--------------------------------------------------------------------------------
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$600,000,000
CREDIT AGREEMENT
DATED AS OF JULY 29, 1996
AMONG
XXXX FOOD COMPANY, INC.,
XXXX FRESH FRUIT INTERNATIONAL, LIMITED
AND
SOLVEST, LTD.,
AS BORROWERS,
THE LENDERS LISTED HEREIN,
AS LENDERS,
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION,
AS SYNDICATION AGENT,
CITIBANK, N.A.,
AS DOCUMENTATION AGENT,
AND
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
XXXX FOOD COMPANY, INC.
XXXX FRESH FRUIT INTERNATIONAL, LIMITED
SOLVEST, LTD.
CREDIT AGREEMENT
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . 1
1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement. . . . . . . . . . . . . . . . . 16
1.3 Other Definitional Provisions . . . . . . . . . . . . . . . . 16
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS. . . . . . . 17
2.1 Pro Rata Loans. . . . . . . . . . . . . . . . . . . . . . . . 17
2.2 Bid Rate Loans. . . . . . . . . . . . . . . . . . . . . . . . 21
2.3 Swing Line Loans. . . . . . . . . . . . . . . . . . . . . . . 24
2.4 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . 26
2.5 Loan Accounts and Register. . . . . . . . . . . . . . . . . . 28
2.6 Interest on the Loans . . . . . . . . . . . . . . . . . . . . 29
2.7 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.8 Prepayments and Reductions in Commitments; General Provisions
Regarding Payments. . . . . . . . . . . . . . . . . . . . . . 34
2.9 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . 36
2.10 Special Provisions Governing Eurodollar Rate Loans. . . . . . 37
2.11 Certain Tax Provisions. . . . . . . . . . . . . . . . . . . . 43
SECTION 3. CONDITIONS TO LOANS . . . . . . . . . . . . . . . . . . 45
3.1 Conditions to Initial Loans . . . . . . . . . . . . . . . . . 45
3.2 Additional Conditions . . . . . . . . . . . . . . . . . . . . 47
SECTION 4. COMPANY'S REPRESENTATIONS AND WARRANTIES. . . . . . . . 48
4.1 Organization, Powers, Qualification, Good Standing and
Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . 48
4.2 Authorization of Borrowing, etc . . . . . . . . . . . . . . . 48
4.3 Financial Condition . . . . . . . . . . . . . . . . . . . . . 50
4.4 No Material Adverse Change. . . . . . . . . . . . . . . . . . 50
4.5 Litigation; Adverse Facts . . . . . . . . . . . . . . . . . . 50
4.6 Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . 50
4.7 Governmental Regulation . . . . . . . . . . . . . . . . . . . 51
4.8 Securities Activities . . . . . . . . . . . . . . . . . . . . 51
4.9 Margin Stock. . . . . . . . . . . . . . . . . . . . . . . . . 51
4.10 Employee Benefit Plans. . . . . . . . . . . . . . . . . 51
4.11 Environmental Protection. . . . . . . . . . . . . . . . 52
SECTION 5. COMPANY'S AFFIRMATIVE COVENANTS . . . . . . . . . . . . 52
5.1 Financial Statements and Other Reports. . . . . . . . . . . . 53
5.2 Corporate Existence, etc. . . . . . . . . . . . . . . . . . . 54
5.3 Payment of Taxes and Claims; Tax Consolidation. . . . . . . . 55
5.4 Maintenance of Properties; Insurance. . . . . . . . . . . . . 55
(i)
PAGE
5.5 Compliance with Laws, etc . . . . . . . . . . . . . . . . . . 55
5.6 Hazardous Materials . . . . . . . . . . . . . . . . . . . . . 56
5.7 Margin Stock. . . . . . . . . . . . . . . . . . . . . . . . . 56
5.8 Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 6. COMPANY'S NEGATIVE COVENANTS. . . . . . . . . . . . . . 56
6.1 Maximum Leverage Ratio. . . . . . . . . . . . . . . . . . . . 56
6.2 Minimum Fixed Charge Coverage Ratio . . . . . . . . . . . . . 57
6.3 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.4 Disposition of Assets . . . . . . . . . . . . . . . . . . . . 58
SECTION 7. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . 58
7.1 Failure to Make Payments When Due . . . . . . . . . . . . . . 58
7.2 Default in Other Agreements . . . . . . . . . . . . . . . . . 59
7.3 Breach of Certain Covenants . . . . . . . . . . . . . . . . . 59
7.4 Breach of Warranty. . . . . . . . . . . . . . . . . . . . . . 59
7.5 Other Defaults Under Agreement. . . . . . . . . . . . . . . . 59
7.6 Involuntary Bankruptcy; Appointment of Receiver, etc. . . . . 60
7.7 Voluntary Bankruptcy; Appointment of Receiver, etc. . . . . . 60
7.8 Judgments and Attachments . . . . . . . . . . . . . . . . . . 61
7.9 Unfunded ERISA Liabilities. . . . . . . . . . . . . . . . . . 61
7.10 Change in Control . . . . . . . . . . . . . . . . . . . 61
7.11 Invalidity of Company Guaranty. . . . . . . . . . . . . 62
SECTION 8. ADMINISTRATIVE AGENT. . . . . . . . . . . . . . . . . . 62
8.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . 62
8.2 Powers; General Immunity. . . . . . . . . . . . . . . . . . . 63
8.3 Representations and Warranties; No Responsibility For
Appraisal of Creditworthiness . . . . . . . . . . . . . . . . 64
8.4 Right to Indemnity. . . . . . . . . . . . . . . . . . . . . . 65
8.5 Registered Persons Treated as Owners. . . . . . . . . . . . . 65
8.6 Successor Administrative Agent. . . . . . . . . . . . . . . . 65
8.7 Documentation Agent and Syndication Agent . . . . . . . . . . 66
SECTION 9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 66
9.1 Securities Representation . . . . . . . . . . . . . . . . . . 66
9.2 Assignments and Participations in Loans . . . . . . . . . . . 66
9.3 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . 69
9.4 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . 69
9.5 Ratable Sharing . . . . . . . . . . . . . . . . . . . . . . . 71
9.6 Amendments and Waivers. . . . . . . . . . . . . . . . . . . . 71
9.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
9.8 Survival of Representations and Warranties. . . . . . . . . . 73
9.9 Failure or Indulgence Not Waiver; Remedies Cumulative . . . . 73
9.10 Entire Agreement. . . . . . . . . . . . . . . . . . . . 73
9.11 Severability. . . . . . . . . . . . . . . . . . . . . . 73
9.12 Obligations Several; Independent Nature of Lenders'
Rights. . . . . . . . . . . . . . . . . . . . . . . . . 73
(ii)
PAGE
9.13 Headings. . . . . . . . . . . . . . . . . . . . . . . . 74
9.14 Applicable Law. . . . . . . . . . . . . . . . . . . . . 74
9.15 Successors and Assigns. . . . . . . . . . . . . . . . . 74
9.16 Consent to Jurisdiction and Service of Process. . . . . 74
9.17 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . 74
9.18 Confidentiality . . . . . . . . . . . . . . . . . . . . 75
9.19 Counterparts; Effectiveness . . . . . . . . . . . . . . 75
Signature pages . . . . . . . . . . . . . . . . . . . . . . . S-1
(iii)
EXHIBITS
I FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
II FORM OF COMPLIANCE CERTIFICATE
III FORM OF NOTICE OF PRO RATA BORROWING
IV FORM OF NOTICE OF BID RATE BORROWING
V FORM OF NOTICE OF SWING LINE BORROWING
VI FORM OF NOTICE OF CONVERSION/CONTINUATION
VII FORM OF NOTICE OF REQUEST FOR EXTENSION
VIII FORM OF COMPANY GUARANTY
IX FORM OF OPINION OF O'MELVENY & XXXXX LLP
X FORM OF OPINION OF GOODSILL XXXXXXXX XXXXX & XXXXXX
(iv)
XXXX FOOD COMPANY, INC.
XXXX FRESH FRUIT INTERNATIONAL, LIMITED
SOLVEST, LTD.
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of July 29, 1996 and entered into
by and among XXXX FOOD COMPANY, INC., a Hawaii corporation ("COMPANY"), XXXX
FRESH FRUIT INTERNATIONAL, LIMITED, a Liberian corporation ("DFFI"), and
SOLVEST, LTD., a Bermuda corporation ("SOLVEST"; Company, DFFI and Solvest each
individually referred to herein as a "BORROWER" and collectively as
"BORROWERS"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF
(each individually referred to herein as a "LENDER" and collectively as
"LENDERS"), THE CHASE MANHATTAN BANK ("CHASE"), as administrative agent for
Lenders (in such capacity, "ADMINISTRATIVE AGENT"), BANK OF AMERICA NATIONAL
TRUST & SAVINGS ASSOCIATION, as syndication agent for Lenders (in such capacity,
"SYNDICATION AGENT"), and CITIBANK, N.A., as documentation agent for Lenders (in
such capacity, "DOCUMENTATION AGENT"; together with Administrative Agent and
Syndication Agent, "AGENTS").
R E C I T A L S
WHEREAS, Borrowers desire that Lenders extend certain credit
facilities to Borrowers for general corporate purposes; and
WHEREAS, Lenders desire to extend such credit facilities to
Borrowers on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Borrowers, Lenders and
Agents agree as follows:
SECTION1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the following
meanings:
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate
Determination Date, the rate obtained by dividing (i)the Eurodollar Rate for
such Interest Rate Determination Date by (ii) a percentage equal to 100% minus
the arithmetic average (rounded upward to the nearest 1/100 of one percent) of
the
1
actual rate of all reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves) in respect of
"Eurocurrency liabilities" as defined in Regulation D (or any successor category
of liabilities under Regulation D) applicable to each Reference Bank on such
Interest Rate Determination Date.
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in
the introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 8.6.
"ADMINISTRATIVE AGENT'S ACCOUNT" means Administrative Agent's
account no. 323-504140 (re: Xxxx Food Company, Inc.) maintained at the
office of Chase at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or such other
account or address as Administrative Agent shall specify in writing to Company
and Lenders).
"AFFECTED LENDER" has the meaning assigned to that term in
subsections 2.6G, 2.10 and 2.11A.
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"AGENTS" has the meaning assigned to that term in the introduction
to this Agreement.
"AGREEMENT" means this Credit Agreement dated as of July 29, 1996,
together with all Schedules referred to herein and all Exhibits hereto, as it
may be amended, supplemented or otherwise modified from time to time.
"APPLICABLE BORROWER" means (i) with respect to any Loan requested
to be made hereunder but not yet made, the Borrower requesting such Loan, and
(ii) with respect to any Loan made hereunder, the Borrower to which such Loan is
made.
"APPLICABLE EURODOLLAR RATE MARGIN" means, on any date, the
applicable percentage set forth below based upon the Senior Unsecured Debt
Ratings applicable on such date:
2
Senior Unsecured Debt Applicable
Eurodollar
RATING CATEGORY RATE MARGIN
--------------- -----------------------
Category 1 0.20%
BBB or higher by S&P
Baa2 or higher by Xxxxx'x
Category 2 0.25%
BBB- by S&P
Baa3 by Xxxxx'x
Category 3 0.40%
BB+ or lower by S&P
Ba1 or lower by Xxxxx'x
For purposes of the foregoing, (i) if the Senior Unsecured Debt Ratings
established or deemed to have been established by Xxxxx'x and S&P shall fall
within different Categories, the Applicable Eurodollar Rate Margin shall be
determined by reference to the superior (or numerically lowest) Category,
(ii) if any Senior Unsecured Debt Rating established or deemed to have been
established by Xxxxx'x or S&P shall be changed (other than as a result of a
change in the rating system of either Xxxxx'x or S&P), such change shall be
effective as of the date on which such change is first announced by the
rating agency making such change, and (iii) if either Xxxxx'x or S&P shall
not have in effect a Senior Unsecured Debt Rating (other than because such
rating agency shall no longer be in the business of rating corporate debt
obligations), then such rating agency will be deemed to have established a
Senior Unsecured Debt Rating in Category 3. Each change in the Applicable
Eurodollar Rate Margin shall apply, during the period commencing on the
effective date of such change and ending on the date immediately preceding
the effective date of the next such change, to all Eurodollar Rate Loans that
are outstanding at any time during such period. If the rating system of
either Xxxxx'x or S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, Company and
Lenders shall negotiate in good faith to amend the references to specific
Senior Unsecured Debt Ratings in this definition to reflect such changed
rating system or the non-availability of Senior Unsecured Debt Ratings from
such rating agency.
"APPLICABLE FACILITY FEE PERCENTAGE" means, on any date, the
applicable percentage set forth below based upon the Senior Unsecured Debt
Ratings applicable on such date:
3
Senior Unsecured Debt Applicable
Facility
RATING CATEGORY FEE PERCENTAGE
Category 1 0.10%
BBB or higher by S&P
Baa2 or higher by Xxxxx'x
Category 2 0.11%
BBB- by S&P
Baa3 by Xxxxx'x
Category 3 0.15%
BB+ or lower by S&P
Ba1 or lower by Xxxxx'x
For purposes of the foregoing, (i) if the Senior Unsecured Debt Ratings
established or deemed to have been established by Xxxxx'x and S&P shall fall
within different Categories, the Applicable Facility Fee Percentage shall be
determined by reference to the superior (or numerically lowest) Category,
(ii) if any Senior Unsecured Debt Rating established or deemed to have been
established by Xxxxx'x or S&P shall be changed (other than as a result of a
change in the rating system of either Xxxxx'x or S&P), such change shall be
effective as of the date on which such change is first announced by the
rating agency making such change, and (iii) if either Xxxxx'x or S&P shall
not have in effect a Senior Unsecured Debt Rating (other than because such
rating agency shall no longer be in the business of rating corporate debt
obligations), then such rating agency will be deemed to have established a
Senior Unsecured Debt Rating in Category 3. Each change in the Applicable
Facility Fee Percentage shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding
the effective date of the next such change. If the rating system of either
Xxxxx'x or S&P shall change, or if either such rating agency shall cease to
be in the business of rating corporate debt obligations, Company and Lenders
shall negotiate in good faith to amend the references to specific Senior
Unsecured Debt Ratings in this definition to reflect such changed rating
system or the non-availability of Senior Unsecured Debt Ratings from such
rating agency.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and
Acceptance Agreement entered into by a Lender and an Eligible Assignee, and
accepted by Administrative Agent, in substantially the form of EXHIBIT I annexed
hereto.
"BANKRUPTCYCODE" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
4
"BASE RATE" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at all
times be equal to the highest of:
(a) the rate of interest announced publicly by Chase in
New York, New York, from time to time, as Chase's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (A)1/2 of
one percent per annum plus (B) the rate obtained by dividing (x) the
latest three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of deposit of
major United States money market banks (such three-week moving average
being determined weekly on each Monday or, if such day is not a Business
Day, on the next succeeding Business Day, for the three-week period ending
on the previous Friday by Chase on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by Chase
from three New York certificate of deposit dealers of recognized standing
selected by Chase) by (y) a percentage equal to 100% minus the average of
the daily percentages specified during such three-week period by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the actual reserve requirement (including, without
limitation, any marginal, emergency, supplemental, special or other
reserve requirement) for Chase with respect to liabilities consisting of
or including (among other liabilities) three-month Dollar non-personal
time deposits in the United States, PLUS (C) the average during such
three-week period of the daily net annual assessment rates estimated by
Chase for determining the then current annual assessment payable by Chase
to the Federal Deposit Insurance Corporation (or any successor) for
insuring Dollar deposits in the United States; or
(c) 1/2 of one percent per annum above the Federal Funds
Rate.
"BASE RATE LOANS" means Pro Rata Loans and Swing Line Loans
bearing interest at rates determined by reference to the Base Rate as provided
in subsection 2.6.
"BID RATE LOANS" means one or more of the Fixed Rate Bid Loans or
the Reference Rate Bid Loans made under the auction bidding procedure described
in subsection 2.2, or a combination thereof.
5
"BID RATE OFFER" has the meaning set forth in subsection 2.2A(ii).
"BORROWER" and "BORROWERS" have the meanings assigned to those
terms in the introduction to this Agreement.
"BUSINESS DAY" means (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of New York or the State of California
or is a day on which banking institutions located in either such state are
authorized or required by law or other governmental action to close, and
(ii) with respect to all notices, determinations, fundings and payments with
respect to Eurodollar Rate Loans, any day that is a Business Day described in
clause (i) above and that is also a day for trading by and between banks in
Dollar deposits in the New York City interbank Eurodollar market.
"CASH" means money, currency or a credit balance in a Deposit
Account.
"CHASE" means The Chase Manhattan Bank.
"CLOSING DATE" means the later of (i) the date of execution and
delivery of this Agreement by Lenders, Agents and Borrowers, and (ii) the date
on which all conditions set forth in subsection 3.1 hereof have been satisfied
or waived.
"COMMITMENT TERMINATION DATE" means (i)the fifth anniversary of
the Closing Date, or such later date as shall be determined from time to time
pursuant to subsection 2.1E, or (ii) such earlier date on which all of the Pro
Rata Commitments have been reduced to zero.
"COMPANY" has the meaning assigned to that term in the
introduction to this Agreement.
"COMPANY GUARANTY" means the Guaranty executed and delivered by
Company on the Closing Date, substantially in the form of EXHIBIT VIII annexed
hereto, as such Guaranty may thereafter be amended, supplemented or otherwise
modified from time to time.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the
form of EXHIBIT II annexed hereto.
"CONSOLIDATED ADJUSTED OPERATING INCOME" means, for any period,
the sum of the amounts for such period of (i) the operating income (or loss)
of Company and its Subsidiaries, (ii) depreciation expense, (iii)
amortization expense, and (iv) other non-cash items, in each case determined
on a consolidated basis for Company and its Subsidiaries in conformity
6
with GAAP and, in the case of clauses (ii) through (iv), deducted in determining
consolidated operating income.
"CONSOLIDATED NET DEBT" means, at any date of determination, the
remainder on such date of (i) the total debt of Company and its Subsidiaries
on a consolidated basis, as set forth on Company's consolidated balance sheet
in conformity with GAAP LESS (ii)the Cash and Short-Term Investments of
Company and its Subsidiaries on a consolidated basis calculated in conformity
with GAAP.
"CONSOLIDATED NET INTEREST EXPENSE" means, for any period, the
remainder of (i) total interest expense, whether paid or accrued as
liabilities, of Company and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP LESS (ii) total interest income,
whether paid or accrued, received or receivable by Company and its
Subsidiaries from any source (other than (x) from any Subsidiary of Company
or (y) in the case of accrued but unpaid interest (i) from any debtor in a
case under the Bankruptcy Code or any similar law applicable to debtors
located outside the United States or (ii) that is more than 180 days past due
regardless of the source) for such period, determined on a consolidated basis
in accordance with GAAP.
"CONSOLIDATED NET WORTH" means, as at any date of determination,
the sum of the capital stock and additional paid-in capital plus retained
earnings (or minus accumulated deficits) of Company and its Subsidiaries on a
consolidated basis determined in conformity with GAAP; PROVIDED that cumulative
foreign currency translation adjustments reported from and after December 30,
1995 shall be excluded.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any (i) indenture, mortgage, deed of trust, credit agreement or
note purchase agreement or other agreement or instrument, in each case with
respect to such Person's indebtedness for borrowed money or (ii) material
contract, undertaking, agreement or other instrument not described in clause
(i) of this definition to which that Person is a party.
"CROSS DEFAULT" means the breach or default by Company or any of
its Subsidiaries with respect to any term of any evidence of indebtedness for
borrowed money of Company or any such Subsidiary in an amount exceeding
$25,000,000 in the aggregate or any loan agreement, mortgage, indenture or other
agreement relating to such indebtedness (the "DEFAULTED DEBT"), if the effect of
such breach or default is to permit (other than as a result of an immaterial
breach or default) the holder or holders of such indebtedness (or a trustee on
behalf of such holder or holders) to cause the Defaulted Debt to become or be
declared due and payable prior to its stated maturity or the stated maturity of
any underlying obligation, as the case may be;
7
PROVIDED, HOWEVER, that in the event that the non-payment, breach or default of
the Defaulted Debt described herein is cured or waived by the holders of the
Defaulted Debt or if such Defaulted Debt is repaid in full (other than with the
proceeds of Loans), such non-payment, breach or default shall not constitute a
Cross Default hereunder.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization.
"DFFI" has the meaning assigned to that term in the introduction
to this Agreement.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"ELIGIBLE ASSIGNEE" means either (i) any Lender listed on the
signature pages of this Agreement or any Affiliate of any Lender PROVIDED
such Affiliate is primarily engaged in the business of commercial lending or
(ii) any other financial institution that is approved by Administrative
Agent, which approval shall not be unreasonably withheld, and by Company in
its sole discretion; PROVIDED, HOWEVER, that neither Company nor any
Affiliate of Company shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means an "employee benefit plan," as
defined in Section 3(3) of ERISA (other than a Multiemployer Plan), of which
the Company or any of its ERISA Affiliates is the "plan sponsor," as defined
in Section 3(16)(B) of ERISA, or to which the Company or any of its ERISA
Affiliates contributes.
"ENVIRONMENTAL LAWS" means all federal, state and local
environmental, health or safety laws, ordinances, regulations, rules, statutes,
orders and decrees (including, but not limited to, those dealing with the use,
generation, treatment, storage, disposal or transportation of Hazardous
Materials), as the same may be in effect from time to time, and all foreign
equivalents thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
"ERISA AFFILIATE", as applied to any Person, means (i) any
corporation which is a member of a controlled group of corporations within
the meaning of Section 414(b) of the Internal Revenue Code of which that
Person is a member; (ii) any trade or business (whether or not incorporated)
which is a member of a group of trades or businesses under common control
within the meaning of Section 414(c) of the Internal Revenue Code of which
that Person is a member; and (iii) any member of an affiliated
8
service group within the meaning of Section 414(m) or (o) of the Internal
Revenue Code of which that Person, any corporation described in clause (i)
above or any trade or business described in clause (ii) above is a member.
