (other than an Affiliate of any
Obligor) organized under the laws of any state of the United
States or of the District of Columbia and rated at least A-2
by S&P or P-2 by Xxxxx'x, or
(ii) any Lender (or its holding company);
(c) any certificate of deposit or bankers acceptance, maturing
not more than one year after such time, which is issued by either
(i) a commercial banking institution that is a member
of the Federal Reserve System and has a combined capital and
surplus and undivided profits of not less than $500,000,000,
or
(ii) any Lender;
(d) short-term tax-exempt securities rated not lower than
MIG-1/1+ by either Xxxxx'x or S&P with provisions for liquidity or
maturity accommodations of 183 days or less; or
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(e) any money market or similar fund the assets of which are
comprised exclusively of any of the items specified in clauses (a)
through (d) above and as to which withdrawals are permitted at least
every 90 days.
"Casualty Event" means the damage, destruction or condemnation, as the
case may be, of property of the Borrower or any of its Subsidiaries.
"Casualty Proceeds" means, with respect to any Casualty Event, the
amount of any insurance proceeds or condemnation awards received by the Borrower
or any of its Subsidiaries in connection with such Casualty Event, but excluding
any proceeds or awards required to be paid to a creditor (other than the
Lenders) which holds a first-priority Lien permitted by Section 7.2.3 on the
property which is the subject of such Casualty Event.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"Change in Control" means:
(i) prior to an IPO, (a) the acquisition, directly or
indirectly, by any person or group (as defined in Section
13(d)(3) under the Securities Exchange Act of 1934, as
amended) of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of a percentage of the
outstanding voting shares of Capital Stock of the Borrower
that exceeds in the aggregate the percentage of voting shares
of Capital Stock then beneficially owned and controlled,
directly or indirectly, by JLL and Xxxx X. Xxxxxx, C. Xxxxxx
Xxxxxxx and Xxxxxxx X. Xxxx (the "Specified Individuals" and
together with JLL, the "Initial Investors") or (b) the failure
of the Initial Investors to own in the aggregate free and
clear of all Liens, at least a majority of the outstanding
voting shares of Capital Stock of the Borrower on a fully
diluted basis;
(ii) after an IPO, (A)(I) the failure of the Initial
Investors to own in the aggregate free and clear of all Liens,
at least 30% of the outstanding voting shares of Capital Stock
of the Borrower on a fully diluted basis, and (II) the
acquisition, directly or indirectly, by any person or group
(as defined in Section 13(d)(3) under the Securities Exchange
Act of 1934, as amended) of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of a
percentage of the outstanding voting shares of Capital Stock
of the Borrower that exceeds in the aggregate the percentage
of voting shares of Capital Stock then beneficially owned and
controlled, directly or indirectly, by JLL or (B) the board of
directors of the Borrower shall not consist of a majority of
"Continuing Directors" (such term being defined as directors
of the Borrower on the Closing Date and each other director,
if such other director's nomination for election to the board
of directors is recommended by a majority of
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the then Continuing Directors or is recommended by a committee
of the board of directors a majority of which is composed of
the then Continuing Directors); or
(iii) the occurrence (whether before or after an IPO)
of a "Change of Control" as defined in any Subordinated Notes
or Senior Subordinated High Yield Notes or any provision which
requires the repurchase or offer to repurchase of any
Subordinated Notes or Senior Subordinated High Yield Notes
upon a change in ownership of the Borrower.
For purposes of this definition, the amount of voting shares of Capital
Stock deemed owned by the Specified Individuals shall be equal to the product of
(x) the aggregate number of voting shares of Capital Stock owned by the
Management Investor times (y) the percentage of shares of Capital Stock of the
Management Investor owned by the Specified Individuals.
"Closing Date" means the date of the initial Credit Extension
hereunder.
"Closing Date Certificate" means a certificate of an Authorized Officer
of the Borrower substantially in the form of Exhibit D hereto, delivered
pursuant to Section 5.1.5.
"Co-Agents" is defined in the preamble.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as the context may require, a Lender's Letter of
Credit Commitment, Revolving Loan Commitment, Swing Line Loan Commitment, Term-A
Loan Commitment or Term-B Loan Commitment.
"Commitment Amount" means, as the context may require, the Letter of
Credit Commitment Amount, Revolving Loan Commitment Amount, Swing Line Loan
Commitment Amount, the Term-A Loan Commitment Amount or the Term B-Loan
Commitment Amount.
"Commitment Termination Date" means, as the context may require, the
Revolving Loan Commitment Termination Date or any Term Loan Commitment
Termination Date.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default described in clauses
(a) through (d) of Section 8.1.9; or
(b) the occurrence and continuance of any other Event of Default
and either
(i) the declaration of the Loans to be due and payable
pursuant to Section 8.3, or
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(ii) in the absence of such declaration, the giving
of notice by the Administrative Agent, acting at the direction
of the Required Lenders, to the Borrower that the Commitments
have been terminated.
"Common Stock" means the common stock, par value $.01 per share, of
the Borrower.
"Compliance Certificate" means a certificate duly completed and
executed by the chief financial Authorized Officer of the Borrower,
substantially in the form of Exhibit E hereto.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the Indebtedness of any
other Person or any obligation or any other liability of any other Person except
a Subsidiary (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person. The amount of any Person's obligation under any
Contingent Liability shall (subject to any limitation set forth therein) be
deemed to be the outstanding principal amount (or maximum principal amount, if
larger) of the debt, obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion duly executed by an Authorized Officer of the Borrower, substantially
in the form of Exhibit C hereto.
"Controlled Group" means all entities (whether or not incorporated)
which are under common control with the Borrower within the meaning of Section
4001 of ERISA or are treated as a single employer with the Borrower under
Section 414 of the Code.
"Copyright Security Agreement" means any Copyright Security Agreement
executed and delivered by any Obligor in substantially the form of Exhibit C to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, the increase in the
face amount of any previously issued Letter of Credit by the Issuer or
the extension of any Stated Expiry Date of any previously issued Letter
of Credit by the Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
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"Current Assets" means, on any date, without duplication, all assets
(other than cash) which, in accordance with GAAP, would be included as current
assets on a consolidated balance sheet of the Borrower and its Subsidiaries at
such date as current assets.
"Current Liabilities" means, on any date, without duplication, all
amounts which, in accordance with GAAP, would be included as current liabilities
on a consolidated balance sheet of the Borrower and its Subsidiaries at such
date, excluding current maturities of Indebtedness.
"Debt" means the outstanding principal amount of all Indebtedness of
the Borrower and its Subsidiaries of the type referred to in clauses (a), (b),
(c) and (e) of the definition of "Indebtedness" or any Contingent Liability in
respect thereof.
"Debt to EBITDA Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of
(a) Debt outstanding on the last day of such Fiscal Quarter to
(b) EBITDA computed for the period consisting of such Fiscal
Quarter and each of the three immediately preceding Fiscal Quarters.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disbursement Due Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrower with the written consent of the Required Lenders.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such on Schedule III hereto or designated in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) within the United States as may be designated from time
to time by notice from such Lender, as the case may be, to each other Person
party hereto.
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"EBITDA" means, for any applicable period, the sum (without
duplication) of
(a) Net Income,
plus
(b) the amount deducted, in determining Net Income, representing
amortization,
plus
(c) the amount deducted, in determining Net Income, of all income
taxes (whether paid or deferred) of the Borrower and its Subsidiaries,
plus
(d) the amount deducted, in determining Net Income, of Interest
Expense,
plus
(e) the amount deducted, in determining Net Income, representing
depreciation of assets,
plus
(f) an amount equal to the amount of all non-cash expenses and charges
deducted in arriving at Net Income,
plus
(g) the amount deducted, in determining Net Income, of cash expenses
incurred in connection with the closing of the Transactions;
plus
(h) the amount deducted, in determining Net Income, of any loss
associated with the sale or write-down of assets not in the ordinary course
of business;
plus
(i) the amount deducted, in determining Net Income, of cash
restructuring charges and costs;
plus
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(j) non-recurring charges and costs; and
minus
(k) an amount equal to the amount of all non-cash credits and all
extraordinary gains included in arriving at Net Income.
"Effective Date" means the date this Agreement becomes effective pursuant
to Section 10.8.
"Environmental Laws" means all applicable federal, state or local statutes,
laws, ordinances, codes, rules and regulations (including consent decrees and
administrative orders) relating to protection of human health or the
environment.
"Equity Purchase" means (a) the purchase of Common Stock and Preferred
Stock by New World Pasta LLC for approximately $41,700,000 and approximately
$100,600,000 respectively, and (b) the purchase of Common Stock and Preferred
Stock by the Management Investor for approximately $5,300,000 and approximately
$12,800,000, respectively.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" is defined in Section 8.1.
"Excess Cash Flow" means, for any Fiscal Year, the excess (if any), of
(a) EBITDA for such Fiscal Year
less
(b) the sum, without duplication (for such Fiscal Year) of
(i) Interest Expense;
plus
(ii) scheduled payments and optional and mandatory prepayments,
to the extent actually made, of the principal amount of the Term Loans
or any other term Debt (including Capitalized Lease Liabilities) and
mandatory prepayments of the principal amount of the Revolving Loans
pursuant to clause (f) of Section 3.1.1 in connection with a reduction
of the Revolving Loan Commitment Amount;
plus
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(iii) all taxes actually paid in cash by the Borrower and its
Subsidiaries;
plus
(iv) Capital Expenditures permitted and actually made in such
Fiscal Year pursuant to clause (a) of Section 7.2.7 (excluding Capital
Expenditures financed through the incurrence of Indebtedness);
plus
(v) the amount of the net increase (or minus a net decrease), of
Current Assets over Current Liabilities of the Borrower and its
Subsidiaries from the last day of the immediately preceding Fiscal
Year;
plus
(vi) Investments permitted and actually made pursuant to clauses
(d) and (h) of Section 7.2.5;
plus
(vii) Restricted Payments permitted and actually made pursuant to
Section 7.2.6.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"Fee Letter" means the confidential fee letter, dated January 28, 1999,
by and among the Borrower and the Administrative Agent.
"Fiscal Quarter" means any quarter beginning and ending on the dates
set forth in Schedule IV.
"Fiscal Year" means the Borrower's fiscal year beginning on January 1
and ending December 31.
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"Fixed Charge Coverage Ratio" means, as of the close of any Fiscal
Quarter, the ratio computed for the period consisting of such Fiscal Quarter and
each of the three immediately prior Fiscal Quarters with respect to the Borrower
and its Subsidiaries on a consolidated basis of:
(a) the excess (for all such Fiscal Quarters) of
(i) EBITDA;
less
(ii) the sum, without duplication, of (a) cash
Capital Expenditures, and (b) Restricted Payments in cash made
pursuant to Section 7.2.6;
to
(b) the sum (for all such Fiscal Quarters) of
(i) cash Interest Expense;
plus
(ii) scheduled, mandatory principal repayments of
Debt other than in respect of Letters of Credit (including
principal repayments of the Term Loans pursuant to the
provisions of clauses (g) and (h) of Section 3.1.1.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in Section 1.4.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous or toxic
chemical, material or substance within the meaning of any other
applicable federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous or toxic waste, substance or material, all as amended or
hereafter amended.
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"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of which
would be to cause such Obligor to be in default of any of its
obligations under Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments for borrowed money in respect thereof;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded as
Capitalized Lease Liabilities;
(d) net liabilities of such Person under all Hedging
Obligations;
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(e) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services, and indebtedness (excluding prepaid
interest thereon and interest not yet due) secured by a Lien on
property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse; provided, however, that, for
purposes of determining the amount of any Indebtedness of the type
described in this clause, if recourse with respect to such Indebtedness
is limited to specific property financed with such Indebtedness, the
amount of such Indebtedness shall be limited to the fair market value
(determined on a basis reasonably acceptable to the Administrative
Agent) of such property or the principal amount of such Indebtedness,
whichever is less; and
(f) all Contingent Liabilities of such Person in respect of
any of the foregoing;
provided, that, Indebtedness shall not include unsecured Indebtedness incurred
in the ordinary course of business in the nature of accrued liabilities and open
accounts extended by suppliers on normal trade terms in connection with
purchases of goods and services, but shall include the Indebtedness incurred
through the borrowing of money or Contingent Liabilities in connection
therewith. For all purposes of this Agreement, the Indebtedness of any Person
shall include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer (to the extent such Person is
liable for such Indebtedness).
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Intercompany Subordination Agreement" means an agreement to be
executed and delivered pursuant to the terms of this Agreement (including clause
(g) of Section 7.2.2), substantially in the form of Exhibit K hereto, as
amended, supplemented, amended and restated or otherwise modified from time to
time in accordance with its terms.
"Interest Coverage Ratio" means, at the close of any Fiscal Quarter,
the ratio computed for the period consisting of such Fiscal Quarter and each of
the three immediately prior Fiscal Quarters of:
(a) EBITDA (for all such Fiscal Quarters)
to
(b) cash Interest Expense (for all such Fiscal Quarters);
"Interest Expense" means, for any Fiscal Quarter, the aggregate
consolidated interest expense (net of interest income) of the Borrower and its
Subsidiaries for such Fiscal Quarter, as
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determined in accordance with GAAP, including the portion of any payments made
in respect of Capitalized Lease Liabilities allocable to interest expense, plus
or minus, without duplication, amounts paid or received under interest rate
hedge agreements (with amounts paid under any interest rate cap being amortized
over the life of such cap for purposes of this definition).
"Interest Period" means, relative to any LIBO Rate Loans, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3.1 or
2.4 and shall end on (but exclude) the day which numerically corresponds to such
date one, two, three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), in
either case as the Borrower may select in its relevant notice pursuant to
Section 2.3 or 2.4; provided, however, that
(a) the Borrower shall not be permitted to select Interest
Periods to be in effect at any one time which have expiration dates
occurring on more than ten different dates;
(b) if such Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is the
first Business Day of a calendar month, in which case such Interest
Period shall end on the Business Day next preceding such numerically
corresponding day); and
(c) no Interest Period for any Loan may end later than the
Stated Maturity Date for such Loan.
"Investment" means, relative to any Person,
(a) any loan or advance (including capital contributions) made
by such Person to any other Person, and
(b) any ownership or similar interest held by such Person in
any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such transfer or exchange.
"IPO" means the initial public offering of common stock of the Borrower
pursuant to an effective registration statement under the Securities Act.
"Issuance Request" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of the Borrower, substantially in the
form of Exhibit N hereto.
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"Issuer" means, collectively, Scotiabank in its individual capacity
hereunder as issuer of the Letters of Credit and such other Lender as may be
designated by Scotiabank (and agreed to by the Borrower and such Lender) in its
individual capacity as the issuer of Letters of Credit.
"JLL" means Xxxxxx Xxxxxxxxxx & Xxxx Fund III, L.P., a Delaware limited
partnership.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit J hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" is defined in Section 2.1.3.
"Letter of Credit Commitment" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.3 and,
with respect to each of the other Lenders that has a Revolving Loan Commitment,
the obligations of each such Lender to participate in such Letters of Credit
pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a maximum
amount of $10,000,000, as such amount may be reduced from time to time pursuant
to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount equal to
the sum of
(a) the then aggregate amount which is undrawn and available
under all issued and outstanding Letters of Credit,
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of such Letters of Credit.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans,
the rate of interest equal to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates per annum at which Dollar deposits in
immediately available funds are offered to the Administrative Agent's LIBOR
Office in the London interbank market as at or about 11:00 a.m. London time two
Business Days prior to the beginning of such Interest Period for delivery on the
first day of such Interest Period, and in an amount approximately equal to the
amount of the Administrative Agent's LIBO Rate Loan and for a period
approximately equal to such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
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"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) -------------------------------
1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be determined by the Administrative Agent on the basis of the LIBOR
Reserve Percentage in effect on, and the applicable rates furnished to and
received by the Administrative Agent from Scotiabank, two Business Days before
the first day of such Interest Period.
"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such on Schedule III hereto or designated in the Lender Assignment
Agreement or such other office of a Lender as designated from time to time by
notice from such Lender to the Borrower and the Administrative Agent, whether or
not outside the United States, which shall be making or maintaining LIBO Rate
Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of and including
"Eurocurrency Liabilities", as currently defined in Regulation D of the F.R.S.
Board, having a term approximately equal or comparable to such Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or any filing or recording of any
instrument or document in respect of the foregoing, to secure payment of a debt
or performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" means, as the context may require, a Revolving Loan, a Swing
Line Loan, a Term-A Loan or a Term-B Loan of any type.
"Loan Document" means this Agreement, the Notes, the Fee Letter, each
Pledge Agreement, the Subsidiary Guaranty, each Mortgage, the Intercompany
Subordination Agreement, each Security Agreement, each Patent Security
Agreement, each Trademark Security Agreement, each Copyright Security Agreement,
and each other agreement, document or instrument delivered in connection with
this Agreement or any other Loan Document, whether or not specifically mentioned
herein or therein.
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"Management Investor" means Xxxxxx Pasta, LLC, a Delaware limited
liability company.
"Material Adverse Effect" means (a) a material adverse effect on the
financial condition, operations, assets, business or properties of New World
Pasta LLC and its Subsidiaries, taken as a whole, or the Borrower and its
Subsidiaries, taken as a whole, (b) a material impairment of the ability of the
Borrower or any other Obligor to perform its respective material obligations
under the Loan Documents to which it is or will be a party, or (c) an impairment
of the validity or enforceability of, or a material impairment of the rights,
remedies or benefits available to the Administrative Agent, the Issuer or the
Lenders under, this Agreement or any other Loan Document.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means, collectively, each Mortgage or Deed of Trust executed
and delivered pursuant to the terms of this Agreement, including Section 5.1.11
or Section 7.1.9(b), substantially in the form of Exhibit I hereto, as amended,
supplemented, restated or otherwise modified from time to time in accordance
with its terms.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA with respect to which the Borrower or any member of the
Controlled Group has any direct or indirect, fixed or contingent liability.
"Net Debt Proceeds" means, with respect to the incurrence, sale or
issuance (to the extent permitted by the terms of this Agreement) by the
Borrower or any of its Subsidiaries to any Person of any Debt (other than Debt
permitted by Section 7.2.2 as in effect on the date hereof, including the
Subordinated Notes, but Net Debt Proceeds shall include Excess High Yield Net
Debt Proceeds), the excess of:
(a) the gross cash proceeds received by the Borrower or any of
its Subsidiaries from such incurrence, sale or issuance,
less
(b) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all other
reasonable fees, expenses and charges, in each case actually incurred
in connection with such incurrence, sale or issuance (but excluding any
such amounts paid to Affiliates of the Borrower in connection therewith
in transactions which are not permitted under Section 7.2.11).
"Net Disposition Proceeds" means, with respect to a Permitted
Disposition of the assets of the Borrower or any of its Subsidiaries, the excess
of
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(a) the gross cash proceeds received by the Borrower or any of
its Subsidiaries from such Permitted Disposition and any cash payments
received in respect of promissory notes or in respect of other non-cash
consideration delivered to the Borrower or any Subsidiary in respect of
such Permitted Disposition,
less
(b) the sum of
(i) all reasonable and customary fees and expenses
with respect to legal, investment banking, brokerage and
accounting and other professional fees, sales commissions and
disbursements and all other reasonable fees, expenses and
charges, in each case actually incurred in connection with
such Permitted Disposition (but excluding any such amounts in
transactions which are not permitted under Section 7.2.11);
(ii) all taxes and other governmental costs and
expenses actually paid or estimated by the Borrower (in good
faith) to be payable in cash in connection with such Permitted
Disposition;
(iii) payments made by the Borrower or any of its
Subsidiaries to retire Indebtedness (other than the Loans) of
the Borrower or any of its Subsidiaries where payment of such
Indebtedness is required in connection with such Permitted
Disposition; and
(iv) appropriate amounts provided or to be provided
by the Borrower or any of its Subsidiaries as a reserve, in
accordance with GAAP, with respect to any liabilities
associated with a Permitted Disposition;
provided, however, that if, after the payment of all taxes with respect to such
Permitted Disposition, (X) the amount of estimated taxes, if any, pursuant to
clause (b)(ii) above exceeded the tax amount actually paid in cash in respect of
such Permitted Disposition, or (Y) if, with respect to the reserves, if any,
pursuant to clause (b)(iv) above, all or a portion of such reserves exceed the
amount necessary for such purpose for which the reserves were established, the
aggregate amount of any such excess shall be immediately payable, pursuant to
clause (b) of Section 3.1.1, as Net Disposition Proceeds.
"Net Equity Proceeds" means with respect to the sale or issuance by the
Borrower to any Person of any stock, warrants or options or the exercise of any
such warrants or options after the Effective Date (other than pursuant to
capital contributions which are concurrently contributed to the Borrower on the
Effective Date or which are concurrently used to fund a Permitted Acquisition)
the excess of:
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(a) the gross cash proceeds received by the Borrower from such
sale, exercise or issuance,
less
(b) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all other
reasonable fees, expenses and charges, in each case actually incurred
in connection with such sale or issuance (but excluding any such
amounts paid to Affiliates of the Borrower in connection therewith in
transactions which are not permitted under Section 7.2.11).
"Net Income" means, for any period, the net income of the Borrower and
its Subsidiaries for such period on a consolidated basis, excluding
extraordinary gains and losses.
"Non-U.S. Lender" means any Lender (including each Assignee Lender)
that is not (i) a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized under the laws of the United
States or any state thereof, (iii) any estate that is subject to U.S. federal
income taxation regardless of the source of its income, or (iv) any trust if a
court within the United States is able to exercise primary supervision over the
administration of the trust and at least one U.S. Person has authority to
control all substantial decisions of the trust.
"Non-U.S. Subsidiary" means any Subsidiary of the Borrower that is not
incorporated or organized under the laws of the United States or any state
thereof.
"Note" means, as the context may require, a Revolving Note, a Swing
Line Note, a Term-A Note or a Term-B Note.
"Obligations" means all obligations (monetary or otherwise) of the
Borrower and each other Obligor arising under or in connection with this
Agreement, the Notes, each Letter of Credit and each other Loan Document, and
Hedging Obligations (in respect of the Loans) owed to a Lender or an Affiliate
thereof (unless the Lender or such Affiliate otherwise agrees).
"Obligor" means the Borrower or any other Person (other than the
Administrative Agent or any Lender) obligated under any Loan Document.
"Organic Document" means, relative to any Obligor, its certificate of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its authorized shares of Capital
Stock.
"Participant" is defined in Section 10.11.2.
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"Patent Security Agreement" means any Patent Security Agreement
executed and delivered by any Obligor in substantially the form of Exhibit A to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
entity.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the Borrower,
a member of a Controlled Group, has or within the prior six years has had any
liability, including any liability by reason of having been a substantial
employer within the meaning of section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a contributing sponsor
under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the applicable percentage
relating to Term-A Loans, Term-B Loans or Revolving Loans, as the case may be,
as set forth opposite its name on Schedule II hereto under the applicable column
heading or set forth in Lender Assignment Agreement(s) under the applicable
column heading, as such percentage may be adjusted from time to time pursuant to
Lender Assignment Agreement(s) executed by such Lender and its Assignee
Lender(s) and delivered pursuant to Section 10.11. A Lender shall not have any
Commitment to make Revolving Loans, Term-A Loans or Term-B Loans (as the case
may be) if its percentage under the respective column heading is zero.
"Permitted Disposition" means a sale, disposition or other conveyance
of assets by the Borrower or any of its Subsidiaries in accordance with the
terms of clause (b) of Section 7.2.9.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreement" means, as the context may require, the Borrower
Pledge Agreement, a Shareholder Pledge Agreement or the Subsidiary Pledge
Agreement.
"Preferred Stock" means the 12% Cumulative Redeemable Preferred Stock
of the Borrower.
"Pro Forma Balance Sheet" is defined in clause (b) of Section 5.1.12.
"Qualified Assets" is defined in clause (b) of Section 3.1.1.
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"Quarterly Payment Date" means the last day of each March, June,
September and December; or, if any such day is not a Business Day, the next
succeeding Business Day, commencing with June 30, 1999.
"Recapitalization Agreement" means the Recapitalization Agreement dated
as of December 15, 1998 among HFC, Hershey CRE, Inc., Homestead, Inc., the
Borrower and New World Pasta, LLC and, with respect to certain sections thereof,
JLL.
"Recapitalization Transactions" means the transactions set forth on
Schedule V hereto.
"Refunded Swing Line Loans" is defined in clause (b) of Section 2.3.2.
