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EXECUTION COPY
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$345,000,000
CREDIT AGREEMENT
AMONG
XXXXX PET CARE ENTERPRISES, INC.,
XXXXX PET CARE COMPANY,
AS BORROWER,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT,
DLJ CAPITAL FUNDING, INC.,
AS SYNDICATION AGENT,
MERCANTILE BANK NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENT
AND
CHASE SECURITIES INC. AND
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION,
AS CO-LEAD ARRANGERS
DATED AS OF NOVEMBER 12, 1998
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS .................................................. 1
1.1 Defined Terms .................................................. 1
1.2 Other Definitional Provisions .................................. 26
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS .............................. 27
2.1 Term Commitments ............................................... 27
2.2 Procedure for Term Loan Borrowing .............................. 27
2.3 Repayment of Term Loans ........................................ 27
2.4 Revolving Commitments .......................................... 30
2.5 Procedure for Revolving Loan Borrowing ......................... 30
2.6 Swingline Commitment ........................................... 31
2.7 Procedure for Swingline Borrowing; Refunding of Swingline Loans. 31
2.8 Commitment Fees, etc ........................................... 33
2.9 Termination or Reduction of Revolving Commitments .............. 34
2.10 Optional Prepayments ........................................... 34
2.11 Mandatory Prepayments and Commitment Reductions ................ 34
2.12 Conversion and Continuation Options ............................ 36
2.13 Limitations on Eurodollar Tranches ............................. 37
2.14 Interest Rates and Payment Dates ............................... 37
2.15 Computation of Interest and Fees ............................... 38
2.16 Inability to Determine Interest Rate ........................... 38
2.17 Pro Rata Treatment and Payments ................................ 39
2.18 Requirements of Law ............................................ 40
2.19 Taxes .......................................................... 41
2.20 Indemnity ...................................................... 43
2.21 Change of Lending Office ....................................... 43
2.22 Replacement of Lenders ......................................... 44
SECTION 3. LETTERS OF CREDIT ............................................ 44
3.1 L/C Commitment ................................................. 44
3.2 Procedure for Issuance of Letter of Credit ..................... 44
3.3 Fees and Other Charges ......................................... 45
3.4 L/C Participations ............................................. 45
3.5 Reimbursement Obligation of the Borrower ....................... 46
3.6 Obligations Absolute ........................................... 46
3.7 Letter of Credit Payments ...................................... 47
3.8 Applications ................................................... 47
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SECTION 4. REPRESENTATIONS AND WARRANTIES .............................. 47
4.1 Financial Condition ........................................... 47
4.2 No Change ..................................................... 48
4.3 Corporate Existence; Compliance with Law ...................... 48
4.4 Corporate Power; Authorization; Enforceable Obligations ....... 48
4.5 No Legal Bar .................................................. 49
4.6 Litigation .................................................... 49
4.7 No Default .................................................... 49
4.8 Ownership of Property; Liens .................................. 49
4.9 Intellectual Property ......................................... 49
4.10 Taxes ......................................................... 49
4.11 Federal Regulations ........................................... 50
4.12 Labor Matters ................................................. 50
4.13 ERISA ......................................................... 50
4.14 Investment Company Act; Other Regulations ..................... 51
4.15 Subsidiaries .................................................. 51
4.16 Use of Proceeds ............................................... 51
4.17 Environmental Matters ......................................... 51
4.18 Accuracy of Information, etc .................................. 52
4.19 Security Documents ............................................ 53
4.20 Solvency ...................................................... 53
4.21 Senior Indebtedness ........................................... 53
4.22 Year 2000 Matters ............................................. 53
4.23 Regulation H .................................................. 54
4.24 Certain Documents ............................................. 54
4.25 Mortgaged Properties .......................................... 54
SECTION 5. CONDITIONS PRECEDENT ........................................ 54
5.1 Conditions to Initial Extension of Credit ..................... 54
5.2 Conditions to Each Extension of Credit ........................ 59
SECTION 6. AFFIRMATIVE COVENANTS ....................................... 60
6.1 Financial Statements .......................................... 60
6.2 Certificates; Other Information ............................... 60
6.3 Payment of Obligations ........................................ 62
6.4 Maintenance of Existence; Compliance .......................... 62
6.5 Maintenance of Property; Insurance ............................ 62
6.6 Inspection of Property; Books and Records; Discussions ........ 62
6.7 Notices ....................................................... 62
6.8 Environmental Laws ............................................ 63
6.9 Interest Rate Protection ...................................... 64
6.10 Additional Collateral, etc .................................... 64
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SECTION 7. NEGATIVE COVENANTS ........................................... 65
7.1 Financial Condition Covenants.................................. 65
7.2 Indebtedness .................................................. 67