"EURODOLLAR RATE" means, for any Interest Rate Determination Date
with respect to an Interest Period for Eurodollar Rate Loans, the arithmetic
average (rounded upward to the next highest 1/100 of 1%) of the rates per annum
at which deposits in Dollars in amounts comparable to the Eurodollar Rate Loan
of each Reference Bank (or an Affiliate of such Reference Bank) comprising part
of such Loans and with a maturity comparable to such Interest Period, are
offered by such Reference Bank to first class banks in the international
interbank Eurodollar market at 10:00 a.m. (New York City time) on such Interest
Rate Determination Date.
"EURODOLLAR RATE LOANS" means Pro Rata Loans bearing interest at
rates determined by reference to the Adjusted Eurodollar Rate, as provided in
subsection 2.6.
"EURODOLLAR RATE TAXES" has the meaning assigned to such term in
subsection 2.10D.
"EVENT OF DEFAULT" means each of the events set forth in Section 7.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXISTING CREDIT AGREEMENT" means that certain Credit Agreement
dated as of May10, 1994, among Company, as Borrower, Citicorp USA, Inc., as
Agent, and the Lenders described therein, as amended on or before the Closing
Date.
"FACILITY FEE" has the meaning set forth in subsection 2.7A.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; PROVIDED THAT (i)if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (ii)if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate quoted to
Administrative Agent by three Federal funds brokers of recognized standing.
9
"FISCAL QUARTER" means a fiscal quarter of Company and its
Subsidiaries.
"FISCAL YEAR" means the fiscal year of Company and its
Subsidiaries.
"FIXED RATE BID LOAN" has the meaning set forth in subsection
2.2A(i).
"FOOD BUSINESS ASSETS" means the assets of Company and its
Subsidiaries constituting the food business of Company and its Subsidiaries.
"FUNDING DATE" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, generally accepted accounting principles
set forth in opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination; PROVIDED that for purposes of the
calculations made pursuant to subsections 6.1 and 6.2 only, GAAP shall mean such
principles as in effect on December 30, 1995.
"HAZARDOUS MATERIALS" means any hazardous, toxic or dangerous
wastes, pollutants, materials or substances including, without limitation,
friable asbestos, PCBs, petroleum products and by-products, substances defined
in or listed as "hazardous materials," "hazardous substances" or "toxic
substances" or similarly identified in or pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as now or
hereafter amended, 42 U.S.C. Section 9601, ET SEQ. and 42 U.S.C. Section 1101 ET
SEQ.; "hazardous materials" identified in or pursuant to the Hazardous Materials
Transportation Act, as now or hereafter amended, 49 U.S.C. Section 1801, ET
SEQ.; "hazardous wastes" identified in or pursuant to the Resource Conservation
and Recovery Act, as now or hereafter amended, 42 U.S.C. Section 6901, ET SEQ.;
any chemical substances or mixture regulated under the Toxic Substances Control
Act of 1976, as now or hereafter amended, 15 U.S.C. Section 2601 ET SEQ.; any
"toxic pollutant" under the Clean Water Act, as now or hereafter amended, 33
U.S.C. Section 1251 ET SEQ.; any hazardous air pollutant under the Clear Air
Act, as now or hereafter amended, 42 U.S.C. Section 7401 ET SEQ.; and any
hazardous, toxic or dangerous material, substance or pollutant now or hereafter
designated or regulated under any Environmental Laws.
"INDEMNITEE" has the meaning assigned to that term in subsection
9.4.
10
"INTEREST PAYMENT DATE" has the meaning assigned to that term in
subsection 2.6C.
"INTEREST PERIOD" means any interest period applicable to a Pro
Rata Loan (other than a Base Rate Loan except as otherwise provided in
subsection 2.10B) as determined pursuant to subsection 2.6B.
"INTEREST RATE DETERMINATION DATE" means each date for calculating
the Adjusted Eurodollar Rate for purposes of determining the interest rate in
respect of an Interest Period for a Pro Rata Loan that is a Eurodollar Rate
Loan. The Interest Rate Determination Date shall be the second Business Day
prior to the first day of such Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter.
"LENDER" and "LENDERS" means the Swing Line Lender and the persons
identified as "Lenders" and listed on the signature pages of this Agreement,
together with their successors and permitted assigns pursuant to subsection 9.2.
"LIEN" means any mortgage, pledge, lien, security interest or
similar encumbrance or any other type of preferential arrangement for the
benefit of the holders of indebtedness for borrowed money that has the practical
effect of a mortgage, pledge, lien or security interest.
"LOAN" or "LOANS" means one or more of the Pro Rata Loans, the
Swing Line Loans or the Bid Rate Loans, or a combination thereof.
"LOAN ACCOUNT" has the meaning set forth in subsection 2.5A.
"MARGIN STOCK" has the meaning assigned to that term in Regulation
U or Regulation G of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect
upon the business, operations, properties, assets or condition (financial or
otherwise) of Company and its Subsidiaries taken as a whole, or (ii) a
material adverse effect on the ability of Company to pay the Obligations in
full when due under this Agreement.
"MATERIAL SUBSIDIARY" means (i) DFFI, (ii) Solvest, and (iii) any
other Subsidiary of Company identified as a "Material Subsidiary" on the most
recent report on Form 10-K filed by Company with the Securities and Exchange
Commission.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
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"MULTIEMPLOYER PLAN" means a "multiemployer plan", as defined in
Section 3(37) of ERISA, to which Company or any of its ERISA Affiliates is
contributing, or ever has contributed, or to which Company or any of its ERISA
Affiliates has, or ever has had, an obligation to contribute; except that
Multiemployer Plan shall not include any plan to which neither the Company nor
any ERISA Affiliate is currently obligated to contribute and for which the full
amount of any withdrawal liability has been paid.
"NOTICE OF BID RATE BORROWING" means a notice substantially in the
form of EXHIBIT IV with respect to a proposed borrowing of a Bid Rate Loan.
"NOTICE OF BORROWING" means a Notice of Pro Rata Borrowing, a
Notice of Swing Line Borrowing or a Notice of Bid Rate Borrowing, as the case
may be.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially
in the form of EXHIBIT VI with respect to a proposed conversion or continuation.
"NOTICE OF REQUEST FOR EXTENSION" means a notice substantially in
the form of EXHIBIT VII with respect to a proposed extension of the Commitment
Termination Date.
"NOTICE OF PRO RATA BORROWING" means a notice substantially in the
form of EXHIBIT III with respect to a proposed borrowing of a Pro Rata Loan.
"NOTICE OF SWING LINE BORROWING" means a notice substantially in
the form of EXHIBIT V with respect to a proposed borrowing of a Swing Line Loan.
"OBLIGATIONS" means all obligations of every nature of Borrowers
from time to time owed to Agents, Lenders or any of them under this Agreement or
the Company Guaranty, whether for principal, interest, fees, expenses,
indemnification or other amounts due or to become due.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate executed on behalf of such Person by a Responsible Officer of such
Person.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
12
"PERMITTED ENCUMBRANCES" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by subsection
5.3;
(ii) statutory Liens of landlords and depositary institutions
and Liens of carriers, warehousemen, mechanics and materialmen and other
Liens imposed by law incurred in the ordinary course of business for sums
not yet delinquent or being contested in good faith, if such reserve or
other appropriate provision, if any, as shall be required by GAAP shall
have been made therefor;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(iv) any attachment or judgment Lien not constituting an Event
of Default under subsection 7.8;
(v) leases or subleases granted to others not interfering in
any material respect with the ordinary conduct of the business of Company
or any of its Subsidiaries;
(vi) easements, rights-of-way, zoning and similar restrictions,
minor defects, encroachments or irregularities in title and other similar
charges or encumbrances not interfering in any material respect with the
ordinary conduct of the business of Company;
(vii) any interest or title of a lessor or sublessor under any
lease not prohibited by this Agreement (including any Lien granted by
such lessor or sublessor);
(viii) Liens arising from filing UCC financing statements relating
solely to leases not prohibited by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection with
the importation of goods; and
(x) other Liens incurred in the ordinary course of business of
Company and its Subsidiaries consistent with
13
past practices as of the Closing Date for obligations not constituting
debt for borrowed money, which obligations are not yet delinquent or are
being contested in good faith and for which adequate reserves have been
provided by Company or the applicable Subsidiary.
"PERSON" means and includes natural persons, corporations, limited
liability companies, limited partnerships, general partnerships, joint stock
companies, Joint Ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivisions thereof.
"POTENTIAL EVENT OF DEFAULT" means a condition or event which,
after notice or lapse of time or both, would constitute an Event of Default if
that condition or event were not cured or removed within any applicable grace or
cure period.
"PRO RATA COMMITMENT" has the meaning set forth in subsection
2.1A, and "PRO RATA COMMITMENTS" means such commitments of all Lenders in the
aggregate.
"PRO RATA LOANS" means the Loans made pursuant to subsection 2.1A.
Pro Rata Loans may be Base Rate Loans and/or Eurodollar Rate Loans. Pro Rata
Loans do not include any Bid Rate Loans or Swing Line Loans.
"PRO RATA SHARE" means, with respect to a particular Lender, (i)
prior to the Commitment Termination Date, the percentage set forth under such
Lender's name on the applicable signature page hereof or set forth in the
Applicable Assignment and Acceptance Agreement, as the case may be, as such
percentage may be adjusted from time to time pursuant to subsection 9.2, and
(ii) on and after the Commitment Termination Date, a percentage equal to a
fraction the numerator of which shall be the aggregate principal amount
outstanding of all Loans made by such Lender hereunder and the denominator of
which shall be the aggregate principal amount outstanding of all Loans made by
all Lenders hereunder.
"REFERENCE RATE BID LOAN" has the meaning set forth in subsection
2.2A(i).
"REFERENCE BANKS" means Chase, Citibank, N.A. and Bank of America
National Trust and Savings Association.
"REFUNDED SWING LINE LOANS" has the meaning set forth in
subsection 2.3C.
"REGISTER" has the meaning assigned to that term in subsection
2.5B.
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"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REQUISITE LENDERS" means Lenders having at least 51% of the Total
Pro Rata Commitments outstanding, or, if the Total Pro Rata Commitments have
been terminated, Lenders having at least 51% of the aggregate unpaid principal
amount of the Loans outstanding.
"RESPONSIBLE OFFICER" means, with respect to any Person, the Chief
Executive Officer, the Chief Financial Officer, an Executive Vice President, the
Treasurer or the Assistant Treasurer of such Person.
"S&P" means Standard & Poor's Ratings Group.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"SENIOR UNSECURED DEBT RATING" means, at any time of
determination, the rating currently assigned by Moody's or S&P, as applicable,
to the outstanding publicly-held long-term senior unsecured debt securities of
Company, or, if no such debt securities are outstanding at such time, the
rating, if any, that would be so assigned by Moody's or S&P, as applicable, if
any such debt securities were outstanding at such time, as evidenced by a formal
rating letter issued to Company by such rating agency and delivered by Company
(in the form of an original or a copy thereof) to Administrative Agent.
"SHORT-TERM INVESTMENTS" means investments that are accounted for
on Company's consolidated balance sheet as "short-term investments" in
conformity with GAAP.
"SOLVEST" has the meaning assigned to that term in the
introduction to this Agreement.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, association, joint venture or other business entity of which more
than 50% of the total voting power of shares of stock or other ownership
interests entitled (without
15
regard to the occurrence of any contingency) to vote in the election of the
Person or Persons (whether directors, managers, trustees or other Persons
performing similar functions) having the power to direct or cause the direction
of the management and policies thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof.
"SWING LINE LOAN COMMITMENT" has the meaning set forth in
subsection 2.3A.
"SWING LINE LENDER" means Chase in its capacity as the holder of
the Swing Line Commitment and any entity that assumes Chase's rights and
obligations with respect thereto pursuant to subsection 9.2.
"SWING LINE LOAN" means one or more of the Loans made by Swing
Line Lender pursuant to subsection 2.3A.
"TAXES" has the meaning assigned to such term in subsection 2.11A.
"TERMINATION EVENT" means (i) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder (for which the 30
day notice period has not been waived), (ii) the withdrawal of Company or any
of its ERISA Affiliates from a Pension Plan during a plan year in which it
was a "substantial employer" as defined in Section 4001(a)(2) of ERISA, (iii)
the filing of a notice of intent to terminate a Pension Plan (other than in a
"standard termination" as described in Section 4041(b) of ERISA) or the
treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA, (iv) the institution of proceedings to terminate a Pension Plan by the
Pension Benefit Guaranty Corporation, or (v) any other event or condition
that would reasonably be expected to constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any Pension
Plan.
"TOTAL PRO RATA COMMITMENTS" has the meaning set forth for such
term in subsection 2.1B.
"TOTAL UTILIZATION" means, as at any time of determination, the
sum of (i) the aggregate principal amount of all Pro Rata Loans outstanding
at such time PLUS (ii) the aggregate principal amount of all Bid Rate Loans
outstanding at such time PLUS (iii) the aggregate principal amount of all
Swing Line Loans outstanding at such time; PROVIDED that Total Utilization
shall be determined without duplication of Pro Rata Loans, the proceeds of
which are used to refund other Pro Rata Loans, Bid Rate Loans or Swing Line
Loans.
16
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS UNDER
AGREEMENT.
Except as otherwise expressly provided in this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to them in
conformity with GAAP. Financial statements and other information required to be
delivered by Company to Lenders pursuant to subsection 5.1 shall be prepared in
accordance with GAAP as in effect at the time of such preparation; PROVIDED that
the calculations in the Compliance Certificate with respect to subsections 6.1
and 6.2 shall be prepared in accordance with GAAP as in effect at December 30,
1995.
1.3 OTHER DEFINITIONAL PROVISIONS.
References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in subsection 1.1 may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 PRO RATA LOANS.
A. PRO RATA LOANS. Each Lender hereby severally agrees, subject to
the limitations set forth in subsection 2.1B with respect to the maximum amount
of Pro Rata Loans permitted to be outstanding from time to time and subject to
the other terms and conditions hereof, to lend to Borrowers from time to time,
during the period from and including the Closing Date to but excluding the
Commitment Termination Date, Pro Rata Loans in an aggregate amount at any time
outstanding not to exceed such Lender's Pro Rata Share of the Total Pro Rata
Commitments then in effect. Each Lender's commitment to make Pro Rata Loans to
Borrowers pursuant to this subsection 2.1A is herein called its "PRO RATA
COMMITMENT." The initial amount of the Pro Rata Commitment of each Lender is
set forth below its name on the appropriate signature page hereof. The amount
of each Lender's Pro Rata Commitment shall be reduced by its respective Pro Rata
Share of the amount of all reductions of the Total Pro Rata Commitments made
through any date of determination pursuant to subsection 2.8. The initial
aggregate amount of all Pro Rata Commitments is $600,000,000.
Each Lender's Pro Rata Commitment shall expire on the Commitment
Termination Date and all Pro Rata Loans and all other amounts owed hereunder
with respect to the Pro Rata Loans of each Borrower shall be paid in full by
such Borrower no later than that date.
17
Except as otherwise provided in this Agreement, amounts borrowed
by any Borrower under this subsection 2.1A may be repaid and, to but excluding
the Commitment Termination Date, reborrowed by any Borrower. Pro Rata Loans
made on any Funding Date (other than Pro Rata Loans made for the purpose of
repaying any Refunded Swing Line Loans pursuant to subsection 2.3C) shall be in
an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000
in excess of that amount.
B. TOTAL PRO RATA COMMITMENTS; LIMITATIONS ON OUTSTANDING LOAN
AMOUNTS. The aggregate Pro Rata Commitments of all Lenders are herein
collectively called the "TOTAL PRO RATA COMMITMENTS". Anything in this
Agreement to the contrary notwithstanding, (i) in no event shall the
aggregate principal amount of all Pro Rata Loans from any Lender outstanding
at any time exceed its Pro Rata Commitment, and (ii) the aggregate principal
amount of Bid Rate Loans and Swing Line Loans outstanding at any time
(excluding Bid Rate Loans and Swing Line Loans to be repaid with the proceeds
of Pro Rata Loans) shall reduce the amount then available for borrowing under
the Total Pro Rata Commitments to the extent necessary so that in no event
shall the Total Utilization exceed the Total Pro Rata Commitments at any time.
C. NATURE OF LENDERS' OBLIGATIONS. Subject to subsection 2.10B, Pro
Rata Loans under this Agreement shall be made by Lenders simultaneously and
proportionately to their respective Pro Rata Shares, it being understood that no
Lender shall be responsible for any default by any other Lender in such other
Lender's obligation to make a Pro Rata Loan requested hereunder, nor shall the
Pro Rata Commitment of any Lender be increased or decreased as a result of a
default by any other Lender in such other Lender's obligation to make a Pro Rata
Loan requested hereunder.
D. BORROWING MECHANICS. Whenever any Borrower desires to borrow Pro
Rata Loans under this subsection 2.1, it shall deliver to Administrative Agent a
Notice of Pro Rata Borrowing no later than 1:00 P.M. (New York City time) at
least one (1) Business Day in advance of the proposed Funding Date in the case
of a Base Rate Loan and no later than 1:00 P.M. (New York City time) at least
three (3) Business Days in advance of the proposed Funding Date in the case of a
Eurodollar Rate Loan.
Each Notice of Pro Rata Borrowing shall specify: (i) the proposed
Funding Date (which shall be a Business Day); (ii) the amount and type of
Loans requested; (iii) whether such Pro Rata Loans shall be Base Rate Loans
or Eurodollar Rate Loans and, in the case of Eurodollar Rate Loans, the
Interest Period applicable thereto; and (iv) that the Total Utilization
(after giving effect to the proposed borrowing) does not exceed the Total Pro
Rata Commitments then in effect.
18
In lieu of delivering any Notice of Pro Rata Borrowing, the Applicable
Borrower may give Administrative Agent telephonic notice of the proposed
borrowing (and the other information required by a Notice of Pro Rata Borrowing)
by the required time under this subsection 2.1; PROVIDED, HOWEVER, that such
notice shall be promptly confirmed in writing by delivery of a Notice of Pro
Rata Borrowing to Administrative Agent on the same date as the telephonic
notice.
Except as provided in subsection 2.10, a Notice of Pro Rata Borrowing (or
telephonic notice in lieu thereof) shall be irrevocable, and the Applicable
Borrower shall be bound to make a borrowing in accordance therewith unless such
Borrower pays any amounts required to be paid pursuant to subsection 2.10C to
compensate Lenders.
E. EXTENSION OF COMMITMENT TERMINATION DATE. So long as the
Commitments hereunder shall remain in effect Company may, at its option, deliver
to Administrative Agent, on or within five Business Days prior to June 1 of each
year, commencing with June 1, 1997, an originally executed Notice of Request for
Extension, signed by the chief executive officer, the chief financial officer or
the treasurer of Company on behalf of Company and Subsidiary Borrowers,
requesting an extension (the "PROPOSED EXTENSION") of the Commitment Termination
Date, effective as of August 1 of such year (the "PROPOSED EXTENSION EFFECTIVE
DATE"), for a period (the "EXTENSION PERIOD") of one year from the current
Commitment Termination Date; PROVIDED that in the event Company fails to
exercise such option to request a Proposed Extension in any such year, or in the
event any Proposed Extension requested by Company does not become effective in
any such year as hereinafter provided, then the option of Company to request a
Proposed Extension in any subsequent year shall permanently expire and no
further extensions of the Commitment Termination Date shall become effective
hereunder without the prior written consent of all Lenders. Administrative
Agent shall promptly deliver to each Lender a copy of any Notice of Request for
Extension delivered by Company to Administrative Agent.
On or before June 20 of such year (the "FIRST DETERMINATION
DATE"), each Lender shall have the right, in its sole discretion, subject to the
provisions of this subsection 2.1E, (i) to irrevocably consent to the Proposed
Extension with respect to all of such Lender's Commitment by executing and
delivering to Administrative Agent a counterpart of such Notice of Request for
Extension or (ii) to reject the Proposed Extension with respect to all of such
Lender's Commitment; PROVIDED that if a Lender has not replied in writing to
Administrative Agent with respect to the Proposed Extension by the First
Determination Date such Lender shall be deemed to have rejected the Proposed
Extension. Promptly after the First Determination Date, Administrative Agent
shall notify Company and Lenders as to
19
whether or not each Lender has consented to the Proposed Extension.
If one or more Lenders (each a "REJECTING LENDER") shall have
rejected or shall be deemed to have rejected the Proposed Extension, then
Company may request that the Commitment, Loans and all other rights and
obligations of each Rejecting Lender under the Loan Documents (as to all
Rejecting Lenders, collectively, the "REJECTING LENDER OBLIGATIONS") be
purchased at par and/or assumed, as of the Proposed Extension Effective Date,
by (i) one or more Lenders (each a "REMAINING LENDER" and collectively,
"REMAINING LENDERS") that have consented to the Proposed Extension and/or
(ii) one or more other Eligible Assignees (each a "NEW LENDER" and
collectively, "NEW LENDERS"; Remaining Lenders and New Lenders being
collectively referred to herein as "REPLACEMENT LENDERS") satisfactory to
Company and Administrative Agent. Each prospective Replacement Lender
requested by Company in writing to purchase at par and/or assume all or any
portion of the Rejecting Lender Obligations shall have the right to accept or
reject such request, in whole or in part, on or before July 1 of such year
(the "SECOND DETERMINATION DATE"); PROVIDED that (a) if a prospective
Replacement Lender has not replied in writing to Company with respect to such
request by the Second Determination Date, such prospective Replacement Lender
shall be deemed to have rejected such request and (b) in the event some or
all of the prospective Replacement Lenders have accepted Company's request to
purchase at par and/or assume all or any portion of the Rejecting Lender
Obligations in an aggregate amount greater than the aggregate amount of the
Rejecting Lender Obligations, Company and Administrative Agent may allocate
the Rejecting Lender Obligations among such prospective Replacement Lenders
in the exercise of their sole discretion.
Anything contained in this subsection 2.1E to the contrary
notwithstanding, any Proposed Extension shall become effective pursuant to
this subsection 2.1E if, and only if, (i) all Lenders shall have consented to
such Proposed Extension in accordance with the provisions of this subsection
2.1E or (ii) if there are one or more Rejecting Lenders, then on or before
the Second Determination Date one or more Replacement Lenders shall have
agreed to purchase at par and/or assume, as of the Proposed Extension
Effective Date, all of the Rejecting Lender Obligations in accordance with
the provisions of this subsection 2.1E.
