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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JANUARY 16, 1998
AMONG
AURORA FOODS INC.,
AS BORROWER,
AURORA FOODS HOLDINGS INC.,
AS GUARANTOR,
THE LENDERS LISTED HEREIN,
AS LENDERS,
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT,
THE NATIONAL WESTMINSTER BANK PLC,
AS SYNDICATION AGENT
AND
SWISS BANK CORPORATION,
AS DOCUMENTATION AGENT
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AURORA FOODS
CREDIT AGREEMENT
TABLE OF CONTENTS
Page
SECTION 1.
DEFINITIONS ............................................................ 2
1.1 Certain Defined Terms....................................... 2
1.2 Accounting Terms Utilization of GAAP for Purposes of
Calculations Under Agreement................................ 39
1.3 Other Definitional Provisions............................... 40
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS.................................. 40
2.1 Commitments; Loans.......................................... 40
2.2 Interest on the Loans....................................... 47
2.3 Fees........................................................ 51
2.4 Repayments, Prepayments and Reductions in Revolving Loan
Commitments; General Provisions Regarding Payments; Application
of Proceeds of Collateral and Payments under Guaranties..... 52
2.5 Use of Proceeds............................................. 63
2.6 Special Provisions Governing Eurodollar Rate Loans.......... 63
2.7 Increased Costs; Taxes; Capital Adequacy.................... 66
2.8 Obligation of Lenders and Issuing Lenders to Mitigate....... 70
SECTION 3.
LETTERS OF CREDIT........................................................... 71
3.1 Issuance of Letters of Credit and Lenders' Purchase of
Participations Therein...................................... 71
3.2 Letter of Credit Fees....................................... 73
3.3 Drawings and Payments and Reimbursement of Amounts Paid Under
Letters of Credit........................................... 74
3.4 Obligations Absolute........................................ 77
3.5 Indemnification; Nature of Issuing Lender's Duties.......... 78
3.6 Increased Costs and Taxes Relating to Letters of Credit..... 79
SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT................................... 80
4.1 Conditions to Term Loans and Revolving Loans................ 80
4.2 Conditions to All Loans..................................... 85
4.3 Conditions to Letters of Credit............................. 86
Page
SECTION 5.
REPRESENTATIONS AND WARRANTIES............................................... 87
5.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries..................................................... 87
5.2 Authorization of Borrowing, etc.................................. 88
5.3 Financial Condition.............................................. 89
5.4 No Material Adverse Change; No Restricted Junior Payments........ 90
5.5 Title to Properties; Liens; Intellectual Property................ 90
5.6 Litigation: Adverse Facts........................................ 92
5.7 Payment of Taxes................................................. 92
5.8 Performance of Agreements; Materially Adverse Agreements; Material
Contracts........................................................ 92
5.9 Governmental Regulation.......................................... 93
5.10 Securities Activities............................................ 93
5.11 Employee Benefit Plans........................................... 93
5.12 Certain Fees..................................................... 94
5.13 Environmental Protection......................................... 94
5.14 Employee Matters................................................. 95
5.15 Solvency......................................................... 95
5.17 Related Agreements............................................... 96
5.18 Disclosure....................................................... 97
5.19 Subordination of Seller Notes.................................... 97
SECTION 6.
AFFIRMATIVE COVENANTS........................................................ 98
6.1 Financial Statements and Other Reports........................... 98
6.2 Corporate Existence, etc......................................... 103
6.3 Payment of Taxes and Claims: Tax Consolidation................... 103
6.4 Maintenance of Properties; Insurance............................. 103
6.5 Inspection; Lender Meeting....................................... 104
6.6 Compliance with Laws, etc........................................ 104
6.7 Environmental Disclosure and Inspection.......................... 104
6.8 Company's Remedial Action Regarding Hazardous Materials.......... 106
6.9 Execution of Subsidiary Guaranty and Subsidiary Security Agreements
by Subsidiaries and Future Subsidiaries.......................... 106
6.10 Conforming Leasehold Interests; Matters Relating to Additional Real
Property Collateral.............................................. 107
6.11 Interest Rate Protection......................................... 109
6.12 Further Assurances............................................... 109
SECTION 7.
NEGATIVE COVENANTS........................................................... 110
7.1 Indebtedness..................................................... 110
7.2 Liens and Related Matters........................................ 111
7.3 Investments; Joint Ventures...................................... 113
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Page
7.4 Contingent Obligations..................................... 114
7.5 Restricted Junior Payments................................. 115
7.6 Financial Covenants........................................ 116
7.7 Restriction on Fundamental Changes; Asset Sales............ 120
7.8 Sales and Lease-Backs...................................... 121
7.9 Transactions with Shareholders and Affiliates.............. 122
7.10 Disposal of Subsidiary Stock............................... 122
7.11 Conduct of Business........................................ 123
7.12 Amendments or Waivers of Certain Related Agreements; Amendments
of Documents Relating to Subordinated Indebtedness; Designation
of "Designated Senior Indebtedness"; Preferred Stock....... 123
7.13 Fiscal Year................................................ 124
SECTION 8.
EVENTS OF DEFAULT.................................................. 124
8.1 Failure to Make Payments When Due.......................... 124
8.2 Default in Other Agreements................................ 124
8.3 Breach of Certain Covenants................................ 125
8.4 Breach of Warranty......................................... 125
8.5 Other Defaults Under Loan Documents........................ 125
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc....... 125
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc......... 126
8.8 Judgments and Attachments.................................. 126
8.9 Dissolution................................................ 126
8.10 Employee Benefit Plans..................................... 126
8.11 Change in Control.......................................... 127
8.12 Invalidity of Guaranties................................... 127
8.13 Failure of Security........................................ 128
8.14 Failure to Consummate Xxxxxx Xxxxx Acquisition............. 128
8.15 Termination or Breach of Certain Transition Agreements, Log
Cabin Transition Agreements and Xxxxxx Xxxxx Transaction
Agreements................................................. 128
8.16 Conduct of Business By Holdings and MBW LLC................ 128
8.17 Default Under Subordination Provisions..................... 129
SECTION 9.
AGENTS 130
9.1 Appointment................................................ 130
9.2 Powers; General Immunity................................... 131
9.3 Representations and Warranties; No Responsibility For
Appraisal of Creditworthiness.............................. 133
9.4 Right to Indemnity......................................... 133
9.5 Successor Agents and Swing Line Lender..................... 133
9.6 Collateral Documents....................................... 134
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Page
SECTION 10.
MISCELLANEOUS............................................................... 134
10.1 Assignments and Participations in Loans, Letters of Credit... 134
10.2 Expenses..................................................... 138
10.3 Indemnity.................................................... 138
10.4 Set-Off; Security Interest in Deposit Accounts............... 139
10.5 Ratable Sharing.............................................. 139
10.6 Amendments and Waivers....................................... 140
10.7 Independence of Covenants.................................... 142
10.8 Notices...................................................... 142
10.9 Survival of Representations, Warranties and Agreements....... 143
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative........ 143
10.11 Marshalling; Payments Set Aside.............................. 143
10.12 Severability................................................. 144
10.13 Obligations Several; Independent Nature of Lenders' Rights... 144
10.14 Headings..................................................... 144
10.15 Applicable Law............................................... 144
10.16 Successors and Assigns....................................... 144
10.17 Consent to Jurisdiction and Service of Process............... 145
10.18 Waiver of Jury Trial......................................... 145
10.19 Confidentiality.............................................. 146
10.20 Counterparts; Effectiveness.................................. 147
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ANNEXES
Annex A Pricing Grid
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV FORM OF TRANCHE A TERM NOTE
V FORM OF TRANCHE B TERM NOTE
VI FORM OF TRANCHE C TERM NOTE
VII FORM OF REVOLVING NOTE
VIII FORM OF SWING LINE NOTE
IX FORM OF SUBSIDIARY GUARANTY
X FORM OF HOLDINGS GUARANTY
XI FORM OF PLEDGE AGREEMENT
XII FORM OF SECURITY AGREEMENT
XIII FORM OF XXXXXX XXXXX PATENT AND TRADEMARK SECURITY AGREEMENT
XIV FORM OF COMPLIANCE CERTIFICATE
XV FORM OF OPINION OF COUNSEL TO LOAN PARTIES
XVI FORM OF OPINION OF XXXXXXX XXXXXXX & XXXXXXXX
XVII FORM OF ASSIGNMENT AGREEMENT
XVIII FORM OF PERMITTED SELLER NOTE
XIX FORM OF CERTIFICATE RE NON-BANK STATUS
XX FORM OF COLLATERAL ACCOUNT AGREEMENT
XXI FORM OF COLLATERAL ACCESS AGREEMENT
-v-
SCHEDULES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES; LENDING OFFICES
4.1C CORPORATE AND CAPITAL STRUCTURE; MANAGEMENT
5.1 SUBSIDIARIES OF HOLDINGS
5.5B OTHER NECESSARY INTELLECTUAL PROPERTY RIGHTS; MATERIAL CONTRACTS
5.5C OTHER NECESSARY INTELLECTUAL PROPERTY RIGHTS; MATERIAL CONTRACTS (LOG
CABIN)
5.5D OTHER NECESSARY INTELLECTUAL PROPERTY RIGHTS; MATERIAL CONTRACTS (XXXXXX
XXXXX)
5.8 MATERIAL CONTRACTS
7.6E STIPULATED CONSOLIDATED EBITDA AND CONSOLIDATED CAPITAL EXPENDITURES
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AURORA FOODS INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is dated as of January 16,
1998 and entered into by and among AURORA FOODS INC., a Delaware corporation
("Company"), AURORA FOODS HOLDINGS INC., a Delaware corporation ("Holdings"),
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, as administrative agent for Lenders (in such capacity,
"Administrative Agent"), THE NATIONAL WESTMINSTER BANK PLC, as syndication agent
(in such capacity, "Syndication Agent") and SWISS BANK CORPORATION, as
documentation agent (in such capacity, "Documentation Agent").
RECITALS
WHEREAS, Holdings and Company (capitalized terms used in these recitals without
definition shall have the respective meanings assigned in subsection 1.1 hereof)
and certain financial institutions (the "Existing Lenders") are parties to the
Amended and Restated Credit Agreement, dated as of July 1,1997 (the "Existing
Credit Agreement"), pursuant to which the Existing Lenders made loans to, and
acquired participations in letters of credit for the account of, Company to
enable Company to consummate the transactions contemplated by the Log Cabin
Acquisition Agreement;
WHEREAS, MBW LLC has entered into an Asset Sale and Purchase Agreement, dated as
of November 26, 1997 (the "Xxxxxx Xxxxx Acquisition Agreement") with The Procter
& Xxxxxx Company, an Ohio corporation ("P&G"), which agreement will be assigned
to the Company on or prior to the Effective Date, pursuant to which MBW LLC has
agreed to purchase and P&G has agreed to sell substantially all of the assets of
the retail baking mix businesses (the "Xxxxxx Xxxxx Business") upon the terms
and subject to the conditions set forth therein (the "Xxxxxx Xxxxx
Acquisition");
WHEREAS, Company desires that Existing Lenders and the New Lenders amend and
restate the Existing Credit Agreement to provide term loan facilities in an
aggregate principal amount of $450,000,000 (the "Term Loan Facilities") and a
revolving credit facility in an aggregate principal amount of $75,000,000 (the
"Revolving Credit Facility") which, together with the contribution by Holdings
of approximately $99,000,000 in equity to Company, will be used (i) to finance
the purchase price for the Xxxxxx Xxxxx Business payable in connection with the
Xxxxxx Xxxxx Acquisition, (ii) to refinance existing indebtedness under the
Existing Credit Agreement, (iii) to pay Transaction Costs and (iv) to provide
financing for working capital and other general corporate purposes (including
acquisitions) of Company and its Subsidiaries;
WHEREAS, Holdings desires to guaranty, and Company desires that all of its
future Subsidiaries guaranty, all of the obligations of Company with respect to
the credit facilities provided by Lenders;
WHEREAS, Company desires to secure all of the Obligations and desires that all
of its future Subsidiaries secure their respective obligations under the
Subsidiary Guaranty, and Holdings desires to secure its obligations under its
Guaranty, by granting to Administrative Agent, for the benefit of Agents and
Lenders, (i) a first priority Lien on substantially all of their respective real
and personal property and (ii) a first priority pledge of all of the capital
stock of their respective direct Subsidiaries;
NOW, THEREFORE, in consideration of the premises and the agreements, provisions
and covenants herein contained, Company, Holdings, Lenders and Agents agree as
follows:
SECTION 1.
DEFINITIONS
1.1 Certain Defined Terms.
The following terms used in this Agreement shall have the following meanings:
"Acquisition" means the transactions contemplated by the Acquisition Agreement.
"Acquisition Agreement" means that certain Asset Purchase Agreement dated as of
December 18,1996, by and between Company and Seller, as in effect on the Closing
Date and as such agreement may thereafter be amended, restated, supplemented or
otherwise modified from time to time to the extent permitted under subsection
7.12A.
"Adjusted Eurodollar Rate" means, for any Interest Rate Determination Date, the
rate per annum obtained by dividing (i) the London Interbank offered rate for
deposits in U.S. Dollars for maturities comparable to the Interest Period for
which such Adjusted Eurodollar Rate will apply as of approximately 11:00 A.M.
(London time) on such Interest Rate Determination Date as set forth on Telerate
Page 3750 by (ii) a percentage equal to 100% minus the stated maximum rate of
all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) applicable on such Interest
Rate Determination Date to any member bank of the Federal Reserve System in
respect of "Eurocurrency liabilities" as defined in Regulation D (or any
successor category of liabilities under Regulation D).
"Adjustment Date" means the first Business Day following receipt by the
Administrative Agent of both (i) the financial statements required to be
delivered pursuant to subsection 6.1(ii) or 6.1(iii), as the case may be, for
the most recently
completed fiscal period and (ii) the certificate required to be delivered
pursuant to subsection 6.1(iv) with respect to such fiscal period.
"Administrative Agent" means Chase, in its capacity as Administrative Agent, and
any successor to Chase in such capacity appointed pursuant to subsection 9.5A.
"Affected Lender" has the meaning assigned to that term in subsection 2.6C.
"Affected Loans" has the meaning assigned to that term in subsection 2.6C.
"Affiliate" means, as applied to any Person, 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.
"Agent" means, individually, each of Administrative Agent, the Syndication Agent
and the Documentation Agent, and "Agents" means Administrative Agent, the
Syndication Agent and the Documentation Agent, collectively.
"Aggregate Amounts Due" has the meaning assigned to that term in subsection
10.5.
"Agreement" means this Second Amended and Restated Credit Agreement dated as of
January 16, 1998, as it may be amended, restated, supplemented or otherwise
modified from time to time.
"Anniversary" means each of the dates that are anniversaries of the Effective
Date.
"Applicable Margin" means (i) in the case of Revolving Loans and Tranche A Term
Loans, 1.50% if such Loans are Base Rate Loans and 2.50% if such Loans are
Eurodollar Rate Loans, (ii) in the case of Tranche B Term Loans, 1.75% if such
Loans are Base Rate Loans and 2.75% if such Loans are Eurodollar Rate Loans,
(iii) in the case of Tranche C Term Loans, 2.00% if such Loans are Base Rate
Loans and 3.00% if such Loans are Eurodollar Rate Loans and (iv) in the case of
the Commitment Fee, 0.50%; provided that, from and after June 30,1998, the
Applicable Margin will be adjusted on each Adjustment Date based upon the ratio
of Consolidated Total Debt at the last day of the 12-month period ending on the
date of the financial statements relating to such Adjustment Date to
Consolidated EBITDA for such period as determined from such financial
statements, to the Applicable Margin set forth on Annex A hereto opposite the
level for which the ratio of Consolidated Total Debt to Consolidated EBITDA so
determined satisfies the corresponding criteria set forth
under the heading "Ratio of Consolidated Total Debt to Consolidated EBITDA", and
provided further, that in the event that the financial statements required to be
delivered pursuant to subsection 6.1(ii) and (iii), as applicable, and the
related certificate required pursuant to subsection 6. 1(iv), are not delivered
when due, then if such financial statements are not delivered prior to the date
upon which the resultant Default shall become an Event of Default, then,
effective upon such Default becoming an Event of Default, during the period from
the date upon which such financial statements were required to be delivered
until one Business Day following the date upon which they actually are
delivered, the Applicable Margin (x) with respect to Revolving Loan and Tranche
A Term Loans shall be 1.50%, if such Loans are Base Rate Loans and 2.50%, if
such Loans are Eurodollar Rate Loans (y) with respect to Tranche B Term Loans,
1.75%, if such Loans are Base Rate Loans and 2.75%, if such Loans are Eurodollar
Loans, (z) with respect to Tranche C Term Loans, 2.00%, if such Loans are Base
Rate Loans and 3.00%, if such Loans are Eurodollar Loans and (aa) with respect
to the Commitment Fee shall be 0.50%.
"Applied Amount" has the meaning assigned to that term in subsection 2.4C(ii).
"Approved Fund" means, with respect to a Lender that is a fund that invests in
loans, any other fund that invests in loans and has the same investment advisor
as such Lender or is managed by an Affiliate of such investment advisor.
"Asset Sale" means the sale (including in any sale-leaseback transaction) by
Company or any of its Subsidiaries to any Person (other than Company or any of
its Wholly Owned Subsidiaries) of (i) any of the stock of any of Company's
Subsidiaries, (ii) all or substantially all of the assets of any division or
line of business of Company or any of its Subsidiaries, or (iii) any other
assets other than sales of assets (including without limitation inventory) in
the ordinary course of business and sales of obsolete equipment, excluding any
such other assets to the extent that the aggregate value of such assets sold in
any single transaction or transactions is equal to $4,000,000 or less in any one
Fiscal Year.
"Assignment Agreement" means an assignment agreement in substantially the form
of Exhibit XVII annexed hereto or in such other form as may be approved by
Administrative Agent.
"Assumption Agreement" means that certain Assignment and Assumption Agreement
dated as of December 31, 1996, by and between Seller and Company, as in effect
on the Closing Date and as such agreement may thereafter be amended, restated,
supplemented or otherwise modified from time to time to the extent permitted
under subsection 7.12A.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means, at any time, the higher of (x) the Prime Rate or (y) the rate
which is 1/2 of 1% in excess of the Federal Funds Effective Rate.
"Base Rate Loans" means Loans bearing interest at rates determined by reference
to the Base Rate as provided in subsection 2.2A.
"Business" means the assets and liabilities of Company relating to the
manufacture and sale of pancake syrup and pancake and waffle mix marketed under
the Xxx. Xxxxxxxxxxx'x and Country Crock brand names, as set forth in the
Acquisition 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 is a day on which banking
institutions located in such state are authorized or required by law or other
governmental action to close, and (ii) with respect to all notices,
determinations, findings, issuances and payments in connection with the Adjusted
Eurodollar Rate or any Eurodollar Rate Loans, any day that is a Business Day
described in clause (i) above and that is also (a) a day for trading by and
between banks in Dollar deposits in the London interbank market and (b) a day on
which banking institutions are open for business in London.
"Capital Lease" means, as applied to any Person, any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is accounted for as a capital lease on the balance sheet of that
Person.
"Cash" means money, currency or a credit balance in a Deposit Account.
"Cash Equivalents" means (i) marketable securities issued or directly and
unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having the highest rating obtainable
from either Standard & Poor's Rating Service ("S&P") or Xxxxx'x Investors
Service, Inc. ("Moody's"); (iii) commercial paper maturing no more than one year
from the date of creation thereof and, at the time of acquisition, having a
rating of at least A- 1 from S&P or at least P-1 from Moody's; (iv) certificates
of deposit or bankers' acceptances maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having a rating of at least
A-1 from S&P or at least P-1 from Moody's, issued by any Lender or any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia having unimpaired capital and surplus
of not less than $250,000,000 (each Lender and each such commercial bank being
herein called a "Cash Equivalent Bank"); and (v) Eurodollar time deposits having
a maturity of less than one year
purchased directly from any Cash Equivalent Bank (provided such deposit is with
such Cash Equivalent Bank or any other Cash Equivalent Bank).
"Cash Proceeds" means, with respect to any Asset Sale, Cash payments (including
any Cash received by way of deferred payment pursuant to, or monetization of, a
note receivable or otherwise, but only as and when so received) received by
Company or any of its Subsidiaries from such Asset Sale.
"Certificate re Non-Bank Status" means a certificate substantially in the form
of Exhibit XIX annexed hereto delivered by a Lender to Administrative Agent
pursuant to subsection 2.7B(ii).
"Chase" means The Chase Manhattan Bank and its successors, including, without
limitation, its successors by merger.
"Closing Date" means December 31, 1996.
"Collateral" means all of the properties and assets (including capital stock) in
which Liens are purported to be granted by the Collateral Documents.
"Collateral Access Agreement" means any landlord waiver, mortgagee waiver,
bailee letter or any similar acknowledgment or agreement of any landlord or
mortgagee in respect of any Real Property Asset where any Collateral is located
or any warehouseman or processor in possession of any Inventory of any Loan
Party, substantially in the form of Exhibit XXI annexed hereto with such changes
thereto as may be agreed to by Administrative Agent in the reasonable exercise
of its discretion.
"Collateral Account" has the meaning assigned to that term in the Collateral
Account Agreement.
"Collateral Account Agreement" means the Collateral Account Agreement executed
and delivered by Company and Administrative Agent on the Effective Date,
substantially in the form of Exhibit XX annexed hereto, pursuant to which
Company may pledge cash to Administrative Agent to secure the obligations of
Company to reimburse Issuing Lenders for payments made under one or more Letters
of Credit as such Collateral Account Agreement may hereafter be amended,
restated, supplemented or otherwise modified from time to time.
"Collateral Documents" means the Pledge Agreement, the Security Agreement, the
Patent and Trademark Security Agreement, the Log Cabin Patent and Trademark
Security Agreement, the Xxxxxx Xxxxx Patent and Trademark Security Agreement,
the Collateral Account Agreement, the Mortgages and any other documents,
instruments or agreements delivered by any Loan Party pursuant to this Agreement
or any of the other Loan Documents in order to grant or perfect liens on any
assets of such Loan Party as security for the Obligations.
"Commercial Letter of Credit" means any letter of credit or similar instrument
issued for the purpose of providing the primary payment mechanism in connection
with the purchase of any materials, goods or services by Company or any of its
Subsidiaries in the ordinary course of business of Company or such Subsidiary.
"Commitment Fee" and "Commitment Fees" have the meanings assigned to such terms
in subsection 2.3A.
"Commitments" means the commitments of Lenders to make Loans as set forth in
subsection 2.1A.
"Company" has the meaning assigned to that term in the introduction to this
Agreement.
"Company Common Stock" means the common stock of Company, par value $0.011 per
share.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit XIV annexed hereto delivered to Administrative Agent by Company pursuant
to subsection 6.1(iv).
"Condemnation Proceeds" has the meaning assigned to that term in subsection
2.4B(iii)(d).
"Conforming Leasehold Interest" means any Recorded Leasehold Interest as to
which the lessor has agreed in writing for the benefit of Administrative Agent
(which writing has been delivered to Administrative Agent), whether under the
terms of the applicable lease, under the terms of a Landlord Consent and
Estoppel, or otherwise, to the matters described in the definition of "Landlord
Consent and Estoppel," which interest, if a subleasehold or sub-subleasehold
interest, is not subject to any contrary restrictions contained in a superior
lease or sublease.
"Consolidated Capital Expenditures" means, for any period, the aggregate amount
paid or accrued by Holdings and its Subsidiaries for the rental, lease, purchase
(including by way of the acquisition of Securities of a Person), construction or
use of any property during such period, the value or cost of which, in
conformity with GAAP, would appear on the consolidated balance sheet of Holdings
and its Subsidiaries in the category of "purchases of property, plant or
equipment" at the end of such period, excluding any such expenditure made to
restore, replace or rebuild property to the condition of such property
immediately prior to any damage, loss, destruction or condemnation of such
property, to the extent such expenditure is made with insurance proceeds or
condemnation awards relating to any such damage, loss, destruction or
condemnation; provided, however, that Consolidated Capital Expenditures shall
not include expenditures up to an aggregate amount equal to the portion of the
purchase price for any Permitted Acquisition made pursuant to
subsection 7.7(vii) that would otherwise be treated as a Consolidated Capital
Expenditure.
"Consolidated Cash Interest Coverage Ratio" means, for any period, the ratio of
(i) Consolidated EBITDA for such period to (ii) Consolidated Cash Interest
Expense for such period.
"Consolidated Cash Interest Expense" means, for any period, Consolidated
Interest Expense payable in Cash during such period.
"Consolidated Current Assets" means, as at any date of determination, the total
assets of Holdings and its Subsidiaries on a consolidated basis which may
properly be classified as current assets in conformity with GAAP, excluding Cash
and Cash Equivalents.
"Consolidated Current Liabilities" means, as at any date of determination, the
total liabilities of Holdings and its Subsidiaries on a consolidated basis which
may properly be classified as current liabilities in conformity with GAAP.
"Consolidated EBITDA" means; for any period, (i) the sum of the amounts for such
period of (a) Consolidated Net Income, plus (b)to the extent deducted in
determining such Consolidated Net Income, (1) Consolidated Interest Expense, (2)
depreciation, (3) depletion, (4) amortization, (5) all federal, state, local and
foreign income taxes, (6) transaction fees paid to the MDC Entities and/or
Dartford and/or Fenway in connection with acquisitions made after the Closing
Date, so long as such transaction fees are paid in accordance with the terms of
the MDC Advisory Services Agreement, the Dartford Management Agreement and the
Fenway Agreement, (7) non-recurring charges incurred prior to September 30, 1998
related to the Business and the Log Cabin Business, with respect to (A)
relocation of Company's assets, (3) the purchase of computers and computer-
related equipment and (C) transition related expenses in connection with the
foregoing, but only to the extent that such non-recurring charges, together with
all expenditures excluded from Consolidated Capital Expenditures under clause
(iii) (a) of the definition of Consolidated Fixed Charges, do not exceed
$6,000,000 in the aggregate, (8) non-recurring charges incurred prior to June
30, 1999 with respect to relocation of the Company's assets related to the
Xxxxxx Xxxxx Business and transition related expenses in connection therewith,
but only to the extent that such non-recurring charges, together with all
expenditures excluded from Consolidated Capital Expenditures under clause (iii)
(b) of the definition of Consolidated Fixed Charges, do not exceed $15,000,000
in the aggregate, (9) manufacturing overhead costs related to the Xxxxxx Xxxxx
Transitional Supply Agreement not to exceed $8,200,000 per year as long as the
Xxxxxx Xxxxx Transitional Supply Agreement is in effect, (10) all other non-cash
items reducing Consolidated Net Income and (11) any extraordinary and unusual
losses, minus (ii) the sum of the amounts for such period of (a) all other non-
cash items increasing Consolidated Net Income, plus (b) any extraordinary and
unusual gains, all of the
foregoing as determined on a consolidated basis for Holdings and its
Subsidiaries in conformity with GAAP and calculated in accordance with
subsection 7.6E, if applicable.
"Consolidated Excess Cash Flow" means, for any period, an amount (if positive)
equal to (i) the sum, without duplication, of the amounts for such period of (a)
Consolidated EBITDA, (b) to the extent deducted from Consolidated EBITDA by
virtue of clause (ii)(b) of the definition thereof, extraordinary and unusual
cash gains, and (c) the Consolidated Working Capital Adjustment minus (ii) the
sum, without duplication, of the amounts for such period of (a) voluntary and
scheduled cash repayments of Consolidated Total Debt (excluding repayments of
Revolving Loans except to the extent the Revolving Loan Commitments are
permanently reduced in connection with such repayments), (b) Consolidated
Capital Expenditures (net of any proceeds of any related financings with respect
to such expenditures), (c) expenditures made in connection with any Permitted
Acquisition pursuant to subsection 7.7(vii) (net of any proceeds of any related
financings with respect to such acquisitions), including without limitation
transaction fees paid in cash to the MDC Entities and/or Dartford and/or Fenway
in connection with such acquisitions, so long as such transaction fees are paid
in accordance with the terms of the MDC Advisory Services Agreement, the
Dartford Management Agreement and the Fenway Agreement, (d) Consolidated
Interest Expense, (e) to the extent added back to Consolidated EBITDA by virtue
of clause (i)(b)(11) of the definition thereof, extraordinary and unusual cash
losses, (f) to the extent added back to Consolidated EBITDA by virtue of clauses
(i)(b)(7) or (i)(b)(8) of the definition thereof, non-recurring charges paid in
cash, (g) to the extent added back to Consolidated EBITDA by virtue of clause
(i)(b)(9) of the definition thereof, manufacturing overhead costs related to the
Xxxxxx Xxxxx Transitional Supply Agreement, and (h) the provision for current
taxes based on income of Holdings and its Subsidiaries and payable in cash with
respect to such period.
"Consolidated Fixed Charges" means, for any period, an amount equal to the sum
of the amounts for such period of (i) scheduled amortization of Indebtedness of
Holdings and its Subsidiaries (as reduced by prepayments previously made), and
discount or premium relating to any such Indebtedness for such period, whether
expensed or capitalized, (ii) Consolidated Cash Interest Expense, (iii)
Consolidated Capital Expenditures (excluding (a) expenditures which would
otherwise be included in Consolidated Capital Expenditures incurred prior to
September 30,1998 related to the Business and the Log Cabin Business, with
respect to (1) relocation of Company's assets, (2) the purchase of computers and
computer-related equipment and (3) transition related expenses in connection
with the foregoing, but only to the extent that such expenditures, together with
all non-recurring charges added back to Consolidated EBITDA by virtue of clause
(i)(b)(7) of the definition thereof, do not exceed $6,000,000 in the aggregate
and (b) expenditures which would otherwise be included in Consolidated Capital
Expenditures incurred prior to June 30, 1999 with respect to relocation of the
Company's assets related to the Xxxxxx Xxxxx Business and transition related
expenses in connection therewith, but only to the extent that such
expenditures, together with all non-recurring charges added back to Consolidated
EBITDA by virtue of clause (i)(b)(8) of the definition thereof, do not exceed
$15,000,000 in the aggregate), and (iv) taxes actually paid in cash by Holdings
or any of its Subsidiaries.
"Consolidated Interest Expense" means, for any period, the net interest expense
of Holdings and its Subsidiaries for such period (net of any interest income of
Holdings and its Subsidiaries during such period) as determined on a
consolidated basis in conformity with GAAP.
"Consolidated Net Income" means, for any period, the net income (or loss) of
Holdings and its Subsidiaries on a consolidated basis for such period taken as a
single accounting period determined in conformity with GAAP; provided that there
shall be excluded (i) the income (or loss) of any Person in which any other
Person (other than Holdings or any of the Subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other distributions actually
paid in cash to Holdings or any of its Subsidiaries by such Person during such
period and (ii) the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of Company or is merged into or consolidated with Company
or any of its Subsidiaries or the date such Person's assets are acquired by
Company or any of its Subsidiaries.
"Consolidated Total Debt" means, as at any date of determination, all
outstanding Indebtedness of Holdings and its Subsidiaries as determined on a
consolidated basis in conformity with GAAP.
"Consolidated Total Senior Debt" means, as at any date of determination, all
outstanding Indebtedness of Holdings and its Subsidiaries other than
Subordinated Indebtedness, as determined on a consolidated basis in conformity
with GAAP.
"Consolidated Working Capital" means, as at any date of determination, the
excess of Consolidated Current Assets over Consolidated Current Liabilities.
"Consolidated Working Capital Adjustment" means, for any period on a
consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is
less than) Consolidated Working Capital as of the end of such period.
"Contingent Obligation" means, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of that Person (i) with respect to any
Indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof by the Person incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another that such
obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof, (ii)
with respect to any letter of credit issued for the account of that
Person or as to which that Person is otherwise liable for reimbursement of
drawings, or (iii) under Interest Rate Agreements. Contingent Obligations shall
include, without limitation, (a) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of business),
comaking, discounting with recourse or sale with recourse by such Person of the
obligation of another, (b) the obligation to make take-or-pay or similar
payments if required regardless of non-performance by any other party or parties
to an agreement, and (c) any liability of such Person for the obligation of
another through any agreement (contingent or otherwise) (x) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise) or
(y) to maintain the solvency or any balance sheet item, level of income or
financial condition of another if, in the case of any agreement described under
sub clauses (x) or (y) of this sentence, the primary purpose or intent thereof
is as described in the preceding sentence. The amount of any Contingent
Obligation shall be equal to the amount of the obligation so guaranteed or
otherwise supported or, if less, the amount to which such Contingent Obligation
is specifically limited.
"Continuing Director" shall mean, as of any date of determination, any member of
the Board of Directors of Company who (i) was a member of such Board of
Directors on the Closing Date or (ii) was nominated for election or elected to
such Board of Directors with the affirmative vote of the MDC Entities and/or
Dartford and/or Fenway.
"Contractual Obligation" means, as applied to any Person, any provision of any
Security issued by that Person or of any material indenture, mortgage, deed of
trust, contract, undertaking, agreement or other instrument to which that Person
is a party or by which it or any of its properties is bound or to which it or
any of its properties is subject.
"CSI" means Chase Securities Inc. and its successors and assigns, including,
without limitation, its successors by merger.
"Dartford" means Dartford Partnership L.L.C., a limited liability company
organized under the laws of the State of Delaware.
"Dartford Management Agreement" means that certain Management Services Agreement
dated as of December 31, 1996, by and between Company and Dartford, as in effect
on the Closing Date and as such agreement may thereafter be amended, restated,
supplemented or otherwise modified from time to time to the extent permitted
under subsection 7.12A.
"Defaulting Lender" means any Lender with respect to which a Lender Default is
in effect.
"Deposit Account" means a demand, time, savings, passbook or like account with a
bank, savings and loan association, credit union or like organization, other
than an account evidenced by a negotiable certificate of deposit.
"Documentation Agent" 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.
"Xxxxxx Xxxxx Acquisition" has the meaning assigned to that term in the Recitals
to this Agreement.
"Xxxxxx Xxxxx Acquisition Agreement" has the meaning assigned to that term in
the Recitals to this Agreement.
"Xxxxxx Xxxxx Assumption Agreement" means that certain Assumption Agreement
dated as of January 16, 1998, by and between P&G and Company.
"Xxxxxx Xxxxx Business" has the meaning assigned to that term in the Recitals to
this Agreement.
"Xxxxxx Xxxxx Patent and Trademark Security Agreement" means the Xxxxxx Xxxxx
Patent and Trademark Security Agreement entered into by and among Company, the
Subsidiary Guarantors and the Administrative Agent dated as of the Effective
Date, substantially in the form of Exhibit XIII annexed hereto, as such Xxxxxx
Xxxxx Patent and Trademark Security Agreement may thereafter be amended,
restated, supplemented or otherwise modified from time to time.
"Xxxxxx Xxxxx Patent License Agreement" means that certain Patent License
Agreement dated as of January 16, 1998, by and between P&G and Company, as in
effect on the Effective Date and as such agreement may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted under subsection 7.12A.
"Xxxxxx Xxxxx Related Agreements" means the Xxxxxx Xxxxx Acquisition Agreement,
the Xxxxxx Xxxxx Assumption Agreement and the Xxxxxx Xxxxx Transition
Agreements.
"Xxxxxx Xxxxx Technology License Agreement" means the Technology License
Agreement dated as of January 16,1998, by and between P&G and the Company as in
effect on the Effective Date and as such agreement may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted under Section 7.12A.
"Xxxxxx Xxxxx Transition Agreements" means, collectively, (i) the Xxxxxx Xxxxx
Transitional Supply Agreement, (ii) the Xxxxxx Xxxxx Transition Services
Agreement, (iii) the Xxxxxx Xxxxx Technology License Agreement and (iv) the
Xxxxxx Xxxxx Patent License Agreement.
"Xxxxxx Xxxxx Transition Services Agreement" means the Transitional Services
Agreement, dated as of January 16, 1998, by and between P&G and Company as in
effect on the Effective Date and as such agreement may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted under subsection 7.12A.
"Xxxxxx Xxxxx Transitional Supply Agreement" means the Transitional Supply
Agreement, dated as of January 16, 1998, by and between P&G and the Company as
in effect on the Effective Date and as such agreement may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted under subsection 7.12A.
"Effective Date" means the date (on or before January 16, 1998) on which the
conditions precedent set forth in subsection 4.1 shall be satisfied or waived.
"Eligible Assignee" means (i) (a) a commercial bank organized under the laws of
the United States or any state thereof; (b) a commercial bank organized under
the laws of any other country or a political subdivision thereof; provided that
(x) such bank is acting through a branch or agency located in the United States
or (y) such bank is organized under the laws of a country that is a member of
the Organization for Economic Cooperation and Development or a political
subdivision of such country; (c) any other entity which is an "accredited
investor" (as defined in Regulation D under the Securities Act) which extends
credit or buys loans as one of its businesses including, but not limited to,
insurance companies, funds and lease financing companies; and (d) any other
financial institution or fund (whether a corporation, partnership, trust or
other entity) that is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and has combined capital
and surplus or net assets of at least $100,000,000, in each case (under clauses
(a) through (d) above) that is reasonably acceptable to Administrative Agent;
and (ii) any Lender, any Affiliate of any Lender, and any Approved Fund;
provided that no Affiliate of Company shall be an Eligible Assignee.
"Employee Benefit Plan" means any "employee benefit plan" as defined in Section
3(3) of ERISA which is subject to ERISA and which is maintained or contributed
to by Company or any of its ERISA Affiliates.
"Employment Agreements" means, collectively, (i) that certain Employment
Agreement dated as of December 31, 1996, by and between Company and Xxxxxx
Xxxxxxx and (ii) that certain Employment Agreement dated as of December 31,1996,
by and between Company and Xxxx Xxxxxxx.
"Environmental Claim" means any written accusation, allegation, notice of
violation, claim, demand, abatement order or other order or direction
(conditional or otherwise) by any governmental authority or any Person for any
damage, including, without limitation, personal injury (including sickness,
disease or death), tangible or intangible property damage, contribution,
indemnity, indirect or consequential damages, damage to the environment,
nuisance, pollution, contamination or other adverse effects on the environment,
or for fines, penalties or restrictions, in each case relating to, resulting
from or in connection with Hazardous Materials and relating to Company, any of
its Subsidiaries, any of their respective Affiliates that are directly or
indirectly controlled by Company, or any Facility.
"Environmental Laws" means all laws, statutes, ordinances, orders, rules,
regulations, plans, policies or decrees and the like relating to (i)
environmental matters, including, without limitation, those relating to fines,
injunctions, penalties, damages, contribution, cost recovery compensation,
losses or injuries resulting from the Release or threatened Release of Hazardous
Materials, (ii) the generation, use, storage, transportation or disposal of
Hazardous Materials, or (iii) occupational safety and health, public health and
safety, industrial hygiene or protection of wetlands, in any manner applicable
to Company or any of its Subsidiaries or any of their respective properties,
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. /s/ 9601 et seq.), the Hazardous
Materials Transportation Act (49 U.S.C. /s/ 1801 et seq.,), the Resource
Conservation and Recovery Act (42 U.S.C. /s/ 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. /s/ 1251 et seq.), the Clean Air Act (42 U.S.C.
/s/ 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. /s/ 2601 et
seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. /s/ 136
et seq.), the Occupational Safety and Health Act (29 U.S.C. /s/ 651 et seq.),
and the Emergency Planning and Community Right-to-Know Act (42 U.S.C. /s/ 11001
et seq.), each as amended or supplemented, and any analogous future or present
local, state and federal statutes and regulations promulgated pursuant thereto,
each as in effect as of the date of determination.
"Equity Proceeds" means the cash proceeds (net of underwriting discounts and
commissions and other reasonable costs associated therewith) from the issuance
of any equity Securities of Holdings or Company after the Effective Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and any successor statute.
"ERISA Affiliate" means, as applied to any Person, (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) solely
for purposes of obligations under Section 412 of the Internal Revenue Code or
under the applicable
sections set forth in Section 414(t)(2) of the Internal Revenue Code, any member
of an affiliated service group within the meaning of Section 414(m) or (o) of
the Internal Revenue Code of which that Person, any corporation described in
clause (i) above or any trade or business described in clause (ii) above is a
member.
"ERISA Event" means (i) a "reportable event" within the meaning of Section
4043(c) of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the
PBGC has been waived by regulation or with respect to which no penalty will be
assessed by the PBGC for failure to satisfy such notice requirements); (ii) the
failure to meet the minimum funding standard of Section 412 of the Internal
Revenue Code with respect to any Pension Plan (whether or not waived in
accordance with Section 412(d) of the Internal Revenue Code) or the failure to
make by its due date a required installment under Section 412(m) of the Internal
Revenue Code with respect to any Pension Plan or the failure to make any
required contribution to a Multiemployer Plan; (iii) the provision by the
administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a
notice of intent to terminate such plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the withdrawal by Company or any of its ERISA
Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan resulting, in either case, in liability
pursuant to Section 4063 or 4064 of ERISA, respectively; (v) the institution by
the PBGC of proceedings to terminate any Pension Plan pursuant to Section 4042
of ERISA; (vi) the imposition of liability on Company or any of its ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal by Company or any
of its ERISA Affiliates in a complete or partial withdrawal (within the meaning
of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan resulting in
withdrawal liability pursuant to Section 4201 of ERISA, or the receipt by
Company or any of its ERISA Affiliates of written notice from any Multiemployer
Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245
of ERISA, or that it intends to terminate or has terminated under Section 4042
of ERISA or under Section 4041A of ERISA if such termination would result in
liability to Company or any of its ERISA Affiliates; (viii) the imposition on
Company or any of its ERISA Affiliates of fines, penalties or taxes under
Chapter 43 of the Internal Revenue Code or under Section 409 or 502(c), (i) or
(I) or 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the failure
of any Pension Plan (or any other Employee Benefit Plan intended to be qualified
under Section 401(a) of the Internal Revenue Code) to qualify under Section
401(a) of the Internal Revenue Code, or the failure of any trust forming part of
any Pension Plan to qualify for exemption from taxation under Section 501(a) of
the Internal Revenue Code; or (x) the imposition of a Lien pursuant to Section
40l(a)(29) or 412(n) of the Internal Revenue Code or pursuant to ERISA with
respect to any Pension Plan.