"Register" is defined in clause (b)(i) of Section 2.7.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Reinstatement Date" is defined in Section 4.1.
"Release" means a "release", as such term is defined in CERCLA.
"Required Lenders" means, at any time,
(a) prior to the date of the making of the initial Credit
Extension hereunder, Lenders having at least 51% of the sum of the
Revolving Loan Commitments, Term-A Loan Commitments and Term-B Loan
Commitments; and
(b) on and after the date of the initial Credit Extension,
Lenders holding at least 51% of the Total Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect
from time to time.
"Restricted Payments" is defined in Section 7.2.6.
"Revolving Loan" is defined in Section 2.1.2.
"Revolving Loan Commitment" is defined in Section 2.1.2.
"Revolving Loan Commitment Amount" means, on any date, $50,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
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"Revolving Loan Commitment Termination Date" means the earliest of
(a) March 31, 1999, if the Term Loans have not been made on or
prior to such date;
(b) January 28, 2005;
(c) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to Section 2.2; and
(d) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clauses (c) or (d), the Revolving
Loan Commitments shall terminate automatically and without any further action.
"Revolving Note" means a promissory note of the Borrower payable to any
Lender, substantially in the form of Exhibit A-1 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from
outstanding Revolving Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc.
"Scotiabank" is defined in the preamble.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and any successor statute.
"Security Agreement" means, as the context may require, the Borrower
Security Agreement or the Subsidiary Security Agreement.
"Seller Note" is defined in the Recitals to this Agreement.
"Senior Subordinated Increasing Rate Note Purchase Agreement" means the
Senior Subordinated Increasing Rate Note Purchase Agreement dated as of January
28, 1999 between the Borrower and the various institutions party thereto, as it
may hereafter be amended, supplemented, restated or otherwise modified from time
to time in accordance with Section 7.2.10.
"Senior Subordinated High Yield Notes" means unsecured senior
subordinated notes issued by the Borrower having a maturity no earlier than
January 29, 2007, having subordination provisions at least as favorable to the
Lenders as those contained in the Senior Subordinated Increasing Rate Note
Purchase Agreement (although the definition of "Permitted Payments" contained
therein may be expanded to include payments made pursuant to any defeasance
trust established in accordance with the terms of the Indenture (which shall
require that deposits into a
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defeasance trust may not be made in violation of this Agreement) relating to
such Senior Subordinated High Yield Notes, provided the deposits into the
defeasance trust did not violate the subordination provisions contained in the
Senior Subordinated High Yield Notes and were permitted to made pursuant to this
Agreement) and not containing any amortization or mandatory repurchases or
offers to repurchase (other than in connection with the sale of assets (but only
if such offer need not be made to the extent proceeds of such sale are used to
prepay the Obligations) or upon a change of control) prior to January 29, 2007.
"Senior Subordinated Note Indenture" means the Indenture providing for
the issuance of the Senior Subordinated High Yield Notes, as it may hereafter be
amended, supplemented, restated or otherwise modified from time to time in
accordance with Section 7.2.10.
"Shareholder Pledge Agreement" means the Pledge Agreement executed and
delivered by the Management Investor or New World Pasta LLC pursuant to clause
(a) of Section 5.1.9, substantially in the form of Exhibit G-3 hereto, as
amended, supplemented, amended and restated or otherwise modified from time to
time pursuant to the terms thereof.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including 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 as such debts and liabilities mature, and
(d) such Person is not engaged in business or a transaction, and such Person 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.
"Specified Individuals" is defined in the definition of "Change of
Control".
"Stated Amount" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means
(a) in the case of any Revolving Loan, January 28, 2005;
(b) in the case of any Term-A Loan, January 28, 2005; and
(c) in the case of any Term-B Loan, January 28, 2006.
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"Subordinated Guaranty" means the Guaranty executed and delivered by
each Subsidiary of the Borrower included in the terms of the Senior Subordinated
Note Indenture and with respect to the Subordinated Notes so long as the
obligations of the guarantor are subordinated to the same extent as the
Subordinated Notes or the Senior Subordinated High Yield Notes, as the case may
be.
"Subordinated Notes" means $110,000,000 aggregate principal amount of
Senior Subordinated Increasing Rate Notes Due January 28, 2000 issued by the
Borrower pursuant to the Senior Subordinated Increasing Rate Note Purchase
Agreement and includes any Exchange Notes (as defined therein) issued pursuant
thereto. Without limiting the foregoing, the term "Subordinated Notes" shall
also include all additional senior subordinated notes issued to pay accrued and
unpaid interest in respect of such Senior Subordinated Increasing Rate Notes Due
January 28, 2000 or Exchange Notes described in the immediately preceding
sentence or the additional senior subordinated notes issued as contemplated by
this sentence.
"Subordinated Noteholder" means, at any time, any holder of a
Subordinated Note.
"Subordination Provisions" is defined in Section 8.1.11.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which Capital Stock (or other ownership
interest) having ordinary voting power to elect a majority of the board of
directors, managers or other voting members of the governing body of such entity
(irrespective of whether at the time Capital Stock (or other ownership interest)
of any other class or classes of such entity shall or might have voting power
upon the occurrence of any contingency) is at the time directly or indirectly
owned by such Person, by such Person and one or more other Subsidiaries of such
Person, or by one or more other Subsidiaries of such Person.
"Subsidiary Guarantor" means, on the Effective Date, each Subsidiary of
the Borrower and thereafter, each Subsidiary of the Borrower that is required,
pursuant to clause (a) of Section 7.1.7, to execute and deliver a supplement to
the Subsidiary Guaranty.
"Subsidiary Guaranty" means the Guaranty executed and delivered by each
Subsidiary Guarantor pursuant to the terms of this Agreement, substantially in
the form of Exhibit H-l hereto, as amended, supplemented, amended and restated
or otherwise modified from time to time in accordance with its terms.
"Subsidiary Pledge Agreement" means the Pledge Agreement executed and
delivered by certain Subsidiaries of the Borrower pursuant to the terms of this
Agreement, substantially in the form of Exhibit H-2 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with its terms.
"Subsidiary Security Agreement" means the Security Agreement executed
and delivered by certain Subsidiaries of the Borrower pursuant to the terms of
this Agreement, substantially in
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the form of Exhibit F-2 hereto, as amended, supplemented, amended and restated
or otherwise modified from time to time in accordance with its terms.
"Swing Line Lender" means Scotiabank (or another Lender designated by
Scotiabank with the consent of the Borrower, if such Lender agrees to be the
Swing Line Lender hereunder), in such Person's capacity as the maker of Swing
Line Loans.
"Swing Line Loan" is defined in clause (b) of Section 2.1.2.
"Swing Line Loan Commitment" means, with respect to the Swing Line
Lender, the Swing Line Lender's obligation pursuant to clause (b) of Section
2.1.2 to make Swing Line Loans and, with respect to each Lender with a
Commitment to make Revolving Loans (other than the Swing Line Lender), such
Lender's obligation to participate in Swing Line Loans pursuant to Section
2.3.2.
"Swing Line Loan Commitment Amount" means, on any date, $5,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Swing Line Note" means a promissory note of the Borrower payable to
the Swing Line Lender, in substantially the form of Exhibit A-4 hereto (as such
promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to the Swing Line
Lender resulting from outstanding Swing Line Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Syndication Agent" is defined in the preamble.
"Taxes" is defined in Section 4.6.
"Term-A Loan" is defined in clause (a) of Section 2.1.1.
"Term-A Loan Commitment" is defined in clause (a) of Section 2.1.1.
"Term-A Loan Commitment Amount" means, on any date, $50,000,000.
"Term-A Loan Commitment Termination Date" means the earliest of
(a) March 31, 1999, if the Term-A Loans have not been made on
or prior to such date;
(b) the Closing Date (immediately after the making of the
Term-A Loans on such date); and
(c) the date on which any Commitment Termination Event occurs.
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Upon the occurrence of any event described in clauses (b) or (c), the Term-A
Loan Commitments shall terminate automatically and without any further action.
"Term-A Note" means a promissory note of the Borrower payable to the
order of any Lender, in the form of Exhibit A-2 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Term-A Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Term-B Loan" is defined in clause (b) of Section 2.1.1.
"Term-B Loan Commitment" is defined in clause (b) of Section 2.1.1.
"Term-B Loan Commitment Amount" means, on any date, $150,000,000.
"Term-B Loan Commitment Termination Date" means the earliest of
(a) March 31, 1999, if the Term-B Loans have not been made on
or prior to such date;
(b) the Closing Date (immediately after the making of the
Term-B Loans on such date); and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clauses (b) or (c), the Term-B
Loan Commitments shall terminate automatically and without any further action.
"Term-B Note" means a promissory note of the Borrower payable to the
order of any Lender, in the form of Exhibit A-3 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Term-B Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Term Loans" means collectively, the Term-A Loans and the Term-B Loans.
"Term Loan Commitment Termination Date" means, as the context may
require, the Term-A Loan Commitment Termination Date or the Term-B Loan
Commitment Termination Date.
"Total Exposure Amount" means, on any date of determination, the then
outstanding principal amount of all Term Loans and the then effective Revolving
Loan Commitment Amount or, if the Revolving Loan Commitment has been terminated,
the then outstanding principal amount of all Revolving Loans and undrawn amount
of all outstanding Letters of Credit.
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"Trademark Security Agreement" means any Trademark Security Agreement
executed and delivered by any Obligor substantially in the form of Exhibit B to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with the terms of such
Security Agreement.
"Tranche" means, as the context may require, the Loans constituting
Term-A Loans, Term-B Loans, Swing Line Loans or Revolving Loans.
"Transactions" is defined in the Recitals.
"Transferors" means HFC, Hershey CRE, Inc. and Homestead, Inc., a
Delaware corporation.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"Waiver" means an agreement executed by a lessor of any real property
leased by the Borrower or any of its Subsidiaries in favor of the Administrative
Agent for the benefit of the Lenders and the Issuer in form and substance
reasonably satisfactory to the Administrative Agent.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA, and to which the Borrower has any liability.
"wholly-owned Subsidiary" shall mean, with respect to any Person, any
Subsidiary of such Person all of the Capital Stock (and all rights and options
to purchase such Capital Stock) of which, other than directors' qualifying
shares, are owned, beneficially and of record, by such Person and/or one or more
wholly-owned Subsidiaries of such Person.
"Year 1" is defined in clause (a) of Section 7.2.7.
"Year 2" is defined in clause (a) of Section 7.2.7.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each other Loan Document, notice and other communication delivered from time to
time in connection with this Agreement or any other Loan Document.
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SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made in accordance with
generally accepted accounting principles ("GAAP") as in effect as of December
31, 1997, but all financial statements required to be delivered hereunder or
thereunder shall be prepared in accordance with GAAP as in effect from time to
time.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
AND NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement (including Article V),
(a) each Lender severally agrees to make Loans (other than
Swing Line Loans) pursuant to the Commitments and the Swing Line Lender
agrees to make Swing Line Loans pursuant to the Swing Line Loan
Commitment in each case as described in this Section 2.1; and
(b) the Issuer agrees that it will issue Letters of Credit
pursuant to Section 2.1.3, and each other Lender that has a Revolving
Loan Commitment severally agrees that it will purchase participation
interests in such Letters of Credit pursuant to Section 2.6.1.
SECTION 2.1.1. Term Loan Commitments. Subject to compliance by the
Borrower with the terms of Sections 5.1 and Section 5.2, in a single Borrowing
on the Closing Date (which shall be a Business Day) occurring on or prior to the
Commitment Termination Date, each Lender that has a Percentage in excess of zero
of the Term-A Loan Commitment or the Term-B Loan Commitment, as applicable,
(a) will make loans (relative to such Lender, its "Term-A
Loans") to the Borrower equal to such Lender's Percentage of the
aggregate amount of the Borrowing of Term-A Loans requested by the
Borrower to be made on the Closing Date (with the commitment of each
such Lender described in this clause (a) herein referred to as its
"Term-A Loan Commitment"); and
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(b) will make loans (relative to such Lender, its "Term-B
Loans") to the Borrower equal to such Lender's Percentage of the
aggregate amount of the Borrowing of Term-B Loans requested by the
Borrower to be made on the Closing Date (with the commitment of each
such Lender described in this clause (b) herein referred to as its
"Term-B Loan Commitment").
No amounts paid or prepaid with respect to Term-A Loans or Term-B Loans may be
reborrowed.
SECTION 2.1.2. Revolving Loan Commitment and Swing Line Loan
Commitment. Subject to compliance by the Borrower with the terms of Section
2.1.4, Section 5.1 and Section 5.2, the Revolving Loans and Swing Line Loans
will be made as set forth below.
(a) From time to time on any Business Day occurring
concurrently with (or after) the making of the Term Loans but prior to
the Revolving Loan Commitment Termination Date, each Lender that has a
Percentage of the Revolving Loan Commitment in excess of zero will make
loans (relative to such Lender, its "Revolving Loans") to the Borrower
equal to such Lender's Percentage of the aggregate amount of the
Borrowing of the Revolving Loans requested by the Borrower to be made
on such day. The Commitment of each Lender described in this clause (a)
is herein referred to as its "Revolving Loan Commitment". On the terms
and subject to the conditions hereof, the Borrower may from time to
time borrow, prepay and reborrow the Revolving Loans.
(b) From time to time on any Business Day occurring
concurrently with (or after) the making of the Term Loans, but prior to
the Revolving Loan Commitment Termination Date, the Swing Line Lender
will make Loans (relative to the Swing Line Lender, its "Swing Line
Loans") to the Borrower equal to the principal amount of the Swing Line
Loans requested by the Borrower. On the terms and subject to the
conditions hereof, the Borrower may from time to time borrow, prepay
and reborrow such Swing Line Loans.
SECTION 2.1.3. Letter of Credit Commitment. Subject to compliance by
the Borrower with the terms of Section 2.1.5, Section 5.1 and Section 5.2, from
time to time on any Business Day occurring from and after the Closing Date but
prior to the Revolving Loan Commitment Termination Date, the Issuer will
(a) issue one or more standby or documentary letters of credit
(each referred to as a "Letter of Credit") for the account of the
Borrower or its Subsidiaries in the Stated Amount requested by the
Borrower on such day; or
(b) extend the Stated Expiry Date of an existing standby
Letter of Credit previously issued hereunder to a date not later than
the earlier of (x) the Revolving Loan Commitment Termination Date and
(y) one year from the date of such extension.
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SECTION 2.1.4. Lenders Not Permitted or Required To Make the Loans. No
Lender shall be permitted or required to, and the Borrower shall not request
that any Lender, make
(a) any Term-A Loan or Term-B Loan (as the case may be) if,
after giving effect thereto, the aggregate original principal amount of
all the Term-A Loans or Term-B Loans (as the case may be):
(i) of all Lenders would exceed the Term-A Loan
Commitment Amount (in the case of Term-A Loans) or the Term-B
Loan Commitment Amount (in the case of Term-B Loans); or
(ii) of such Lender would exceed such Lender's
Percentage of the Term-A Loan Commitment Amount (in the case
of Term-A Loans) or the Term-B Loan Commitment Amount (in the
case of Term-B Loans);
(b) any Revolving Loan or Swing Line Loan if, after giving
effect thereto, the aggregate outstanding principal amount of all the
Revolving Loans and Swing Line Loans
(i) of all the Lenders with Revolving Loan
Commitments, together with the aggregate amount of all Letter
of Credit Outstandings, would exceed the Revolving Loan
Commitment Amount; or
(ii) of such Lender with a Revolving Loan Commitment
(other than the Swing Line Lender), together with such
Lender's Percentage of the aggregate amount of all Letter of
Credit Outstandings, would exceed such Lender's Percentage of
the Revolving Loan Commitment Amount; or
(c) any Swing Line Loan if after giving effect to the making
of such Swing Line Loan, the outstanding principal amount of all Swing
Line Loans would exceed the then existing Swing Line Loan Commitment
Amount.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. No Issuer shall be permitted or required to issue any Letter of Credit
if, after giving effect thereto, (a) the aggregate amount of all Letter of
Credit Outstandings would exceed the Letter of Credit Commitment Amount or (b)
the sum of the aggregate amount of all Letter of Credit Outstandings plus the
aggregate principal amount of all Revolving Loans and Swing Line Loans then
outstanding would exceed the Revolving Loan Commitment Amount.
SECTION 2.2. Reduction of the Commitment Amounts. The Commitment
Amounts are subject to reductions from time to time pursuant to this Section
2.2.
SECTION 2.2.1. Optional. The Borrower may, from time to time on any
Business Day occurring after the time of the initial Credit Extension hereunder,
voluntarily reduce the Swing
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Line Loan Commitment Amount, the Letter of Credit Commitment Amount or the
Revolving Loan Commitment Amount; provided, however, that all such reductions
shall require at least three Business Days' prior notice to the Administrative
Agent and be permanent, and any partial reduction of any Commitment Amount shall
be in a minimum amount of $500,000 and in an integral multiple of $100,000. Any
reduction of the Revolving Loan Commitment Amount which reduces the Revolving
Loan Commitment Amount below the sum of (i) the Swing Line Loan Commitment
Amount and (ii) the Letter of Credit Commitment Amount shall result in an
automatic and corresponding reduction of the Swing Line Loan Commitment Amount
and/or Letter of Credit Commitment Amount (as directed by the Borrower in a
notice to the Administrative Agent delivered together with the notice of such
voluntary reduction in the Revolving Loan Commitment Amount) to an aggregate
amount not in excess of the Revolving Loan Commitment Amount, as so reduced,
without any further action on the part of the Swing Line Lender or the Issuer.
SECTION 2.2.2. Mandatory. Following the prepayment in full of the Term
Loans, the Revolving Loan Commitment Amount shall, without any further action,
automatically and permanently be reduced on the date the Term Loans would
otherwise have been required to be prepaid pursuant to the applicable provisions
of Section 3.1.1 with 100% of any Net Disposition Proceeds, in an amount equal
to the amount by which the Term Loans would otherwise be required to be prepaid
if Term Loans had been outstanding. Any reduction of the Revolving Loan
Commitment Amount which reduces the Revolving Loan Commitment Amount below the
sum of (i) the Swing Line Loan Commitment Amount and (ii) the Letter of Credit
Commitment Amount shall result in an automatic and corresponding reduction of
the Swing Line Loan Commitment Amount and/or Letter of Credit Commitment Amount
(as directed by the Borrower in a notice to the Administrative Agent) to an
aggregate amount not in excess of the Revolving Loan Commitment Amount, as so
reduced, without any further action on the part of the Swing Line Lender or the
Issuer.
SECTION 2.3. Borrowing Procedures and Funding Maintenance. Loans shall
be made by the Lenders in accordance with this Section.
SECTION 2.3.1. Term Loans and Revolving Loans. By delivering a
Borrowing Request to the Administrative Agent on or before 12:00 noon, New York
time, on a Business Day, the Borrower may from time to time irrevocably request,
on not less than one (in the case of Base Rate Loans) and three (in the case of
LIBO Rate Loans) nor more than (in each case) five Business Days' notice, that a
Borrowing be made, in the case of LIBO Rate Loans, in a minimum amount of
$2,500,000 and an integral multiple of $500,000 and in the case of the Base Rate
Loans, in a minimum amount of $500,000 and an integral multiple of $250,000, or,
in either case, in the unused amount of the applicable Commitment. On the terms
and subject to the conditions of this Agreement, each Borrowing shall be
comprised of the type of Loans, and shall be made on the Business Day, specified
in such Borrowing Request. On or before 11:00 a.m., New York time, on such
Business Day each Lender shall deposit with the Administrative Agent same day
funds in an amount equal to such Lender's Percentage of the requested Borrowing.
Such deposit will be made to an account which the Administrative Agent shall
specify from time
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to time by notice to the Lenders. To the extent funds are received from the
Lenders, the Administrative Agent shall make such funds available to the
Borrower by wire transfer to the accounts the Borrower shall have specified in
its Borrowing Request. No Lender's obligation to make any Loan shall be affected
by any other Lender's failure to make any Loan.
SECTION 2.3.2. Swing Line Loans.
(a) By telephonic notice, promptly followed (within three
Business Days) by the delivery of a confirming Borrowing Request, to
the Swing Line Lender on or before 11:00 a.m., New York time, on a
Business Day, the Borrower may from time to time irrevocably request
that Swing Line Loans be made by the Swing Line Lender in an aggregate
minimum principal amount of $500,000 and an integral multiple of
$250,000. Each request by the Borrower for a Swing Line Loan shall
constitute a representation and warranty by the Borrower that on the
date of such request and (if different) the date of the making of the
Swing Line Loan, both immediately before and after giving effect to
such Swing Line Loan and the application of the proceeds thereof, the
statements made in Section 5.2.1 are true and correct in all material
respects with the same effect as if then made (unless stated to relate
solely to an earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of
such earlier date). All Swing Line Loans shall be made as Base Rate
Loans and shall not be entitled to be converted into LIBO Rate Loans.
The proceeds of each Swing Line Loan shall be made available by the
Swing Line Lender, by 3:00 p.m., New York time, on the Business Day
telephonic notice is received by it as provided in the preceding
sentences, to the Borrower by wire transfer to the accounts the
Borrower shall have specified in its notice therefor.
(b) If (i) any Swing Line Loan shall be outstanding for more
than four full Business Days or (ii) after giving effect to any request
for a Swing Line Loan or a Revolving Loan the aggregate principal
amount of Revolving Loans and Swing Line Loans outstanding to the Swing
Line Lender, together with the Swing Line Lender's Percentage of all
Letter of Credit Outstandings, would exceed the Swing Line Lender's
Percentage of the Revolving Loan Commitment Amount, the Swing Line
Lender, at any time in its sole and absolute discretion may request
each Lender that has a Revolving Loan Commitment, and each such Lender,
including the Swing Line Lender hereby agrees, to make a Revolving Loan
(which shall always be initially funded as a Base Rate Loan) in an
amount equal to such Lender's Percentage of the amount of the Swing
Line Loans ("Refunded Swing Line Loans") outstanding on the date such
notice is given. On or before 11:00 a.m. (New York time) on the first
Business Day following receipt by each Lender of a request to make
Revolving Loans as provided in the preceding sentence, each such Lender
(other than the Swing Line Lender) shall deposit in an account
specified by the Administrative Agent to the Lenders from time to time
the amount so requested in same day funds, whereupon such funds shall
be immediately delivered to the Swing Line Lender (and not the
Borrower) and applied to repay the Refunded Swing Line Loans. On the
day such Revolving Loans are made, the Swing Line Lender's Percentage
of the Refunded Swing Line Loans shall be deemed to be paid. Upon the
making of any
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Revolving Loan pursuant to this clause, the amount so funded shall
become due under such Lender's Revolving Note and shall no longer be
owed under the Swing Line Note. Each Lender's obligation to make the
Revolving Loans referred to in this clause shall be absolute and
unconditional and shall not be affected by any circumstance, including,
without limitation, (i) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the Swing Line
Lender, the Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of any Default; (iii) any adverse
change in the condition (financial or otherwise) of the Borrower or any
other Obligor subsequent to the date of the making of a Swing Line
Loan; (iv) the acceleration or maturity of any Loans or the termination
of the Revolving Loan Commitment after the making of any Swing Line
Loan; (v) any breach of this Agreement by the Borrower or any other
Lender; or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(c) In the event that (i) the Borrower or any Subsidiary is
subject to any bankruptcy or insolvency proceedings as described in
Section 8.1.9 or (ii) the Swing Line Lender otherwise requests, each
Lender with a Revolving Loan Commitment shall acquire without recourse
or warranty an undivided participation interest equal to such Lender's
Percentage of any Swing Line Loan otherwise required to be repaid by
such Lender pursuant to the preceding clause by paying to the Swing
Line Lender on the date on which such Lender would otherwise have been
required to make a Revolving Loan in respect of such Swing Line Loan
pursuant to the preceding clause, in same day funds, an amount equal to
such Lender's Percentage of such Swing Line Loan, and no Revolving
Loans shall be made by such Lender pursuant to the preceding clause.
From and after the date on which any Lender purchases an undivided
participation interest in a Swing Line Loan pursuant to this clause,
the Swing Line Lender shall distribute to such Lender (appropriately
adjusted, in the case of interest payments, to reflect the period of
time during which such Lender's participation interest is outstanding
and funded) its ratable amount of all payments of principal and
interest in respect of such Swing Line Loan in like funds as received;
provided, however, that in the event such payment received by the Swing
Line Lender is required to be returned to the Borrower, such Lender
shall return to the Swing Line Lender the portion of any amounts which
such Lender had received from the Swing Line Lender in like funds.