If any Proposed Extension becomes effective in accordance with
clause (ii) of the immediately preceding paragraph then (i) within 15 days
after the Second Determination Date, Company, each Rejecting Lender and each
Replacement Lender shall execute and deliver to Administrative Agent
counterparts of an assignment agreement, satisfactory in form and substance
to Administrative Agent, pursuant to which Rejecting Lenders agree
20
to sell and/or assign, and Replacement Lenders agree to purchase at par and/or
assume, all of the Rejecting Lender Obligations as of the Proposed Extension
Effective Date, (ii) after receipt of such assignment agreement and any
forms, certificates or other evidence with respect to United States federal
income tax withholding matters and/or California income tax withholding
matters that any New Lender may be required to deliver to Administrative
Agent pursuant to subsection 2.11B or subsection 2.11C, as applicable,
Administrative Agent shall (a) accept such assignment agreement by executing
a counterpart thereof as provided therein and (b) on the Proposed Extension
Effective Date, record the information contained therein in the Register, and
(iii) anything contained in this Agreement to the contrary notwithstanding,
in order to facilitate the transactions contemplated by such assignment
agreement, (a) during the period commencing on the Second Determination Date
and ending on the Proposed Extension Effective Date, the Commitments shall
not be voluntarily reduced by Company, (b) during the period commencing on
the third Business Day immediately preceding the Proposed Extension Effective
Date and ending on the Proposed Extension Effective Date, no Loans shall be
requested or voluntarily prepaid by Company, (c) on the Proposed Extension
Effective Date (1) Company shall pay to Administrative Agent, for
distribution (as appropriate) to Lenders, all accrued and unpaid interest
with respect to all Loans outstanding on the Proposed Extension Effective
Date, and (2) Company shall pay to Administrative Agent, for distribution (as
appropriate) to Lenders, all accrued and unpaid commitment fees as of the
Proposed Extension Effective Date, and (d) in the event any Loans of
Rejecting Lenders outstanding on the Proposed Extension Effective Date are
Eurodollar Rate Loans (the "REPLACED EURODOLLAR RATE LOANS"), (1) Company
shall pay to such Rejecting Lenders such amounts as would have been payable
pursuant to subsection 2.6D if the Replaced Eurodollar Rate Loans had been
prepaid by Company on the Proposed Extension Effective Date, and (2) the
Replacement Lenders replacing such Rejecting Lenders shall be deemed to have
made Eurodollar Loans in the same principal amount as the Replaced Eurodollar
Rate Loans with Interest Periods commencing on the Proposed Extension
Effective Date and ending on the last day of the Interest Periods of the
Replaced Eurodollar Rate Loans.
2.2 BID RATE LOANS.
A. Each Lender severally agrees that any Borrower may borrow Bid Rate
Loans under this subsection 2.2 from time to time on any Business Day during the
period from the date hereof until the date occurring two days prior to the
Commitment Termination Date in the manner set forth below; PROVIDED that,
following the borrowing of each Bid Rate Loan, the Total Utilization shall not
exceed the Total Pro Rata Commitments then in effect.
(i) Any Borrower may request one or more Bid Rate Loans under
this subsection 2.2 by transmitting to
21
Administrative Agent by telephone (promptly confirmed in writing by
telecopy on the same date) notice of a Bid Rate Loan or Loans (a "Notice
of Bid Rate Borrowing"), in substantially the form of EXHIBIT IV hereto,
specifying the date and aggregate amount of the proposed Bid Rate Loan or
Loans, the maturity date for repayment of such Bid Rate Loan or Loans,
the interest payment date or dates relating thereto, and any other terms
to be applicable to such Bid Rate Loan or Loans, not later than 1:00 P.M.
(New York City time) (A) at least one Business Day prior to the date of
the proposed Bid Rate Loan, if the Applicable Borrower shall specify in
the Notice of Bid Rate Borrowing that the rates of interest to be offered
by the Lenders shall be fixed rates per annum for such Bid Rate Loan (a
"Fixed Rate Bid Loan") and (B) at least four Business Days prior to the
date of the proposed Bid Rate Loan, if in the Notice of Bid Rate
Borrowing the Applicable Borrower shall instead specify the reference
rate, for example (and not limited to) the Eurodollar Rate or the Federal
Funds Rate, which is to be the basis to which the Lenders will add or
subtract a margin in determining the rate or rates of interest to be
offered by them for such Bid Rate Loan (a "Reference Rate Bid Loan");
PROVIDED that no Notice of Bid Rate Borrowing may request that bids be
made for Loans having more than three different maturities and, PROVIDED,
FURTHER, that without the consent of Administrative Agent, Borrowers may
deliver a Notice of Bid Rate Borrowing no more often than every third
Business Day. The Applicable Borrower may not select a maturity date for
any Bid Rate Loan which occurs after the second day prior to the
Commitment Termination Date. Administrative Agent shall in turn promptly
(but in no event later than 3:00 P.M. (New York City time) on the
applicable date referred to in clause (A) or (B) above) notify each
Lender of each request for a Bid Rate Loan received by it from the
Applicable Borrower by sending such Lender a copy of the related Notice
of Bid Rate Borrowing.
(ii) Each Lender may, if in its sole discretion it elects to do
so, irrevocably offer (a "Bid Rate Offer") to make one or more Bid Rate
Loans to the Applicable Borrower at a rate or rates of interest specified
by such Lender, by notifying Administrative Agent by telefacsimile before
11:00 A.M. (New York City time), and Administrative Agent shall give
prompt notice thereof to such Borrower by telefacsimile, (A) on the date
of such proposed Bid Rate Loan, in the case of a Notice of Bid Rate
Borrowing with respect to a Fixed Rate Bid Loan and (B) three Business
Days before the date of such proposed Bid Rate Loan, in the case of a
Notice of Bid Rate Borrowing with respect to a Reference Rate Bid Loan,
of the minimum amount and maximum amount of each Bid Rate Loan which such
Lender would be willing to make (which amounts may, subject to the
proviso to the first sentence of this subsection 2.2A, exceed such
22
Lender's Pro Rata Commitment) and the rate or rates of interest therefor;
PROVIDED that if the Administrative Agent in its capacity as a Lender
shall, in its sole discretion, elect to make any Bid Rate Offer, it shall
notify the Applicable Borrower of such offer before 10:00 A.M. (New York
City time) on the date on which notice of such election is to be given to
Administrative Agent by the other Lenders.
(iii) The Applicable Borrower shall, in turn, (A) before 1:00
P.M. (New York City time) on the date of such proposed Bid Rate Loan, in
the case of a Notice of Bid Rate Borrowing with respect to a Fixed Rate
Bid Loan and (B) before 1:00 P.M. (New York City time) three Business Days
before the date of such proposed Bid Rate Loan, in the case of a Notice
of Bid Rate Borrowing with respect to a Reference Rate Bid Loan, either
(x) cancel such proposed Bid Rate Loan by giving
Administrative Agent notice to that effect, or
(y) accept one or more of the Bid Rate Offers (which
acceptance shall be irrevocable) in its sole discretion, by giving
notice to Administrative Agent of the amount of each Bid Rate Loan
(which amount shall be equal to or greater than the minimum
amount, and equal to or less than the maximum amount, notified to
the Applicable Borrower by Administrative Agent on behalf of such
Lender for such Bid Rate Loan pursuant to paragraph (ii) above) to
be made by each Lender (provided that the aggregate amount of such
Bid Rate Loans shall not exceed the amount specified in the Notice
of Bid Rate Borrowing delivered by the Applicable Borrower ), and
reject any remaining Bid Rate Offers by giving Administrative
Agent notice to that effect; PROVIDED that acceptance of Bid Rate
Offers may only be made on the basis of ascending rates for Bid
Rate Loans of the same type and duration for up to the maximum
amounts offered by Lenders; and PROVIDED FURTHER that if Bid Rate
Offers are made by two or more Lenders for the same type of Bid
Rate Loan for the same duration and with the same rate of
interest, in an aggregate amount which is greater than the amount
requested, such offers shall be accepted on a pro rata basis based
on the maximum amounts offered by such Lenders at such rate of
interest.
(iv) If the Applicable Borrower notifies Administrative Agent
that such proposed Bid Rate Loan is cancelled pursuant to paragraph
(iii)(x) above or if the Applicable Borrower rejects any offers made by
Lenders pursuant to paragraph (iii)(y) above, Administrative Agent shall
give prompt notice thereof to the Lenders or affected Lenders, as the
23
case may be, and in the case of a cancellation, such Bid Rate Loan shall
not be made.
(v) If the Applicable Borrower accepts one or more of the Bid
Rate Offers, Administrative Agent shall in turn promptly notify (A) each
Lender that has made a Bid Rate Offer, of the date and aggregate amount
of such Bid Rate Loan and whether or not any Bid Rate Offer or Bid Rate
Offers made by such Lender have been accepted by the Applicable Borrower,
and (B) each Lender that is to make a Bid Rate Loan, of the amount of each
Bid Rate Loan to be made by such Lender. Promptly after each borrowing
of Bid Rate Loans, Administrative Agent will notify each Lender of the
aggregate amount of such Bid Rate Loans, and the dates upon which such
Bid Rate Loans commenced and will terminate. Each Lender that is to make
a Bid Rate Loan shall make the proceeds of its Bid Rate Loan available to
the Applicable Borrower in accordance with and subject to the terms and
conditions set forth or referred to in subsection 2.4.
B. Each Bid Rate Loan shall be in an aggregate amount not less than
$1,000,000 or an integral multiple thereof.
C. Within the limits and on the conditions set forth in this
subsection 2.2, Borrowers may from time to time borrow under this subsection
2.2, repay or prepay pursuant to subsection D. below, and reborrow under this
subsection 2.2, and more than one Bid Rate Loan may be made on a Business Day.
D. The Applicable Borrower shall repay to each Lender that has made a
Bid Rate Loan, on the maturity date of such Bid Rate Loan (such maturity date
being that specified by the Applicable Borrower for repayment of such Bid Rate
Loan in the related Notice of Bid Rate Borrowing pursuant to the terms hereof)
the then unpaid principal amount of such Bid Rate Loan pursuant to subsection
2.8B. No Borrower shall have any right to prepay any principal amount of any
Bid Rate Loan except (i) such prepayments as are on the terms specified by the
Applicable Borrower for such Bid Rate Loan in the related Notice of Bid Rate
Borrowing or (ii) with the consent of the Lender making such Bid Rate Loan.
E. Pursuant to subsection 2.8B, the Applicable Borrower shall pay
interest to each Lender that has made a Bid Rate Loan on the unpaid principal
amount of such Bid Rate Loan from the date of such Bid Rate Loan to the date the
principal amount of such Bid Rate Loan is repaid in full, at the rate of
interest specified by the Lender making such Bid Rate Loan in its Bid Rate
Offer, payable on the interest payment date or dates specified by the Applicable
Borrower for such Bid Rate Loan in the related Notice of Bid Rate Borrowing;
PROVIDED that any principal amount of any Bid Rate Loan which is not paid when
due (whether at stated maturity, by acceleration or otherwise) and any interest
payment on Bid Rate Loans not paid hereunder when due, in each
24
case, shall bear interest from the date on which such amount is due until such
amount is paid in full, payable on demand, at a rate per annum equal to 2% per
annum above the Base Rate in effect from time to time.
2.3 SWING LINE LOANS.
A. Swing Line Lender hereby agrees, subject to the limitations set
forth below with respect to the maximum amount of Swing Line Loans permitted to
be outstanding from time to time and subject to the other terms and conditions
hereof, to make a portion of the Pro Rata Commitments available to Borrowers
from time to time during the period from the Closing Date to but excluding the
second day prior to the Commitment Termination Date by making Swing Line Loans
to Borrowers in an aggregate amount not exceeding the amount of the Swing Line
Loan Commitment to be used for the purposes identified in subsection 2.9,
notwithstanding the fact that such Swing Line Loans, when aggregated with Swing
Line Lender's outstanding Pro Rata Loans and Bid Rate Loans may exceed its Pro
Rata Commitment. Swing Line Lender's commitment to make Swing Line Loans to
Borrowers pursuant to this subsection 2.3A is herein called its "SWING LINE LOAN
COMMITMENT", and the original amount of the Swing Line Loan Commitment is
$25,000,000 and may not be increased to an amount in excess of $25,000,000
without the consent of Requisite Lenders and Swing Line Lender. Amounts
borrowed under this subsection 2.3A shall be Base Rate Loans and may be repaid
and reborrowed to but excluding the second day prior to the Commitment
Termination Date on which second day all Swing Line Loans and all other amounts
owed hereunder with respect to the Swing Line Loans by each Borrower shall be
paid in full by such Borrower.
Anything contained in this Agreement to the contrary notwithstanding, the
Swing Line Loans and the Swing Line Loan Commitment shall be subject to the
following limitations in the amounts and during the periods indicated:
(a) in no event shall the Total Utilization at any time exceed
the Pro Rata Commitments then in effect; and
(b) any reduction of the Pro Rata Commitments made pursuant to
subsection 2.8A which reduces the aggregate Pro Rata Commitments to an
amount less than the then current amount of the Swing Line Loan
Commitment shall result in an automatic corresponding reduction of the
Swing Line Loan Commitment to the amount of the Pro Rata Commitments, as
so reduced, without any further action on the part of Swing Line Lender.
B. Whenever any Borrower desires that Swing Line Lender make a Swing
Line Loan under subsection 2.3A, it shall deliver to Swing Line Lender a Notice
of Swing Line Borrowing no later than 1:00 P.M. (New York City time) on the
proposed Funding Date
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(which shall be a Business Day). The Notice of Swing Line Borrowing shall
specify (i) the proposed Funding Date, (ii) the amount of the Swing Line Loan
requested (which shall be no less than $1,000,000) and (iii) that the Total
Utilization (after giving effect to the proposed borrowing) does not exceed
the Total Pro Rata Commitments then in effect.
C. With respect to any Swing Line Loans which have not been
voluntarily prepaid by the Applicable Borrower pursuant to subsection 2.8A,
Swing Line Lender (i) may at any time an Event of Default has occurred and is
continuing in its sole and absolute discretion, and (ii) shall on the last
Business Day of each month deliver to each Lender (with a copy to the
Applicable Borrower), no later than 2:00 P.M. (New York City time) at least
one Business Day in advance of the proposed Funding Date, a notice (which
shall be deemed to be a Notice of Pro Rata Borrowing given by the Applicable
Borrower) requesting Lenders to make Pro Rata Loans that are Base Rate Loans
on such Funding Date in an aggregate amount equal to the amount of such Swing
Line Loans (the "REFUNDED SWING LINE LOANS") outstanding on the date such
notice is given which Swing Line Lender requests Lenders to prepay. Each
Lender (other than the Swing Line Lender) shall make the amount of its Pro
Rata Loan available to Administrative Agent by depositing the amount thereof
in same day funds in Administrative Agent's Account on the next Business Day.
Anything contained in this Agreement to the contrary notwithstanding, (i)
the proceeds of such Pro Rata Loans made by Lenders other than Swing Line
Lender shall be immediately delivered to Swing Line Lender (and not to any
Borrower) and applied to repay a corresponding portion of the Refunded Swing
Line Loans and (ii) on the day such Pro Rata Loans are made, Swing Line
Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to
be paid with the proceeds of a Pro Rata Loan made by Swing Line Lender and
such portion of the Swing Line Loans deemed to be so paid shall no longer be
outstanding as Swing Line Loans but shall be outstanding as Pro Rata Loans.
If any portion of any such amount paid (or deemed to be paid) to Swing Line
Lender should be recovered by or on behalf of any Borrower from Swing Line
Lender in bankruptcy, by assignment for the benefit of creditors or
otherwise, the loss of the amount so recovered shall be ratably shared among
all Lenders in the manner contemplated by subsection 9.5.
If, as a result of any bankruptcy or similar proceeding with respect to
any Borrower, Pro Rata Loans are not made pursuant to this subsection 2.3C in an
amount sufficient to repay any amounts owed to Swing Line Lender in respect of
any outstanding Swing Line Loans or if Swing Line Lender shall so request each
Lender for any reason, Swing Line Lender shall be deemed to have sold without
recourse or representation or warranty, and each Lender shall be deemed to have
purchased and hereby agrees to purchase, a participation in such outstanding
Swing Line Loans in an amount equal to its Pro Rata Share of the unpaid amount
together with
26
accrued interest thereon. Upon one Business Day's notice from Swing Line
Lender, each Lender (other than Swing Line Lender) shall deliver to Swing Line
Lender an amount equal to its respective participation in same day funds at
Administrative Agent's Account. In the event any such Lender fails to make
available to Swing Line Lender the amount of such Lender's participation as
provided in this paragraph, Swing Line Lender shall be entitled to recover such
amount on demand from such Lender together with interest thereon at the Federal
Funds Rate for the first five days and thereafter at the Base Rate in effect
from time to time.
Anything contained herein to the contrary notwithstanding, the
obligation of each Lender (other than Swing Line Lender) to make Pro Rata
Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to
the second preceding paragraph and each such Lender's obligation to purchase
a participation in any unpaid Swing Line Loans pursuant to the immediately
preceding paragraph shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation (a) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against Swing Line Lender, any Borrower or any other Person for any reason
whatsoever; (b) the occurrence or continuance of an Event of Default or a
Potential Event of Default; (c) any adverse change in the business,
operations, properties, assets, or condition (financial or otherwise) of
Company or any of its Subsidiaries; (d) any breach of this Agreement by any
party hereto; or (e) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; PROVIDED, HOWEVER, that no
Lender shall have any obligation to make a Pro Rata Loan for the purpose of
repaying, or to purchase any participation in, any Swing Line Loan to the
extent such Swing Line Loan increased the Total Utilization (after giving
effect to the repayment of any Loans with the proceeds of such Swing Line
Loan) and was made even though Swing Line Lender had actual knowledge that
the conditions to making such Swing Line Loan were not satisfied.
2.4 DISBURSEMENT OF FUNDS.
Promptly after receipt of a Notice of Pro Rata Borrowing pursuant to
subsection 2.1 or subsection 2.3 (or telephonic notice in lieu thereof) and in
any event on the Business Day such notice is received, Administrative Agent
shall notify each Lender of the proposed borrowing. Each Lender shall make the
amount of its Pro Rata Loan available to Administrative Agent on the Funding
Date in Dollars in same day funds by deposit to Administrative Agent's Account
not later than 1:00 p.m. (New York City time). Except as set forth in
subsection 2.3C, upon satisfaction or waiver of the conditions precedent
specified in Section 3 (including, without limitation, subsection 3.2B, if
applicable), Administrative Agent shall make the proceeds of such Pro Rata Loans
available to the Applicable Borrower on such
27
Funding Date by causing an amount of same day funds equal to the proceeds of
all such Loans received by Administrative Agent to be credited to the account
of the Applicable Borrower at that office of Administrative Agent where
Administrative Agent's Account is located no later than 2:00 p.m. (New York
City time) on such Funding Date. In the case of Bid Rate Loans, upon
satisfaction or waiver of the conditions precedent specified in Section 3
(including, without limitation, subsection 3.2B to the extent applicable),
the applicable Lender shall make the proceeds of its Bid Rate Loan available
to the Applicable Borrower on the Funding Date, by causing an amount of same
day funds equal to the proceeds of such Loan to be credited to the account of
the Applicable Borrower at that Office of Administrative Agent where
Administrative Agent's Account is located no later than 2:00 p.m. (New York
City time) on such Funding Date.
The acceptance by the Applicable Borrower of any proceeds of any Loan
which results in an increase in the Total Utilization shall be deemed to
constitute a representation to the Lenders that the conditions to funding set
forth herein are satisfied on and as of the applicable Funding Date.
Unless Administrative Agent shall have been notified by any Lender prior
to the Funding Date of any Pro Rata Loan that such Lender does not intend to
make available to Administrative Agent that Lender's Pro Rata Loan requested on
such Funding Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding Date and
Administrative Agent, in its sole discretion, may, but shall not be obligated
to, make available to the Applicable Borrower a corresponding amount on such
Funding Date. If such corresponding amount is not in fact made available to
Administrative Agent by that Lender on the Funding Date, Administrative Agent
shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Funding Date until
the date such amount is paid to Administrative Agent, which interest shall
accrue at the Federal Funds Rate for the first five days and thereafter at the
Base Rate in effect from time to time (beginning on and including the date of
such borrowing). If that Lender does not pay such corresponding amount
forthwith upon Administrative Agent's demand therefor, Administrative Agent
shall promptly notify the Applicable Borrower, and the Applicable Borrower shall
immediately pay such corresponding amount to Administrative Agent together with
interest accrued thereon at the applicable rate for the Loan made on such
Funding Date. Nothing in this subsection 2.4 shall be deemed to relieve any
Lender from its obligation to fulfill its Commitment hereunder or to prejudice
any rights which any Borrower may have against any Lender as a result of any
default by that Lender hereunder.
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2.5 LOAN ACCOUNTS AND REGISTER.
A. LOAN ACCOUNTS. Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "LOAN ACCOUNT") evidencing the
indebtedness of each Borrower to such Lender for each Pro Rata Loan and Bid Rate
Loan (and in the case of Swing Line Lender, Swing Line Loan) made by it,
including the amount of principal and interest payable and paid to such Lender
from time to time hereunder. Failure to make any notation, or any error
therein, in a Loan Account shall not affect any Borrower's Obligations to such
Lender. Each Borrower agrees that if, in the opinion of any Lender, a
promissory note or other evidence of debt is required or appropriate to reflect
or enforce any Loans outstanding to or to be made by such Lender to such
Borrower, then such Borrower shall promptly execute and deliver to such Lender
one or more promissory notes payable to such Lender to evidence the Pro Rata
Loans, Swing Line Loans and/or Bid Rate Loans of such Borrower that are
outstanding to such Lender under this Agreement from time to time. If any notes
are issued hereunder, Administrative Agent and Borrowers may treat the payee of
that note as the owner of such note for all purposes until an Assignment and
Acceptance Agreement shall have been filed with Administrative Agent and
recorded in the Register; PROVIDED, HOWEVER, that the entries made in the
Register shall be controlling in the event of a conflict.