"Eurodollar Rate Loans" means Loans bearing interest at rates determined by
reference to the Adjusted Eurodollar Rate as provided in subsection 2.2A.
"Event of Default" means each of the events set forth in Section 8.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time
to time, and any successor statute.
"Existing Credit Agreement" has the meaning assigned to that term in the
Recitals to this Agreement.
"Existing Lenders" has the meaning assigned to that term in the Recitals to this
Agreement.
"Existing Subordinated Note Documents" means the Existing Subordinated Note
Indenture, the Existing Subordinated Notes and each other document executed in
connection with the Existing Subordinated Notes, as each such document may be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted under subsection 7.12B.
"Existing Subordinated Note Indenture" means the indenture pursuant to which the
Existing Subordinated Notes are issued, in a form delivered to Agents and
Lenders on or prior to the Effective Date, with such changes thereto as are
permitted under subsection 7.12B and as such indenture may thereafter be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted under subsection 7.12B.
"Existing Subordinated Notes" means the 9-7/8% Senior Subordinated Notes of
Company due 2007 issued on February 10, 1997 pursuant to the Existing
Subordinated Note Indenture in the form delivered to Agents and Lenders on or
prior to the Effective Date with such changes thereto as are permitted under
subsection 7.12B and as such notes may thereafter be amended, restated,
supplemented or otherwise modified from time to time to the extent permitted
under subsection 7.12B.
"Facilities" means any and all real property (including, without limitation, all
buildings, fixtures or other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by Company or any of its Subsidiaries
(but only as to portions of buildings actually leased or used) or any of their
respective predecessors or any of their respective Affiliates that are directly
or indirectly controlled by Company.
"Federal Funds Effective Rate" means, for any period, a fluctuating interest
rate equal for each day during such period 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 for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by
Administrative Agent from three Federal funds brokers of recognized standing
selected by Administrative Agent.
"Fenway" means Fenway Partners Capital Fund, L.P., a Delaware limited
partnership .
"Fenway Agreement" means that certain Advisory Agreement dated as of December
31, 1996, by and between Company and Fenway, as in effect on the Closing Date
and as such agreement may thereafter be amended, restated, supplemented or
otherwise modified from time to time to the extent permitted under subsection
7.12A.
"FFDC Act" means the Federal Food, Drug and Cosmetic Act, as amended from time
to time, and any successor statute.
"First Priority" means, with respect to any Lien purported to be created in any
Collateral pursuant to any Collateral Document, that (i) such Lien has priority
over any other Lien on such Collateral and (ii) such Lien is the only Lien
(other than Permitted Encumbrances and Liens permitted pursuant to subsection
7.2A) to which such Collateral is subject.
"Fiscal Quarter" means a fiscal quarter of a Fiscal Year.
"Fiscal Year" means the fiscal year of Holdings and its Subsidiaries ending on
the last Saturday in December of each calendar year.
"Fixed Charge Component" has the meaning assigned to that term in subsection 7.
6E(i).
"Flavor Supply Agreement" means that certain Flavor Supply Agreement dated as of
December 31, 1996, by and between Company and Quest, as in effect on the Closing
Date and as such agreement may thereafter be amended, restated, supplemented or
otherwise modified from time to time to the extent permitted under subsection
7.12A.
"Flood Hazard Property" means a Mortgaged Property located in an area designated
by the Federal Emergency Management Agency as having special flood or mud slide
hazards.
"Funding and Payment Office" means the office of Administrative Agent and Swing
Line Lender located at One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 or such offices of Administrative Agent or any successor Administrative
Agent specified by Administrative Agent or such successor Administrative Agent
in a written notice to Loan Parties and Lenders).
"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 and specifically, terms used herein applicable to Company and its
Subsidiaries defined by reference to GAAP shall give effect to the subtraction
of minority interests.
"Governmental Acts" has the meaning assigned to that term in subsection 3.5.
"Governmental Authorization" means any permit, license, authorization, plan,
directive, consent order or consent decree of or from any federal, state or
local governmental authority, agency or court.
"Guaranty" means, individually, each of the Holdings Guaranty, the Subsidiary
Guaranty and any other guaranty of the Obligations, and "Guaranties" means the
Holdings Guaranty, the Subsidiary Guaranty and each other guaranty of the
Obligations, collectively.
"Guarantors" means Holdings and the Subsidiary Guarantors.
"Hazardous Materials" means (i) any chemical, material or substance defined as
or included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous waste", "restricted hazardous
waste", "infectious waste", "toxic substances" or any other formulations
intended to define, list or classify substances by reason of deleterious
properties such as ignitability, corrosivity, reactivity, carcinogenicity,
toxicity, reproductive toxicity, "TCLP toxicity," or "EP toxicity" or words of
similar import under any applicable Environmental Laws; (ii) any oil, petroleum,
petroleum fraction or petroleum derived substance; (iii) any drilling fluids,
produced waters and other wastes associated with the exploration, development or
production of crude oil, natural gas or geothermal resources; (iv) any flammable
substances or explosives; (v) any radioactive materials; (vi) asbestos in any
form; (vii) urea formaldehyde foam insulation; (viii) electrical equipment which
contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million; (ix) pesticides; and (x) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority.
"Holdings" has the meaning assigned to that term in the introduction to this
Agreement.
"Holdings Common Stock" means the common stock of Holdings, par value $0.01 per
share.
"Holdings Guaranty" means the Second Amended and Restated Holdings Guaranty
executed and delivered by Holdings on the Effective Date, substantially in the
form of Exhibit X annexed hereto, as such Holdings Guaranty may thereafter be
amended, restated, supplemented or otherwise modified from time to time.
"Immaterial Subsidiaries" means, with respect to any Person, any Subsidiary or
Subsidiaries of such Person the assets of which constitute, individually or in
the aggregate, less than 5% of the total assets of such Person and its
Subsidiaries.
"Indebtedness" means, as applied to any Person, (i) all indebtedness for
borrowed money, (ii) that portion of obligations with respect to Capital Leases
that is properly classified as a liability on a balance sheet in conformity with
GAAP, (iii) notes payable and drafts accepted representing extensions of credit
whether or not representing obligations for borrowed money (other than accounts
payable incurred in the ordinary course of business and accrued expenses
incurred in the ordinary course of business), (iv) any obligation owed for all
or any part of the deferred purchase price of property or services (excluding
any such obligations incurred under ERISA), which purchase price is (a) due more
than six months from the date of incurrence of the obligation in respect thereof
or (b) evidenced by a note or similar written instrument, and (v) all
indebtedness secured by any Lien on any property or asset owned or held by that
Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person.
Obligations under Interest Rate Agreements constitute Contingent Obligations and
not Indebtedness.
"Indemnified Liabilities" has the meaning assigned to that term in subsection
10.3.
"Indemnitee" has the meaning assigned to that term in subsection 10.3.
"Insurance Proceeds" has the meaning assigned to that term in subsection
2.4B(iii)(d).
"Intellectual Property" means collectively the MBW Intellectual Property, the
Log Cabin Intellectual Property and the Xxxxxx Xxxxx Intellectual Property, each
as defined in subsections 5.5B, 5.5C and 5.5D, respectively.
"Interest Payment Date" means (i) with respect to any Base Rate Loan, the last
Business Day of each March, June, September and December of each year,
commencing on March 31,1998 and (ii) with respect to any Eurodollar Rate Loan,
the last day of each Interest Period applicable to such Loan; provided that in
the case of
each Interest Period of longer than three months, "Interest Payment Date" shall
also include the date that is three months after the commencement of such
Interest Period.
"Interest Period" has the meaning assigned to that term in subsection 2.2B.
"Interest Rate Agreement" means any interest rate swap agreement, interest rate
cap agreement, interest rate collar agreement or other similar agreement or
arrangement designed to hedge Company or any of its Subsidiaries against
fluctuations in interest rates.
"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. The Interest Rate Determination Date in respect of calculating
the Adjusted Eurodollar Rate shall be the second Business Day prior to the first
day of the related Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended to
the date hereof and from time to time hereafter.
"Inventory" means, with respect to any Person as of any date of determination,
all goods, merchandise and other personal property which are then held by such
Person for sale or lease, including raw materials and work in process.
"Investment" means (i) any direct or indirect purchase or other acquisition by
Company or any of its Subsidiaries of, or of a beneficial interest in, stock or
other Securities of any other Person (other than a Person that, prior to such
purchase or acquisition, was a Wholly Owned Subsidiary of Company), or (ii) any
direct or indirect loan, advance (other than advances to employees for moving,
entertainment and travel expenses, drawing accounts and similar expenditures in
the ordinary course of business) or capital contribution by Company or any of
its Subsidiaries to any other Person other than a Wholly Owned Subsidiary of
Company, including all Indebtedness and accounts receivable acquired from that
other Person that are not current assets or did not arise from sales to that
other Person in the ordinary course of business; provided however that the term
"Investment" shall not include (a) current trade and customer accounts
receivable for goods furnished or services rendered in the ordinary course of
business and payable in accordance with customary trade terms, (b) advances and
prepayments to suppliers for goods and services in the ordinary course of
business, (c) stock or other securities acquired in connection with the
satisfaction or enforcement of Indebtedness or claims due or owing to Company or
any of its Subsidiaries or as security for any such Indebtedness or claims, (d)
Cash held in Deposit Accounts with banks and trust companies (other than
Lenders) not exceeding $2,000,000 in aggregate amount, (e) Cash held in any
Deposit Account with a Lender and (f) shares in a mutual fund that invests
solely in Cash Equivalents. The amount of any Investment shall be the original
cost of such Investment plus the cost of all
additions thereto, without any adjustments for increases or decreases in value,
or write-ups, write-downs or write-offs with respect to such Investment.
"IP Collateral" means the Collateral under the Patent and Trademark Security
Agreement, the Log Cabin Patent and Trademark Security Agreement and the Xxxxxx
Xxxxx Patent and Trademark Security Agreement.
"Issuing Lender" means, with respect to any Letter of Credit, the Lender which
agrees or is otherwise obligated to issue such Letter of Credit, determined as
provided in subsection 3.1B(ii).
"Joint Venture" means a joint venture, partnership or other similar arrangement,
whether in corporate, partnership or other legal form; provided that in no event
shall any corporate Subsidiary of any Person be considered to be a Joint Venture
to which such Person is a party.
"Kraft" means Kraft Foods, Inc., a Delaware corporation.
"Landlord Consent and Estoppel" means, with respect to any Leasehold Property, a
letter, certificate or other instrument in writing from the lessor under the
related lease, satisfactory in form and substance to Administrative Agent,
pursuant to which such lessor agrees, for the benefit of Administrative Agent,
(i) that without any further consent of such lessor or any further action on the
part of the Loan Party holding such Leasehold Property, such Leasehold Property
may be encumbered pursuant to a Mortgage and may be assigned to the purchaser at
a foreclosure sale or in a transfer in lieu of such a sale (and to a subsequent
third party assignee if Administrative Agent, any Lender, or an Affiliate of
either so acquires such Leasehold Property), (ii) that such lessor shall not
terminate such lease as a result of a default by such Loan Party thereunder
without first giving Administrative Agent notice of such default and at least 30
days (or, if such default cannot reasonably be cured by Administrative Agent
within such period, such longer period as may reasonably be required) to cure
such default, (iii) to the matters contained in a Collateral Access Agreement,
and (iv) to such other matters relating to such Leasehold Property as
Administrative Agent may reasonably request.
"Leasehold Property" means any leasehold interest of any Loan Party as lessee
under any lease of real property, other than any such leasehold interest
designated from time to time by Administrative Agent in its sole discretion as
not being required to be included in the Collateral.
"Lender" and "Lenders" means the persons identified as "Lenders" and listed on
the signature pages of this Agreement, together with their successors and
permitted assigns pursuant to subsection 10.1, and the term "Lenders" shall
include Swing Line Lender unless the context otherwise requires, provided that
the term "Lenders", when
used in the context of a particular Commitment, shall mean Lenders having that
Commitment.
"Lender Default" shall mean (i) the refusal (which has not been retracted) of a
Lender to make available its portion of any Loans (including any Revolving Loans
made to pay Refunded Swing Line Loans or to reimburse drawings under Letters of
Credit) in accordance with subsection 2.1A(v) or its portion of any unreimbursed
drawing or payment under a Letter of Credit in accordance with subsection 3.3C
or (ii) a Lender having notified Company and/or Administrative Agent in writing
that it does not intend to comply with its obligations under subsection 2.1 or
subsections 3.1 C, 3.3B or 3.3C.
"Lending Office" means, as to any Lender, the office or offices of such Lender
specified as the "Lending Office" on Schedule 2.1 , or such other office or
offices as such Lender may from time to time notify Company and Administrative
Agent.
"Letter of Credit" or "Letters of Credit" means Commercial Letters of Credit and
Standby Letters of Credit issued or to be issued by Issuing Lenders for the
account of Company pursuant to subsection 3.1.
"Letter of Credit Usage" means, as at any date of determination, the sum of (i)
the maximum aggregate amount which is or at any time thereafter may become
available for drawing under all Letters of Credit then outstanding (whether or
not the conditions to drawing thereunder have been met) plus (ii) the aggregate
amount of all drawings under Letters of Credit honored by Issuing Lenders and
not theretofore reimbursed by Company (including any such reimbursement out of
the proceeds of Revolving Loans pursuant to subsection 3.3B).
"Leverage Ratio" means, as of any date of determination, the ratio of
Consolidated Total Debt, as of the date of determination, to Consolidated
EBITDA, for the twelve-month period ending on the date of determination, in each
case calculated for Holdings and its Subsidiaries on a consolidated basis in
accordance with GAAP.
"Lien" means any lien, mortgage, pledge, assignment, security interest, fixed or
floating charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"Loan" or "Loans" means, as the context requires, one or more of the Term Loans,
Revolving Loans and Swing Line Loans or any combination thereof.
"Loan Documents" means this Agreement, the Notes, the Letters of Credit (and any
applications for, or reimbursement agreements or other documents or certificates
executed by Company in favor of an Issuing Lender relating to, the Letters of
Credit),
the Holdings Guaranty, the Subsidiary Guaranty, the Collateral Documents and any
Interest Rate Agreement entered into by Company with a Lender or an Affiliate of
any Lender.
"Loan Party" means, individually, each of Holdings, Company and any Subsidiary
Guarantors, and "Loan Parties" means Holdings, Company and each Subsidiary
Guarantor, collectively.
"Log Cabin Acquisition" means the acquisition of the Log Cabin Business pursuant
to the terms of the Log Cabin Acquisition Agreement.
"Log Cabin Acquisition Agreement" means that certain Asset Purchase Agreement
dated as of May 7, 1997 between the Company and Kraft.
"Log Cabin Assumption Agreement" means that certain Assumption Agreement dated
as of July 1,1997, by and between Kraft and Company.
"Log Cabin Business" means the assets of the retail syrup business marketed
under the Log Cabin and Country Kitchen trademarks and the foodservice business
marketed under the Log Cabin, Log Cabin Lite and Wigwam trademarks and under
private label arrangements.
"Log Cabin Co-Pack Agreement" means the Transitional Co-Pack Agreement, dated as
of July 1, 1997, by and between Kraft and the Company as in effect on the
Effective Date and as such agreement may thereafter be amended, restated,
supplemented or otherwise modified from time to time to the extent permitted
under subsection 7.12A.
"Log Cabin Excluded Products Co-Pack Agreement" means the Excluded Business Co-
Pack Agreement, dated as of July 1, 1997, by and between Kraft and the Company
as in effect on the Effective Date and as such agreement may thereafter be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted under subsection 7.12A.
"Log Cabin Patent and Trademark Security Agreement" means the Log Cabin Patent
and Trademark Security Agreement entered into by and among Company, the
Subsidiary Guarantors and the Administrative Agent dated as of July 1,1997, as
such Log Cabin Patent and Trademark Security Agreement may thereafter be
amended, restated, supplemented or otherwise modified from time to time.
"Log Cabin Patent License Agreement" means that certain Patent and Know-How
License Agreement dated as of July 1, 1997, by and between Kraft and Company, as
in effect on the Effective Date and as such agreement may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted under subsection 7.12A.
"Log Cabin Transition Agreements" means, collectively, (i) the Log Cabin Co-Pack
Agreement, (ii) the Log Cabin Excluded Products Co-Pack Agreement, (iii) the Log
Cabin Transition Services Agreement and (iv) the Log Cabin Patent License
Agreement.
"Log Cabin Transition Services Agreement" means the Transition Services
Agreement, dated as of July 1, 1997, by and between Kraft and Company as in
effect on the Effective Date and as such agreement may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted under subsection 7.12A.
"Management Fees" means the fees payable by Company pursuant to the MDC Advisory
Services Agreement, the Dartford Management Agreement and the Fenway Agreement.
"Management Investors" shall mean such Persons other than the MDC Entities,
Dartford and Fenway as shall hold membership interests in MBW LLC on or prior to
the Effective Date, which Persons shall be reasonably acceptable to
Administrative Agent and Lenders.
"Margin Stock" has the meaning assigned to that term in Regulation U of the
Board of Governors of the Federal Reserve System as in effect from time to time.
"Material Adverse Effect" means (i) a material adverse effect upon the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of Company and its Subsidiaries, taken as a whole, (ii) the material impairment
of the ability of any Loan Party to perform the Obligations and (iii) a material
adverse effect upon the legality, validity, binding effect or enforceability
against a Loan Party of a Loan Document to which it is a party.
"Material Contract" means any of the Employment Agreements or any other contract
or other arrangement to which Holdings or any of its Subsidiaries is a party
(other than the Loan Documents) for which breach, nonperformance, cancellation
or failure to renew could have a Material Adverse Effect.
"Maximum Consolidated Capital Expenditures Amount" has the meaning assigned to
that term in subsection 7.6D.
"MBW LLC" means MBW Investors LLC, a Delaware limited liability company.
"MBW LLC Agreement" means that certain Amended and Restated Limited Liability
Company Agreement dated as of December 31, 1996, by and among the MDC Entities,
Dartford, Fenway and the Management Investors, as such agreement may be amended,
restated, supplemented or otherwise modified from time to time.
"MDC Advisory Services Agreement" means that certain Advisory Services Agreement
dated as of December 31 , 1996, by and between Company and MDC Management
Company III, L.P., as in effect on the Closing Date and as such agreement may
thereafter be amended, restated, supplemented or otherwise modified from time to
time to the extent permitted under subsection 7.12A.
"MDC Entities" means XxXxxx De Leeuw & Co. III, L.P., a California limited
partnership, XxXxxx De Leeuw & Co. Offshore (Europe) III, L.P., a Bermuda
limited partnership, XxXxxx De Leeuw & Co. III (Asia), L.P., a Bermuda limited
partnership, Gamma Fund LLC, a California limited liability company, XxXxxx De
Leeuw & Co. IV, L.P., a California limited partnership and Delta Fund LLC, a
California limited liability company.
"Mortgage" means any mortgage or legal charge (whether designated as a deed of
trust or a mortgage or by any similar title) granted by Company or any of its
Subsidiaries (or, at Administrative Agent's option, an amendment to an existing
Mortgage, in form satisfactory to Administrative Agent, adding such Mortgaged
Property to the Real Property Assets encumbered by an existing Mortgage) in any
Real Property Asset to secure the Obligations, as such mortgage or legal charge
may be amended, restated, supplemented or otherwise modified from time to time,
and "Mortgages" means all such instruments collectively.
"Mortgage Policy" has the meaning assigned to that term in subsection 6.10B(iv).
"Mortgaged Property" has the meaning assigned to that term in subsection 6.10B.
"Multiemployer Plan" means a "multiemployer plan", as defined in Section
4001(a)(3) of ERISA which is subject to Title IV of ERISA, to which Company or
any of its ERISA Affiliates is contributing or to which Company or any of its
ERISA Affiliates has an obligation to contribute.
"NatWest" means The National Westminster Bank PLC and its successors, including,
without limitation, its successors by merger.
"Net Cash Proceeds" means, with respect to any Asset Sale, Cash Proceeds of such
Asset Sale net of bona fide direct costs of sale including, without limitation,
(i) income taxes reasonably estimated to be actually payable as a result of such
Asset Sale within one year of the date of receipt of such Cash Proceeds, (ii)
transfer, sales, use and other taxes payable in connection with such Asset Sale,
(iii) payment of the outstanding principal amount of, premium or penalty, if
any, and interest on any Indebtedness (other than the Loans) that is secured by
a Lien on the stock or assets in question and that is required to be repaid
under the terms thereof as a result of such Asset Sale, and (iv) broker's
commissions and reasonable fees and expenses of
counsel, accountants and other professional advisors in connection with such
Asset Sale.
"New Lender" means any Lender which is a party to this Agreement on the
Effective Date which is not an Existing Lender.
"New Subordinated Note Documents" means the New Subordinated Note Indenture, the
New Subordinated Notes and each other document executed in connection with the
New Subordinated Notes, as each such document may be amended, restated,
supplemented or otherwise modified from time to time to the extent permitted
under subsection 7.12B.
"New Subordinated Note Indenture" means the indenture pursuant to which the New
Subordinated Notes are issued, in a form delivered to Agents and Lenders on or
prior to the Effective Date, with such changes thereto as are permitted under
subsection 7.12B and as such indenture may thereafter be amended, restated,
supplemented or otherwise modified from time to time to the extent permitted
under subsection 7.12B.
"New Subordinated Notes" means the 9-7/8% Series C Senior Subordinated Notes of
Company due 2007 issued pursuant to the New Subordinated Note Indenture in the
form delivered to Agents and Lenders on or prior to the Effective Date with such
changes thereto as are permitted under subsection 7. 12B and as such notes may
thereafter be amended, restated, supplemented or otherwise modified from time to
time to the extent permitted under subsection 7.12B.
"Non-Defaulting Lender" means and includes each Lender other than a Defaulting
Lender.
"Non-US Lenders" has the meaning assigned to that term in subsection 2.7B(iii).
"Notes" means one or more of the Tranche A Term Notes, Tranche B Term Notes,
Tranche C Term Notes, Revolving Notes or Swing Line Note or any combination
thereof.
"Notice of Borrowing" means a notice in the form of Exhibit I annexed hereto
delivered by Company to Administrative Agent pursuant to subsection 0.xX with
respect to a proposed borrowing.
"Notice of Conversion/Continuation" means a notice substantially in the form of
Exhibit II annexed hereto delivered by Company to Administrative Agent pursuant
to subsection 2.2D with respect to a proposed conversion or continuation of the
applicable basis for determining the interest rate with respect to the Loans
specified therein.
"Notice of Issuance of Letter of Credit" means a notice in the form of Exhibit
III annexed hereto delivered by Company to Administrative Agent pursuant to
subsection 3.1 B(i) with respect to the proposed issuance of a Letter of Credit.
"Obligations" means all obligations of every nature of each Loan Party from time
to time owed to Agents, Lenders or any of them under the Loan Documents, whether
for principal, interest, reimbursement of amounts drawn under Letters of Credit
or payments for early termination of Interest Rate Agreements, fees, expenses,
indemnification or otherwise.
"Officer's Certificate" means, as applied to any corporation, a certificate
executed on behalf of such corporation by its chairman of the board (if an
officer), its president, its chief financial officer or a vice president;
provided that every Officer's Certificate with respect to the compliance with a
condition precedent to the making of any Loans hereunder shall include (i) a
statement that the officer making or giving such Officer's Certificate has read
such condition and any definitions or other provisions contained in this
Agreement relating thereto, (ii) a statement that, in the opinion of the signer
he or she has made or has caused to be made such examination or investigation as
is necessary to enable him or her to express an informed opinion as to whether
or not such condition has been complied with, and (iii) a statement as to
whether, in the opinion of the signer, such condition has been complied with.
"Operating Lease" means, as applied to any Person, any lease (including, without
limitation, leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.
"P&G" has the meaning assigned to that term in the Recitals to this Agreement.
"Patent and Trademark Security Agreement" means the Patent and Trademark
Security Agreement entered into by and among Company, the Subsidiary Guarantors
and Administrative Agent dated as of the Closing Date, as such Patent and
Trademark Security Agreement may thereafter be amended, restated, supplemented
or otherwise modified from time to time.
"Patent License Agreement" means that certain Patent License Agreement dated as
of December 31, 1996, by and among Seller, Unilever PLC and Company, as in
effect on the Closing Date and as such agreement may thereafter be amended,
restated, supplemented or otherwise modified from time to time to the extent
permitted under subsection 7.12A.
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant to
Section 4002 of ERISA (or any successor thereto).
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer Plan,
which is subject to Title IV of ERISA.
"Permitted Acquisition" means an acquisition of assets or a business effected in
accordance with the provisions of subsection 7.7(vii).
"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 6.3;
(ii) statutory Liens of landlords, statutory Liens of carriers, warehousemen,
mechanics and materialmen and other Liens imposed by law (other than any
such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA) 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 8.8;
(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, 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 or any of its Subsidiaries;
(vii) any (a) interest or title of a lessor or sublessor under any Capital
Lease permitted by subsection 7.1 (iii) or any Operating Lease not
prohibited by this Agreement, (b) restriction or encumbrance that the
interest or title of such lessor or sublessor may be subject to, or (c)
subordination of the interest of the lessee or sublessee under such
lease to any restriction or encumbrance referred to in the preceding
clause (b);
(viii) Liens arising from filing UCC financing statements relating solely to
leases permitted 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;
(x) deposits in the ordinary course of business to secure liabilities to
insurance carriers, lessors, utilities and other service providers; and
(xi) bankers liens and rights of setoff with respect to customary depository
arrangements entered into in the ordinary course of business.
"Permitted Seller Note" means a promissory note substantially in the form of
Exhibit XVIII annexed hereto representing any Indebtedness of Company incurred
in connection with any Permitted Acquisition payable to the seller in connection
therewith, as such note may be amended, restated, supplemented or otherwise
modified from time to time to the extent permitted under subsection 7. 12B;
provided that no Permitted Seller Note shall (i) be guarantied by any Subsidiary
of Company or secured by any property of Company or any of its Subsidiaries or
(ii) bear cash interest at a rate in excess of 12% per annum; and provided
further, that no Permitted Seller Note shall provide for any prepayment or
repayment of all or any portion of the principal thereof prior to the date of
the final scheduled installment of principal of any of the Loans.
"Person" means and includes natural persons, corporations, limited partnerships,
general partnerships, limited liability companies, 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.
"Pledge Agreement" means that certain Second Amended and Restated Pledge
Agreement by and among Company, Holdings, the Subsidiary Guarantors and
Administrative Agent dated as of the Closing Date and substantially in the form
of Exhibit XI annexed hereto, as such Pledge Agreement may be amended, restated,
supplemented or otherwise modified from time to time.
"Pledged Collateral" means the "Pledged Collateral" as defined in the Pledge
Agreement.
"Potential Event of Default" means a condition or event that, after notice or
after any applicable grace period has lapsed, or both, would constitute an Event
of Default.
"Prime Rate" means the rate of interest per annum publicly announced from time
to time by Chase as its prime commercial lending rate in effect at its principal
office in New York City. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
Chase or any other Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.
"Proceedings" has the meaning assigned to that term in subsection 6.1(x).
"Pro Forma Calculation Period" has the meaning assigned to that term in
subsection 7.6E(i).
"Pro Rata Share" means with respect to each Lender, the Revolving Loan Pro Rata
Share, Tranche A Term Loan Pro Rata Share, Tranche B Term Loan Pro Rata Share
and Tranche C Term Loan Pro Rata Share of such Lender; in any such case as the
applicable percentage may be adjusted by assignments permitted pursuant to
subsection 10.1. The initial Pro Rata Share of each Lender is set forth opposite
the name of that Lender in Schedule 2.1 annexed hereto.
"PTO" means the United States Patent and Trademark Office or any successor or
substitute office in which filings are necessary or, in the opinion of
Administrative Agent, desirable in order to create or perfect Liens on any IP
Collateral.
"Pure Food and Drug Laws" means the FFDC Act and the pure food and drug laws of
each of the states of the United States into which products of the Business,
the Log Cabin Business and the Xxxxxx Xxxxx Business are or have been shipped.
"Quest" means Quest International Flavors & Food Ingredients Company.
"Quest Agreements" means, collectively, (i) that certain Flavor Escrow Agreement
dated as of December 31, 1996, by and among Quest, the escrow agent named
therein and Company, as in effect on the Closing Date and as such agreement may
thereafter be amended, restated, supplemented or otherwise modified from time to
time to the extent permitted under subsection 7.12A, and (ii) the Flavor Supply
Agreement.
"Real Property Asset" means, at any time of determination, any interest then
owned by any Loan Party in any real property.
"Recorded Leasehold Interest" means a Leasehold Property with respect to which a
Record Document (as hereinafter defined) has been recorded in all places
necessary or desirable, in Administrative Agent's reasonable judgment, to give
constructive notice of such Leasehold Property to third-party purchasers and
encumbrances of the affected real property. For purposes of this definition, the
term "Record Document" means, with respect to any Leasehold Property, (a) the
lease
evidencing such Leasehold Property or a memorandum thereof, executed and
acknowledged by the owner of the affected real property, as lessor, or (b) if
such Leasehold Property was acquired or subleased from the holder of a Recorded
Leasehold interest, the applicable assignment or sublease document, executed and
acknowledged by such holder, in each case in form sufficient to give such
constructive notice upon recordation and otherwise in form reasonably
satisfactory to Administrative Agent.
"Red Wing" means The Red Wing Company, Inc., a Delaware corporation.
"Red Wing Co-Pack Agreement" means each of the First Amended and Restated
Production Agreement, dated as of November 19, 1997, by and between Red Wing and
Company and the Production Agreement, dated as of November 19, 1997, by and
between Red Wing and the Company (collectively, the "Red Wing Co-Pack
Agreements") as in effect on the Effective Date and as such agreement may
thereafter be amended, restated, supplemented or otherwise modified from time to
time to the extent permitted under subsection 7.12A.
"Refunded Swing Line Loans" has the meaning assigned to that term in subsection
2. 1A(v).
"Register" has the meaning assigned to that term in subsection 2.1D.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Regulatory Shares" means, with respect to any Person, shares of such Person
required to be issued as qualifying shares to directors or persons similarly
situated or shares issued to Persons other than Company or a Wholly Owned
Subsidiary of Company in response to regulatory requirements of foreign
jurisdictions pursuant to a resolution of the Board of Directors of such Person,
so long as such shares do not exceed one percent of the total outstanding shares
of equity such Person and any owners of such shares irrevocably covenant with
Company to remit to Company or waive any dividends or distributions paid or
payable in respect of such shares.
"Reimbursement Date" has the meaning assigned to that term in subsection 3.3B.
"Related Agreements" means the Subordinated Note Indentures, the Subordinated
Notes, the other Subordinated Note Documents, the Acquisition Agreement, the Log
Cabin Acquisition Agreement, the Xxxxxx Xxxxx Acquisition Agreement, the
Assumption Agreement, the Log Cabin Assumption Agreement, the Xxxxxx Xxxxx
Assumption Agreement, the MDC Advisory Services Agreement, the Dartford
Management Agreement, the Fenway Agreement, the Transition Agreements,
the Log Cabin Transition Agreements, the Red Wing Co-Pack Agreements and the
Xxxxxx Xxxxx Transition Agreements.
"Release" means any release, spill, emission, leaking, pumping, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching
or migration of Hazardous Materials into the indoor or outdoor environment
(including, without limitation, the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Materials), or
into or out of any Facility, including the movement of any Hazardous Material
through the air, soil, surface water, groundwater or property.
"Requisite Lenders" means Non-Defaulting Lenders having or holding not less than
51% of the sum of the aggregate Term Loan Exposure of all Non-Defaulting Lenders
plus the aggregate Revolving Loan Exposure of all Non-Defaulting Lenders.
"Restricted Junior Payment" means (i) any dividend or other distribution, direct
or indirect, on account of any shares of any class of stock of Company now or
hereafter outstanding, except a dividend payable solely in shares of that class
of stock to the holders of that class, (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of Holdings or Company now or
hereafter outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock of Holdings or Company now or hereafter
outstanding, and (iv) any payment or prepayment of principal of, premium, if
any, or interest on, or redemption, purchase, retirement, defeasance (including
in-substance or legal defeasance), sinking fund or similar payment with respect
to, any Subordinated Indebtedness.
"Revolving Loan Commitment" means the commitment of a Lender to make Revolving
Loans to Company pursuant to subsection 2.1A(iv) and "Revolving Loan
Commitments" means such commitments of all Lenders in the aggregate.
"Revolving Loan Commitment Termination Date" means January 16, 2005 or any
earlier date of termination of the Revolving Loan Commitments pursuant to this
Agreement.
"Revolving Loan Exposure" means, with respect to any Lender as of any date of
determination (i) prior to the termination of the Revolving Loan Commitments,
that Lender's Revolving Loan Commitment and (ii) after the termination of the
Revolving Loan Commitments, the sum of (a) the aggregate outstanding principal
amount of the Revolving Loans of that Lender plus (b) in the event that Lender
is an Issuing Lender, the aggregate Letter of Credit Usage in respect of all
Letters of Credit issued by that Lender (net of any participations purchased by
other Lenders in such Letters of Credit) plus (c) the aggregate amount of all
participations purchased by that Lender in any outstanding Letters of Credit or
any unreimbursed drawings under any Letters of
Credit plus (d) the aggregate amount of all participations purchased by that
Lender in any outstanding Swing Line Loans plus (e) in the case of Swing Line
Lender, the sum of the aggregate outstanding principal amount of all Swing Line
Loans (in each case net of any participations therein purchased by other
Lenders).
"Revolving Loan Pro Rata Share" means with respect to all payments, computations
and other matters relating to the Revolving Loan Commitment or the Revolving
Loans of any Lender or any Letters of Credit issued by any Lender or any
participations purchased by any Lender therein or in any Swing Line Loans, the
percentage obtained by dividing (i) the Revolving Loan Exposure of that Lender
by (ii) the aggregate Revolving Loan Exposure of all Lenders, in any such case
as the applicable percentage may be adjusted by assignments permitted pursuant
to subsection 10.1.
"Revolving Loans" means the Loans made by Lenders to Company pursuant to
subsection 0.xX(iv).
"Revolving Notes" means (i) the promissory notes of Company issued pursuant to
subsection 0.XX(i)(d) on the Effective Date and (ii) any promissory notes issued
by Company pursuant to the last sentence of subsection 00.xX(i) in connection
with assignments of the Revolving Loan Commitment and Revolving Loans of any
Lender, in each case substantially in the form of Exhibit VII annexed hereto, as
they may be amended, restated, supplemented or otherwise modified from time to
time.
"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.
"Security Agreement" means the Second Amended and Restated Security Agreement
entered into by and among Company, Holdings, the Subsidiary Guarantors and
Administrative Agent dated as of the Effective Date and substantially in the
form of Exhibit XII annexed hereto, as such Security Agreement may be amended,
restated, supplemented or otherwise modified from time to time.
"Seller" means Conopco, Inc., a New York corporation, doing business as Van den
Xxxxx Foods Company.
"Senior Leverage Ratio" means, as of any date of determination, the ratio of
Consolidated Total Senior Debt, as of the date of determination, to Consolidated
EBITDA, for the twelve-month period ending on the date of determination, in each
case calculated for Holdings and its Subsidiaries on a consolidated basis in
accordance with GAAP.
"Shared Technology License Agreement" means that certain Shared Technology
License Agreement dated as of December 31, 1996, by and between Seller and
Company, as in effect on the Closing Date and as such agreement may thereafter
be amended, restated, supplemented or otherwise modified from time to time to
the extent permitted under subsection 7.12A
"Solvent" means, with respect to any Person, that as of the date of
determination both (i) (a) the then fair saleable value of the property of such
Person is (y) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (z) not less than the amount that will be
required to pay the probable liabilities on such Person's then existing debts as
they become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (b) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (c) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (ii) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"Standby Letter of Credit" means any standby letter of credit or similar
instrument issued for the purpose of supporting (i) workers' compensation
liabilities of Company or any of its Subsidiaries, (ii) the obligations of third
party insurers of Company or any of its Subsidiaries arising virtue of the laws
of any jurisdiction requiring third party insurers, (iii) performance, payment,
deposit or surety obligations of Company or any of its Subsidiaries, in any case
if required by law or governmental rule or regulation or in accordance with
custom and practice in the industry, and (iv) such other obligations of Company
and its Subsidiaries as may be reasonably acceptable to Administrative Agent;
provided that Standby Letters of Credit may not be issued for the purpose of
supporting (a) trade payables or (b) Indebtedness constituting "antecedent debt"
(as that term is used in Section 547 of the Bankruptcy Code).
"Subordinated Note Documents" means collectively the Existing Subordinated Note
Documents and the New Subordinated Note Documents.
"Subordinated Note Indentures" means collectively the Existing Subordinated Note
Indenture and the New Subordinated Note Indenture.
"Subordinated Notes" means collectively the Existing Subordinated Notes and the
New Subordinated Notes.
"Subordinated Indebtedness" means (i) the Indebtedness of Company under the
Subordinated Note Documents, (ii) any Indebtedness permitted under subsection
7.l(vi), (iii) the Indebtedness of Company evidenced by any Permitted Seller
Notes, and (iv) any other Indebtedness of Company or any of its Subsidiaries
subordinated in right of payment to the Obligations pursuant to documentation
containing maturities, amortization schedules, covenants, defaults, remedies,
subordination provisions and other material terms in form and substance
satisfactory to Administrative Agent and Requisite Lenders.
"Subsidiary" means, with respect to any Person, any corporation, partnership,
association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled
(without regard to the occurrence of any contingency) to vote in the election of
the Person or Persons (whether directors, managers, trustees or other Persons
performing similar functions) having the power to direct or cause the direction
of the management and policies thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof.
"Subsidiary Guarantor" means any Subsidiary of Company that becomes party to the
Subsidiary Guaranty at any time after the Effective Date pursuant to subsection
6.9.
"Subsidiary Guaranty" means the Subsidiary Guaranty, substantially in the form
of Exhibit IX annexed hereto, executed and delivered by each Subsidiary
Guarantor from time to time after the Effective Date pursuant to subsection 6.9,
as such Subsidiary Guaranty may be amended, restated, supplemented or otherwise
modified from time to time.
"Subsidiary Security Agreements" has the meaning assigned to that term in
subsection 6.9.
"Supplemental Collateral Agent" has the meaning assigned to that term in
subsection 0.xX.
"Swing Line Lender" means Chase, or any Person serving as a successor
Administrative Agent hereunder, in its capacity as Swing Line Lender hereunder.
"Swing Line Loan Commitment" means the commitment of Swing Line Lender to make
Swing Line Loans to Company pursuant to subsection 2. 1A(v).
"Swing Line Loans" means the Loans made by Swing Line Lender pursuant to
subsection 0.xX(v).
"Swing Line Note" means (i) the promissory note of Company issued pursuant to
subsection 2.1E(ii) on the Effective Date and (ii) any promissory note issued by
Company to any successor Administrative Agent and Swing Line Lender pursuant to
the last sentence of subsection 9.5B, in each case substantially in the form of
Exhibit VIII annexed hereto, as it may be amended, restated, supplemented or
otherwise modified from time to time.
"Swiss Bank" means Swiss Bank Corporation and its successors, including, without
limitation, any successors by merger.
"Syndication Agent" has the meaning assigned to that term in the introduction to
this Agreement.
"Tax" or "Taxes" means any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature and whatever called, by whomsoever,
on whomsoever and wherever imposed, levied, collected, withheld or assessed;
provided that "Tax on the overall net income" of a Person shall be construed as
a reference to a tax imposed by the jurisdiction in which that Person's
principal office (and/or, in the case of a Lender, its relevant Lending Office)
is located or in which that Person is deemed to be doing business on all or part
of the net income, profits or gains of that Person (whether worldwide, or only
insofar as such income, profits or gains are considered to arise in or to relate
to a particular jurisdiction, or otherwise).
"Term Loan Commitment" means the aggregate commitment of a Lender to make a
Tranche A Term Loan, Tranche B Term Loan and Tranche C Term Loan to Company
pursuant to subsections 2. A(i), 0.xX(ii) and 0.xX(iii), respectively, and "Term
Loan Commitments" means such commitments of all Lenders in the aggregate.
"Term Loan Exposure" means, with respect to any Lender as of any date of
determination (i) prior to the funding of the Term Loans, that Lender's Term
Loan Commitment and (ii) after the funding of the Term Loans, the outstanding
principal amount of the Term Loan of that Lender.
"Term Loans" means the Tranche A Term Loans, Tranche B Term Loans and Tranche C
Term Loans made by Lenders to Company pursuant to subsections 0.xX(i), 2.1 A(ii)
and 2.1 A(iii), respectively.