7.3 Liens ......................................................... 68
7.4 Fundamental Changes ........................................... 69
7.5 Disposition of Property ....................................... 70
7.6 Restricted Payments ........................................... 70
7.7 Capital Expenditures .......................................... 71
7.8 Investments ................................................... 71
7.9 Optional Payments and Modifications of Certain Debt Instruments 72
7.10 Transactions with Affiliates .................................. 73
7.11 Sales and Leasebacks .......................................... 73
7.12 Changes in Fiscal Periods ..................................... 73
7.13 Negative Pledge Clauses ....................................... 73
7.14 Clauses Restricting Restricted Subsidiary Distributions ....... 73
7.15 Lines of Business ............................................. 74
7.16 Amendments to Merger Documents ................................ 74
7.17 Issuances of Preferred Stock .................................. 74
SECTION 8. EVENTS OF DEFAULT ............................................ 74
SECTION 9. THE AGENTS ................................................... 78
9.1 Appointment ................................................... 78
9.2 Delegation of Duties .......................................... 78
9.3 Exculpatory Provisions ........................................ 78
9.4 Reliance by Administrative Agent .............................. 79
9.5 Notice of Default ............................................. 79
9.6 Non-Reliance on Agents and Other Lenders ...................... 80
9.7 Indemnification ............................................... 80
9.8 Agent in Its Individual Capacity .............................. 81
9.9 Successor Administrative Agent 81
9.10 Authorization to Release Guarantees and Liens ................. 81
9.11 Documentation Agent, Syndication Agent and Co-Lead Arrangers .. 81
SECTION 10. MISCELLANEOUS ............................................... 82
10.1 Amendments and Waivers ........................................ 82
10.2 Notices ....................................................... 83
10.3 No Waiver; Cumulative Remedies ................................ 84
10.4 Survival of Representations and Warranties .................... 84
10.5 Payment of Expenses and Taxes ................................. 84
10.6 Successors and Assigns; Participations and Assignments ........ 85
10.7 Adjustments; Set-off .......................................... 88
10.8 Counterparts .................................................. 88
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10.9 Severability .................................................. 88
10.10 Integration ................................................... 88
10.11 GOVERNING LAW ................................................. 89
10.12 Submission To Jurisdiction; Waivers ........................... 89
10.13 Acknowledgments ............................................... 89
10.14 Confidentiality ............................................... 90
10.15 WAIVERS OF JURY TRIAL ......................................... 90
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ANNEX:
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A Pricing Grid
B Sources and Uses Table
SCHEDULES:
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1.1A Commitments
1.1B Mortgaged Property
1.1C Permitted Acquisitions Purchase Prices
4.1 Material Leases/Commitments
4.4 Consents, Authorizations, Filings and Notices
4.6 Litigation; Claims
4.9 Intellectual Property
4.13 ERISA Terminations
4.15 Subsidiaries
4.19(a) UCC Filing Jurisdictions
4.19(b) Mortgage Filing Jurisdictions
4.23 Flood Zone Properties
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
7.5 Permitted Dispositions
7.10 Transactions with Affiliates
EXHIBITS:
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A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Mortgage
E Form of Assignment and Acceptance
F Form of Legal Opinion of Counsel for the Borrower
G Form of Prepayment Option Notice
H Form of Exemption Certificate
I-1 Form of Tranche A Term Loan Note
I-2 Form of Tranche B Term Loan Note
I-3 Form of Tranche C Term Loan Note
I-4 Form of Revolving Note
I-5 Form of Swingline Note
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CREDIT AGREEMENT, dated as of November 12, 1998, among XXXXX
PET CARE ENTERPRISES, INC., a Delaware corporation ("Holdings"), XXXXX PET CARE
COMPANY, a Delaware corporation (the "Borrower"), the several banks and other
financial institutions or entities from time to time parties to this Agreement
(the "Lenders"), DLJ CAPITAL FUNDING, INC., as syndication agent (in such
capacity, the "Syndication Agent"), MERCANTILE BANK NATIONAL ASSOCIATION, as
documentation agent (in such capacity, the "Documentation Agent") and THE CHASE
MANHATTAN BANK, as administrative agent.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed
in this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate
in effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For
purposes hereof: "Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Reference Lender as its prime rate in effect
at its principal office in New York City (the Prime Rate not being intended to
be the lowest rate of interest charged by the Reference Lender in connection
with extensions of credit to debtors); "Base CD Rate" shall mean the sum of (a)
the product of (i) the Three-Month Secondary CD Rate and (ii) a fraction, the
numerator of which is one and the denominator of which is one minus the C/D
Reserve Percentage and (b) the C/D Assessment Rate; and "Three-Month Secondary
CD Rate" shall mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if such day
shall not be a Business Day, the next preceding Business Day) by the Board
through the public information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day (or, if
such day shall not be a Business Day, on the next preceding Business Day) by the
Reference Lender from three New York City negotiable certificate of deposit
dealers of recognized standing selected by it. Any change in the ABR due to a
change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Accepting Lenders": as defined in Section 2.11(g).