(d) Notwithstanding anything herein to the contrary, the Swing
Line Lender shall not be obligated to make any Swing Line Loans if it
has elected after the occurrence and during the continuance of a
Default not to make Swing Line Loans and has notified the Borrower in
writing or by telephone of such election. The Swing Line Lender shall
promptly give notice to the Lenders of such election not to make Swing
Line Loans. No Lender shall be obligated to acquire its pro rata
participation interest of any Swing Line Loan to the extent such Swing
Line Loan was made after the Swing Line Lender is aware of a Default
and has made such Swing Line Loan without the consent of the Lenders
having Revolving Loan Commitments.
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SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 12:00
noon, New York time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one (in the case of a conversion of LIBO
Rate Loans to Base Rate Loans) and three (in the case of a continuation of LIBO
Rate Loans or a conversion of Base Rate Loans into LIBO Rate Loans) nor more
than (in each case) five Business Days' notice that all, or any portion in an
aggregate minimum amount of $2,500,000 and an integral multiple of $500,000, in
the case of the continuation of, or conversion into, LIBO Rate Loans, or an
aggregate minimum amount of $500,000 and an integral multiple of $250,000, in
the case of the conversion into Base Rate Loans (other than Swing Line Loans as
provided in clause (a) of Section 2.3.2), be, in the case of Base Rate Loans,
converted into LIBO Rate Loans or, in the case of LIBO Rate Loans, be converted
into a Base Rate Loan or continued as a LIBO Rate Loan (in the absence of
delivery of a Continuation/Conversion Notice with respect to any LIBO Rate Loan
at least three Business Days before the last day of the then current Interest
Period with respect thereto, such LIBO Rate Loan shall, on such last day,
automatically convert to a Base Rate Loan); provided, however, that (x) each
such conversion or continuation shall be pro rated among the applicable
outstanding Loans of the relevant Lenders, and (y) no portion of the outstanding
principal amount of any Loans may be continued as, or be converted into, LIBO
Rate Loans when any Default has occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as such
action does not result in increased costs to the Borrower; provided, however,
that such LIBO Rate Loan shall nonetheless be deemed to have been made and to be
held by such Lender, and the obligation of the Borrower to repay such LIBO Rate
Loan shall nevertheless be to such Lender for the account of such foreign
branch, Affiliate or international banking facility; and provided, further,
however, that such Lender shall cause such foreign branch, Affiliate or
international banking facility to comply with the applicable provisions of
clause (b) of Section 4.6 with respect to such LIBO Rate Loan. In addition, the
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
assumed that each Lender elected to fund all LIBO Rate Loans by purchasing
Dollar deposits in its LIBOR Office's interbank eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent an Issuance Request on or before 12:00 noon, New York time, on a Business
Day, the Borrower may, from time to time irrevocably request, on not less than
three nor more than ten Business Days' notice (or such shorter notice as may be
acceptable to the Issuer), in the case of an initial issuance of a Letter of
Credit, and not less than three nor more than ten Business Days' notice (unless
a shorter notice period is acceptable to the Issuer) prior to the then existing
Stated Expiry Date of a Letter of Credit, in the case of a request for the
extension of the Stated Expiry Date of a Letter of Credit, that the Issuer
issue, or extend the Stated Expiry Date of, as the case may be, an irrevocable
Letter of Credit for the Borrower's account or for the account of any
wholly-owned Subsidiary of the Borrower that is a signatory to the Subsidiary
Guaranty and Subsidiary
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Security Agreement and whose outstanding Capital Stock is pledged to the
Administrative Agent for the benefit of the Lenders pursuant to a Pledge
Agreement, in such form as may be requested by the Borrower and approved by the
Issuer, solely for the purposes described in Section 7.1.9. The obligations of
the Borrower and the Letter of Credit Issuer in respect of Letters of Credit may
at the election of the Letter of Credit Issuer be subject to The International
Standby Practices (ISP 98). Notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, the Borrower
hereby acknowledges and agrees that it shall be obligated to reimburse the
Issuer upon each Disbursement of a Letter of Credit, and it shall be deemed to
be the obligor for purposes of each such Letter of Credit issued hereunder
(whether the account party on such Letter of Credit is the Borrower or a
Subsidiary of the Borrower). Upon receipt of an Issuance Request, the
Administrative Agent shall promptly notify the Issuer and each Lender with a
Revolving Loan Commitment thereof. Each Letter of Credit shall by its terms be
stated to expire on a date (its "Stated Expiry Date") no later than the earlier
to occur of (i) the Revolving Loan Commitment Termination Date or (ii) in the
case of standby Letters of Credit, one year from the date of its issuance and,
in the case of documentary Letters of Credit, 180 days from the date of its
issuance. The Issuer will make available to the beneficiary thereof the original
of each Letter of Credit which it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than the Issuer) that has a Revolving Loan Commitment
shall be deemed to have irrevocably purchased from the Issuer, to the extent of
its Percentage in respect of Revolving Loans, and the Issuer shall be deemed to
have irrevocably granted and sold to such Lender a participation interest in
such Letter of Credit (including the Contingent Liability and any Reimbursement
Obligation and all rights with respect thereto), and such Lender shall, to the
extent of its Percentage in respect of Revolving Loans, be responsible for
reimbursing promptly (and in any event within one Business Day) the Issuer for
Reimbursement Obligations which have not been reimbursed by the Borrower in
accordance with Section 2.6.3. In addition, such Lender shall, to the extent of
its Percentage in respect of Revolving Loans, be entitled to receive a ratable
portion of the Letter of Credit fees payable pursuant to Section 3.3.3 with
respect to each Letter of Credit and of interest payable pursuant to Section 3.2
with respect to any Reimbursement Obligation. To the extent that any Lender has
reimbursed the Issuer for a Disbursement as required by this Section, such
Lender shall be entitled to receive its ratable portion of any amounts
subsequently received (from the Borrower or otherwise) in respect of such
Disbursement.
SECTION 2.6.2. Disbursements; Conversion to Revolving Loans. The Issuer
will notify the Borrower and the Administrative Agent promptly of the
presentment for payment of any Letter of Credit issued by the Issuer, together
with notice of the date (the "Disbursement Date") such payment shall be made
(each such payment, a "Disbursement"). Subject to the terms and provisions of
such Letter of Credit and this Agreement, the Issuer shall make such payment to
the beneficiary (or its designee) of such Letter of Credit. The Borrower agrees
to reimburse the Administrative Agent for the account of the Issuer, upon
receipt by the Borrower of notice from the Issuer of the date and amount of a
draft presented under any Letter of Credit and paid by the Issuer, prior to 1:00
p.m., New York time, on the first Business Day following the date of
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such notice (the "Disbursement Due Date"), for all amounts which the Issuer has
disbursed under such Letter of Credit, together with interest thereon at the
rate per annum otherwise applicable to Revolving Loans (made as Base Rate Loans)
from and including the Disbursement Date to but excluding the Disbursement Due
Date and, thereafter (unless such Disbursement is converted into a Base Rate
Loan on the Disbursement Due Date), at a rate per annum equal to the rate per
annum then in effect with respect to overdue Revolving Loans (made as Base Rate
Loans) pursuant to Section 3.2.2 for the period from the Disbursement Due Date
through the date of such reimbursement; provided, however, that, if no Default
shall have then occurred and be continuing, unless the Borrower has notified the
Administrative Agent no later than one Business Day prior to the Disbursement
Due Date that it will reimburse the Issuer for the applicable Disbursement, then
the amount of the Disbursement shall be deemed to be a Revolving Loan
constituting a Base Rate Loan and following the giving of notice thereof by the
Administrative Agent to the Lenders, each Lender with a commitment to make
Revolving Loans (other than the Issuer) will deliver to the Issuer on the
Disbursement Due Date immediately available funds in an amount equal to such
Lender's Percentage of such Revolving Loan. Each conversion of Disbursement
amounts into Revolving Loans shall constitute a representation and warranty by
the Borrower that on the date of the making of such Revolving Loan all of the
statements set forth in Section 5.2.1 are true and correct in all material
respects with the same effect as if then made (unless stated to relate solely to
an earlier date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date).
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrower under Section 2.6.2 to reimburse the Issuer with
respect to each Disbursement (including interest thereon) not converted into a
Base Rate Loan pursuant to Section 2.6.2, and, upon the failure of the Borrower
to reimburse the Issuer and the giving of notice thereof by the Administrative
Agent to the Lenders, each Lender's (to the extent it has a Revolving Loan
Commitment) obligation under Section 2.6.1 to reimburse the Issuer or fund its
Percentage of any Disbursement converted into a Base Rate Loan, shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower or such
Lender, as the case may be, may have or have had against the Issuer or any such
Lender, including any defense based upon the failure of any Disbursement to
conform to the terms of the applicable Letter of Credit (if, in the Issuer's
good faith opinion, such Disbursement is determined to be appropriate) or any
non-Application or misapplication by the beneficiary of the proceeds of such
Letter of Credit; provided, however, that after paying in full its Reimbursement
Obligation hereunder, nothing herein shall adversely affect the right of the
Borrower or such Lender, as the case may be, to commence any proceeding against
the Issuer for any wrongful Disbursement made by the Issuer under a Letter of
Credit as a result of acts or omissions constituting gross negligence or willful
misconduct on the part of the Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default of the type described in Section 8.1.9 or,
with notice from the Administrative Agent acting at the direction of the
Required Lenders, upon the occurrence and during the continuation of any other
Event of Default,
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(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn
and available under all Letters of Credit issued and outstanding shall,
without demand upon or notice to the Borrower or any other Person, be
deemed to have been paid or disbursed by the Issuer under such Letters
of Credit (notwithstanding that such amount may not in fact have been
so paid or disbursed); and
(b) upon notification by the Administrative Agent to the
Borrower of its obligations under this Section, the Borrower shall be
immediately obligated to reimburse the Issuer for the amount deemed to
have been so paid or disbursed by the Issuer.
Any amounts so payable by the Borrower pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
Issuer and shall be applied to such Obligations as they become due and payable.
At such time when the Events of Default giving rise to the deemed disbursements
hereunder shall have been cured or waived, the Administrative Agent shall return
to the Borrower all amounts then on deposit with the Administrative Agent
pursuant to this Section, together with accrued interest at the Federal Funds
Rate, which have not been applied to the satisfaction of such Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower and,
to the extent set forth in Section 2.6.1, each Lender with a Revolving Loan
Commitment, shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuer (except to the extent of
its own gross negligence or willful misconduct) shall not be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any Letter of Credit or any document submitted by any
party in connection with the application for and issuance of a Letter
of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may prove
to be invalid or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or
otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a
Letter of Credit.
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None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Lender with a Revolving Loan
Commitment hereunder. In furtherance and extension and not in limitation or
derogation of any of the foregoing, any action taken or omitted to be taken by
the Issuer in good faith (and not constituting gross negligence or willful
misconduct) shall be binding upon the Borrower, each Obligor and each such
Lender, and shall not put the Issuer under any resulting liability to the
Borrower, any Obligor or any such Lender, as the case may be.
SECTION 2.7. Register; Notes.
(a) Each Lender may maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder. In the case of a Lender that
does not request, pursuant to clause (b)(ii) below, execution and
delivery of a Note evidencing the Loans made by such Lender to the
Borrower, such account or accounts shall, to the extent not
inconsistent with the notations made by the Administrative Agent in the
Register, be conclusive and binding on the Borrower absent manifest
error; provided, however, that the failure of any Lender to maintain
such account or accounts shall not limit or otherwise affect any
Obligations of the Borrower or any other Obligor.
(b) (i) The Borrower hereby designates the Administrative
Agent to serve as the Borrower's agent, solely for the purpose of this
clause (b), to maintain a register (the "Register") on which the
Administrative Agent will record each Lender's name, address and
Commitment, the Loans made by each Lender and each repayment in respect
of the principal amount of the Loans of each Lender and annexed to
which the Administrative Agent shall retain a copy of each Lender
Assignment Agreement delivered to the Administrative Agent pursuant to
Section 10.11.1. Failure to make any recordation, or any error in such
recordation, shall not affect the Borrower's obligation in respect of
such Loans. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Administrative Agent
and the Lenders shall treat each Person in whose name a Loan (and, as
provided in clause (ii), the Note evidencing such Loan, if any) is
registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. A
Lender's Commitment and the Loans made pursuant thereto may be assigned
or otherwise transferred in whole or in part only by registration of
such assignment or transfer in the Register. Any assignment or transfer
of a Lender's Commitment or the Loans made pursuant thereto shall be
registered in the Register only upon delivery to the Administrative
Agent of a Lender Assignment Agreement duly executed by the assignor
thereof and the compliance by the parties thereto with the other
requirements of Section 10.11.1. No assignment or transfer of a
Lender's Commitment or the Loans made pursuant thereto shall be
effective unless such assignment or transfer shall have been recorded
in the Register by the Administrative Agent as provided in this
Section.
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(ii) The Borrower hereby agrees that, upon the
request to the Administrative Agent by any Lender, the Borrower will
execute and deliver to such Lender, as applicable, a Revolving Note, a
Swing Line Note, Term-A Note or a Term-B Note evidencing the Loans made
by such Lender. The Borrower hereby irrevocably authorizes each Lender
to make (or cause to be made) appropriate notations on the grid
attached to such Lender's Notes (or on any continuation of such grid),
which notations, if made, shall evidence, inter alia, the date of, the
outstanding principal amount of, and the interest rate and Interest
Period applicable to the Loans evidenced thereby. Such notations shall,
to the extent not inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and binding on the
Borrower absent manifest error; provided, however, that the failure of
any Lender to make any such notations shall not limit or otherwise
affect any Obligations of the Borrower or any other Obligor. The Loans
evidenced by any Note and interest thereon shall at all times
(including after assignment pursuant to Section 10.11.1) be payable to
the order of the payee named therein and its registered assigns.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the Stated Maturity Date
therefor. Prior thereto, the Borrower
(a) 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
(i) Loans, provided, however, that
(A) any such prepayment of the Term-A Loans,
or the Term-B Loans, shall be made pro rata among
Term-A Loans and Term-B Loans, as applicable, of the
same type and if applicable, having the same Interest
Period of all Lenders that have made such Term-A
Loans or Term-B Loans, and any such prepayment of
Revolving Loans shall be made pro rata among the
Revolving Loans of the same type and, if applicable,
having the same Interest Period of all Lenders that
have made such Revolving Loans;
(B) the Borrower shall comply with Section
4.4 in the event that any LIBO Rate Loan is prepaid
on any day other than the last day of the Interest
Period for such Loan;
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(C) all such voluntary prepayments shall
require at least three Business Days' prior written
notice to the Administrative Agent provided that
voluntary prepayments of Revolving and Swing Line
Base Rate Loans may be made on same-day telephonic
notice; and
(D) all such voluntary partial prepayments
shall be, in the case of LIBO Rate Loans, in an
aggregate minimum amount of $500,000 and an integral
multiple of $500,000 and, in the case of Base Rate
Loans, in an aggregate minimum amount of $250,000 and
an integral multiple of $100,000; and
(ii) Swing Line Loans, provided that all such
voluntary prepayments shall require prior telephonic notice to
the Swing Line Lender on or before 1:00 p.m., New York time,
on the day of such prepayment (such notice to be confirmed in
writing within 24 hours thereafter);
(b) shall, no later than one Business Day following the
receipt of any Net Disposition Proceeds, deliver to the Administrative
Agent a calculation of the amount of such Net Disposition Proceeds and,
subject to the following proviso, make a mandatory prepayment of the
Term Loans in an amount equal to 100% of such Net Disposition Proceeds,
to be applied as set forth in Section 3.1.2; provided, that, at the
option of the Borrower and so long as no Default shall have occurred
and be continuing, the Borrower may use or cause the appropriate
Subsidiary to use the Net Disposition Proceeds to purchase assets
useful in the business of the Borrower and its Subsidiaries (with such
assets collectively referred to as "Qualified Assets") within 365 days
after the consummation of such sale, conveyance or disposition, and in
the event the Borrower elects to exercise its right to purchase
Qualified Assets with the Net Disposition Proceeds pursuant to this
clause, the Borrower shall deliver a certificate of an Authorized
Officer to the Administrative Agent within 30 days following the
receipt of Net Disposition Proceeds setting forth the amount of the Net
Disposition Proceeds which the Borrower expects to use to purchase
Qualified Assets during such 365 day period; provided, further, that
the Borrower and its Subsidiaries shall be only permitted to reinvest
Net Disposition Proceeds in Qualified Assets in an aggregate amount of
more than $2,000,000 during any period of 12 consecutive months (and no
more than $5,000,000 after the date of this Agreement) and provided,
further, that no prepayment shall be required hereunder until there are
Net Disposition Proceeds available therefor (and not applied in
previous prepayment) of at least $1,000,000. If and to the extent that
the Borrower has elected to reinvest Net Disposition Proceeds as
permitted above, then on the date which is 365 days (in the case of
clause (b)(i) below) and 370 days (in the case of clause (b)(ii) below)
after the relevant sale, conveyance or disposition, the Borrower shall
(i) deliver a certificate of an Authorized Officer to the
Administrative Agent certifying as to the amount and use of such Net
Disposition Proceeds actually used to purchase Qualified Assets and
(ii) deliver to the Administrative Agent, for application in accordance
with this clause and Section 3.1.2, an amount equal to the remaining
unused Net Disposition Proceeds;
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(c) shall no later than 5 Business Days following the delivery
of the Borrower's annual audited financial reports required pursuant to
clause (b) of Section 7.1.1 (beginning with the audited financial
reports delivered in respect of the 1999 Fiscal Year), deliver to the
Administrative Agent a calculation of the Excess Cash Flow for the
prior Fiscal Year and no later than 5 Business Days following the
delivery of such calculation, make a mandatory prepayment of the Term
Loans in an amount equal to (i) 75% so long as the Debt to EBITDA Ratio
as of the end of the Fiscal Year in respect of which the prepayment is
to be made is greater than or equal to 4.00 to 1:00, (ii) 50% so long
as such Debt to EBITDA Ratio is greater than or equal to 2.50 to 1:00
but less than 4.00 to 1:00 and (iii) 0% so long as such Debt to EBITDA
is less than 2.50 to 1:00, of the Excess Cash Flow (if any) for such
Fiscal Year to be applied as set forth in Section 3.1.2;
(d) shall, concurrently with the receipt by the Borrower of
any Net Equity Proceeds of the IPO or the Borrower or any of its
Subsidiaries of any Net Debt Proceeds (which in the case of any Net
Debt Proceeds from the sale of Senior Subordinated High Yield Notes
shall be limited to the Excess High Yield Net Debt Proceeds), deliver
to the Administrative Agent a calculation of the amount of such Net
Debt Proceeds (or, if applicable, the Excess High Yield Net Debt
Proceeds) or Net Equity Proceeds of the IPO, and no later than 5
Business Days following the delivery of such calculation, make a
mandatory prepayment of the Term Loans in an amount equal to, in the
case of Net Equity Proceeds of the IPO, (i) 50% so long as the Debt to
EBITDA Ratio as of the end of the Fiscal Year in respect of which the
prepayment is to be made is greater than 3.50 to 1:00 and (ii) 35% if
such Debt to EBITDA Ratio is less than or equal to 3.50 to 1:00 of such
Net Equity Proceeds of the IPO and, in the case of Net Debt Proceeds,
100% of the Net Debt Proceeds (or, if applicable, the Excess High Yield
Net Debt Proceeds), in each case to be applied as set forth in Section
3.1.2;
(e) shall, within 60 days following the receipt by the
Borrower or any of its Subsidiaries of any Casualty Proceeds in excess
of $500,000 (individually or in the aggregate over the course of a
Fiscal Year), make a mandatory prepayment of the Term Loans and
Revolving Loans in an amount equal to 100% of such Casualty Proceeds,
to be applied as set forth in Section 3.1.2; provided, that no
mandatory prepayment of Casualty Proceeds shall be required under this
clause if (i) the Borrower informs the Administrative Agent no later
than 60 days following the occurrence of the Casualty Event resulting
in such Casualty Proceeds of its or its Subsidiary's good faith
intention to apply such Casualty Proceeds to the rebuilding or
replacement of such damaged, destroyed or condemned assets or property
and in fact uses such Casualty Proceeds to rebuild or replace the
damaged, destroyed or condemned asset or property within 365 days
following the receipt of such Casualty Proceeds (or, if (i) the
intended rebuilding or replacement cannot be completed within such 365
day period, (ii) the Borrower, during such 365 day period, has entered
into binding commitments with third parties to complete such rebuilding
or replacement, and (iii) the Borrower diligently pursues such
rebuilding or replacement thereafter and completes such rebuilding or
replacement within 540 days following the receipt of such Casualty
Proceeds, 540 days), with the amount of Casualty
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Proceeds unused after such 365 (or 540, as applicable) day period being
applied to the Loans pursuant to Section 3.1.2; provided, further,
however, that at any time when any Default shall have occurred and be
continuing or Casualty Proceeds not applied as provided above shall
exceed $1,000,000, such Casualty Proceeds will be deposited in an
account maintained with the Administrative Agent for disbursement at
the request of the Borrower to pay for such rebuilding or replacement;
(f) shall, on each date when any reduction in the Revolving
Loan Commitment Amount shall become effective, including pursuant to
Section 2.2 or Section 3.1.2, make a mandatory prepayment of Revolving
Loans and (if necessary) Swing Line Loans, and (if necessary) deposit
with the Administrative Agent cash collateral for Letter of Credit
Outstandings) in an aggregate amount equal to the excess, if any, of
the aggregate outstanding principal amount of all Revolving Loans,
Swing Line Loans and Letters of Credit Outstanding over the Revolving
Loan Commitment Amount as so reduced;
(g) shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring on or during any period set forth below, make a
scheduled repayment of the aggregate outstanding principal amount, if
any, of all Term-A Loans in an amount equal to the amount set forth
below opposite the Stated Maturity Date or such Quarterly Payment Date
(as such amounts may have otherwise been reduced pursuant to this
Agreement), as applicable:
6/30/99 $1,250,000
9/30/99 $1,250,000
12/31/99 $1,250,000
3/31/00 $1,250,000
6/30/00 $1,875,000
9/30/00 $1,875,000
12/31/00 $1,875,000
3/31/01 $1,875,000
6/30/01 $1,875,000
9/30/01 $1,875,000
12/31/01 $1,875,000
3/31/02 $1,875,000
6/30/02 $2,500,000
9/30/02 $2,500,000
12/31/02 $2,500,000
3/31/03 $2,500,000
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6/30/03 $2,500,000
9/30/03 $2,500,000
12/31/03 $2,500,000
3/31/04 $2,500,000
6/30/04 $2,500,000
9/30/04 $2,500,000
12/31/04 $2,500,000
Stated Maturity Date for $2,500,000 or
Term-A Loans the then outstanding principal amount of
all Term-A Loans, if different;
(h) shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring on or during any period set forth below, make a
scheduled repayment of the aggregate outstanding principal amount, if
any, of all Term-B Loans in an amount equal to the amount set forth
below opposite the Stated Maturity Date or such Quarterly Payment Date,
as applicable (as such amounts may have otherwise been reduced pursuant
to this Agreement):
6/30/99 $ 375,000
9/30/99 $ 375,000
12/31/99 $ 375,000
3/31/00 $ 375,000
6/30/00 $ 375,000
9/30/00 $ 375,000
12/31/00 $ 375,000
3/31/01 $ 375,000
6/30/01 $ 375,000
9/30/01 $ 375,000
12/31/01 $ 375,000
3/31/02 $ 375,000
6/30/02 $ 375,000
9/30/02 $ 375,000
12/31/02 $ 375,000
3/31/03 $ 375,000
6/30/03 $ 375,000
9/30/03 $ 375,000
12/31/03 $ 375,000
3/31/04 $ 375,000
6/30/04 $ 375,000
9/30/04 $ 375,000
12/31/04 $ 375,000
3/31/05 $ 375,000
6/30/05 $35,250,000
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9/30/05 $35,250,000
12/31/05 $35,250,000
Stated Maturity Date for $35,250,000 or
Term-B Loans the then outstanding principal amount of
all Term-B Loans, if different;
(i) shall, immediately upon any acceleration of the Stated
Maturity Date of any Loans or Obligations pursuant to Section 8.2 or
Section 8.3, repay all Loans and provide the Administrative Agent with
cash collateral in an amount equal to the Letter of Credit
Outstandings.