B. REGISTER. Administrative Agent shall maintain at its address
referred to in subsection 9.7 hereof a register (the "REGISTER") in which it
shall record the names and addresses of Lenders, each Lender's Pro Rata Share of
the Commitments, the date and amount of each Pro Rata Loan made hereunder and
the amount of any payment received by Administrative Agent hereunder and each
Lender's share thereof and, to the extent Administrative Agent has received
notice thereof from the Applicable Borrower and the applicable Lender, the date
and amount of each Bid Rate Loan and each Swing Line Loan and the amount of any
payment thereon received by the applicable Lender. Failure to make any such
recordation, or any error therein, shall not affect any Borrower's Obligations.
C. PROMISE TO REPAY; ENTRIES BINDING. Each Borrower hereby severally
agrees to pay when due all Obligations of such Borrower hereunder. The entries
made in the Register and each Loan Account shall be conclusive and binding for
all purposes, absent manifest error. In case of a conflict between the entries
made in the Register and the entries made in any Loan Account, the entries made
in the Register shall be controlling, absent manifest error. Borrowers,
Administrative Agent and Lenders may treat each Person listed as a Lender in the
Register as the owner of the corresponding Loan listed therein and as a Lender
hereunder for all purposes of this Agreement unless and until an Assignment and
Acceptance Agreement shall have become effective in accordance with subsection
9.2C; PROVIDED, HOWEVER, that the
29
entries made in the Register shall be controlling in the event of a conflict,
absent manifest error. Any request, authority or consent of any Person who, at
the time of making such request or giving such authority or consent, is listed
in the Register as a Lender shall be conclusive and binding on any subsequent
holder, transferee or assignee of the corresponding Loan. The Register shall be
available for inspection by any Borrower or any Lender at any reasonable time
during Administrative Agent's normal business hours upon reasonable prior
notice.
2.6 INTEREST ON THE LOANS.
A. RATES OF INTEREST.
(i) PRO RATA LOANS. Each Pro Rata Loan shall bear interest on
the unpaid principal amount thereof from the date made through maturity
(whether by acceleration or otherwise) at a rate determined by reference
to the Base Rate or the Adjusted Eurodollar Rate, as the case may be.
The applicable basis for determining the rate of interest with respect to
any Pro Rata Loan shall be selected by the Applicable Borrower initially
at the time a Notice of Pro Rata Borrowing is given with respect to such
Pro Rata Loan. The basis for determining the interest rate with respect
to any Pro Rata Loan may be changed from time to time pursuant to
subsection 2.6D. If on any day a Pro Rata Loan is outstanding with
respect to which notice has not been delivered to Administrative Agent in
accordance with the terms of this Agreement specifying the applicable
basis for determining the rate of interest, then for that day that Pro
Rata Loan shall bear interest determined by reference to the Base Rate.
Subject to subsection 2.6E, Pro Rata Loans shall bear
interest through maturity (whether by acceleration or otherwise) at a
rate equal to the Base Rate in effect from time to time or at a rate
equal to the sum of the Adjusted Eurodollar Rate for each Interest Period
therefor PLUS the Applicable Eurodollar Rate Margin.
(ii) BID RATE LOANS. Each Bid Rate Loan shall bear interest on
the unpaid principal amount thereof from the date made through maturity
(whether by acceleration or otherwise) at a rate determined pursuant to
subsection 2.2.
(iii) SWING LINE LOANS. Subject to subsection 2.6E, each Swing
Line Loan shall bear interest on the unpaid principal amount thereof from
the date made through maturity (whether by acceleration or otherwise) at
a rate equal to the Base Rate.
B. INTEREST PERIODS. In connection with each Eurodollar Rate Loan,
the Applicable Borrower, by giving notice as set forth
30
in subsection 2.3 or 2.6D, shall elect an interest period (each an "INTEREST
PERIOD") to be applicable to such Loan, which Interest Period shall be a period
of 1, 2, 3 or 6 months; PROVIDED, that:
(i) the Interest Period for any Loan shall commence on the
Funding Date in respect of such Loan, or on the date specified in the
applicable Notice of Conversion/Continuation;
(ii) in the case of immediately successive Interest Periods,
each successive Interest Period shall commence on the day on which the
next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; PROVIDED that, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (v) of this subsection 2.6B, end on the
last Business Day of a calendar month;
(v) no Interest Period shall extend beyond the Commitment
Termination Date; and
(vi) in the event the Applicable Borrower fails to specify an
Interest Period for any Eurodollar Rate Loan in the applicable Notice of
Pro Rata Borrowing or Notice of Conversion/Continuation, the Applicable
Borrower shall be deemed to have selected an Interest Period of one
month.
C. INTEREST PAYMENTS. Subject to subsection 2.6E, interest shall be
payable by each Borrower on the Loans made to it as follows:
(i) interest on each Base Rate Loan shall be payable in arrears
(a) quarterly on the last Business Day of each December, March, June and
September, beginning September 30, 1996; and (b) at maturity (whether by
acceleration or otherwise);
(ii) interest on each Eurodollar Rate Loan shall be payable in
arrears (a) on the last day of each Interest Period applicable to such
Loan and, in the case of each
31
Interest Period of longer than 3 months, throughout such Interest Period
on each day that occurs three (3) months from the first day of such
Interest Period; and (b) at maturity (whether by acceleration or
otherwise);
(iii) interest on each Bid Rate Loan shall be payable at maturity
(whether by acceleration or otherwise) and at such other times as is
specified by the Applicable Borrower in the Notice of Bid Rate Borrowing
with respect to such Bid Rate Loan; and
(iv) interest on each Swing Line Loan shall be payable in
arrears (a) upon any payment of such Loan (whether paid by the Applicable
Borrower or paid with the proceeds of Pro Rata Loans or participations
therein) and (b) upon maturity (whether by acceleration or otherwise).
Each such date on which an interest payment is due hereunder with respect to a
Loan is herein referred to as an "INTEREST PAYMENT DATE" for such Loan.
D. CONVERSION OR CONTINUATION OF LOANS. Subject to the provisions
of subsection 2.10B, each Borrower shall have the option (i) to convert at
any time all or any part of its outstanding Pro Rata Loans from Loans bearing
interest at a rate determined by reference to one basis to Loans bearing
interest at a rate determined by reference to an alternative basis, or (ii)
upon the expiration of any Interest Period applicable to a Eurodollar Rate
Loan, to continue all or any portion of that and all other Eurodollar Rate
Loans having an Interest Period ending on such date equal to $5,000,000 or
integral multiples of $1,000,000 in excess of that amount as Eurodollar Rate
Loans; PROVIDED, that when Loans are converted into Eurodollar Rate Loans,
such Eurodollar Rate Loans shall be in a minimum amount of $5,000,000 and
integral multiples of $1,000,000 in excess of that amount.
The Applicable Borrower shall deliver a Notice of Conversion/
Continuation to Administrative Agent no later than 12:00 noon (New York City
time) at least one (1) Business Day in the case of conversion to Base Rate
Loans, and at least three (3) Business Days in the case of conversion to or
continuation as Eurodollar Rate Loans, in advance of the proposed conversion/
continuation date. A Notice of Conversion/Continuation shall specify (i) the
proposed conversion/continuation date (which shall be a Business Day), (ii)
the amount and type of the Loan to be converted/continued, (iii) the nature
of the proposed conversion/continuation and (iv) the requested Interest
Period, if any. In lieu of delivering the above-described Notice of
Conversion/Continuation, the Applicable Borrower may give Administrative
Agent telephonic notice by the required time of any proposed
conversion/continuation (and the information required by a Notice of
Conversion/Continuation) under this subsection 2.6D; PROVIDED
32
that such notice shall be promptly confirmed in writing by delivery of a Notice
of Conversion/Continuation to Administrative Agent on or before the proposed
conversion/continuation date.
If for any reason a Eurodollar Rate Loan remains outstanding
beyond the expiration of the Interest Period therefor (including any conversion/
continuation periods with respect thereto), such Loan shall be continued as a
Base Rate Loan.
Administrative Agent shall not incur any liability to any Borrower
in acting upon any telephonic notice referred to above that Administrative Agent
believes in good faith to have been given by a duly authorized officer or other
person authorized to act on behalf of the Applicable Borrower or for otherwise
acting in good faith under this subsection 2.6D, and upon conversion or
continuation of the applicable basis for determining the interest rate with
respect to any Loans in accordance with this Agreement pursuant to any such
telephonic notice the Applicable Borrower shall have effected a conversion or
continuation, as the case may be, hereunder.
Except as otherwise provided in subsection 2.10B, a Notice of
Conversion/Continuation (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and the
Applicable Borrower shall be bound to effect a conversion or continuation in
accordance therewith, unless the Applicable Borrower pays such amounts as
required under subsection 2.10C to compensate Lenders.
E. POST MATURITY INTEREST. Any principal payments on Pro Rata Loans
or Swing Line Loans not paid when due, any interest payments on Pro Rata Loans
or Swing Line Loans owed hereunder not paid when due and any payments of fees
and other amounts owed hereunder not paid when due, in each case whether at
stated maturity, by notice of prepayment, by acceleration or otherwise, shall
thereafter bear interest payable by the Applicable Borrower (in the case of
payments of principal or interest or other amounts relating to specific Loans)
or Company (in the case of all other such amounts) on demand at a rate (the
"POST MATURITY RATE") that is, in the case of such principal or interest
payment, 2% per annum in excess of the interest rate otherwise payable under
this Agreement with respect to such Loans and, in the case of such fees and
other amounts, 2% per annum in excess of the interest rate payable under this
Agreement with respect to Base Rate Loans.
F. COMPUTATION OF INTEREST. Interest on the Base Rate Loans shall be
computed on the basis of a 365 or 366-day year, as applicable, and interest on
all other Loans shall be computed on the basis of a 360-day year, in each case
for the actual number of days elapsed in the period during which it accrues. In
computing interest on any Loan (or any de facto loan from Swing Line Lender or
Administrative Agent to a Lender pursuant to
33
subsection 2.3C or 2.4, respectively), the date of the making of such Loan (or
such de facto loan) or the first day of an Interest Period applicable to such
Loan or, with respect to a Loan being converted from another Loan, the date of
conversion of such Loan shall be included, and the date of payment of such Loan
(or such de facto loan) or the expiration date of an Interest Period applicable
to such Loan or, with respect to a Loan which will be converted to another Loan,
the date of conversion of such Loan shall be excluded; PROVIDED that if a Loan
is repaid on the same day on which it is made, one day's interest shall be paid
on that Loan.
G. INCREASED CAPITAL. If after the date hereof any Lender
determines that either (i) any law, order or regulation regarding capital
adequacy or any change in the interpretation or administration of any such
law, order or regulation by any governmental authority charged with the
interpretation or administration thereof, or (ii) compliance with any
guideline or request regarding capital adequacy made by or issued from any
such governmental authority has or would have the effect of increasing the
amount of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender as a result of or based upon the
existence of such Lender's Pro Rata Commitment (or, in the case of the Swing
Line Lender, its Swing Line Commitment) and other commitments of such type,
then Company shall from time to time, within 15 Business Days after written
notice and demand by such Lender (each such Lender, an "AFFECTED LENDER")
(with a copy of such notice and demand to Administrative Agent), pay to such
Lender additional amounts sufficient to compensate such Lender or other
corporation for its increased costs attributable to such increase in capital
in light of such circumstances commencing on and after the ninetieth day
following the date of such demand to the extent that such Lender reasonably
determines such increased costs to be allocable to the existence of such
Lender's Pro Rata Commitment (or, in the case of the Swing Line Lender, its
Swing Line Commitment). A certificate as to such amounts providing
reasonable detail to Company regarding the manner in which the amount of any
payment requested by it pursuant to the provisions of this subsection 2.6G
has been determined, shall be submitted to Company and Administrative Agent
by such Lender. No Lender shall have the right to collect payments from
Company pursuant to this subsection 2.6G unless it is the policy of such
Lender, at the time of such collection, to collect similar payments from
borrowers (if any) who are similarly situated as Company, including, without
limitation, with respect to credit standing, in connection with credit
facilities similar to those made available pursuant to this Agreement, where
the documents governing such credit facilities establish the right of such
Lender to collect such payments.
In the event Company receives a notice from an Affected Lender
pursuant to this subsection 2.6G, Company may, within 90
34
days after the date such notice is given and so long as such notice shall not
have been terminated by such Affected Lender and no Event of Default shall
have occurred and be continuing, elect to terminate such Affected Lender as a
party to this Agreement; PROVIDED, that concurrently with such termination,
(i) Company shall pay to such Affected Lender all interest and fees and other
amounts (including without limitation amounts owed under this subsection
2.6G) owed to such Affected Lender through such date of termination and (ii)
another financial institution that is an Eligible Assignee shall purchase for
cash the Loans of the Affected Lender and shall have agreed to become a
Lender for all purposes under this Agreement and to assume all obligations of
the Affected Lender to be terminated as of such date pursuant to an
Assignment and Acceptance Agreement that shall have become effective pursuant
to subsection 9.2B.
2.7 FEES.
A. FACILITY FEE. For the period commencing on the Closing Date to
but excluding the Commitment Termination Date, Company agrees to pay to
Administrative Agent for the benefit of each Lender a per annum fee (the
"FACILITY FEE"), payable quarterly in arrears on the last Business Day of each
December, March, June and September, commencing September 30, 1996, and on the
Commitment Termination Date in an amount equal to the product of (i) the average
daily amount of such Lender's Pro Rata Commitment in effect (without regard to
the amount of Loans outstanding) during the period for which such payment is to
be made TIMES (ii) the Applicable Facility Fee Percentage, calculated on the
basis of a 360-day year and the actual number of days in the applicable period.
B. FEES TO ADMINISTRATIVE AGENT. Company agrees to pay to
Administrative Agent such fees in the amounts and at the times separately agreed
upon between Company and Administrative Agent.
2.8 PREPAYMENTS AND REDUCTIONS IN COMMITMENTS; GENERAL PROVISIONS REGARDING
PAYMENTS.
A. PREPAYMENTS AND REDUCTIONS IN COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS. Any Borrower may, upon not less
than five Business Days' prior written notice, at any time and from time
to time prepay any Pro Rata Loans on any Business Day in full or ratably
in part without penalty; PROVIDED, that prepayments of Pro Rata Loans in
part shall be in an aggregate minimum principal amount of $5,000,000 and
integral multiples of $1,000,000 in excess of that amount. No Borrower
may voluntarily prepay any Bid Rate Loan except (i)with the consent of
the Lender making such Loan or (ii)on the basis specified by the
Applicable Borrower in the Notice of Bid Rate Borrowing relating
35
thereto. Any Borrower may prepay Swing Line Loans at any time in full or
in part without penalty.
(ii) VOLUNTARY REDUCTIONS OF COMMITMENTS. Company may, upon not
less than three Business Days' prior written notice to Administrative
Agent, at any time and from time to time terminate in whole or
permanently reduce in part, without premium or penalty, the Total Pro
Rata Commitments in an amount up to the amount by which the Total Pro
Rata Commitments exceed the Total Utilization at the time of such
proposed termination or reduction; PROVIDED that any such partial
reduction of the Commitments shall be in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that amount.
Company's notice to Administrative Agent shall designate the date (which
shall be a Business Day) of such termination or reduction and the amount
of any partial reduction, and such termination or reduction of the
Commitments shall be effective on the date specified in Company's notice
and shall reduce the Pro Rata Commitment of each Lender proportionately
to its Pro Rata Share.
(iii) PREPAYMENTS DUE TO REDUCTIONS OF COMMITMENTS. Borrowers
shall from time to time prepay their respective Pro Rata Loans to the
extent necessary so that the aggregate outstanding principal amount of
the Loans shall not at any time exceed the Total Pro Rata Commitments
then in effect. Borrowers shall from time to time prepay their
respective Swing Line Loans to the extent necessary so that the aggregate
principal amount thereof shall not at any time exceed the Total Pro Rata
Commitments then in effect.
(iv) GENERAL PROVISIONS REGARDING PREPAYMENTS. All prepayments
shall include payment of accrued interest on the principal amount being
prepaid. Any Eurodollar Rate Loan which is prepaid prior to the end of
any Interest Period applicable thereto shall be accompanied by payment of
any amounts required pursuant to subsection 2.10C, except as set forth in
subsection 2.10B(i).
B. MANNER AND TIME OF PAYMENT. All payments by Borrowers of
principal, interest, fees and other Obligations hereunder shall be made in
Dollars in same day funds, and delivered (i)in the case of any Swing Line Loan,
subject to the second paragraph of subsection 2.8C, to the Swing Line Lender on
the date due at the Administrative Agent's Account or at such other office of
such Lender as may be designated by such Lender to Company; and (ii)in all other
cases, to Administrative Agent by deposit to Administrative Agent's Account, not
later than 3:00 p.m. (New York City time) on the date due for the account of the
applicable Lender or Lenders. Funds received after the required time on the due
date shall be deemed to have been paid by Company, DFFI or Solvest, as the case
may be, on the next succeeding Business Day.
36
The Applicable Borrower and Swing Line Lender shall give Administrative Agent
prompt notice of each Swing Line Loan and any payment thereof.
C. APPORTIONMENT OF PAYMENTS. Subject to the second paragraph of
this subsection 2.8C, (i) aggregate principal and interest payments in
respect of Pro Rata Loans shall be apportioned among all outstanding Pro Rata
Loans to which such payments relate, FIRST, as to interest ratably in
accordance with the respective accrued and unpaid amounts of such interest,
and SECOND, as to principal ratably in accordance with the respective
outstanding amounts of such principal, and (ii)all principal and interest
payments in respect of any Bid Rate Loans shall be apportioned ratably among
Lenders making such Bid Rate Loans in accordance with the respective
outstanding principal amounts of, and the respective interest rates
applicable to, such Bid Rate Loans. Administrative Agent shall promptly (and
if practicable on the same Business Day as payments are received) distribute
to each Lender at its primary address set forth below its name on the
applicable signature page hereof (or set forth in Section 13 of the
applicable Assignment and Acceptance Agreement), or at such other address as
any Lender may request by notice to Administrative Agent in accordance with
the terms of this Agreement, its share of all such payments received by
Administrative Agent on behalf of such Lender when received by Administrative
Agent. Notwithstanding the foregoing provisions of this subsection 2.8C, if,
pursuant to the provisions of subsection 2.10B(ii) any Notice of Pro Rata
Borrowing or Notice of Conversion/Continuation is withdrawn as to any
Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of
its Pro Rata Share of Eurodollar Rate Loans or if any Loan of an Affected
Lender is converted into a Base Rate Loan, Administrative Agent shall give
effect thereto in apportioning payments received thereafter.
ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY
NOTWITHSTANDING, UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF ANY EVENT OF
DEFAULT SPECIFIED IN SECTION 7.1 OR AFTER THE ACCELERATION OF THE MATURITY OF
THE LOANS AND THE OTHER AMOUNTS REFERRED TO IN SECTION 7 OR TERMINATION OF THE
PRO RATA COMMITMENTS, ALL PAYMENTS BY ANY BORROWER RELATING TO THE LOANS AND THE
OTHER OBLIGATIONS OF SUCH BORROWER SHALL BE MADE TO ADMINISTRATIVE AGENT FOR THE
ACCOUNT OF LENDERS AND ALL AMOUNTS RECEIVED BY ADMINISTRATIVE AGENT WHICH ARE TO
BE APPLIED TO THE PAYMENT OF THE OBLIGATIONS OF SUCH BORROWER SHALL BE
DISTRIBUTED FIRST TO SWING LINE LENDER TO THE EXTENT OF THE UNPAID PRINCIPAL OF,
AND ACCRUED INTEREST ON, SWING LINE LOANS OF SUCH BORROWER AND SECOND TO LENDERS
IN SUCH A MANNER THAT EACH LENDER RECEIVES ITS PROPORTIONATE SHARE OF SUCH
AMOUNTS BASED ON THE OUTSTANDING PRINCIPAL AMOUNTS OF ALL LOANS OF SUCH BORROWER
THEN OUTSTANDING AND (SUBJECT TO THE LAST SENTENCE OF THE FIRST PARAGRAPH OF
THIS SUBSECTION 2.8C), THE AMOUNT OF ALL OTHER OBLIGATIONS OF SUCH BORROWER THEN
PAYABLE.
37
D. PAYMENTS ON NON-BUSINESS DAYS. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day, the
payment shall be made on the next succeeding Business Day and such extension of
time shall be included in the computation of the payment of interest hereunder
or under any note issued hereunder and of the fees hereunder; PROVIDED, HOWEVER,
that if the day on which payment relating to a Eurodollar Rate Loan is due is
not a Business Day but is a day of the month after which no further Business Day
occurs in that month, then the due date thereof shall be the next preceding
Business Day.
2.9 USE OF PROCEEDS.
A. LOANS. The proceeds of the Loans shall be used by Borrowers for
general corporate purposes of Company, its Subsidiaries and its Affiliates,
which for purposes of this Agreement shall be deemed to include, by way of
example but not limitation, working capital, the repayment on the Closing Date
of loans outstanding under the Existing Credit Agreement, the payment of Pro
Rata Loans, Swing Line Loans and Bid Rate Loans, financing acquisitions, and
payment of dividends on, and repurchasing common stock of, Company.
B. MARGIN REGULATIONS. No portion of the proceeds of any borrowing
under this Agreement shall be used by Company or any of its Subsidiaries in any
manner that might cause the borrowing or the application of such proceeds to
violate Regulation G, Regulation U, Regulation T or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board or
to violate the Exchange Act, in each case as in effect on the date or dates of
such borrowing and such use of proceeds.
2.10 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
Notwithstanding any other provision of this Agreement to the contrary,
the following provisions shall govern with respect to Eurodollar Rate Loans as
to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as practicable
after 10:00 a.m. (New York City time) on each Interest Rate Determination Date
for a Eurodollar Rate Loan, Administrative Agent shall determine (which
determination shall, absent manifest error, be final, conclusive and binding
upon all parties) the interest rate that shall apply to the Eurodollar Rate
Loans for which an interest rate is then being determined for the applicable
Interest Period and shall promptly give notice thereof (in writing or by
telephone confirmed in writing) to the Applicable Borrower and each applicable
Lender; PROVIDED, that, subject to subsection 2.10B(i)(a) below, if one or more
(but not all) Reference Banks fails to timely provide to Administrative Agent
the information with respect to such Reference Banks
38
required to make such determination, the applicable rate shall be determined on
the basis of the information provided by the Reference Banks timely providing
such information.