"Term Notes" means one or more of the Tranche A Term Notes, Tranche B Term Notes
and Tranche C Term Notes, or any combination thereof.
"Title Company" means one or more title insurance companies reasonably
satisfactory to Administrative Agent.
"Total Utilization of Revolving Loan Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Revolving Loans (other than Revolving Loans made for the purpose of repaying any
Refunded Swing Line Loans or reimbursing the applicable Issuing Lender for any
amount drawn under any Letter of Credit but not yet so applied) plus (ii) the
aggregate principal amount of all outstanding Swing Line Loans plus (iii) the
Letter of Credit Usage.
"Tranche A Term Loan Commitment" means the commitment of a Lender to make a
Tranche A Term Loan to Company pursuant to subsection 2.1 A(i), and "Tranche A
Term Loan Commitments" means such commitments of all Lenders in the aggregate.
"Tranche A Term Loan Exposure" means, with respect to any Lender as of any date
of determination (i) prior to the funding of the Tranche A Term Loans, that
Lender's Tranche A Term Loan Commitment and (ii) after the funding of the
Tranche A Term Loans, the outstanding principal amount of the Tranche A Term
Loan of that Lender.
"Tranche A Term Loan Pro Rata Share" means with respect to all payments,
computations and other matters relating to the Tranche A Term Loan Commitment or
the Tranche A Term Loan of any Lender, the percentage obtained by dividing (i)
the Tranche A Term Loan Exposure of that Lender by (ii) the aggregate Tranche A
Term Loan Exposure of all Lenders, in any such case as the applicable percentage
may be adjusted by assignments permitted pursuant to subsection 10.1.
"Tranche A Term Loans" means the Loans made by the Lenders to the Company
pursuant to subsection 2.1A(i).
"Tranche A Term Notes" means (i) the promissory notes of Company issued pursuant
to subsection 2.1E(i)(a) on the Effective Date and (ii) any promissory notes
issued by Company pursuant to the last sentence of subsection 10.1B(i) in
connection with assignments of the Tranche A Term Loan Commitments or Tranche A
Term Loans of any Lenders, in each case substantially in the form of Exhibit IV
annexed hereto, as they may be amended, restated, supplemented or otherwise
modified from time to time.
"Tranche B Term Loan Commitment" means the commitment of a Lender to make a
Tranche B Term Loan to Company pursuant to subsection 2.IA(ii), and "Tranche B
Term Loan Commitments" means such commitments of all Lenders in the aggregate.
"Tranche B Term Loan Exposure" means, with respect to any Lender as of any date
of determination (i) prior to the funding of the Tranche B Term Loans, that
Lender's Tranche B Term Loan Commitment and (ii) after the funding of the
Tranche
B Term Loans, the outstanding principal amount of the Tranche B Term Loan of
that Lender.
"Tranche B Term Loan Pro Rata Share" means with respect to all payments,
computations and other matters relating to the Tranche B Term Loan Commitment or
the Tranche B Term Loan of any Lender, the percentage obtained by dividing (i)
the Tranche B Term Loan Exposure of that Lender by (ii) the aggregate Tranche B
Term Loan Exposure of all Lenders, in any such case as the applicable percentage
may be adjusted by assignments permitted pursuant to subsection 10.1.
"Tranche B Term Loans" means the Loans made by the Lenders to the Company
pursuant to subsection 2. 1A(ii).
"Tranche B Term Notes" means (i) the promissory notes of Company issued pursuant
to subsection 2.1E(i)(b) on the Effective Date and (ii) any promissory notes
issued by Company pursuant to the last sentence of subsection 10.1B(i) in
connection with assignments of the Tranche B Term Loan Commitments or Tranche B
Term Loans of any Lenders, in each case substantially in the form of Exhibit V
annexed hereto, as they may be amended, restated, supplemented or otherwise
modified from time to time.
"Tranche C Term Loan Commitment" means the commitment of a Lender to make a
Tranche C Term Loan to Company pursuant to subsection 2.1A(iii), and "Tranche C
Term Loan Commitments" means such commitment of all Lenders in the aggregate.
"Tranche C Term Loan Exposure" means, with respect to any Lender as of any date
of determination (i) prior to the funding of the Tranche C Term Loans, that
Lender's Tranche C Term Loan Commitment and (ii) after the funding of the
Tranche C Term Loans, the outstanding principal amount of the Tranche C Term
Loan of that Lender.
"Tranche C Term Loan Pro Rata Share" means with respect to all payments,
computations and other matters relating to the Tranche C Term Loan Commitment or
the Tranche C Term Loan of any Lender, the percentage obtained by dividing (i)
the Tranche C Term Loan Exposure of that Lender by (ii) the aggregate Tranche C
Term Loan Exposure of all Lenders, in any such case as the applicable percentage
may be adjusted by assignments permitted pursuant to subsection 10.1.
"Tranche C Term Loans" means the Loans made by the Lenders to the Company
pursuant to subsection 2.1A(iii).
"Tranche C Term Notes" means (i) the promissory notes of Company issued pursuant
to subsection 2.1E(i)(c) on the Effective Date and (ii) any promissory notes
issued by Company pursuant to the last sentence of subsection 10.1B(i) in
connection
with assignments of the Tranche C Term Loan Commitments or Tranche C Term Loans
of any Lenders, in each case substantially in the form of Exhibit VI annexed
hereto, as they may be amended, restated, supplemented or otherwise modified
from time to time.
"Transaction Costs" means the fees, costs and expenses payable by Company and
its Subsidiaries on or before the Effective Date in connection with the Xxxxxx
Xxxxx Acquisition.
"Transition Agreements" means, collectively, (i) that certain License Agreement
dated as of December 31, 1996, by and between Seller and Company, as in effect
on the Closing Date and as such agreement may thereafter be amended, restated,
supplemented or otherwise modified from time to time to the extent permitted
under subsection 7.12A; (ii) the Shared Technology License Agreement; (iii) the
Patent License Agreement; and (iv) the Quest Agreements.
"Unfunded Current Liability" means, with respect to any Pension Plan, the
amount, if any, by which the actuarial present value of the accumulated plan
benefits under such Pension Plan as of the close of its most recent plan year
exceeds the fair market value of the assets allocable thereto, each determined
in accordance with Statement of Financial Accounting Standards No.35, based upon
the actuarial assumptions used by such Pension Plan's actuary in the most recent
annual valuation of such Pension Plan.
"Wholly Owned Subsidiary" means, with respect to any Person, a Subsidiary of
such Person all of the outstanding capital stock or other ownership interests of
which (other than Regulatory Shares) shall at the time be owned by such Person
or by one or more Wholly Owned Subsidiaries of such Person or by such Person and
one or more Wholly Owned Subsidiaries of such Person.
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 clauses (i), (ii), (iii) and (xiii)
of subsection 6.1 shall be prepared in accordance with GAAP (except, with
respect to interim financial statements, normal year end audit adjustments and
the absence of explanatory footnotes) as in effect at the time of such
preparation (and delivered together with the reconciliation statements provided
for in subsection 6.1(v)). Calculations in connection with the definitions,
covenants and other provisions of this Agreement shall utilize accounting
principles and policies in conformity with those used to prepare the financial
statements referred to in subsection 5.3A.
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. The words
"includes", "including" and similar terms used in any Loan Document shall be
construed as if followed by the words "without limitation".
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments, Loans.
A. Commitments. Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Loan Parties set forth
herein and in the other Loan Documents, each Lender hereby severally agrees to
make the applicable Loans described in subsections 2.1A(i), 2.1A(ii), 2.1A(iii)
and 2.1A(iv) and Swing Line Lender hereby agrees to make the Swing Line Loans as
described in subsection 2.1A(v).
(i) Tranche A Term Loans. Each Lender with a Tranche A Term Loan Commitment
severally agrees to lend to Company on the Effective Date an amount not
exceeding its Pro Rata Share of the aggregate amount of the Tranche A Term
Loan Commitments to be used for the purposes identified in subsection 2.5A.
The amount of each Lender's Tranche A Term Loan Commitment is set forth
opposite its name on Schedule 2.1 annexed hereto and the aggregate amount
of the Tranche A Term Loan Commitments is $150,000,000; provided that the
Tranche A Term Loan Commitments of Lenders shall be adjusted to give effect
to any assignments of the Tranche A Term Loan Commitments pursuant to
subsection 10.1B. Company may make only one borrowing under the Tranche A
Term Loan Commitments. Amounts borrowed under this subsection 2.IA(i) and
subsequently repaid or prepaid may not be reborrowed.
(ii) Tranche B Term Loans. Each Lender with a Tranche B Term Loan Commitment
severally agrees to lend to Company on the Effective Date an amount not
exceeding its Pro Rata Share of the aggregate amount of the Tranche B Term
Loan Commitments to be used for the purposes identified in subsection 2.5A.
The amount of each Lender's Tranche B Term Loan Commitment is set forth
opposite its name on Schedule 2.1 annexed hereto and the aggregate amount
of the Tranche B Term Loan Commitments is $150,000,000; provided that the
Tranche B Term Loan Commitments of Lenders shall be adjusted to give effect
to any assignments of the Tranche B Term Loan Commitments pursuant to
subsection 10.1B. Company may make only one borrowing under the Tranche B
Term Loan Commitments. Amounts borrowed under this subsection 2. 1A(ii) and
subsequently repaid or prepaid may not be reborrowed.
(iii) Tranche C Term Loans. Each Lender with a Tranche C Term Loan Commitment
severally agrees to lend to Company on the Effective Date an amount not
exceeding its Pro Rata Share of the aggregate amount of the Tranche C
Term Loan Commitments to be used for the purposes identified in
subsection 2.5A. The amount of each Lender's Tranche C Term Loan
Commitment is set forth opposite its name on Schedule 2.1 annexed hereto
and the aggregate amount of the Tranche C Term Loan Commitments is
$150,000,000; provided that the Tranche C Term Loan Commitments of
Lenders shall be adjusted to give effect to any assignments of the
Tranche C Term Loan Commitments pursuant to subsection 10.1B. Company
may make only one borrowing under the Tranche C Term Loan Commitments.
Amounts borrowed under this subsection 2. 1A(iii) and subsequently
repaid or prepaid may not be reborrowed.
(iv) Revolving Loans. Each Lender with a Revolving Loan Commitment severally
agrees, subject to the limitations set forth below with respect to the
maximum amount of Revolving Loans permitted to be outstanding from time
to time, to maintain such existing Revolving Loans and to lend to
Company from time to time during the period from the Effective Date to
but excluding the Revolving Loan Commitment Termination Date an
aggregate amount which shall not exceed its Pro Rata Share of the
aggregate amount of the Revolving Loan Commitments, to be used for the
purposes identified in subsection 2.5B. The original amount of each
Lender's Revolving Loan Commitment is set forth opposite its name on
Schedule 2.1 annexed hereto and the aggregate original amount of the
Revolving Loan Commitments is $75,000,000; provided that the Revolving
Loan Commitments of Lenders shall be adjusted to give effect to any
assignments of the Revolving Loan Commitments pursuant to subsection
10.1B; provided further, that the amount of the Revolving Loan
Commitments shall be reduced from time to time by the amount of any
reductions thereto made pursuant to subsection 2.4B. Each Lender's
Revolving Loan Commitment shall expire on the Revolving Loan Commitment
Termination Date and all Revolving Loans and all other amounts owed
hereunder with respect to the Revolving Loans and the Revolving Loan
Commitments shall be paid in full no later than that date. Amounts
borrowed under this subsection 2. 1A(iv) may be repaid and reborrowed to
but excluding the Revolving Loan Commitment Termination Date.
Notwithstanding anything contained herein to the contrary, in no event shall the
Total Utilization of Revolving Loan Commitments at any time exceed the Revolving
Loan Commitments then in effect.
(v) Swing Line Loans. Swing Line Lender hereby agrees, subject to the
limitations set forth below with respect to the maximum aggregate amount
of all Swing Line Loans outstanding from time to time, to make a portion
of the Revolving Loan Commitments available to Company from time to time
during the period from the Effective Date to but excluding the Revolving
Loan Commitment Termination Date by making Base Rate Loans as Swing Line
Loans to Company in an aggregate amount not to exceed the amount of the
Swing Line Loan Commitment, to be used for the purposes identified in
subsection 2.5B, notwithstanding the fact that such Swing Line Loans,
when aggregated with the sum of Swing Line Lender's outstanding
Revolving Loans and Swing Line Lender's Pro Rata Share of the
Letter of Credit Usage then in effect, may exceed Swing Line Lender's
Revolving Loan Commitment. The original amount of the Swing Line Loan
Commitment is $2,000,000; provided that the amounts of the Swing Line Loan
Commitment are subject to reduction as provided in clause (b) of the next
paragraph. The Swing Line Loan Commitment shall expire on the Revolving
Loan Commitment Termination Date and all Swing Line Loans and all other
amounts owed hereunder with respect to the Swing Line Loans shall be paid
in full no later than that date. Amounts borrowed under this subsection
2.1A(v) may be repaid and reborrowed to but excluding the Revolving Loan
Commitment Termination Date.
Notwithstanding anything contained herein to the contrary, the Swing Line Loans,
and the Swing Line Loan Commitment shall be subject to the following limitations
in the amounts indicated:
(a) in no event shall the Total Utilization of Revolving Loan Commitments at
any time exceed the Revolving Loan Commitments then in effect;
(b) any reduction of the Revolving Loan Commitments made pursuant to subsection
2.4B which reduces the aggregate Revolving Loan Commitments to an amount
less than the then current sum of the Swing Line Loan Commitment shall
result in an automatic corresponding pro rata reduction of the Swing Line
Loan Commitment such that the sum thereof equals the amount of the
Revolving Loan Commitments, as so reduced, without any further action on
the part of Company, Administrative Agent or Swing Line Lender.
With respect to any Swing Line Loans which have not been voluntarily prepaid by
Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any time in
its sole and absolute discretion, deliver to Administrative Agent (with a copy
to Company), no later than 12:00 Noon (New York time) at least one Business Day
in advance of the proposed Funding Date, a notice (which shall be deemed to be a
Notice of Borrowing given by Company) requesting Lenders to make Revolving Loans
that are Base Rate Loans to Company on such Funding Date in an 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. Anything contained in this Agreement to the contrary
notwithstanding, (i) the proceeds of such Revolving Loans made by Lenders other
than Swing Line Lender shall be immediately delivered by Administrative Agent to
Swing Line Lender (and not to Company) and applied to repay a corresponding
portion of the Refunded Swing Line Loans and (ii) on the day such Revolving
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 Revolving Loan made by
Swing Line Lender to Company, and such portion of the Swing Line Loans deemed to
be so paid, shall no longer be outstanding as Swing Line Loans and shall no
longer be due under the Swing Line Note of Swing Line Lender but shall instead
constitute part of Swing Line Lender's outstanding Revolving Loans to Company
and shall be due under the Revolving Note issued by Company to Swing Line
Lender. Company hereby authorizes each of Administrative Agent and Swing Line
Lender to charge Company's accounts with Administrative Agent and Swing Line
Lender (up to the amount available in
each such account) in order to immediately pay Swing Line Lender the amount of
the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans
made by Lenders, including the Revolving Loan deemed to be made by Swing Line
Lender, are not sufficient to repay in full the Refunded Swing Line 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 Company 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 10.5.
If for any reason Revolving Loans are not made pursuant to this subsection
2.1A(v) in an amount sufficient to repay any amounts owed to Swing Line Lender
in respect of any outstanding Swing Line Loans on or before the third Business
Day after demand for payment thereof by Swing Line Lender, each Lender with a
Revolving Loan Commitment shall be deemed to, and hereby agrees to, have
purchased a participation in such outstanding Swing Line Loans, and in an amount
equal to its Pro Rata Share of the applicable unpaid amount together with
accrued interest thereon. Upon one Business Day's notice from Swing Line Lender,
each such Lender shall deliver to Swing Line Lender an amount equal to its
respective participation in the applicable unpaid amount in same day funds at
the Funding and Payment Office. In order to evidence such participation each
such Lender agrees to enter into a participation agreement at the request of
Swing Line Lender in form and substance satisfactory to Swing Line Lender. 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 rate customarily used by Swing Line Lender
for the correction of errors among banks for three Business Days and thereafter
at the Base Rate, as applicable.
Notwithstanding anything contained herein to the contrary, (i) the obligation of
each Lender with a Revolving Loan Commitment to make Revolving 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, Company or any other Person for any reason
whatsoever; (b) the occurrence or continuation of an Event of Default or a
Potential Event of Default; (c) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of Company
or any of its Subsidiaries; (d) any breach of this Agreement or any other Loan
Document by any party thereto; or (e) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; provided that no
such Lender shall have any such obligation unless (x) Swing Line Lender believed
in good faith that all conditions under Section 4 to the making of the
applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, were
satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans
were made, or (y) such Lender had actual knowledge, by receipt of any notices
required to be delivered to such Lenders pursuant to subsection 6.1 (ix) or
otherwise, that any such condition under Section 4 had not been satisfied and
such Lender failed to notify Swing Line Lender and Administrative Agent in
writing that it had no obligation to make Revolving Loans until such condition
was satisfied (any such notice to be effective as of the date of receipt thereof
by Swing Line Lender and Administrative Agent), or (z) the satisfaction of any
such condition under Section 4 not satisfied had been waived by Requisite
Lenders prior to or at the time such Refunded Swing Line Loans or other unpaid
Swing Line Loans were made; and (ii) Swing Line Lender shall not be obligated to
make any Swing Line Loans if it has elected not to do so after the occurrence
and during the continuation of a Potential Event of Default or Event of Default.
B. Borrowing Mechanics. Term Loans or Revolving Loans (including any such Loans
made as Eurodollar Rate Loans with a particular Interest Period) made on any
Funding Date (other than Revolving Loans made pursuant to a request by Swing
Line Lender pursuant to subsection 2.1A(v) for the purpose of repaying any
Refunded Swing Line Loans or Revolving Loans made pursuant to subsection 3.3B
for the purpose of reimbursing any Issuing Lender for the amount of a drawing or
payment under a Letter of Credit issued by it) shall be in an aggregate minimum
amount of $500,000 and integral multiples of $250,000 in excess of that amount.
Swing Line Loans made on any Funding Date shall be in an aggregate minimum
amount of $250,000 and integral multiples of $100,000 in excess of that amount.
Whenever Company desires that Lenders make Term Loans or Revolving Loans it
shall deliver to Administrative Agent on behalf of Company a Notice of Borrowing
no later than 12:00 Noon New York time), at least three Business Days in advance
of the proposed Funding Date in the case of a Eurodollar Rate Loan, or at least
one Business Day in advance of the proposed Funding Date in the case of a Base
Rate Loan. Whenever Company desires that Swing Line Lender make a Swing Line
Loan, it shall deliver to Administrative Agent a Notice of Borrowing no later
than 12:00 Noon (New York time) on the proposed Funding Date. The Notice of
Borrowing shall specify (i) the proposed Funding Date (which shall be a Business
Day), (ii) the amount and type of Loans requested, (iii) in the case of Swing
Line Loans, that such Loans shall be Base Rate Loans, (iv) in the case of any
Loans other than Swing Line Loans, whether such Loans shall be Base Rate Loans
or Eurodollar Rate Loans, and (v) in the case of any Loans requested to be made
as Eurodollar Rate Loans, the initial Interest Period requested therefor. Term
Loans and Revolving Loans may be continued as or converted into Base Rate Loans
and Eurodollar Rate Loans in the manner provided in subsection 2.2D. In lieu of
delivering the above-described Notice of Borrowing, Company may give
Administrative Agent telephonic notice by the required time of any proposed
borrowing under this subsection 2.1B; provided that such notice shall be
promptly confirmed in writing by delivery of a Notice of Borrowing to
Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any liability to Company
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 borrow on behalf of Company or for otherwise acting in good
faith under this subsection 2.1B, and upon funding of Loans by Lenders in
accordance with this Agreement pursuant to any such telephonic notice Company
shall have effected Loans hereunder.
Company shall notify Administrative Agent prior to the funding of any Loans in
the event that any of the matters to which Company is required to certify in the
applicable Notice of Borrowing are no longer true and correct as of the
applicable Funding Date, and the acceptance by Company of the proceeds of any
Loans shall constitute a re-certification by Company, as of the applicable
Funding Date, as to the matters to which Company is required to certify in the
applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice of
Borrowing for a Eurodollar Rate Loan (or telephonic notice in lieu thereof)
shall be irrevocable on and after the related Interest Rate Determination Date,
and Company shall be bound to make a borrowing in accordance therewith.
C. Disbursement of Funds. All Term Loans and all Revolving 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 that other Lender's
obligation to make a Loan requested hereunder nor shall the Commitment of any
Lender to make the particular type of Loan requested be increased or decreased
as a result of a default by any other Lender in that other Lender's obligation
to make a Loan requested hereunder. Promptly after receipt by Administrative
Agent of a Notice of Borrowing pursuant to subsection 2.1B (or telephonic notice
in lieu thereof), Administrative Agent shall notify each Lender or Swing Line
Lender, as the case may be, of the proposed borrowing and of the amount of such
Lender's Pro Rata Share of the applicable Loans.
Each Lender shall make the amount of its Loan available to Administrative Agent
not later than 12:00 Noon New York time) on the applicable Funding Date, and
Swing Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 12:00 Noon New York time) on the applicable
Funding Date, in each case in same day funds, at the Funding and Payment Office.
Except as provided in subsection 2.1A(v) or subsection 3.3B with respect to
Revolving Loans used to repay Refunded Swing Line Loans or to reimburse any
Issuing Lender for the amount of an honored drawing or payment under a Letter of
Credit issued by it, upon satisfaction or waiver of the conditions precedent
specified in subsections 4.1 (in the case of Loans made on the Effective Date)
and 4.2 (in the case of all Loans), Administrative Agent shall make the proceeds
of such Loans available to Company on the applicable Funding Date by causing an
amount of same day funds equal to the proceeds of all such Loans received by
Administrative Agent from Lenders or Swing Line Lender, as the case may be, to
be credited to the account of Company at the Funding and Payment Office.
Unless Administrative Agent shall have been notified by any Lender prior to the
Funding Date for any Loans that such Lender does not intend to make available to
Administrative Agent the amount of such Lender's 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
may, in its sole discretion, but shall not be obligated to, make available to
Company a corresponding amount
on such Funding Date. If such corresponding amount is not in fact made available
to Administrative Agent by such Lender, 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, at the customary rate set by Administrative
Agent for the correction of errors among banks for three Business Days and
thereafter at the Base Rate. If such Lender does not pay such corresponding
amount forthwith upon Administrative Agent's demand therefor, Administrative
Agent shall promptly notify Company and Company shall immediately pay such
corresponding amount to Administrative Agent together with interest thereon, for
each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the rate applicable to such Loan. Nothing in this
subsection 2.1C shall be deemed to relieve any Lender from its obligation to
fulfill its Commitments hereunder or to prejudice any rights that Company may
have against any Lender as a result of any default by such Lender hereunder.
D. The Register.
(i) Administrative Agent shall maintain, at the address referred to in
subsection 10.8, a register for the recordation of the names and
addresses of Lenders and the Commitments and Loans of each Lender from
time to time (the "Register"). The Register shall be available for
inspection by Company or any Lender at any reasonable time and from time
to time upon reasonable prior notice.
(ii) Administrative Agent shall record in the Register the Commitments and
the outstanding Loans from time to time of each Lender and each
repayment or prepayment in respect of the principal amount of the
outstanding Loans of each Lender. Any such recordation shall be
conclusive and binding on Company and each Lender, absent manifest
error; provided that failure to make any such recordation, or any error
in such recordation, shall not affect Company's Obligations in respect
of the applicable Loans.
(iii) Each Lender shall record on its internal records (including, without
limitation, the Notes held by such Lender) the amount of each Loan made
by it and each payment in respect thereof. Any such recordation shall be
prima facie evidence of the amount of such Loans; provided that failure
to make any such recordation, or any error in such recordation, shall
not affect Company's Obligations in respect of the applicable Loans; and
provided, further that in the event of any inconsistency between the
Register and any Lender's records, the recordations in the Register
shall govern, absent manifest error.
(iv) Company, Agents and Lenders shall deem and treat the Persons listed as
Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof, and no
assignment or transfer of any Commitment or Loan shall be effective, in
each case unless and until an Assignment Agreement effecting the
assignment or transfer thereof shall have been accepted by
Administrative Agent and recorded in the Register as provided in
subsection 00.xX(ii).
Prior to such recordation, all amounts owed with respect to the
applicable Commitment or Loan shall be owed to the Lender listed in the
Register as the owner thereof, and 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, assignee or transferee
of the corresponding Commitments or Loans.
(v) Company hereby designates Chase, and any financial institution serving
as a successor Administrative Agent, to serve as Company's agent solely
for purposes of maintaining the Register as provided in this subsection
2.1D, and Company hereby agrees that, to the extent Chase serves in such
capacity, Chase and its officers, directors, employees, agents and
affiliates shall constitute Indemnities for all purposes under
subsection 10.3.
E. Notes. Company shall execute and deliver on the Effective Date (i) to each
requesting Lender (or to Administrative Agent for that Lender) (a) a Tranche A
Term Note substantially in the form of Exhibit IV annexed hereto, to evidence
that Lender's Tranche A Term Loans in the principal amount of that Lender's
Tranche A Term Loans and with other appropriate insertions, (b) a Tranche B Term
Note substantially in the form of Exhibit V annexed hereto, to evidence that
Lender's Tranche B Term Loans in the principal amount of that Lender's Tranche B
Term Loans and with other appropriate insertions, (c) a Tranche C Term Note
substantially in the form of Exhibit VI annexed hereto, to evidence that
Lender's Tranche C Term Loans in the principal amount of that Lender's Tranche C
Term Loans and with other appropriate insertions and (d) a Revolving Note
substantially in the form of Exhibit VII annexed hereto to evidence that
Lender's Revolving Loans, in the principal amount of that Lender's Revolving
Loan Commitment and with other appropriate insertions, and (ii) to Swing Line
Lender, a Swing Line Note substantially in the form of Exhibit VIII annexed
hereto to evidence Swing Line Lender's Swing Line Loans, in the principal amount
of the Swing Line Commitment and with other appropriate insertions. The Notes
and the Obligations evidenced thereby shall be governed by, subject to and
benefit from all of the terms and conditions of this Agreement and the other
Loan Documents and shall be guaranteed and/or secured by the Collateral as
provided in the Loan Documents.
2.2 Interest on the Loans.
A. Rate of Interest. Subject to the provisions of subsections 2.6 and 2.7, each
Term Loan and each Revolving 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, plus the Applicable Margin. Subject to the
provisions of subsection 2.7, 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 determined by reference to the Base Rate,
plus the Applicable Margin. The applicable basis for determining the rate of
interest with respect to any Loan shall be selected by Company initially at the
time a Notice of Borrowing is given with respect to such Loan pursuant to
subsection 0.xX. The basis for
determining the interest rate with respect to any Term Loan or any Revolving
Loan may be changed from time to time pursuant to subsection 2.2D. If on any day
any Term Loan or Revolving 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 Loan shall bear interest determined by reference to the
Base Rate, plus the Applicable Margin for Base Rate Loans.
Subject to the provisions of subsections 2.2E and 2.7, the Term Loans and the
Revolving Loans shall bear interest through maturity as follows:
(i) if a Base Rate Loan, then at the sum of the Base Rate plus the
Applicable Margin for Base Rate Loans; or
(ii) if a Eurodollar Rate Loan, then at the sum of the Adjusted Eurodollar
Rate plus the Applicable Margin for Eurodollar Loans.
Subject to the provisions of subsections 2.2E and 2.7, the Swing Line Loans
shall bear interest through maturity at the sum of the Base Rate plus the
Applicable Margin with respect to Base Rate Revolving Loans.
B. Interest Periods. In connection with each Eurodollar Rate Loan, Company may,
pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"Interest Period") to be applicable to such Loan, which Interest Period shall
be, at Company's option, either a one-, two-, three- or six-month period;
provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan shall commence
on the Funding Date in respect of such Loan, in the case of a Loan
initially made as a Eurodollar Rate Loan, or on the date specified in
the applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable to a
Eurodollar Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, 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 (iii) of this subsection 2.2B, end on the last Business Day of a
calendar month;
(v) no Interest Period with respect to any portion of the Tranche A Term
Loans shall extend beyond January 16, 2005, no interest period with
respect to any portion of the Tranche B Term Loans shall extend beyond
January 16, 2006, no interest period with respect to any portion of the
Tranche C Term Loans shall extend beyond July 16, 2006 and no Interest
Period with respect to any portion of the Revolving Loans shall extend
beyond the Revolving Loan Commitment Termination Date;
(vi) no Interest Period with respect to any portion of the Term Loans shall
extend beyond a date on which Company is required to make a scheduled
payment of principal of such Term Loans unless the sum of (a) the
aggregate principal amount of such Term Loans that are Base Rate Loans
plus (b) the aggregate principal amount of such Term Loans that are
Eurodollar Rate Loans with Interest Periods expiring on or before such
date equals or exceeds the principal amount required to be paid on the
Term Loans on such date;
(vii) no Interest Period with respect to any portion of the Revolving Loans
shall extend beyond the date on which a permanent reduction of the
Revolving Loan Commitments is scheduled to occur unless the sum of (a)
the aggregate principal amount of Revolving Loans that are Base Rate
Loans plus (b) the aggregate principal amount of Revolving Loans that
are Eurodollar Rate Loans with Interest Periods expiring on or before
such date plus (c) the excess of the Revolving Loan Commitments then in
effect over the aggregate principal amount of Revolving Loans then
outstanding equals or exceeds the permanent reduction of the Revolving
Loan Commitments that is scheduled to occur on such date;
(viii) there shall be no more than ten (10) Interest Periods outstanding at any
time; and
(ix) in the event Company fails to specify an Interest Period for any
Eurodollar Rate Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Company shall be deemed to have selected an
Interest Period of one month.
C. Interest Payments. Subject to the provisions of subsection 2.2E, interest on
each Loan shall be payable in arrears on and to each Interest Payment Date
applicable to that Loan, upon any prepayment of that Loan (to the extent accrued
on the amount being prepaid) and at maturity (including final maturity);
provided that in the event that any Swing Line Loans, any Revolving Loans or any
Term Loans that are Base Rate Loans are prepaid pursuant to subsection 2.4B(i),
interest accrued on such Swing Line Loans, Revolving Loans or Term Loans through
the date of such prepayment shall be payable on the next succeeding Interest
Payment Date applicable to Base Rate Loans (or, if earlier, at final maturity).
D. Conversion or Continuation. Subject to the provisions of subsection 2.6,
Company shall have the option (i) to convert at any time all or any part of its
outstanding Term Loans or Revolving Loans equal to $500,000 and integral
multiples of $250,000 in excess of that amount 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 such Loan equal to $500,000 and integral multiples of $250,000 in
excess of that amount as a Eurodollar Rate Loan; provided however that a
Eurodollar Rate Loan may only be converted into a Base Rate Loan on the
expiration date of an Interest Period applicable thereto.
Company shall deliver a Notice of Conversion/Continuation to Administrative
Agent no later than 12:00 Noon New York time) at least one Business Day in
advance of the proposed conversion date (in the case of a conversion to a Base
Rate Loan), and at least three Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or a continuation
of; a Eurodollar Rate Loan). A Notice of Conversion/Continuation shall specify
(i) the proposed conversion/continuation date (which shall be a Business Day),
(ii) the amount and type of the Loan to be converted/continued, (iii) the nature
of the proposed conversion/continuation, (iv) in the case of a conversion to, or
a continuation of, a Eurodollar Rate Loan, the requested Interest Period, and
(v) in the case of a conversion to, or a continuation of, a Eurodollar Rate
Loan, that no Potential Event of Default or Event of Default has occurred and is
continuing. In lieu of delivering the above-described Notice of
Conversion/Continuation, Company may give Administrative Agent telephonic notice
by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Conversion/Continuation to Administrative
Agent on or before the proposed conversion/continuation date.
Neither Administrative Agent nor any Lender shall incur any liability to Company
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 Company or for otherwise acting in good
faith under this subsection 2.2D, 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 Company
shall have effected a conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice of
Conversion/Continuation for conversion to, or continuation of, a Eurodollar Rate
Loan (or telephonic notice in lieu thereof) shall be irrevocable on and after
the related Interest Rate Determination Date, and Company shall be bound to
effect a conversion or continuation in accordance therewith.
E. Post-Default Interest. Upon the occurrence and during the continuation of
any Event of Default, the outstanding principal amount of all Loans and, to the
extent
permitted by applicable law, any interest payments thereon not paid when due and
any fees and other amounts then due and payable hereunder, shall thereafter bear
interest (including post-petition interest in any proceeding under the
Bankruptcy Code, or other applicable bankruptcy or insolvency laws) payable upon
demand at a rate that is 2% per annum in excess of the interest rate otherwise
payable under this Agreement with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2% per annum in
excess of the interest rate otherwise payable under this Agreement for Revolving
Loans bearing interest at a rate determined by reference to the Base Rate);
provided that, in the case of Eurodollar Rate Loans, upon the expiration of the
Interest Period in effect at the time any such increase in interest rate is
effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans and
shall thereafter bear interest payable upon demand at a rate equal to 2% per
annum in excess of the interest rate otherwise payable under this Agreement for
Base Rate Loans that are Term Loans or Revolving Loans, as applicable. Payment
or acceptance of the increased rates of interest provided for in this subsection
2.2E is not a permitted alternative to timely payment and shall not constitute a
waiver of any Event of Default or otherwise prejudice or limit any rights or
remedies of any Agent or Lender.
F. Computation of Interest. Interest on Loans shall be computed on the basis of
a 360-day year and for the actual number of days elapsed in the period during
which it accrues. In computing interest on any Loan, the date of the making of
such Loan or the first day of an Interest Period applicable to such Loan or,
with respect to a Base Rate Loan being converted from a Eurodollar Rate Loan,
the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan, as
the case may be, shall be included, and the date of payment of such Loan or the
expiration date of an Interest Period applicable to such Loan or, with respect
to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date of
conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case may
be, 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.
2.3 Fees.
A. Commitment Fees. Company agrees to pay to Administrative Agent, for
distribution to each Lender having a Revolving Loan Commitment, in proportion to
that Lender's Pro Rata Share of the Revolving Loan Commitments, commitment fees
("Commitment Fees"; each, a "Commitment Fee") for the period from and including
the Effective Date to and excluding the Revolving Loan Commitment Termination
Date equal to (i) the average of the daily excess of the Revolving Loan
Commitments over the sum of (x) the aggregate principal amount of Revolving
Loans outstanding (but not any Swing Line Loans outstanding), and (y) the Letter
of Credit Usage multiplied by (ii) the Applicable Margin for Commitment Fees.
All such Commitment Fees shall be calculated on the basis of a 360-day year and
the actual number of days elapsed and shall be payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year, commencing on
March 31, 1998, and on the Revolving Loan Commitment Termination Date.
B. Other Fees. Company agrees to pay to Agents such other fees in the amounts
and at the times separately agreed upon between Company and the applicable
Agents.
2.4 Repayments, Prepayments and Reductions in Revolving Loan Commitments;
General Provisions Regarding Payments; Application of Proceeds of Collateral and
Payments under Guaranties.
A. Scheduled Payments of Term Loans and Scheduled Reductions of Revolving Loan
Commitments.
(i) Scheduled Payments of Tranche A Term Loans. Company shall make principal
payments on the Tranche A Term Loans in installments on the dates and in
the amounts set forth below:
SCHEDULED REPAYMENT
DATE OF TERM LOANS
--------------------------------------------------------------------------------
June 30, 1998 $2,500,000
September 30, 1998 $2,500,000
December 31, 1998 $2,500,000
--------------------------------------------------------------------------------
March 31, 1999 $2,500,000
June 30, 1999 $4,375,000
September 30, 1999 $4,375,000
December 31, 1999 $4,375,000
--------------------------------------------------------------------------------
March 31, 2000 $4,375,000
June 30, 2000 $6,125,000
September 30, 2000 $6,125,000
December 31, 2000 $6,125,000
--------------------------------------------------------------------------------
March 31, 2001 $6,125,000
June 30, 2001 $6,125,000
September 30, 2001 $6,125,000
December 30, 2001 $6,125,000
--------------------------------------------------------------------------------
March 31, 2002 $6,125,000
June 30, 2002 $6,125,000
September 30, 2002 $6,125,000
December 31, 2002 $6,125,000
--------------------------------------------------------------------------------
SCHEDULED REPAYMENT
DATE OF TERM LOANS
--------------------------------------------------------------------------------
March 31, 2003 $6,890,625
June 30, 2003 $6,890,625
September 30, 2003 $6,890,625
December 31, 2003 $6,890,625
--------------------------------------------------------------------------------
March 31, 2004 $6,890,625
June 30, 2004 $6,890,625
September 30, 2004 $6,890,625
December 31, 2004 $6,890,625
--------------------------------------------------------------------------------
provided that the scheduled installments of principal of the Tranche A Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prep payments of the Tranche A Term Loans in accordance with
subsection 2.4C; and provided further that the final installment payable by
Company in respect of the Tranche A Term Loans shall be in an amount, if such
amount is different from that specified above, sufficient to repay all amounts
owing by Company under this Agreement with respect to the Tranche A Term Loans.
Scheduled Payments of Tranche B Term Loans. Company shall make principal
payments on the Tranche B Term Loans in installments on the dates and in the
amounts set forth below:
SCHEDULED REPAYMENT
DATE OF TERM LOANS
--------------------------------------------------------------------------------
June 30,1998 $250,000
September 30, 1998 $250,000
December 31, 1998 $250,000
--------------------------------------------------------------------------------
March 31, 1999 $250,000
June 30, 1999 $250,000
September 30, 1999 $250,000
December 31, 1999 $250,000
--------------------------------------------------------------------------------
March 31, 2000 $250,000
June 30, 2000 $250,000
September 30, 2000 $250,000
December 31, 2000 $250,000
--------------------------------------------------------------------------------
March 31, 2001 $250,000
June 30, 2001 $250,000
September 30, 2001 $250,000
December 31, 2001 $250,000
--------------------------------------------------------------------------------
SCHEDULED REPAYMENT
DATE OF TERM LOANS
--------------------------------------------------------------------------------
March 31, 2002 $250,000
June 30, 2002 $250,000
September 30, 2002 $250,000
December 31, 2002 $250,000
------------------------------------------------------------------------------
March 31, 2003 $250,000
June 30, 2003 $250,000
September 30, 2003 $250,000
December 31, 2003 $250,000
--------------------------------------------------------------------------------
March 31, 2004 $18,031,250
June 30, 2004 $18,031,250
September 30, 2004 $18,031,250
December 31, 2004 $18,031,250
--------------------------------------------------------------------------------
March 31, 2005 $18,031,250
June 30, 2005 $18,031,250
September 30, 2005 $18,031,250
December 31, 2005 $18,031,250
--------------------------------------------------------------------------------
; provided that the scheduled installments of principal of the Tranche B Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Tranche B Term Loans in accordance with subsection
2.4C; and provided further, that the final installment payable by Company in
respect of the Tranche B Term Loans shall be in an amount, if such amount is
different from that specified above, sufficient to repay all amounts owing by
Company under this Agreement with respect to the Tranche B Term Loans.
(iii) Scheduled Payments of Tranche C Term Loans. Company shall make principal
payments on the Tranche C Term Loans in installments on the dates and in the
amounts set forth below:
SCHEDULED REPAYMENT
DATE OF TERM LOANS
-------------------------------------------------------------------------------
June 30,1998 $250,000
September 30, 1998 $250,000
December 31, 1998 $250,000
-------------------------------------------------------------------------------
SCHEDULED REPAYMENT
DATE OF TERM LOANS
---------------------------------------------------------------------------
June 30, 1999 $250,000
March 31, 1999 $250,000
September 30, 1999 $250,000
December 31, 1999 $250,000
-------------------------------------------------------------------------------
March 31, 2000 $250,000
June 30, 2000 $250,000
September 30, 2000 $250,000
December 31, 2000 $250,000
-------------------------------------------------------------------------------
March 31, 2001 $250,000
June 30, 2001 $250,000
September 30, 2001 $250,000
December 31, 2001 $250,000
-------------------------------------------------------------------------------
March 31, 2002 $250,000
June 30, 2002 $250,000
September 30, 2002 $250,000
December 31, 2002 $250,000
-----------------------------------------------------------------------------
March 31, 2003 $250,000
June 30, 2003 $250,000
September 30, 2003 $250,000
December 31, 2003 $250,000
-------------------------------------------------------------------------------
March 31, 2004 $18,031,250
June 30, 2004 $18,031,250
September 30, 2004 $18,031,250
December 31, 2004 $18,031,250
-------------------------------------------------------------------------------
March 31, 2005 $23,875,000
June 30, 2005 $23,875,000
September 30, 2005 $23,875,000
December 31, 2005 $23,875,000
------------------------------------------------------------------------------
March 31, 2006 $23,875,000
June 30, 2006 $23,875,000
-------------------------------------------------------------------------------
; provided that the scheduled installments of principal of the Tranche C Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Tranche C Term Loans in accordance with subsection
2.4C; and provided further, that the final installment payable by Company in
respect of the Tranche C Term Loans shall be in an amount, if such amount is
different from that specified above, sufficient to repay all amounts owing by
Company under this Agreement with respect to the Tranche C Term Loans.