Each prepayment of any Loans made pursuant to this Section shall be
without premium or penalty, except as may be required by Section 4.4. No
prepayment of principal of any Revolving Loans or Swing Line Loans pursuant to
clause (a) of Section 3.1.1 shall cause a reduction in the Swing Line Loan
Commitment Amount or the Revolving Loan Commitment Amount, as the case may be.
Notwithstanding the foregoing provisions of this Section 3.1.1, if at
any time any prepayment of the Loans pursuant to clauses (b), (c), (d) or (e)
would result, after giving effect to the procedures set forth in this Agreement,
in the Borrower incurring breakage costs under Section 4.4 as a result of LIBO
Rate Loans being prepaid other than on the last day of an Interest Period with
respect thereto, then the Borrower may, so long as no Default shall have
occurred and be continuing, in its sole discretion, deposit a portion of the
amounts that otherwise would have been paid in respect of such LIBO Rate Loans
with the Administrative Agent (which deposit must be equal in amount to the
amount of such LIBO Rate Loans not immediately prepaid) to be held as security
for the Obligations (including the obligation to make such prepayment) pursuant
to a cash collateral agreement (creating a first priority security interest) to
be entered into on terms reasonably satisfactory to the Administrative Agent,
with such cash collateral to be invested in Cash Equivalent Investments
reasonably acceptable to the Borrower and the Administrative Agent to be
directly applied upon the first occurrence thereafter of the last day of an
Interest Period with respect to such LIBO Rate Loans (or such earlier date or
dates as shall be requested by the Borrower). All such unpaid LIBO Rate Loans
will continue to bear interest in accordance with this Agreement until such
unpaid LIBO Rate Loan has been prepaid.
SECTION 3.1.2. Application. (a) Subject to clause (b), each prepayment
or repayment of the principal of the Loans shall be applied, to the extent of
such prepayment or repayment, first, to the principal amount thereof being
maintained as Base Rate Loans, and second, to the principal amount thereof being
maintained as LIBO Rate Loans.
(b) (i) Each voluntary prepayment pursuant to clause (a) of
Section 3.1.1 of Term Loans shall be applied pro rata to any remaining scheduled
amortization payments, (ii) each prepayment of Term Loans made pursuant to
clause (d) of Section 3.1.1 from the issuance of Senior Subordinated High Yield
Notes at any time prior to the 180 days after the Closing Date shall be made
solely out of Excess High Yield Net Debt Proceeds and shall be applied to a
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mandatory prepayment of the outstanding principal amount of all Term-A Loans
(with the amount of such prepayment of the Term-A Loans being applied to the
remaining Term-A Loan amortization payments required pursuant to clause (g) of
Section 3.1.1, pro rata in accordance with the amount of each such remaining
Term Loan amortization payment), until all such Term-A Loans have been paid in
full and any remaining amounts shall be applied as set forth in clause (iii)
below, and (iii) each prepayment of Term Loans made pursuant to clauses (b),
(c), (d) (other than with Excess High Yield Net Debt Proceeds from the issuance
of Senior Subordinated High Yield Notes at any time prior to 180 days after the
Closing Date), (e) and (i) of Section 3.1.1 shall be applied pro rata to a
mandatory prepayment of the outstanding principal amount of all Term-A Loans and
Term-B Loans (with the amount of such prepayment of the Term-A Loans and the
Term-B Loans being applied to the remaining Term-A Loan or Term-B Loan
amortization payments required pursuant to clauses (g) and (h) of Section 3.1.1,
in each case pro rata in accordance with the amount of each such remaining Term
Loan amortization payment), until all such Term-A Loans and Term-B Loans have
been paid in full; provided, however, that in the case of each prepayment of
Term Loans required pursuant to clauses (b), (c), (d) and (e) and (i) of Section
3.1.1, any Lender that has Term-B Loans outstanding may, by delivering a notice
to the Administrative Agent at least one Business Day prior to the date that
such prepayment is to be made, elect not to have its pro rata share of Term-B
Loans prepaid, and upon any such election the Administrative Agent shall apply
50% of the amount that otherwise would have prepaid such Lender's Term-B Loans
to a mandatory prepayment of the Term-A Loans (until repaid in full), and then
to a reduction in the Term-B Loans (until repaid in full) and, in the case of
each prepayment of Term Loans required pursuant to clauses (b) and (e) of
Section 3.1.l, to a reduction in the Revolving Loan Commitment Amount, with the
Borrower being entitled to use the other 50% for any purpose otherwise permitted
under this Agreement; provided, further, that the Lenders holding Term-B Loans
may not make the election in the foregoing proviso after the Term-A Loans have
been repaid in full, and in such case, all such mandatory prepayments shall be
applied to the Term-B Loans until paid in full.
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, the Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) with respect to Revolving Loans and Term-A Loans,
(i) on that portion maintained from time to time as a
Base Rate Loan, equal to the sum of the Alternate Base Rate
from time to time in effect plus the Applicable Margin for
such Loans; and
(ii) on that portion maintained as a LIBO Rate Loan,
during each Interest Period applicable thereto, equal to the
sum of the LIBO Rate (Reserve Adjusted) for such Interest
Period plus the Applicable Margin for such Loans;
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(b) with respect to Term-B Loans,
(i) on that portion maintained from time to time as a
Base Rate Loan, equal to the sum of the Alternate Base Rate
from time to time in effect plus the Applicable Margin for
such Loans; and
(ii) on that portion maintained as a LIBO Rate Loan,
during each Interest Period applicable thereto, equal to the
sum of the LIBO Rate (Reserve Adjusted) for such Interest
Period plus the Applicable Margin for such Loans; and
(c) with respect to Swing Line Loans, equal to the sum of the
Alternate Base Rate from time to time in effect plus the Applicable
Margin then in effect for Revolving Loans denominated as Base Rate
Loans.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
of any Loan shall have become due and payable (whether on the Stated Maturity
Date, upon acceleration or otherwise), or any other monetary Obligation of the
Borrower shall have become due and payable, the Borrower shall pay, but only to
the extent permitted by law, interest (after as well as before judgment) on such
amounts at a rate per annum equal to the rate that would otherwise be applicable
to Base Rate Loans plus 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) in the case of Term Loans and LIBO Rate Loans only, on the
date of any payment or prepayment, in whole or in part, of principal
outstanding on such Loan but only on the amount of any payment or
prepayment;
(c) with respect to Base Rate Loans, on each Quarterly Payment
Date occurring after the date of the initial Borrowing hereunder;
(d) with respect to LIBO Rate Loans, the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, on the third month anniversary of such Interest Period);
and
(e) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
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Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in
this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender that has a Revolving Loan
Commitment, for the period (including any portion thereof when any of the
Lender's Commitments are suspended by reason of the Borrower's inability to
satisfy any condition of Article V) commencing on the Effective Date and
continuing through the Revolving Loan Commitment Termination Date, a commitment
fee at the rate of the Applicable Commitment Fee Margin on such Lender's
Percentage of the average daily unused portion of the Revolving Loan Commitment
(net of Letter of Credit Outstandings). Such commitment fees shall be payable by
the Borrower in arrears on each Quarterly Payment Date, commencing with the
first such day following the Effective Date, and on the Revolving Loan
Commitment Termination Date. The making of Swing Line Loans by the Swing Line
Lender shall constitute the usage of the Revolving Loan Commitment with respect
to the Swing Line Lender only and the commitment fees to be paid by the Borrower
to the Lenders (other than the Swing Line Lender) shall be calculated and paid
accordingly.
SECTION 3.3.2. Administrative Agent's Fee. The Borrower agrees to pay
to the Administrative Agent, for its own account, the non-refundable fees in the
amounts and on the dates set forth in the Fee Letter. The Administrative Agent
may charge the account of the Borrower for such fees.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to the
Administrative Agent, for the pro rata account of the Issuer and each other
Lender that has a Revolving Loan Commitment, a Letter of Credit fee in an amount
equal to the Applicable Margin per annum for Revolving Loans that are maintained
as LIBO Rate Loans multiplied by the Stated Amount of each such Letter of
Credit, such fee being payable quarterly in arrears on each Quarterly Payment
Date. The Borrower further agrees to pay to the Issuer for its own account (or,
in the case a new Issuer shall be appointed, for the account of any predecessor
Issuer with respect to Letters of Credit of such predecessor Issuer which remain
outstanding after the appointment of the new Issuer) on the dates and in the
amounts in respect of each Letter of Credit the issuance and fronting fees set
forth in the applicable Fee Letter.
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ARTICLE VIII
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the Lenders,
be conclusive and binding on the Borrower) that the introduction of or any
change in or in the interpretation of any law makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful, for such
Lender to make, continue or maintain any Loan as, or to convert any Loan into, a
LIBO Rate Loan, the obligations of such Lender to make, continue, maintain or
convert any Loans as LIBO Rate Loans shall, upon such determination, forthwith
be suspended until such Lender shall notify the Administrative Agent that the
circumstances causing such suspension no longer exist (with the date of such
notice being the "Reinstatement Date"), and (i) all LIBO Rate Loans previously
made by such Lender shall automatically convert into Base Rate Loans at the end
of the then current Interest Periods with respect thereto or sooner, if required
by such law or assertion and (ii) all Loans thereafter made by such Lender and
outstanding prior to the Reinstatement Date shall be made as Base Rate Loans,
with interest thereon being payable on the same date that interest is payable
with respect to corresponding Borrowing of LIBO Rate Loans made by Lenders not
so affected.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall
have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Administrative Agent
in the Eurodollar market; or
(b) by reason of circumstances affecting the Eurodollar
market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans,
then, upon notice from the Administrative Agent to the Borrower and the Lenders,
the obligations of all Lenders under Section 2.3 and Section 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees
to reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, LIBO Rate Loans (excluding any items or amounts, whether or not
constituting Taxes, referred to in Section 4.6) arising after the date of any
change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of
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any court, central bank, regulator or other governmental authority made
subsequent to the date hereof (or, if later, the date on which such Lender
becomes a Lender) that results in such increase in cost or reduction in amounts
receivable which a Lender deems to be material. Such Lender shall promptly
notify the Administrative Agent and the Borrower in writing of the occurrence of
any such event, such notice to state, in reasonable detail, the reasons therefor
and the additional amount required fully to compensate such Lender for such
increased cost or reduced amount. Such additional amounts shall be payable by
the Borrower directly to such Lender within five days of its receipt of such
notice, and such notice shall, in the absence of manifest error, be conclusive
and binding on the Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loans on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to
Section 3.1 or otherwise;
(b) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO
Rate Loans in accordance with the Continuation/Conversion Notice
therefor,
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on the
Borrower.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments, participation in Letters of Credit or the Loans
made by such Lender is reduced to a level below that which such Lender or such
controlling Person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by such
Lender to the Borrower, the Borrower shall immediately pay directly to such
Lender additional amounts sufficient to compensate such Lender or such
controlling Person for such reduction in rate of return. A
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statement of such Lender as to any such additional amount or amounts (including
calculations thereof in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on the Borrower. In determining such amount,
such Lender may use any method of averaging and attribution that it (in its sole
and absolute discretion) shall deem applicable.
SECTION 4.6. Taxes. (a) All payments by the Borrower of principal of,
and interest on, the Loans and all other amounts payable hereunder (including
Reimbursement Obligations and fees) shall be made free and clear of and without
deduction for any present or future income, excise, stamp or franchise taxes and
other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding any such taxes
imposed, fees, duties, withholdings and other charges on the Administrative
Agent as a result of a present or former connection between the Administrative
Agent, or the applicable lending office, or any branch or affiliate, of the
Administrative Agent, and taxes imposed on any Lender as a result of a present
or former connection between such Lender, or the applicable lending office, or
any branch or affiliate, of such Lender, in each case and the jurisdiction of
the governmental authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from the Administrative Agent or such Lender having executed, delivered
or performed its obligations or received a payment under, or taken any action to
enforce, this Agreement) (such non-excluded items being called "Taxes"). In the
event that any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then the Borrower will
(i) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an
official receipt (or a certified copy thereof) or other
documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and
(iii) pay to the Administrative Agent for the account
of the affected Lenders such additional amount or amounts as
is necessary to ensure that the net amount actually received
by each Lender will equal the full amount such Lender would
have received had no such withholding or deduction been
required, provided, however, that the Borrower shall not be
required to increase any such amounts payable to any Non-U.S.
Lender if such Lender fails to comply with the requirements of
clause (b) of Section 4.6.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and the Borrower will promptly pay to such Person such additional amounts
(including any penalties, interest or expenses) as is necessary in order that
the net amount received by such Person (including any Taxes on such additional
amount) shall equal the amount of such Taxes paid by such Person.
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If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent, for
the account of the affected Lenders, the required receipts or other required
documentary evidence, the Borrower shall indemnify the Lenders for any
incremental Taxes, interest or penalties that may become payable by any Lender
as a result of any such failure.
(b) Each Non-U.S. Lender shall, (i) on or prior to the date of the
execution and delivery of this Agreement, in the case of each Lender listed on
the signature pages hereof, or, in the case of an Assignee Lender, on or prior
to the date it becomes a Lender, execute and deliver to the Borrower and the
Administrative Agent, two or more (as the Borrower or the Administrative Agent
may reasonably request) United States Internal Revenue Service Forms 4224 or
Forms 1001 (or successor applicable forms) and a United States Internal Revenue
Service Form W-8 or Form W-9 (or successor applicable forms) or, solely if such
Lender is claiming exemption from United States withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of "portfolio interest",
United States Internal Revenue Service Forms W-8 and a certificate in usual and
customary form signed by a duly authorized officer of such Lender representing
that such Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of
the Code, and such other certifications (or successor forms or documents),
appropriately completed, as may be applicable to establish that such Lender is
exempt from withholding or deduction of Taxes, and, to the extent legally
entitled to do so, upon reasonable request by the Borrower, such other forms as
may be reasonably required in order to establish the legal entitlement of such
Lender to an exemption from withholding with respect to payments under this
Agreement and any Notes; (ii) deliver to the Borrower and the Administrative
Agent two further copies of any such form or documents on or before the date
that any such form or document expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent such form or
document previously delivered by it to the Borrower; and (iii) obtain such
extensions of time for filing and completing such forms or documents as may
reasonably be requested by the Borrower or the Administrative Agent, unless in
any such case, any change in treaty, law or regulation has occurred after the
date such Person becomes a Lender hereunder which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent. Such Lender shall certify (x) in the case
of a Form 1001 or 4224, that it is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes and (y) in the case of a Form W-8 or W-9, that it is
entitled to an exemption from United States withholding tax.
(c) Notwithstanding anything herein to the contrary, no
Assignee Lender or Participant shall be entitled to receive any greater payment
under clause (a) of this Section 4.6 than the Lender making such assignment or
participation would have been entitled to receive with respect to the rights
assigned, participated or otherwise transferred unless, but solely with respect
to an assignment, (x) such assignment shall have been made at a time when the
circumstances giving rise to such greater payment did not exist or had not yet
occurred or (y) such assignment shall have been at the request of the Borrower.
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SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by or on behalf of the Borrower pursuant to this
Agreement, the Notes, each Letter of Credit or any other Loan Document shall be
made by the Borrower to the Administrative Agent for the pro rata account of the
Lenders entitled to receive such payment. All such payments required to be made
to the Administrative Agent shall be made, without setoff, deduction or
counterclaim, not later than 12:00 noon, New York time, on the date due, in same
day or immediately available funds, to such account as the Administrative Agent
shall specify from time to time by notice to the Borrower. Funds received after
that time shall be deemed to have been received by the Administrative Agent on
the next succeeding Business Day. The Administrative Agent shall promptly remit
in same day funds to each Lender its share, if any, of such payments received by
the Administrative Agent for the account of such Lender. All interest and fees
shall be computed on the basis of the actual number of days (including the first
day but excluding the last day) occurring during the period for which such
interest or fee is payable over a year comprised of 360 days (or, in the case of
interest on a Base Rate Loan, 365 days or, if appropriate, 366 days). Whenever
any payment to be made shall otherwise be due on a day which is not a Business
Day, such payment shall (except as otherwise required by clause (c) of the
definition of the term "Interest Period" be made on the next succeeding Business
Day and such extension of time shall be included in computing interest and fees,
if any, in connection with such payment.
SECTION 8.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan or any Reimbursement Obligation
(other than pursuant to the terms of Sections 4.3, 4.4 and 4.5) in excess of its
pro rata share of payments then or therewith obtained by all Lenders entitled
thereto, such Lender shall purchase from the other Lenders such participation in
Credit Extensions made by them as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase shall
be rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of
(a) the amount of such selling Lender's required repayment to
the purchasing Lender
to
(b) 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. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as
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fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any
Default described in clauses (a) through (d) of Section 8.1.9 or, with the
consent of the Required Lenders, upon the occurrence of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due), and (as security for such
Obligations) the Borrower hereby grants to each Lender a continuing security
interest in, any and all balances, credits, deposits, accounts or moneys of the
Borrower then or thereafter maintained with or otherwise held by such Lender;
provided, however, that any such appropriation and application shall be subject
to the provisions of Section 4.8. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and application made
by such Lender; provided, however, that the failure to give such notice shall
not affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such
Lender may have.
SECTION 4.10. Mitigation.
(a) Each Lender agrees that if it makes any demand for payment
under Sections 4.3, 4.5, or 4.6, or if any adoption or change of the
type described in Section 4.1 shall occur with respect to it, it will
use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, as determined in its sole discretion) to
designate a different lending office if the making of such a
designation would reduce or obviate the need for the
Borrower to make payments under Sections 4.3, 4.5 or 4.6, or would
eliminate or reduce the effect of any adoption or change described in
Section 4.1.
(b) If (x) the Borrower shall become obligated to pay
additional amounts pursuant to Section 4.3, 4.5 or 4.6 and any affected
Lender shall not have promptly taken steps necessary to avoid the need
for payments under Section 4.3, 4.5 or 4.6 or (y) any Lender shall have
defaulted in any of its obligations in respect of its Revolving Loan
Commitment hereunder, the Borrower shall have the right, for so long as
such obligation remains, (i) to seek one or more substitute Lenders
reasonably satisfactory to the Administrative Agent and the Borrower to
purchase the affected Loan, in whole or in part, without recourse or
warranty from the affected Lender, except as to title, at an aggregate
cash price no less than such Loan's principal amount plus accrued
interest, and assume the affected obligations under this Agreement, or
in the case of (x) or, if applicable, (y), (ii) upon at least four
Business Days irrevocable notice to the Administrative Agent, to prepay
the affected Loan, in whole or in part, without premium or penalty. In
the case of
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the substitution of a Lender, the Borrower, the Administrative Agent,
the affected Lender, and any substitute Lender shall execute and
deliver an appropriately completed Lender Assignment Agreement pursuant
to Section 10.11.1(d) to effect the assignment of rights to, and the
assumption of obligations by, the substitute Lender; provided that any
fees required to be paid by such Lender pursuant to Section 10.11.1(e)
in connection with such assignment shall be paid by the Borrower or the
substitute Lender. In the case of a prepayment of an affected Loan, the
amount specified in the notice shall be due and payable on the date
specified therein, together with any accrued interest to such date on
the amount prepaid. In the case of each of the substitution of a Lender
and of the prepayment of an affected Loan, the Borrower shall first pay
the affected Lender any additional amounts owing under Sections 4.3,
4.4, 4.5 and 4.6 (as well as any commitment fees, expense
reimbursements, and indemnities and other amounts then due and owing to
such Lender, including, without limitation, any amounts under this
Section and breakage fees with respect to any LIBO Rate Loan computed
as if such Loan were being prepaid) prior to such substitution or
prepayment. Such affected Lender shall consummate such sale in
accordance with such terms (and, if such affected Lender is the Issuer,
such other terms as may be necessary to compensate fully such affected
Lender) within a reasonable time not exceeding 60 days from the date
such Borrower designated a substitute Lender, and thereupon such
affected Lender shall no longer be a party hereto or have any
obligations or rights hereunder (except rights which, pursuant to the
provisions of this Agreement, survive the termination of this Agreement
and the repayment of the Notes, and the substitute Lender shall succeed
to such obligations and rights. No Lender shall be obligated to become
or assist in finding a substitute Lender.
(c) If the Administrative Agent or any Lender receives a
refund (it being understood that the Administrative Agent and the
Lenders are under no duty to seek to obtain any refund) directly
attributable to Taxes for which Borrower has made additional payments
pursuant to Section 4.6, the Administrative Agent or such Lender, as
the case may be, shall promptly notify the Borrower and shall promptly
pay such refund (together with any interest with respect thereto
received from the relevant taxing authority) to the Borrower, provided,
however, that the Borrower agrees promptly to return such refund
(together with any interest with respect thereto due to the relevant
taxing authority) (free of all Taxes) to the Administrative Agent or
the applicable Lender, as the case may be, upon receipt of a notice
that such refund is required to be repaid to the relevant taxing
authority.
(d) For purposes of Section 4.6, a change in treaty, law, rule
or regulation shall not include the ratification or entry into force of
the income tax treaty between the Luxembourg and the United States of
America.
(e) The obligations of a Lender under this Section 4.10 shall
survive the termination of this Agreement and the payment of the Loans
and all amounts payable hereunder.
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ARTICLE X
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the Lenders
to fund the initial Credit Extensions shall be subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth in this
Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Administrative Agent shall have
received from each Obligor other than a natural Person a certificate, dated the
date of the initial Credit Extension, of its Secretary or Assistant Secretary as
to
(a) resolutions of its Board of Directors then in full force
and effect authorizing the execution, delivery and performance of each
Loan Document to be executed by it; and
(b) the incumbency and signatures of those of its officers
authorized to act with respect to each Loan Document executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary of such Obligor canceling or
amending such prior certificate.
SECTION 5.1.2. Recapitalization Documents. The Administrative Agent
shall have received (with copies for each Lender) a fully executed copy of the
Recapitalization Agreement, and, to the extent required by Section 5.1.3, all
other documents and instruments delivered in connection with the consummation of
the Recapitalization Transactions that are required to be delivered pursuant to
the terms of the Recapitalization Agreement. The Recapitalization Agreement
shall be in full force and effect and shall not have been modified or waived in
any material respect, nor shall there have been any forbearance to exercise any
material rights with respect to any of the terms or provisions relating to the
conditions to the consummation of the Transactions in the Recapitalization
Agreement unless otherwise agreed to by the Required Lenders.
SECTION 5.1.3. Transaction Certificate. The Administrative Agent shall
have received a certificate, dated the date of the initial Credit Extension, of
an Authorized Officer of the Borrower certifying as to a true and complete copy
of (i) the Recapitalization Agreement and the Senior Subordinated Increasing
Rate Note Purchase Agreement (and, to the extent requested by the Administrative
Agent, all other certificates, filings, documents (including shareholder
agreements), consents, approvals, board of directors resolutions and opinions
furnished pursuant to or in connection with the Recapitalization Agreement and
the Senior Subordinated Increasing Rate Note Purchase Agreement).
SECTION 5.1.4. Consummation of Transactions. The Administrative Agent
shall have received evidence satisfactory to it that the Transactions have been
consummated in accordance
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with their terms and the aggregate consideration paid, including up to
$19,000,000 of Transaction expenses, shall not exceed $472,000,000.
SECTION 5.1.5. Closing Date Certificate. The Administrative Agent
shall have received, with counterparts for each Lender, the Closing Date
Certificate, substantially in the form of Exhibit D hereto, dated the date of
the initial Credit Extension and duly executed and delivered by the chief
executive or chief financial (or equivalent) Authorized Officer of the Borrower,
in which certificate the Borrower shall agree and acknowledge that the
statements made therein shall be deemed to be true and correct representations
and warranties of the Borrower made as of such date under this Agreement, and,
at the time such certificate is delivered, such statements shall in fact be true
and correct.
SECTION 5.1.6. Delivery of Notes. If requested to do so by any Lender,
the Borrower shall have executed and delivered to the Administrative Agent, for
the account of each such Lender, its Notes duly executed and delivered by the
Borrower.
SECTION 5.1.7. Payment of Outstanding Indebtedness, etc. All
Indebtedness identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the
Disclosure Schedule, together with all interest, all prepayment premiums and
other amounts due and payable with respect thereto, shall have been paid in full
(including, to the extent necessary, from proceeds of the initial Borrowing),
and all Liens securing payment of any such Indebtedness have been released and
the Administrative Agent shall have received all executed Uniform Commercial
Code Form UCC-3 termination statements or other instruments as may be suitable
or appropriate in connection therewith (or arrangements satisfactory to the
Administrative Agent shall have been entered into relating to such release
promptly following the initial Credit Extension).