B. RATE NOT ASCERTAINABLE, INCREASED COSTS AND ILLEGALITY.
(i) In the event of a reasonable determination, which
determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto:
(a) by one or more Reference Banks on any Interest Rate
Determination Date for any Interest Period that, by reason of any
changes arising on or after the date of this Agreement affecting
the international interbank Eurodollar market or affecting the
position of such Reference Bank (or its applicable Eurodollar
lending office) in such market, adequate and fair means do not
exist for ascertaining the applicable interest rate on the basis
provided for in the definition of Adjusted Eurodollar Rate or such
Reference Bank or Banks are not as a matter of general practice
offering to first class banks in the international interbank
Eurodollar market Dollar deposits with maturities comparable to
the Interest Period of, and in amounts comparable to, the
applicable Eurodollar Rate Loans; or
(b) by any Lender at any time, that such Lender has
incurred or shall incur increased costs or reductions in the
amounts or in the rate of return received or receivable hereunder
with respect to any Loan in an amount determined by such Lender to
be material because of (x) any change since the date of this
Agreement in any applicable law, governmental rule, regulation,
guideline or order (or in the interpretation or administration
thereof and including the adoption of any new law or governmental
rule, regulation, guideline or order) (such as, for example, but
not limited to, a change in official reserve requirements, but in
all events excluding such reserve and other requirements with
respect to Eurodollar Rate Loans that are reflected in the
definition of Adjusted Eurodollar Rate), or (y) in the case of a
Eurodollar Rate Loan, any other circumstances affecting such
Lender or the international interbank Eurodollar market or the
position of such Lender in such market; or
(c) by any Lender at any time, that the making or
continuance of any Loan has become unlawful as a result of
compliance by such Lender in good faith with any law, governmental
rule, regulation, guideline or order, or has become impracticable
as a result of a contingency occurring after the date of this
Agreement
39
which materially and adversely affects the international interbank
Eurodollar market;
then, and in any such event, such Reference Bank(s) or Lender (Reference
Bank or Lender, an "AFFECTED LENDER"), as applicable, on such date may
give notice (by telephone, confirmed in writing) to each Borrower and to
Administrative Agent of such determination (which notice Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter,
(x)in the case of clause (a) above, Eurodollar Rate Loans shall no longer
be available until such time as Administrative Agent notifies Company and
Lenders that the circumstances giving rise to such notice no longer
exist, and any Notice of Borrowing or Notice of Conversion/Continuation
given by the Applicable Borrower with respect to such Eurodollar Rate
Loans which have not yet been made, converted or continued shall be
deemed rescinded by the Applicable Borrower, (y) in the case of clause (b)
above, the Applicable Borrower shall pay to such Affected Lender, within
15 Business Days of written demand therefor together with a statement
showing the basis for the calculation thereof, such additional amounts
(in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Affected Lender in its
discretion shall reasonably determine) as shall be required to compensate
such Affected Lender for such increased costs or reductions in amounts
receivable hereunder incurred or suffered by such Affected Lender at any
time commencing on and after the ninetieth day following the date of its
written notice pursuant to this subsection 2.10B; PROVIDED, HOWEVER, that
the Affected Lender shall not have the right to collect payments from any
Borrower pursuant to this subsection 2.10B unless it is the policy of
such Affected Lender, at the time of such collection, to collect similar
payments from borrowers (if any) who are similarly situated as Company,
including, without limitation, with respect to credit standing, in
connection with credit facilities similar to those made available
pursuant to this Agreement, where the documents governing such credit
facilities establish the right of such Lender to collect such payments.
Thereafter, the Applicable Borrower may convert each outstanding
Eurodollar Rate Loan then outstanding of such Affected Lender, upon at
least three (3) Business Days' notice to Administrative Agent and such
Affected Lender, into a Base Rate Loan (PROVIDED no Borrower shall be
required to pay any amounts under subsection 2.10C as a result thereof),
which new Loan shall, notwithstanding any provision in this Agreement to
the contrary, have the same Interest Period as the Eurodollar Rate Loan
converted, and with respect to Eurodollar Rate Loans to be made on or
after the date of such notice, from and after the date which is three (3)
Business Days after Administrative Agent and such Affected Lender receive
notice from the Applicable Borrower
40
of its election to so require, such Lender shall make a Loan, as part of
any requested borrowing of Eurodollar Rate Loans, as a Base Rate Loan,
which Base Rate Loan shall, for all purposes, have the same Interest
Period as the Eurodollar Rate Loans made by other Lenders on such Funding
Date, and (z) in the case of clause (c) above, the Applicable Borrower
shall take one of the actions specified in subsection 2.10B(ii) as
promptly as possible and, in any event, within the time period required
by law.
In the event any Borrower receives a notice from an Affected
Lender pursuant to this subsection 2.10B, Company may, within 90 days
after the date such notice is given and so long as such notice shall not
have been terminated by such Affected Lender and no Event of Default
shall have occurred and be continuing, elect to terminate such Affected
Lender as a party to this Agreement; PROVIDED, that concurrently with
such termination, (i) each Borrower shall pay to such Affected Lender all
interest and fees and other amounts (including without limitation amounts
owed under this subsection 2.10B) owed to such Affected Lender by such
Borrower through such date of termination and (ii) another financial
institution that is an Eligible Assignee shall purchase for cash the
Loans of the Affected Lender and shall have agreed to become a Lender for
all purposes under this Agreement and to assume all obligations of the
Affected Lender to be terminated as of such date pursuant to an
Assignment and Acceptance Agreement that shall have become effective
pursuant to subsection 9.2B.
(ii) Upon the giving of notice by an Affected Lender referred to
in subsection 2.10B(i)(c), Borrowers' rights to request of such Affected
Lender and such Lender's obligation to make Eurodollar Rate Loans shall
be immediately suspended to the extent specified in such Affected
Lender's notice, and (a) with respect to Eurodollar Rate Loans to be made
on or after the date of such notice, such Lender shall make a Loan, as
part of any requested borrowing of Eurodollar Rate Loans, as a Base Rate
Loan, which Base Rate Loan shall, for all purposes, have the same
Interest Period as the Eurodollar Rate Loans made by other Lenders on
such Funding Date, and (b) with respect to Eurodollar Rate Loans then
outstanding, the Applicable Borrower shall, upon at least 3 Business
Days' notice to Administrative Agent and the Affected Lender (unless a
shorter time period is required by law, in which case such notice shall
be given within the time period required by law), convert each such Loan
into a Base Rate Loan, which new Loan shall, notwithstanding any
provision in this Agreement to the contrary, have the same Interest
Period as the Eurodollar Rate Loan so converted; PROVIDED, that in each
case: (i) each Lender agrees (to the extent consistent with internal
policies) to designate a different applicable
41
lending office for Eurodollar Rate Loans if such designation would avoid
the illegality described in subsection 2.10B(i)(c), but only so long as
such designation would not result in any additional costs, expenses or
risks to such Lender that are not reimbursed by Borrowers pursuant hereto
and would not, in the judgment of such Lender, affect any certification
delivered by it pursuant to subsection 2.11 hereof or be otherwise
disadvantageous to such Lender, and Company hereby agrees to pay all
reasonable expenses incurred by any Lender in utilizing another lending
office of such Lender pursuant to this clause (i); and (ii) in the event
that such Affected Lender determines at any time following its giving of
such notice that such Affected Lender may lawfully make Eurodollar Rate
Loans of any type referred to in such notice, such Affected Lender shall
promptly give notice (by telephone confirmed in writing) to
Administrative Agent and Company (which notice Administrative Agent shall
promptly transmit to each Lender) of that determination, whereupon
Borrowers' rights to request of such Lender and such Lender's obligation
to make Eurodollar Rate Loans of such type shall be restored.
C. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST
PERIODS. Each Borrower shall compensate each Lender within 10 Business Days
following receipt of a reasonable written request by that Lender (which
request shall set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including, without limitation,
any interest paid by that Lender to lenders of funds borrowed by it to make
or carry its Eurodollar Rate Loans to such Borrower and any loss, expense or
liability sustained by that Lender in connection with the liquidation or
re-employment of such funds) which that Lender may sustain: (i) if for any
reason (other than a default by that Lender) a borrowing of any Eurodollar
Rate Loan by such Borrower does not occur on a date specified therefor by it
in the applicable Notice of Borrowing (or any telephonic request therefor),
or a conversion to or continuation of any Eurodollar Rate Loan of such
Borrower does not occur on a date specified therefor by it in a Notice of
Conversion/Continuation or a telephonic request for conversion or
continuation, (ii) if any prepayment or conversion of any of its Eurodollar
Rate Loans to such Borrower occurs on a date that is not the last day of an
Interest Period applicable to that Loan, except as set forth in subsection
2.10B(i), (iii) if any prepayment of any of its Eurodollar Rate Loans to such
Borrower is not made on any date specified in a notice of prepayment given by
such Borrower, or (iv) as a consequence of any other default by such Borrower
in the repayment of its Eurodollar Rate Loans when required by the terms of
this Agreement.
42
D. EURODOLLAR RATE TAXES. Company agrees that:
(i) Promptly upon notice from any Lender to the Applicable
Borrower, such Borrower will pay, prior to the date on which penalties
attach thereto, all present and future income, stamp and other taxes,
levies or costs and charges whatsoever imposed, assessed, levied or
collected on or in respect of a Loan to such Borrower solely as a result
of the interest rate being determined by reference to the Adjusted
Eurodollar Rate and/or the provisions of this Agreement relating to the
Adjusted Eurodollar Rate and/or the recording, registration, notarization
or other formalization of any thereof and/or any payments of principal,
interest or other amounts made on or in respect of a Loan to such
Borrower when the interest rate is determined by reference to the
Adjusted Eurodollar Rate (all such taxes, levies, costs and charges being
herein collectively called "EURODOLLAR RATE TAXES"); PROVIDED, that
Eurodollar Rate Taxes shall not include taxes imposed on or measured by
the overall income of that Lender (whether gross or net income) or
franchise taxes by the United States of America or any political
subdivision or taxing authority thereof or therein, or taxes on or
measured by the overall income of any foreign branch, operation or
subsidiary of that Lender (whether gross or net income) or franchise
taxes by any foreign country or subdivision thereof in which that branch,
operation or subsidiary is organized, resident or doing business or any
withholding taxes the subject of subsection 2.11 hereof imposed by the
United States with respect to payment of interest. The Applicable
Borrower shall also pay such additional amounts equal to increases in
taxes payable by that Lender described in the foregoing provision which
increases are attributable to payments made by such Borrower described in
the immediately preceding sentence or this sentence. Promptly after the
date on which payment of any such Eurodollar Rate Tax is due pursuant to
applicable law, the Applicable Borrower will, at the request of that
Lender, furnish to that Lender evidence, in form and substance
satisfactory to that Lender, that such Borrower has met its obligations
under this subsection 2.10D(i); and
(ii) The Applicable Borrower will indemnify each Lender against,
and reimburse each Lender within 10 Business Days of a demand for, any
Eurodollar Rate Taxes, as determined by that Lender in its good faith
discretion. Each Lender shall provide the Applicable Borrower with
information reasonably indicating the basis for such Eurodollar Rate
Taxes and with appropriate receipts for any payments or reimbursements
made by such Borrower pursuant to this subsection 2.10D(ii).
Notwithstanding the foregoing, no Lender shall have the right to collect
Eurodollar Rate Taxes from any Borrower pursuant to this subsection
2.10D(ii) unless it is the policy of such Lender, at the
43
time of such collection, to collect Eurodollar Rate Taxes from borrowers
(if any) who are similarly situated as such Borrower, including, without
limitation, with respect to credit standing, in connection with credit
facilities similar to those made available pursuant to this Agreement,
where the documents governing such credit facilities establish the right
of such Lender to collect Eurodollar Rate Taxes.
E. BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of any of its
branch offices or the office of an Affiliate of that Lender; PROVIDED, that
no such Lender shall be entitled to receive any greater amount under
subsection 2.10B, subsection 2.10D, subsection 2.11 or subsection 2.6G as a
result of the transfer of any such Loan than such Lender would be entitled to
immediately prior thereto unless (i) such transfer occurred at a time when
circumstances giving rise to the claim for such greater amount did not exist
and were not reasonably foreseeable by such Lender, or (ii) such claim would
have arisen even if such transfer had not occurred, or (iii) such transfer
was made to avoid illegality of the type described in subsection 2.10B(i)(c).
F. AFFECTED LENDER'S OBLIGATION TO MITIGATE. Each Lender agrees
that, as promptly as practicable after it becomes aware of (i) the occurrence
of an event or the existence of a condition described in subsection
2.10B(i)(b) that would cause such Lender to make a determination of the
nature described therein or (ii) the imposition, assessment, or collection of
any Eurodollar Rate Taxes (as defined in subsection 2.10D(i)) on or in
respect of any Eurodollar Rate Loan, such Lender will, to the extent not
inconsistent with such Lender's internal policies and without undue
administrative burden, use reasonable efforts to make, fund or maintain the
affected Eurodollar Rate Loan through another lending office of such Lender
if, as a result thereof, the additional monies that would otherwise be
required to be paid in respect of such Loans pursuant to subsection 2.10B(i)
or the Eurodollar Rate Taxes or other amounts that would otherwise be
required to be paid in respect of such Loans pursuant to subsection 2.10D
would be materially reduced or the illegality or other adverse circumstances
that would otherwise require conversion or prepayment of such Loans pursuant
to subsection 2.10B would cease to exist and if, as determined by such Lender
in its reasonable discretion, the making, funding, or maintaining of such
Loans through such other lending office would not result in any additional
costs, expenses or risks to such Lender that are not reimbursed by Company
pursuant hereto and would not affect any certifications delivered by it
pursuant to subsection 2.11 hereof and would not be otherwise disadvantageous
to such Lender. Company hereby agrees to pay all reasonable expenses
incurred by Lender in utilizing another lending office of Lender
44
pursuant to this subsection 2.10F with respect to Loans to any Borrower.
G. COMPANY'S RIGHT TO REMOVE AFFECTED LENDER. In the event any
Borrower receives a notice from an Affected Lender pursuant to clause (b) of
subsection 2.10B(i) or subsections 2.10D(i) or 2.10D(ii) or is required to
withhold or deduct any Taxes pursuant to subsection 2.11, Company may, within
30 days after the date such notice is given and so long as such notice shall
not have been terminated by such Affected Lender with respect to subsection
2.10B(i) or 2.10D(i) or the date on which such withholding obligation arises
under subsection 2.11A and no Event of Default shall have occurred and be
continuing, elect to terminate such Affected Lender as a party to this
Agreement; PROVIDED, that concurrently with such termination, (i) each
Borrower shall pay to such Affected Lender all interest and fees and other
amounts (including without limitation amounts owed under this subsection 2.10
or subsection 2.11) then due and owing to such Affected Lender by such
Borrower through such date of termination, and (ii) another financial
institution that is an Eligible Assignee shall purchase for cash the Loans of
the Affected Lender and shall have agreed to become a Lender for all purposes
under this Agreement and to assume all obligations (including all outstanding
Loans) of the Affected Lender to be terminated as of such date, pursuant to
an Assignment and Acceptance Agreement that shall have become effective
pursuant to subsection 9.2B.
2.11 CERTAIN TAX PROVISIONS.
A. Any and all payments or reimbursements made under this Agreement
shall be made free and clear of, and without deduction or withholding for, any
and all taxes, levies, imposts, deductions, charges or withholdings now or
hereafter imposed, levied or assessed, and all liabilities with respect thereto,
EXCLUDING taxes imposed on the overall income (whether gross or net) of a Lender
or Administrative Agent by the jurisdiction in which such Lender or
Administrative Agent is organized or in which its principal office or applicable
lending office is located or any political subdivision or taxing authority
therein (all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings and liabilities being herein referred to as "TAXES"), except as set
forth in the following paragraph.
If any Borrower is required by applicable law to withhold or
deduct any amounts with respect to Taxes or with respect to income taxes imposed
by Liberian or Bermudan law, then such Borrower shall promptly pay to the
applicable authority the amount so required to be withheld or deducted, forward
to Administrative Agent an official receipt or other documentation reasonably
satisfactory to Administrative Agent evidencing such payment (which
Administrative Agent shall forward to the applicable Lender), and pay to
Administrative Agent for the
45
account of the relevant Lender or Administrative Agent such additional amount as
is necessary to ensure that the net amount actually received by each Lender and
Administrative Agent equals the sum it would have received had no such
deductions or withholdings been made. The Applicable Borrower shall indemnify
and hold harmless each Lender and Administrative Agent against, and reimburse
each Lender and Administrative Agent for all Taxes within 15 days after written
demand therefor. Notwithstanding the foregoing, no Borrower shall be obligated
to reimburse, or to pay any increased amount to, any Lender or Administrative
Agent with respect to any United States withholding taxes if such Lender or
Administrative Agent is not entitled on the date on which this Agreement becomes
effective (or in the case of a Lender which becomes a party hereto after such
date, on the date on which the relevant Assignment and Acceptance Agreement
becomes effective) to receive all amounts due hereunder without withholding or
deduction for or on account of Taxes imposed by the United States. If any
Borrower is required to withhold or deduct any Taxes, or to reimburse a Lender
or Administrative Agent for any such Taxes, the applicable Lender shall be an
"AFFECTED LENDER" and Company shall have the rights set forth in subsection
2.10G to replace such Lender.
B. Each Lender (including Administrative Agent, if applicable)
organized under the laws of a jurisdiction other than the United States or any
subdivision thereof shall provide to Company, with a copy to Administrative
Agent, within 15 days after the Closing Date (or, with respect to any Lender
becoming a party to this Agreement subsequent to the Closing Date, concurrently
with the delivery of the relevant Assignment and Acceptance Agreement) two
United States Internal Revenue Service Forms 4224 or Forms 1001, as applicable
(or successor forms) properly completed and claiming a complete exemption from
withholding or deduction for or on account of Taxes imposed by the United
States. Each such Lender further agrees to deliver to Company, with a copy to
Administrative Agent, on or before the date such form expires or after the
occurrence of any event requiring a change in the most recent form delivered by
it any amendments or supplements or additional forms as may be reasonably
requested by Company or Administrative Agent evidencing such exemption unless an
event (including any changes after the date hereof in any applicable treaty, law
or regulation) has occurred prior to the date on which such documentation is to
be delivered and such Lender notifies Company and Administrative Agent that it
is not entitled to receive payments without deduction or withholding on account
of Taxes imposed by the United States.
C. Each Lender (including Administrative Agent, if applicable) that
does not have a permanent place of business in the State of California shall,
within 15 days after the Closing Date (or, with respect to any Lender becoming a
party to this Agreement subsequent to the Closing Date, concurrently with the
46
delivery of the relevant Assignment and Acceptance Agreement), (i) provide to
Company, with a copy to Administrative Agent, two California Forms 587 or Forms
590, as applicable (or successor forms), properly completed and claiming a
complete exemption from withholding or deduction for or on account of Taxes
imposed by the State of California or (ii) otherwise represent to Company and
Administrative Agent that it is exempt from any such withholding or deduction.
Each such Lender further agrees to deliver to Company, with a copy to
Administrative Agent, on or before the date any such form expires or after the
occurrence of any event requiring a change in the most recent form delivered by
it (including without limitation any change in residency or address), any
amendments or supplements or additional forms as may be reasonably requested by
Company or Administrative Agent evidencing such exemption unless an event
(including any changes after the date hereof in any applicable treaty, law or
regulation) has occurred prior to the date on which such documentation is to be
delivered and such Lender notifies Company and Administrative Agent that it is
not entitled to receive payments without deduction or withholding on account of
Taxes imposed by the State of California.
SECTION 3. CONDITIONS TO LOANS
The obligations of Lenders to make Loans hereunder are subject to the
satisfaction of the following conditions.
3.1 CONDITIONS TO INITIAL LOANS.
The obligations of the Lenders to make the initial Loans hereunder are,
in addition to the conditions precedent specified in subsection 3.2, subject to
prior or concurrent satisfaction of the following conditions:
A. COMPANY DOCUMENTS. On or before the Closing Date, Company shall
deliver or cause to be delivered to Lenders (or to Administrative Agent for
Lenders with sufficient originally executed copies, where appropriate, for each
Lender) the following, each, unless otherwise noted, dated the Closing Date and
in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of its Certificate of Incorporation,
together with a good standing certificate from its jurisdiction of
incorporation, each to be dated a recent date prior to the Closing Date;
(ii) Copies of its Bylaws, certified as of the Closing Date by
its corporate secretary or an assistant secretary;
47
(iii) Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this Agreement and
the Company Guaranty and approving and authorizing the loans and
transactions contemplated by this Agreement and the Company Guaranty,
certified as of the Closing Date by its corporate secretary or an
assistant secretary as being in full force and effect without
modification or amendment;
(iv) Signature and incumbency certificates of its officers
executing this Agreement and the Company Guaranty and the other documents
to be furnished hereunder on or prior to the Closing Date;
(v) Executed originals of this Agreement and the Company
Guaranty; and
(vi) Such other documents as Administrative Agent may reasonably
request.
B. DFFI AND SOLVEST DOCUMENTS. On or before the Closing Date, each
of DFFI and Solvest shall deliver or cause to be delivered to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender) the following, each, unless otherwise noted,
dated the Closing Date and in form and substance satisfactory to the
Administrative Agent:
(i) Certified copies of its Memorandum of Association, Articles
of Association and other charter documents, together with a good standing
certificate from its jurisdiction of incorporation, each to be dated a
recent date prior to the Closing Date;
(ii) Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this Agreement and
approving and authorizing the loans and transactions contemplated by this
Agreement, certified as of the Closing Date by its corporate secretary or
an assistant secretary as being in full force and effect without
modification or amendment;
(iii) Signature and incumbency certificates of its officers
executing this Agreement and the other documents to be furnished
hereunder on or prior to the Closing Date;
(iv) Executed originals of this Agreement; and
(v) Such other documents as Administrative Agent may reasonably
request.
C. OPINIONS OF COUNSEL. Administrative Agent shall have received
originally executed copies of favorable written opinions
48
of O'Melveny & Xxxxx and Xxxxxxxx Xxxxxxxx Xxxxx & Xxxxxx, counsel and local
counsel for Company, in form and substance reasonably satisfactory to
Administrative Agent and its counsel, each dated as of the Closing Date and
setting forth substantially the matters in the opinions designated in
EXHIBITI IX and EXHIBIT X, respectively, annexed hereto.