(iv) Scheduled Reductions of Revolving Loan Commitments. Except as set forth
in the following proviso, the Revolving Loan Commitments shall be
permanently reduced on the date and in the amount set forth below;
DATE SCHEDULED REDUCTION
OF REVOLVING LOAN COMMITMENTS
--------------------------------------------------------------------------------
January 16, 2005 $75,000,000
--------------------------------------------------------------------------------
; and provided further that the scheduled reductions of the Revolving Loan
Commitments set forth above shall be reduced in connection with any voluntary or
mandatory reductions of the Revolving Loan Commitments in accordance with
subsection 2.4C.
B. Prepayments and Voluntary Reductions in Revolving Loan Commitments.
(i) Voluntary Prepayments. Company may, upon written or telephonic notice to
Administrative Agent on or prior to 12:00 Noon (New York time) on the
date of prepayment, which notice, if telephonic, shall be promptly
confirmed in writing, at any time and from time to time prepay, without
premium or penalty, any Swing Line Loan on any Business Day in whole or
in part in an aggregate minimum amount of $250,000 and integral
multiples of $100,000 in excess of that amount. In addition, so long as
no Swing Line Loans are then outstanding, Company may, upon not less
than one Business Day's prior written or telephonic notice, in the case
of Base Rate Loans, and three Business Days' prior written or telephonic
notice, in the case of Eurodollar Rate Loans, in each case confirmed in
writing to Administrative Agent (which notice Administrative Agent will
promptly transmit by telefacsimile or telephone to each Lender), at any
time and from time to time prepay, without premium or penalty, the Loans
other than Swing Line Loans on any Business Day in whole or in part in
an aggregate minimum amount of $500,000 and integral multiples of
$250,000 in excess of that amount; provided, however that prepayment of
a Eurodollar Rate Loan on any day other than the expiration of the
Interest Period applicable thereto shall be subject to compliance with
subsection 2.6D. Notice of prepayment having been given as aforesaid,
the Loans shall become due and payable on the prepayment date specified
in such notice and in the aggregate principal amount specified therein.
Any voluntary prepayments pursuant to this subsection 2.4B(i) shall be
applied as specified in subsection 2.4C.
(ii) Voluntary Reductions of Revolving Loan Commitments. Company may, upon
not less than three Business Days' prior written or telephonic notice
confirmed in writing to Administrative Agent (which notice
Administrative Agent will promptly transmit by telefacsimile or
telephone to each Lender), at any time and from time to time terminate
in whole or permanently reduce in part, without premium or penalty, the
Revolving Loan Commitments in an amount up to the amount by which the
Revolving Loan Commitments exceed the Total Utilization of Revolving
Loan Commitments at the time of such proposed
termination or reduction; provided that any such partial reduction of
the Revolving Loan Commitments shall be in an aggregate minimum amount
of $500,000 and integral multiples of $250,000 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
Revolving Loan Commitments shall be effective on the date specified in
such notice and shall reduce the Revolving Loan Commitment of each
Lender proportionately to its Pro Rata Share. Any such voluntary
reduction of the Revolving Loan Commitments shall be applied as
specified in subsection 2.4C.
(iii) Mandatory Prepayments and Mandatory Reductions of Revolving Loan
Commitments.
The Loans shall be prepaid and the Revolving Loan Commitments shall be reduced
in the manner provided in subsection 2.4C upon the occurrence of the following
circumstances:
(a) Prepayments and Reductions from Asset Sales No later than the second
Business Day following the date of receipt by Company or any of its
Subsidiaries of the Net Cash Proceeds of any Asset Sale (other than any
portion of such Net Cash Proceeds that is reinvested (or scheduled for
reinvestment) in assets of the general type used in the business of Company
and its Subsidiaries within 360 days from the date of receipt of such Net
Cash Proceeds), Company shall prepay the Loans (and/or the Revolving Loan
Commitments shall be reduced) in an aggregate amount equal to such Net Cash
Proceeds; provided however that Company may not reinvest (or schedule for
reinvestment) Net Cash Proceeds upon the occurrence and during the
continuation of an Event of Default. Company shall, no later than 360 days
after receipt of any such Net Cash Proceeds that have not theretofore been
applied to the Obligations, make an additional prepayment of the Loans
(and/or the Revolving Loan Commitments shall be reduced) in the full amount
of all such proceeds that have not therefore been so reinvested.
Concurrently with any prepayment of the Loans and/or reduction of the
Commitments pursuant to this subsection 2.4B(iii)(a), Company shall deliver
to Administrative Agent an Officer's Certificate demonstrating the
derivation of the Net Cash Proceeds of the correlative Asset Sale from the
gross sales price thereof. In the event that Company shall, at any time
after receipt of Net Cash Proceeds of any Asset Sale requiring a prepayment
or a reduction of the Revolving Loan Commitments pursuant to this
subsection 2.4B(iii)(a), determine that the prepayments and/or reductions
of the Revolving Loan Commitments previously made in respect of such Asset
Sale were in an aggregate amount less than that required by the terms of
this subsection 2.4B(iii)(a), Company shall promptly cause to be made an
additional prepayment of the Loans (and/or reduction in the Revolving Loan
Commitments) in an amount equal to the amount of any such deficit, and
Company shall concurrently therewith deliver to Administrative Agent an
Officer's Certificate demonstrating the derivation of the additional Net
Cash Proceeds resulting in such deficit.
(b) Prepayments and Reductions Due to Issuance of Debt. On or prior to the
first Business Day after receipt by Company or any of its Subsidiaries of
any proceeds of any Indebtedness (other than the Loans and any other
Indebtedness permitted under subsection 7.1(i), (ii), (iii), (iv), (v),
(vii), (viii) or (ix)), Company shall prepay the Loans (and/or the
Revolving Loan Commitments shall be reduced) in an amount equal to the
amount of such proceeds; provided however, that such proceeds from
Indebtedness permitted under subsection 7.1 (vi) shall not be applied to
prepay Loans pursuant to this subsection if and to the extent such proceeds
are applied by Company to repay the Indebtedness with respect to the
Subordinated Notes; and provided further that payment or acceptance of the
amounts provided for in this subsection 2.4B(iii)(b) shall not constitute a
waiver of any Event of Default resulting from the incurrence of such
Indebtedness or otherwise prejudice any fights or remedies of Agents or
Lenders.
(c) Prepayments and Reductions Due to Issuance of Equity Securities. On or
prior to the first Business Day after receipt by Holdings or Company or any
of its Subsidiaries of any Equity Proceeds after the Effective Date,
Company shall prepay the Loans (and/or the Revolving Loan Commitments shall
be reduced) in an amount equal to such Equity Proceeds; provided however,
that such Equity Proceeds shall not be applied to prepay Loans pursuant to
this subsection if and to the extent such Equity Proceeds were derived (x)
directly or indirectly from a sale of Securities to any of the MDC
Entities, Dartford, Fenway, the Management Investors and their respective
Affiliates, or to employees or directors of Holdings and its Subsidiaries
pursuant to any employee stock option or stock purchase plan or other
employee benefit plan, and (y) from sales of Securities to management
officers and directors after the Effective Date to the extent the
consideration paid therefor does not exceed $1,000,000; and provided
further however that at least 50% of Equity Proceeds from an initial public
offering of Holdings Common Stock shall be applied to prepay the Loans
and/or reduce the Revolving Loan Commitments, except that if the Senior
Leverage Ratio is less than 3.25:1.00 after giving effect to such initial
public offering and the anticipated prepayment of the Loans, then less than
50% of such Equity Proceeds may be applied to prepay the Loans; provided
further, however that in any event at least $25,000,000 of such Equity
Proceeds must be applied to prepay the Loans and/or reduce the Revolving
Loan Commitments and not more than $70,000,000 of such Equity Proceeds
shall be applied to repay or prepay Subordinated Indebtedness. Holdings
shall contribute to Company any Equity Proceeds received by Holdings as are
necessary to enable Company to comply with this subsection.
(d) Prepayments and Reductions from Insurance and Condemnation Proceeds. No
later than the second Business Day following the date of receipt by Company
or any of its Subsidiaries of any cash payments under any of the casualty
insurance policies covering damage to or loss of property maintained
pursuant to subsection 6.4 resulting from damage to or loss of all or any
portion of the Collateral or any other tangible asset (net of actual and
documented reasonable costs incurred by Company or any of its Subsidiaries
in connection with adjustment and settlement
thereof; "Insurance Proceeds") or any proceeds resulting from the taking of
assets by the power of eminent domain, condemnation or otherwise (net of
actual and documented reasonable costs incurred by Company or any of its
Subsidiaries in connection with adjustment and settlement thereof;
"Condemnation Proceeds") (other than, if no Event of Default shall have
occurred and be continuing or shall be caused thereby, any portion of any
such proceeds that is reinvested (or scheduled for reinvestment) in assets
of the general type used in the business of Company and its Subsidiaries
within 360 days from the date of receipt of such proceeds), Company shall
prepay the Loans (and/or the Revolving Loan Commitments shall be reduced)
in the amount of such proceeds not so reinvested (or scheduled for such
reinvestment). Company shall, no later than 360 days after receipt of any
such Insurance Proceeds or Condemnation Proceeds that have not theretofore
been applied to the Obligations, make an additional prepayment of the Loans
(and/or the Revolving Loan Commitments shall be reduced) in the full amount
of all such proceeds that have not therefore been reinvested in such
assets.
(e) Prepayments and Reductions from Consolidated Excess Cash Flow. In the event
that there shall be Consolidated Excess Cash Flow for any Fiscal Year
(commencing with the Fiscal Year ending in December 1998), Company shall,
no later than 100 days after the end of such Fiscal Year, prepay the Loans
(and/or the Revolving Loan Commitments shall be reduced) in an aggregate
amount equal to 50% of such Consolidated Excess Cash Flow for such Fiscal
Year; provided however, that if the Leverage Ratio is less than or equal to
4.00:1.00, then such prepayment of the Loans and/or reduction of the
Revolving Loan Commitments shall be in an aggregate amount equal to 25% of
such Consolidated Excess Cash Flow for such Fiscal Year.
(f) Prepayments Due to Reductions or Restrictions of Revolving Loan
Commitments. Company shall prepay the Swing Line Loans and/or the Revolving
Loans from time to time to the extent necessary so that (y) the Total
Utilization of Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitments then in effect, and (z) the aggregate principal
amount of all outstanding Swing Line Loans shall not at any time exceed the
Swing Line Loan Commitment then in effect. All Swing Line Loans shall be
prepaid in full prior to the prepayment of any Revolving Loans pursuant to
this subsection 2.4B(iii)(f).
C. Application of Prepayments and Unscheduled
Reductions of Revolving Loan Commitments.
(i) Application of Voluntary Prepayments by Type of Loans. Any voluntary
prepayments pursuant to subsection 2.4B(i) shall be applied: first to
repay outstanding Swing Line Loans to the full extent thereof; second to
repay outstanding Revolving Loans to the full extent thereof; and third
to repay outstanding Tranche A Term Loans, Tranche B Term Loans and
Tranche C Term Loans pro rata and shall be applied to the remaining
installments thereof on a pro rata basis to the full extent thereof.
(ii) Application of Mandatory Prepayments by Type of Loans. Any amount (the
"Applied Amount") required to be applied as a mandatory prepayment of
the Loans and/or a reduction of the Revolving Loan Commitments pursuant
to subsections 2.4B(iii)(a)-(e) shall be applied: first to prepay the
Tranche A Term Loans, Tranche B Term Loans and Tranche C Term Loans pro
rata and shall be applied to the remaining installments thereof on a pro
rata basis to the full extent thereof, second to the extent of any
remaining portion of the Applied Amount, to prepay the Swing Line Loans
to the full extent thereof and to permanently reduce the Revolving Loan
Commitments by the amount of such prepayment, third to the extent of any
remaining portion of the Applied Amount, to prepay the Revolving Loans
to the full extent thereof and to further permanently reduce the
Revolving Loan Commitments by the amount of such prepayment, and fourth
to the extent of any remaining portion of the Applied Amount, to further
permanently reduce the Revolving Loan Commitments to the full extent
thereof; provided however that so long as any Tranche A Term Loans are
outstanding, each Lender of Tranche B Term Loans and Tranche C Term
Loans shall have the right to refuse all or any portion of any mandatory
prepayment allocable to it, and the amount so refused shall be applied
to prepay the Tranche A Term Loans. Notwithstanding the foregoing or
anything herein to the contrary, no portion of the proceeds of
Indebtedness permitted under subsection 7.1 (vi) which are applied to
prepay the Loans shall be applied to permanently reduce the Revolving
Loan Commitments.
(iii) Application of Prepayments of Term Loans to the Scheduled Installments
of Principal Thereof. Any prepayments of the Tranche A Term Loans,
Tranche B Term Loans or Tranche C Term Loans pursuant to subsection
2.4B(i) or 2.4B(iii) shall be applied to prepay the Tranche A Term
Loans, Tranche B Term Loans or Tranche C Term Loans on a pro rata basis
in accordance with the outstanding principal amounts thereof. Any
mandatory prepayments applied to the Tranche A Term Loans, Tranche B
Term Loans or Tranche C Term Loans pursuant to this subsection shall be
applied on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) to each scheduled installment of
principal of the Tranche A Term Loans, Tranche B Term Loans or Tranche C
Term Loans set forth in subsection 2.4A(i) that is unpaid at the time of
such prepayment.
(iv) Application of Prepayments to Base Rate Loans and Eurodollar Rate Loans.
Considering Term Loans and Revolving Loans being prepaid separately, any
prepayment thereof shall be applied first to Base Rate Loans to the full
extent thereof before application to Eurodollar Rate Loans, in each case
in a manner which minimizes the amount of any payments required to be
made by Company pursuant to subsection 2.6D.
(v) Application of Unscheduled Reductions of Revolving Loan Commitments. Any
voluntary or mandatory reduction of the Revolving Loan Commitments
pursuant to subsection 2.4B(ii) or 2.4B(iii) shall be applied to reduce
the scheduled reductions of the Revolving Loan Commitments set forth in
subsection 2.4A(ii) in reverse chronological order.
D. Application of Proceeds of
Collateral and Payments Under Guaranties.
(i) Application of Proceeds of Collateral. Except as provided in subsection
2.4B(iii)(a) with respect to prepayments from Net Cash Proceeds of Asset
Sales, all proceeds received by Administrative Agent in respect of any
sale of, collection from, or other realization upon all or any part of
the Collateral under any Collateral Document may, in the discretion of
Administrative Agent, be held by Administrative Agent as Collateral for,
and/or (then or at any time thereafter) applied in full or in part by
Administrative Agent against, the applicable Secured Obligations (as
defined in such Collateral Document) in the following order of priority:
(a) To the payment of all costs and expenses of such sale, collection or other
realization, including without limitation reasonable compensation to
Administrative Agent and its agents and counsel, and all other reasonable
expenses, liabilities and advances made or incurred by Administrative Agent
in connection therewith, and all amounts for which Administrative Agent is
entitled to indemnification under such Collateral Document and all advances
made by Administrative Agent thereunder for the account of the applicable
Loan Party, and to the payment of all reasonable costs and expenses paid or
incurred by Administrative Agent in connection with the exercise of any
right or remedy under such Collateral Document, all in accordance with the
terms of this Agreement and such Collateral Document;
(b) thereafter, to the extent of any excess such proceeds, to the payment of
all other such Secured Obligations for the ratable benefit of the holders
thereof; and
(c) thereafter, to the extent of any excess such proceeds, to the payment to or
upon the order of such Loan Party or to whosoever may be lawfully entitled
to receive the same or as a court of competent jurisdiction may direct.
(ii) Application of Payments Under Guaranties. All payments received by
Administrative Agent under any Guaranty shall be applied promptly from
time to time by Administrative Agent in the following order of priority:
(a) To the payment of the reasonable costs and expenses of any collection or
other realization under such Guaranty, including without limitation
reasonable compensation to Administrative Agent and its agents and counsel,
and all expenses, liabilities and advances made or incurred by
Administrative Agent in connection therewith, all in accordance with the
terms of this Agreement and such Guaranty;
(b) thereafter, to the extent of any excess of such payments, to the payment of
all other Guarantied Obligations (as defined in such Guaranty) for the
ratable benefit of the holders thereof; and
(c) thereafter, to the extent of any excess of such payments, to the payment to
Holdings or the applicable Subsidiary Guarantor or to whosoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
E. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by Company of principal,
interest, fees and other Obligations hereunder and under the Notes shall
be made in same day funds and without defense, setoff or counterclaim,
free of any restriction or condition, and delivered to Administrative
Agent not later than 12:00 Noon New York time) on the date due at the
Funding and Payment Office for the account of Lenders; funds received by
Administrative Agent after that time on such due date shall be deemed to
have been paid by Company on the next succeeding Business Day. Company
hereby authorizes Administrative Agent to charge its accounts with such
Administrative Agent in order to cause timely payment to be made to
Administrative Agent of all principal, interest, fees and expenses due
hereunder (subject to sufficient funds being available in its accounts
for that purpose).
(ii) Application of Payments to Principal and Interest. Except as provided in
subsection 2.2C, all payments in respect of the principal amount of any
Loan shall include payment of accrued interest on the principal amount
being repaid or prepaid, and all such payments (and in any event any
payments made in respect of any Loan on a date when interest is due and
payable with respect to such Loan) shall be applied to the payment of
interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and interest payments
shall be apportioned among all outstanding Loans to which such payments
relate, in each case proportionately to Lenders' respective Pro Rata
Shares. Administrative Agent shall promptly distribute to each Lender,
at its applicable Lending Office specified on Schedule 2.1 or at such
other address as such Lender may request, its Pro Rata Share of all such
payments received by Administrative Agent and the commitment fees of
such Lender when received by Administrative Agent pursuant to subsection
2.3. Notwithstanding the foregoing provisions of this subsection
2.4E(iii) if, pursuant to the provisions of subsection 2.6C, any 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 any Eurodollar Rate Loans, Administrative Agent shall give effect
thereto in apportioning payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made hereunder
shall be stated to be due on a day that is not a Business Day, such
payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case may
be.
(v) Notation of Payment. Each Lender agrees that before disposing of any
Note held by it, or any part thereof (other than by granting
participations therein), that Lender will make a notation thereon of all
Loans evidenced by that Note and all principal payments
previously made thereon and of the date to which interest thereon has been
paid; provided that the failure to make (or any error in the making of) a
notation of any Loan made under such Note shall not limit or otherwise
affect the obligations of Company hereunder or under such Note with respect
to any Loan or any payments of principal or interest on such Note.
2.5 Use of Proceeds.
A. Term Loans. The proceeds of the Term Loans, together with the proceeds of
the Revolving Loans made on the Effective Date and the proceeds of the equity
capitalization of Company described in subsection 0.xX, shall be applied to (i)
finance the Xxxxxx Xxxxx Acquisition, (ii) refinance indebtedness under the
Existing Credit Agreement and (iii) pay Transaction Costs.
B. Revolving Loans; Swing Line Loans. The proceeds of the Revolving Loans and
any Swing Line Loans shall be applied by Company as provided in subsection 2.5A
and to finance expenditures which are included in the definition of Consolidated
Capital Expenditures and for working capital and general corporate purposes,
including acquisitions in accordance with subsection 7.7(vii), and which may
include the making of intercompany loans to any of Company's Wholly Owned
Subsidiaries, in accordance with subsection 7.1 (iv), for their own working
capital and general corporate purposes.
C. Compliance With Laws. Company hereby undertakes that no portion of the
proceeds of any Loans or other extensions of credit under this Agreement shall
be used by any Loan Party in any manner which would be illegal under, or which
would cause the invalidity or unenforceability (in each case in whole or in
part) of any Loan Document under, any applicable law.
D. Margin Regulations. Without limiting the generality of subsection 2.5C, 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.
2.6 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
11:00 A. M. New York time) on each Interest Rate Determination Date,
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 Company and each Lender.
B. Inability to Determine Applicable Interest Rate. In the event that
Administrative Agent shall have reasonably determined (which determination shall
be final and conclusive and binding upon all parties hereto), on any Interest
Rate Determination Date with respect to any Eurodollar Rate Loans, that by
reason of circumstances arising after the date of this Agreement affecting the
London interbank market, adequate and fair means do not exist for ascertaining
the interest rate applicable to such Loans on the basis provided for in the
definition of Adjusted Eurodollar Rate, Administrative Agent shall on such date
give notice (by telecopy or by telephone confirmed in writing) to Company and
each Lender of such determination, whereupon (i) no Loans may be made as, or
converted to, Eurodollar Rate Loans, until such time as Administrative Agent
notifies Company and Lenders that the circumstances giving rise to such notice
no longer exist (such notification not to be unreasonably withheld or delayed)
and (ii) any Notice of Borrowing or Notice of Conversion/Continuation given by
Company with respect to the Loans in respect of which such determination was
made shall be deemed to be rescinded by Company.
C. Illegality or Impracticability of Eurodollar Rate Loans. In the event that
on any date any Lender shall have reasonably determined (which determination
shall be final and conclusive and binding upon all parties hereto but shall be
made only after consultation with Company and Administrative Agent) that the
making, maintaining or continuation of its Eurodollar Rate Loans (i) has become
unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply therewith would not be
unlawful) or (ii) has become impracticable, or would cause such Lender material
hardship, as a result of contingencies occurring after the date of this
Agreement which materially and adversely affect the London interbank market,
then, and in any such event, such Lender shall be an "Affected Lender" and it
shall on that day give notice (by telecopy or by telephone confirmed in writing)
to Company and Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each other Lender). Thereafter
(a) the obligation of the Affected Lender to make Loans as, or to convert Loans
to, Eurodollar Rate Loans, shall be suspended until such notice shall be
withdrawn by the Affected Lender, (b) to the extent such determination by the
Affected Lender relates to a Eurodollar Rate Loan then being requested by
Company pursuant to a Notice of
Borrowing or a Notice of Conversion/Continuation, Company shall have the option,
subject to the provisions of subsection 2.6D, to rescind such Notice of
Borrowing or Notice of Conversion/Continuation as to all Lenders by giving
notice (by telecopy or by telephone confirmed in writing) to Administrative
Agent of such rescission on the date on which the Affected Lender gives notice
of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this subsection 2.6C
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in
accordance with the terms of this Agreement.
D. Compensation For Breakage or Non-Commencement of Interest Periods. Company
shall compensate each Lender, upon 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 and any loss, expense or liability sustained by that
Lender in connection with the liquidation or reemployment 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 does not occur on a date
specified therefor in a Notice of Borrowing or a telephonic request for
borrowing, or a conversion to or continuation of any Eurodollar Rate Loan does
not occur on a date specified therefor in a Notice of Conversion/Continuation or
a telephonic request for conversion or continuation, (ii) if any prepayment
(including without limitation any prepayment pursuant to subsection 2.4B(i)) or
conversion of any of its Eurodollar Rate Loans occurs on a date that is not the
last day of an Interest Period applicable to that Loan, (iii) if any prepayment
of any of its Eurodollar Rate Loans is not made on any date specified in a
notice of prepayment given by Company, or (iv) as a consequence of any other
default by Company in the repayment of its Eurodollar Rate Loans when required
by the terms of this Agreement.
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.
F. Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all
amounts payable to a Lender under this subsection 2.6 and under subsection 2.7A
shall be made as though that Lender had actually funded each of its relevant
Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing
interest at the rate obtained pursuant to clause (i) of the definition of
Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and
through the transfer of such Eurodollar deposit from an offshore office of that
Lender to a domestic office of that Lender in the United States of America;
provided, however that each Lender may fund each of its Eurodollar Rate Loans in
any manner it sees fit and the foregoing assumptions shall be utilized only for
the purposes of calculating amounts payable under this subsection 2.6 and under
subsection 2.7A.
G. Eurodollar Rate Loans After Default. After the occurrence of and during the
continuation of a Potential Event of Default or an Event of Default, (i) Company
may not elect to have a Loan be made or maintained as, or converted to, a
Eurodollar Rate Loan after the expiration of any Interest Period then in effect
for that Loan and (ii) subject to the provisions of subsection 2.6D, any Notice
of Borrowing or Notice of Conversion/Continuation given by Company with respect
to a requested borrowing or conversion/continuation that has not yet occurred
shall be deemed to be rescinded by Company.
2.7 Increased Costs; Taxes; Capital Adequacy.
A. Compensation for Increased Costs and Taxes. Subject to the provisions of
subsection 2.7B (which shall be controlling with respect to the matters covered
thereby), in the event that any law, treaty or governmental rule, regulation or
order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
governmental authority, in each case that becomes effective after the date
hereof, or compliance by such Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other governmental
or quasigovernmental authority (whether or not having the force of law):
(i) results in a change in the basis of taxation of such Lender (or its
applicable lending office) (other than a change with respect to any Tax
on the overall net income of such Lender) with respect to this Agreement
or any of its obligations hereunder or any payments to such Lender (or
its applicable lending office) of principal, interest, fees or any other
amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including, without
limitation, any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement against assets held by, or deposits or other liabilities in
or for the account of, or advances or loans by, or other credit extended
by, or any other acquisition of funds by, any office of such Lender
(other than any such reserve or other requirements with respect to
Eurodollar Rate Loans that are reflected in the definition of Adjusted
Eurodollar Rate; or
(iii) imposes any other condition (other than with respect to a Tax matter)
on or affecting such Lender (or its applicable lending office) or its
obligations hereunder, or the London interbank market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Eurodollar Rate Loans hereunder or to
reduce any amount received or receivable by such Lender (or its applicable
lending office) with respect thereto; then, in any such case, Lender shall
promptly notify Company and Administrative Agent thereof and Company shall
promptly pay to such Lender, upon receipt of the statement referred to in the
next sentence, such additional amount or amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Lender
shall reasonably determine) as may be necessary to compensate such Lender for
any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to Company (with a copy to Administrative
Agent) a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to such Lender under this subsection
2.7A, which statement shall be prima facie evidence of such additional
amounts.
B. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable by Company under this
Agreement and the other Loan Documents shall (except to the extent required
by law) be paid free and clear of; and without any deduction or withholding
on account of, any Tax (other than a Tax on the overall net income of any
Lender) imposed, levied, collected, withheld or assessed by or within the
United States of America or any political subdivision in or of the United
States of America or any other jurisdiction from which a payment is made by
or on behalf of Company.
(ii) Withholding of Taxes. If Company or any other Person is required by law to
make any deduction or withholding on account of any such Tax from any sum
paid or payable by Company to Administrative Agent or any Lender under any
of the Loan Documents:
(a) Company shall notify Administrative Agent of any such requirement or any
change in any such requirement as soon as Company becomes aware of it;
(b) Company shall pay any such Tax before the date on which penalties attach
thereto, such payment to be made (if the liability to pay is imposed on
Company) for its own account or (if that liability is imposed on
Administrative Agent or such Lender, as the case may be) on behalf of and
in the name of Administrative Agent or such Lender;
(c) the sum payable by Company in respect of which the relevant deduction,
withholding or payment is required shall be increased to the extent
necessary to ensure that, after the making of that deduction, withholding
or payment, Administrative Agent or such Lender, as the case may be,
receives on the due date a net sum equal to what it would have received had
no such deduction, withholding or payment been required or made; and
(d) within 30 days after paying any sum from which it is required by law to
make any deduction or withholding, and within 30 days after the due date of
payment of any Tax which it is required by clause (b) above to pay, Company
shall deliver to Administrative Agent evidence of such deduction,
withholding or payment and of the remittance thereof to the relevant taxing
or other authority;
provided that no such additional amount shall be required to be paid to any
Lender under clause (c) above except to the extent that any change after the
date hereof (in the case of each Lender listed on the signature pages hereof) or
after the date of the Assignment Agreement pursuant to which such Lender became
a Lender (in the case of each other Lender) in any such requirement for a
deduction, withholding or payment as is mentioned therein shall result in an
increase in the rate of such deduction, withholding or payment from that in
effect at the date of this Agreement or at the date of such Assignment
Agreement, as the case may be, in respect of payments to such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
(a) Each Lender that is organized under the laws of any jurisdiction other than
the United States or any state or other political subdivision thereof (for
purposes of this subsection 2.7B(iii), a "Non-US Lender") shall deliver to
Administrative Agent for transmission to Company, on or prior to the
Closing Date (in the case of each Existing Lender), on or prior to the
Effective Date (in the case of each New Lender) or on or prior to the date
of the Assignment Agreement pursuant to which it becomes a Lender (in the
case of each other Lender), and at such other times as may be necessary in
the determination of Company or Administrative Agent (each in the
reasonable exercise of its discretion), (1) two original copies of Internal
Revenue Service Form 1001 or 4224 (or any successor forms), accurately
completed and duly executed by such Lender, together with any other
certificate or statement of exemption required under the Internal Revenue
Code or the regulations issued thereunder to establish that such Lender is
not subject to deduction or withholding of United States federal income tax
with respect to any payments to such Lender of principal, interest, fees or
other amounts payable under any of the Loan Documents or (2) if such Lender
is not a "bank" or other Person described in Section 881(c)(3) of the
Internal Revenue Code and cannot deliver either Internal Revenue Service
Form 1001 or 4224 (or any successor forms) pursuant to clause (1) above, a
Certificate re Non-Bank Status together with two original copies of
Internal Revenue Service Form W-8 (or any successor form), properly
completed and duly executed by such Lender, together with any other
certificate or statement of exemption required under the Internal Revenue
Code or the regulations issued thereunder to establish that such Lender is
not subject to deduction or withholding of United States federal income tax
with respect to any payments to such Lender of interest payable under any
of the Loan Documents.
(b) Each Lender required to deliver any forms, certificates or other evidence
with respect to United States federal income tax withholding matters
pursuant to subsection 2.7B(iii)(a) hereby agrees, from time to time after
the initial delivery by such Lender of such forms, certificates or other
evidence, whenever a lapse in time or change in circumstances renders such
forms, certificates or other evidence obsolete or inaccurate in any
material respect, such Lender shall (1) deliver to Administrative Agent for
transmission to Company two new original copies of Internal Revenue Service
Form 1001 or 4224 (or any successor forms), or a Certificate re Non-Bank
Status and two original copies of Internal Revenue Service Form W-8 (or any
successor form), as the case may be, accurately completed and duly executed
by such Lender, together with any other certificate or statement of
exemption required in order to confirm or establish that such Lender is not
subject to deduction or withholding of United States federal income tax
with respect to payments to such Lender under the Loan Documents or (2)
immediately notify Administrative Agent and Company of its inability to
deliver any such forms, certificates or other evidence.
(c) Company shall not be required to pay any additional amount to any Non-US
Lender under clause (c) of subsection 2.7B(ii) in respect of deductions or
withholdings of United States federal income taxes if such Lender shall
have failed to satisfy the requirements of subsection 2.7B(iii)(a) or
2.7B(iii)(b); provided that if such Lender shall have satisfied such
requirements on the Closing Date (in the case of each Existing Lender), on
the Effective Date (in the case of each New Lender) or on the date of the
Assignment Agreement pursuant to which it became a Lender (in the case of
each other Lender), nothing in this subsection 2.7B(iii)(c) shall relieve
Company of its obligation to pay any additional amounts pursuant to clause
(c) of subsection 2.7B(ii) in the event that, as a result of any change in
any applicable law, treaty or governmental rule, regulation or order, or
any change in the interpretation, administration or application thereof
such Lender is no longer properly entitled to deliver forms, certificates
or other evidence at a subsequent date establishing the fact that such
Lender is not subject to withholding as described in subsection
2.7B(iii)(a) or 2.7B(iii)(b).
C. Capital Adequacy Adjustment. If any Lender shall have determined that the
adoption, effectiveness, phase-in or applicability after the date hereof of any
law, rule or regulation (or any provision thereof) regarding capital adequacy,
or any change therein or in the interpretation or administration thereof by the
National Association of Insurance Commissioners, any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof or compliance by any Lender (or its applicable lending
office) with any guideline, request or directive regarding capital adequacy
(whether or not having the force of law) of the National Association of
Insurance Commissioners, any such governmental authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on the capital of such Lender or any corporation controlling such Lender as a
consequence of or with reference to, such Lender's Loans or Commitments or
Letters of Credit or participations therein or other obligations hereunder with
respect to the Loans or the Letters of Credit to a level below that which such
Lender reasonably determines such Lender or such controlling corporation could
have achieved but for such adoption, effectiveness, phase-in, applicability,
change or compliance (taking into consideration the policies of such Lender or
such controlling corporation with regard to capital adequacy), then from time to
time, within fifteen Business Days after receipt by Company from such Lender of
the statement referred to in the next sentence, Company shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction. Such Lender
shall deliver to Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis of the calculation of
such additional amounts,
which statement shall be conclusive and binding upon all parties hereto absent
manifest error.
D. Substitute Lenders. In the event Company is required under the provisions of
this subsection 2.7 to make payments in a material amount to any Lender or in
the event any Lender fails to lend to Company in accordance with this Agreement,
Company may, so long as no Event of Default or Potential Event of Default shall
have occurred and be continuing, elect to terminate such Lender as a party to
this Agreement; provided that, concurrently with such termination, (i) Company
shall pay that Lender all principal interest and fees and other amounts
(including without limitation amounts, if any, owed under this subsection 2.7)
due to be paid to such Lender with respect to all periods through such date of
termination, (ii) another financial institution satisfactory to Company and
Administrative Agent shall agree, as of such date, to become a Lender for all
purposes under this Agreement (whether by assignment or amendment) and to assume
all obligations of the Lender to be terminated as of such date, and (iii) all
documents and supporting materials necessary, in the judgment of Administrative
Agent to evidence the substitution of such Lender shall have been received and
approved by Administrative Agent as of such date.
2.8 Obligation of Lenders and Issuing Lenders to Mitigate.
Each Lender and Issuing Lender agrees that, as promptly as practicable after the
officer of such Lender or Issuing Lender responsible for administering the Loans
or Letters of Credit of such Lender or Issuing Lender, as the case may be,
becomes aware of the occurrence of an event or the existence of a condition that
would cause such Lender to become an Affected Lender or that would entitle such
Lender or Issuing Lender to receive payments under subsection 2.7 or subsection
3.6, it will, to the extent not inconsistent with the internal policies of such
Lender or Issuing Lender and any applicable legal or regulatory restrictions,
use reasonable efforts (i) to make, issue, fund or maintain the Commitments of
such Lender or the affected Loans or Letters of Credit of such Lender or Issuing
Lender through another lending or letter of credit office of such Lender or
Issuing Lender, or (ii) take such other measures as such Lender or Issuing
Lender may deem reasonable, if as a result thereof the circumstances which would
cause such Lender to be an Affected Lender would cease to exist or the
additional amounts which would otherwise be required to be paid to such Lender
or Issuing Lender pursuant to subsection 2.7 or subsection 3.6 would be
materially reduced and if, as determined by such Lender or Issuing Lender in its
sole discretion, the making, issuing, funding or maintaining of such Commitments
or Loans or Letters of Credit through such other lending or letter of credit
office or in accordance with such other measures, as the case may be, would not
otherwise materially adversely affect such Commitments or Loans or Letters of
Credit or the interests of such Lender or Issuing Lender; provided that such
Lender or Issuing Lender will not be obligated to utilize such other lending or
letter of credit office pursuant to this subsection 2.8 unless Company agrees to
pay all incremental expenses incurred by such Lender or Issuing Lender as a
result of utilizing such other lending or letter of credit office. A certificate
as to the amount of any such expenses payable by Company pursuant to this
subsection 2.8 (setting forth in reasonable
detail the basis for requesting such amount) submitted by such Lender or Issuing
Lender to Company (with a copy to Administrative Agent) shall be conclusive
absent manifest error.
SECTION 3.
LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations
Therein.
A. Letters of Credit. In addition to Company requesting that Lenders make
Revolving Loans pursuant to subsection 2.1A(iv), and that Swing Line Lender make
Swing Line Loans pursuant to subsection 2. 1A(v), Company may request, in
accordance with the provisions of this subsection 3.1, from time to time during
the period from the Effective Date to but excluding the Revolving Loan
Commitment Termination Date, that one or more Lenders issue Letters of Credit
for the account of Company for the purposes specified in the definitions of
Commercial Letters of Credit and Standby Letters of Credit. Subject to the terms
and conditions of this Agreement and in reliance upon the representations and
warranties of Company herein set forth, any one or more Lenders may, but (except
as provided in subsection 3.1B(ii)) shall not be obligated to, issue such
Letters of Credit in accordance with the provisions of this subsection 3.1;
provided that Company shall not request that any Lender issue (and no Lender
shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the Total
Utilization of Revolving Loan Commitments would exceed the Revolving
Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the
Letter of Credit Usage would exceed $7,500,000;
(iii) any Standby Letter of Credit having an expiration date later than the
earlier of (a) the Revolving Loan Commitment Termination Date and (b)
the date which is one year from the date of issuance of such Standby
Letter of Credit; provided that the immediately preceding clause (b)
shall not prevent any Issuing Lender from agreeing that a Standby Letter
of Credit will automatically be extended for one or more successive
periods not to exceed one year each unless such Issuing Lender elects
not to extend for any such additional period; provided further that,
unless Requisite Lenders otherwise consent, such Issuing Lender shall
give notice that it will not extend such Standby Letter of Credit if it
has knowledge that an Event of Default has occurred and is continuing on
the last day on which such Issuing Lender may give notice to the
beneficiary that it will not extend such Standby Letter of Credit;
(iv) any Commercial Letter of Credit (a) having an expiration date later than
the earlier of (X) 30 days prior to the Revolving Loan Commitment
Termination Date and (Y) the date which is 180 days from the date of
issuance of such Commercial Letter of Credit or (b) that is otherwise
unacceptable to the applicable Issuing Lender in its reasonable
discretion;
(v) any Letter of Credit denominated in a currency other than Dollars; or
(vi) any Letter of Credit during any period when a Lender Default exists,
unless each Issuing Lender has entered into arrangements satisfactory to
it and Company to eliminate such Issuing Lender's risk with respect to
the Defaulting Lender, including by cash collateralizing such Defaulting
Lender's Pro Rata Share of the Letter of Credit Usage (after giving
effect to the issuance of the proposed Letter of Credit).
B. Mechanics of Issuance.
(i) Notice of Issuance. Whenever Company desires the issuance of a Letter of
Credit, it shall deliver to Administrative Agent, at the Funding and
Payment Office, a Notice of Issuance of Letter of Credit no later than
12:00 Noon New York time) at least five Business Days, or such shorter
period as may be agreed to by the Issuing Lender in any particular
instance, in advance of the proposed date of issuance. The Notice of
Issuance of Letter of Credit shall specify (a) the proposed date of
issuance (which shall be a Business Day), (b) the face amount of or
maximum aggregate liability under, as applicable, the Letter of Credit,
(c) the expiration date of the Letter of Credit, (d) the name and
address of the beneficiary, and (e) the verbatim text of the proposed
Letter of Credit or the proposed terms and conditions thereof, including
a precise description of any documents and the verbatim text of any
certificates to be presented by the beneficiary which, if presented by
the beneficiary prior to the expiration date of the Letter of Credit,
would require the Issuing Lender to make payment under the Letter of
Credit; provided that the Issuing Lender, in its reasonable discretion,
may require changes in the text of the proposed Letter of Credit or any
such documents or certificates; provided further that no Letter of
Credit shall require payment against a conforming draft or other request
for payment to be made thereunder on the same Business Day (under the
laws of the jurisdiction in which the office of the Issuing Lender to
which such draft or other request for payment is required to be
presented is located) that such draft or other request for payment is
presented if such presentation is made after 10:00 A.M. (in the time
zone of such office of the Issuing Lender) on such Business Day.
Company shall notify the applicable Issuing Lender (and Administrative Agent, if
Administrative Agent is not such Issuing Lender) prior to the issuance of any
Letter of Credit in the event that any of the matters to which Company is
required to certify in the applicable Notice of Issuance of Letter of Credit is
no longer true and correct as of the proposed date of issuance of such Letter of
Credit, and upon the issuance of any Letter of Credit, Company shall be deemed
to have recertified, as of the date of such issuance, as to the matters to which
Company is required to certify in the applicable Notice of Issuance of Letter of
Credit.
(ii) Determination of Issuing Lender. Upon receipt by Administrative Agent of
a Notice of Issuance of Letter of Credit pursuant to subsection 3.1B(i)
requesting the issuance of a Letter of Credit, in the event
Administrative Agent elects to issue such Letter of Credit,
Administrative Agent shall promptly so notify Company, and such
Administrative Agent shall
be the Issuing Lender with respect thereto.
In the event that Administrative Agent, in its sole discretion, elects
not to issue such Letter of Credit, Administrative Agent shall promptly
so notify Company, whereupon Company may request any other Lender to
issue such Letter of Credit by delivering to such Lender a copy of the
applicable Notice of Issuance of Letter of Credit. Any Lender so
requested to issue such Letter of Credit shall promptly notify Company
and Administrative Agent whether or not, in its sole discretion, it has
elected to issue such Letter of Credit, and any such Lender which so
elects to issue such Letter of Credit shall be the Issuing Lender with
respect thereto. In the event that all other Lenders shall have declined
to issue such Letter of Credit, notwithstanding the prior election of
Administrative Agent not to issue such Letter of Credit, Administrative
Agent shall be obligated to issue such Letter of Credit and shall be the
Issuing Lender with respect thereto, notwithstanding the fact that the
sum of the Letter of Credit Usage with respect to such Letter of Credit
and with respect to all other Letters of Credit issued by Administrative
when aggregated with Administrative Agent's outstanding Revolving Loans
and Swing Line Loans, may exceed Administrative Agent's Revolving Loan
Commitment then in effect.