SECTION 5.1.8. Subsidiary Guaranty. The Administrative Agent shall
have received executed counterparts of the Subsidiary Guaranty, executed by each
Subsidiary Guarantor.
SECTION 5.1.9. Pledge Agreements. The Administrative Agent shall have
received executed counterparts of
(a) the Shareholder Pledge Agreements, each dated as of the
date hereof, duly executed by the Management Investor or an Authorized
Officer of New World Pasta, LLC, together with the certificates
evidencing all of the issued and outstanding shares of Capital Stock of
the Borrower owned by the Management Investor or New World Pasta, LLC
(which shall constitute at least 88.8% of the outstanding Preferred
Stock of the Borrower and at least 83.4% of the outstanding Common
Stock of the Borrower) which shall be pledged pursuant to the
Shareholder Pledge Agreement, which certificates shall in each case be
accompanied by undated stock powers duly executed in blank;
(b) the Borrower Pledge Agreement, dated as of the date
hereof, duly executed by the Borrower (after giving effect to the
Recapitalization Transactions), together with the certificates
evidencing all of the issued and outstanding shares of Capital Stock of
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each Subsidiary of the Borrower which shall be pledged pursuant to the
Borrower Pledge Agreement, which certificates shall in each case be
accompanied by undated stock powers duly executed in blank;
If any securities pledged pursuant to a Pledge Agreement are uncertificated
securities, the Administrative Agent shall have received confirmation and
evidence satisfactory to it that the security interest in such uncertificated
securities has been transferred to and perfected through "control" by the
Administrative Agent for the benefit of the Lenders in accordance with Article 8
of the UCC.
SECTION 5.1.10. Security Agreements. The Administrative Agent shall
have received executed counterparts of the Security Agreements dated as of the
date hereof, duly executed by the Borrower or Subsidiary Guarantor, together
with
(a) Uniform Commercial Code financing statements (Form UCC-1)
naming the Borrower or Subsidiary Guarantor, as appropriate, as the
debtor and the Administrative Agent as the secured party, or other
similar instruments or documents, to be filed under the Uniform
Commercial Code of all jurisdictions as may be necessary or, in the
opinion of the Administrative Agent, desirable to perfect the security
interest of the Administrative Agent pursuant to the Security
Agreement; and
(b) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report
certified by a party acceptable to the Administrative Agent, dated a
date reasonably near to the date of the initial Borrowing, listing all
effective financing statements which name the Borrower and each
Subsidiary Guarantor (in each case, under its present name and any
previous names) as the debtor and which are filed in the jurisdictions
in which filings were made pursuant to clause (a) above, together with
copies of such financing statements.
SECTION 5.1.11. Mortgages. The Administrative Agent shall have
received counterparts of each Mortgage relating to each property listed on Item
5.1.11 ("Mortgaged Properties") of the Disclosure Schedule, each dated as of the
date hereof, duly executed by the Borrower, together with
(a) evidence of the completion (or satisfactory arrangements
for the completion) of all recordings and filings of such Mortgage as
may be necessary or, in the reasonable opinion of the Administrative
Agent, desirable to create a valid, perfected first priority Lien,
subject to Liens permitted by Section 7.2.3, against the properties
purported to be covered thereby; and
(b) mortgagee's title insurance policies in favor of the
Administrative Agent and the Lenders in amounts and in form and
substance and issued by insurers, reasonably satisfactory to the
Administrative Agent, with respect to the property purported to be
covered by such Mortgage, insuring that title to such property is
marketable and that the
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interests created by the Mortgage constitute valid first Liens thereon
free and clear of all defects and encumbrances, except as permitted
pursuant to Section 7.2.3, and such policies shall also include a
revolving credit endorsement, if available, and such other endorsements
as the Administrative Agent shall reasonably request and shall be
accompanied by evidence of the payment in full of all premiums thereon.
SECTION 5.1.12. Financial Information, etc. The Administrative Agent
shall have received, with counterparts for each Lender,
(a) the (i) unqualified audited Combined Statements of Income
and Parent Company's Investment and Advances of the Business for the
fiscal years ended December 31, 1996 and December 31, 1997, Combined
Balance Sheets of the Business for the fiscal years ended December 31,
1996 and December 31, 1997 and the Combined Statements of Cash Flows
for the Business for the fiscal years ended December 31, 1996 and
December 31, 1997, and (ii) the unaudited Combined Statement of
Adjusted Operating Profit of the Business for the nine month period
ended October 4, 1998 and the Combined Statement of Adjusted Net Assets
of the Business as at October 4, 1998, prepared on a basis
substantially comparable to the basis used to prepare the audited
financial statements of the Borrower and its Subsidiaries referred to
in clause (a)(i); and
(b) a pro forma consolidated balance sheet of the Borrower, as
of the Closing Date (the "Pro Forma Balance Sheet"), certified by the
chief financial or accounting Authorized Officer of the Borrower,
giving effect to the consummation of the Transaction (including all the
transactions contemplated by this Agreement and reflecting the proposed
capital structure of the Borrower, which shall be satisfactory in all
respects to the Administrative Agent).
SECTION 5.1.13. Solvency, etc. The Administrative Agent shall have
received a solvency certificate of a senior executive Authorized Officer of the
Borrower, dated the date of the initial Credit Extension, in form and substance
satisfactory to the Administrative Agent.
SECTION 5.1.14. Equity Purchase and Bridge Financing. The
Administrative Agent shall have received evidence satisfactory to it that the
Equity Purchase and the Bridge Financing shall have been consummated in
accordance with terms satisfactory to the Administrative Agent. JLL and the
Management Investor shall have paid at least $47,000,000 in cash for the Common
Stock to be purchased by them under the Recapitalization Agreement and at least
$113,315,000 in cash for the Preferred Stock to be purchased by them under the
Recapitalization Agreement, and the Administrative Agent shall have received
evidence thereof.
SECTION 5.1.15. Closing Fees, Expenses, etc. The Administrative Agent
shall have received for its own account, or for the account of each Lender, as
the case may be, all fees, costs and expenses due and payable pursuant to
Sections 3.3 and 10.3, if then invoiced.
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SECTION 5.1.16. Trademark Security Agreements, Copyright Security
Agreement, Patent Security Agreement. The Administrative Agent shall have
received each Trademark Security Agreement, Copyright Security Agreement and
Patent Security Agreement, each dated as of the date of the initial Credit
Extension, duly executed and delivered by the Borrower and the Subsidiaries.
SECTION 5.1.17. Litigation. The Administrative Agent shall be
satisfied in all respects that there exists no litigation, inquiry or
investigation contesting the Transactions, including the Recapitalization
Transactions, the Bridge Financing, the Equity Purchase, this Agreement or any
other aspect of the Transaction, or which would have a material adverse effect
on the property, assets, financial condition, operations or business of the
Business or the Borrower and its subsidiaries, taken as a whole.
SECTION 5.1.18. Material Adverse Change. The Lenders shall be
satisfied (as evidenced by the delivery of their respective executed signature
page to this Agreement) that there has been no material adverse change in the
property, assets, financial condition, or operations of the Borrower and its
Subsidiaries taken as a whole or the Business since December 31, 1997.
SECTION 5.1.19. Reliance Letters. The Administrative Agent shall have
received reliance letters, dated the date of the making of the initial Credit
Extension and addressed to each Lender and the Administrative Agent, in respect
of each of the legal opinions delivered in connection with the Recapitalization
or the other Transactions if the attorneys rendering the opinions have agreed to
permit such persons to rely upon such opinions.
SECTION 5.1.20. Intentionally Omitted.
SECTION 5.1.21. Opinions of Counsel. The Administrative Agent shall
have received opinions, dated the date of the initial Credit Extension and
addressed to the Administrative Agent and all Lenders, from
(a) Skadden, Arps, Slate Xxxxxxx & Xxxx LLP, special New York
counsel to the Borrower and each Obligor, substantially in the form of
Exhibit L-1 hereto;
(b) Xxxxxxx & Xxxxx, special California counsel to the
Administrative Agent, in form and substance satisfactory to the
Administrative Agent;
(c) Xxxxxxxx & Xxxxxx, special Kansas counsel to the
Administrative Agent, in form and substance satisfactory to the
Administrative Agent;
(d) Xxxxxxxxx, Doll & XxXxxxxx PLLC, special Kentucky counsel
to the Administrative Agent, in form and substance satisfactory to the
Administrative Agent;
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(e) Xxxxx Xxxx, special Nebraska counsel to the Administrative
Agent, in form and substance satisfactory to the Administrative Agent;
(f) Xxxxxxxx & Xxxxxxxxx, special Pennsylvania counsel to the
Administrative Agent, in form and substance satisfactory to the
Administrative Agent; and
(g) Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP, special Virginia
counsel to the Administrative Agent, in form and substance satisfactory
to the Administrative Agent.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and
the Issuer to make any Credit Extension (including the initial Credit Extension)
shall be subject to the satisfaction of each of the conditions precedent set
forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both
before and after giving effect to any Credit Extension the following statements
shall be true and correct:
(a) both before and after giving effect to the Acquisition,
the representations and warranties set forth in Article VI and in each
other Loan Document shall, in each case, be true and correct in all
material respects with the same effect as if then made (unless stated
to relate solely to an earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of
such earlier date);
(b) no material adverse development shall have occurred after
the date of the initial Credit Extension in any litigation, action,
proceeding, labor controversy, arbitration or governmental
investigation disclosed in Item 6.7 of the Disclosure Schedule pursuant
to Section 6.7 which development would have constituted a breach of
Section 6.7 had it occurred on the date hereof;
(c) the sum of (x) the aggregate outstanding principal amount
of all Revolving Loans and Swing Line Loans and (y) all Letter of
Credit Outstandings does not exceed the Revolving Loan Commitment
Amount; and
(d) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request. The Administrative Agent
shall have received a Borrowing Request, if Loans (other than Swing Line Loans)
are being requested, or an Issuance Request, if a Letter of Credit is being
issued or extended or increased. The delivery of a Borrowing Request and the
acceptance by the Borrower of the proceeds of such Credit Extension shall
constitute a representation and warranty by the Borrower that on the date of
such Credit Extension (both immediately before and after giving effect to such
Credit Extension and the application of the proceeds thereof) the statements
made in Section 5.2.1 are true and correct in all material respects with the
same effect as if then made (unless stated to relate solely to an earlier date,
in which case such representations and warranties shall be true and correct in
all material respects as of such earlier date).
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Administrative Agent
to enter into this Agreement and to make Credit Extensions hereunder, the
Borrower represents and warrants unto the Administrative Agent, the Issuer and
each Lender as set forth in this Article VI.
SECTION 6.1. Organization, etc. Each of New World Pasta LLC, the
Borrower and each of the Borrower's Subsidiaries (a) is a corporation or limited
liability company validly organized and existing and in good standing under the
laws of the state of its organization, is duly qualified to do business and is
in good standing as a foreign corporation or limited liability company in each
jurisdiction where the nature of its business requires such qualification,
except to the extent that the failure to qualify would not reasonably be
expected to result in a Material Adverse Effect, and (b) has full power and
authority and holds all requisite governmental licenses, permits and other
approvals to (i) enter into and perform its Obligations in connection with the
Transaction and under each Loan Document to which it is a party and (ii) own and
hold under lease its property and to conduct its business substantially as
currently conducted by it except, in the case of this clause (b)(ii), where the
failure could not reasonably be expected to result in a Material Adverse Effect.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement, the Notes and each
other Loan Document executed or to be executed by it, and the execution,
delivery and performance by each other Obligor of each Loan Document executed or
to be executed by it and the Borrower's and, where applicable, each such other
Obligor's participation in the consummation of the Transactions are within the
Borrower's and each such Obligor's corporate powers, have been duly authorized
by all necessary corporate action, and do not
(a) contravene the Borrower's or any such Obligor's Organic
Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting New World
Pasta LLC, the Borrower or any such Obligor, where such contravention,
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect; or
(c) result in, or require the creation or imposition of, any Lien
on any of the Borrower's or any other Obligor's properties, except
pursuant to the terms of a Loan Document.
SECTION 6.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person, is required for the due execution,
delivery or performance by the Borrower or any
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other Obligor of this Agreement, the Notes or any other Loan Document to which
it is a party, or for the Borrower's and each such other Obligor's participation
in the consummation of the Transactions, except as have been duly obtained or
made and are in full force and effect or those which the failure to obtain or
make could not reasonably be expected to have a Material Adverse Effect. Neither
New World Pasta LLC, the Borrower nor any of the Borrower's Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and the Notes
and each other Loan Document executed by the Borrower will, on the due execution
and delivery thereof, constitute, the legal, valid and binding obligations of
the Borrower enforceable in accordance with their respective terms; and each
Loan Document executed pursuant hereto by each other Obligor will, on the due
execution and delivery thereof by such Obligor, be the legal, valid and binding
obligation of such Obligor enforceable in accordance with its terms, in each
case with respect to this Section 6.4 subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
SECTION 6.5. Financial Information. The
(a) audited Combined Statements of Income and Parent Company's
Investment and Advances of the Business for the fiscal years ended
December 31, 1996 and December 31, 1997, Combined Balance Sheets of the
Business for the fiscal years ended December 31, 1996 and December 31,
1997 and the Combined Statements of Cash Flows of the Business for the
fiscal years ended December 31, 1996 and December 31, 1997, and
(b) unaudited Combined Statement of Adjusted Operating Profit of
the Business for the nine month period ended October 4, 1998 and the
Combined Statement of Adjusted Net Assets of the Business as at October
4, 1998;
copies of which have been furnished to the Administrative Agent and each Lender,
have, in each case, been prepared in accordance with GAAP consistently applied
(in the case of clause (a)) and, in the case of clause (b), on a basis
substantially comparable to the basis used to prepare the financial statements
referred to in clause (a), and present fairly the consolidated financial
condition of the Business as at the dates thereof and the results of its
operations for the periods then ended, subject, in the case of clause (b), to
normal year end audit adjustments.
SECTION 6.6. No Material Adverse Change. Except as set forth in Item
6.6 of the Disclosure Schedule, since December 31, 1997, there has been no
material adverse change in the
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financial condition, operations, assets, business or properties of the Borrower
or the Business, taken as a whole.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending
or, to the knowledge of the Borrower, threatened litigation, action, proceeding,
labor grievance, arbitration or governmental investigation affecting any
Obligor, or any of their respective properties, businesses, assets or revenues,
which (a) could reasonably be expected to result in a Material Adverse Effect,
or (b) purports to affect the legality, validity or enforceability of the
Recapitalization Transactions, the Transactions, the Equity Purchase, the Bridge
Financing, this Agreement, the Notes or any other Loan Document, except as
disclosed in Item 6.7 ("Litigation") of the Disclosure Schedule.
SECTION 6.8. Subsidiaries. Neither New World Pasta LLC nor the Borrower
has any Subsidiaries, except (after giving effect to the Recapitalization
Transactions and the Transactions) those Subsidiaries
(a) which are identified in Item 6.8 ("Existing Subsidiaries") of
the Disclosure Schedule; or
(b) which are permitted to have been acquired or created in
accordance with Section 7.2.5 or 7.2.8.
SECTION 6.9. Ownership of Properties. The Borrower and each of its
Subsidiaries owns good title to, or has a valid leasehold interest in, all of
its properties and assets (other than insignificant properties and assets), real
and personal, tangible and intangible, of any nature whatsoever (including
patents, trademarks, trade names, service marks and copyrights), free and clear
of all Liens or material claims which could reasonably be expected to be
adversely determined (including material infringement claims with respect to
material patents, trademarks, copyrights and the like) except as disclosed in
Item 6.9 of the Disclosure Schedule or as permitted pursuant to Section 7.2.3 or
the Loan Documents.
SECTION 6.10. Taxes. Each of New World Pasta LLC, the Borrower and each
of the Borrower's Subsidiaries has filed all federal, state and other material
tax returns and reports required by law to have been filed by it and has paid
all taxes and governmental charges thereby shown to be owing, except any such
taxes or charges which are being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books.
SECTION 6.11. Pension and Welfare Plans. During the six-year period
prior to the date of the execution and delivery of this Agreement and prior to
the date of any Credit Extension hereunder, no Pension Plan has been terminated
and neither the Borrower nor any member of the Controlled Group has incurred a
withdrawal from any Multiemployer Plan that, in each case, has resulted in a
liability to the Borrower of more than $250,000 which remains outstanding as of
the date of this Agreement and any Credit Extension hereunder, and no
contribution failure has
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occurred with respect to any Pension Plan sufficient to give rise to a Lien
under section 302(f) of ERISA or Section 412(n) of the Code in excess of
$1,000,000 which remains outstanding as of the date of this Agreement and any
Credit Extension hereunder. To the knowledge of the Borrower, no condition
exists or event or transaction has occurred with respect to any Pension Plan or
any Multiemployer Plan which could reasonably be expected to have a Material
Adverse Effect. Except as disclosed in Item 6.11 ("Employee Benefit Plans") of
the Disclosure Schedule, since the date of the last financial statement the
Borrower has not materially increased any contingent liability with respect to
any post-retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Subtitle B of Title I of ERISA.
SECTION 6.12. Environmental Warranties. Except as set forth in Item
6.12 ("Environmental Matters") of the Disclosure Schedule or as, individually or
in the aggregate, would not reasonably be expected to have a Material Adverse
Effect:
(a) all facilities and property owned or leased by the Borrower
or any of its Subsidiaries have been, and continue to be, owned or
leased by the Borrower and its Subsidiaries in compliance with all
Environmental Laws;
(b) to the knowledge of the Borrower there have been no past, and
there are no pending or threatened
(i) written claims, complaints, notices or requests for
information received by the Borrower or any of its Subsidiaries
with respect to any alleged violation of any Environmental Law, or
(ii) written complaints, notices or inquiries to the Borrower
or any of its Subsidiaries regarding potential liability under any
Environmental Law;
(c) to the knowledge of the Borrower, there have been no Releases
of Hazardous Materials at, on or under any property now or previously
owned or leased by the Borrower or any of its Subsidiaries;
(d) the Borrower and its Subsidiaries have been issued and are in
compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters that are
necessary for their businesses;
(e) to the knowledge of the Borrower or any of its Subsidiaries,
no property now or previously owned or leased by the Borrower or any of
its Subsidiaries is listed or proposed for listing (with respect to
owned property only) on the National Priorities List pursuant to CERCLA
or on any similar state list;
(f) to the knowledge of the Borrower, there are no underground
storage tanks, active or abandoned, including petroleum storage tanks,
on or under any property now or previously owned or leased by the
Borrower or any of its Subsidiaries;
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(g) the Borrower and its Subsidiaries have not directly
transported or directly arranged for the transportation of any
Hazardous Material to any location (i) which to the knowledge of the
Borrower or any of its Subsidiaries, is listed or proposed for listing
on the National Priorities List pursuant to CERCLA or on any similar
state list, or (ii) which is the subject of federal, state or local
environmental enforcement actions or remediations required by federal,
state or local authorities;
(h) to the knowledge of the Borrower, there are no
polychlorinated biphenyls present in concentrations greater than 50
parts per million or friable asbestos present in a damaged condition at
any property now or previously owned or leased by the Borrower or any
Subsidiary of the Borrower; and
(i) to the knowledge of the Borrower, no conditions exist at, on
or under any property now or previously owned or leased by the Borrower
or any of its Subsidiaries which, with the passage of time, or the
giving of notice or both, would give rise to liability under any
Environmental Law.
SECTION 6.13. Regulations U and X. Neither New World Pasta LLC nor the
Borrower is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock, and no proceeds of any Credit Extensions
will be used to purchase or carry any equity security of a class which is
registered pursuant to Section 12 of the Securities Exchange Act of 1934 or any
"margin stock". Terms for which meanings are provided in F.R.S. Board Regulation
U or X or any regulations substituted therefor, as from time to time in effect,
are used in this Section with such meanings.
SECTION 6.14. Accuracy of Information. The written information,
reports, financial statements, exhibits and schedules heretofore or
contemporaneously furnished by or on behalf of New World Pasta LLC, the Borrower
or any other Obligor (other than projections) in writing to the Administrative
Agent, the Issuer or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby or with respect to the
Transaction do not, and all other such written information, reports, financial
statements, exhibits and schedules furnished by or on behalf of New World Pasta
LLC, the Borrower or any other Obligor (other than projections) to the
Administrative Agent, the Issuer or any Lender will not contain any material
misstatement of fact or omit to state any material fact necessary to make such
information not misleading in light of the circumstances in which such
statements were made.
All projections furnished to the Administrative Agent, the Issuer or
any Lender (whether before or after the Effective Date) have been or will be
prepared in good faith on the basis of reasonable assumptions and represent or
will represent the Borrower's good faith estimate of its future performance, it
being understood that actual results may differ from projections.
SECTION 6.15. Seniority of Obligations, etc. The Borrower has the power
and authority to incur the Indebtedness evidenced by the Subordinated Notes as
provided for under the Senior Subordinated Increasing Rate Note Purchase
Agreement and has (or will have) duly
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authorized, executed and delivered the Senior Subordinated Increasing Rate Note
Purchase Agreement. The Borrower has (or will have) issued, pursuant to due
authorization, the Subordinated Notes. Once executed and delivered by the
Borrower, the Senior Subordinated Increasing Rate Note Purchase Agreement will
constitute the legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing. The subordination
provisions of the Subordinated Notes and, when issued, the Senior Subordinated
High Yield Notes will be enforceable against the holders of the Subordinated
Notes or Senior Subordinated High Yield Notes, as applicable, by the holder of
the "Designated Senior Indebtedness" or similar term referring to the
Obligations, which has not effectively waived the benefits thereof. All monetary
Obligations, including those to pay principal of and interest (including
post-petition interest, whether or not permitted as a claim) on the Loans and
Reimbursement Obligations, and indemnities (including environmental
indemnities), fees and expenses in connection therewith, constitute "Designated
Senior Indebtedness" or similar term referring to the Obligations in the
Subordinated Notes and, when issued, in the Senior Subordinated High Yield
Notes, and all such Obligations are entitled to the benefits of the
subordination created by such Subordinated Notes and, when issued, the Senior
Subordinated High Yield Notes. The Borrower acknowledges that the Administrative
Agent and each Lender is entering into this Agreement, and is extending its
Commitments, in reliance upon the subordination provisions of (or to be
contained in) the Subordinated Notes, the Senior Subordinated High Yield Notes
(when issued) and this Section.
SECTION 6.16. Solvency. The Transaction (including the incurrence of
the initial Credit Extension hereunder, the incurrence by the Borrower of the
Indebtedness represented by the Notes and the Subordinated Notes and the
application of the proceeds of the Credit Extensions and the Bridge Financing),
will not involve or result in any fraudulent transfer or fraudulent conveyance
under the provisions of Section 548 of the Bankruptcy Code (11 U.S.C. Section
101 et seg., as from time to time hereafter amended, and any successor or
similar statute) or any applicable state law respecting fraudulent transfers or
fraudulent conveyances. After giving effect to the Transaction, each of the
Borrower and the Subsidiary Guarantors is Solvent.
SECTION 6.17. Year 2000. Any reprogramming or other corrective
modifications required to permit the proper functioning in all material
respects, in and following the year 2000, of business critical software owned by
the Borrower and its Subsidiaries is reasonably expected to be completed by
September 30, 1999 except to the extent that the failure to do so would not be
reasonably expected to have a Material Adverse Effect. As of the date of the
initial Credit Extension, to the knowledge of the Borrower, the cost to the
Borrower and its Subsidiaries of such reprogramming to the extent not reflected
or reserved for on the December 31, 1997 combined balance sheet of the Business
would not be reasonably expected to have a Material Adverse Effect.