D. TERMINATION OF EXISTING CREDIT AGREEMENT. The Administrative
Agent shall have received evidence, in form and substance satisfactory to it,
that the Existing Credit Agreement has been terminated on or before the Closing
Date, and all outstanding loans made to the Company pursuant thereto have been
repaid on or before the Closing Date.
E. NO MATERIAL ADVERSE CHANGE. There shall have occurred no material
adverse change in the business of the Company and its Subsidiaries, taken as a
whole, since December 30, 1995.
F. ABSENCE OF LITIGATION. There shall exist no action, suit,
investigation, litigation or proceeding, pending or threatened, in any court or
before any arbitrator or governmental instrumentality that purports to enjoin,
restrain or prohibit, or adversely affect the validity of, this Agreement.
3.2 ADDITIONAL CONDITIONS.
The obligations of the Lenders to make Loans on each Funding Date are
subject to the following further conditions precedent:
A. To the extent required by subsection 2.1, 2.2 or 2.3,
Administrative Agent (or, in the case of a Swing Line Loan made under subsection
2.3, Swing Line Lender) shall have received, before any Funding Date, an
originally executed Notice of Borrowing (or a telecopy or facsimile thereof), in
accordance with the requirements of such subsection, signed by (i) a Responsible
Officer of the Applicable Borrower or any other officer [or employee] of the
Applicable Borrower designated by a Reponsible Officer of the Applicable
Borrower in a writing delivered to Administrative Agent, which Responsible
Officer shall in each case have delivered to Administrative Agent, on or prior
to such date, evidence of authorization to request Loans on behalf of the
Applicable Borrower, and (ii) in the case of a Notice of Borrowing being
delivered by DFFI or Solvest, a Responsible Officer or other officer [or
employee] of Company described in the foregoing clause (i).
B. As of that Funding Date, unless the Total Utilization will not be
increased as a result of such borrowing:
(i) The representations and warranties contained herein shall
be true, correct and complete in all material respects on and as of that
Funding Date (immediately prior to, and after giving effect to such
funding) to the same
49
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in
which case such representations and warranties shall have been true,
correct and complete in all material respects on and as of such earlier
date;
(ii) No Event of Default, Cross Default or Potential Event of
Default shall have occurred and be continuing or would result from the
Loans to be made on that Funding Date;
(iii) Each Borrower shall have performed in all material respects
all agreements and satisfied all conditions which this Agreement provides
shall be performed or satisfied by it on or before that Funding Date;
(iv) No order, judgment or decree of any court, arbitrator or
governmental authority shall purport to enjoin or restrain any Lender
from making the Loans to be made by it on that Funding Date; and
(v) The making of the Loans requested on such Funding Date
shall not violate any law including, without limitation, Regulation G,
Regulation T, Regulation U or Regulation X of the Board of Governors of
the Federal Reserve System.
SECTION 4. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the
Loans hereunder, Company represents and warrants to each Lender that the
following statements are true, correct and complete:
4.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING AND SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Borrower is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and each Borrower has all requisite corporate
power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into this Agreement,
and to carry out the transactions contemplated hereby. Each of the Material
Subsidiaries of Company is duly organized, validly existing and in good standing
in the respective jurisdiction of incorporation of such Subsidiary.
B. QUALIFICATION. Company and each of its Material Subsidiaries is
qualified to do business wherever necessary to carry out its business and
operations, except in jurisdictions in
50
which the failure to be so qualified would not have a Material Adverse Effect.
4.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and
performance of this Agreement and the Company Guaranty, the payment and
performance of all Obligations, and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of each Borrower.
B. NO CONFLICT. The execution, delivery and performance by
Borrowers of this Agreement and the Company Guaranty, the payment and
performance of the Obligations, and the consummation of the borrowing,
repayment and other payment transactions contemplated hereby do not and will
not (i) violate the Certificate of Incorporation or Bylaws of Company or the
Memorandum of Association or Articles of Incorporation of DFFI or Solvest, as
the case may be, (ii) violate any order, judgment or decree of any court or
other agency of government binding on Company or DFFI or Solvest or any of
their respective property or assets, (iii) assuming the Lenders' actions are
consistent with the representation made in subsection 9.1, violate any
provision of law applicable to Company or DFFI or Solvest, (iv) conflict
with, result in a breach of or constitute (with due notice or lapse of time
or both) a default under any Contractual Obligation of Company or DFFI or
Solvest pursuant to which Company or DFFI or Solvest or any of their
respective properties or assets are bound, (v) result in or require the
creation or imposition of any Lien upon any material properties or assets of
Company or DFFI or Solvest, or (vi) require any approval or consent of
stockholders, or require any approval or consent of any Person under any
Contractual Obligation, of Company or DFFI or Solvest, except with respect to
this clause (vi) for such approvals or consents as have been obtained on or
before the Closing Date, copies of which have been provided to Lenders on or
before the Closing Date.
C. GOVERNMENTAL CONSENTS. Assuming the Lenders' actions are
consistent with the representation made in subsection 9.1, the execution,
delivery and performance by Borrowers of this Agreement and the Company
Guaranty, the payment and performance of their respective Obligations by
Company, DFFI and Solvest, and the consummation of the borrowing, repayment and
other payment transactions contemplated hereby do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body, except for making a periodic report to the Securities and Exchange
Commission with respect to the execution hereof and material modifications or
amendments, if any, hereto and making filings on Form CQ-1 with the Federal
Reserve Bank of New York.
51
D. BINDING OBLIGATION. This Agreement has been duly executed and
delivered by each Borrower and is the legally valid and binding obligation of
such Borrower, enforceable against such Borrower in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability. The Company Guaranty has been
duly executed and delivered by Company and is the legally valid and binding
obligation of Company, enforceable against Company in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
4.3 FINANCIAL CONDITION.
The consolidated balance sheet of Company at December 30, 1995 and the
related consolidated statements of income and cash flows for the Fiscal Year
ended as of said date, which have been examined by Xxxxxx Xxxxxxxx & Co., who
delivered an unqualified opinion with respect thereto, were prepared in
conformity with GAAP. All such financial statements fairly present the
consolidated financial position of Company and its Subsidiaries as at the date
thereof and the consolidated results of operations and cash flows of Company and
its Subsidiaries for the period covered thereby.
4.4 NO MATERIAL ADVERSE CHANGE.
Since December 30, 1995 there has been no material adverse change in the
financial condition, operations or business of Company and its Subsidiaries,
taken as a whole.
4.5 LITIGATION; ADVERSE FACTS.
There is no action, suit, proceeding, arbitration (whether or not
purportedly on behalf of Company or any of its Subsidiaries), or, to the
knowledge of Company, governmental investigation, at law or in equity or before
or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, pending or, to the
knowledge of Company, threatened with respect to any domestic action, suit,
proceeding, governmental investigation or arbitration, or pending for more than
30 days or, to the knowledge of Company, threatened with respect to any foreign
action, suit, proceeding, governmental investigation or arbitration against or
affecting Company or any of its Subsidiaries or any material property of Company
or any of its Subsidiaries that would reasonably be expected to result in a
Material Adverse Effect.
52
4.6 PAYMENT OF TAXES.
Except to the extent permitted by subsection 5.3, all tax returns and
reports of Company and its Subsidiaries required to be filed by any of them have
been timely filed in compliance with all applicable laws, regulations, rules and
procedures, except where the failure to so timely file or comply with applicable
laws, regulations, rules and procedures has not had and would not reasonably be
expected to have a Material Adverse Effect. All material taxes, assessments,
fees and other governmental charges upon Company and its Subsidiaries and upon
their respective properties, assets, income, businesses and franchises which are
due and payable have been paid when due and payable except for those that are
being contested in good faith and for which adequate reserves have been provided
by Company or the applicable Subsidiary with respect to which the failure to pay
would not reasonably be expected to have a Material Adverse Effect.
4.7 GOVERNMENTAL REGULATION.
No Borrower is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940, each as amended, or under any other federal or
state statute or regulation limiting its ability to incur debt for money
borrowed.
4.8 SECURITIES ACTIVITIES.
No Borrower is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying any Margin Stock.
4.9 MARGIN STOCK.
No Borrower has used any portion of the proceeds of the Loans in
violation of subsection 2.9B hereof. Following application of the proceeds of
each Loan, not more than 25 percent of the value of the assets (either of
Company or DFFI or Solvest only or of Company or DFFI or Solvest and its
respective Subsidiaries on a consolidated basis) subject to the provisions of
subsection 6.3 or 6.4 or subject to any restriction on encumbrance or
disposition contained in any agreement or instrument, between Company or DFFI or
Solvest and any Lender or any Affiliate of any Lender, relating to debt and
within the scope of subsection 7.2, will be Margin Stock.
4.10 EMPLOYEE BENEFIT PLANS.
A. Company and its ERISA Affiliates are in compliance in all respects
with all applicable provisions of ERISA with respect to all Pension Plans and
all Multiemployer Plans, the noncompliance with which would reasonably be
expected to have a Material Adverse Effect.
53
B. No Termination Event has occurred or is reasonably expected to
occur with respect to any Pension Plan that would result in an aggregate
liability for Company, its ERISA Affiliates, or any of Company's Subsidiaries
and their respective ERISA Affiliates in excess of $25,000,000.
C. As of the most recent valuation date for any Pension Plan, the
excess of the present value (determined on the basis of reasonable assumptions
employed by the independent actuary for such Pension Plan) of the benefit
liabilities (as defined in Section 4001(a)(16) of ERISA) over the fair market
value of the assets of such Pension Plan, when added to such excess for all
other such Pension Plans, does not exceed $100,000,000.
D. Neither Company nor any ERISA Affiliate of Company has engaged in
a non-exempt "prohibited transaction," as defined in Section 4975 of the
Internal Revenue Code or ERISA in connection with any Pension Plan, under which
the aggregate liability of the Company and its ERISA Affiliates exceeds
$25,000,000.
E. There are no claims (other than routine claims for benefits),
actions or lawsuits asserted against, and neither Company nor any ERISA
Affiliate of Company has knowledge of any threatened litigation or claims
against any Pension Plan or against any fiduciary of such Pension Plan with
respect to the operation of such Pension Plan, which, if adversely determined,
would have a Material Adverse Effect.
F. Company does not maintain any welfare benefit plan within the
meaning of Section 3(1) of ERISA which provides for continuing benefits for any
participant or beneficiary after termination of employment, except as may be
required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, other than any such plans that (i)are reserved for in the financial
statements of the Company or ERISA Affiliates, or (ii)would not reasonably be
expected to have a Material Adverse Effect.
G. Neither Company nor any of its ERISA Affiliates has incurred or
reasonably expects to incur withdrawal liability to any Multiemployer Plan in
excess of $25,000,000.
4.11 ENVIRONMENTAL PROTECTION.
Each of Company and its Subsidiaries is and has been in compliance with
all Environmental Laws, whether in connection with the ownership, use,
maintenance or operation of any owned or leased property or the conduct of any
business thereon or otherwise, except for any non-compliance which would not
reasonably be expected to have a Material Adverse Effect. Neither Company, any
of its Subsidiaries nor, to the knowledge of Company, any third person at any
time occupying any property owned or leased by Company or any of its
Subsidiaries, has at any
54
time used, generated, disposed of, stored or transported to or from, any
Hazardous Materials on, under or at such property, except in compliance with all
applicable Environmental Laws other than any non-compliance which would not
reasonably be expected to have a Material Adverse Effect. To the knowledge of
Company, no Person has at any time released or threatened the release of any
Hazardous Materials in any form, quantity or concentration on, under or at any
property owned or leased by Company or its Subsidiaries in a manner which would
reasonably be expected to have a Material Adverse Effect.
SECTION 5. COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Pro Rata
Commitments or the Swing Line Commitment hereunder shall remain in effect and
until payment in full of all of the Loans and other Obligations, unless
Requisite Lenders shall otherwise give prior written consent, Company shall
perform, and, to the extent applicable, shall cause each of its Subsidiaries to
perform all covenants in this Section 5.
5.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Company will prepare consolidated financial statements in conformity with
GAAP. Company will deliver to Administrative Agent (with sufficient copies for
each Lender except with respect to subsection 5.1G):
A. as soon as practicable and in any event within 55 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year, a copy of
Company's quarterly report on Form 10-Q setting forth, in comparative form, the
corresponding figures for the corresponding Fiscal Quarter of the previous
Fiscal Year, all in reasonable detail and certified by a Responsible Officer of
Company as fairly presenting the financial condition of Company and its
Subsidiaries as at the dates indicated and the results of their operations for
the periods indicated, subject to changes resulting from audit and normal
year-end adjustment;
B. as soon as practicable and in any event within 100 days after the
end of each Fiscal Year, a copy of Company's annual report on Form 10-K setting
forth in comparative form the consolidated figures for the previous Fiscal Year,
all in reasonable detail and accompanied by a report on the financial
information contained in the annual report on Form 10-K of Xxxxxx Xxxxxxxx & Co.
or other independent certified public accountants of recognized national
standing selected by Company, which report shall state that such consolidated
financial statements present fairly the financial position of Company and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flow for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except as
55
otherwise stated therein) and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
C. together with each delivery of the reports of Company and its
Subsidiaries pursuant to subsections 5.1A and 5.1B above, a Compliance
Certificate for the Fiscal Quarter or Fiscal Year, as applicable, executed by a
Responsible Officer of Company (1)stating that the signer does not have
knowledge of the existence as at the date of the Compliance Certificate, of any
condition or event that constitutes an Event of Default, Cross Default or
Potential Event of Default or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what action Company
has taken, is taking and proposes to take with respect thereto, and
(2) demonstrating in reasonable detail compliance at the end of such accounting
periods with the restrictions contained in subsections 6.1 and 6.2 (as set forth
in EXHIBIT II);
D. promptly upon (and in any event within 5 Business Days after) any
Responsible Officer of Company obtaining knowledge of any condition or event
that constitutes an Event of Default, Cross Default or Potential Event of
Default under this Agreement, an Officer's Certificate specifying the nature and
period of existence of any such condition or event and what action Company has
taken, is taking or proposes to take with respect thereto;
E. promptly upon (and in any event within 5 Business Days after) any
Responsible Officer of Company obtaining knowledge of the institution of any
action, suit, proceeding, governmental investigation or arbitration against or
affecting Company that has not previously been disclosed by Company to Lenders
and that would reasonably be expected to have a Material Adverse Effect, Company
shall promptly give notice thereof to Lenders and provide such other information
as may be reasonably available to it to enable Lenders and their counsel to
evaluate such matters;
F. promptly upon (and in any event within 5 Business Days after) any
Responsible Officer of Company obtaining knowledge of the occurrence of any
Termination Event in connection with any Pension Plan or any trust created
thereunder, for which the amount involved exceeds $25,000,000, a written notice
specifying the nature thereof, what action Company has taken, is taking or
proposes to take with respect thereto, and, when known, any action taken by the
Internal Revenue Service or the PBGC with respect thereto;
G. promptly upon their becoming available, copies of all financial
statements, reports, notices and proxy statements sent or made available
generally by Company to its security holders or by any Subsidiary of Company
subject to the reporting requirements of the Exchange Act to its security
holders other
56
than Company or another Subsidiary, of all regular and periodic reports and all
registration statements and prospectuses, if any, filed by Company or any of its
Subsidiaries with any securities exchange or with the Securities and Exchange
Commission or any governmental authority succeeding to any of its functions; and
H. with reasonable promptness, such other information with respect to
compliance by Company with the terms of this Agreement as from time to time may
be reasonably requested by Administrative Agent acting at the direction of
Requisite Lenders.
5.2 CORPORATE EXISTENCE, ETC.
Company will, and will cause each of its Subsidiaries to, at all times
maintain its fundamental business (including, without limitation, the
fundamental businesses described under the caption "Business-Food" in Company's
Annual Report on Form 10-K for the Fiscal Year ended December 30, 1995) and
preserve and keep in full force and effect its corporate or partnership
existence and all rights, franchises and licenses material to its business;
PROVIDED, HOWEVER, that Company shall not be required to maintain the corporate
or partnership existence or rights and franchises of any Subsidiary of Company
if the failure to do so would not reasonably be expected to have a Material
Adverse Effect.
5.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Company will, and will cause each of its Subsidiaries to, pay
all taxes, assessments and other governmental charges imposed upon it or any
of its properties or assets or in respect of any of its income, businesses or
franchises before any penalty accrues thereon, and all claims (including,
without limitation, claims for labor, services, materials and supplies) for
sums that have become due and payable and that by law have or may become a
Lien upon any of its material properties or assets prior to the time when any
penalty or fine shall be incurred with respect thereto; PROVIDED that no such
tax, assessment, charge or claim need be paid if (i) being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted
and if such reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made therefor or (ii) the
failure to do so would not reasonably be expected to have a Material Adverse
Effect.
B. Company will not, nor will it permit any of its Subsidiaries to,
file or consent to the filing of any consolidated income tax return with any
Person (other than Company or any of its Subsidiaries).
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5.4 MAINTENANCE OF PROPERTIES; INSURANCE.
Company will, and will cause each of its Subsidiaries to, maintain or
cause to be maintained in good repair, working order and condition, ordinary
wear and tear excepted, all material properties used or useful in the business
of Company and its Subsidiaries from time to time, and from time to time will
make or cause to be made all appropriate repairs, renewals and replacements
thereof, except where the failure to do so would not reasonably be expected to
have a Material Adverse Effect. Company will maintain or cause to be maintained
insurance with respect to its properties and business and the properties and
businesses of its Subsidiaries no less protective in any material respect than
that carried in accordance with Company's past practices or that is prudent
given the nature of the business of Company and its Subsidiaries.
5.5 COMPLIANCE WITH LAWS, ETC.
Company shall, and shall cause each of its Subsidiaries to, comply with
the requirements of all applicable laws, rules, regulations and orders of any
governmental authority, other than those with which the failure to comply would
not have a Material Adverse Effect or those that are being contested in good
faith and for which appropriate reserves, if any, as may be required by GAAP
have been taken.
5.6 HAZARDOUS MATERIALS.
In addition to and without limiting the generality of subsection 5.5,
Company shall, and shall cause each of its Subsidiaries and its and their
respective owned or leased properties to, and shall cause its and their
respective employees, agents, contractors, subcontractors and any other Person
occupying such property to, comply with all Environmental Laws, except for any
non-compliance which would not reasonably be expected to have a Material Adverse
Effect. Neither Company nor its Subsidiaries shall release or threaten to
release any Hazardous Material in any form, quantity or concentration, on, under
or at such property in a manner which would reasonably be expected to have a
Material Adverse Effect.
5.7 MARGIN STOCK.
Each Borrower agrees to use the proceeds of the Loans in accordance with
subsection 2.9 hereof. Company will, following application of the proceeds of
each Loan, cause Margin Stock to be less than 25 percent of the value of the
assets (either of Company or DFFI or Solvest only or of Company or DFFI or
Solvest and its respective Subsidiaries on a consolidated basis) subject to
subsection 6.3 or 6.4 or any restriction on encumbrance or disposition contained
in any agreement or instrument, between
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Company or DFFI or Solvest and any Lender or any Affiliate of any Lender,
relating to debt and within the scope of subsection 7.2.
5.8 INSPECTION.
Company will permit and arrange for authorized representatives designated
by any Lender to visit, upon reasonable notice and during regular business hours
as often as may be reasonably requested, any of the properties of Company or its
Subsidiaries. All expenses of the Lender associated with any such visitation
shall be borne by the Lender conducting the same.
SECTION 6. COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Pro Rata
Commitments or the Swing Line Commitment hereunder shall remain in effect and
until payment in full of all of the Loans and other Obligations, unless
Requisite Lenders shall otherwise give prior written consent, Company shall
perform, and, to the extent applicable, shall cause each of its Subsidiaries to
perform all covenants in this Section 6.
6.1 MAXIMUM LEVERAGE RATIO.
Company shall not permit the ratio of (i) Consolidated Net Debt to (ii)
Consolidated Net Worth, as of the last day of any Fiscal Quarter of Company,
to exceed 3.0 to 1.0.
6.2 MINIMUM FIXED CHARGE COVERAGE RATIO.
Company shall not permit the ratio of (i) Consolidated Adjusted
Operating Income to (ii) Consolidated Net Interest Expense on the last day of
any Fiscal Quarter for the four consecutive Fiscal Quarters then ended to be
less than 2.75 to 1.0.
6.3 LIENS.
Company will not create or suffer to exist, and will not permit any of
its Subsidiaries to create or suffer to exist, any Lien on any of its properties
now owned or hereafter acquired, or assign, or permit any of such Subsidiaries
to assign, any accounts or other right to receive income, without making
effective provision, and Company hereby covenants that in any such case it will
make or cause to be made effective provision, whereby the Obligations of
Company, DFFI and Solvest pursuant to this Agreement and the Company Guaranty
shall be directly secured by such Lien or assignment equally and ratably upon
the same properties with any and all other Indebtedness and other obligations
thereby secured; PROVIDED, HOWEVER, that the following Liens shall be permitted
and shall not be subject to the foregoing provisions of this subsection 6.3:
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(i) Permitted Encumbrances;
(ii) Liens upon or in real property (whether in the form of
land, improvements or fixtures or any interest therein) held by Company
or any of its Subsidiaries on the Closing Date; provided that (a) the
aggregate principal amount of the debt secured by such Liens on such
property shall not exceed 100% of the higher of the cost of such property
or the then fair value thereof, (b) any such debt shall not otherwise be
prohibited by the terms of this Agreement, and (c) to the extent such
Liens secure debt incurred solely for the purpose of financing the
construction or improvement of any such property to be subject to such
Liens, such Liens are imposed within 180 days from the date of the
applicable completion of construction or improvement thereof by Company
or any of its Subsidiaries;
(iii) Liens upon or in real property (whether in the form of
land, improvements or fixtures or any interest therein) acquired after
the Closing Date by Company or any of its Subsidiaries in the ordinary
course of business to secure the purchase price of such property or to
secure debt incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property to be subject to such
Liens if such Liens are imposed on such property within 180 days from the
date of the applicable acquisition or completion of construction or
improvement thereof by Company or any of its Subsidiaries, or Liens
existing on any such property at the time of acquisition, provided that
(a) the aggregate principal amount of the debt secured by such Liens on
such property at the time of acquisition, construction or improvement of
such property shall not exceed 100% of the cost of such property,
construction or improvement or of the then fair value thereof, whichever
shall be higher, and (b) any such debt shall not otherwise be prohibited
by the terms of this Agreement;
(iv) Liens on or assignments of receivables of any kind (and
property securing or otherwise supporting payment of such receivables) in
connection with one or more agreements for limited recourse sales by
Company or any or all of its Subsidiaries for cash of such receivables
(and such property) or interests therein; and
(v) other Liens securing debt in an aggregate principal amount
not to exceed at any one time outstanding 10% of the consolidated total
assets of the Company and its Subsidiaries, determined in accordance with
GAAP.