(iii) Issuance of Letter of Credit. Upon satisfaction or waiver (in accordance
with subsection 10.6) of the conditions set forth in subsection 4.3, the
Issuing Lender shall issue the requested Letter of Credit in accordance
with the Issuing Lender's standard operating procedures (any such
issuance by Administrative Agent being effected through the Funding and
Payment Office), and upon its issuance of such Letter of Credit the
Issuing Lender shall promptly notify Administrative Agent and each
Lender of such issuance, which notice shall be accompanied by a copy of
such Letter of Credit.
(iv) Reports to Lenders. Within 30 days after the end of each calendar
quarter ending after the Closing Date, so long as any Letter of Credit
shall have been outstanding during such calendar quarter, each Issuing
Lender shall deliver to Administrative Agent and Administrative Agent
shall deliver to each Lender a report setting forth for such calendar
quarter the daily maximum amount available to be drawn under the Letters
of Credit that were outstanding during such calendar quarter.
C. Lenders' Purchase of Participations in Letters of Credit. Immediately upon
the issuance of each Letter of Credit, each Lender having a Revolving Loan
Commitment shall be deemed to, and hereby agrees to, have irrevocably purchased
from the Issuing Lender a participation in such Letter of Credit and any
drawings honored or payments made thereunder in an amount equal to such Lender's
Pro Rata Share (with respect to the Revolving Loan Commitments) of the maximum
amount which is or at any time may become available to be drawn or required to
be paid thereunder.
3.2 Letter of Credit Fees.
Company agrees to pay the following amounts to each Issuing Lender with respect
to Letters of Credit issued by it for the account of Company:
(i) with respect to each Letter of Credit, (a) a fronting fee equal to 1/4 of
1% per annum of the daily maximum amount available to be drawn under such
Letter of Credit and (b) a Letter of Credit fee equal to the product of (x)
the Applicable Margin with respect to Eurodollar Rate Revolving Loans and
(b) the daily maximum amount available to be drawn under such Letter of
Credit, in each case payable in arrears on and to each March 31, June 30,
September 30 and December 31 of each year, commencing on March 31, 1998,
and computed on the basis of a 360-day year for the actual number of days
elapsed; and
(ii) with respect to the issuance, amendment or transfer of each Letter of
Credit and each drawing made thereunder (without duplication of the fees
payable under clause (i) above), documentary and processing charges in
accordance with such Issuing Lender's standard schedule for such charges in
effect at the time of such issuance, amendment, transfer or drawing, as the
case may be.
Promptly upon receipt by such Issuing Lender of any amount described in clause
(i)(b) of this subsection 3.2, such Issuing Lender shall distribute to each
other Lender its Pro Rata Share of such amount.
3.3 Drawings and Payments and Reimbursement of Amounts Paid
Under Letters of Credit.
A. Responsibility of Issuing Lender With Respect to Requests For Drawings and
Payments. In determining whether to honor any drawing or request for payment
under any Letter of Credit by the beneficiary thereof, the Issuing Lender shall
be responsible only to determine that the documents and certificates required to
be delivered under such Letter of Credit have been delivered and that they
comply on their face with the requirements of such Letter of Credit.
B. Reimbursement by Company of Amounts Paid Under Letters of Credit. In the
event an Issuing Lender has determined to honor a drawing or request for payment
under a Letter of Credit issued by it, such Issuing Lender shall immediately
notify Company and Administrative Agent, and Company shall reimburse such
Issuing Lender on or before the Business Day immediately following the date on
which such drawing is honored or such payment is made (the applicable
"Reimbursement Date"), in an amount in same day funds equal to the amount of
such drawing; provided that, anything contained in this Agreement to the
contrary notwithstanding, (i) unless Company shall have notified Administrative
Agent and such Issuing Lender prior to 12:00 Noon New York time) on the date of
such drawing or request for payment that Company intends to reimburse such
Issuing Lender for the amount of such honored drawing or payment with funds
other than the proceeds of Revolving Loans, Company shall be deemed to have
given a timely Notice of Borrowing to Administrative Agent requesting Lenders to
make Revolving Loans which are Base Rate Loans, on the applicable Reimbursement
Date in an amount equal to the amount of such honored drawing or payment and
(ii) subject to satisfaction or waiver of the conditions specified in subsection
4.2B, Lenders shall, on the applicable Reimbursement Date, make
Revolving Loans and in the amount of such honored drawing or payment, the
proceeds of which shall be applied directly by Administrative Agent to reimburse
such Issuing Lender for the amount of such honored drawing or payment; provided
further that if for any reason proceeds of Revolving Loans are not received by
such Issuing Lender on the applicable Reimbursement Date in an amount equal to
the amount of such honored drawing or payment, Company shall reimburse such
Issuing Lender, on demand, in an amount in Dollars and in same day funds equal
to the excess of the amount of such honored drawing or payment over the
aggregate amount of such Revolving Loans, if any, which are so received. Nothing
in this subsection 3.3B shall be deemed to relieve any Lender from its
obligation to make Revolving Loans on the terms and conditions set forth in this
Agreement, and Company shall retain any and all fights it may have against any
Lender resulting from the failure of such Lender to make such Revolving Loans
under this subsection 3.3B.
C. Payment by Lenders of Unreimbursed Payments Under Letters of Credit.
(i) Payment by Lenders. In the event that Company shall fail for any reason to
reimburse any Issuing Lender as provided in subsection 3.3B in an amount
equal to the amount of any honored drawing or payment made by such Issuing
Lender under a Letter of Credit issued by it, such Issuing Lender shall
promptly notify each other Lender of the unreimbursed amount of such
honored drawing or payment and of such other Lender's respective
participation therein based on such Lender's Pro Rata Share of the
Revolving Loan Commitments. Each Lender shall make available to such
Issuing Lender an amount equal to its respective participation, in same day
funds, at the office of such Issuing Lender specified in such notice, not
later than 12:00 Noon (New York time) on the first Business Day (under the
laws of the jurisdiction in which such office of such Issuing Lender is
located) after the date notified by such Issuing Lender. In the event that
any Lender fails to make available to such Issuing Lender on such Business
Day the amount of such Lender's participation in such Letter of Credit as
provided in this subsection 3.3C, such Issuing Lender shall be entitled to
recover such amount on demand from such Lender together with interest
thereon at the rate customarily used by such Issuing Lender for the
correction of errors among banks for three Business Days and thereafter at
the Base Rate. Nothing in this subsection 3.3C shall be deemed to prejudice
the fight of any Lender to recover from any Issuing Lender any amounts made
available by such Lender to such Issuing Lender pursuant to this subsection
3 .3C in the event that it is determined by the final judgment of a court
of competent jurisdiction that the payment with respect to a Letter of
Credit by such Issuing Lender in respect of which payment was made by such
Lender constituted gross negligence or willful misconduct on the part of
such Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From Company. In the
event any Issuing Lender shall have been reimbursed by other Lenders
pursuant to subsection 3.3C(i) for all or any portion of any honored
drawing or payment made by such Issuing Lender under a Letter of Credit
issued by it, such Issuing Lender shall distribute to each other Lender
which has paid all amounts payable by it under subsection 3.3C(i) with
respect to such honored drawing or payment such other Lender's Pro Rata
Share of all payments
subsequently received by such Issuing Lender from Company in reimbursement
of such honored drawing or payment when such payments are received. Any
such distribution shall be made to a Lender at its primary address set
forth below its name on the appropriate signature page hereof or at such
other address as such Lender may request.
D. Interest on Amounts Paid Under Letters of Credit.
(i) Payment of Interest by Company. Company agrees to pay to each Issuing
Lender, with respect to drawings honored or payments made under any Letters
of Credit issued by it, interest on the amount paid by such Issuing Lender
in respect of each such drawing or payment from the date such drawing is
honored or payment is made to but excluding the date such amount is
reimbursed by Company (including any such reimbursement out of the proceeds
of Revolving Loans pursuant to subsection 3.3B) at a rate equal to (a) for
the period from the date such drawing is honored or payment is made to but
excluding the applicable Reimbursement Date, the Base Rate plus the
Applicable Margin with respect to Base Rate Revolving Loans, and (b)
thereafter, a rate which is 2% per annum in excess of the rate of interest
described in the foregoing clause (a). Interest payable pursuant to this
subsection 3.3D(i) shall be computed on the basis of a 360-day year for the
actual number of days elapsed in the period during which it accrues and
shall be payable on demand or, if no demand is made, on the date on which
the related drawing or payment under a Letter of Credit is reimbursed in
full.
(ii) Distribution of Interest Payments by Issuing Lender. Promptly upon receipt
by any Issuing Lender of any payment of interest pursuant to subsection
3.3D(i), (a) such Issuing Lender shall distribute to each other Lender, out
of the interest received by such Issuing Lender in respect of the period
from the date of the applicable honored drawing or payment under a Letter
of Credit issued by such Issuing Lender to but excluding the date on which
such Issuing Lender is reimbursed for the amount of such drawing or payment
(including any such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B), the amount that such other Lender would have
been entitled to receive in respect of the Letter of Credit fee that would
have been payable in respect of such Letter of Credit for such period
pursuant to subsection 3.2 if no drawing had been honored or payment had
been made under such Letter of Credit, and (b) in the event such Issuing
Lender shall have been reimbursed by other Lenders pursuant to subsection
3.3C(i) for all or any portion of such drawing or payment, such Issuing
Lender shall distribute to each other Lender which has paid all amounts
payable by it under subsection 3.3C(i) with respect to such drawing or
payment such other Lender's Pro Rata Share of any interest received by such
Issuing Lender in respect of that portion of such drawing or payment so
reimbursed by other Lenders for the period from the date on which such
Issuing Lender was so reimbursed by other Lenders to and including the date
on which such portion of such drawing or payment is reimbursed by Company.
Any such distribution shall be made to a Lender at its Lending Office set
forth on Schedule 2.1 or at such other address as such Lender may request.
3.4 Obligations Absolute.
The obligation of Company to reimburse each Issuing Lender for drawings honored
or payments made under the Letters of Credit issued by it and to repay any
Revolving Loans made by Lenders pursuant to subsection 3.3B and the obligations
of Lenders under subsection 3.3C(i) shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right which
Company or any Lender may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any
other Person or, in the case of a Lender, against Company whether in
connection with this Agreement, the transactions contemplated herein or
any unrelated transaction (including any underlying transaction between
Company or one of its Subsidiaries and the beneficiary for which any
Letter of Credit was procured);
(iii) any draft, demand, certificate or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any Letter of Credit
against presentation of a demand, draft or certificate or other document
which does not substantially comply with the terms of such Letter of
Credit;
(v) any adverse change in the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Company or any of its
Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by any party
thereto;
(vii) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of Default shall
have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 Indemnification Nature of Issuing Lender's Duties.
A. Indemnification. In addition to amounts payable as provided in subsection
3.6, Company hereby agrees to protect, indemnify, pay and save harmless each
Issuing Lender from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable fees,
expenses and disbursements of counsel and allocated costs of internal counsel)
which such Issuing Lender may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit by such Issuing Lender,
other than as a result of (a) the gross negligence or willful misconduct of such
Issuing Lender as determined by a final judgment of a court of competent
jurisdiction or (b) subject to the following clause (ii), the wrongful dishonor
by such Issuing Lender of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of such Issuing Lender to honor a
drawing or other request for payment under any such Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any present or future
de jure or de facto government or governmental authority (all such acts or
omissions herein called "Governmental Acts").
B. Nature of Issuing Lenders' Duties. As between Company and any Issuing
Lender, Company assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by such Issuing Lender by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing or
payment under such Letter of Credit; or (viii) any consequences arising from
causes beyond the control of such Issuing Lender, including, without limitation,
any Governmental Acts, and none of the above shall affect or impair, or prevent
the vesting of, any of such Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific provisions
set forth in the first paragraph of this subsection 3.5B, any action taken or
omitted by any Issuing Lender under or in connection with the Letters of Credit
issued by it or any documents and certificates delivered thereunder, if taken or
omitted in good faith, shall not put such Issuing Lender under any resulting
liability to Company.
Notwithstanding anything to the contrary contained in this subsection 3.5,
Company shall retain any and all rights it may have against any Issuing Lender
for any liability arising solely out of the gross negligence or willful
misconduct of such issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
3.6 Increased Costs and Taxes Relating to Letters of Credit.
In the event that any law, treaty or governmental rule, regulation or order, or
any change therein or in the interpretation, administration or application
thereof (including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that becomes effective after the date hereof, or compliance by any
Issuing Lender or Lender with any guideline, request or directive issued or made
after the date hereof by any central bank or other governmental or quasi-
governmental authority (whether or not having the force of law):
(i) results in any change in the basis of taxation of such Issuing Lender or
Lender (or its applicable lending or letter of credit office) (other
than a change with respect to any Tax on the overall net income of such
Issuing Lender or Lender) with respect to the issuing or maintaining of
any Letters of Credit or the purchasing or maintaining of any
participations therein or any other obligations under this Section 3,
whether directly or by such being imposed on or suffered by any
particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve (including, without
limitation, any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement in respect of any Letters of Credit issued by any Issuing
Lender or participations therein purchased by any Lender; or
(iii) imposes any other condition on or affecting such Issuing Lender or
Lender (or its applicable lending or letter of credit office) regarding
this Section 3 or any Letter of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto; then, in any case, Company shall promptly pay to such Issuing Lender or
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts (reasonably determined by such Issuing Lender or
Lender) as may be necessary to compensate such Issuing Lender or Lender for any
such increased cost or reduction in amounts received or receivable hereunder.
Such Issuing Lender or Lender shall deliver to Company a written statement,
setting forth in reasonable detail the basis for calculating the additional
amounts owed to such Issuing Lender or Lender under this subsection 3.6, which
statement shall be prima facie evidence of such additional amounts.
SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters of Credit
hereunder are subject to the satisfaction of the following conditions.
4.1 Conditions to Term Loans and Revolving Loans.
The obligations of Lenders to make the Term Loans and the Revolving Loans are,
in addition to the conditions precedent specified in subsection 4.2, subject to
prior or concurrent satisfaction of the following conditions:
A. Holdings and Company Documents.
On or before the Effective Date, each of Holdings and 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 and
its counsel) the following, each, unless otherwise noted, dated the Effective
Date:
(i) Certified copies of its Certificate of Incorporation, together with a
good standing certificate from the Secretary of State of the State of
Delaware and each other state in which it is qualified as a foreign
corporation to do business, each dated a recent date prior to the
Effective Date;
(ii) Copies of its Bylaws, certified as of the Effective Date by its
corporate secretary or an assistant secretary as being in full force and
effect without modification or amendment;
(iii) Resolutions of its Board of Directors approving and authorizing the
execution, delivery and performance of this Agreement and the other Loan
Documents and the Xxxxxx Xxxxx Related Agreements to which it is a
party, certified as of the Effective 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 other Loan Documents;
(v) Executed originals of this Agreement and the other Loan Documents to
which it is a party; and
(vi) Such other documents as Agents may reasonably request.
B. No Material Adverse Effect. Since September 30, 1997, no Material Adverse
Effect (in the opinions of Administrative Agent or Lenders) shall have occurred.
C. Corporate and Capital Structure; Capitalization of MBW LLC. Holdings and
Company; Equity Contribution.
(i) Corporate Structure. The corporate organizational structure, capital
structure and ownership of MBW LLC and Holdings and its Subsidiaries,
after giving effect to the Xxxxxx Xxxxx Acquisition, shall be as set
forth on Schedule 4.1 C annexed hereto. MBW LLC shall have no
Subsidiaries on the Effective Date other than Holdings and Company.
(ii) Capital Structure and Ownership: Capitalization of MBW LLC Holdings and
Company. The capital structure and ownership of MBW LLC, Holdings and
Company, both before and after giving effect to the Xxxxxx Xxxxx
Acquisition, shall be as set forth on Schedule 4.1 C annexed hereto.
(iii) Equity Contribution. On or before the Effective Date, Holdings shall
have contributed approximately $99,000,000 in equity to the Company.
D. Xxxxxx Xxxxx Acquisition Agreement. On the Effective Date (i) Administrative
Agent shall have received executed or conformed copies of the Xxxxxx Xxxxx
Acquisition Agreement and any amendments thereto and documents executed in
connection therewith, (ii) such Xxxxxx Xxxxx Acquisition Agreement shall be in
full force and effect and, no material term or condition thereof shall have been
amended, modified or waived after the execution thereof except with the prior
written consent of Administrative Agent, (iii) the parties thereto shall not
have failed in any material respect to perform any material obligation or
covenant required by any such Xxxxxx Xxxxx Acquisition Agreement to be performed
or complied with by any of them on or before the Effective Date, and (iv)
Administrative Agent shall have received an Officer's Certificate from Company
to the effect set forth in clauses (ii) and (iii).
E. Xxxxxx Xxxxx Related Agreements. Administrative Agent shall have received
(i) a fully executed or conformed copy of each Xxxxxx Xxxxx Related Agreement
and all principal documents executed in connection therewith, and each Xxxxxx
Xxxxx Related Agreement shall be in full force and effect (except for those
Xxxxxx Xxxxx Related Agreements not executed on or prior to the Effective Date)
and no provision thereof shall have been modified or waived in any respect
determined by Administrative Agent to be material, in each case without consent
of Administrative Agent and (ii) an Officer's Certificate from Company to the
effect set forth in clause (i), and each such Xxxxxx Xxxxx Related Agreement
(including without limitation the Xxxxxx Xxxxx Transition Agreements) shall be
reasonably satisfactory in form and substance to Administrative Agent.
F. Consummation of Xxxxxx Xxxxx Acquisition.
(i) All conditions to the Xxxxxx Xxxxx Acquisition set forth in the Xxxxxx
Xxxxx Acquisition Agreement shall have been satisfied or the fulfillment
of any such conditions shall have been waived with the consent of
Administrative Agent;
(ii) Administrative Agent shall have received evidence in form and substance
satisfactory to Administrative Agent that the Xxxxxx Xxxxx Acquisition
shall become effective in accordance with the terms of the Xxxxxx Xxxxx
Acquisition Agreement immediately upon the making of the initial Loans;
(iii) the aggregate cash consideration paid to P&G in connection with the
Xxxxxx Xxxxx Acquisition shall not exceed $445,000,000;
(iv) Transaction Costs shall not exceed $16,000,000, and Administrative Agent
shall have received evidence satisfactory in form and substance to
Administrative Agent to such effect; and
(v) Administrative Agent shall have received an Officer's Certificate of
Company to the effect set forth in clauses (i)-(iv) above and stating
that Company will proceed to consummate the Xxxxxx Xxxxx Acquisition
immediately upon the making of the initial Loans.
G. Existing Liens; No Other Indebtedness Outstanding. All security interests
attaching to any of the assets of the Xxxxxx Xxxxx Business created to secure
obligations under any Indebtedness of P&G shall have been terminated, and
Company shall have delivered to Administrative Agent UCC-3 termination
statements or assignments (or comparable forms) and any and all other
instruments of release, satisfaction, assignment and/or reconveyance (or
evidence of the filing thereof) as may be necessary or advisable to terminate
all such security interests and all other security interests in the Collateral.
Administrative Agent shall have received an Officers' Certificate of Company
stating that, after giving effect to the transactions described in this
subsection 4.1G, Loan Parties shall have no Indebtedness outstanding other than
Indebtedness permitted under the Loan Documents.
H. Necessary Consents. Company shall have obtained all consents necessary or
advisable in connection with the Xxxxxx Xxxxx Acquisition, the transactions
contemplated by the Loan Documents and Xxxxxx Xxxxx Related Agreements and the
continued operation of the business conducted by Company and its Subsidiaries,
and each of the foregoing shall be in full force and effect and in form and
substance satisfactory to Administrative Agent (except as disclosed to and
approved by Administrative Agent). All applicable waiting periods shall have
expired without any action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose adverse conditions on the
Xxxxxx Xxxxx Acquisition or the financing thereof, and no action, request for
stay, petition for review or rehearing, reconsideration or appeal shall be
pending and any time for agency action to set aside its consent on its own
motion shall have expired.
I. Collateral Access Agreements. Administrative Agent shall have received from
Company Collateral Access Agreements in form and substance satisfactory to
Administrative Agent executed by P&G with respect to any facility of P&G at
which equipment of Company is located on the Effective Date. Neither Holdings
nor Company
shall own interest in any real property on the Effective Date other than its
Leasehold Property interest in its offices in Columbus, Ohio.
J. Perfection of Security Interests in Personal Property and Mixed Collateral
Holdings and Company shall have taken or caused to be taken such actions in such
a manner so that Administrative Agent has, for the benefit of Agents and
Lenders, a valid and perfected First Priority security interest in the entire
personal property and mixed Collateral. Such actions shall include, without
limitation: (i) the delivery pursuant to the applicable Collateral Documents of
(a) certificates (which certificates shall be properly endorsed in blank for
transfer or accompanied by irrevocable undated stock powers duly endorsed in
blank all in form and substance satisfactory to Administrative Agent)
representing all of the shares of capital stock required to be pledged pursuant
to the Collateral Documents, and (b) all promissory notes or other instruments
(duly endorsed, where appropriate, in a manner satisfactory to Administrative
Agent) evidencing any Collateral; (d) delivery to Agents of (a) the results of a
recent search, by a Person satisfactory to Agents, of all effective Uniform
Commercial Code financing statements and fixture filings and all judgment and
tax lien filings which may have been made with respect to any personal or mixed
property of any Loan Party, together with copies of all such filings disclosed
by such search; (iii) the delivery to Administrative Agent of Uniform Commercial
Code financing statements and fixture filings executed by the applicable Loan
Parties as to all such Collateral granted by such Loan Parties for all
jurisdictions as may be necessary or desirable to perfect Administrative Agent's
security interest in such Collateral; (iv) the delivery to Administrative Agent
of all cover sheets or other documents or instruments required to be filed with
the PTO or the United States Copyright Office in order to create or perfect
Liens in respect of any IP Collateral or any registered copyrights of Company;
and (v) the delivery to Administrative Agent of evidence reasonably satisfactory
to Administrative Agent that all other filings (including, without limitation,
filings of Uniform Commercial Code termination statements and termination
statements with respect to prior Liens on IP Collateral), recordings and other
actions that Administrative Agent deems necessary or advisable to establish,
preserve and perfect the First Priority Liens granted to Administrative Agent in
personal and mixed property shall have been made.
K. Solvency Appraisal; Appraisal of Fixed Assets, Trademarks and Tradenames.
Administrative Agent shall have received a letter from American Appraisal
Associates, Inc. dated the Effective Date and addressed to Administrative Agent
and Lenders, in form, scope and substance reasonably satisfactory to
Administrative Agent and with appropriate attachments, demonstrating that, after
giving effect to the consummation of the Xxxxxx Xxxxx Acquisition and the
financing transactions contemplated hereby, Holdings and its Subsidiaries are
Solvent. Administrative Agent shall have received an appraisal of the fixed
assets, trademarks and tradenames acquired by Company in the Xxxxxx Xxxxx
Acquisition, prepared by American Appraisal Associates, Inc. and dated not
earlier than 30 days before the Effective Date, in form and substance reasonably
satisfactory to Administrative Agent.
L. Transaction Costs. Prior to the Effective Date, Company shall have delivered
to Administrative Agent and Lenders a schedule, in a form satisfactory to
Administrative Agent, setting forth Company's reasonable best estimate of the
Transaction Costs (other than amounts payable to Agents and Lenders).
M. Opinions of Loan Parties' Counsel. Lenders and their respective counsel
shall have received (i) originally executed copies of one or more favorable
written opinions of White & Case, counsel for the Loan Parties, in form and
substance reasonably satisfactory to Administrative Agent and its counsel, dated
as of the Effective Date and setting forth substantially the matters in the
opinion designated in Exhibit XV annexed hereto and as to such other matters as
Administrative Agent acting on behalf of Lenders may reasonably request, and
(ii) evidence satisfactory to Administrative Agent that Loan Parties have
instructed such counsel to deliver such opinion to Lenders.
N. Opinions of Agents' Counsel. Lenders shall have received originally executed
copies of one or more favorable written opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel to Agents, dated as of the Effective Date, substantially in the form of
Exhibit XVI annexed hereto and as to such other matters as Agents acting on
behalf of Lenders may reasonably request.
0. Fees. Company shall have paid to Agents, for distribution (as appropriate)
to Agents and Lenders, the fees payable on the Effective Date referred to in
subsection 2.3.
P. Financial Statements Pro Forma Consolidated Balance Sheet. On or before the
Effective Date, Lenders shall have received from Company (i) audited financial
statements of the Xxxxxx Xxxxx Business for the years ending June 30 of 1995,
1996 and 1997, consisting of statements of direct revenues and expenses for such
years, (ii) unaudited financial statements of the Xxxxxx Xxxxx Business as at
September 30, 1997, consisting of a statement of direct revenues and expenses
for the three-month period ending on such date, (iii) a statement of book value
of equipment and intangibles acquired as of June 30, 1997, in reasonable detail,
and (iv) a pro forma consolidated balance sheet of Holdings and its Subsidiaries
as at September 30, 1997 prepared in accordance with GAAP and reflecting the
consummation of the Xxxxxx Xxxxx Acquisition, the related financings and the
other transactions contemplated by the Loan Documents and the Related
Agreements, which pro forma statement of assets shall be in form and substance
satisfactory to Lenders and shall be certified by the chief financial officer of
Company as (a) prepared based on good faith assumptions and on the best
information available to Company as of the date of delivery thereof and (b)
fairly presenting on a pro forma basis the financial position of Holdings and
Company as at September 30,1997, as adjusted as described in this clause (iv),
assuming that such events had occurred at such date.
Q. Insurance Appraisal Evidence of Insurance. Administrative Agent shall have
received (i) a copy of the insurance report prepared by Aon Risk Services with
respect to Company and its Subsidiaries and such report shall be in form and
substance satisfactory to
Agents, and (ii) satisfactory certificates of insurance with respect to each of
the insurance policies required pursuant to subsection 6.4, and Agents shall be
satisfied with the nature and scope of these insurance policies.
R. Representations and Warranties; Performance of Agreements. Company shall
have delivered to Administrative Agent an Officer's Certificate, in form and
substance satisfactory to Administrative Agent, to the effect that the
representations and warranties in Section 5 hereof are true and correct in all
material respects on and as of the Effective Date to the same extent as though
made on and as of that date and that Company shall have performed in all
material respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by them on or before the
Effective Date, except as otherwise disclosed to and agreed to in writing by
Administrative Agent.
S. Completion of Proceedings. All corporate and other proceedings taken or to
be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by Administrative
Agent, acting on behalf of Lenders, and their counsel shall be satisfactory in
form and substance to Administrative Agent and such counsel, and Administrative
Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as Administrative Agent may reasonably
request.
4.2 Conditions to All Loans.
The obligations of Lenders to make Loans on each Funding Date are subject to the
following further conditions precedent:
A. Administrative Agent shall have received on or before that Funding Date, in
accordance with the provisions of subsection 0.xX, an originally executed Notice
of Borrowing, signed by the chief executive officer, the chief financial officer
or the controller of Company or by any executive officer of Company designated
by any of the above-described officers on behalf of Company in a writing
delivered to Administrative Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in the other Loan
Documents shall be true and correct in all material respects on and as of
that Funding Date to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects on and
as of such earlier date;
(ii) No event shall have occurred and be continuing or would result from the
consummation of the borrowing contemplated by such Notice of Borrowing that
would constitute an Event of Default or a Potential Event of Default;
(iii) Each Loan Party shall have performed in all material respects all
agreements and satisfied all conditions which this Agreement and the
other Loan Documents provide 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;
(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; and
(vi) There shall not be pending or, to the knowledge of Company, threatened,
any action, suit, proceeding, governmental investigation or arbitration
against or affecting Holdings or any of its Subsidiaries or any property
of Holdings or any of its Subsidiaries that has not been disclosed by
Company in writing and that is required to be so disclosed pursuant to
subsection 5.6 or 6.1(x) prior to the making of the last preceding Loans
(or, in the case of the initial Loans, prior to the execution of this
Agreement), and there shall have occurred no development not so
disclosed in any such action, suit, proceeding, governmental
investigation or arbitration so disclosed that, in either event, in the
opinion of Administrative Agent or of Requisite Lenders, would be
expected to have a Material Adverse Effect; and no injunction or other
restraining order shall have been issued and no hearing to cause an
injunction or other restraining order to be issued shall be pending or
noticed with respect to any action, suit or proceeding seeking to enjoin
or otherwise prevent the consummation of, or to recover any damages or
obtain relief as a result of, the transactions contemplated by this
Agreement or the making of Loans hereunder.
4.3 Conditions to Letters of Credit.
The issuance of any Letter of Credit hereunder (whether or not the applicable
Issuing Lender is obligated to issue such Letter of Credit) is subject to the
following conditions precedent:
A. On or before the date of issuance of the initial Letter of Credit pursuant
to this Agreement, the initial Loans shall have been made.
B. On or before the date of issuance of such Letter of Credit, Administrative
Agent shall have received, in accordance with the provisions of subsection
3.1B(i), an originally executed Notice of Issuance of Letter of Credit, signed
by the chief executive officer, the chief financial officer or the controller of
Company or by any executive officer of Company designated by any of the above-
described officers on behalf of Company in a writing delivered to Administrative
Agent, together with all other information specified in
subsection 3.1 B(i) and such other documents or information as the applicable
Issuing Lender may reasonably require in connection with the issuance of such
Letter of Credit.
C. On the date of issuance of such Letter of Credit, all conditions precedent
described in subsection 4.2B shall be satisfied to the same extent as if the
issuance of such Letter of Credit were the making of a Loan and the date of
issuance of such Letter of Credit were a Funding Date.
SECTION 5.
REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the Loans,
to induce Issuing Lender to issue Letters of Credit and to induce other Lenders
to purchase participations therein, each of Holdings and Company represents and
warrants to each Lender, on the date of this Agreement, on each Funding Date,
and on the date of issuance of each Letter of Credit, that the following
statements are true and correct:
5.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries.
A. Organization and Powers. Each Loan Party is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation. Each Loan Party 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 the Loan Documents and to carry out
the transactions contemplated thereby. Company has all requisite corporate power
and authority to issue and pay the Notes.
B. Qualification and Good Standing. Each Loan Party is qualified to do business
and in good standing in every jurisdiction where its assets are located and
wherever necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified, authorized or in good
standing has not had and will not have a Material Adverse Effect.
C. Conduct of Business. Company and its Subsidiaries are engaged only in the
businesses permitted to be engaged in pursuant to subsection 7.11.
D. Company and Subsidiaries. All of the Subsidiaries of Holdings as of the
Effective Date after giving effect to the Xxxxxx Xxxxx Acquisition are
identified in Schedule 5.1 annexed hereto. The capital stock of each of the
Subsidiaries of Company identified in Schedule 5.1 annexed hereto is duly
authorized, validly issued, fully paid and nonassessable and none of such
capital stock constitutes Margin Stock. Company and each of the Subsidiaries of
Holdings identified in Schedule 5.1 annexed hereto are duly organized, validly
existing and in good standing under the laws of their respective jurisdictions
of incorporation or formation set forth therein, have full corporate power and
authority to own their assets and properties and to operate their business as
presently owned and conducted and as proposed to be conducted, and are qualified
to do business and in good standing in every
jurisdiction where their assets are located and wherever necessary to carry out
their business and operations, in each case except where failure to be so
qualified or in good standing or a lack of such corporate power and authority
has not had and will not have a Material Adverse Effect. Schedule 5.1 annexed
hereto correctly sets forth the ownership interest of Company in each of its
Subsidiaries identified therein.
E. Acquisitions. Each Loan Party shall have, upon consummation thereof, all
requisite corporate power and authority to consummate, on the terms set forth in
the applicable acquisition agreement and related documents, each Permitted
Acquisition consummated by it pursuant to subsection 7.7(vii). Upon consummation
of any such Permitted Acquisition, such Permitted Acquisition shall have been
duly authorized by all necessary corporate action of such Loan Party.
5.2 Authorization of Borrowing, etc.
A. Authorization of Borrowing. The execution, delivery and performance of the
Loan Documents and the Related Agreements and the issuance, delivery and payment
of the Notes have been duly authorized by all necessary corporate or other
action on the part of each of the Loan Parties thereto.
B. No Conflict. After giving effect to the consummation of the transactions
contemplated hereby to occur on the Effective Date, the execution, delivery and
performance by each of the Loan Parties of the Loan Document and the Related
Agreements to which they are parties, the issuance, delivery and payment of the
Notes and the consummation of the transactions contemplated by the Loan
Documents do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to MBW LLC or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws (or other
analogous organizational document) of any Loan Party or any of its Subsidiaries
or any order, judgment or decree of any court or other agency of government
binding on any Loan Party or any of its Subsidiaries, (ii) 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 any Loan Party or any of its
Subsidiaries, (iii) result in or require the creation or imposition of any Lien
upon any of the properties or assets of any Loan Party or any of its
Subsidiaries (other than any Liens created under any of the Loan Documents in
favor of Administrative Agent on behalf of Lenders), or (iv) require any
approval of stockholders or partners or any approval or consent of any Person
under any Contractual Obligation of any Loan Party or any of its Subsidiaries,
except for such approvals or consents which will be obtained on or before the
Effective Date.
C. Governmental Consents. The execution, delivery and performance by the Loan
Parties of the Loan Documents and Related Agreements to which they are party,
the issuance, delivery and payment of the Notes and the consummation of the
transactions contemplated by the Loan Documents 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 such registrations, consents, approvals,
notices or other actions which will be made, obtained or taken on or before the
Effective Date.
D. Binding Obligation. Each of the Loan Documents and the Related Agreements
has been duly executed and delivered by each of the Loan Parties party thereto
and is the legally valid and binding obligation of each such Loan Party,
enforceable against such Loan Party in accordance with its respective 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.
E Valid Issuance of Holdings Common Stock and Subordinated Notes.
(i) Holdings Common Stock. The Holdings Common Stock to be sold on or before
the Effective Date, when issued and delivered, will be duly and validly
issued, fully paid and nonassessable. The issuance and sale of such
Holdings Common Stock, upon such issuance and sale, will either (a) have
been registered or qualified under applicable federal and state securities
laws or (b) be exempt therefrom.
(ii) Subordinated Notes. Company has the corporate power and authority to issue
the Subordinated Notes. The Subordinated Notes are the legally valid and
binding obligations of Company, enforceable against Company in accordance
with their respective 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 subordination provisions of the Subordinated Note
Indentures, the Subordinated Notes and the other Subordinated Note
Documents are enforceable against the holders of the Subordinated Notes,
and the Loans and all other monetary Obligations hereunder are and will be
within the definition of "Senior Indebtedness" included in such provisions.
The Subordinated Notes (a) have been registered or qualified under
applicable federal and state securities laws or (b) are exempt therefrom.
5.3 Financial Condition.
A. Financial Statements. Company has heretofore delivered to Lenders, at
Lenders' request, the following financial statements and information: (i) the
audited statements of direct revenues and expenses of the Xxxxxx Xxxxx Business
for the years ended June 30, 1995,1996 and 1997, together with the report on
such statements of direct revenues and expenses of Deloitte & Touche LLP, and
(ii) the unaudited statement of direct revenues and expenses of the Xxxxxx Xxxxx
Business as at September 30, 1997 for the three months then ended. All such
statements were prepared in conformity with GAAP and fairly present, in all
material respects, the financial position of the entities described in such
financial statements as at the respective dates thereof and the results of
operations of the entities described therein for each of the periods then ended.
Neither Company nor the Xxxxxx Xxxxx Business has (and will not immediately
following the funding of the initial Loans have) any Contingent Obligation,
contingent liability or liability for taxes, long-term lease or unusual forward
or long-term commitment that is not reflected in the most recent financial
statements
delivered pursuant to subsection 6.1, the notes thereto and which in any such
case is material in relation to the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Holdings and its Subsidiaries
taken as a whole.
(ii) The balance sheets of Company as at December 31, 1996 and September 30,
1997 and the related unaudited statements of income and changes in
stockholder's equity and of cash flows of Company for the operating
period from December 31, 1996 through September 30, 1997, copies of
which have heretofore been furnished to each Lender, present fairly in
all respects the financial condition of Company as at such dates, and
the results of its operations and its cash flows for the operating
period from December 31,1996 through September 30, 1997 (subject to
normal year-end audit adjustments). All such financial statements have
been prepared in accordance with GAAP consistently applied throughout
the period presented. At the date of the most recent balance sheet
referred to above, Company did not have any material liability or
material obligation which would be required to be included in the
financial statements referred to in this subsection in accordance with
GAAP which was not so included. Except as reflected in the financial
statements referred to in this subsection 5.3, during the period from
December 31, 1996 to and including the date hereof there has been no
sale, transfer or other disposition by any Loan Party of any material
part of its business or property, no material liabilities were incurred
by any Loan Party and there has been no purchase or other acquisition
(other than the Xxxxxx Xxxxx Acquisition) of any business or property
(including capital stock of any other Person) by any Loan Party material
in relation to the financial condition of Company at December 31, 1996.
5.4 No Material Adverse Change; No Restricted Junior Payments.
Since September 30, 1997, no event or change has occurred that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect.
Neither Company nor any of its Subsidiaries has directly or indirectly declared,
ordered, paid or made, or set apart any sum or property for, any Restricted
Junior Payment or agreed to do so except as permitted by subsection 7.5.
5.5 Title to Properties; Liens; Intellectual Property.
A. After giving effect to the transactions contemplated by this Agreement to
occur on the Effective Date, Holdings and its Subsidiaries have good, sufficient
and legal title to all of their respective properties and assets reflected in
the financial statements referred to in subsection 5.3 or in the most recent
financial statements delivered pursuant to subsection 6.1, except for assets
disposed of since the date of such financial statements in the ordinary course
of business or as otherwise permitted under subsection 7.7.
Except as permitted by this Agreement, all such properties and assets are free
and clear of Liens.
B. Company has acquired, pursuant to the Acquisition Agreement, that which
Seller has represented is the ownership of all patents, copyrights (whether
registered or unregistered), trademarks (whether registered or unregistered),
trade names, trade dress, service marks, assumed names and know-how (such items,
together with all applications therefor and all other intellectual property and
proprietary fights, whether or not subject to statutory registration or
protection, being collectively referred to herein as "MBW Intellectual
Property") relating exclusively to, or used exclusively in connection with, the
Business which (i) are owned by Seller on the Closing Date and (ii) are
necessary, together with the fights licensed to Company under the Shared
Technology License Agreement and the Patent License Agreement, for the operation
of the Business as conducted on the Closing Date, except as set forth on
Schedule S SB annexed hereto; provided, however, that such MBW Intellectual
Property does not include any rights to the brand name "Country Crock,"
"Pennant" or "Bakers Source."
C. Company has acquired, pursuant to the Log Cabin Acquisition Agreement, that
which Kraft has represented is the ownership of all patents, copyrights (whether
registered or unregistered), trademarks (whether registered or unregistered),
trade names, trade dress, service marks, assumed names and know-how (such items,
together with all applications therefor and all other intellectual property and
proprietary rights, whether or not subject to statutory registration or
protection, being collectively referred to herein as "Log Cabin Intellectual
Property") relating exclusively to, or used exclusively in connection with, the
Log Cabin Business which (i) are owned by Kraft on July 1,1997 and (ii) are
necessary, together with the rights licensed to Company under the Log Cabin
Patent License Agreement, for the operation of the Log Cabin Business as
conducted on July 1, 1997, except as set forth on Schedule 5.5C annexed hereto.
D. After giving effect to the Xxxxxx Xxxxx Acquisition, Company has acquired,
pursuant to the Xxxxxx Xxxxx Acquisition Agreement, that which P&G has
represented is the ownership of all patents, copyrights (whether registered or
unregistered), trademarks (whether registered or unregistered), trade names,
trade dress, service marks, assumed names and know-how (such items, together
with all applications therefor and all other intellectual property and
proprietary rights, whether or not subject to statutory registration or
protection, being collectively referred to herein as "Xxxxxx Xxxxx Intellectual
Property") relating exclusively to, or used exclusively in connection with, the
Xxxxxx Xxxxx Business which (i) are owned by P&G on the Effective Date and (ii)
are necessary, together with the fights licensed to Company under the Xxxxxx
Xxxxx Patent License Agreement, for the operation of the Xxxxxx Xxxxx Business
as conducted on the Effective Date, except as set forth on Schedule 5.5D annexed
hereto.
E. Each Loan Party owns, or is licensed to use, all Intellectual Property
necessary for the operation of its business as conducted except for Intellectual
Property the failure to own or license which could not reasonably be expected to
have a Material Adverse Effect. No claim of which any Loan Party has been given
notice has been asserted and is pending by any Person challenging or questioning
the use by any Loan Party of any such Intellectual Property the validity or
effectiveness of any such Intellectual Property, nor does
Holdings or Company know of any valid basis for any such claim, except for such
claims that in the aggregate could not reasonably be expected to have a Material
Adverse Effect.