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SECTION 6.18. Recapitalization Agreement. As of the Closing Date, to
the best knowledge of the Borrower, the representations and warranties of the
Transferors set forth in the Recapitalization Agreement are true and correct.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with the
Administrative Agent, the Issuer and each Lender that, until all Commitments
have terminated and all Obligations have been paid and performed in full, the
Borrower will perform the obligations set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The
Borrower will furnish, or will cause to be furnished, to each Lender, the Issuer
and the Administrative Agent copies of the following financial statements,
reports, notices and information:
(a) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of
the Borrower, a consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter, together with the
related consolidated statement of earnings and cash flow for such
Fiscal Quarter and for the period commencing at the end of the previous
Fiscal Year and ending with the end of such Fiscal Quarter, certified
by the chief financial Authorized Officer of the Borrower;
(b) as soon as available and in any event within 90 days after the
end of each Fiscal Year of the Borrower, a copy of the annual audit
report for such Fiscal Year for the Borrower and its Subsidiaries,
including therein a consolidated balance sheet for the Borrower and its
Subsidiaries as of the end of such Fiscal Year, together with the
related consolidated statement of earnings and cash flow of the
Borrower and its Subsidiaries for such Fiscal Year, in each case
certified (without any Impermissible Qualification) by Xxxxxx Xxxxxxxx
LLP or a "Big Five" firm of independent public accountants, together
with a certificate from such accountants to the effect that, in making
the audit necessary therefor no knowledge was obtained of any Default
or Event of Default insofar as the same relates to any financial
covenant set forth in Section 7.2.4, except as specified in such
certificate;
(c) together with the delivery of the financial information
required pursuant to clauses (a) and (b), a Compliance Certificate, in
substantially the form of Exhibit E, executed by the chief financial
Authorized Officer of the Borrower, showing (in reasonable detail and
with appropriate calculations and computations in all respects
reasonably satisfactory to the Administrative Agent) compliance with
the financial covenants set forth in Section 7.2.4;
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(d) as soon as possible and in any event within three Business
Days after obtaining knowledge of the occurrence of each Default, a
statement of the president, chief executive, or chief financial
Authorized Officer of the Borrower setting forth details of such
Default and the action which the Borrower has taken and proposes to
take with respect thereto;
(e) as soon as possible and in any event within five Business Days
after (x) the occurrence of any material adverse development with
respect to any litigation, action, proceeding, or labor controversy
described in Section 6.7 and the action which the Borrower has taken
and proposes to take with respect thereto or (y) the commencement of
any labor controversy, litigation, action, proceeding of the type
described in Section 6.7, notice thereof and of the action which the
Borrower has taken and proposes to take with respect thereto;
(f) promptly after the sending or filing thereof, copies of all
reports and registration statements which the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange;
(g) as soon as practicable after the chief financial officer or
the chief executive officer of the Borrower or a member of the
Borrower's Controlled Group becomes aware of (i) formal steps in
writing to terminate any Pension Plan or (ii) the occurrence of any
event with respect to a Pension Plan or a Multiemployer Plan which, in
the case of (i) or (ii), could reasonably be expected to result in a
contribution to such Pension Plan or Multiemployer Plan by (or a
liability to) the Borrower or a member of the Borrower's Controlled
Group in excess of $3,000,000, (iii) the failure to make a required
contribution to any Pension Plan if such failure is sufficient to give
rise to a Lien under section 302(f) of ERISA or Section 412(n) of the
Code, (iv) the taking of any action with respect to a Pension Plan
which could reasonably be expected to result in the requirement that
the Borrower furnish a bond in a material amount to the PBGC or such
Pension Plan or (v) any material increase in the contingent liability
of the Borrower with respect to any post-retirement Welfare Plan
benefit other than liability for continuation coverage described in
Part 6 of Subtitle B of Title 1 of ERISA, notice thereof and copies of
all documentation relating thereto;
(h) promptly upon receipt or delivery (as the case may be)
thereof, all material notices or reports required to be delivered under
the Recapitalization Agreement, including copies of documents delivered
pursuant to Section 1.4 of the Recapitalization Agreement relating to
purchase price adjustments;
(i) promptly when available and in any event within 90 days
following the last day of each Fiscal Year of the Borrower commencing
with the fiscal year ended December 31, 1999, financial projections for
the current Fiscal Year, prepared in reasonable detail by the chief
accounting, financial or executive Authorized Officer of the Borrower;
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(j) promptly following the delivery or receipt, as the case may
be, of any material written notice or communication pursuant to or in
connection with the Senior Subordinated Increasing Rate Note Purchase
Agreement or any of the Subordinated Notes (except for the delivery of
financial statements or financial reports thereunder), a copy of such
notice or communication;
(k) within 90 days after the Closing Date, a survey of asbestos
present in the facilities of the Borrower and its Subsidiaries together
with an operating and maintenance plan relating thereto; and
(l) such other information respecting the condition or operations,
financial or otherwise of the Borrower or any of its Subsidiaries as
any Lender or the Issuer through the Administrative Agent may from time
to time reasonably request (including as to the matters referred to in
Section 6.17 relating to Borrower and the consequences to the Borrower
of a failure of others' systems or equipment to have undergone
reprogramming required to permit proper functioning after the year
2000).
SECTION 7.1.2. Compliance with Laws, etc. The Borrower will, and will
cause each of its Subsidiaries to, (a) comply in all material respects with all
applicable laws, rules, regulations and orders, except where the failure to so
comply could not reasonably be expected to have a Material Adverse Effect, (b)
maintain and preserve its corporate existence and qualification as a foreign
corporation, except where the failure to so qualify could not reasonably be
expected to have a Material Adverse Effect and (c) pay, before the same become
delinquent, all material taxes, assessments and governmental charges imposed
upon it or upon its property except to the extent being contested in good faith
by appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books.
SECTION 7.1.3. Maintenance of Properties. The Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep its
properties taken as a whole in good repair, working order and condition
(ordinary wear and tear excepted), and make necessary and proper repairs,
renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times unless the Borrower determines
in good faith that the continued maintenance of any of its properties is no
longer economically desirable.
SECTION 7.1.4. Insurance. The Borrower shall maintain, and shall cause
each of its Subsidiaries to maintain:
(a) to the extent usually carried by Persons of comparable size
engaged in the same or similar business and similarly situated,
physical damage insurance on all real and personal property on an
all-risk basis (including, loss in transit, flood and earthquake
insurance) and public liability insurance against claims for personal
injury, death or property damage suffered by others upon, in or about
any premises occupied by it or occurring as a result of its ownership,
maintenance or operation of any automobiles, trucks or other vehicles
or other facilities (including, but not limited to, any machinery
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used therein or thereupon) or as the result of the use of products
manufactured, constructed or sold by it or services rendered by it in
an amount and subject to such deductibles as is usually carried by
Persons of comparable size engaged in the same or a similar business
and similarly situated;
(b) such other types of insurance with respect to its business as
is usually carried by Persons of comparable size engaged in the same or
a similar business and similarly situated; and
(c) all worker's compensation or similar insurance an may be
required under the laws of any state or jurisdiction in which it may be
engaged in business.
Without limiting the foregoing, the Borrower further agrees as follows:
(i) each policy for property insurance shall show the Administrative Agent as
loss payee; (ii) each policy for liability insurance shall show the
Administrative Agent as an additional insured; (iii) each insurance policy shall
provide that at least 30 days' prior written notice of cancellation or of lapse
shall be given to the Administrative Agent by the insured; and (iv) the Borrower
shall, if so requested by the Administrative Agent, deliver to the
Administrative Agent a copy of each insurance policy.
All insurance shall be provided (i) by insurers authorized by Lloyds of
London to underwrite such risks, (ii) by insurers having an A.M. Best
policyholders rating of not less than A(except with respect to insurers
providing insurance of the type described in clause (c), in which case such
insurers shall have an A.M. Best policyholders rating of not less than B+) or
(iii) by such other insurers as the Administrative Agent may approve in writing;
provided that, if the rating of any of such insurers is downgraded, the Borrower
and each of its Subsidiaries, as the case may be, shall only be required to
obtain replacement insurance with an insurer satisfying the requirements of this
clause at the stated expiration of the insurance policy maintained with the
insurer whose rating was so downgraded.
SECTION 7.1.5. Books and Records. The Borrower will, and will cause
each of its Subsidiaries to, keep books and records which accurately reflect in
all material respects all of its business affairs and transactions and permit
the Administrative Agent, the Issuer and each Lender or any of their respective
representatives, at reasonable times and intervals, and upon reasonable notice,
to visit all of its offices, to discuss its financial matters with its officers
and independent public accountant (and the Borrower hereby authorizes such
independent public accountant to discuss the Borrower's financial matters with
the Issuer and each Lender or its representatives whether or not any
representative of the Borrower is present) and to examine, and photocopy
extracts from, any of its books or other corporate records, provided, that
representatives of the Borrower shall be allowed to be present at any such
discussion.
SECTION 7.1.6. Environmental Covenant. The Borrower will and will cause
each of its Subsidiaries to,
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(a) use and operate all of its facilities and properties in
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith, and
handle all Hazardous Materials in compliance with all applicable
Environmental Laws, in each case except where the failure to comply
with the terms of this clause would not reasonably be expected to have
a Material Adverse Effect;
(b) promptly notify the Administrative Agent and provide copies of
all written claims, complaints, notices or inquiries relating to the
condition of its facilities and properties or compliance with
Environmental Laws which relate to environmental matters which would
have, or would reasonably be expected to have, a Material Adverse
Effect, and promptly take reasonably steps to respond to any material
actions and proceedings relating to compliance with Environmental Laws,
except to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP have been set aside on its books; and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to
evidence compliance with this Section 7.1.6.
SECTION 7.1.7. Future Subsidiaries. Upon any Person becoming, after the
Effective Date, a Subsidiary of the Borrower, or upon the Borrower or any
Subsidiary acquiring additional Capital Stock of any existing Subsidiary, the
Borrower shall notify the Administrative Agent of such acquisition, and
(a) the Borrower shall promptly cause such Subsidiary to execute
and deliver to the Administrative Agent, with counterparts for each
Lender, a Subsidiary Guaranty or a supplement to the Subsidiary
Guaranty and a Subsidiary Security Agreement or a supplement to the
Subsidiary Security Agreement (and, if such Subsidiary owns any real
property having a value as determined in good faith by the
Administrative Agent in excess of $750,000, a Mortgage), together with
Uniform Commercial Code financing statements (form UCC-1) executed and
delivered by the Subsidiary naming the Subsidiary as the debtor and the
Administrative Agent as the secured party, or other similar instruments
or documents, to be filed under the Uniform Commercial Code and any
other applicable recording statutes, in the case of real property, of
all jurisdictions as may be necessary or, in the reasonable opinion of
the Administrative Agent, desirable to perfect the security interest of
the Administrative Agent pursuant to the Subsidiary Security Agreement
or a Mortgage, as the case may be; and
(b) the Borrower shall promptly deliver, or cause to be delivered,
to the Administrative Agent under a Pledge Agreement (or a supplement
thereto updating the schedules to the Pledge Agreement), certificates
(if any) representing all of the issued and outstanding shares of
Capital Stock of such Subsidiary owned by the Borrower or any
Subsidiary of the Borrower, as the case may be, along with undated
stock powers for such
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certificates, executed in blank, or, if any securities subject thereto
are uncertificated securities, confirmation and evidence satisfactory
to the Administrative Agent that appropriate book entries have been
made in the relevant books or records of a financial intermediary or
the issuer of such securities, as the case may be, under applicable law
resulting in the perfection of the security interest granted in favor
of the Administrative Agent pursuant to the terms of a Pledge
Agreement;
together, in each case, with such opinions, in form and substance and from
counsel satisfactory to the Administrative Agent, as the Administrative Agent
may reasonably require; provided, that notwithstanding the foregoing, no
Non-U.S. Subsidiary shall be required to execute and deliver a Mortgage, a
Subsidiary Guaranty or a supplement to the Subsidiary Guaranty or a Security
Agreement or a supplement to the Security Agreement, or a Pledge Agreement or a
supplement to the Pledge Agreement, nor will the Borrower or any Subsidiary of
the Borrower be required to deliver in pledge pursuant to a Pledge Agreement in
excess of 65% of the total combined voting power of all classes of Capital Stock
of a Non-U.S. Subsidiary entitled to vote.
SECTION 7.1.8. Future Leased Property and Future Acquisitions of Real
Property. (a) Prior to entering into any new lease of real property following
the Effective Date (including a renewal of any lease of real property entered
into following the Effective Date), the Borrower shall, and shall cause each of
its Subsidiaries to, use its (and their) reasonable commercial efforts (which
shall not require the expenditure of cash or the making of any material
concessions under the relevant lease) to deliver to the Administrative Agent a
Waiver executed by the lessor of any real property that is to be leased by the
Borrower or such Subsidiary for a term in excess of one year in any state which
by statute grants such lessor a "landlord's" (or similar) Lien which is superior
to the Administrative Agent's, to the extent the value of any personal property
of the Borrower or its Subsidiaries to be held at such leased property exceeds
(or it is anticipated that the value of such personal property will, at any
point in time during the term of such leasehold term, exceed) $500,000.
(b) In the event that the Borrower or any of its Subsidiaries shall
acquire any real property having a value as determined in good faith by the
Administrative Agent in excess of $750,000, the Borrower or the applicable
Subsidiary shall, promptly after such acquisition, execute a Mortgage and
provide the Administrative Agent with
(i) evidence of the completion (or satisfactory arrangements for
the completion) of all recordings and filings of such Mortgage as may
be necessary or, in the reasonable opinion of the Administrative Agent,
desirable to create a valid, perfected first priority Lien, subject to
Liens permitted by Section 7.2.3, against the properties purported to
be covered thereby;
(ii) mortgagee's title insurance policies in favor of the
Administrative Agent and the Lenders in amounts and in form and
substance and issued by insurers, reasonably satisfactory to the
Administrative Agent, with respect to the property purported to be
covered by such Mortgage, insuring that title to such
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property is marketable and that the interests created by the Mortgage
constitute valid first Liens thereon free and clear of all defects and
encumbrances except as permitted by Section 7.2.3, and such policies
shall also include a revolving credit endorsement, if available, and
such other endorsements as the Administrative Agent shall request and
shall be accompanied by evidence of the payment in full of all premiums
thereon; and
(iii) such other approvals, opinions, or documents as the
Administrative Agent may reasonably request.
SECTION 7.1.9. Use of Proceeds, etc. The Borrower shall apply
(a) the proceeds of the Credit Extensions
(i) to pay Transaction expenses; provided, however, that
(x) none of the Revolving Loans may be used for such purpose, (y)
the aggregate Transaction expenses shall not exceed $19,000,000
(including amounts to be reimbursed by the Transferors pursuant to
the Recapitalization Agreement or otherwise) and (z) the aggregate
of the purchase price for the Recapitalization Transactions,
including the Equity Purchase, and Transaction expenses shall not
exceed $472,000,000;
(ii) for working capital and general corporate purposes of
the Borrower and its Subsidiaries including capital expenditures
and acquisitions; and
(iii) to repay the Indebtedness identified in Item 7.2.2(b)
("Indebtedness to be Paid") of the Disclosure Schedule, including
the Seller Note, and
(b) all the proceeds from the cash component of the Equity
Purchase (without duplication of the application of Credit Extension
proceeds pursuant to clause (a)) made available to it to pay the
redemption purchase price of the Common Stock pursuant to the
Recapitalization Agreement.
SECTION 7.1.10. Hedging Obligations. Within 120 days after the Closing
Date, the Borrower shall enter into interest rate swap, cap, collar or similar
arrangements designed to protect the Borrower against fluctuations in the LIBO
Rate reasonably satisfactory to the Administrative Agent in a notional amount
reasonably satisfactory to the Borrower and Administrative Agent for a minimum
period equal to the shorter of two years or the remaining term of the Term B
Loan.
SECTION 7.1.11. Shareholder Pledge Agreement. The Borrower covenants
and agrees that, in its capacity as a Pledged Share Issuer under (and as defined
in) the Shareholder Pledge Agreements, the Borrower agrees that it will
cooperate in all reasonable respects necessary to enable the Administrative
Agent to exercise its rights and remedies under the terms of the
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Shareholder Pledge Agreements and agrees to comply with all terms thereof
applicable to the Pledged Share Issuer (as defined therein).
SECTION 7.2. Negative Covenants. The Borrower agrees with the
Administrative Agent, the Issuer and each Lender that, until all Commitments
have terminated and all Obligations have been paid and performed in full, the
Borrower will perform the obligations set forth in this Section 7.2.
SECTION 7.2.1. Business Activities. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any business activity, except
business activities of the type in which the Borrower and its Subsidiaries are
engaged on the date hereof (after giving effect to the Transactions) and such
activities as may be incidental, similar or related thereto.
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of the Credit Extensions and other
Obligations;
(b) until the date of the initial Credit Extension, Indebtedness
identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the
Disclosure Schedule;
(c) Indebtedness existing as of the Effective Date which is
identified in Item 7.2.2(c) ("Ongoing Indebtedness") of the Disclosure
Schedule, and any refinancing or replacement thereof, but only in
amounts not in excess of the outstanding amounts on the date of such
refinancing (which shall not exceed the committed amount on the
Effective Date);
(d) Indebtedness incurred by the Borrower or any of its
Subsidiaries (i) in respect of Capitalized Lease Liabilities and
purchase money financing (but only to the extent otherwise permitted by
Section 7.2.7); provided, that the maximum aggregate outstanding
principal amount of all Indebtedness permitted under this clause (d)(i)
shall not at any time exceed $15,000,000 and (ii) from time to time for
general corporate purposes; provided, that the maximum aggregate
outstanding principal amount of all Indebtedness permitted under this
clause (d)(ii) shall not at any time exceed $5,000,000;
(e) Hedging Obligations of the Borrower or any of its
Subsidiaries;
(f) intercompany Indebtedness of any Subsidiary of the Borrower
owing to the Borrower or any other Subsidiary of the Borrower, which
Indebtedness
(i) shall be evidenced by one or more promissory notes which
have been duly executed and delivered to (and endorsed to the
order of) the Administrative Agent in pledge pursuant to a Pledge
Agreement; and
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(ii) shall not be forgiven or otherwise discharged for any
consideration other than payment (Dollar for Dollar) in cash
unless the Administrative Agent otherwise consents;
(g) unsecured intercompany Indebtedness of the Borrower owing to
a Subsidiary of the Borrower that has previously executed and delivered
to the Administrative Agent the Intercompany Subordination Agreement,
which shall be evidenced by one or more promissory notes in form and
substance satisfactory to the Administrative Agent that have been duly
executed and delivered to (and endorsed to the order of) the
Administrative Agent in pledge pursuant to a Pledge Agreement;
(h) the unsecured Subordinated Notes of the Borrower owing to the
Subordinated Noteholders in an aggregate outstanding principal amount
not to exceed $110,000,000 (plus the amount attributable to additional
notes issued thereunder in respect of interest) evidenced by the
Subordinated Notes;
(i) Indebtedness of Subsidiary Guarantors pursuant to the
Subordinated Guaranty;
(j) Senior Subordinated High Yield Notes provided that the Excess
High Yield Net Debt Proceeds, if any, are used as provided in clause
(d) of Section 3.1.1.
(k) Indebtedness of a Person not in excess of $5,000,000
outstanding at the time such Person becomes a Subsidiary so long such
Indebtedness was not incurred in anticipation of such Person becoming a
Subsidiary; and
(l) guarantees by the Borrower of Indebtedness of Subsidiaries so
long as (i) such Indebtedness is otherwise permitted hereunder and (ii)
such guarantee is subordinated to the Obligations in the same manner
and to the same extent as such Indebtedness is subordinated;
provided, however, that no Indebtedness otherwise permitted by clause (d) or (f)
(as such clause relates to Loans made by the Borrower to its Subsidiaries) may
be incurred if, after giving effect to the incurrence thereof, any Default shall
have occurred and be continuing.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any
of its property, revenues or assets, whether now owned or hereafter acquired,
except:
(a) Liens securing payment of the Obligations, granted pursuant
to any Loan Document;
(b) until the date of the initial Credit Extension, Liens
securing payment of Indebtedness of the type permitted and described in
clause (b) of Section 7.2.2;
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(c) (i) Liens, if any, granted prior to the Effective Date to
secure payment of Indebtedness of the type permitted and described in
clause (d)(i) of Section 7.2.2 and (ii) Liens granted prior to the
Effective Date set forth on Item 7.23 of the Disclosure Schedule;
(d) Liens granted to secure payment of Indebtedness of the type
permitted and described in clause (d)(i) of Section 7.2.2;
(e) Liens for taxes, assessments or other governmental charges or
levies, including Liens pursuant to Section 107(l) of CERCLA or other
similar law, not at the time delinquent or thereafter payable without
penalty or being contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(f) Liens of carriers, warehousemen, mechanics, repairmen,
materialmen and landlords or other like liens incurred in the ordinary
course of business for sums not overdue for a period of more than 60
days or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(g) Liens incurred in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other
forms of governmental insurance or benefits, or to secure performance
of tenders, statutory obligations, insurance obligations, leases and
contracts (other than for borrowed money) entered into in the ordinary
course of business or to secure obligations on surety or appeal bonds;
(h) judgment Liens in existence less than 30 days after the entry
thereof or with respect to which execution has been stayed or the
payment of which is covered in full by a bond or (subject to a
customary deductible) by insurance maintained with responsible
insurance companies;
(i) Liens with respect to recorded minor imperfections of title
and easements, rights-of-way, restrictions, reservations, permits,
servitudes and other similar encumbrances on real property and fixtures
which do not materially interfere with the ordinary conduct of the
business of the Borrower and its Subsidiaries conducted at any material
property;
(j) leases or subleases granted by the Borrower or any of its
Subsidiaries to any other Person in the ordinary course of business;
(k) Liens in the nature of trustees' Liens granted pursuant to any
indenture governing any Indebtedness permitted by Section 7.2.2, in
each case in favor of the trustee under such indenture and securing
only obligations to pay compensation to such trustee, to reimburse its
expenses and to indemnify it under the terms thereof; and
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(l) Permitted Encumbrances (as defined in the Mortgage).
SECTION 7.2.4. Financial Condition. (a) Debt to EBITDA Ratio. The
Borrower will not permit the Debt to EBITDA Ratio as of the end of any Fiscal
Quarter to be greater than the ratio set forth opposite such date:
Debt to
Fiscal Quarter End EBITDA Ratio
------------------ ------------
March 31, 1999 6.25
June 30, 1999 6.25
September 30, 1999 6.25
December 31, 1999 6.25
March 31, 2000 5.25
June 30, 2000 5.25
September 30, 2000 5.25
December 31, 2000 5.25
March 31, 2001 4.75
June 30, 2001 4.75
September 30, 2001 4.75
December 31, 2001 4.75
March 31, 2002 4.25
June 30, 2002 4.25
September 30, 2002 4.25
December 31, 2002 4.25
March 31, 2003 3.75
June 30, 2003 3.75
September 30, 2003 3.75
December 31, 2003 3.75
March 31, 2004 3.25
June 30, 2004 3.25
September 30, 2004 3.25
December 31, 2004 3.25
Each Fiscal Quarter thereafter 3.00
(b) Interest Coverage Ratio. The Borrower will not permit the Interest
Coverage Ratio as of the end of any Fiscal Quarter to be set forth below to be
less than the ratio set forth opposite such date:
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Interest
Fiscal Quarter End Coverage Ratio
------------------ --------------
March 31, 1999 1.60
June 30, 1999 1.60
September 30, 1999 1.60
December 31, 1999 1.60
March 31, 2000 1.80
June 30, 2000 1.80
September 30, 2000 1.80
December 31, 2000 1.80
March 31, 2001 2.25
June 30, 2001 2.25
September 30, 2001 2.25
December 31, 2001 2.25
March 31, 2002 2.50
June 30, 2002 2.50
September 30, 2002 2.50
December 31, 2002 2.50
Each Fiscal Quarter thereafter 3.00
For purposes of calculating the cash Interest Expense component of the
ratio in this Section as of the last day of the first, second, third and fourth
Fiscal Quarter of 1999 (being the Fiscal Quarters ending March 31, 1999, June
30, 1999, September 30, 1999, and December 31, 1999), the amounts of cash
Interest Expense included in the ratio shall be determined by multiplying cash
Interest Expense for the period commencing on the Closing Date and ending as of
the last day of such Fiscal Quarter by a fraction, the numerator of which is 365
and the denominator of which is the number of calendar days from the Closing
Date through the last day of such Fiscal Quarter.