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6.4 DISPOSITION OF ASSETS.
Company shall not, and shall not permit its Subsidiaries to, sell or
otherwise dispose of all or any substantial part (as herein defined) of the Food
Business Assets, other than sales of inventory made in the ordinary course of
business. For purposes of this subsection 6.4, a "substantial part" of the Food
Business Assets means a part which either (y) has an aggregate book value (for
purposes of the consolidated balance sheet of the Company and its Subsidiaries,
determined in accordance with GAAP) equal to 25% or more of the aggregate book
value of the Food Business Assets or (z) generates 25% or more of the gross
income generated by the Food Business Assets, determined in accordance with
GAAP.
SECTION 7. EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF DEFAULT") shall
occur and be continuing:
7.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by the Applicable Borrower to pay any installment of principal of
any Loan when due, whether at stated maturity, by acceleration, by notice of
prepayment or otherwise; failure by the Applicable Borrower to pay any interest
on any Loan within five days after the date due; or failure by Company or DFFI
or Solvest to pay any fee or any other amount payable by it under this Agreement
within five days after the date due; or
7.2 DEFAULT IN OTHER AGREEMENTS.
Failure of Company or any of its Subsidiaries to pay when due any
principal of or interest on any indebtedness for borrowed money of Company or
any such Subsidiary (other than the Loans) in an amount exceeding $25,000,000 in
the aggregate (the "REFERENCED DEBT") beyond the end of any grace period
provided therefor; or the breach or default by Company or any of its
Subsidiaries with respect to any other term of any evidence of the Referenced
Debt or any loan agreement, mortgage, indenture or other agreement relating to
such Referenced Debt, if the effect of such breach or default is to cause the
Referenced Debt to become or be declared due and payable prior to its stated
maturity or the stated maturity of any underlying obligation, as the case may
be; PROVIDED, HOWEVER, that in the event that the non-payment or acceleration of
the maturity of the Referenced Debt described in this subsection 7.2 is cured or
waived by the holders of the Referenced Debt or if such Referenced Debt is
repaid in full (other than with the proceeds of Loans), such non-payment or
acceleration shall not constitute an Event of Default hereunder; or
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7.3 BREACH OF CERTAIN COVENANTS.
Failure of Company to perform or comply with any term or condition
contained in subsections 5.1D, 6.1, 6.2, 6.3 or 6.4 of this Agreement; or
7.4 BREACH OF WARRANTY.
Any representation or warranty made or deemed made by Company or DFFI or
Solvest in or pursuant to this Agreement or the Company Guaranty or in any
certificate at any time given by Company in writing pursuant hereto or thereto
or in connection herewith or therewith shall be false in any material respect on
the date as of which made or deemed made; or
7.5 OTHER DEFAULTS UNDER AGREEMENT.
Company or DFFI or Solvest shall default in the performance of or
compliance with any term contained in this Agreement or the Company Guaranty
required to be performed by it, other than any such term referred to in any
other subsection of this Section 7, and such default shall not have been
remedied or waived within 30 days after receipt by Company of written notice
from Administrative Agent of such default; or
7.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a decree
or order for relief in respect of Company or any of its Subsidiaries in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree,
or any other similar relief granted under any applicable federal or state law,
order or similar relief described in this clause (i) is not stayed; or (ii) an
involuntary case shall be commenced against Company or any of its Subsidiaries
under the Bankruptcy Code or under any other applicable bankruptcy, insolvency
or similar law now or hereafter in effect; or a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having similar
powers over Company or any of its Subsidiaries or over all or a substantial part
of their respective properties, shall have been entered; or there shall have
occurred the involuntary appointment of an interim receiver, trustee or other
custodian of Company or any of its Subsidiaries for all or a substantial part of
their respective properties; or a warrant of attachment, execution or similar
process shall have been issued against any substantial part of the property of
Company or any of its Subsidiaries and any such event described in this clause
(ii) shall continue for 60 days unless dismissed, bonded or discharged;
PROVIDED, that with respect to Subsidiaries of Company (other than Material
Subsidiaries) the foregoing shall
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constitute an Event of Default only if such occurrence would have a Material
Adverse Effect; or
7.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Company or any of its Subsidiaries shall have an order for relief
entered with respect to it or commence a voluntary case under the Bankruptcy
Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or Company or any of its Subsidiaries shall consent to
the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of their respective properties; or
Company or any of its Subsidiaries shall make any assignment for the benefit of
creditors; or (ii) Company or any of its Subsidiaries shall admit in writing its
inability to pay its debts generally as such debts become due; or the Board of
Directors of Company or any of its Subsidiaries (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to in clause (i) above or this clause (ii); PROVIDED that with
respect to Subsidiaries of Company (other than Material Subsidiaries) the
foregoing shall constitute an Event of Default only if such occurrence would
have a Material Adverse Effect; or
7.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar process
involving in any individual case an amount in excess of $100,000,000 or in the
aggregate an amount in excess of $300,000,000 that are individually or in the
aggregate not adequately covered by insurance shall be entered or filed against
Company or any of its Material Subsidiaries, or against any of their respective
assets, and shall remain undischarged, unvacated, unbonded or unstayed for a
period of 35 consecutive days; or
7.9 UNFUNDED ERISA LIABILITIES.
(i) Any Pension Plan shall be terminated within the meaning of Title IV
of ERISA; (ii) a trustee shall be appointed by an appropriate United States
district court to administer any Pension Plan; (iii) the PBGC (or any
successor thereto) shall institute proceedings to terminate any Pension Plan
or to appoint a trustee to administer any Pension Plan; (iv) Company or any
of its ERISA Affiliates shall withdraw (under Section 4063 of ERISA) from a
Pension Plan; or (v) Company or its ERISA Affiliates shall engage in any
transactions which could result in the assessment of direct or indirect
liability to Company under Section 409 or 502 of ERISA or Section 4975 of the
Internal Revenue Code, if as of the date thereof or any subsequent date, the
sum of each of
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Company's and its ERISA Affiliates' various liabilities (such liabilities to
include, without limitation, any liability to the PBGC or to any other party
under Sections 4062, 4063 or 4064 of ERISA or any other provision of law and to
be calculated after giving effect to the tax consequences thereof) resulting
from or otherwise associated with such events listed in subclauses (i)-(v) above
exceeds $25,000,000; or there exists, as of any valuation date for a Pension
Plan, an excess of the present value (determined on the basis of reasonable
assumptions employed by the independent actuary for such Pension Plan) of
benefit liabilities (as defined in Section 4001(a)(16) of ERISA) over the fair
market value of the assets of such Pension Plan, when added to such excess for
all other such Pension Plans, which exceeds $100,000,000; or Company or any of
its ERISA Affiliates shall incur withdrawal liability to Multiemployer Plans
which, in the aggregate, exceeds $100,000,000; or
7.10 CHANGE IN CONTROL.
(i) Company shall cease to own 100% of the issued and outstanding capital
stock of DFFI or Solvest, other than directors' qualifying shares, or (ii) any
Person (including any "Group" as defined in Section 13d-5 of the Exchange Act)
other than Xxxxx X. Xxxxxxx or an Affiliate of Xxxxx X. Xxxxxxx (including the
estate of Xxxxx X. Xxxxxxx) shall obtain ownership or control of more than 50%
of the voting power of the stock of Company entitled to vote in the election of
members of the board of directors of Company; or
7.11 INVALIDITY OF COMPANY GUARANTY.
At any time after the execution and delivery thereof, the Company
Guaranty for any reason, other than the satisfaction in full of all Obligations,
shall cease to be in full force and effect (other than in accordance with its
terms) or shall be declared to be null and void, or Company shall contest the
validity or enforceability of the Company Guaranty in writing or deny in writing
that it has any further liability, including without limitation with respect to
future advances by Lenders, under the Company Guaranty:
THEN (i) upon the occurrence of any Event of Default described in subsection
7.6 or 7.7, in each case with respect to Company or DFFI or Solvest, each of
(a) the unpaid principal amount of and accrued interest on the Loans and (b)
all other Obligations shall automatically become immediately due and payable,
without presentment, demand, protest or other requirements of any kind, all
of which are hereby expressly waived by Borrowers, and the obligation of each
Lender to make any Loan shall thereupon terminate, and (ii) upon the
occurrence and during the continuation of any other Event of Default,
Administrative Agent shall, at the direction or with the consent of Requisite
Lenders, by written notice to Borrowers, declare all or any portion of the
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amounts described in clauses (a) and (b) above to be, and the same shall
forthwith become, immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Borrowers, and the obligation of each Lender to make any Loan shall
thereupon terminate.
Notwithstanding anything contained in the preceding paragraph, if at any
time within 60 days after an acceleration of the Loans pursuant to such
paragraph, Borrowers shall pay all arrears of interest and all payments on
account of principal which shall have become due otherwise than as a result of
such acceleration (with interest on principal and on overdue interest, fees and
other amounts, at the rates specified in this Agreement) and all Events of
Default (other than non-payment of the principal of and accrued interest on the
Loans, in each case which is due and payable solely by virtue of acceleration)
shall be remedied or waived, then Requisite Lenders, by written notice to
Borrowers, may at their option rescind and annul such acceleration and its
consequences; but such action shall not affect any subsequent Event of Default
or impair any right consequent thereon.
SECTION 8. ADMINISTRATIVE AGENT
8.1 APPOINTMENT.
Chase is hereby appointed Administrative Agent hereunder and each Lender
hereby authorizes Administrative Agent to act as its administrative agent in
accordance with the terms of this Agreement. Administrative Agent agrees to act
upon the express conditions contained in this Agreement.
8.2 POWERS; GENERAL IMMUNITY.
A. DUTIES SPECIFIED. Each Lender irrevocably authorizes
Administrative Agent to take such action on such Lender's behalf and to exercise
such powers hereunder and under any of the instruments and agreements referred
to herein as are specifically delegated to Administrative Agent by the terms
hereof and thereof, together with such powers as are reasonably incidental
thereto. Administrative Agent shall have only those duties and responsibilities
that are expressly specified in this Agreement or any of the instruments and
agreements referred to herein and it may perform such duties by or through its
agents or employees. Administrative Agent shall not have, by reason of this
Agreement or any of the instruments and agreements referred to herein, a
fiduciary relationship in respect of any Lender; and nothing in this Agreement
or any of the instruments and agreements referred to herein, expressed or
implied, is intended to or shall be so construed as to impose upon
Administrative Agent any obligations in respect of this Agreement or any of the
instruments and
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agreements referred to herein except as expressly set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. Administrative Agent shall
not be responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
of the instruments and agreements referred to herein or for any representations,
warranties, recitals or statements made herein or therein or made in any written
or oral statement or in any financial or other statements, instruments, reports
or certificates or any other documents furnished or made by Administrative Agent
to Lenders or by or on behalf of any Borrower to Administrative Agent or any
Lender in connection herewith and the transactions contemplated hereby or for
the financial condition or business affairs of any Borrower or any other Person
liable for the payment of any Obligations, nor shall Administrative Agent be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained herein or
in any of the instruments or agreements referred to herein or as to the use of
the proceeds of the Loans or as to the existence or possible existence of any
Event of Default. Anything contained in this Agreement to the contrary
notwithstanding, Administrative Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans.
C. EXCULPATORY PROVISIONS. Neither Administrative Agent nor any of
its officers, directors, employees or agents shall be liable to Lenders for
any action taken or omitted by Administrative Agent under or in connection
herewith or any of the instruments or agreements referred to herein except to
the extent caused by Administrative Agent's gross negligence or willful
misconduct. If Administrative Agent shall request instructions from Lenders
with respect to any act or action (including the failure to take an action)
in connection with this Agreement or any of the instruments or agreements
referred to herein, Administrative Agent shall be entitled to refrain from
such act or taking such action unless and until Administrative Agent shall
have received instructions from Requisite Lenders. Without prejudice to the
generality of the foregoing, (i) Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any communication,
instrument or document believed by it to be genuine and correct and to have
been signed or sent by the proper person or persons, and shall be entitled to
rely and shall be protected in relying on opinions and judgments of attorneys
(who may be attorneys for Company and its Subsidiaries), accountants, experts
and other professional advisors selected by it; and (ii) no Lender shall have
any right of action whatsoever against Administrative Agent as a result of
Administrative Agent acting or (where so instructed) refraining from acting
under this Agreement or any of the other instruments or agreements referred
to herein in accordance with the in-
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structions of Requisite Lenders. Administrative Agent shall be entitled to
refrain from exercising any power, discretion or authority vested in it under
this Agreement or any of the other instruments or agreements referred to herein
unless and until it has obtained the instructions of Requisite Lenders.
D. ADMINISTRATIVE AGENT ENTITLED TO ACT AS LENDER. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, Administrative Agent in its individual
capacity as a Lender hereunder. With respect to its Loans and Pro Rata
Commitment (and, in the case of Swing Line Lender, its Swing Line Commitment),
Administrative Agent shall have the same rights and powers hereunder as any
other Lender and may exercise the same as though it were not performing the
duties and functions delegated to it hereunder, and the term "Lender" or
"Lenders" or any similar term shall, unless the context clearly otherwise
indicates, include Administrative Agent in its individual capacity.
Administrative Agent and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of banking, trust, financial advisory or other
business with Company or any of its Affiliates as if it were not performing the
duties specified herein, and may accept fees and other consideration from any
Borrower for services in connection with this Agreement and otherwise without
having to account for the same to Lenders.
8.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL OF
CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with the making of the Loans hereunder and that it
has made and shall continue to make its own appraisal of the creditworthiness of
Borrowers. Administrative Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to make any such investigation or any
such appraisal on behalf of Lenders or to provide any Lender with any credit or
other information with respect thereto, whether coming into its possession
before the making of the Loans or at any time or times thereafter, and
Administrative Agent shall not have any responsibility with respect to the
accuracy of or the completeness of any information provided to Lenders.
8.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify Administrative Agent, to the extent that Administrative Agent shall
not have been reimbursed by Company, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, reasonable counsel fees and
disbursements) or disbursements of any kind or nature whatsoever
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which may be imposed on, incurred by or asserted against Administrative Agent in
performing its duties hereunder or otherwise in its capacity as Administrative
Agent in any way relating to or arising out of this Agreement or the instruments
and agreements referred to herein; PROVIDED that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
Administrative Agent's gross negligence or willful misconduct. If any indemnity
furnished to Administrative Agent for any purpose shall, in the opinion of
Administrative Agent, be insufficient or become impaired, Administrative Agent
may call for additional indemnity and cease, or not commence, to do the acts
indemnified against until such additional indemnity is furnished.
8.5 REGISTERED PERSONS TREATED AS OWNERS.
Administrative Agent may deem and treat the Persons listed as Lenders in
the Register as the owners of the corresponding Loans listed therein for all
purposes hereof unless and until an Assignment and Acceptance Agreement
effecting the assignment or transfer thereof shall have been accepted by
Administrative Agent and recorded in the Register as provided in subsection 9.2.
Any request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register as a
Lender shall be conclusive and binding on any subsequent holder, transferee or
assignee of the corresponding Loan.
8.6 SUCCESSOR ADMINISTRATIVE AGENT.
Administrative Agent may resign at any time by giving 30 days' prior
written notice thereof to Lenders and Company, and Administrative Agent may be
removed at any time with or without cause by an instrument or concurrent
instruments in writing delivered to Company and Administrative Agent and signed
by Requisite Lenders. Upon any such notice of resignation or any such removal,
Requisite Lenders shall have the right, upon five Business Days' notice to
Company, to appoint a successor Administrative Agent; PROVIDED, that (i) no such
successor Administrative Agent may be appointed by Requisite Lenders without the
prior consent of Company, in its sole discretion, (ii) in the event that no
successor Administrative Agent has been so appointed by Requisite Lenders on or
before the tenth Business Day prior to the effective date of Administrative
Agent's resignation or removal, Company may appoint a successor Administrative
Agent with the consent of Requisite Lenders, and (iii) in the event that no
successor Administrative Agent has been so appointed by Requisite Lenders or
Company on or before the third Business Day prior to the effective date of
Administrative Agent's resignation or removal, the resigning or removed
Administrative Agent may appoint a successor Administrative Agent without the
consent of Company or Requisite
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Lenders. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, that successor Administrative
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring or removed Administrative Agent
and the retiring or removed Administrative Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring or removed
Administrative Agent's resignation or removal hereunder as Administrative
Agent, the provisions of this Section 8 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement. Any reference to "Chase" in Sections 1 and 2 hereof
(other than in the definition "Swing Line Lender") shall, after Chase's
resignation or removal as Administrative Agent, be deemed to be references to
the successor Administrative Agent from time to time hereunder acting in its
individual capacity as a financial institution.
8.7 DOCUMENTATION AGENT AND SYNDICATION AGENT.
Neither the Documentation Agent nor the Syndication Agent, in its
capacity as such, shall have any duties or responsibilities under this
Agreement.
SECTION 9. MISCELLANEOUS
9.1 SECURITIES REPRESENTATION.
Each Lender hereby represents that it is a commercial lender or financial
institution which makes loans in the ordinary course of its business and that it
will make any Loan for its own account in the ordinary course of its commercial
banking or lending business and not with a view to or for sale in connection
with a distribution of any Loan or any evidence of indebtedness issued by any
Borrower hereunder except in compliance with any applicable securities laws;
PROVIDED, HOWEVER, that, subject to subsection 9.2, the disposition of any Loan
or evidence of indebtedness hereunder held by that Lender shall at all times be
within its exclusive control.
9.2 ASSIGNMENTS AND PARTICIPATIONS IN LOANS.
A. ASSIGNMENTS. Notwithstanding the provisions of subsection 9.1,
each Lender shall have the right at any time to assign to an Eligible
Assignee all or a part of its rights and obligations under this Agreement and
its Pro Rata Commitment; PROVIDED, HOWEVER, that (i) each such assignment
shall be of a constant, and not a varying, percentage of all of the assigning
Lender's rights and obligations under its Pro Rata Commitment and this
Agreement except that, unless specifically provided in the Assignment and
Acceptance Agreement, the rights and obligations with respect to the
assigning Lender's outstanding Bid Rate Loans
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shall not be assigned; (ii) each such assignment shall be in a minimum amount
of $10,000,000, unless such assignment is to a Lender or any Affiliate of a
Lender or unless the assigning Lender is assigning its entire Pro Rata
Commitment; PROVIDED that Swing Line Lender may not assign its Swing Line
Commitment except to one of its Affiliates primarily engaged in commercial
lending; and (iii) all such assignments shall be effected by the execution of
an Assignment and Acceptance Agreement by the assigning Lender and the
assignee Lender. Notwithstanding any other provision to the contrary
contained in this Agreement, any Lender may at any time, without the consent
of Administrative Agent or any Borrower, assign all or any portion of its
rights under this Agreement and any notes which may be issued hereunder to a
Federal Reserve Bank. Each Lender shall give Company and Administrative
Agent prompt written notice of any assignment to an Affiliate of such Lender
or any other Lender.
B. EFFECTIVENESS OF ASSIGNMENT. Subject to satisfaction of each of
the foregoing conditions in subsection 9.2A, and delivery to Administrative
Agent of the Assignment and Acceptance Agreement and a processing and
recordation fee of $2,500 by the assignor, the Assignment and Acceptance
Agreement shall become effective on the later to occur of (x) the effective date
specified in the applicable Assignment and Acceptance Agreement, and (y) except
with respect to assignments to any Lender or any of its Affiliates to the extent
such Affiliate constitutes an Eligible Assignee, the date on which
Administrative Agent and Company have consented to, accepted and recorded the
Assignment and Acceptance Agreement. Within five Business Days after
Administrative Agent's receipt of an Assignment and Acceptance Agreement
executed by an Eligible Assignee and the processing and recordation fee,
Administrative Agent shall, if the Assignment and Acceptance Agreement is
otherwise in compliance with this Agreement, record the information required in
the Register and give a copy of the Assignment and Acceptance Agreement to
Company. Upon such effectiveness, the assignee Lender shall be a Lender
hereunder and, to the extent set forth in the Assignment and Acceptance
Agreement, have the rights and obligations of a Lender hereunder and the
assigning Lender shall, to the extent that its rights and obligations have been
so assigned, relinquish its rights and be released from its obligations under
this Agreement.
C. ASSIGNMENT AND ACCEPTANCE AGREEMENT. By executing and delivering
an Assignment and Acceptance Agreement, the assigning Lender thereunder and the
assignee thereunder (as applicable) shall be deemed to confirm to and agree with
each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in
70
connection with this Agreement or the Company Guaranty or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or the Company Guaranty or any other instrument or document
furnished pursuant hereto or thereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of Company or any of its Subsidiaries or the performance
or observance by Company or any of its Subsidiaries of any of their
respective obligations under this Agreement or the Company Guaranty or any
other instrument or document furnished pursuant hereto or thereto; (iii) such
assignee confirms that it has received a copy of this Agreement and the
Company Guaranty, together with copies of the most recent financial
statements delivered pursuant to subsection 5.1 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance Agreement; (iv) such
assignee has made, and will continue to make, independently and without
reliance upon Administrative Agent, such assigning Lender or any other
Lender, and based on such documents and information as it deemed or deems
appropriate at the time, its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee appoints and authorizes
Administrative Agent to take such action as agent, on its behalf and to
exercise such powers under this Agreement and the Company Guaranty as are
delegated to Administrative Agent, by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vi) such assignee agrees
that it will perform in accordance with their terms all the obligations which
by the terms of this Agreement are required to be performed by it as a Lender.