5.6 Litigation: Adverse Facts.
There is no action, suit, proceeding, arbitration or governmental investigation
(whether or not purportedly on behalf of Holdings or any of its Subsidiaries) at
law or in equity or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, pending or, to the knowledge of Company, threatened against
or affecting Holdings or any of its Subsidiaries or any property of Holdings or
any of its Subsidiaries that, either individually or in the aggregate together
with all other such actions, proceedings and investigations, has had, or could
reasonably be expected to result in, a Material Adverse Effect. Neither Holdings
nor any of its Subsidiaries is or has been (i) in violation of any applicable
law (including any Pure Food and Drug Laws that has had, or could reasonably be
expected to result in, a Material Adverse Effect or (ii) subject to or in
default with respect to any final judgment, writ, injunction, decree, rule or
regulation of any court or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, that has had, or could reasonably be expected to result in, a Material
Adverse Effect.
5.7 Payment of Taxes.
Except to the extent permitted by subsection 6.3, all material tax returns and
reports of Holdings and its Subsidiaries required to be filed by any of them
have been timely filed, and all material taxes, assessments, fees and other
governmental charges upon Holdings 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. Company does not know of any
proposed tax assessment against Holdings or any of its Subsidiaries other than
those which are being actively contested by Holdings or such Subsidiary in good
faith and by appropriate proceedings and for which reserves or other appropriate
provisions, if any, as may be required in conformity with GAAP shall have been
made or provided therefor.
5.8 Performance of Agreements: Materially Adverse Agreements: Material
Contracts.
A. Neither Holdings nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, would not have a Material Adverse Effect.
B. Neither Holdings nor any of its Subsidiaries is a party to or is otherwise
subject to any agreement or instrument or any charter or other internal
restriction which has
had, or could reasonably be expected (based upon assumptions that are reasonable
at the time made) to result in, individually or in the aggregate, a Material
Adverse Effect.
C. Schedule 5.8 contains a true, correct and complete list of all the Material
Contracts in effect on the Effective Date. All such Material Contracts are in
full force and effect and no defaults currently exist thereunder, except where
the failure to be in full force and effect, and except for such defaults which,
could not reasonably be expected to have a Material Adverse Effect.
5.9 Governmental Regulation.
Neither Holdings nor any of its Subsidiaries 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 or under any other
federal or state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations
unenforceable.
5.10 Securities Activities.
Neither Holdings nor any of its Subsidiaries 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.
5.11 Employee Benefit Plans.
A. Holdings and each of its ERISA Affiliates are in substantial compliance with
all applicable provisions and requirements of ERISA with respect to each
Employee Benefit Plan, and have substantially performed all their obligations
under each Employee Benefit Plan, except to the extent that any non-compliance
with ERISA or any such failure to perform would not result in material liability
of Holdings or any of its ERISA Affiliates.
B. No ERISA Event has occurred which has resulted or is reasonably likely to
result in any material liability to the PBGC or to any other Person.
C. Except to the extent required under Section 4980B of the Internal Revenue
Code and/or Section 601 of ERISA, neither Holdings nor any of its Subsidiaries
maintains or contributes to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) that provides health or welfare benefits (through the
purchase of insurance or otherwise) for any retired or former employees of
Holdings or any of its Subsidiaries, except to the extent that the provision of
such benefits would not have a Material Adverse Effect.
D. No Pension Plan has an Unfunded Current Liability in an amount that would
have a Material Adverse Effect.
5.12 Certain Fees.
No broker's or finder's fee or commission will be payable with respect to this
Agreement or any of the loan transactions contemplated hereby, and Company
hereby indemnifies Lenders against, and agrees that it will hold Lenders
harmless from, any claim, demand or liability for any such broker's or finder's
fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
5.13 Environmental Protection.
(i) The operations of Holdings and each of its Subsidiaries (including,
without limitation, all operations and conditions at or in the
Facilities) comply in all material respects with all Environmental Laws;
(ii) Holdings and each of its Subsidiaries have obtained all material
Governmental Authorizations under Environmental Laws necessary to their
respective operations, and all such Governmental Authorizations are in
good standing, and Holdings and each of its Subsidiaries are in
compliance with all material terms and conditions of such Governmental
Authorizations;
(iii) Neither Holdings nor any of its Subsidiaries has received (a) any notice
or claim to the effect that it is or may be liable to any Person as a
result of or in connection with any Hazardous Materials or (b) any
letter or request for information under Section 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. /s/
9604) or comparable state laws, and, to the best knowledge of Company,
none of the operations of Holdings or any of its Subsidiaries is the
subject of any federal or state investigation relating to or in
connection with any Hazardous Materials at any Facility or at any other
location;
(iv) None of the operations of Holdings or any of its Subsidiaries is subject
to any judicial or administrative proceeding alleging the violation of
or liability under any Environmental Laws which could reasonably be
expected to have a Material Adverse Effect;
(v) To the knowledge of Company, neither Holdings nor any of its
Subsidiaries nor any of their respective Facilities or operations are
subject to any outstanding written order or agreement with any
governmental authority or private party relating to (a) any
Environmental Laws or (b) any Environmental Claims that could reasonably
be expected to have a Material Adverse Effect;
(vi) Neither Holdings nor any of its Subsidiaries has any material contingent
liability in connection with any Release of any Hazardous Materials by
Holdings or any of its Subsidiaries;
(vii) Neither Holdings nor any of its Subsidiaries nor, to the knowledge of
Company, any predecessor of Holdings or any of its Subsidiaries has
filed any notice under any Environmental Law indicating past or present
treatment or Release of Hazardous Materials at any Facility, and none of
Holdings' or any of its Subsidiaries operations involves the generation,
transportation, treatment, storage or disposal of hazardous waste, as
defined under 40 C.F.R. Parts 260-270 or any state equivalent;
(viii) To the knowledge of Company, no Hazardous Materials exist on or under
any Facility in a manner that has a reasonable possibility of giving
rise to an Environmental Claim having a Material Adverse Effect, and
neither Holdings nor any of its Subsidiaries has filed any notice or
report of a Release of any Hazardous Materials that has a reasonable
possibility of giving rise to an Environmental Claim having a Material
Adverse Effect;
(ix) Neither Holdings nor any of its Subsidiaries nor, to the knowledge of
Company, any of their respective predecessors has disposed of any
Hazardous Materials in a manner that has a reasonable possibility of
giving rise to an Environmental Claim having a Material Adverse Effect;
(x) To the knowledge of Company, no underground storage tanks or surface
impoundments are on or at any Facility; and
(xi) To the knowledge of Company, no Lien in favor of any Person relating to
or in connection with any Environmental Claim has been filed or has been
attached to any Facility.
5.14 Employee Matters.
There is no strike or work stoppage in existence or threatened involving
Holdings or any of its Subsidiaries that could reasonably be expected to have a
Material Adverse Effect.
5.15 Solvency.
Each Loan Party is, and Company and its Subsidiaries, taken as a whole, are,
and, upon the incurrence of any Obligations by any Loan Party on any date on
which this representation is made, will be, Solvent.
5.16 Matters Relating to Collateral.
A. Creation Perfection and Priority of Liens. The execution and delivery of the
Collateral Documents by Loan Parties, together with (i) the actions taken on or
prior to the date hereof pursuant to subsections 4. 1L, 6.9 and 6.10 and (ii)
the delivery to Administrative Agent of any Pledged Collateral not delivered to
Administrative Agent at the time of execution and delivery of the applicable
Collateral Document (all of which Pledged Collateral has been so delivered) are
effective to create in favor of Administrative Agent for the benefit of Agents
and Lenders, as security for the respective Secured Obligations (as
defined in the applicable Collateral Document in respect of any Collateral), a
valid and perfected First Priority Lien on all of the Collateral, and all
filings and other actions necessary or desirable to perfect and maintain the
perfection and First Priority status of such Liens have been duly made or taken
and remain in full force and effect, other than the filing of any UCC financing
statements delivered to Administrative Agent for filing (but not yet filed) and
the periodic filing of UCC continuation statements in respect of UCC financing
statements filed by or on behalf of Administrative Agent.
B. Governmental Authorizations. No authorization, approval or other action by,
and no notice to or filing with, any governmental authority or regulatory body
is required for either (i) the pledge or grant by any Loan Party of the Liens
purported to be created in favor of Administrative Agent pursuant to any of the
Collateral Documents or (ii) the exercise by Administrative Agent of any rights
or remedies in respect of any Collateral (whether specifically granted or
created pursuant to any of the Collateral Documents or created or provided for
by applicable law), except for filings or recordings contemplated by subsection
5.1 6A and except as may be required, in connection with the disposition of any
Pledged Collateral, by laws generally affecting the offering and sale of
securities.
C. Absence of Third-Party Filings. Except such as may have been filed in favor
of Administrative Agent as contemplated by subsection 5.16A, (i) no effective
UCC financing statement, fixture filing or other instrument similar in effect
covering all or any part of the Collateral is on file in any filing or recording
office and (ii) no effective filing covering all or any part of the IP
Collateral is on file in the PTO or the United States Copyright Office.
D. Margin Regulations. The pledge of the Pledged Collateral pursuant to the
Collateral Documents does not violate Regulation G, Regulation T, Regulation U
or Regulation X of the Board of Governors of the Federal Reserve System.
E. Information Regarding Collateral. All information supplied to any Agent by
or on behalf of any Loan Party with respect to any of the Collateral (in each
case taken as a whole with respect to any particular Collateral) is accurate and
complete in all material respects.
5.17 Related Agreements.
A. Delivery of Related Agreements. Company has delivered to Administrative
Agent complete and correct copies of each Related Agreement and of all exhibits
and schedules thereto.
B. P&G's Warranties. Except to the extent otherwise set forth herein or in the
schedules hereto, to Holdings' and Company's knowledge each of the
representations and warranties given by P&G to Company in the Xxxxxx Xxxxx
Acquisition Agreement is true and correct in all material respects as of the
date hereof (or as of any earlier date to which such representation and warranty
specifically relates) and will be true and correct in all
material respects as of the Effective Date (or as of such earlier date, as the
case may be), in each case subject to the qualifications set forth in the
schedules to the Xxxxxx Xxxxx Acquisition Agreement.
C. Warranties of Company to P&G. Subject to the qualifications and the schedules
set forth therein, each of the representations and warranties given by Company
to P&G in the Xxxxxx Xxxxx Acquisition Agreement is true and correct in all
material respects as of the date hereof and will be true and correct in all
material respects as of the Effective Date.
D. Survival. Notwithstanding anything in the Xxxxxx Xxxxx Acquisition Agreement
to the contrary, the representations and warranties of Company set forth in
subsections 5.17B and 5.1 7C shall, solely for purposes of this Agreement,
survive the Effective Date for the benefit of Agents and Lenders.
5.18 Disclosure.
The representations of Holdings and its Subsidiaries contained in the Loan
Documents, the Related Agreements and in any other document, certificate or
written statement furnished to Lenders by or on behalf of Holdings or any of its
Subsidiaries for use in connection with the transactions contemplated by this
Agreement, when taken as a whole, do not contain any untrue statement of a
material fact or omit to state a material fact (known to Holdings or the
applicable Subsidiary, in the case of any document not furnished by Holdings or
such Subsidiary) necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances in which the same were
made. Any projections and pro forma financial information contained in such
material are based upon good faith estimates and assumptions believed by Company
to be reasonable at the time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results. There is no fact known (or which should upon the
reasonable exercise of diligence be known) to Company (other than matters of a
general economic nature) that has had, or could reasonably be expected to result
in, a Material Adverse Effect and that has not been disclosed herein or in such
other documents, certificates and statements furnished to Lenders for use in
connection with the transactions contemplated hereby.
5.19 Subordination of Seller Notes.
The subordination provisions of any Permitted Seller Notes, if any, will be
enforceable against the holders thereof, and the Loans and other monetary
obligations hereunder are and will be within the definition of "Senior
Indebtedness" included in such provisions.
SECTION 6.
AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments hereunder
shall remain in effect and until payment in full of all of the Loans and other
obligations and the cancellation or expiration of all Letters of Credit, unless
Requisite Lenders shall otherwise give prior written consent, Company shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.
6.1 Financial Statements and Other Reports.
Company will maintain, and cause each of its Subsidiaries to maintain, a system
of accounting established and administered in accordance with sound business
practices to permit preparation of financial statements in conformity with GAAP.
Company will deliver to Administrative Agent (and Administrative Agent will,
after receipt thereof, deliver to each Lender):
(i) Monthly Financials: (a) as soon as available after fiscal month-end January
1998 and February 1998, (b) as soon as available and in any event within 45
days after fiscal month-end April 1998 and May 1998 and (c) as soon as
available and in any event within 30 days after each fiscal month-end
(other than March, June, September and December) thereafter, the
consolidated and consolidating statements of income (through the "Earnings
Before Tax" line) of Company and its Subsidiaries for such fiscal month and
for the period from the beginning of the then current Fiscal Year to the
end of such month, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous fiscal
year and the corresponding figures from the consolidated plan and financial
forecast for the current Fiscal Year delivered pursuant to subsection
6.1(xiii), all in reasonable detail and certified by the chief financial
officer of Company as being fairly stated in all material respects, subject
to changes resulting from audit and normal year-end adjustments;
(ii) Quarterly Financials: as soon as available and in any event within 45 days
after the end of each Fiscal Quarter, (a) the consolidated and
consolidating balance sheets of Company and its Subsidiaries as at the end
of such Fiscal Quarter and the related consolidated and consolidating
statements of income, stockholders' equity and cash flows of Company and
its Subsidiaries for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding periods of the previous fiscal year and the
corresponding figures from the consolidated plan and financial forecast for
the current Fiscal Year delivered pursuant to subsection 6.1 (xi ii), all
in reasonable detail and certified by the chief financial officer of
Company that they fairly present, in all material respects, the financial
condition of Company and its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for the periods indicated,
subject to changes resulting from audit and normal year-end adjustments,
and (b) a narrative
report describing the operations of Company and its Subsidiaries in the
form prepared for presentation to senior management for such Fiscal
Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter;
(iii) Year-End Financials: as soon as available and in any event within 90
days after the end of each Fiscal Year, (a) the consolidated and
consolidating balance sheets of Company and its Subsidiaries as at the
end of such Fiscal Year and the related consolidated and consolidating
statements of income, stockholders' equity and cash flows of Company and
its Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the corresponding figures for the previous fiscal year
and the corresponding figures from the consolidated plan and financial
forecast delivered pursuant to subsection 6.1 (xiii) for the Fiscal Year
covered by such financial statements, all in reasonable detail and
certified by the chief financial officer of Company that they fairly
present, in all material respects, the financial condition of Company
and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, (b) a
narrative report describing the operations of Company and its
Subsidiaries in the form prepared for presentation to senior management
for such Fiscal Year, and (c) in the case of such consolidated financial
statements, a report thereon of independent certified public accountants
of recognized national standing selected by Company and reasonably
satisfactory to Administrative Agent, which report shall be unqualified
as to the ability of Company and its Subsidiaries to continue as a going
concern and as to scope of audit, and shall state that such consolidated
financial statements fairly present, in all material respects, the
consolidated financial position of Company and its Subsidiaries as at
the dates indicated and the results of their operations and their cash
flows for the periods indicated in conformity with GAAP applied on a
basis consistent with prior years (except as otherwise disclosed in such
financial statements) and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(iv) Officer's and Compliance Certificates: together with each delivery of
financial statements of Company and its Subsidiaries pursuant to
subdivisions (ii) and (iii) above, (a) an Officer's Certificate of
Company stating that the signer has reviewed the terms of this Agreement
and have made, or caused to be made under their supervision, a review in
reasonable detail of the transactions and condition of Company and its
Subsidiaries during the accounting period covered by such financial
statements and that such review has not disclosed the existence during
or at the end of such accounting period, and that the signer does not
have knowledge of the existence as at the date of such Officer's
Certificate, of any condition or event that constitutes an Event of
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 (b) a Compliance Certificate
demonstrating in reasonable detail compliance during and at the end of
the applicable accounting periods with the restrictions contained in
Section 7, in each case to the extent compliance with such restrictions
is required to be tested during or at the end of the applicable
accounting period;
(v) Reconciliation Statements: if, as a result of any change in accounting
principles and policies from those used in the preparation of the
audited financial statements referred to in subsection 5.3, the
consolidated financial statements of Company and its Subsidiaries
delivered pursuant to subdivisions (i), (ii), (iii) or (xiii) of this
subsection 6.1 will differ in any material respect from the consolidated
financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies
been made, then (a) together with the first delivery of financial
statements pursuant to subdivision (i), (ii), (iii) or (xiii) of this
subsection 6.1 following such change, consolidated financial statements
of Company and its Subsidiaries for (y) the current Fiscal Year to the
effective date of such change and (z) the two full Fiscal Years
immediately preceding the Fiscal Year in which such change is made, in
each case prepared on a pro forma basis as if such change had been in
effect during such periods, and (b) together with each delivery of
financial statements pursuant to subdivision (i), (ii), (iii) or (xiii)
of this subsection 6.1 following such change, a written statement of the
chief accounting officer or chief financial officer of Company setting
forth the differences which would have resulted if such financial
statements had been prepared without giving effect to such change;
(vi) Accountants' Certification: together with each delivery of consolidated
financial statements of Company and its Subsidiaries pursuant to
subdivision (iii) above, a written statement by the independent
certified public accountants giving the report thereon stating whether,
in connection with their audit examination, any condition or event,
insofar as such condition or event relates to the covenants set forth in
subsection 7.6, that constitutes an Event of Default or Potential Event
of Default has come to their attention and, if such a condition or event
has come to their attention, specifying the nature and period of
existence thereof; provided that such accountants shall not be liable by
reason of any failure to obtain knowledge of any such Event of Default
or Potential Event of Default that would not be disclosed in the course
of their audit examination;
(vii) Accountants' Reports: promptly upon receipt thereof (unless restricted
by applicable professional standards), copies of all reports submitted
to Company by independent certified public accountants in connection
with each annual, interim or special audit of the financial statements
of Company and its Subsidiaries made by such accountants, including,
without limitation, any comment letter submitted by such accountants to
management in connection with their annual audit;
(viii) SEC Filings and Press Releases: promptly upon their becoming available,
copies of (a) all financial statements, reports, notices and proxy
statements sent or made available generally by Company to its security
holders, (b) all regular and periodic reports and all registration
statements (other than on Form S-8 or a similar form) and prospectuses,
if any, filed by Holdings or any of its Subsidiaries
with any securities exchange or with the Securities and Exchange
Commission or any governmental or private regulatory authority, and (c)
all press releases and other statements made available generally by
Holdings or any of its Subsidiaries to the public concerning material
developments in the business of Holdings or any of its Subsidiaries;
(ix) Events of Default, etc.: promptly upon any officer of Company obtaining
knowledge (a) of any condition or event that constitutes an Event of
Default or Potential Event of Default, or becoming aware that any Lender
has given any notice (other than to Administrative Agent) or taken any
other action with respect to a claimed Event of Default or Potential
Event of Default, (b) that any Person has given any notice to Company or
any of its Subsidiaries or taken any other action with respect to a
claimed default or event or condition of the type referred to in
subsection 8.2, (c) of any condition or event that would be required to
be disclosed in a current report filed by Company with the Securities
and Exchange Commission on Form 8-K (Items 1, 2, 4, 5 and 6 of such Form
as in effect on the date hereof) if Company were required to file such
reports under the Exchange Act, or (d) of the occurrence of any event or
change that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect, an Officer's Certificate
specifying the nature and period of existence of such condition, event
or change, or specifying the notice given or action taken by any such
Person and the nature of such claimed Event of Default, Potential Event
of Default, default, event or condition, and what action Company has
taken, is taking and proposes to take with respect thereto;
(x) Litigation or Other Proceedings: (a) promptly upon any officer of
Company obtaining knowledge of the institution of, or non-frivolous
threat of, any action, suit, proceeding (whether administrative,
judicial or otherwise), governmental investigation or arbitration
against or affecting Holdings or any of its Subsidiaries or any property
of Holdings or any of its Subsidiaries (collectively, "Proceedings") not
previously disclosed in writing by Company to Lenders or Administrative
Agent any material development in any Proceeding that, in any case:
(1) if adversely determined, has a reasonable possibility of giving rise to a
Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or to recover any
damages or obtain relief as a result of, the transactions contemplated
hereby;
written notice thereof together with such other information as may be reasonably
available to Company to enable Lenders and their counsel to evaluate such
matters; and (b) within 45 days after the end of each Fiscal Quarter, a schedule
of all Proceedings involving an alleged liability of, or claims against or
affecting, Holdings or any of its Subsidiaries equal to or greater than $500,000
and promptly after request by Administrative Agent such
other information as may be reasonably requested by Administrative Agent to
enable Administrative Agent and its counsel to evaluate any of such Proceedings;
(xi) ERISA Events: promptly upon becoming aware of the occurrence of any
ERISA Event that could reasonably be expected to result in a material
liability, a written notice specifying the nature thereof what action
Holdings or any of its ERISA Affiliates has taken, is taking or proposes
to take with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service, the Department of Labor or
the PBGC with respect thereto;
(xii) ERISA Notices: with reasonable promptness, copies of (a) all written
notices received by Holdings or any of its ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event; and (b) such other
documents or governmental reports or filings relating to any Employee
Benefit Plan as Administrative Agent shall reasonably request;
(xiii) Financial Plans: as soon as available and in any event no later than 90
days after the beginning of Fiscal Year 1998, and thereafter as soon as
practicable and in any event no later than 60 days after the beginning
of each subsequent Fiscal Year, a monthly consolidated and consolidating
plan and financial forecast for such Fiscal Year, including, without
limitation, (a) forecasted consolidated and consolidating balance sheets
and forecasted consolidated and consolidating statements of income and
cash flows of Company and its Subsidiaries for such Fiscal Year,
together with a pro forma Compliance Certificate for such Fiscal Year
--- -----
and an explanation of the assumptions on which such forecasts are based,
and (b) such other information and projections as Administrative Agent
may reasonably request;
(xiv) Insurance: upon request by Administrative Agent, as soon as practicable
and in any event not less than once each Fiscal Year, a report in form
and substance satisfactory to Administrative Agent outlining all
material insurance coverage maintained as of the date of such report by
Holdings and its Subsidiaries and all material insurance coverage
planned to be maintained by Holdings and its Subsidiaries in the
immediately succeeding Fiscal Year;
(xv) Environmental Audits and Reports: as soon as practicable following
receipt thereof, copies of all environmental audits and reports, whether
prepared by personnel of Company or any of its Subsidiaries or by
independent consultants, with respect to significant environmental
matters at any Facility or which relate to an Environmental Claim which
could result in a Material Adverse Effect;
(xvi) Board of Directors: with reasonable promptness, written notice of any
change in the Board of Directors of Company;
(xvii) New Subsidiaries: promptly upon any Person becoming a Subsidiary of
Company, a written notice setting forth with respect to such Person (a)
the date on which such Person became a Subsidiary of Company and (b) all
of the data required to be set forth in Schedule 5.1 annexed hereto with
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respect to all Subsidiaries of Company (it being understood that such
written notice shall be deemed to supplement Schedule 5.1 annexed hereto
-------- ---
for all purposes of this Agreement); and
(xviii) Other Information: with reasonable promptness, such other information
and data with respect to Holdings or any of its Subsidiaries as from
time to time may be reasonably requested by Administrative Agent.
6.2 Corporate Existence, etc.
Except as permitted under subsection 7.7, Company will, and will cause each of
its Subsidiaries to, at all times preserve and keep in full force and effect its
corporate existence and all rights and franchises material to the business of
Holdings and its Subsidiaries (on a consolidated basis).
6.3 Payment of Taxes and Claims: Tax Consolidation.
A. Company will, and will cause each of its Subsidiaries to, pay all material
taxes and all 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 properties or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided that no such charge or claim
need be paid if it is being contested in good faith by appropriate proceedings
timely 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.
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 Holdings and its Subsidiaries).
6.4 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 and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof. Company will maintain or
cause to be maintained, with financially sound and reputable insurers, insurance
with respect to its properties and business and the properties and businesses of
its Subsidiaries against loss or damage of the kinds customarily carried or
maintained under similar circumstances by corporations of established reputation
engaged in similar businesses. Each such policy of casualty insurance covering
damage to or loss of property shall name Administrative Agent for the benefit of
Agents and Lenders as the loss payee thereunder for all losses, subject to
application of proceeds as required by subsection 2.4B(iii)(d), and shall
provide for at least 30 days' prior written notice to Administrative Agent of
any modification or cancellation of such policy.
6.5 Inspection; Lender Meeting.
Company shall, and shall cause each of its Subsidiaries to, permit any
authorized representatives designated by any Agent or Lender to visit and
inspect any of the properties of Company or any of its Subsidiaries, including
its and their financial and accounting records, and to make copies and take
extracts therefrom, and to discuss its and their affairs, finances and accounts
with its and their officers independent public accountants, all upon reasonable
advance notice and at such reasonable times during normal business hours and as
often as may be reasonably requested. Without in any way limiting the foregoing,
Company will, upon the request of Administrative Agent, participate in a meeting
of Agents and Lenders once during each Fiscal Year to be held at Company's 5
corporate offices (or such other location as may be agreed to by Company and
Administrative Agent) at such time as may be agreed to by Company and
Administrative Agent.
6.6 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 (including all Pure Food and Drug Laws), noncompliance
with which could reasonably be expected to cause a Material Adverse Effect.
6.7 Environmental Disclosure and Inspection.
A. Company shall, and shall cause each of its Subsidiaries to, exercise all due
diligence in order to comply and cause (i) all tenants under any leases or
occupancy agreements affecting any portion of the Facilities and (ii) all other
Persons on or occupying such property, to comply with all Environmental Laws.
B. Company agrees that Administrative Agent may, from time to time and in its
reasonable discretion, retain, at Company's expense, an independent professional
consultant to review any report relating to Hazardous Materials prepared by or
for Company and to conduct its own investigation of any Facility currently
owned, leased, operated or used by Company or any of its Subsidiaries, and
Company agrees to use all reasonable efforts to obtain permission for
Administrative Agent's professional consultant to conduct its own investigation
of any such Facility previously owned, leased, operated or used by Company or
any of its Subsidiaries. Company shall use its reasonable efforts to obtain for
Administrative Agent and its agents, employees, consultants and contractors the
right, upon reasonable notice to Company, to enter into or on to the Facilities
currently owned, leased, operated or used by Company or any of its Subsidiaries
to perform such tests on such property as are reasonably
necessary to conduct such a review and/or investigation. Any such investigation
of any Facility shall be conducted, unless otherwise agreed to by Company and
Administrative Agent, during normal business hours and, to the extent reasonably
practicable, shall be conducted so as not to interfere with the ongoing
operations at any such Facility or to cause any damage or loss to any property
at such Facility. Company and Administrative Agent hereby acknowledge and agree
that any report of any investigation conducted at the request of Administrative
Agent pursuant to this subsection 6.7B will be obtained and shall be used by
Administrative Agent and Lenders for the purposes of Lenders' internal credit
decisions, to monitor and police the Loans and to protect Lenders' security
interests, if any, created by the Loan Documents. Administrative Agent agrees to
deliver a copy of any such report to Company with the understanding that Company
acknowledges and agrees that (i) it will indemnify and hold harmless each Agent
and Lender from any costs, losses or liabilities relating to any Loan Party's
use of or reliance on such report, (ii) no Agent nor any Lender makes any
representation or warranty with respect to such report, and (iii) by delivering
such report to Company, no Agent nor any Lender is requiring or recommending the
implementation of any suggestions or recommendations contained in such report.
C. Company shall promptly advise Administrative Agent in writing and in
reasonable detail of (i) any Release of any Hazardous Materials required to be
reported to any federal, state, local or foreign governmental or regulatory
agency under any applicable Environmental Laws, (ii) any and all written
communications with respect to any Environmental Claims that have a reasonable
possibility of giving rise to a Material Adverse Effect or with respect to any
Release of Hazardous Materials required to be reported to any federal, state or
local governmental or regulatory agency, (iii) any remedial action taken by
Company or any other Person in response to (x) any Hazardous Materials on, under
or about any Facility, the existence of which has a reasonable possibility of
resulting in an Environmental Claim having a Material Adverse Effect, or (y) any
Environmental Claim that could have a Material Adverse Effect, (iv) Company's
discovery of any occurrence or condition on any real property adjoining or in
the vicinity of any Facility that could cause such Facility or any part thereof
to be subject to any restrictions on the ownership, occupancy, transferability
or use thereof under any Environmental Laws, and (v) any request for information
from any governmental agency that suggests such agency is investigating whether
Company or any of its Subsidiaries may be potentially responsible for a Release
of Hazardous Materials.
D. Company shall promptly notify Administrative Agent of (i) any proposed
acquisition of stock, assets, or property by Company or any of its Subsidiaries
that could reasonably be expected to expose Company or any of its Subsidiaries
to, or result in, Environmental Claims that could have a Material Adverse Effect
or that could reasonably be expected to have a material adverse effect on any
Governmental Authorization then held by Company or any of its Subsidiaries and
(ii) any proposed action to be taken by Company or any of its Subsidiaries to
commence manufacturing, industrial or other similar operations that could
reasonably be expected to subject Company or any of its Subsidiaries to
additional laws, rules or regulations, including, without limitation, laws,
rules and regulations requiring additional environmental permits or licenses.
E. Company shall, at its own expense, provide copies of such documents or
information as Administrative Agent may reasonably request in relation to any
matters disclosed pursuant to this subsection 6.7.
6.8 Company's Remedial Action Regarding Hazardous Materials.
Company shall promptly take, and shall cause each of its Subsidiaries promptly
to take, any and all necessary remedial action in connection with the presence,
storage, use, disposal, transportation or Release of any Hazardous Materials on
or under any Facility in order to comply with all applicable Environmental Laws
and Governmental Authorizations unless the failure to so comply could not
reasonably be expected to have a Material Adverse Effect. In the event Company
or any of its Subsidiaries takes any remedial action with respect to any
Hazardous Materials on or under any Facility, Company or such Subsidiary shall
conduct and complete such remedial action in material compliance with all
applicable Environmental Laws, and in accordance with the policies, orders and
directives of all federal, state and local governmental authorities except when,
and only to the extent that, Company's or such Subsidiary's liability for such
presence, storage, use, disposal, transportation or Release of any Hazardous
Materials is being contested in good faith by Company or such Subsidiary.
6.9 Execution of Subsidiary Guaranty and Subsidiary Security Agreements by
Subsidiaries and Future Subsidiaries.
In the event that any Person becomes a Subsidiary of Company after the date
hereof, Company will promptly notify Administrative Agent of that fact and cause
each such Subsidiary to execute and deliver to Administrative Agent a
counterpart of the Subsidiary Guaranty, the Pledge Agreement and the Security
Agreement and a new patent and trademark agreement substantially similar to the
Patent and Trademark Security Agreement, the Log Cabin Patent and Trademark
Security Agreement and the Xxxxxx Xxxxx Patent and Trademark Security Agreement
(collectively, the "Subsidiary Security Agreements"), and to take all such
further actions and execute all such further documents and instruments as may be
required to grant and perfect in favor of Administrative Agent, for the benefit
of Lenders, a First Priority security interest in all of the personal property
assets of such Subsidiary described in the Subsidiary Security Agreements.
Company shall deliver to Administrative Agent, together with such Loan
Documents, (i) certified copies of such Subsidiary's Articles or Certificate of
Incorporation (or comparable constituent documents), together, if applicable,
with a good standing certificate from the Secretary of State of the jurisdiction
of its incorporation, each to be dated a recent date prior to their delivery to
Administrative Agent, (ii) a copy, if applicable, of such Subsidiary's Bylaws,
certified by its corporate secretary or an assistant corporate secretary as of a
recent date prior to their delivery to Administrative Agent, (iii) a certificate
executed by the secretary or an assistant secretary of such Subsidiary as to (a)
the incumbency and signatures of the officers of such Subsidiary executing the
Subsidiary Guaranty and to which such Subsidiary is a party and (b) the fact
that the attached resolutions of the Board of Directors of such Subsidiary
authorizing the execution, delivery and performance of the Subsidiary Guaranty
and the Subsidiary Security Agreements to which
such Subsidiary is a party are in full force and effect and have not been
modified or rescinded, and (iv) a favorable opinion of counsel to such
Subsidiary, in form and substance satisfactory to Administrative Agent and its
counsel, as to (a) the due organization and good standing of such Subsidiary,
(b) the due authorization, execution and delivery by such Subsidiary of the
Subsidiary Guaranty and the Subsidiary Security Agreements to which such
Subsidiary is a party, (c) the enforceability of the Subsidiary Guaranty and the
Subsidiary Security Agreements to which such Subsidiary is a party against such
Subsidiary, and (d) such other matters as Administrative Agent may reasonably
request, all of the foregoing to be reasonably satisfactory in form and
substance to Administrative Agent and its counsel.
6.10 Conforming Leasehold Interests; Matters Relating to Additional Real
Property Collateral.
A. Conforming Leasehold Interests. If Company or any of its Subsidiaries
acquires any Leasehold Property, Company shall, or shall cause such Subsidiary
to, use its best efforts (without requiring Company or such Subsidiary to
relinquish any material rights or incur any material obligations or to expend
more than a nominal amount of money over and above the reimbursement, if
required, of the landlord's out-of-pocket costs, including attorneys fees) to
cause such Leasehold Property to be a Conforming Leasehold Interest.
B. Additional Mortgages etc. From and after the Closing Date, in the event
that (i) Company or any Subsidiary Guarantor acquires any fee interest in real
property or any Leasehold Property or (ii) at the time any Person becomes a
Subsidiary Guarantor, such Person owns or holds any fee interest in real
property or any Leasehold Property, in either case excluding any such Real
Property Asset the encumbrancing of which requires the consent of any applicable
lessor or (in the case of clause (ii) above) then-existing senior lienholder,
where Company and its Subsidiaries are unable to obtain such lessor's or senior
lienholder's consent (any such non-excluded Real Property Asset described in the
foregoing clause (i) or (ii) being a ("Mortgaged Property"), Company or such
Subsidiary Guarantor shall deliver to Administrative Agent, as soon as
practicable after such Person acquires such Mortgaged Property or becomes a
Subsidiary Guarantor, as the case may be, the following:
(i) Additional Mortgage. A fully executed and notarized Mortgage in proper form
for recording in all appropriate places in all applicable jurisdictions,
encumbering the interest of such Loan Party in such Mortgaged Property;
(ii) Opinions of Counsel. (a) A favorable opinion of counsel to such Loan Party,
in form and substance satisfactory to Administrative Agent and its counsel,
as to the due authorization, execution and delivery by such Loan Party of
such Mortgage and such other matters as Administrative Agent may reasonably
request, and (b) if required by Administrative Agent, an opinion of counsel
(which counsel shall be reasonably satisfactory to Administrative Agent) in
the state in which such Mortgaged Property is located with respect to the
enforceability of the form of Mortgage to be recorded in such state and
such other matters (including any matters governed by the laws of such
state regarding personal property security interests in respect of any
Collateral) as Administrative Agent may reasonably request, in each case
in form and substance reasonably satisfactory to Administrative Agent;
(iii) Landlord Consent and Estoppel; Recorded Leasehold Interest. In the case
of a Mortgaged Property consisting of a Leasehold Property, (a) a
Landlord Consent and Estoppel and (b) evidence that such Leasehold
Property is a Recorded Leasehold Interest;
(iv) Title Insurance. (a) If required by Administrative Agent, an ALTA
mortgagee title insurance policy or an unconditional commitment therefor
(a "Mortgage Policy") issued by the Title Company with respect to such
Mortgaged Property, in an amount satisfactory to Administrative Agent,
insuring fee simple title to, or a valid leasehold interest in, such
Mortgaged Property vested in such Loan Party and assuring Administrative
Agent that such Mortgage creates a valid and enforceable First Priority
mortgage Lien on such Mortgaged Property, subject only to a standard
survey exception, which Mortgage Policy (1) shall include an endorsement
for mechanics' liens, for future advances under this Agreement and for
any other matters reasonably requested by Administrative Agent and (2)
shall provide for affirmative insurance and such reinsurance as
Administrative Agent may reasonably request, all of the foregoing in
form and substance reasonably satisfactory to Administrative Agent; and
(b) evidence satisfactory to Administrative Agent that such Loan Party
has (i) delivered to the Title Company all certificates and affidavits
required by the Title Company in connection with the issuance of the
Mortgage Policy and (ii) paid to the Title Company or to the appropriate
governmental authorities all expenses and premiums of the Title Company
in connection with the issuance of the Mortgage Policy and all recording
and stamp taxes (including mortgage recording and intangible taxes)
payable in connection with recording the Mortgage in the appropriate
real estate records;
(v) Title Report. If no Mortgage Policy is required with respect to such
Mortgaged Property, a title report issued by the Title Company with
respect thereto, dated not more than 30 days prior to the date such
Mortgage is to be recorded and satisfactory in form and substance to
Administrative Agent;
(vi) Conies of Documents Relating to Title Exceptions. Copies of all recorded
documents listed as exceptions to title or otherwise referred to in the
Mortgage Policy or title report delivered pursuant to clause (v) or (vi)
above;
(vii) Matters Relating to Flood Hazard Properties. (a) Evidence, which may be
in the form of a letter from an insurance broker or a municipal
engineer, as to (1) whether such Mortgaged Property is a Flood Hazard
Property and (2) if so, whether the community in which such Flood Hazard
Property is located is participating in the National Flood Insurance
Program, (b) if such Mortgaged Property is a Flood Hazard Property, such
Loan Party's written acknowledgment of receipt of written notification
from Administrative Agent (1) that such Mortgaged Property is a Flood
Hazard
Property and (2) as to whether the community in which such Flood
Hazard Property is located is participating in the National Flood
Insurance Program, and (c) in the event such Mortgaged Property is a
Flood Hazard Property that is located in a community that participates
in the National Flood Insurance Program, evidence that Company has
obtained flood insurance in respect of such Flood Hazard Property to the
extent required under the applicable regulations of the Board of
Governors of the Federal Reserve System; and
(viii) Environmental Audit. If required by Administrative Agent, reports and
other information, in form, scope and substance satisfactory to
Administrative Agent and prepared by environmental consultants
satisfactory to Administrative Agent, concerning any environmental
hazards or liabilities to which Company or any of its Subsidiaries may
be subject with respect to such Mortgaged Property.
6.11 Interest Rate Protection.
Within 180 days after the Effective Date, Company shall enter into one or more
Interest Rate Agreements with respect to the Loans, in an amount of not less
than 50% of the aggregate amount of Consolidated Total Debt, which Interest Rate
Agreements shall have the effect of establishing a maximum interest rate of not
more than 10% per annum with respect to such notional principal amount, each
such Interest Rate Agreement to be in form and substance satisfactory to
Administrative Agent and with a term of not less than three years from the
Effective Date.
6.12 Further Assurances.
At any time or from time to time upon the request of Administrative Agent,
Company will, at its expense, promptly execute, acknowledge and deliver such
further documents and do such other acts and things as Administrative Agent may
reasonably request in order to effect fully the purposes of the Loan Documents
and to provide for payment of the Obligations in accordance with the terms of
this Agreement, the Notes and the other Loan Documents. In furtherance and not
in limitation of the foregoing, each of Holdings and Company shall take, and
cause each of its Subsidiaries to take, such actions as Administrative Agent may
reasonably request from time to time (including, without limitation, the
execution and delivery of guaranties, security agreements, pledge agreements,
Mortgages, stock powers, financing statements and other documents, the filing or
recording of any of the foregoing, title insurance with respect to any of the
foregoing that relates to an interest in real property, the delivery of stock
certificates and other collateral with respect to which perfection is obtained
by possession, and the obtaining of Collateral Access Agreements, in form and
substance satisfactory to Administrative Agent, executed by any Person which is
party to a co-packing agreement with Company or any of its Subsidiaries under
which equipment of Company or its Subsidiaries is maintained at a facility of
such Person) to ensure that the Obligations are guarantied by Holdings and
Subsidiary Guarantors and are secured by substantially all of the assets of
Company and its Subsidiaries and all of the capital stock of Company and
Subsidiary Guarantors. In the event that Company or any of its Subsidiaries
creates a new
Subsidiary, all of the capital stock or partnership interests of such new
Subsidiary shall be duly and validly pledged to Administrative Agent for the
benefit of Agents and Lenders pursuant to the Collateral Documents, subject to
no other Liens.
SECTION 7.
NEGATIVE COVENANTS
Each of Holdings and Company covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, Holdings and Company, as applicable, shall perform, and shall cause
each of its Subsidiaries to perform, all covenants in this Section 7.