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"Administrative Agent": The Chase Manhattan Bank, together
with its affiliates, as Co-Lead Arranger of the Commitments and as the
administrative agent for the Lenders under this Agreement and the other Loan
Documents, together with any of its successors.
"Affiliate": as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person means
the power, directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication Agent,
the Documentation Agent and the Administrative Agent.
"Aggregate Exposure": with respect to any Lender at any time,
an amount equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the
aggregate then unpaid principal amount of such Lender's Term Loans and (ii) the
amount of such Lender's Revolving Commitment then in effect or, if the Revolving
Commitments have been terminated, the amount of such Lender's Revolving
Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at
any time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the Aggregate Exposure of all Lenders at such time.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": for each Type of Loan, the rate per annum
set forth on the Pricing Grid; provided, that until the delivery of financial
statements for the period through March 31, 1999, the Applicable Margins shall
be the rates set forth on the Pricing Grid corresponding to Level 1.
"Application": an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender to open a
Letter of Credit.
"Asset Sale": any Disposition of property or series of related
Dispositions of property (excluding any such Disposition permitted by clause
(a), (b), (c), (d) or (e) of Section 7.5) that yields gross proceeds to the
Borrower or any of its Domestic Subsidiaries (valued at the initial principal
amount thereof in the case of non-cash proceeds consisting of notes or other
debt securities and valued at fair market value in the case of other non-cash
proceeds), excluding any Dispositions of property less than $1,000,000,
provided, that any time Dispositions less than $1,000,000 shall aggregate more
than $10,000,000 in the aggregate, any such additional Dispositions shall be
included.
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"Assignee": as defined in Section 10.6(c).
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit E.
"Assignor": as defined in Section 10.6(c).
"Available Revolving Commitment": as to any Revolving Lender
at any time, an amount equal to the excess, if any, of (a) such Lender's
Revolving Commitment then in effect over (b) such Lender's Revolving Extensions
of Credit then outstanding; provided, that in calculating any Lender's Revolving
Extensions of Credit for the purpose of determining such Lender's Available
Revolving Commitment pursuant to Section 2.8(a), the aggregate principal amount
of Swingline Loans then outstanding shall be deemed to be zero.
"Benefitted Lender": as defined in Section 10.7(a).
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower
as a date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"Budgets": as defined in Section 6.2(c).
"Business": as defined in Section 4.17(b).
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close, provided, that with respect to notices and determinations in
connection with, and payments of principal and interest on, and continuations
and conversions of Eurodollar Loans, such day is also a day for trading by and
between banks in Dollar deposits in the interbank eurodollar market.
"Capital Expenditures": for any period, with respect to any
Person, the aggregate of all expenditures by such Person and its Restricted
Subsidiaries for the acquisition or leasing (pursuant to a capital lease) of
fixed or capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period) that should be
capitalized under GAAP on a consolidated balance sheet of such Person and its
Restricted Subsidiaries.
"Capital Lease Obligations": as to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be
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classified and accounted for as capital leases on a balance sheet of such Person
under GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued
by, or 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; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof having combined capital and
surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by Standard & Poor's Ratings Services ("S&P") or P-1 by Xxxxx'x
Investors Service, Inc. ("Moody's"), or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within six months from the date of acquisition; (d) repurchase obligations of
any Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; or (g) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition.
"C/D Assessment Rate": for any day as applied to any ABR Loan,
the annual assessment rate in effect on such day that is payable by a member of
the Bank Insurance Fund maintained by the Federal Deposit Insurance Corporation
(the "FDIC") classified as well-capitalized and within supervisory subgroup "B"
(or a comparable successor assessment risk classification) within the meaning of
12 C.F.R. ss. 327.4 (or any successor provision) to the FDIC (or any successor)
for the FDIC's (or such successor's) insuring time deposits at offices of such
institution in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR
Loan, that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board, for determining the maximum reserve requirement for
a Depositary Institution (as defined in
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Regulation D of the Board as in effect from time to time) in respect of new
non-personal time deposits in Dollars having a maturity of 30 days or more.
"Change of Control": as defined in Section 8(k).
"Clinton IDB": the $9,000,000 The Oklahoma Development Finance
Authority Industrial Development Bonds, Series 1998 (Xxxxx Products Company
Clinton, Oklahoma Project) dated as of July 15, 1998 and all loan agreements,
mortgages, security agreements, promissory notes executed and delivered in
connection therewith.
"Closing Date": the date on which the conditions precedent set
forth in Sections 5.1 and 5.2 shall have been satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Co-Lead Arrangers ": Chase Securities Inc. and Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation.