D. PARTICIPATIONS. Notwithstanding the provisions of subsection
9.1, each Lender may sell participations in any part of any Loan or Loans or
the Pro Rata Commitments or any other interest herein to any Person;
PROVIDED, HOWEVER, that (i) such Lender shall remain responsible for its
total obligations and Pro Rata Commitments under this Agreement; (ii)
Borrowers and Administrative Agent shall continue to deal solely with such
Lender in connection with such Lender's rights and obligations under this
Agreement; (iii) except as hereinafter provided, no participant shall have
any rights under this Agreement or any other document delivered in connection
herewith (a participant's rights against any such selling Lender in respect
of its participation to be those set forth in the agreement executed by such
Lender in favor of such participant relating thereto); and (iv) no Lender
shall sell any such participation under which the participant would have any
right to (or any right to require such Lender to) take or omit to take any
action or approve any amendment or waiver relating to this Agreement except
to the extent any such action, omission, amendment or waiver would (a) extend
the final maturity date or the date for the payment of any interest due in
respect of a Loan due to such Lender or any fees due to such Lender under
this Agreement, (b) reduce the
71
amount of any installment of principal or interest due to such Lender in
respect of any Loan, or (c) reduce the interest rates applicable to the Loans
or the fees due to such Lender under this Agreement. Notwithstanding the
foregoing, in no event shall any Borrower be obligated to pay a greater
amount of compensation pursuant to subsections 2.6G, 2.10 or 2.11 to any
participant than such Borrower would otherwise have been obligated to pay to
the Lender selling such participation.
E. ADDITIONAL PROVISIONS GOVERNING ASSIGNMENTS AND PARTICIPATIONS.
Each Borrower hereby agrees that any Lender may furnish any information
concerning such Borrower in the possession of any Lender from time to time to
assignees and participants (including prospective assignees and participants),
PROVIDED, that each such assignee, prospective assignee, participant and
prospective participant shall agree in writing to be bound by the provisions of
subsection 9.18. In the event of any assignment hereunder, the assigning
Lender's Pro Rata Commitment shall be modified to reflect the Pro Rata
Commitment of such assignee. No Lender shall, as between any Borrower and that
Lender, be relieved of any of its obligations hereunder as a result of any
granting of participations in all or any part of the Loans, or Pro Rata
Commitment of that Lender or other Obligations owed to such Lender. Each Lender
shall, as between each Borrower and that Lender, be relieved of its obligations
hereunder as a result of any sale, assignment, transfer or negotiation, in
accordance with subsection 9.2, of all or any part of the Loans or Pro Rata
Commitment of that Lender or other Obligations owed to such Lender to the extent
of the obligations assigned.
9.3 EXPENSES.
Except to the extent otherwise specifically set forth herein or agreed to
by Administrative Agent and Company, prior to the occurrence and except during
the continuance of an Event of Default, the expenses of Administrative Agent and
each Lender in connection with this Agreement shall be borne by Administrative
Agent or such Lender, as the case may be. After the occurrence and during the
continuance of an Event of Default, Company agrees to pay promptly all
reasonable costs and expenses, including reasonable attorneys' fees (PROVIDED,
that Company shall not be required to pay attorneys' fees for more than one
counsel for Administrative Agent and Lenders) and costs of settlement, incurred
by Administrative Agent and Lenders in enforcing any Obligations of or in
collecting any payments due from any Borrower hereunder or under the Company
Guaranty by reason of such Event of Default or in connection with any
refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or pursuant to any insolvency or
bankruptcy proceedings.
72
9.4 INDEMNITY.
A. In addition to the payment of expenses pursuant to subsection 9.3,
whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend, indemnify, pay and hold harmless Administrative Agent
and Lenders, and the officers, directors, employees, agents, advisors and
affiliates of Administrative Agent and Lenders (collectively called the
"INDEMNITEES") from and against any and all claims, damages, losses, liabilities
and expenses (including without limitation the reasonable fees and disbursements
of one counsel representing all such Indemnitees, and additional counsel to the
extent provided in subsection 9.4B), in connection with any investigative,
administrative or judicial proceeding commenced or threatened by any Person,
whether or not any such Indemnitee shall be designated as a party or a potential
party thereto (collectively, "INDEMNIFIED LIABILITIES" and individually an
"INDEMNIFIED LIABILITY") that may be incurred by, or asserted or awarded against
any such Indemnitee, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, relating to or in
connection with this Agreement or the Company Guaranty, whether or not such
investigation, litigation or proceeding is brought by the Company or DFFI or
Solvest, its shareholders or creditors or an Indemnitee, and whether or not an
Indemnitee is otherwise a party thereto, except that no Indemnitee shall be
entitled to be indemnified hereunder (i) to the extent that such claim, damage,
loss, liability or expense is found in a final judgment rendered by a court of
competent jurisdiction to have resulted from such Indemnitee's gross negligence
or willful misconduct or from a breach of such Indemnitee's obligations pursuant
to subsection 9.18 or its confidentiality letter theretofore delivered to
Company, or (ii) with respect to any litigation brought by any Borrower seeking
judgment against such Indemnitee for any wrongful act or omission of such
Indemnitee if a final judgment by a court of competent jurisdiction is rendered
in such Borrower's favor against such Indemnitee. If any claim regarding any
Indemnified Liability ("CLAIM") is asserted against any Indemnitee, such
Indemnitee shall promptly notify Company, but the failure to do so shall not
affect Company's obligations under this subsection 9.4 unless such failure
materially prejudices Company's right to defend or participate in the contest of
such Claim, as hereinafter provided in this subsection 9.4. Neither Company nor
any Indemnitee shall settle any Indemnified Liability with respect to any
Indemnitee without the consent of Company and that Indemnitee, which consent
shall not be unreasonably withheld.
B. The Indemnitees shall be entitled to legal representation at
Company's expense by one legal counsel selected by the Indemnitees, as a group,
as provided in subsection 9.4A and, in addition, Company will pay the reasonable
costs and
73
expenses of one additional legal counsel selected by an Indemnitee if legal
counsel for such Indemnitee determines in good faith that joint representation
of such Indemnitee along with other Indemnitees would or could reasonably be
expected to result in a conflict of interest under laws or ethical principles
applicable to such counsel. The scope of representation of any additional
counsel pursuant to this subsection 9.4B shall be to the extent reasonably
necessary to avoid such conflict of interest.
C. Nothing in this subsection 9.4 shall limit the right, which is
absolute, of any Indemnitee to at any time retain at its own expense separate
counsel to represent and defend such Indemnitee in connection with any
Indemnified Liabilities. In such event Company shall have the right to
participate, at Company's expense and through independent counsel, in the
contest.
D. To the extent that the undertaking to defend, indemnify, pay and
hold harmless set forth in this subsection 9.4 may be unenforceable because it
is violative of any law or public policy, Company shall contribute the maximum
portion that it is permitted to pay and satisfy under applicable law to the
payment and satisfaction of all Indemnified Liabilities incurred by the
Indemnitees or any of them.
9.5 RATABLE SHARING.
Lenders hereby agree among themselves that (except as otherwise
specifically provided with respect to Swing Line Loans) if any of them shall,
whether by voluntary payment, by realization upon security, through the exercise
of any right of set-off or banker's lien, by counterclaim or cross action or by
the enforcement of any right hereunder or otherwise, or as adequate protection
of a deposit treated as cash collateral under the Bankruptcy Code, receive
payment or reduction of a proportion of the aggregate amount of principal,
interest, fees and other amounts then due and owing to that Lender hereunder
(collectively, the "AGGREGATE AMOUNTS DUE" to such Lender) which is greater than
the proportion received by any other Lender in respect of the Aggregate Amounts
Due to such other Lender, then the Lender receiving such proportionately greater
payment shall (i) notify Administrative Agent and each other Lender of the
receipt of such payment and (ii) apply a portion of such payment to purchase
participations (which it shall be deemed to have purchased from each seller of a
participation simultaneously upon the receipt by such seller of its portion of
such payment) in the Aggregate Amounts Due to the other Lenders so that all such
recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion
to the Aggregate Amounts Due to them; PROVIDED that if all or part of such
proportionately greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization
74
of Company or DFFI or Solvest or otherwise, those purchases shall be rescinded
and the purchase prices paid for such participations shall be returned to such
purchasing Lender ratably to the extent of such recovery, but without interest.
9.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any provision of
this Agreement or consent to any departure by any Borrower therefrom, shall in
any event be effective without the written concurrence of Requisite Lenders;
PROVIDED that any such amendment, modification, termination, waiver or consent
which: increases the amount of any of the Pro Rata Commitments or reduces the
principal amount of any of the Loans or accrued interest thereon; changes any
Lender's Pro Rata Share; changes the definition of "Requisite Lenders"; changes
any provision of this Agreement which, by its terms, expressly requires the
approval or concurrence of all Lenders; postpones the scheduled final maturity
date of any Loans; decreases the interest rate borne by the Pro Rata Loans or
the amount of any fees payable hereunder; increases the maximum duration of
Interest Periods permitted hereunder; releases the Company Guaranty in whole or
in part; or changes the provisions contained in this subsection 9.6 shall be
effective only if evidenced by a writing signed by or on behalf of all Lenders.
In addition, no amendment, modification, termination or waiver of any provision
of Section8 or of any other provision of this Agreement which affects the rights
or obligations of Administrative Agent or which, by its terms, expressly
requires the approval or concurrence of Administrative Agent shall be effective
without the written concurrence of Administrative Agent. No amendment,
modification or waiver of any provision of this Agreement relating to Swing Line
Loans or the Swing Line Commitment shall be effective without the written
concurrence of Swing Line Lender. Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on any Borrower in any
case shall entitle any Borrower to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination,
waiver or consent effected in accordance with this subsection 9.6 shall be
binding upon each Lender at the time outstanding, each future Lender and, if
signed by any Borrower, on such Borrower.
9.7 NOTICES.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served or sent by telefacsimile or United States mail or
courier service and shall be deemed to have been given when delivered in person
or by
75
courier service, upon receipt of telefacsimile, or four Business Days after
depositing it in the United States mail, registered or certified, with postage
prepaid and properly addressed; PROVIDED that notices to Administrative Agent
shall not be effective until received. For the purposes hereof, the address and
telefacsimile number of each party hereto shall be as set forth under such
party's name on the signature pages hereof or (i) as to Borrowers and
Administrative Agent, such other address or telefacsimile number as shall be
designated by such Person in a written notice delivered to the other parties
hereto and (ii) as to each other party, such other address or telefacsimile
number as shall be designated by such party in a written notice delivered to
Administrative Agent.
Neither Administrative Agent nor any Lender shall incur any liability to
any Borrower or any other Lender in acting upon any telephonic notice referred
to in subsections 2.1, 2.2 or 2.3 which Administrative Agent or such Lender
believes in good faith to have been given by a duly authorized officer or other
person authorized to borrow on behalf of the Applicable Borrower or for
otherwise acting in good faith with respect to any Notice of Borrowing, and upon
the funding of a Loan by any Lender in accordance with this Agreement pursuant
to any telephonic notice, the Applicable Borrower shall have effected a Loan
hereunder.
9.8 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations, warranties and agreements made herein shall survive
the execution and delivery of this Agreement and the making of the Loans
hereunder.
9.9 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of Administrative Agent or any Lender in
the exercise of any power, right or privilege hereunder shall impair such power,
right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power,
right or privilege. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
9.10 ENTIRE AGREEMENT.
This Agreement comprises the complete and integrated agreement of the
parties on the subject matter hereof and supersede all prior agreements, written
or oral, on the subject matter hereof.
76
9.11 SEVERABILITY.
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
9.12 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Pro Rata Commitment of any other Lender
hereunder. Nothing contained herein, and no action taken by Lenders pursuant
hereto, shall be deemed to constitute Lenders as a partnership, an association,
a joint venture or any other kind of entity. The amounts payable at any time
hereunder to each Lender shall be a separate and independent debt, and each
Lender shall be entitled to protect and enforce its rights arising out of this
Agreement and it shall not be necessary for any other Lender to be joined as an
additional party in any proceeding for such purpose.
9.13 HEADINGS.
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
9.14 APPLICABLE LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA.
9.15 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 9.2). Neither Company's
or DFFI's or Solvest's rights or obligations hereunder nor any interest therein
may be assigned or delegated by Company or DFFI or Solvest without the prior
written consent of all Lenders.
9.16 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY BORROWER ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OBLIGATION MAY BE BROUGHT IN ANY CALIFORNIA
STATE OR FEDERAL COURT SITTING
77
IN THE CITY OF LOS ANGELES, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH
BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY
ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT OR SUCH
OBLIGATION. EACH BORROWER CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY
SUCH PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO SUCH BORROWER AT ITS
ADDRESS SPECIFIED IN SUBSECTION 9.7.
9.17 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY WAIVES ITS RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING
ESTABLISHED. The scope of this waiver is intended to be all-encompassing of any
and all disputes that may be filed in any court and that relate to the subject
matter of this transaction, including without limitation contract claims, tort
claims, breach of duty claims and all other common law and statutory claims.
Each party hereto acknowledges that this waiver is a material inducement to
enter into a business relationship, that each has already relied on this waiver
in entering into this Agreement, and that each will continue to rely on this
waiver in their related future dealings. Each party hereto further warrants and
represents that it has reviewed this waiver with its legal counsel and that it
knowingly and voluntarily waives its jury trial rights following consultation
with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
In the event of litigation, this Agreement may be filed as a written consent to
a trial by the court.
9.18 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained pursuant to
the requirements of this Agreement in accordance with such Lender's customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices, it being understood and
agreed by Borrowers that a Lender may make disclosures (i) to any Affiliate
of such Lender PROVIDED that such Affiliate shall be bound by this subsection
9.18, (ii) reasonably required by any bona fide assignee, transferee or
participant in connection with the contemplated assignment or transfer by
such Lender of its Pro Rata Commitment or any of its Loans or any
participation therein (PROVIDED that such actual or prospective transferee,
assignee or participant shall agree in writing to be bound by this subsection
9.18 in advance of its receipt) or (iii) as required by any
78
governmental agency or representative thereof or pursuant to legal process;
PROVIDED that, unless specifically prohibited by applicable law or court order,
each Lender shall notify Company of any request by any governmental agency or
representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure of
such information. All information disclosed by any Borrower shall be presumed
confidential other than Company's public filings and press releases and other
matters generally available publicly.
9.19 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or supplements
hereto or in connection herewith may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof. Delivery of a telecopied signature page
shall be as effective as delivery of an originally executed signature page.
[Remainder of page intentionally left blank]
79
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
XXXX FOOD COMPANY, INC.,
a Hawaii corporation
By: ____________________________
Title: Chairman and Chief Executive Officer
Notice Address:
Xxxx Food Company, Inc.
00000 Xxx Xxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DFFI:
XXXX FRESH FRUIT INTERNATIONAL, LIMITED,
a Liberian corporation
By: ____________________________
Title:
Notice Address:
Xxxx Fresh Fruit International, Limited
000 X. Xxxxx Xxxxxxxxxxxx, Xxxxxx
Xxx Xxxx, Xxxxx Xxxx
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-1
SOLVEST:
SOLVEST, LTD.,
a Bermuda corporation
By: ____________________________
Title: Treasurer
Notice Address:
Solvest, Ltd.
00000 Xxx Xxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ADMINISTRATIVE AGENT:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: ____________________________
Title:
Notice Address:
The Chase Manhattan Bank
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
S-2
LENDERS:
THE CHASE MANHATTAN BANK,
as Lender
By: ____________________________
Title: Vice President
Notice Address:
The Chase Manhattan Bank
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Total Pro Rata Commitment: $38,000,000
Total Pro Rata Share: 6.33%
S-3
BANK BRUSSELS XXXXXXX, NEW YORK BRANCH, as Lender
By: __________________________
Title:
By: __________________________
Title:
Notice Address:
Bank Brussels Xxxxxxx, New York Branch
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $17,000,000
Total Pro Rata Share: 2.83%
S-4
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION,
as Syndication Agent and as Lender
By: _____________________
Title:
Notice Address:
Bank of America National Trust
and Savings Association
Xxxx #0000
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $32,500,000
Total Pro Rata Share: 5.42%
S-5
THE BANK OF NOVA SCOTIA, as Co-Agent and Lender
By: ____________________________
Title:
Notice Address:
The Bank of Nova Scotia
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Maarten Van Otterloo
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $28,000,000
Total Pro Rata Share: 4.67%
S-6
CIBC INC., as Co-Agent and Lender
By: ____________________________
Title:
Notice Address:
CIBC Inc.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000 or (000) 000-0000
Total Pro Rata Commitment: $28,000,000
Total Pro Rata Share: 4.67%
S-7
CITICORP USA, INC., as Documentation Agent and Lender
By: ____________________________
Title:
Notice Address:
Citicorp
000 X. Xxxxxxxx Xx., 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $32,500,000
Total Pro Rata Share: 5.42%
S-8
COMMERZBANK AKTIENGESELLSCHAFT, LOS ANGELES BRANCH, as
Co-Agent and Lender
By: ____________________________
Title:
By: ____________________________
Title:
Notice Address:
Commerzbank Aktiengesellschaft,
Los Angeles Branch
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $28,000,000
Total Pro Rata Share: 4.67%
S-9
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
as Lead Manager and Lender
By: ____________________________
Title:
Notice Address:
Rabobank Nederland
0 Xxxxxxxxxxx Xxx. #000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $25,000,000
Total Pro Rata Share: 4.17%
S-10
CREDIT SUISSE, as Lender
By: ____________________________
Title:
By: ____________________________
Title:
Notice Address:
Credit Suisse
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $17,000,000
Total Pro Rata Share: 2.83%
S-11
THE DAI-ICHI KANGYO BANK, LIMITED,
LOS ANGELES AGENCY, as Lender
By: ____________________________
Title:
Notice Address:
The Dai-Ichi Kangyo Bank, Limited,
Los Angeles Agency
000 X. 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $17,000,000
Total Pro Rata Share: 2.83%
S-12
THE FIRST NATIONAL BANK OF CHICAGO, as Lender
By: ____________________________
Title:
Notice Address:
The First National Bank of Chicago
000 Xxxxx Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $17,000,000
Total Pro Rata Share: 2.83%
S-13
THE FUJI BANK, LIMITED,
LOS ANGELES AGENCY, as Lead Manager
and Lender
By: ____________________________
Title:
Notice Address:
The Fuji Bank, Limited,
Los Angeles Agency
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $25,000,000
Total Pro Rata Share: 4.17%
S-14
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY, as Lead
Manager and Lender
By: ____________________________
Title:
Notice Address:
The Industrial Bank of Japan,
Limited, Los Angeles Agency
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $25,000,000
Total Pro Rata Share: 4.17%
S-15
ISTITUTO BANCARIO SAN PAOLO
DI TORINO SPA, as Lender
By: ____________________________
Title:
By: ____________________________
Title:
Notice Address:
Istituto Bancario San Paolo di Torino SpA
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $17,000,000
Total Pro Rata Share: 2.83%
X-00
XXXXXXXXXXX, XX, GRAND CAYMAN BRANCH, as Lender
By: ____________________________
Title:
By: ____________________________
Title:
Notice Address:
Kredietbank, NV
c/o Kredietbank Los Angeles
Representative Xxxxxx
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Vice Pres.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $17,000,000
Total Pro Rata Share: 2.83%
S-17
LONG-TERM CREDIT BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY, as Lead Manager
and Lender
By: ____________________________
Title: Deputy General Manager
Notice Address:
Long-Term Credit Bank of Japan,
Ltd., Los Angeles Agency
000 Xxxxx Xxxxx Xxx., Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $25,000,000
Total Pro Rata Share: 4.17%
X-00
XXXXXX XXXX, X.X., as Lender
By: ____________________________
Title:
Notice Address:
Mellon Bank, N.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $17,000,000
Total Pro Rata Share: 2.83%
S-19
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Lender
By: ____________________________
Title:
Notice Address:
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Vice Pres.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $17,000,000
Total Pro Rata Share: 2.83%
S-20
NATIONSBANK OF TEXAS, N.A., as Co-Agent and Lender
By: ____________________________
Title:
Notice Address:
NationsBank of Texas, N.A.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx,
Senior Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $28,000,000
Total Pro Rata Share: 4.67%
S-21
SOCIETE GENERALE, as Co-Agent and Lender
By: ____________________________
Title:
Notice Address:
Societe Generale
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: X. Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $28,000,000
Total Pro Rata Share: 4.67%
S-22
STANDARD CHARTERED BANK, as Lender
By: ____________________________
Title:
Notice Address:
Standard Chartered Bank
000 Xxxxxxxx Xxxxxxxxx, XX0-00
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx-Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000/2196
Total Pro Rata Commitment: $17,000,000
Total Pro Rata Share: 2.83%
S-23
THE TOKAI BANK, LIMITED, LOS ANGELES AGENCY, as Lead
Manager and Lender
By: ____________________________
Title:
Notice Address:
The Tokai Bank, Limited, Los Angeles Agency
000 X. Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention:
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $25,000,000
Total Pro Rata Share: 4.17%
S-24
UNION BANK OF CALIFORNIA, N.A., as Lender
By: ____________________________
Title:
By: ____________________________
Title:
Notice Address:
Union Bank of California, N.A.
000 X. Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Vice Pres.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Union Bank of California, N.A.
000 X. Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx, Asst. Vice Pres.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $17,000,000
Total Pro Rata Share: 2.83%
S-25
XXXXX FARGO BANK, N.A., as Co-Agent and Lender
By: ____________________________
Title:
Notice Address:
Xxxxx Fargo Bank, N.A.
000 Xxxxxxxx Xxxx.
MAC 2818-163
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Vice Pres.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $28,000,000
Total Pro Rata Share: 4.67%
S-26
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as Lender
By: ____________________________
Title:
By: ____________________________
Title:
Notice Address:
Westdeutsche Landesbank Girozentrale
New York Branch
1211 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $17,000,000
Total Pro Rata Share: 2.83%
S-27
THE YASUDA TRUST & BANKING CO., LTD.,
LOS ANGELES AGENCY, as Lender
By: ____________________________
Title:
Notice Address:
Yasuda Trust & Banking Co., Ltd.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Total Pro Rata Commitment: $17,000,000
Total Pro Rata Share: 2.83%
S-28