7.1 Indebtedness.
Holdings and Company shall not, and shall not permit any of their respective
Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Company may become and remain liable with respect to the Obligations;
(ii) Holdings and its Subsidiaries may become and remain liable with respect
to Contingent Obligations permitted by subsection 7.4 and, upon any
matured obligations actually arising pursuant thereto, the Indebtedness
corresponding to the Contingent Obligations so extinguished (other than
any such Indebtedness corresponding to extinguished Contingent
Obligations permitted under subsections 7.4(i)(b) and (c));
(iii) Company and its Subsidiaries may become and remain liable with respect
to Indebtedness (a) under Capital Leases capitalized on the
consolidated balance sheet of Company as liabilities, (b) in respect
of sale and lease-back transactions expressly permitted under
subsection 7.8 and (c) secured by Liens permitted under subsection
7.2A(iii); provided that the aggregate amount of Indebtedness
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permitted under this clause (iii) shall not exceed $10,000,000 at any
time outstanding;
(iv) Company may become and remain liable with respect to Indebtedness to any
of its domestic Wholly Owned Subsidiaries, and any domestic Wholly Owned
Subsidiary of Company may become and remain liable with respect to
Indebtedness to Company or any other domestic Wholly Owned Subsidiary of
Company, provided that (a) all such intercompany Indebtedness shall be
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evidenced by promissory notes, (b) all such intercompany Indebtedness
owed by Company to any of its respective Subsidiaries shall be
subordinated in right of payment to the payment in full of the
Obligations pursuant to the terms of the applicable promissory notes or
an intercompany subordination agreement, in each case in form and
substance satisfactory to Administrative Agent, and (c) any payment by
Company or by any Subsidiary of Company under any guaranty of the
Obligations shall result in a pro tanto reduction of the amount of any
--- -----
intercompany Indebtedness owed by Company or by such Subsidiary to
Company or to any of its Subsidiaries for whose benefit such payment is
made;
(v) Company may become and remain liable with respect to Indebtedness under
the Subordinated Note Documents;
(vi) Company may become and remain liable with respect to Indebtedness the
proceeds of which are applied to refinance all or a portion of the Term
Loans, the Revolving Loans and the Subordinated Notes; provided, that
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such Indebtedness shall be subordinated in right of payment to the
Obligations pursuant to documentation containing maturities,
amortization schedules, covenants, defaults, remedies, subordination
provisions and other material terms which taken as a whole are no less
favorable to Company, its Subsidiaries and Lenders than the
corresponding terms of the Subordinated Note Documents, with interest
payable thereon in amounts consistent with the then prevailing rate in
the market for comparable debt Securities;
(vii) Company may become and remain liable with respect to Permitted Seller
Notes; provided that the aggregate principal amount of such Permitted
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Seller Notes issued after the Closing Date shall not exceed $10,000,000;
and
(viii) Holdings may become and remain liable with respect to Indebtedness to
Company in respect of advances permitted under subsection 7.3(vi);
provided that (a) the aggregate principal amount of such Indebtedness
--------
shall not exceed the amount of such advances, (b) all such Indebtedness
shall be evidenced by promissory notes, and (c) any payment by Holdings
under the Holdings Guaranty or any other guaranty of the Obligations
shall result in a pro tanto reduction of the amount of such Indebtedness
--- -----
owed by Holdings to Company; and
(ix) Company and its Subsidiaries may become and remain liable with respect
to other Indebtedness in an aggregate principal amount not to exceed at
any time outstanding $15,000,000.
7.2 Liens and Related Matters.
A. Prohibition on Liens. Holdings and Company shall not, and shall not permit
any of their respective Subsidiaries to, directly or indirectly, create, incur,
assume or permit to exist any Lien on or with respect to any property or asset
of any kind (including any document or instrument in respect of goods or
accounts receivable) of Holdings or any of its Subsidiaries, whether now owned
or hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing
statement, or other similar notice of any Lien with respect to any such
property, asset, income or profits under the Uniform Commercial Code of any
state or under any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens securing Indebtedness permitted by subsection 7.1(iii)(c) incurred
(a) to finance the acquisition, construction or improvement of any
tangible personal property assets, provided that (1) such Liens shall be
--------
created within 180 days after the acquisition, construction or
improvement of such assets, and (2) the principal amount of Indebtedness
secured by any such Liens shall at no time exceed 100%, and the proceeds
of such Indebtedness shall be used to provide not less than 80%, of the
original purchase price of such asset or the amount expended to
construct or improve such asset, as the case may be; or (b) to renew,
extend or refinance any Indebtedness described in clause (a), provided
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that the amount of any such Indebtedness does not exceed the amount of
Indebtedness so renewed, extended or refinanced which is unpaid and
outstanding immediately prior to such renewal, extension or refinancing;
provided that in the case of clause (a) or (b) such Liens attach solely
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the assets financed with such Indebtedness;
(iv) Liens on any asset securing Indebtedness permitted by Section
7.l(iii)(b); provided that (a) the proceeds of such Indebtedness shall
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be at least equal to 80% of the fair market value (as determined in good
faith by the Board of Directors, or any duly authorized committee
thereof, of Company) of such asset and (b) at the time of incurrence of
such Indebtedness, no Event of Default shall have occurred and be
continuing or would result therefrom;
(v) Liens on assets held under Capital Leases permitted under subsection 7.1
(iii)(a); and
(vi) Other Liens on assets of Company and its Subsidiaries securing
Indebtedness in an aggregate amount not to exceed $2,500,000 at any time
outstanding.
B. Equitable Lien in Favor of Lenders. If Company or any of its Subsidiaries
shall create or assume any consensual Lien upon any of its properties or assets,
whether now owned or hereafter acquired, other than Liens excepted by the
provisions of subsection 7.2A, it shall make or cause to be made effective
provision whereby the Obligations will be secured by such Lien equally and
ratably with any and all other Indebtedness secured thereby as long as any such
Indebtedness shall be so secured; provided that, notwithstanding the foregoing,
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this covenant shall not be construed as a consent by Requisite Lenders to the
creation or assumption of any such Lien not permitted by the provisions of
subsection 7.2A.
C. No Further Negative Pledges. Except with respect to specific property
encumbered to secure payment of particular Indebtedness or to be sold pursuant
to an executed agreement with respect to an Asset Sale, neither Company nor any
of its Subsidiaries shall enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired.
D. No Restrictions on Subsidiary Distributions to Company or Other
Subsidiaries. Except as provided herein Company will not, and will not permit
any of its Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any such Subsidiary to (i) pay dividends or make any other
distributions on any of such Subsidiary's capital stock owned by Company or any
other Subsidiary of Company, (ii) repay or prepay any Indebtedness owed by such
Subsidiary to Company or any other Subsidiary of Company, (iii) make loans or
advances to Company or any other Subsidiary of Company, or (iv) transfer any of
its property or assets to Company or any other Subsidiary of Company.
7.3 Investments; Joint Ventures.
Holdings and Company shall not, and shall not permit any of their respective
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, except:
(i) Company and its Subsidiaries may make and own Investments in Cash
Equivalents;
(ii) Holdings may continue to own the Investments owned by it as of the
Effective Date (after giving effect to the Xxxxxx Xxxxx Acquisition) in
Company;
(iii) Company and its Subsidiaries may make intercompany loans to the extent
permitted under subsection 7.1(iv);
(iv) Company and its Subsidiaries may make Consolidated Capital Expenditures
permitted by subsection 7.6D;
(v) Company and its Subsidiaries may make and own Investments in connection
with a Permitted Acquisition;
(vi) Company may make advances to Holdings, in lieu of the payment of cash
dividends, to enable Holdings to make the payments contemplated by
subsections 7.5(v)(a) and (b);
(vii) Company may make loans and advances to employees and directors of
Holdings or Company to purchase limited liability interests of MBW LLC,
provided that the aggregate amount of such loans and advances shall not
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exceed $1,500,000 at any time outstanding; and
(viii) Company and its Subsidiaries may make and own other Investments in an
aggregate amount not to exceed at any time $7,500,000.
7.4 Contingent Obligations.
Holdings and Company shall not, and shall not permit any of their respective
Subsidiaries to, directly or indirectly, create or become or remain liable with
respect to any Contingent Obligation, except:
(i) Holdings and Subsidiaries of Company may become and remain liable with
respect to Contingent Obligations arising under (a) their respective
Guaranties and (b) guarantees of Indebtedness under the Subordinated
Note Documents or permitted under subsection 7.l(vi);
(ii) Company may become and remain liable with respect to Contingent
Obligations in respect of Letters of Credit;
(iii) Company may become and remain liable with respect to Contingent
Obligations under Interest Rate Agreements entered into with Lenders or
Affiliates of Lenders with respect to which the aggregate net amount
which Company would be liable to pay to counterparties thereunder in the
event all such Interest Rate Agreements were terminated at the time of
determination shall not exceed $2,500,000 at any time;
(iv) Company and its Subsidiaries may become and remain liable with respect
to Contingent Obligations in respect of customary indemnification and
purchase price adjustment obligations incurred in the ordinary course of
business in connection with Asset Sales or other sales of assets;
(v) Company and its Subsidiaries may become and remain liable with respect
to Contingent Obligations under guarantees in the ordinary course of
business of the obligations of suppliers, landlords, customers,
franchisees and licensees of Company and its Subsidiaries in an
aggregate amount not to exceed at any time $500,000;
(vi) Company and its Subsidiaries may become and remain liable with respect
to Contingent Obligations under food product futures arrangements
consistent with past practices of the Business, the Log Cabin Business
and the Xxxxxx Xxxxx Business and of any business acquired under
subsection 7.7(vii) for the supply of food products used in the business
of Company and its Subsidiaries; and
(vii) Company and its Subsidiaries may become and remain liable with respect
to other Contingent Obligations; provided that the maximum aggregate
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liability, contingent or otherwise, of Company and its Subsidiaries in
respect of all such Contingent Obligations shall at no time exceed
$500,000.
7.5 Restricted Junior Payments.
Holdings and Company shall not, and shall not permit any of their respective
Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart
any sum for any Restricted Junior Payment; provided that (i) Company may make
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scheduled interest payments in respect of the Subordinated Notes in accordance
with the terms thereof and of the Subordinated Note Indentures; provided that to
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the extent the Subordinated Note Indentures permit Company to pay interest
thereon or liquidated damages in like-kind instruments in a principal amount
equal to the amount of such interest or liquidated damages, Company shall pay
such interest or liquidated damages in such like-kind instruments; (ii) Company
and/or Holdings, as applicable, may make Restricted Junior Payments to the
extent necessary to redeem or defease all or any portion of the Indebtedness
under the Subordinated Note Documents with proceeds from Indebtedness permitted
under subsection 7.1(vi) and/or an initial public offering of Holdings Common
Stock (provided, that in the case of an initial public offering of Holdings
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Common Stock, at least 50% of the Equity Proceeds from such initial public
offering shall be applied to prepay the Loans and/or reduce the Revolving Credit
Commitments, except that if the Senior Leverage Ratio is less than 3.25:1.00
after giving effect to such initial public offering and the anticipated
prepayment of the Loans, then less than 50% of such Equity Proceeds may be
applied to prepay the Loans; provided further, however, that in any event at
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least $25,000,000 of such Equity Proceeds shall be applied to prepay the Loans
and/or reduce the Revolving Credit Commitments and not more than $70,000,000 of
such Equity Proceeds shall be applied to repay or prepay Subordinated
Indebtedness); (iii) Company may make scheduled interest payments in respect of
Permitted Seller Notes permitted under subsection 7.1(vii) in accordance with
the terms of such Permitted Seller Notes; (iv) Company may make regularly
scheduled payments of interest in respect of any Subordinated Indebtedness in
accordance with the terms of, and only to the extent required by, and subject to
the subordination provisions contained in, the indenture or other agreement
pursuant to which such Subordinated Indebtedness was issued, as such indenture
or other agreement may be amended from time to time to the extent permitted
under subsection 7.12B; provided, that to the extent the terms of such
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Subordinated Indebtedness permit Company to pay interest or liquidated damages
on such Subordinated Indebtedness in like-kind instruments in a principal amount
equal to the amount of such interest or liquidated damages, Company shall pay
such interest or liquidated damages with such like-kind instruments; (v) Company
may make Restricted Junior Payments to Holdings (a) in an aggregate amount not
to exceed $500,000 in any Fiscal Year, to the extent necessary to permit MBW LLC
and Holdings to pay general administrative costs and expenses, (b) to the extent
necessary to permit Holdings to discharge the consolidated tax liabilities of
Holdings and its Subsidiaries, and (c) to the extent necessary to permit
Holdings or MBW LLC to pay transaction fees to the MDC Entities and/or Dartford
and/or Fenway in connection with acquisitions made after the Closing Date in
accordance with the terms of the MDC Advisory Services Agreement, the Dartford
Management Agreement and the Fenway Agreement, in each case so long as Holdings
or MBW LLC applies the amount of any such Restricted Junior Payments for such
purposes; (vi) so long as no Event of Default or Potential Event of Default
shall have occurred and be continuing or shall be caused thereby, Company and
Holdings may make Restricted Junior Payments in an aggregate amount not to
exceed
$2,000,000 to permit MBW LLC to repurchase limited liability interests in MBW
LLC or Holdings to repurchase Holdings Common Stock from officers, directors or
employees of MBW LLC or any of its Subsidiaries or from Dartford following
termination of employment of any such officer, director or employee by reason of
death, disability, retirement or resignation or following other events
customarily requiring or permitting such repurchase, in each case so long as MBW
LLC or Holdings, as applicable, applies the amount of any such Restricted Junior
Payment for such purpose; and (vii) so long as (x) no Event of Default or
Potential Event of Default shall have occurred and be continuing or shall be
caused thereby, (y) Company shall be in compliance, on a pro forma basis giving
effect thereto, with the covenants set forth in subsection 7.6 hereof and (z)
the Leverage Ratio (calculated on a pro forma basis giving effect thereto) shall
not be greater than 3.50:1.00 (and Company shall have delivered to
Administrative Agent an Officer's Certificate (together with supporting
information therefor), in form and substance reasonably satisfactory to
Administrative Agent, certifying to the effect of clauses (y) and (z)), Company
and Holdings may make Restricted Junior Payments to the extent necessary to
permit MBW LLC to repurchase limited partnership interests from Dartford upon
Dartford's exercise of the Company Repurchase Option (as such term is defined in
the MBW LLC Agreement) as such option is in effect as of the Closing Date, in
each case so long as MBW LLC applies the amount of such Restricted Junior
Payments for such purposes.
7.6 Financial Covenants.
A. Minimum Consolidated Cash Interest Coverage Ratio. Holdings and Company
shall not permit the Consolidated Cash Interest Coverage Ratio for any four-
Fiscal Quarter period ending during any of the test periods set forth in the
table below to be less than the correlative ratio for such test period set forth
in the table below:
MINIMUM CONSOLIDATED
CASH INTEREST COVERAGE
TEST PERIOD RATIO
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6/30/98 - 12/31/98 1.55:1.00
1/01/99 - 12/31/99 1.75:1.00
1/01/00 - 12/31/00 2.00:1.00
1/01/01 - 12/31/01 2.25:1.00
1/01/02 - 12/31/02 2.50:1.00
1/01/03 - 12/31/03 2.50:1.00
1/01/04 - 12/31/04 2.50:1.00
1/01/05 - 12/31/05 2.50:1.00
1/01/06 - 7/16/06 2.50:1.00
B. Maximum Leverage Ratio. Holdings and Company shall not permit the ratio of
(i) the excess of (a) Consolidated Total Debt as of the last day of any Fiscal
Quarter ending during any of the test periods set forth in the table below minus
(b) cash on hand of Company to the extent the amount of such cash exceeds
$3,500,000 as of such date, to (ii) Consolidated EBITDA for the four-Fiscal
Quarter period ending on such date to exceed the correlative ratio for such test
period set forth in the table below:
MAXIMUM
TEST PERIOD LEVERAGE RATIO
6/30/98 - 12/31/98 6.00:1.00
1/01/99 - 12/31/99 5.50:1.00
1/01/00 - 12/31/00 5.00:1.00
1/01/01 - 12/31/01 4.50:1.00
1/01/02 - 12/31/02 4.00:1.00
1/01/03 - 12/31/03 4.00:1.00
1/01/04 - 12/31/04 4.00:1.00
1/01/05 - 12/31/05 4.00:1.00
1/01/06 - 7/16/06 4.00:1.00
C. Minimum Fixed Charge Coverage Ratio. Holdings and Company shall not permit
the ratio of (i) Consolidated EBITDA for any four-Fiscal Quarter period ending
during any of the test periods set forth in the table below to (ii) Consolidated
Fixed Charges for such four-Fiscal Quarter period to be less than the
correlative ratio for such test period set forth in the table below:
MINIMUM FIXED CHARGE
TEST PERIOD COVERAGE RATIO
6/30/98 - 12/31/98 1.15:1.00
1/01/99 - 12/31/99 1.25:1.00
1/01/00 - 12/31/00 1.35:1.00
1/01/01 - 12/31/01 1.55:1.00
1/01/02 - 12/31/02 1.65:1.00
1/01/03 - 12/31/03 1.65:1.00
1/01/04 - 12/31/04 1.65:1.00
1/01/05 - 12/31/05 1.65:1.00
1/01/06 - 7/16/06 1.65:1.00
D. Maximum Consolidated Capital Expenditures. Holdings and Company shall not,
and shall not permit any of their respective Subsidiaries to, make or incur
Consolidated Capital Expenditures, in any Fiscal Year indicated below, in an
aggregate amount in excess of the corresponding amount (the "Maximum
Consolidated Capital Expenditures Amount") set forth below opposite such Fiscal
Year; provided that the Maximum Consolidated Capital Expenditures Amount for any
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Fiscal Year shall be increased by an amount equal to the excess, if any (but in
no event more than 50% of the Maximum Consolidated Capital Expenditures Amount
for the previous Fiscal Year), of the Maximum Consolidated Capital Expenditures
Amount for the previous Fiscal Year over the actual amount of Consolidated
Capital Expenditures for such previous Fiscal Year:
MAXIMUM CONSOLIDATED
FISCAL YEAR CAPITAL EXPENDITURES
(OR PORTION THEREOF) AMOUNT
Fiscal Year ending in December 1998 $7,500,000
and each Fiscal Year thereafter
; provided, however, that for purposes of this subsection 7.6D, Consolidated
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Capital Expenditures shall not include (i) expenditures not exceeding $6,000,000
in the aggregate incurred on or prior to September 30, 1998 related to the
Business and the Log Cabin Business (a) to relocate Company's assets, (b) to
purchase computers and computer-related equipment and (c) to pay transition
related expenses in connection with the foregoing and (ii) expenditures not
exceeding $15,000,000 in the aggregate incurred on or prior to June 30, 1999 to
relocate the Company's assets related to the Xxxxxx Xxxxx Business and
transition related expenses in connection therewith.
E. Certain Calculations.
(i) With respect to calculations of Consolidated Fixed Charges, Consolidated
EBITDA and Consolidated Cash Interest Expense for any four-Fiscal Quarter
period including the Effective Date (each such period being a "Pro Forma
Calculation Period"), such calculations shall be made on a pro forma basis
assuming, in each case, (a) that the Effective Date, the acquisitions and
the related borrowings by Company pursuant to this Agreement occurred on
the first day of the applicable Pro Forma Calculation Period; (b) that
Consolidated EBITDA and Consolidated Capital Expenditures for the two
applicable Fiscal Quarters ending prior to the Effective Date are as set
forth on Schedule 7.6E annexed hereto; and (c) that, with respect to
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calculations of Consolidated Cash Interest Expense and each component of
Consolidated Fixed Charges other than Consolidated Capital Expenditures
(Consolidated Cash Interest Expense and each such component being,
individually, a "Fixed Charge Component"), the amount of each such Fixed
Charge Component for the Pro Forma Calculation Period ending in June 1998
shall equal the product of (i)(x) the amount of such Fixed Charge Component
for the Fiscal Quarter ending in June 1998 plus (y)(l) the Fixed Charged
Component for the Fiscal Quarter ending in March 1998 for the Business and
the Log Cabin Business plus (2) the Fixed Charge Component for the Xxxxxx
----
Xxxxx Business for the period from the Effective Date to March 31, 1998
(multiplied by the product of ninety (90) divided by the number of days
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from the Effective Date to March 31, 1998) multiplied by (ii) 2.
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(ii) With respect to any period during which new Subsidiaries, assets or
businesses are acquired pursuant to subsection 7.7(vii), for purposes of
determining compliance with the financial covenants set forth in this
subsection 7.6, Consolidated EBITDA and Consolidated Interest Expense shall
be calculated with respect to such periods and such Subsidiaries, assets or
businesses on a pro forma basis (including (x) any adjustments certified by
the chief financial officer of the Company, that would, in the reasonable
determination of the Company satisfy the requirements of Rule 11-02(a) of
Regulation S-X of the Securities Act as if included in a registration
statement filed with the Securities and Exchange Commission and (y)) any
other operating expense reductions reasonably expected to result from any
acquisition of stock or assets if such expected reductions are (1) set
forth in reasonable detail in a plan approved by and set forth in
resolutions adopted by the Board of Directors of the Company, and (2)
limited to operating expenses specified in such plan (and, if any
reductions are set forth in a range, the lowest amount of such range) that
would otherwise have resulted in the payment of cash within twelve months
after the date of consummation of such transaction, net of any operating
expenses (other than extraordinary items, non-recurring or temporary
charges and other similar one-time expenses) reasonably expected to be
incurred to implement such plan, and that are to be paid in cash during
such twelve-month period, certified by the chief financial officer of the
Company) using the historical financial statements of all entities or
assets so acquired or to be acquired and the consolidated financial
statements of Company and its Subsidiaries which shall be reformulated (i)
as if such acquisition, and any acquisitions which have been consummated
during such period, and any Indebtedness or other liabilities incurred in
connection with any such acquisition had been consummated or incurred at
the beginning
of such period (and assuming that such Indebtedness bears interest
during any portion of the applicable measurement period prior to the
relevant acquisition at the weighted average of the interest rates
applicable to outstanding Loans during such period), and (a) otherwise
in conformity with certain procedures to be agreed upon between
Administrative Agent and Company, all such calculations to be in form
and substance satisfactory to Administrative Agent.
7.7 Restriction on Fundamental Changes; Asset Sales.
Holdings and Company shall not, and shall not permit any of their respective
Subsidiaries to, alter the corporate, capital or legal structure of Holdings or
any of its Subsidiaries, create any new Subsidiaries or enter into any
transaction of merger or consolidation, or liquidate, wind-up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease, sub-lease,
transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any substantial part of its business, property or fixed
assets, whether now owned or hereafter acquired, or acquire by purchase or
otherwise any part of the business, property or fixed assets of, or stock or
other evidence of beneficial ownership of, any Person, except:
(i) Company may make the Xxxxxx Xxxxx Acquisition on the Effective Date;
(ii) any Subsidiary of Company may be merged with or into Company or any
wholly owned Subsidiary Guarantor, or be liquidated, wound up or
dissolved, or all or any substantial part of its business, property or
assets may be conveyed, sold, leased, transferred or otherwise disposed
of, in one transaction or a series of transactions, to Company or any
wholly owned Subsidiary Guarantor; provided that, in the case of such a
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merger, Company or such wholly owned Subsidiary Guarantor shall be the
continuing or surviving corporation;
(iii) Company and its Subsidiaries may make Consolidated Capital Expenditures
permitted under subsection 7.6D;
(iv) Company and its Subsidiaries may acquire inventory, equipment and other
assets in the ordinary course of business;
(v) Company and its Subsidiaries may sell or otherwise dispose of assets in
transactions that do not constitute Asset Sales; provided that the
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consideration received for such assets shall be in an amount at least
equal to the fair market value thereof (determined in good faith by the
board of directors of Company);
(vi) Company and its Subsidiaries may make any Asset Sale of assets that
have, in the aggregate, a fair market value (determined in good faith by
the board of directors of Company) not in excess of 10% of Consolidated
EBITDA for the four-Fiscal Quarter period most recently ended prior to
such Asset Sale; provided that
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(x) the consideration received for such assets shall be in an amount at
least equal to the fair market value thereof (determined in good faith
by the board of directors of Company); (y) not less than 80% of the
consideration received shall be cash; and (z) the proceeds of such Asset
Sales shall be applied as required by subsection 2.4B(iii)(a); and
(vii) Company or any Subsidiary of Company may make acquisitions of assets and
businesses (including acquisitions of the capital stock or other equity
interests of another Person), provided that:
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(a) immediately prior to and after giving effect to any such acquisition,
Company and its Subsidiaries shall be in compliance with the provisions of
subsection 7.11 hereof;
(b) after giving effect to any such acquisition, the sum of (x) the amount of
cash on hand of Company plus (y) the amount by which the Revolving Loan
----
Commitments exceed the Total Utilization of Revolving Loan Commitments,
shall equal or exceed $25,000,000 in the first 12 months after the
Effective Date and $15,000,000 thereafter;
(c) (1) Company shall be in compliance, on a pro forma basis giving effect to
the proposed acquisition, with the covenants set forth in subsection 7.6
hereof, (2) if any such acquisition is made prior to January 16, 1999, the
Leverage Ratio (calculated on a pro forma basis giving effect to the
proposed acquisition) shall not be greater than the ratio set forth in
subsection 7.6B applicable at the time of such acquisition minus 0.25, (3)
the Senior Leverage Ratio (calculated on a pro forma basis giving effect to
the proposed acquisition) shall be less than 3.75:1.00 in Fiscal Years 1998
and 1999, 3.50:1.00 in Fiscal Years 2000 and 2001, and 3.25:1.00 thereafter
and (4) no Event of Default or Potential Event of Default shall have
occurred and be continuing at the time of such acquisition or shall be
caused thereby; and Company shall have delivered to Administrative Agent an
Officer's Certificate (together with supporting information therefor), in
form and substance reasonably satisfactory to Administrative Agent,
certifying as to the foregoing and as to the matters referred to in
subsections 7.7(vii)(a) and (b) above;
(d) any assets acquired pursuant to such acquisition shall be subject to a
First Priority Lien in favor of the Administrative Agent on behalf of
Lenders pursuant to the Collateral Documents; and
(e) each such acquisition shall be made on a fully consensual basis between
Company and its Subsidiaries, on the one hand, and the seller or sellers of
such assets or such business, on the other hand.
7.8 Sales and Lease-Backs.
Holdings and Company shall not, and shall not permit any of their respective
Subsidiaries to, directly or indirectly, become or remain liable as lessee or as
a guarantor or other surety with respect to any lease, whether an Operating
Lease or a Capital Lease, of any property (whether real, personal or mixed),
whether now owned or hereafter acquired, (i) which Company or any of its
Subsidiaries has sold or transferred or is to sell or transfer to any other
Person (other than Company or any of its Subsidiaries) or (a) which Company or
any of its Subsidiaries intends to use for substantially the same purpose as any
other property which has been or is to be sold or transferred by Company or any
of its Subsidiaries to any Person (other than Company or any of its
Subsidiaries) in connection with such lease, except that Company and its
Subsidiaries may enter into such sale and lease-back transactions so long as the
aggregate sales price under all such transactions in any Fiscal Year does not
exceed $5,000,000.
7.9 Transactions with Shareholders and Affiliates.
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with any holder of 5% or more of any class of equity
Securities of Company or with any Affiliate of Company or of any such holder, on
terms that are less favorable to Company or that Subsidiary, as the case may be,
than those that might be obtained at the time from Persons who are not such a
holder or Affiliate; provided that the foregoing restriction shall not apply to
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(i) any transaction between Company and any of its Wholly Owned Subsidiaries or
between any of its Wholly Owned Subsidiaries, (ii) reasonable and customary fees
paid to members of the boards of directors of Holdings and its Subsidiaries,
(iii) any payment from Company to Holdings expressly permitted under subsection
7.5, (iv) fees, expenses and other amounts payable to the MDC Entities, Fenway
and Dartford on the Effective Date, (v) the Management Fees, (vi) any employment
agreement entered into by Holdings or any of its Subsidiaries in the ordinary
course of business, and (vii) any issuance of capital stock of Holdings in
connection with employment arrangements, stock options and stock ownership plans
of Holdings or any of its Subsidiaries entered into in the ordinary course of
business.
7.10 Disposal of Subsidiary Stock.
Company shall not:
(i) directly or indirectly sell, assign, pledge or otherwise encumber or
dispose of any shares of capital stock or other equity Securities of any of
its Subsidiaries, except as permitted under this Agreement or the
Collateral Documents or to qualify directors if required by applicable law;
or
(ii) permit any of its Subsidiaries directly or indirectly to sell, assign,
pledge or otherwise encumber or dispose of any shares of capital stock or
other equity Securities of any of its Subsidiaries (including such
Subsidiary), except as permitted
under this Agreement or the Collateral Documents or to Company, another
Wholly Owned Subsidiary of Company, or to qualify directors if required by
applicable law.
7.11 Conduct of Business.
Company shall not, and shall not permit any of its Subsidiaries to, engage in
any business other than (i) the businesses engaged in by Company and its
Subsidiaries on the Effective Date (after giving effect to the Xxxxxx Xxxxx
Acquisition) and those food businesses which are reasonably related to such
businesses, and (ii) such other lines of business as may be consented to by
Administrative Agent and Requisite Lenders.
7.12 Amendments or Waivers of Certain Related Agreements; Amendments of
Documents Relating to Subordinated Indebtedness; Designation of
"Designated Senior Indebtedness"; Preferred Stock.
A. Amendments or Waivers of Certain Related Agreements. Neither Holdings nor
any of its Subsidiaries will agree to any material amendment to, or waive any of
its material rights under, any of the Acquisition Agreement, the Log Cabin
Acquisition Agreement, the Xxxxxx Xxxxx Acquisition Agreement, the Assumption
Agreement, the Log Cabin Assumption Agreement, the Xxxxxx Xxxxx Assumption
Agreement, the MDC Advisory Services Agreement, the Dartford Management
Agreement, the Fenway Agreement, the Transition Agreements, the Log Cabin
Transition Agreements, the Xxxxxx Xxxxx Transition Agreements or the Red Wing
Co-Pack Agreements after the Effective Date if such amendment or waiver would be
adverse to Lenders without in each case obtaining the prior written consent of
Requisite Lenders to such amendment or waiver.
B. Amendments of Documents Relating to Subordinated Indebtedness. Company shall
not, and shall not permit any of its Subsidiaries to, amend or otherwise change
the terms of any Subordinated Indebtedness, or make any payment consistent with
an amendment thereof or change thereto, if the effect of such amendment or
change is to increase the interest rate on such Subordinated Indebtedness,
change (to earlier dates) any dates upon which payments of principal or interest
are due thereon, change any event of default or condition to an event of default
with respect thereto (other than to eliminate any such event of default or
increase any grace period related thereto), change the redemption, prepayment or
defeasance provisions thereof, change the subordination provisions thereof (or
of any guaranty thereof), or change any collateral therefor (other than to
release such collateral), or if the effect of such amendment or change, together
with all other amendments or changes made, is to increase materially the
obligations of the obliger thereunder or to confer any additional rights on the
holders of such Subordinated Indebtedness (or trustee or other representative on
their behalf) which would be adverse to Company or Lenders.
C. Designation of "Designated Senior Indebtedness". Company shall not designate
any Indebtedness as "Designated Senior Indebtedness" (as defined in the
Subordinated Note Indentures) for purposes of the Subordinated Note Indentures,
without the prior written consent of Requisite Lenders.
D. Preferred Stock. Without the prior written approval of Requisite Lenders,
neither Holdings nor Company shall amend, restate, supplement or otherwise
modify its Certificate of Incorporation if the effect of such amendment,
restatement, supplement or modification is to provide for the issuance of any
preferred stock of Company or of Holdings or the filing or amendment of any
certificate of designation with respect thereto.
7.13 Fiscal Year.
Holdings and Company shall not change their Fiscal Year-end from the last
Saturday of December.
SECTION 8.
EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default") shall occur:
8.l Failure to Make Payments When Due.
Failure by Company 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 Company to pay when due any amount payable to an Issuing
Lender in reimbursement of any drawing honored or payment made under a Letter of
Credit; or failure by Company to pay any interest on any Loan or any fee or any
other amount due under this Agreement within five days after the date due; or
8.2 Default in Other Agreements.
(i) Failure of Company or any of its Subsidiaries to pay when due (a) any
principal of or interest on any Indebtedness (other than Indebtedness
referred to in subsection 8.1) in an individual principal amount of
$1,000,000 or more or any items of Indebtedness with an aggregate principal
amount of $2,000,000 or more or (b) any Contingent Obligation in an
individual principal amount of $1,000,000 or more or any Contingent
Obligations with an aggregate principal amount of $2,000,000 or more, in
each case beyond the end of any grace period provided therefor; or (ii)
breach or default by Company or any of its Subsidiaries with respect to any
other material term of (a) any evidence of any Indebtedness in an
individual principal amount of $1,000,000 or more or any items of
Indebtedness with an aggregate principal amount of $2,000,000 or more or
any Contingent Obligation in an individual principal amount of $1,000,000
or more or any Contingent Obligations with an aggregate principal amount of
$2,000,000 or more or (b) any loan agreement, mortgage, indenture or other
agreement relating to such Indebtedness or Contingent Obligation(s), if in
any case under this clause (ii) the effect of such breach or default is to
cause, or to permit the holder or holders of that Indebtedness or
Contingent Obligation(s) (or a trustee on behalf of
such holder or holders) to cause, that Indebtedness or Contingent
Obligation(s) 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 (upon the giving or receiving of notice, lapse of time, both, or
otherwise); or
8.3 Breach of Certain Covenants.
Failure of Holdings or Company to perform or comply with any term or condition
contained in subsection 2.4, 2.5 or 6.2 or Section 7 of this Agreement; or
8.4 Breach of Warranty.
Any material representation, warranty, certification or other statement made by
MBW LLC or Holdings or any of its Subsidiaries in any Loan Document or in any
statement or certificate at any time given by MBW LLC or Holdings or any of its
Subsidiaries 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
8.5 Other Defaults Under Loan Documents.
Any Loan Party shall default in the performance of or compliance with any term
contained in this Agreement or any of the other Loan Documents, other than any
such term referred to in any other subsection of this Section 8, and such
default shall not have been remedied or waived within 30 days after the earlier
of (i) an officer of Company becoming aware of such default or (ii) receipt by
Company of notice from any Agent or Lender of such default; or
8.6 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 MBW LLC, Holdings or Company or any of its
Subsidiaries (other than Immaterial 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 order
is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be
commenced against MBW LLC, Holdings or Company or any of its Subsidiaries
(other than Immaterial 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 MBW LLC, Holdings or
Company or any of its Subsidiaries (other than Immaterial Subsidiaries), or
over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim
receiver, trustee or other custodian of MBW LLC, Holdings or Company or any
of its Subsidiaries (other than Immaterial Subsidiaries) for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of
the property of MBW LLC, Holdings or Company or any of its Subsidiaries
(other than Immaterial Subsidiaries), and any such event described in this
clause (ii) shall continue for 60 days unless dismissed, bonded or
discharged; or
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
(i) MBW LLC, Holdings or Company or any of its Subsidiaries (other than
Immaterial 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 shall consent to the appointment of
or taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or MBW LLC, Holdings or Company or any of
its Subsidiaries (other than Immaterial Subsidiaries) shall make any
assignment for the benefit of creditors; or (ii) MBW LLC, Holdings or
Company or any of its Subsidiaries (other than Immaterial Subsidiaries)
shall be unable, or shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due; or the Board of
Directors of MBW LLC, Holdings or Company or any of its Subsidiaries (other
than Immaterial 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); or
8.8 Judgments and Attachments.
Any money judgment, writ or warrant of attachment or similar process involving
(i) in any individual case an amount in excess of $1,000,000 or (ii) in the
aggregate at any time an amount in excess of $2,000,000 (in either case not
adequately covered by insurance as to which a solvent and unaffiliated insurance
company has acknowledged coverage) shall be entered or filed against Holdings or
Company or any of its Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of 60 days (or
in any event later than five days prior to the date of any proposed sale
thereunder); or
8.9 Dissolution.
Any order, judgment or decree shall be entered against Holdings or Company or
any of its Subsidiaries decreeing the dissolution or split up of Holdings or
Company or that Subsidiary and such order shall remain undischarged or unstayed
for a period in excess of 30 days; or
8.10 Employee Benefit Plans.
There shall occur one or more ERISA Events which individually or in the
aggregate results in a Material Adverse Effect; or there shall exist an Unfunded
Current Liability, individually or in the aggregate for all Pension Plans
(excluding for purposes of
such computation any Pension Plans with respect to which there is no Unfunded
Current Liability), which would have a Material Adverse Effect; or
8.11 Change in Control.
(i) Prior to the consummation of any initial public offering of Holdings Common
Stock, MBW LLC shall cease to own directly 100% of the outstanding capital
stock of Holdings (other than Holdings Common Stock issued to employees or
directors of Holdings and its Subsidiaries pursuant to any employee stock
option or stock purchase plan or other employee benefit plan); or (ii)
Holdings shall at any time cease to own directly 100% of the outstanding
capital stock of Company; or (iii) prior to the consummation of any initial
public offering of Holdings Common Stock, (a) the MDC Entities, Dartford
and Fenway shall at any time not own, in the aggregate, at least 51% of the
combined voting power of Company's voting Securities; or (b) any Person
(other than the MDC Entities, Dartford and Fenway), including a "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act)
which includes such Person, shall purchase or otherwise acquire, directly
or indirectly, beneficial ownership of Securities of Company and, as a
result of such purchase or acquisition, any Person (together with its
associates and Affiliates), shall directly or indirectly beneficially own
in the aggregate Securities representing more than 30% of the combined
voting power of Company voting Securities; or (iv) at any time after the
consummation of any initial public offering of Holdings Common Stock, (a)
the MDC Entities, Dartford and Fenway together shall own, directly or
indirectly, in the aggregate, a lesser percentage of the combined voting
power of Company voting Securities than any other holder, including a
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange
Act) which includes such holder, of such voting Securities; (b) a majority
of the members of the Board of Directors of Company shall not be Continuing
Directors; or (c) any Person (other than the MDC Entities, Dartford and
Fenway), including a "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act) which includes such Person, shall purchase or
otherwise acquire, directly or indirectly, beneficial ownership of
Securities of Company and, as a result of such purchase or acquisition, any
Person (together with its associates and Affiliates), shall directly or
indirectly beneficially own in the aggregate Securities representing more
than 25% of the combined voting power of Company voting Securities; or
8.12 Invalidity of Guaranties.
At any time after the execution and delivery thereof, any Guaranty of the
Obligations of Company, for any reason other than the satisfaction in full of
all Obligations, ceases to be in hill force and effect or is declared to be null
and void (except with respect to the obligations thereunder of Immaterial
Subsidiaries of Company) or any Loan Party (other than Immaterial Subsidiaries
of Company) denies in writing that it has any further liability, including,
without limitation, with respect to future advances by Lenders, under any Loan
Document to which it is a party; or
8.13 Failure of Security
Any Collateral Document shall, at any time, cease to be in full force and effect
(other than by reason of a release of Collateral thereunder in accordance with
the terms hereof or thereof, the satisfaction in full of the Obligations or any
other termination of such Collateral Document in accordance with the terms
hereof or thereof) or shall be declared null and void; or the validity or
enforceability thereof shall be contested in writing by any Loan Party; or Agent
shall not have or shall cease to have a valid security interest in any
Collateral purported to be covered thereby, perfected and with the priority
required by the relevant Collateral Document, for any reason other than the
failure of Agents or any Lender to take any action within its control, subject
only to Liens permitted under the applicable Collateral Documents; or
8.14 Failure to Consummate Xxxxxx Xxxxx Acquisition.
The Xxxxxx Xxxxx Acquisition shall not be consummated in accordance with this
Agreement and the Xxxxxx Xxxxx Related Agreements concurrently with the making
of the Loans, or (i) the Xxxxxx Xxxxx Acquisition, (ii) the Log Cabin
Acquisition or (iii) the Acquisition shall be unwound, reversed or otherwise
rescinded in whole or in pan for any reason; or
8.15 Termination or Breach of Certain Transition Agreements, Log Cabin
Transition Agreements and Xxxxxx Xxxxx Transaction Agreements.
The Log Cabin Co-Pack Agreement, the Xxxxxx Xxxxx Co-Pack Agreement, Red Wing
Co-Pack Agreements or the Flavor Supply Agreement shall terminate for any reason
whatsoever or any such party shall fail to perform its obligations under any
such agreement and such failure could reasonably be expected to result in a
Material Adverse Effect, and, in either case, Company shall not have made
arrangements satisfactory to Requisite Lenders for obtaining any services that
are required to be provided by any such party to Company under such agreement
that are not being so provided as a result of such termination or failure to
perform; or
8.16 Conduct of Business By Holdings and MBW LLC.
(i) Holdings shall (a) engage in any business other than entering into and
performing its obligations under and in accordance with the Loan Documents
and Related Agreements to which it is a party and performing the
transactions contemplated thereby or permitted thereunder or (b) own any
assets other than (1) the capital stock of Company and (2) Cash and Cash
Equivalents in an amount not to exceed $50,000 at any one time for the
purpose of paying general operating expenses of Holdings; or (ii) MBW LLC
shall (a) engage in any business other than entering into and performing
its obligations under and in accordance with the MBW LLC Agreement and the
Loan Documents to which it is a party or (b) own any assets other than (1)
the capital stock of Holdings and (2) Cash and Cash
Equivalents in an amount not to exceed $50,000 at any one time for the
purpose of paying general operating expenses of MBW LLC; or
8.17 Default Under Subordination Provisions.
Company or any guarantor of Subordinated Indebtedness shall fail to comply with
the subordination provisions contained in the Subordinated Note Indentures or
any other instrument, indenture or agreement pursuant to which such Subordinated
Indebtedness is issued;
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit) and (c) 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 Company, and the obligation of each Lender to make any Loan, the
obligation of Administrative Agent to issue any Letter of Credit and the right
of any Lender to issue any Letter of Credit hereunder shall thereupon terminate,
and (ii) upon the occurrence and during the continuation of any other Event of
Default, Administrative Agent shall, upon the written request of Requisite
Lenders, by written notice to Company, declare all or any portion of the amounts
described in clauses (a) through (c) above to be, and the same shall forthwith
become, immediately due and payable, and the obligation of each Lender to make
any Loan, the obligation of Administrative Agent to issue any Letter of Credit
and the right of any Lender to issue any Letter of Credit hereunder shall
thereupon terminate; provided that the foregoing shall not affect in any way the
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obligations of Lenders under subsection 3.3C(i).