(c) Fixed Charge Coverage Ratio. The Borrower will not permit the Fixed
Charge Coverage Ratio as of the end of any Fiscal Quarter set forth below to be
less than the ratio set forth opposite such date:
Fixed Charge
Fiscal Quarter End Coverage Ratio
------------------ --------------
March 31, 1999 1.20
June 30, 1999 1.20
September 30, 1999 1.20
December 31, 1999 1.20
March 31, 2000 1.20
June 30, 2000 1.20
September 30, 2000 1.20
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December 31, 2000 1.30
March 31, 2001 1.30
June 30, 2001 1.30
September 30, 2001 1.30
December 31, 2001 1.50
March 31, 2002 1.50
June 30, 2002 1.50
September 30, 2002 1.50
December 31, 2002 1.75
March 31, 2003 1.75
June 30, 2003 1.75
September 30, 2003 1.75
December 31, 2003 2.00
March 31, 2004 2.00
June 30, 2004 2.00
September 30, 2004 2.00
December 31, 2004 2.00
Each Fiscal Quarter thereafter 0.40
For purposes of calculating the cash Interest Expense component of the
ratio in this Section as of the last day of the first, second, third and fourth
Fiscal Quarter of 1999 (being the Fiscal Quarters ending March 31, 1999, June
30, 1999, September 30, 1999, and December 31, 1999), the amounts of cash
Interest Expense included in the ratio shall be determined by multiplying cash
Interest Expense for the period commencing on the Closing Date and ending as of
the last day of such Fiscal Quarter by a fraction, the numerator of which is 365
and the denominator of which is the number of calendar days from and including
the Closing Date through the last day of such Fiscal Quarter.
SECTION 7.2.5. Investments. The Borrower will not, and will not permit
any of its Subsidiaries to, make, incur, assume or suffer to exist any
Investment in any other Person, except:
(a) Investments existing on the Effective Date and identified in
Item 7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.2;
(d) [Intentionally omitted]
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(e) Investments by the Borrower in any of its Subsidiaries, or by
any such Subsidiary in any of its Subsidiaries, by way of contributions
to capital or purchase of Capital Stock;
(f) Investments made by the Borrower or any of its Subsidiaries,
solely with proceeds which either:
(i) have been contributed, directly or indirectly, through
cash capital contributions to the Borrower or such Subsidiary or
through the issuance for cash of additional equity securities for
the purpose of making an Investment identified in a notice to the
Administrative Agent on or prior to the date that such capital
contribution is made or issuance is consummated (but this clause
(i) shall not include the proceeds of such issuances solely to the
extent the Borrower is required to make a prepayment as a result
of an equity issuance pursuant to Section 3.1.1) or
(ii) are Net Disposition Proceeds which are being reinvested
by the Borrower or such Subsidiary of the Borrower in Qualified
Assets in accordance with the terms of clause (b) of Section
3.1.1;
(g) Investments to the extent the consideration received pursuant
to clause (b)(i) of Section 7.2.9 is not all cash; and
(h) Acquisition Investments not to exceed $25,000,000 for any
single Acquisition Investment or $50,000,000 for all Acquisition
Investments in the aggregate from and after the Closing Date;
(i) loans and advances to officers, directors or employees of the
Borrower and its Subsidiaries (x) in the ordinary course of business
for travel and entertainment expenses, (y) made after the Effective
Date for relocation expenses in the ordinary course of business and (z)
for other purposes in furtherance of the business of the Borrower and
its Subsidiaries, so long as the aggregate amount of Investments
permitted under this clause (i), together with the principal amount of
all Indebtedness outstanding under Section 7.2.2(j), shall not exceed
$250,000 at any time;
(j) Investments in the nature of pledges or deposits with respect
to leases or utilities provided to third parties in the ordinary course
of business;
(k) Investments representing evidences of Indebtedness,
securities or other property received from another Person in connection
with any bankruptcy proceeding or other reorganization of such other
Person or as a result of foreclosure, perfection or enforcement of any
Lien or exchange for evidences of Indebtedness, securities or other
property of such other Persons held by the Borrower and its
Subsidiaries; provided that any such securities or other property
received by the Borrower or any of its Subsidiaries
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is pledged to the Administrative Agent for the benefit of the Lenders
pursuant to the Security Agreements;
(l) extensions of trade credit in the ordinary course of
business;
(m) loans and advances, not exceeding $775,000 per annum in the
aggregate to the members (but only to members who are individuals) of
the Management Investor in an amount equal to any income taxes of the
individual members of the Management Investor resulting solely from
imputed income generated with respect to the Preferred Stock owned by
them or by the Management Investor and attributable to them;
provided, however, that
(n) any Investment which when made complies with the requirements
of the definition of the term "Cash Equivalent Investment" may continue
to be held notwithstanding that such Investment if made thereafter
would not comply with such requirements;
(o) no Investment otherwise permitted by clause (f)(ii), (g) or
(h) shall be permitted to be made if, immediately before or after
giving effect thereto, any Default shall have occurred and be
continuing.
SECTION 7.2.6. Restricted Payments, etc. On and at all times after the
Effective Date:
(a) the Borrower will not declare, pay or make any dividend or
distribution (in cash, property or obligations) on any shares of any
class of Capital Stock (now or hereafter outstanding) of the Borrower
or on any warrants, options or other rights with respect to any shares
of any class of Capital Stock (now or hereafter outstanding) of the
Borrower (other than dividends or distributions payable in its common
stock or warrants to purchase its common stock or splits or
reclassifications of its stock into additional or other shares of its
common stock) or apply, or permit any of its Subsidiaries to apply, any
of its funds, property or assets to the purchase, redemption, sinking
fund or other acquisition of, or agree or permit any of its
Subsidiaries to purchase, redeem or otherwise acquire, any shares of
any class of Capital Stock (now or hereafter outstanding) of the
Borrower, or warrants, options or other rights with respect to any
shares of any class of Capital Stock (now or hereafter outstanding) of
the Borrower (collectively, "Restricted Payments");
(b) the Borrower will not, and will not permit any of its
Subsidiaries to (x) make any prepayment (directly or by redemption,
purchase or defeasance) of principal of (i) the Subordinated Notes
(other than by prepayment through, or with the proceeds of, the
issuance of Senior Subordinated High Yield Notes so long as the
Borrower complies with the obligations set forth in clause (d) of
Section 3.1.1 in connection with the issuance of such Senior
Subordinated High Yield Notes) or (ii) the Senior Subordinated
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High Yield Notes, (y) make any payment on or with respect to the
Subordinated Notes or the Senior Subordinated High Yield Notes in
violation of the subordination provisions contained therein or (z)
designate any indebtedness (other than the Obligations) as "Designated
Senior Indebtedness" or any similar term as defined in the Subordinated
Notes or the Senior Subordinated High Yield Notes; and
(c) the Borrower will not, and will not permit any Subsidiary to,
make any deposit for any of the foregoing purposes;
provided, however, that,
(d) notwithstanding the provisions of clause (a) above, the
Borrower shall be permitted:
(i) so long as (A) no Default shall have occurred and be
continuing on the date such Restricted Payment is declared or to
be made, nor would a Default result from the making of such
Restricted Payment, (B) after giving effect to the making of such
Restricted Payment the Borrower shall be in pro forma compliance
with the covenants set forth in Section 7.2.4 for the most recent
full Fiscal Quarter immediately preceding the date of the payment
of such Restricted Payment for which the relevant financial
information has been delivered pursuant to clause (a) or clause
(b) of Section 7.1.1, and (C) an Authorized Officer of the
Borrower shall have delivered a certificate to the Administrative
Agent in form and substance satisfactory to the Administrative
Agent (including a calculation of the compliance with the
covenants set forth in Section 7.2.4) certifying as to the
accuracy of clause (d)(i)(A) and (d)(i)(B) above, to purchase,
redeem, acquire or otherwise retire for value shares of Capital
Stock of the Borrower held by officers or employees of the
Borrower or any of its Subsidiaries, or options on any such shares
or related stock appreciation rights or similar securities owned
by officers or employees (or their estates or beneficiaries under
their estates), in all cases only upon death, disability,
retirement, termination of employment or pursuant to the terms of
such stock option plan or any other agreement under which such
shares of Capital Stock, options, related rights or similar
securities were issued (collectively referred to as a
"Redemption"), in an aggregate amount, in the case of this clause
(d)(i), not to exceed $2,000,000 in any Fiscal Year provided, that
to the extent the amount of any Redemptions permitted to be made
in any Fiscal Year pursuant to this clause exceeds the aggregate
amount of Redemptions actually made during such Fiscal Year, such
excess amount may be carried forward to the next Fiscal Year but
the aggregate Redemptions in any Fiscal Year may not exceed
$4,000,000 (any such amount to be certified by the Borrower to the
Administrative Agent in the Compliance Certificate delivered for
the last Fiscal Quarter of a Fiscal Year), and
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(ii) to pay amounts to New World Pasta LLC to enable it to
pay Transaction expenses otherwise payable by the Borrower so long
as the aggregate amount of Transaction expenses paid by the
Borrower and New World Pasta LLC does not exceed the amount
otherwise permitted to be paid by the Borrower under this
Agreement.
SECTION 7.2.7. Capital Expenditures, etc. (a) The Borrower will not,
and will not permit any of its Subsidiaries to, make or commit to make Capital
Expenditures in any Fiscal Year, which aggregate in excess of the amount set
forth below opposite such Fiscal Year:
Maximum Capital
Fiscal Year Expenditures
----------- ---------------
1999 $17,500,000
2000 $10,000,000
2001 $7,000,000
2002 $7,000,000
2003 $7,000,000
2004 $7,000,000
2005 $7,000,000
2006 $7,000,000
provided, that to the extent the amount of Capital Expenditures permitted to be
made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of
Capital Expenditures actually made during such Fiscal Year, such excess amount
may be carried forward to subsequent Fiscal Years but the aggregate Capital
Expenditures in any Fiscal Year may not exceed the amount set forth above for
such Fiscal Year plus the amount set forth above for the prior Fiscal Year (any
such amount to be certified by the Borrower to the Administrative Agent in the
Compliance Certificate delivered for the last Fiscal Quarter of a Fiscal Year).
For purposes of computing the amount of Capital Expenditures in any Fiscal Year,
(i) the amount of any cash Capital Expenditure made pursuant to a binding
agreement entered into in good faith and without an intent to avoid the
requirements of this Section shall be deemed to have been made in the Fiscal
Year in which the commitment was made and not in the Fiscal Year in which the
actual expenditure is actually made and (ii) the amount of any such commitment
shall be deemed to be a Capital Expenditure in the Fiscal Year in which the
commitment is entered into.
(b) The parties acknowledge and agree that the permitted Capital
Expenditure levels set forth in clause (a) above shall be exclusive of:
(i) Net Disposition Proceeds which have been reinvested by the
Borrower or a Subsidiary of the Borrower in Qualified Assets in
accordance with the terms of clause (b) of Section 3.1.1 and Casualty
Proceeds to the extent applied to rebuild or replace property in
accordance with the terms of clause (e) of Section 3.1.1 (including any
amount less than $500,000 referred to therein) and
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(ii) Acquisition Investments.
SECTION 7.2.8. Consolidation, Merger, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate
with, or merge into or with, any other corporation or other Person, or purchase
or otherwise acquire all or substantially all of the assets of any Person (or of
any division thereof) or make any other Acquisition Investment except
(a) any such Subsidiary may liquidate or dissolve voluntarily
into, and may merge with and into, the Borrower (so long as the
Borrower is the surviving corporation of such combination or merger) or
any other Subsidiary, and the assets or stock of any Subsidiary may be
purchased or otherwise acquired by the Borrower or any other
Subsidiary; provided, that notwithstanding the above, a Subsidiary may
only liquidate or dissolve into, or merge with and into, another
Subsidiary of the Borrower if, after giving effect to such combination
or merger, the Borrower continues to own (directly or indirectly), and
the Administrative Agent continues to have pledged to it pursuant to a
Pledge Agreement, a percentage of the issued and outstanding shares of
Capital Stock (on a fully diluted basis) of the Subsidiary surviving
such combination or merger that is equal to or in excess of the
percentage of the issued and outstanding shares of Capital Stock (on a
fully diluted basis) of the Subsidiary that does not survive such
combination or merger that was (immediately prior to the combination or
merger) owned by the Borrower or pledged to the Administrative Agent;
and
(b) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, the Borrower or any of its
Subsidiaries may make Acquisition Investments to the extent permitted
by (h) of Section 7.2.5.
SECTION 7.2.9. Asset Dispositions, etc. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants (other than the issuance of
warrants required by the Senior Subordinated Increasing Rate Note Purchase
Agreement or in connection with the issuance of the Senior Subordinated High
Yield Notes) or other rights with respect to, all or any part of its assets,
whether now owned or hereafter acquired (including accounts receivable and
Capital Stock of Subsidiaries) to any Person, unless:
(a) such sale, transfer, lease, contribution or conveyance of
such assets is (i) in the ordinary course of its business (and does not
constitute a sale, transfer, lease, contribution or other conveyance of
a plant or all or a substantial part of the Borrower's or such
Subsidiary's assets) or is of obsolete, surplus, uneconomic or worn out
property, (ii) permitted by Section 7.2.8 or clause (d) of Section
7.2.11, (iii) of licenses of intellectual property in the ordinary
course of business which (A) would not reasonably be expected to have a
Material Adverse Effect and (B) do not provide for the licensees to pay
royalty payments in the aggregate in excess of $5,000,000 in any Fiscal
Year, or (iv) between
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Subsidiary Guarantors or from a Subsidiary to the Borrower or from the
Borrower to a Subsidiary Guarantor; or
(b) (i) such sale, transfer, lease, contribution or conveyance of
such assets is for fair market value (as determined in good faith by
the Board of Directors of the Borrower), and (ii) the Net Disposition
Proceeds received from such assets, together with the Net Disposition
Proceeds (plus the principal amount of any notes taken as
consideration) of all other assets sold, transferred or leased,
contributed or conveyed pursuant to this clause (b) since the Effective
Date, does not exceed (individually or in the aggregate) $5,000,000 and
in any period of 12 consecutive months does not exceed $2,000,000.
SECTION 7.2.10. Modification of Certain Agreements.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, consent to any amendment, supplement, amendment and
restatement, waiver or other modification of any of the terms or
provisions contained in, or applicable to, the Recapitalization
Agreement or any schedules, exhibits or agreements related thereto, in
each case which would adversely affect the rights or remedies of the
Lenders, or the Borrower's or any Subsidiary's ability to perform
hereunder or under any Loan Document or which would increase the
purchase price with respect to the Transactions, or, in the case of the
Recapitalization Agreement, which would increase the Borrower's or any
of its Subsidiaries' obligations or liabilities, contingent or
otherwise (other than adjustments to the purchase price made pursuant
to the terms of the Recapitalization Agreement).
(b) The Borrower will not (i) consent to any amendment,
supplement, restatement, waiver or other modification of any of the
terms or provisions contained in, or applicable to, the Subordinated
Notes or the Senior Subordinated Increasing Rate Note Purchase
Agreement, or, when issued, the Senior Subordinated High Yield Notes or
any guarantees delivered in connection with the Subordinated Notes
(including the Subordinated Guaranty relating thereto) or, when issued,
the Senior Subordinated High Yield Notes (collectively, the "Restricted
Agreements"), which either relates to the subordination terms thereof
or which is adverse to the interests of the Lenders, or (ii) make any
payment to obtain any amendment, supplement, restatement, waiver or
other modification of any other terms or provisions contained in, or
applicable to, the Subordinated Notes or the Senior Subordinated
Increasing Rate Note Purchase Agreement, or, when issued, the Senior
Subordinated High Yield Notes other than consent solicitation fee
payments not intended as disguised redemption or purchase payments.
SECTION 7.2.11. Transactions with Affiliates. The Borrower will not,
and will not permit any of its Subsidiaries to, enter into, or cause, suffer or
permit to exist any transaction, arrangement or contract with any of its other
Affiliates (other than any Obligor) unless such transaction, arrangement or
contract is (i) otherwise not prohibited under this Agreement and (ii) upon
terms no less favorable to the Borrower or such Subsidiary than it would obtain
in a comparable arm's length transaction with a Person which is not an
Affiliate, provided that the
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foregoing shall not prevent (a) the payment of amounts (not in excess of
$200,000 per year) due under a management agreement with Xxxxxx Milling Company,
as in effect on the Closing Date, (b) the payment of up to $300,000 as
reimbursement for administrative and out-of-pocket expenses incurred by JLL or
Xxxxxx Milling Company on or prior to the Closing Date in connection with the
Transactions, (c) payments for the purposes contemplated under clause (m) of
Section 7.2.5 and (d) the sale to Xxxxxx Milling Company Limited Partnership of
certain real estate and related transactions set forth in Item 7.2.11 of the
Disclosure Schedule.
SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc. The
Borrower will not, and will not permit any of its Subsidiaries to, enter into
any agreement prohibiting
(a) the (i) creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter
acquired, or (ii) ability of the Borrower or any other Obligor to amend
or otherwise modify this Agreement or any other Loan Document; or
(b) the ability of any Subsidiary to make any payments, directly
or indirectly, to the Borrower by way of dividends, advances,
repayments of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to the Borrower,
provided, that the foregoing shall not prohibit (i) any restrictions existing
under the Loan Documents, (ii) in the case of clauses (a)(i) and (b), any
restrictions with respect to a Subsidiary imposed pursuant to an agreement which
has been entered into in connection with the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary pursuant to
a transaction otherwise permitted hereby, (iii) in the case of clause (a),
restrictions in respect of Indebtedness secured by Liens permitted by Section
7.2.3, but only to the extent such restrictions apply to the assets encumbered
thereby, (iv) in the case of clause (a)(i) and (b), restrictions under the
Senior Subordinated Increasing Rate Note Purchase Agreement, the indenture under
which the Exchange Notes are issued or in the Senior Subordinated Note
Indenture, (v) any restrictions existing under any agreement that amends,
refinances or replaces any agreement containing the restrictions referred to in
clause (i), (ii) or (iii) above or (vi) customary non-Assignment provisions in
contracts entered into in the ordinary course of business.
SECTION 7.2.13. Stock of Subsidiaries. The Borrower will not permit any
Subsidiary to issue any Capital Stock (whether for value or otherwise) to any
Person other than the Borrower or another wholly-owned Subsidiary of the
Borrower.
SECTION 7.2.14. Sale and Leaseback. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any agreement or arrangement with
any other Person providing for the leasing by the Borrower or any of its
Subsidiaries of real or personal property which has been or is to be sold or
transferred by the Borrower or any of its Subsidiaries to such other
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Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the
Borrower or any of its Subsidiaries.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events
or occurrences described in this Section 8.1 shall constitute an "Event of
Default".
SECTION 8.1.1. Non-Payment of Obligations. (a) The Borrower shall
default in the payment or prepayment of (i) any Reimbursement Obligation
(including pursuant to Sections 2.6 and 2.6.2) on the applicable Disbursement
Due Date or any deposit of cash for collateral purposes on the date required
pursuant to Section 2.6.4 or (ii) any principal of any Loan when due, or (b) any
Obligor (including the Borrower) shall default (and such default shall continue
unremedied for a period of three Business Days) in the payment when due of any
interest or commitment fee or of any other monetary Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of
the Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate
(including the Closing Date Certificate) furnished by or on behalf of the
Borrower or any other Obligor to the Administrative Agent, the Issuer or any
Lender for the purposes of or in connection with this Agreement or any such
other Loan Document (including any certificates delivered pursuant to Article V)
is or shall be incorrect when made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Borrower shall default in the due performance and observance of any of its
obligations under Section 7.1.1(d), Section 7.1.9 or Section 7.2.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrower by the Administrative Agent at the
direction of the Required Lenders.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur (i)
in the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness, other than Indebtedness
described in Section 8.1.1, of the Borrower or any of its Subsidiaries or any
other Obligor having a principal amount, individually or in the aggregate, in
excess of $1,000,000, or (ii) a default shall occur in the performance or
observance of any obligation or condition with respect to such Indebtedness
having a principal amount,
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individually or in the aggregate, in excess of $1,000,000 if the effect of such
default is to accelerate or to permit the holder thereof to accelerate the
maturity of any such Indebtedness.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of
money in excess of $1,000,000 (not covered by insurance from a responsible
insurance company that is not denying its liability with respect thereto) shall
be rendered against the Borrower or any of its Subsidiaries or any other Obligor
and remain unpaid and there shall be any period of 60 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.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur
with respect to any Pension Plan or Multiemployer Plan (as applicable):
(a) the termination of any Pension Plan if, as a result of such
termination, a Material Adverse Effect has occurred;
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under section 302(f) of ERISA or
Section 412(n) of the Code in an amount in excess of $1,000,000; or
(c) a withdrawal by the Borrower or any member of the Controlled
Group from a Multiemployer Plan as a result of which a Material Adverse
Effect has occurred.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower or any of its
Subsidiaries or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for the Borrower or
any of its Subsidiaries or any other Obligor or any property of any
thereof, or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for the Borrower or any of its
Subsidiaries or any other Obligor or for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged within 60 days, provided that
the Borrower, each Subsidiary and each other Obligor hereby expressly
authorizes the Administrative Agent, the Issuer and each Lender to
appear in any court conducting any relevant proceeding during such
60-day period to preserve, protect and defend their rights under the
Loan Documents;
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(x) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of the Borrower or any of its
Subsidiaries or any other Obligor, and, if any such case or proceeding
is not commenced by the Borrower or such Subsidiary or such other
Obligor, such case or proceeding shall be consented to or acquiesced in
by the Borrower or such Subsidiary or such other Obligor or shall
result in the entry of an order for relief or shall remain for 60 days
undismissed, provided that the Borrower, each Subsidiary and each other
Obligor hereby expressly authorizes the Administrative Agent, the
Issuer and each Lender to appear in any court conducting any such case
or proceeding during such 60-day period to preserve, protect and defend
their rights under the Loan Documents; or
(e) take any action (corporate or otherwise) authorizing, or in
furtherance of, any of the foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be in full force and effect or cease to be the
legally valid, binding and enforceable obligation of any Obligor party thereto;
the Borrower or any other Obligor shall, directly or indirectly, contest in any
manner the effectiveness, validity, binding nature or enforceability thereof; or
any Lien securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien, subject only to those exceptions expressly
permitted by such Loan Document, except to the extent any event referred to
above: (a) results from the failure of the Administrative Agent to maintain
possession of certificates representing securities pledged under any Pledge
Agreement or to file continuation statements under the Uniform Commercial Code
of any applicable jurisdiction or (b) is covered by a lender's title insurance
policy issued by a reputable, creditworthy title insurance company and the
relevant insurer promptly after the occurrence thereof shall have acknowledged
in writing that the same is covered by such title insurance policy.
SECTION 8.1.11. Subordinated Notes and Senior Subordinated High Yield
Notes. The subordination provisions relating to the Subordinated Notes or to the
Senior Subordinated Increasing Rate Note Purchase Agreement or, when issued, the
Senior Subordinated High Yield Notes (the "Subordination Provisions") shall fail
to be enforceable by the Lenders (which have not effectively waived the benefits
thereof) in accordance with the terms thereof, or the principal or interest on
any Loan, any Reimbursement Obligation or other monetary Obligations (including
obligations to pay fees, expenses and indemnity payments) shall fail to
constitute "Designated Senior Indebtedness" or similar term (as defined in the
Subordinated Notes or, when issued, the Senior Subordinated High Yield Notes).
SECTION 8.1.12. Redemption. Any event (other than the issuance of
Senior Subordinated High Yield Notes and the application of the proceeds thereof
in accordance with Section 3.1.1 and the payment of the Subordinated Notes
through the issuance of Exchange Notes (as defined therein)) shall occur which,
under the terms of any agreement or indenture relating to the
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Subordinated Notes or the Senior Subordinated High Yield Notes shall require the
Borrower or any of its Subsidiaries to purchase, redeem or otherwise acquire or
offer to purchase, redeem or otherwise acquire all or any portion of the
principal amount thereof; or the Borrower or any of its Subsidiaries shall for
any other reason purchase, redeem or otherwise acquire or offer to purchase,
redeem or otherwise acquire, or make any other payments in respect of the
principal amount of the Subordinated Notes or the Senior Subordinated High Yield
Notes.