Any amounts described in clause (b) above, when received by Administrative
Agent, shall be held by Administrative Agent pursuant to the terms of the
Collateral Account Agreement and shall be applied as therein provided.
Notwithstanding anything contained in the second preceding paragraph, if at any
time within 60 days after an acceleration of the Loans pursuant to such
paragraph Company 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, to the extent permitted by law, on
overdue interest, at the rates specified in this Agreement) and all Events of
Default and Potential 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 pursuant to
subsection 10.6, then Requisite Lenders, by written notice to Company, may at
their option rescind and annul such acceleration and its consequences; but such
action shall not affect any subsequent Event of Default or Potential Event of
Default or impair any right consequent thereon. The provisions of this paragraph
are intended merely to bind Lenders to a decision
which may be made at the election of Requisite Lenders and are not intended to
benefit Company and do not grant Company the right to require Lenders to rescind
or annul any acceleration hereunder or preclude Agents or Lenders from
exercising any of the rights or remedies available to them under any of the Loan
Documents, even if the conditions set forth in this paragraph are met.
SECTION 9.
AGENTS
9 1 Appointment.
X. Xxxxx is hereby appointed Administrative Agent hereunder and under the other
Loan Documents and each Lender hereby authorizes Administrative Agent to act as
its agent in accordance with the terms of this Agreement and the other Loan
Documents. NatWest is hereby appointed Syndication Agent hereunder and under the
other Loan Documents and each Lender hereby authorizes Syndication Agent to act
as its agent in accordance with the terms of this Agreement and the other Loan
Documents. Swiss Bank is hereby appointed Documentation Agent hereunder and
under the other Loan Documents and each Lender hereby authorizes Documentation
Agent to act as its agent in accordance with the terms of this Agreement and the
other Loan Documents. Each Agent agrees to act upon the express conditions
contained in this Agreement and the other Loan Documents, as applicable. The
provisions of this Section 9 are solely for the benefit of Agents and Lenders
and Company shall have no rights as a third party beneficiary of any of the
provisions thereof. In performing its functions and duties under this Agreement,
each Agent shall act solely as an agent of Lenders and does not assume and shall
not be deemed to have assumed any obligation towards or relationship of agency
or trust with or for Company or any of its Subsidiaries.
B. Appointment of Supplemental Collateral Agents. It is the purpose of this
Agreement and the other Loan Documents that there shall be no violation of any
law of any jurisdiction denying or restricting the right of banking corporations
or associations to transact business as agent or trustee in such jurisdiction.
It is recognized that in case of litigation under this Agreement or any of the
other Loan Documents, and in particular in case of the enforcement of any of the
Loan Documents, or in case Administrative Agent deems that by reason of any
present or future law of any jurisdiction Administrative Agent may not exercise
any of the rights, powers or remedies granted herein or in any of the other Loan
Documents or take any other action which may be desirable or necessary in
connection therewith, it may be necessary that Administrative Agent appoint an
additional individual or institution as a separate trustee, co-trustee,
collateral agent or collateral coagent (any such additional individual or
institution being referred to herein individually as a "Supplemental Collateral
Agent" and collectively as "Supplemental Collateral Agents").
In the event that Administrative Agent appoints a Supplemental Collateral Agent
with respect to any Collateral, (i) each and every right, power, privilege or
duty expressed or intended by this Agreement or any of the other Loan Documents
to be exercised
by or vested in or conveyed to Administrative Agent with respect to such
Collateral shall be exercisable by and vest in such Supplemental Collateral
Agent to the extent, and only to the extent, necessary to enable such
Supplemental Collateral Agent to exercise such rights, powers and privileges
with respect to such Collateral and to perform such duties with respect to such
Collateral, and every covenant and obligation contained in the Loan Documents
and necessary to the exercise or performance thereof by such Supplemental
Collateral Agent shall run to and be enforceable by either Administrative Agent
or such Supplemental Collateral Agent, and (ii) the provisions of this Section 9
and of subsections 10.2 and 10.3 that refer to Administrative Agent shall inure
to the benefit of such Supplemental Collateral Agent and all references therein
to Administrative Agent shall be deemed to be references to Administrative Agent
and/or such Supplemental Collateral Agent, as the context may require.
Should any instrument in writing from Company or any other Loan Party be
required by any Supplemental Collateral Agent so appointed by Administrative
Agent for more fully and certainly vesting in and confirming to him or it such
rights, powers, privileges and duties, Company shall, or shall cause such Loan
Party to, execute, acknowledge and deliver any and all such instruments promptly
upon request by Administrative Agent. In case any Supplemental Collateral Agent,
or a successor thereto, shall die, become incapable of acting, resign or be
removed, all the rights, powers, privileges and duties of such Supplemental
Collateral Agent, to the extent permitted by law, shall vest in and be exercised
by Administrative Agent until the appointment of a new Supplemental Collateral
Agent.
9.2 Powers: General Immunity.
A. Duties Specified. Each Lender irrevocably authorizes each Agent to take
such action on such Lender's behalf and to exercise such powers hereunder and
under the other Loan Documents as are specifically delegated to such Agent by
the terms hereof and thereof, together with such powers as are reasonably
incidental thereto. Each Agent shall have only those duties and responsibilities
that are expressly specified in this Agreement and the other Loan Documents, and
it may perform such duties by or through its agents or employees. No Agent shall
have, by reason of this Agreement or any of the other Loan Documents, a
fiduciary relationship in respect of any Lender; and nothing in this Agreement
or any of the other Loan Documents, expressed or implied, is intended to or
shall be so construed as to impose upon any Agent any obligations in respect of
this Agreement or any of the other Loan Documents except as expressly set forth
herein or therein.
B. No Responsibility for Certain Matters. No Agent shall be responsible to any
Lender for the execution, effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Agreement or any other Loan Document 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 by any Agent to Lenders or by or on behalf of Company and/or its
Subsidiaries to any Agent or any Lender in connection with the Loan Documents
and the transactions contemplated thereby or for the financial condition or
business affairs of Company or any other Person liable for the payment of any
Obligations, nor shall any Agent
be required to ascertain or inquire as to the performance or observance of any
of the terms, conditions, provisions, covenants or agreements contained in any
of the Loan Documents or as to the use of the proceeds of the Loans or the use
of the Letters of Credit or as to the existence or possible existence of any
Event of Default or Potential Event of Default. Anything contained in this
Agreement to the contrary notwithstanding, Administrative Agent shall have no
liability arising from confirmations of the amount of outstanding Loans or the
Total Utilization of Revolving Loan Commitments or the component amounts thereof
C. Exculpatory Provisions. Neither any Agent nor any of such Agent's
respective officers, directors, employees or agents shall be liable to Lenders
for any action taken or omitted by such Agent under or in connection with any of
the Loan Documents except to the extent caused by such Agent's gross negligence
or willful misconduct. If any 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 other Loan Documents, such Agent
shall be entitled to refrain from such act or taking such action unless and
until such Agent shall have received instructions from Requisite Lenders (or
such other Lenders as may be required to give such instructions under subsection
10.6). Without prejudice to the generality of the foregoing, (i) such 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 such Agent as a result of such Agent
acting or (where so instructed) refraining from acting under this Agreement or
any of the other Loan Documents in accordance with the instructions of Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6). Such Agent shall be entitled to refrain from exercising
any power, discretion or authority vested in it under this Agreement or any of
the other Loan Documents unless and until it has obtained the instructions of
Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 10.6).
D. Agents 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, any Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, each
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 such Agent
in its individual capacity. Each 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 Company and/or its Subsidiaries for services in
connection with this Agreement and otherwise without having to account for the
same to Lenders.
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9.3 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 and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries. No Agent
shall 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, except as expressly provided elsewhere in this Agreement, 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 no Agent shall have any responsibility with respect to the
accuracy of or the completeness of any information provided to Lenders.
9.4 Right to Indemnity.
Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify
each Agent, to the extent that such 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, counsel fees and disbursements) or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against such
Agent in performing its duties hereunder or under the other Loan Documents or
otherwise in its capacity as such Agent in any way relating to or arising out of
this Agreement or the other Loan Documents; 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 such Agent's gross negligence or willful misconduct.
9.5 Successor Agents and Swing Line Lender.
A. Successor Agents. Any Agent may resign at any time by giving 30 days' prior
written notice thereof to the other Agents, Lenders and Company, and any 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 Agent. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, that successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring or removed Agent and the retiring or removed Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring or removed Agent's resignation or removal hereunder as Agent, the
provisions of this Section 9 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement.
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B. Successor Swing Line Lender. Any resignation or removal of Administrative
Agent pursuant to subsection 9.5A shall also constitute the resignation or
removal of Chase or its successor as Swing Line Lender, and any successor
Administrative Agent appointed pursuant to subsection 9.5A shall, upon its
acceptance of such appointment, become the successor Swing Line Lender for all
purposes hereunder. In such event (i) Company shall prepay any outstanding Swing
Line Loans made by the retiring or removed Administrative Agent in its capacity
as Swing Line Lender, (ii) upon such prepayment, the retiring or removed
Administrative Agent and Swing Line Lender shall surrender the Swing Line Note
held by it to Company for cancellation, and (iii) Company shall issue a new
Swing Line Note to the successor Administrative Agent and Swing Line Lender
substantially in the form of Exhibit VIII annexed hereto, in the principal
amount of the Swing Line Loan Commitment then in effect and with other
appropriate insertions.
9.6 Collateral Documents.
Each Lender and Agent hereby further authorizes Administrative Agent to enter
into each Collateral Document as secured party on behalf of and for the benefit
of Agents and Lenders and agrees to be bound by the terms of each Collateral
Document; provided that Administrative Agent shall not enter into or consent to
any amendment, modification, termination or waiver of any provision contained in
any Collateral Document without the prior consent of Requisite Lenders (or, if
required pursuant to subsection 10.6, all Lenders); provided further, however,
that, without further written consent or authorization from Requisite Lenders,
Administrative Agent may execute any documents or instruments necessary to
effect the release of any asset constituting Collateral from the Lien of the
applicable Collateral Document in the event that such asset is sold or otherwise
disposed of in a transaction effected in accordance with subsection 7.7.
Anything contained in any of the Loan Documents to the contrary notwithstanding,
each Lender agrees that no Lender shall have any right individually to realize
upon any of the Collateral under any Collateral Document (including, without
limitation, through the exercise of a right of set-off against call deposits of
such Lender in which any funds on deposit in the Collateral Account may from
time to time be invested), it being understood and agreed that all rights and
remedies under the Collateral Documents may be exercised solely by
Administrative Agent for the benefit of Lenders in accordance with the terms
thereof.
SECTION 10.
MISCELLANEOUS
10.1 Assignments and Participations in Loans. Letters of Credit.
A. General. Subject to subsection l0.1B, each Lender shall have the right
at any time to (i) sell, assign, transfer or negotiate to any Eligible Assignee,
or (ii) sell participations to any Person in, all or any part of its Commitments
(together with its Letters of Credit or participations therein made or arising
pursuant to its Revolving Loan Commitment) or any Loan or Loans made by it or
any other interest herein or in any other Obligations owed to it; provided that
no such sale, assignment, transfer or participation shall,
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without the consent of Company, require Company to file registration
statement with the Securities and Exchange Commission or apply to qualify such
sale, assignment, transfer or participation under the securities laws of any
state; provided further that no such sale, assignment or transfer described in
clause (i) above shall be effective unless and until an Assignment Agreement
effecting such sale, assignment or transfer shall have been accepted by
Administrative Agent and recorded in the Register as provided in subsection
10.1B(ii); provided further, that no such sale, assignment, transfer or
participation of any Letter of Credit or any participation therein may be made
separately from a sale, assignment, transfer or participation of a
corresponding interest in the Revolving Loan Commitment and the Revolving
Loans of the Lender effecting such sale, assignment, transfer or
participation; and provided further that anything contained herein to the
contrary notwithstanding, the Swing Line Loan Commitment and the Swing Line
Loans of Swing Line Lender may not be sold, assigned or transferred as
described in clause (i) above to any Person other than a successor
Administrative Agent and Swing Line Lender to the extent contemplated by
subsection 9.5. Except as otherwise provided in this subsection 10.1, no
Lender shall, as between Company and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment, transfer or
negotiation of, or any granting of participations in, all or any part of its
Commitments or the Loans, the Letters of Credit or participations therein or
the other Obligations owed to such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Commitment, Loan, Letter of Credit,
or participation therein or other Obligation may (a) be assigned in any
amount to another Lender who is a Non-Defaulting Lender, to an Approved
Fund of a Non-Defaulting Lender, or to an Affiliate of the assigning Lender
or another Lender who, in either such case, is a Non-Defaulting Lender,
with the consent of Administrative Agent (which consent shall not be
unreasonably withheld) and the giving of notice to Company; provided that,
after giving effect to a proposed assignment to another Lender, the
assigning Lender shall have an aggregate Commitment of at least $5,000,000
unless the proposed assignment constitutes the aggregate amount of the
Commitments, Loans, Letters of Credit, and participations therein and other
Obligations of the assigning Lender, or (b) be assigned in an aggregate
amount of not less than $5,000,000 (or such lesser amount as shall
constitute the aggregate amount of the Commitments, Loans, Letters of
Credit, and participations therein and other Obligations of the assigning
Lender) to any other Eligible Assignee with the consent of Administrative
Agent (which consent shall not be unreasonably withheld) and the giving of
notice to Company. To the extent of any such assignment in accordance with
either clause (a) or (b) above, the assigning Lender shall be relieved of
its obligations with respect to its Commitments, Loans, Letters of Credit,
or participations therein or other Obligations or the portion thereof so
assigned. The parties to each such assignment shall execute and deliver to
Administrative Agent, for its acceptance and recording in the Register, an
Assignment Agreement, together with a processing fee of $3,500 payable by
the assigning Lender and such certificates, documents or other evidence, if
any, with respect to United States federal income tax withholding matters
as the assignee under such Assignment Agreement may be required to deliver
to Administrative Agent pursuant to subsection 2.7B(iii)(a). Upon such
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execution, delivery, acceptance and recordation, from and after the
effective date specified in such Assignment Agreement, (y) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such
Assignment Agreement, shall have the rights and obligations of a Lender
hereunder and (z) the assigning Lender thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant
to such Assignment Agreement, relinquish its rights (other than any
rights which survive the termination of this Agreement under subsection
l0.9B) and be released from its obligations under this Agreement (and, in
the case of an Assignment Agreement covering all or the remaining portion
of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto; provided that, anything
contained in any of the Loan Documents to the contrary notwithstanding,
if such Lender is the Issuing Lender with respect to any outstanding
Letters of Credit such Lender shall continue to have all rights and
obligations of an Issuing Lender with respect to such Letters of Credit
until the cancellation or expiration of such Letters of Credit and the
reimbursement of any amounts drawn thereunder). The Commitments hereunder
shall be modified to reflect the Commitments of such assignee and any
remaining Commitments of such assigning Lender and, if any such
assignment occurs after the issuance of the Notes hereunder, the
assigning Lender shall surrender its applicable Notes and, upon such
surrender, new Notes shall be issued to the assignee and, if applicable,
to the assigning Lender, substantially in the form of Exhibit IV, Exhibit
V, Exhibit VI, Exhibit VII or Exhibit VIII annexed hereto, as the case
may be, with appropriate insertions, to reflect the new Commitments
and/or outstanding Term Loans of the assignee and the assigning Lender.
(ii) Acceptance by Administrative Agent: Recordation in Register. Upon its
receipt of an Assignment Agreement executed by an assigning Lender and an
assignee representing that it is an Eligible Assignee, together with the
processing fee referred to in subsection 00.xX(i) and any certificates,
documents or other evidence with respect to United States federal income
tax withholding matters that such assignee may be required to deliver to
Administrative Agent pursuant to subsection 2.7B(iii)(a), Administrative
Agent shall, if such Assignment Agreement has been completed and is in
substantially the form of Exhibit XVII hereto and if Administrative Agent
have consented to the assignment evidenced thereby (to the extent such
consent is required pursuant to subsection 10.1B(i)), (a) accept such
Assignment Agreement by executing a counterpart thereof as provided therein
(which acceptance shall evidence any required consent of Administrative
Agent to such assignment), (b) record the information contained therein in
the Register, and (c) give prompt notice thereof to Company. Administrative
Agent shall maintain a copy of each Assignment Agreement delivered to and
accepted by it as provided in this subsection x0.xX(ii).
C. Participations. The holder of any participation, other than an Affiliate
of the Lender granting such participation, shall not be entitled to require such
Lender to take or omit to take any action hereunder except action (i) effecting
the extension of the final maturity of the Loan allocated to such participation,
(ii) effecting a reduction of the principal amount of or affecting the rate of
interest payable on any Loan allocated to such participation, (iii) releasing
all or substantially all of the Collateral, or (iv) releasing all of the
Guarantors from their obligations under the Guaranties, and all amounts payable
by Company hereunder
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(including, without limitation, amounts payable to such Lender pursuant to
subsections 2.6D, 2.7 and 3.6) shall be determined as if such Lender had not
sold such participation. Company and each Lender hereby acknowledge and agree
that, solely for purposes of subsections 10.4 and 10.5, (a) any participation
will give rise to a direct obligation of Company to the participant and (b)
the participant shall be considered to be a "Lender".
D. Assignments to Federal Reserve Banks. In addition to the assignments and
participations permitted under the foregoing provisions of this subsection 10.1,
any Lender (without having to obtain the consent of Company or Administrative
Agent) may assign and pledge all or any portion of its Loans, the other
Obligations owed to such Lender and its Notes to secure obligations of such
Lender, including, without limitation, assignments and pledges to any Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any operating circular issued by
such Federal Reserve Bank, and any Lender which is an investment fund may pledge
all or any portion of its Notes or Loans to its trustee to secure its
obligations to such trustee; provided that (i) no Lender shall, as between
Company and such Lender, be relieved of any of its obligations hereunder as a
result of any such assignment and pledge and (ii) in no event shall such Federal
Reserve Bank be considered to be a "Lender" or be entitled to require the
assigning Lender to take or omit to take any action hereunder.
E. Information. Each Lender may furnish any information concerning Company
and its Subsidiaries in the possession of that Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject to subsection 10.20.
F. Limitation. No assignee, participant or other transferee or any Lender's
rights shall be entitled to receive any greater payment under subsection 2.7
than such Lender would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with Company's prior written consent
or at a time when the circumstances giving rise to such greater payment did not
exist.
G. Representations of Lenders. Each Lender listed on the signature pages hereof
hereby represents and warrants (i) that it is an Eligible Assignee described in
clause (i) of the definition thereof; (ii) that it has experience and expertise
in the making of loans such as the Loans; and (iii) that it will make its Loans
for its own account in the ordinary course of its business and without a view to
distribution of such Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws (it being understood that, subject
to the provisions of this subsection 10.1, the disposition of such Loans or any
interests therein shall at all times remain within its exclusive control). Each
Lender that becomes a party hereto pursuant to an Assignment Agreement shall be
deemed to agree that the representations and warranties of such Lender contained
in Section 2(c) of such Assignment Agreement are incorporated herein by this
reference.
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10.2 Expenses
Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay promptly (i) all the actual and reasonable costs and out
of pocket expenses of Administrative Agent in connection with the preparation of
the Loan Documents; (ii) all the actual and reasonable costs of furnishing all
opinions by counsel for Company (including, without limitation, any opinions
requested by Lenders as to any legal matters arising hereunder) and of Company's
performance of and compliance with all agreements and conditions on its part to
be performed or complied with under this Agreement and the other Loan Documents
including, without limitation, with respect to confirming compliance with
environmental and insurance requirements; (iii) the reasonable fees, expenses
and disbursements of counsel to Agents (including allocated costs of internal
counsel) in connection with the negotiation, preparation, execution and
administration of the Loan Documents and the Loans and any consents, amendments,
waivers or other modifications hereto or thereto and any other documents or
matters requested by Company; (iv) all other actual and reasonable costs and
expenses incurred by Agents in connection with the negotiation, preparation and
execution of the Loan Documents and the transactions contemplated hereby and
thereby; and (v) after the occurrence of an Event of Default, all costs and
expenses, including reasonable attorneys' fees (including allocated costs of
internal counsel) and costs of settlement, incurred by Agents and Lenders in
enforcing any Obligations of or in collecting any payments due from Company
hereunder or under the other Loan Documents 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.
10.3 Indemnity.
In addition to the payment of expenses pursuant to subsection 10.2, whether or
not the transactions contemplated hereby shall be consummated, Company agrees to
defend, indemnify, pay and hold harmless Agents and Lenders, and the officers,
directors, trustees, partners, employees, agents, attorneys and affiliates of
any of Agents and Lenders (collectively called the "Indemnitees") from and
against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any kind
or nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for such Indemnitees 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), whether direct, indirect or consequential and
whether based on any federal, state or foreign laws, statutes, rules or
regulations (including, without limitation, securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby (including, without limitation, Lenders'
agreement to make the Loans hereunder or the use or intended use of the proceeds
of any of the Loans or the issuance of Letters of Credit hereunder or the use or
intended use
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of any of the Letters of Credit) (collective called the "Indemnified
Liabilities"); provided that Company shall not have any obligation to any
Indemnitee hereunder with respect to any Indemnified Liabilities to the
extent, and only to the extent, of any particular liability, obligation, loss,
damage, penalty, claim, cost, expense or disbursement that arose from the
gross negligence or willful misconduct of that Indemnitee as determined by a
final judgment of a court of competent jurisdiction. To the extent that the
undertaking to defend, indemnify, pay and hold harmless set forth in the
preceding sentence 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.
10.4 Set-Off, Security Interest in Deposit Accounts.
In addition to any rights now or hereafter granted under applicable law and not
by way of limitation of any such rights, upon the occurrence and during the
continuance of any Event of Default each Lender is hereby authorized by Company
at any time or from time to time, without notice to Company or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other
Indebtedness at any time held or owing by that Lender (at any office of that
Lender wherever located) to or for the credit or the account of Company against
and on account of the obligations and liabilities of Company to that Lender
under this Agreement, the Notes, the Letters of Credit and participations
therein, including, but not limited to, all claims of any nature or description
arising out of or connected with this Agreement, the Notes, the Letters of
Credit and participations therein or any other Loan Document, irrespective of
whether or not (i) that Lender shall have made any demand hereunder or (ii) the
principal of or the interest on the Loans or any amounts in respect of the
Letters of Credit or any other amounts due hereunder shall have become due and
payable pursuant to Section 8 and although said obligations and liabilities, or
any of them, may be contingent or unmatured. Company hereby further grants to
each Agent and Lender a security interest in all deposits and accounts
maintained with such Agent or Lender as security for the Obligations.
10.5 Ratable Sharing.
Lenders hereby agree among themselves that if any of them shall, whether by
voluntary payment (other than a voluntary prepayment of Loans made and applied
in accordance with the terms of this Agreement), 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 under the Loan Documents 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, amounts payable in respect of Letters
of Credit, fees and other amounts then due and owing to that Lender hereunder or
under the other Loan Documents (collectively, the "Aggregate Amounts Due" to
such Lender) which is greater than the proportion received by any other Lender
in respect of
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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 reorganization or insolvency proceeding of Company 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. Company expressly consents to
the foregoing arrangement and agrees that any bolder of a participation so
purchased may exercise any and all rights of banker's lien, set-off or
counterclaim with respect to any and all monies owing by Company to that
holder with respect thereto as fully as if that holder were owed the amount of
the participation held by that bolder.
10.6 Amendments and Waivers.
A. No amendment, modification, termination or waiver of any provision of this
Agreement or of the Notes, or consent to any departure by Company or any other
Loan Party 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: reduces the principal amount
of any of the Loans; changes in any manner the definition of "Requisite Lenders"
(it being understood that, with the consent of the Requisite Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of "Requisite Lenders" on substantially the same basis as the
Tranche A Term Loan Commitments, Tranche A Term Loans, Tranche B Term Loan
Commitments, Tranche B Term Loans, Tranche C Term Loan Commitments, Tranche C
Term Loans, Revolving Loan Commitments and Revolving Loans are included on the
Effective Date); changes in any manner 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 of the Loans; postpones the
date or reduces the amount of any scheduled payment (but not prepayment) of
principal of any of the Loans; postpones the date or reduces the amount of any
scheduled reduction (but not prepayment) of the Revolving Loan Commitments;
postpones the date on which any interest or any fees are payable; decreases the
interest rate borne by any of the Loans (other than any waiver of any increase
in the interest rate applicable to any of the Loans pursuant to subsection 2.2E)
or the amount of any fees payable hereunder; increases the maximum duration of
Interest Periods permitted hereunder; releases all or substantially all of the
Collateral; releases Holdings from its obligations under the Holdings Guaranty
or releases all or substantially all of the Subsidiary Guarantors from their
obligations under the Subsidiary Guaranty; reduces the amount or postpones the
due date of any amount payable in respect of, or extends the required expiration
date of, any Letter of Credit; changes the obligations of Lenders relating to
the purchase of participations in Letters of Credit in any manner that could be
adverse to any Issuing Lender; or changes in any
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manner the provisions contained in subsection 8.1 or this subsection 10.6;
shall be effective only if evidenced by a writing signed by or on behalf of
all Lenders to whom are owed Obligations being directly affected by such
amendment, modification, termination, waiver or consent. In addition, (i) any
amendment, modification, termination or waiver of any of the provisions
contained in Section 4 shall be effective only if evidenced by a writing
signed by or on behalf of Administrative Agent and Requisite Lenders, (ii) no
amendment, modification, termination or waiver of any provision of any Note
shall be effective without the written concurrence of the Lender which is the
holder of that Note, (iii) no amendment, modification, termination or waiver
of any provision of this Agreement which disproportionately and adversely
affects the obligation of any Loan Party to make payments (including without
imitation mandatory prepayments) to the holders of the Term Loans or the
holders of the Revolving Loans and Revolving Loan Commitments, shall be
effective without the written concurrence of the holders of more than 50% in
principal amount of the class (i.e., Tranche A Term Loans, Tranche B Term
Loans, Tranche C Term Loans or Revolving Loans and Revolving Loan Commitments
each being a "class" of Loans) of Loans so disproportionately and adversely
affected; (iv) no increase in the Commitments of any Lender over the amount
thereof then in effect shall be effective without the written concurrence of
that Lender, it being understood and agreed that in no event shall waivers or
modifications of conditions precedent, covenants, Events of Default, Potential
Events of Default or of a mandatory prepayment or a reduction of any or all of
the Commitments be deemed to constitute an increase of the commitment of any
Lender and that an increase in the available portion of any Commitment of any
Lender shall not be deemed to constitute an increase in the Commitment of such
Lender, (v) no amendment, modification, termination or waiver of any provision
of subsection 0.xX(v) or any other provision of this Agreement relating to the
Swing Line Loan Commitment or the Swing Line Loans shall be effective without
the written concurrence of Swing Line Lender, (vi) no amendment, modification,
termination or waiver of any provision of this Agreement shall change the
allocation among the Tranche A Term Loans, Tranche B Term Loans and Tranche C
Term Loans of prepayments to be made pursuant to subsection 2.4C without the
prior written consent of (1) Lenders holding more than 50% of the aggregate
outstanding principal amount of the Tranche A Term Loans, (2) Lenders holding
more than 50% of the aggregate outstanding principal amount of the Tranche B
Term Loans and (3) Lenders holding more than 50% of the aggregate outstanding
principal amount of the Tranche C Term Loans, (vii) no amendment,
modification, termination or waiver of any provision of this Agreement shall
change the application of prepayments of Tranche A Term Loans pursuant to
subsection 2.4C without the prior written consent of Lenders holding more than
50% of the aggregate outstanding principal amount of the Tranche A Term Loans,
(viii) no amendment, modification, termination or waiver of any provision of
this Agreement shall change the application of prepayments of Tranche B Term
Loans pursuant to subsection 2.4C without the prior written consent of Lenders
holding more than 50% of the aggregate outstanding principal amount of the
Tranche B Term Loans, (ix) no amendment, modification, termination or waiver
of any provision of this Agreement shall change the application of prepayments
of Tranche C Term Loans pursuant to subsection 2.4C without the prior written
consent of Lenders holding more than 50% of the aggregate outstanding
principal amount of the Tranche C Term Loans, (x) no amendment, modification,
termination or waiver of any provision of Section 3 relating to the rights or
obligations of any
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or all Issuing Lenders shall be effective without the written concurrence of
Administrative Agent and each Lender who is an Issuing Lender with respect to
any Letter of Credit then outstanding, and (xi) no amendment, modification,
termination or waiver of any provision of Section 9 or of any other provision
of this Agreement which, by its terms, expressly requires the approval or
concurrence of Administrative Agent shall be effective without the written
concurrence of Administrative Agent. Administrative Agent may, but shall have
no obligation to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on Company in any case
shall entitle Company 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 10.6 shall be binding upon
each Lender at the time outstanding, each future Lender and, if signed by
Company, on Company.
B. If, in connection with any proposed change, waiver, discharge or termination
to any of the provision of this Agreement as contemplated by the proviso in the
first sentence of this subsection 10.6, the consent of Requisite Lenders is
obtained but consent of one or more of such other Lenders whose consent is
required is not obtained, then Company may, so long as all non-consenting
Lenders are so treated, elect to terminate such Lender as a party to this
Agreement; provided that, concurrently with such termination, (i) Company shall
pay that Lender all principal, interest and fees and other amounts due to be
paid to such Lender with respect to all periods through such date of
termination, (ii) another financial institution satisfactory to Company and
Administrative Agent (or if Administrative Agent is also a Lender to be
terminated, the successor Administrative Agent) shall agree, as of such date, to
become a Lender for all purposes under this Agreement (whether by assignment or
amendment) and to assume all obligations of the Lender to be terminated as of
such date, and (iii) all documents and supporting materials necessary, in the
judgment of Administrative Agent (or if Administrative Agent is also a Lender to
be terminated, the successor Administrative Agent) to evidence the substitution
of such Lender shall have been received and approved by Administrative Agent as
of such date.
10.7 Independence of Covenants.
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
10.8 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, telecopied, telexed or sent by United States mail or courier
service and shall be deemed to have been given when delivered in person or by
courier service, upon
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receipt of telecopy or telex, 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 of each party
hereto shall be as set forth under such party's name on the signature pages
hereof or (i) as to Company and Administrative Agent, such other address as
shall be designated by such Person in a written notice delivered to the other
parties hereto and (ii) as to each other xxxxx, such other address as shall be
designated by such xxxxx in a written notice delivered to Administrative
Agent.
10.9 Survival of Representations, Warranties and Agreements.
A. All representations, warranties and agreements made herein shall survive the
execution and delivery of this Agreement and the making of the Loans and the
issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the contrary,
the agreements of Company set forth in subsections 2.6D, 2.7, 3.5A, 3.6, 10.2,
10.3 and 10.4 and the agreements of Lenders set forth in subsections 9.2C, 9.4,
10.4, 10.5 and 10.20 shall survive the payment of the Loans, the cancellation or
expiration of the Letters of Credit and the reimbursement of any amounts drawn
or paid thereunder, and the termination of this Agreement.
10.10 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 or under any other Loan
Document shall impair such power, fight 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 and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.11 Marshaling; Payments Set Aside.
Neither Administrative Agent nor any Lender shall be under any obligation to
marshal any assets in favor of Company or any other party or against or in
payment of any or all of the obligations. To the extent that Company makes a
payment or payments to Administrative Agent or Lenders (or to Administrative
Agent for the benefit of Lenders), or Administrative Agent or Lenders enforce
any security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force
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and effect as if such payment or payments had not been made or such
enforcement or setoff had not occurred.
10.12 Severability.
In case any provision in or obligation under this Agreement or the Notes 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.
10.13 Obligations Several, Independent Nature of Lenders' Rights.
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, 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.
10.14 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.
10.15 Applicable Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-
1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
10.16 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 10.1). Neither Holdings' nor Company's
rights or obligations hereunder nor any interest therein may be assigned or
delegated by Holdings or Company without the prior written consent of all
Lenders.
145
10.17 Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST HOLDINGS OR COMPANY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH OF HOLDINGS AND COMPANY, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO HOLDINGS OR COMPANY, AS APPLICABLE, AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SUBSECTION 10.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO
CONFER PERSONAL JURISDICTION OVER HOLDINGS OR COMPANY, AS APPLICABLE,
IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST HOLDINGS OR
COMPANY IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.17 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-
1402 OR OTHERWISE.
10.18 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP OR OTHER RELATIONSHIP THAT IS BEING
146
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
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS
SUBSECTION 10.18 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the
event of litigation, this Agreement may be filed as a written consent to a
trial by the court.
10.19 Confidentiality.
Each Lender shall hold all non-public information obtained pursuant to the
requirements of this Agreement which has been identified as confidential by
Company in accordance with such Lender's customary procedures for handling
confidential information of this nature, it being understood and agreed by
Company that in any event a Lender may make disclosures reasonably required by
any bona fide assignee, transferee or participant in connection with the
contemplated assignment or transfer by such Lender of any Loans or any
participation therein or as required or requested by any governmental agency or
representative thereof or pursuant to legal process or by the National
Association of Insurance Commissioners or in connection with the exercise of any
remedy under the Loan Documents; 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; and provided, further that
in no event shall any Lender be obligated or required to return any materials
furnished by Company or any of its Subsidiaries.
147
10.20 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.
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 AND HOLDINGS: AURORA FOODS INC.
By:
Name:
Title:
AURORA FOODS HOLDINGS INC.
By:
Name:
Title:
Notice Address:
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
With a copy to:
XxXxxx De Leeuw & Co.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
(000) 000-0000
and a copy to:
Dartford Partnership L.L.C.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: M. Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
and a copy to:
White & Case
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
AGENTS AND LENDERS: THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By: ________________________
Name:
Title:
Notice Address:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
One Chase Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxx
Loan Servicing Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE NATIONAL WESTMINSTER
BANK PLC,
individually and as Syndication Agent
By:
Name:
Title:
Notice Address:
Gleacher NatWest Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx-Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SWISS BANK CORPORATION,
individually and as Documentation Agent
By:
Name:
Title:
Notice Address:
SBC Warburg Dillon Read Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Telephone: (212) 9O6-7858
Facsimile: (000) 000-0000
FLEET NATIONAL BANK
By:
Name:
Title:
Notice Address:
Fleet National Bank
One Federal Street, MA0F0324
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Fleet National Bank
1185 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX FINANCIAL, INC
By:________________________
Name:
Title:
Notice Address:
Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Legal Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANKBOSTON, N.A.
By
Name:
Title:
Notice Address:
BankBoston, N.A.
000 Xxxxxxx Xxxxxx, XX 00-00-00
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
MARINE MIDLAND BANK
By:
Name:
Title:
Notice Address:
Marine Midland Bank
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PNC BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
Notice Address:
PNC BANK
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SUNTRUST BANK, ATLANTA
By:
Name:
Title:
By:
Name:
Title:
Notice Address:
SunTrust Bank, Atlanta
00 Xxxx Xxxxx, 00xx Xxxxx, XX 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
XXXXX FARGO BANK, N.A.
By:
Name:
Title:
Notice Address:
Xxxxx Fargo Bank, N.A.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
NATIONAL CITY BANK
By:
Name:
Title:
Notice Address:
National City Bank
0000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX TRUST AND SAVINGS BANK
By:
Name:
Title:
Notice Address:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CREDIT AGRICOLE INDOSUEZ
By:
Name:
Title:
Notice Address:
Credit Agricole Indosuez (Chicago)
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CREDIT AGRICOLE INDOSUEZ
By: INDOSUEZ CAPITAL
By:
Name:
Title:
By:
Name:
Title:
Notice Address:
Indosuez Capital
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
U.S. BANK NATIONAL ASSOCIATION
By:
Name:
Title:
Notice Address:
U.S. Bank National Association
First Blank Place
MPFP 0702
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BHF-BANK AKTIEGESELLSCHAFT,
GRAND CAYMAN BRANCH
By:
Name:
Title:
Notice Address:
BHF-BANK Aktiegesellschaft,
New York Branch
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BALANCED HIGH YIELD FUND LTD.
By:
Name:
Title:
By:
Name:
Title:
Notice Address:
BHF-BANK Aktiengesellschaft,
New York Branch
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FIRST UNION NATIONAL BANK
By:
Name:
Title:
Notice Address:
First Union National
First Union National Center, 5th Floor
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
SUMMIT BANK
By:
Name:
Title:
Notice Address:
Summit Bank
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Bagarouzza
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By:
Name:
Title:
Notice Address:
The Long-Term Credit Bank of Japan, Ltd.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Grosshams
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DLJ CAPITAL FUNDING, INC.
By:_______________________
Name:
Title:
Notice Address:
DLJ Capital Funding, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
METROPOLITAN LIFE INSURANCE COMPANY
By:_____________________
Name:
Title:
Notice Address:
MetLife
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
MetLife
Legal Department - Area 7H
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE TRAVELERS INSURANCE COMPANY
By:_____________________
Name:
Title:
Notice Address:
The Travelers Insurance Company
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE TRAVELERS LIFE AND ANNUITY COMPANY
By:_____________________
Name:
Title:
Notice Address:
The Travelers Life and Annuity Company
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AMARA-I FINANCE LTD.
By:
Name:
Title:
Notice Address:
Chancellor LGT Asset Management
1166 Avenue of the Xxxxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CERES FINANCE LTD.
By:
Name:
Title:
Notice Address:
Chancellor LGT Asset Management
1166 Avenue of the Xxxxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WARECONSECO
By:
Name:
Title:
Notice Address:
The Chase Manhattan Bank
000 Xxxx Xxxxxx, Xxxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PILGRIM AMERICA PRIME RATE TRUST
By:
Name:
Title:
Notice Address:
Pilgrim Prime Rate Trust
Two Renaissance Square
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ML CLO XV PILGRIM AMERICA
(Cayman) LTD.
By:
Name:
Title:
Notice Address:
Pilgrim Prime Rate Trust
Two Renaissance Square
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By:
Name:
Title:
Notice Address:
Xxxx Cap Fund VB LP
Two Xxxxxx Place
Boston, MA 02116
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO
By:
Name:
Title:
Notice Address:
Octagon Credit Investors
000 Xxxxxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ALLSTATE INSURANCE COMPANY
By:
Name:
Title:
Notice Address:
Allstate Insurance Company
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SENIOR DEBT PORTFOLIO
By:
Name:
Title:
Notice Address:
Xxxxx Xxxxx Management Inc. (Boston)
00 Xxxxxxx Xxxxxx, 0xx Xx.
Xxxxxx, XX 00000
Attention: Xxxxx Page
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PRIME IMCOME TRUST
By:
Name:
Title:
Notice Address:
Xxxx Xxxxxx Intercapital (Prime Income
Trust)
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
KZH-ING-2 CORPORATION
By:
Name:
Title:
Notice Address:
KZH- 1NG-2 Corporation
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx - 15th Floor
New York, New York 10001
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copy to:
ING CAPITAL ADVISORS
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and:
XXXXXX, XXXX & XXXXXXXX LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
KZH HOLDING CORPORATION III
By:
Name:
Title:
Notice Address:
KZH HOLDING CORPORATION III
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx - 15th Floor
New York, New York 10001
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copy to:
XXXXXX, XXXX & XXXXXXXX LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
HIGH INCOME PRINCIPAL PRESERVATION FUND
By:
Name:
Title:
Notice Address:
ING Capital Advisors (Los Angeles)
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CYPRESS TREE BOSTON PARTNERS
By:
Name:
Title:
Notice Address:
Cypress Investment Management
Company, Inc.
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By:
Name:
Title:
Notice Address:
Xxx Xxxxxx American Capita[ (Oakbrook)
Xxx Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ACM CREDIT OPPORTUNITIES
MASTER FUND
By: Alliance Capital Management L.P., its
Investment Advisor
By:
Name:
Title:
Notice Address:
ACM CREDIT OPPORTUNITIES
MASTER FUND
c/o Alliance Capital Management L.P.
1345 Avenue of the Americas - 38th Floor
New York, New York 10105
Attention: Xxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ANNEX A
TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
PRICING GRID
RATIO OF CONSOLIDATED TOTAL
DEBT TO CONSOLIDATED EBITDA
Less than Less than
5.25 but Less than Less than 4.25:1 but
Greater 5:00 but Less than 4.50:1 but Greater
Greater than than or Greater than 4.75:1 but Greater than than or Equal Less
or Equal to Equal or Equal to Greater than or Equal to or Equal to Than
5:25:1 to 5:00:1 4:75:1 4.50:1 4.25:1 3.75: 3.75:1
----------- --------- ------------ ----------- ----------- ------------ ------
Revolving Credit Loans and
Tranche A Term Loans:
--------------------------
ABR Loans 1.50% 1.25% 1.00% 0.75% 0.50% 0.25% 0.00%
Eurodollar Loans 2.50% 2.25% 2.00% 1.75% 1.50% 1.25% 1.00%
Tranche B Term Loans:
--------------------
ABR Loans 1.75% 1.50% 1.25% 1.00% 0.75% 0.50% 0.50%
Eurodollar Loans 2.75% 2.50% 2.25% 2.00% 1.75% 1.50% 1.50%
Tranche C Term Loans:
--------------------
ABR Loans 2.00% 1.75% 1.50% 1.25% 1.00% 0.75% 0.75%
Eurodollar Loans 3.00% 2.75% 2.50% 2.25% 2.00% 1.75% 1.75%
Commitment Fee: 0.50% 0.50% 0.375% 0.375% 0.30% 0.30% 0.30%
--------------