SECTION 8.2. Action if Bankruptcy, etc. If any Event of Default
described in clauses (a) through (d) of Section 8.1.9 shall occur with respect
to the Borrower, the Commitments (if not theretofore terminated) shall
automatically terminate and the outstanding principal amount of all outstanding
Loans and all other Obligations shall automatically be and become immediately
due and payable, without notice or demand.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.9 with respect to the Borrower) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent, upon the
direction of the Required Lenders, shall by notice to the Borrower declare all
or any portion of the outstanding principal amount of the Loans and other
Obligations to be due and payable and/or declare the Commitments (if not
theretofore terminated) to be terminated, whereupon the full unpaid amount of
such Loans and other Obligations which shall be so declared due and payable
shall be and become immediately due and payable, without further notice, demand
or presentment and/or the Commitments shall terminate.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints Scotiabank as its
Administrative Agent and authorizes the Administrative Agent, subject to the
Borrower's consent, to appoint from time to time on behalf of all Lenders one or
more Co-Agents under and for purposes of each Loan Document. Each Lender
authorizes the Administrative Agent to act on behalf of such Lender under this
Agreement, the Notes and each other Loan Document and, in the absence of other
written instructions from the Required Lenders received from time to time by the
Administrative Agent (with respect to which the Administrative Agent agrees that
it will comply, except as otherwise provided in this Section or as otherwise
advised by counsel), to exercise such powers hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent by the terms
hereof and thereof, together with such powers as may be reasonably incidental
thereto. Each Lender hereby indemnifies (which indemnity shall survive any
termination of this Agreement) the Administrative Agent and the Syndication
Agent, ratably in accordance with their respective Term Loans outstanding and
Commitments (or, if no Term Loans or Commitments are at the time outstanding and
in effect, then ratably in accordance with the principal amount of Term Loans
held by such Lender, and their respective Commitments as in effect in each case
on the date of the termination of this Agreement), from and against any
and
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all liabilities, obligations, losses, damages, claims, costs or expenses of any
kind or nature whatsoever which may at any time be imposed on, incurred by, or
asserted against, the Administrative Agent or the Syndication Agent in any way
relating to or arising out of this Agreement, the Notes and any other Loan
Document, including reasonable attorneys' fees, and as to which the
Administrative Agent or the Syndication Agent are not reimbursed by the Borrower
or any other Obligor (and without limiting the obligation of the Borrower or any
other Obligor to do so); provided, however, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
claims, costs or expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted from the Administrative
Agent's or Syndication Agent's gross negligence or willful misconduct. The
Administrative Agent and Syndication Agent shall not be required to take any
action hereunder, under the Notes or under any other Loan Document, or to
prosecute or defend any suit in respect of this Agreement, the Notes or any
other Loan Document, unless it is indemnified hereunder to its satisfaction. If
any indemnity in favor of the Administrative Agent or the Syndication Agent
shall be or become, in the Administrative Agent's determination, inadequate, the
Administrative Agent and Syndication Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given. The Syndication Agent shall
not have any duties hereunder. The Syndication Agent shall not have any
liability to any Person arising out of its acting as, or being designated as,
Syndication Agent.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York time, on the day prior to a Borrowing that such Lender will
not make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If and to the extent that such Lender shall not have made such amount
available to the Administrative Agent, such Lender severally agrees and the
Borrower agrees to repay the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
the Administrative Agent made such amount available to the Borrower to the date
such amount is repaid to the Administrative Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. Neither the Administrative Agent or any
Co-Agent nor any of their respective directors, officers, employees or agents
shall be liable to any Lender for any action taken or omitted to be taken by it
under this Agreement or any other Loan Document, or in connection herewith or
therewith, except for its own willful misconduct or gross negligence, nor
responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of this Agreement or
any other Loan Document, nor for the creation, perfection or priority of any
Liens purported to be created by any of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency of any collateral
security, nor to make any inquiry respecting the performance by the Borrower of
its obligations hereunder or under any other Loan Document. Any such inquiry
which may be made by any Agent shall not obligate it to make any further inquiry
or to take any action. The
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Administrative Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent, certificate, statement or writing
which the Administrative Agent believes to be genuine and to have been presented
by a proper Person.
SECTION 9.4. Successor. Any Co-Agent may resign as such upon one
Business Day's notice to the Borrower and the Administrative Agent. The
Syndication Agent may resign at any time upon one Business Day's notice to the
Borrower and the Administrative Agent. The Administrative Agent may resign as
such at any time upon at least 30 days' prior notice to the Borrower and all
Lenders. If the Administrative Agent at any time shall resign, the Required
Lenders may, with the prior consent of the Borrower (which consent shall not be
unreasonably withheld), appoint another Lender as a successor Administrative
Agent which shall thereupon become the Administrative Agent hereunder. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any state thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of
(a) this Article IX shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative
Agent under this Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure to its
benefit.
SECTION 9.5. Credit Extensions by each Agent. Each Agent shall have the
same rights and powers with respect to (x) the Credit Extensions made by it or
any of its Affiliates, and (y) the Notes held by it or any of its Affiliates as
any other Lender and may exercise the same as if it were not an Agent. Each
Agent and its respective Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or
Affiliate of the Borrower as if such Agent were not an Agent hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrower, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of each
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Agent and each other Lender, and based on such other documents, information and
investigations as it shall deem appropriate at any time, continue to make its
own credit decisions as to exercising or not exercising from time to time any
rights and privileges available to it under this Agreement or any other Loan
Document.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from the Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement.
SECTION 9.8. The Co-Agents. Notwithstanding anything else to the
contrary contained in this Agreement or any other Loan Document, none of the
Co-Agents, in such capacity, shall have any rights, duties or responsibilities
under this Agreement or any other Loan Document, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against any of such Co-Agent in such capacity.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrower and the Required Lenders; provided, however, no
such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders or by the Required Lenders shall be effective
unless consented to by each Lender;
(b) modify this Section 10.1, or clause (a) of Section 10.10,
change the definition of "Required Lenders, increase any Commitment
Amount or the Percentage of any Lender, reduce any fees described in
Article III, release any Subsidiary Guarantor (except in connection
with any sale of the Capital Stock of such Subsidiary Guarantor in a
transaction permitted by the Loan Documents) from its obligations under
the Subsidiary Guaranty or all or substantially all of collateral
security (except in each case as otherwise specifically provided in a
Loan Document), change the application of proceeds from the sale of
collateral pursuant to the Loan Documents or extend any Commitment
Termination Date shall be made without the consent of each Lender
adversely affected thereby;
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(c) extend the due date for, or reduce the amount of, any
scheduled repayment or any prepayment of principal of or interest on or
fees payable in respect of any Loan (or reduce the principal amount of
or rate of interest on or fees payable in respect of any Loan) or any
Reimbursement Obligation (which shall in each case include the
conversion of all or any part of the Obligations into equity of any
Obligor) shall be made without the consent of the holder of the Note
evidencing such Loan, or, in the case of a Reimbursement Obligation,
the Issuer owed, and those Lenders participating in, such Reimbursement
Obligation;
(d) affect adversely the interests, rights or obligations of the
Administrative Agent (in its capacity as Administrative Agent), the
Issuer (in its capacity as Issuer), or the Swing Line Lender (in its
capacity as Swing Line Lender) unless consented to by the
Administrative Agent, the Issuer or the Swing Line Lender, as the case
may be; or
(e) have the effect (either immediately or at some later time) of
enabling the Borrower to satisfy a condition precedent to the making of
a Revolving Loan or the issuance of a Letter of Credit without the
consent of Lenders holding at least 51% of the aggregate outstanding
principal amount of the Revolving Loans or, if no Revolving Loans are
outstanding, at least 51% of the Revolving Loan Commitments.
No failure or delay on the part of the Administrative Agent, any Lender, the
Issuer or the holder of any Note in exercising any power or right under this
Agreement or any other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power or right.
No notice to or demand on the Borrower in any case shall entitle it to any
notice or demand in similar or other circumstances. No waiver or approval by the
Administrative Agent, the Issuer, any Lender or the holder of any Note under
this Agreement or any other Loan Document shall, except as may be otherwise
stated in such waiver or approval, be applicable to subsequent transactions. No
waiver or approval hereunder shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
SECTION 10.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth on Schedule III hereto or set forth in
the Lender Assignment Agreement or at such other address or facsimile number as
may be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed and
sent by pre-paid courier service, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when transmitted
(telephonic confirmation in the case of facsimile).
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to pay
on demand all reasonable expenses of the Administrative Agent (including the
reasonable fees and out-of-pocket expenses of one firm of counsel to the
Administrative Agent and of local or special
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expert counsel, if any, who may be retained by counsel to the Administrative
Agent) and the Syndication Agent (excluding fees and expenses of counsel) in
connection with
(a) the syndication of the Loans, the negotiation, preparation,
execution and delivery of this Agreement and of each other Loan
Document, including schedules and exhibits, and any amendments,
waivers, consents, supplements or other modifications to this Agreement
or any other Loan Document as may from time to time hereafter be
required, whether or not the transactions contemplated hereby are
consummated;
(b) the filing, recording, refiling or rerecording of each
Mortgage, each Pledge Agreement and each Security Agreement and/or any
Uniform Commercial Code financing statements relating thereto and all
amendments, supplements and modifications to any thereof and any and
all other documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms hereof or of
such Mortgage, Pledge Agreement or Security Agreement; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save the Administrative Agent, the
Syndication Agent, the Issuer and the Lenders harmless from all liability for,
any stamp or other similar taxes which may be payable in connection with the
execution or delivery of this Agreement, the Credit Extensions made hereunder,
or the issuance of the Notes and Letters of Credit or any other Loan Documents.
The Borrower also agrees to reimburse the Administrative Agent and each Lender
upon demand for all reasonable out-of-pocket expenses (including attorneys' fees
and legal expenses) incurred by the Administrative Agent, the Issuer or such
Lender in connection with (x) the negotiation of any restructuring or
"work-out", whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby indemnifies, exonerates and holds the Administrative Agent,
the Syndication Agent, the Issuer and each Lender and each of their respective
Affiliates, and each of their respective partners, officers, directors,
investment advisors, employees and agents, and each other Person controlling any
of the foregoing within the meaning of either Section 15 of the Securities Act
or Section 20 of the Securities Exchange Act of 1934, as amended (collectively,
the "Indemnified Parties"), free and harmless from and against any and all
actions, causes of action, suits, losses, costs, liabilities and damages, and
expenses actually incurred in connection therewith (irrespective of whether any
such Indemnified Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and disbursements
(collectively, the "Indemnified Liabilities"), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to
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(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension;
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties (including any
action brought by or on behalf of the Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to make
any Credit Extension);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not the Administrative Agent, the Syndication Agent,
the Issuer or such Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
the Borrower's or any of its Subsidiaries' compliance with or liability
under Environmental Law or the Release by the Borrower or any of its
Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof of
any Hazardous Material present on or under such property in a manner
giving rise to liability at or prior to the time the Borrower or such
Subsidiary owned or operated such property (including any losses,
liabilities, damages, injuries, costs, expenses or claims asserted or
arising under any Environmental Law), regardless of whether caused by,
or within the control of, the Borrower or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party which are determined by a court of competent
jurisdiction in a final proceeding to have resulted from the relevant
Indemnified Party's gross negligence or willful misconduct. The Borrower and its
permitted successors and assigns hereby waive, release and agree not to make any
claim, or bring any cost recovery action against, the Administrative Agent, the
Syndication Agent, the Issuer or any Lender or other Indemnified Party under
CERCLA or any state equivalent, or any similar law now existing or hereafter
enacted, except to the extent arising out of the gross negligence or willful
misconduct of such Indemnified Party. It is expressly understood and agreed that
to the extent that any of such Persons is strictly liable under any
Environmental Laws, the Borrower's obligation to such Persons under this
indemnity shall likewise be without regard to fault on the part of the Borrower
with respect to the violation or condition which results in liability of such
Person. If and to the extent that the foregoing undertaking may be unenforceable
for any reason, the Borrower hereby agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
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SECTION 10.5. Survival. The obligations of the Borrower and the
Administrative Agent, if any, under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4,
and the obligations of the Lenders under Sections 4.8 and 9.1, shall in each
case survive any termination of this Agreement, the payment in full of all
Obligations, the termination or expiration of all Letters of Credit and the
termination of all Commitments. The representations and warranties made by the
Borrower and each other Obligor in this Agreement and in each other Loan
Document shall survive the execution and delivery of this Agreement and each
such other Loan Document.
SECTION 10.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be executed by the Borrower, the Issuer and the Administrative Agent
and be deemed to be an original and all of which shall constitute together but
one and the same agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Borrower, the Issuer and each
Lender (or notice thereof satisfactory to the Administrative Agent) shall have
been received by the Administrative Agent and notice thereof shall have been
given by the Administrative Agent, the Issuer and the Borrower and each Lender.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement, the
Notes and the other Loan Documents constitute the entire understanding among the
parties hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.
SECTION 10.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to Section 10.11.
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SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, and sell participations in, its Loans
and Commitments to one or more other Persons, on a non pro rata basis, in
accordance with this Section 10.11.
SECTION 10.11.1. Assignments. Any Lender,
(a) with the written consent of the Administrative Agent (which
consent shall not be unreasonably withheld or delayed) and the Borrower
(which consent shall not be unreasonably delayed or withheld and (i) if
it relates to an assignment of Revolving Loans or Revolving Loan
Commitments to an Approved Fund or an Affiliate of a Lender, shall be
given so long as the Assignee is creditworthy in the reasonable
determination of the Borrower and (ii) shall not be required if a
Default or an Event of Default shall have occurred and be continuing)
may at any time assign and delegate to one or more commercial banks or
other financial institutions or funds or other investment vehicles that
invest in bank loans, and
(b) with notice to the Borrower and the Administrative Agent, but
without the consent of either the Borrower or the Administrative Agent,
may assign and delegate to any other Lender or, solely in the case of
Term Loans, any Approved Fund or any Affiliate of a Lender
(each Person described in either of the foregoing clauses as being the
Person to whom such assignment and delegation is to be made, being
hereinafter referred to as an "Assignee Lender"), all or any fraction
of such Lender's total Loans, participations in Letters of Credit and
Letter of Credit Outstandings with respect thereto and Commitments
(which assignment and delegation shall be, as among Revolving Loan
Commitments, Revolving Loans, participations in Letters of Credit and
Swing Line Loans and Term-A Loans, of a constant, and not a varying,
percentage) in a minimum aggregate amount of $1,000,000 (if such
assignment and delegation is to a then existing Lender or an Approved
Fund or any Affiliate of a Lender) and (ii) $5,000,000 (if such
assignment and delegation is to a Person not then a Lender, an Approved
Fund or an Affiliate of a Lender) or the then remaining amount of a
Lender's Loans and Commitments; provided, however, that any such
Assignee Lender will comply, if applicable, with the provisions
contained in Section 4.6 and the Borrower, each other Obligor and the
Administrative Agent shall be entitled to continue to deal solely and
directly with such Lender in connection with the interests so assigned
and delegated to an Assignee Lender until
(c) written notice of such assignment and delegation, together
with payment instructions, addresses and related information with
respect to such Assignee Lender, shall have been given to the Borrower
and the Administrative Agent by such Lender and such Assignee Lender;
(d) such Assignee Lender shall have executed and delivered to the
Borrower and the Administrative Agent a Lender Assignment Agreement,
and, if required as
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hereinabove provided, such Lender Assignment Agreement shall have been
accepted by the Administrative Agent and the Borrower; and
(e) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent receives and, if
applicable the Administrative Agent and the Borrower accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Within ten Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Agreement (and
if required, the Borrower has consented to the assignment contained therein),
the Borrower shall, if requested by the Assignee Lender or the Administrative
Agent, execute and deliver to the Administrative Agent (for delivery to the
relevant Assignee Lender) new Notes evidencing such Assignee Lender's assigned
Loans and Commitments and, if the assignor Lender has retained Loans and
Commitments hereunder, replacement Notes in the principal amount of the Loans
and Commitments retained by the assignor Lender hereunder (such Notes to be in
exchange for, but not in payment of, those Notes then held by such assignor
Lender). Each such Note shall be dated the date of the predecessor Notes. The
assignor Lender shall xxxx the predecessor Notes "exchanged" and deliver them to
the Borrower. Accrued interest on that part of the predecessor Notes evidenced
by the new Notes, and accrued fees, shall be paid as provided in the Lender
Assignment Agreement. Accrued interest on that part of the predecessor Notes
evidenced by the replacement Notes shall be paid to the assignor Lender. Accrued
interest and accrued fees shall be paid at the same time or times provided in
the predecessor Notes and in this Agreement. Such assignor Lender or such
Assignee Lender must also pay a processing fee to the Administrative Agent upon
delivery of any Lender Assignment Agreement in the amount of $3,500, unless such
assignment and delegation is by a Lender to its Affiliate or if such assignment
and delegation is by a Lender to the Federal Reserve Bank, as provided below.
Any attempted assignment and delegation not made in accordance with this Section
10.11.1 shall be null and void. Notwithstanding any other term of this Section
10.11.1, the agreement of the Swing Line Lender to provide the Swing Line Loan
Commitment shall not impair or otherwise restrict in any manner the ability of
the Swing Line Lender to make any assignment of its Loans or Commitments, it
being understood and agreed that the Swing Line Lender may terminate its Swing
Line Loan Commitment, to the extent such Swing Line Commitment would exceed its
Revolving Loan Commitment after giving effect to such assignment, in connection
with the making of any assignment. Nothing contained in this Section 10.11.1
shall prevent or prohibit (i) any Lender from creating a security interest in or
pledging all or any portion of its rights under and interest in this Agreement
and the Notes held by it in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System or U.S.
Treasury Regulation 31 C.F.R. Section 203.14, and such Federal Reserve Bank may
enforce such
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pledge or security interest in any manner permitted under applicable law, and
(ii) any Lender that is a fund or other investment vehicle that invests in bank
loans may, without the consent of the Administrative Agent or the Borrower,
pledge all or any part of its rights under and interest in this Agreement, the
other Loan Documents and the Notes to any trustee or to any other representative
of holders of obligations owed or securities issued by such fund or other
investment vehicle as security for such obligations or securities; provided that
any transfer to any Person upon the enforcement of such pledge or security
interest may only be made subject to this Section 10.11.1.
SECTION 10.11.2. Participations. Any Lender may at any time sell to one
or more commercial banks or other Persons (each of such commercial banks and
other Persons being herein called a "Participant") participating interests in
any of the Loans, Commitments, or other interests of such Lender hereunder;
provided, however, that
(a) no participation contemplated in this Section shall relieve
such Lender from its Commitments or its other obligations hereunder or
under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Borrower and each other Obligor and the Administrative
Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement and each of the other Loan Documents;
(d) no Participant shall be entitled to require such Lender to
take or refrain from taking any action hereunder or under any other
Loan Document, except that such Lender may agree with any Participant
that such Lender will not, without such Participant's consent, agree to
(i) any reduction in the interest rate or amount of fees that such
Participant is otherwise entitled to, (ii) a decrease in the principal
amount, or an extension of the final Stated Maturity Date, of any Loan
or Reimbursement Obligation in which such Participant has purchased a
participating interest or (iii) a release of all or substantially all
of the collateral security under the Loan Documents or all or
substantially all of the Subsidiary Guarantors under the Subsidiary
Guaranty, in each case except as otherwise specifically provided in a
Loan Document; and
(e) Any amount payable under Sections 4.3, 4.4, 4.5, 4.6, 10.3 and
10.4 shall be determined as if no participating interest had been sold.
SECTION 10.12. Other Transactions. Nothing contained herein shall
preclude the Administrative Agent, the Syndication Agent, the Issuer or any
other Lender from engaging in any transaction, in addition to those contemplated
by this Agreement or any other Loan Document, with the Borrower or any of its
Affiliates in which the Borrower or such Affiliate is not restricted hereby from
engaging with any other Person.
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SECTION 10.13. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY AGENT, THE
LENDERS OR THE BORROWER MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE
OF NEW YORK, NEW YORK COUNTY OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK. THE BORROWER AND EACH LENDER HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK, NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE. THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF NEW YORK. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MY HAVE OR HEREAFTER MAY
HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
SECTION 10.14. Waiver of Jury Trial. EACH AGENT, THE ISSUER, THE
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY AGENT, THE ISSUER, THE LENDERS OR
THE BORROWER. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENTS, THE ISSUER, THE LENDERS ENTERING INTO THIS
AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 10.15. Confidentiality. The Lenders shall hold all non-public
information obtained pursuant to or in connection with this Agreement or
obtained by such Lender based on a review of the books and records of the
Borrower or any of its Subsidiaries in accordance with their customary
procedures for handling confidential information of this nature, but each Lender
may make disclosure to the National Association of Insurance Commissioners, any
of its
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regulators or examiners, its and its Affiliates' directors, officers, employees
and agent, outside auditors, counsel and other professional advisors in
connection with this Agreement or as reasonably required by any potential bona
fide transferee, participant (including, with the consent of the Borrower, by
virtue of a total return swap) or assignee, or in connection with the exercise
of remedies under a Loan Document, or as requested by any governmental or
administrative agency or representative thereof or pursuant to any litigation or
legal process; provided, however, that
(a) prior to any such disclosure pursuant to this Section 10.15,
each Lender shall require any such bona fide transferee, participant
and assignee receiving a disclosure of non-public information to agree:
(i) to be bound by this Section 10.15; and
(ii) to require such Person to require any other Person to
whom such Person discloses such non-public information to be
similarly bound by this Section 10.15; and
(b) except as may be required by an order of a court of competent
jurisdiction and to the extent set forth therein, no Lender shall be
obligated or required to return any materials furnished by the Borrower
or any Subsidiary.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
NEW WORLD PASTA COMPANY
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
Address: 100 Crystal A Drive
Hershey, P.A. 17033
Telephone No.: 000 000-0000
Telecopy No.: 000 000-0000
Attention: Xx. Xxxxx Xxxxxxxx
THE BANK OF NOVA SCOTIA,
as Lead Arranger, Administrative Agent
and Letter of Credit Issuer
By:/s/ Xxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Relationship Manager
Address: Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: 000 000-0000
Telecopy No.: 212 225-5172
Attention: Xx. Xxxxxx Xxxxxxxx
Telephone No.: 000 000-0000
Telecopy No.: 000 000-0000
Attention: Xx. Xxxx Xxxxxxx
[CREDIT AGREEMENT]
108
000
XXXXXXX
XXX XXXX XX XXXX XXXXXX
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Relationship Manager
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By: /s/ Xxxxx X. X'Xxxxxxxxxx
------------------------------------------
Name: Xxxxx X. X'Xxxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: Head of Corporate Banking
Chicago
By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: First Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: First Vice President
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GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Authorized Signatory
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
KEY CORPORATE CAPITAL INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
NATIONSBANK, NA
By: /s/ Xxxxxx X. Xxxxx, Xx.
------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Managing Director
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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ALLSTATE LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatories
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatories
its Authorized Signatories
OSPREY INVESTMENTS PORTFOLIO
By: /s/ Xxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
KZH CypressTree - 1 LLC
By: /s/ Xxxxxx Xxxxx
------------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Agent
CypressTree Investment Fund, LLC
By: CypressTree Investment
Management Company, Inc.
its Managing Member
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
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North American Senior Floating Rate Fund
By: CypressTree Investment
Management Company, Inc.
as Portfolio Manager
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
TORONTO DOMINION (NEW YORK), INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxx Xxxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
FOOTHILL INCOME TRUST, L.P.
By: FIT-GP, LLC
its Managing General Partner
By: /s/ Xxxx Xxxxxx
------------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Member
FRANKLIN FLOATING RATE TRUST
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
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KZH WATERSIDE LLC
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
FLOATING RATE PORTFOLIO
By: INVESCO SENIOR SECURED
MANAGEMENT, INC.
By: /s/ Xxxx X. XxXxxxxx
------------------------------------------
Name: Xxx X. XxXxxxxx
Title: Authorized Signatory
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
THE MAINSTAY FUNDS, ON BEHALF OF ITS HIGH
YIELD CORPORATE BOND FUND SERIES
By: XxxXxx-Xxxxxxx Financial Corporation
its Investment Advisor
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
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XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar,
its General Partner
By: Oak Hill Securities MGP, Inc.
its General Partner
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
OCTAGON LOAN TRUST
By: OCTAGON CREDIT INVESTORS,
as Manager
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
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PILGRIM PRIME RATE TRUST
By: PILGRIM INVESTMENTS, INC. as
its Investment Manager
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxx, CFA
Title: Vice President
PPM AMERICA, INC., as attorney in fact, on
behalf of Xxxxxxx National Life Insurance
Company
By: /s/ Xxxxxxx DiRe
------------------------------------------
Name: Xxxxxxx DiRe
Title: Managing Director
KZH STERLING LLC
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
KZH SOLEIL - 2 LLC
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
CRESCENT/MACH I PARTNERS, L.P.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
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TRANSAMERICA LIFE INSURANCE AND ANNUITY
COMPANY
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Investment Officer
TRAVELERS CORPORATE LOAN FUND INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Second Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Second Vice President
116