"Collateral": all property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Commitment": as to any Lender, the sum of the Tranche A Term
Commitment, the Tranche B Term Commitment, the Tranche C Term Commitment and the
Revolving Commitment of such Lender.
"Commitment Fee Rate": the rate per annum set forth on the
Pricing Grid; provided, that until the delivery of financial statements for the
period through March 31, 1999, the Commitment Fee Rates shall be the rate set
forth on the Pricing Grid corresponding to Level 1.
"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential
Information Memorandum dated October 1998 and furnished to the Lenders.
"Consolidated Current Assets": at any date, all amounts (other
than cash and Cash Equivalents) that would, in conformity with GAAP, be set
forth opposite the caption "total
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current assets" (or any like caption) on a consolidated balance sheet of the
Borrower and its Restricted Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts
that would, in conformity with GAAP, be set forth opposite the caption "total
current liabilities" (or any like caption) on a consolidated balance sheet of
the Borrower and its Restricted Subsidiaries at such date, but excluding (a) the
current portion of any Funded Debt of the Borrower and its Restricted
Subsidiaries and (b) without duplication of clause (a) above, all Indebtedness
consisting of Revolving Loans or Swingline Loans to the extent otherwise
included therein.
"Consolidated EBITDA": for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the sum
of (a) income tax expense, (b) interest expense, amortization or writeoff of
debt discount and debt issuance costs and commissions, discounts and other fees
and charges associated with Indebtedness (including the Loans), (c) depreciation
and amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary, unusual,
transition or non-recurring expenses or losses (including, whether or not
otherwise includable as a separate item in the statement of such Consolidated
Net Income for such period, non-cash losses on sales of assets outside of the
ordinary course of business), and (f) any other non-cash charges and minus, to
the extent included in the statement of such Consolidated Net Income for such
period, the sum of (a) interest income, (b) any extraordinary, unusual or
non-recurring non-cash income or non-cash gains (including, whether or not
otherwise includable as a separate item in the statement of such Consolidated
Net Income for such period, gains on the sales of assets outside of the ordinary
course of business) and (c) any other non-cash income, all as determined on a
consolidated basis; provided, that, in calculating Consolidated EBITDA for any
period of four consecutive fiscal quarters that includes any of the fiscal
quarters set forth below, Consolidated EBITDA for such fiscal quarter shall be
deemed to be the amount set forth opposite such fiscal quarter below:
6/30/98 $23,000,000
9/30/98 $21,300,000
12/31/98 $24,100,000
For the purposes of calculating Consolidated EBITDA for any
period of four consecutive fiscal quarters (each, a "Reference Period") pursuant
to any determination of the financial covenants, (i) if at any time during such
Reference Period the Borrower or any Restricted Subsidiary shall have made any
Material Disposition, the Consolidated EBITDA for such Reference Period shall be
reduced by an amount equal to the Consolidated EBITDA (if positive) attributable
to the property that is the subject of such Material Disposition for such
Reference Period or increased by an amount equal to the Consolidated EBITDA (if
negative) attributable thereto for such Reference Period and (ii) if during such
Reference Period the Borrower or any Restricted Subsidiary shall have made a
Material Acquisition, Consolidated EBITDA for such Reference Period shall be
calculated after giving pro forma effect thereto as if such Material Acquisition
occurred on the first day of such Reference Period, and after giving effect to
any
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credit received for certain costs and savings recognized by the SEC (the
"SEC Cost Savings") associated with such Material Acquisition. As used in this
definition, "Material Acquisition" means any acquisition of property or series
of related acquisitions of property that (a) constitutes assets comprising all
or substantially all of an operating unit of a business or constitutes all or
substantially all of the common stock of a Person and (b) involves the payment
of consideration by the Borrower and its Restricted Subsidiaries in excess of
$2,500,000; and "Material Disposition" means any Disposition of property or
series of related Dispositions of property that yields gross proceeds to the
Borrower or any of its Restricted Subsidiaries in excess of $2,500,000.
"Consolidated Fixed Charge Coverage Ratio": for any period,
the ratio of (a) the sum of (i) Consolidated EBITDA for such period less the
aggregate amount actually paid by the Borrower and its Restricted Subsidiaries
during such period on account of Capital Expenditures (excluding the principal
amount of Indebtedness incurred in connection with such expenditures) and (ii)
Consolidated Lease Expense for such period to (b) Consolidated Fixed Charges for
such period.
"Consolidated Fixed Charges": for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such period, (b)
Consolidated Lease Expense for such period, (c) scheduled payments made during
such period on account of principal of Indebtedness of the Borrower or any of
its Restricted Subsidiaries (including scheduled principal payments in respect
of the Term Loans and payments of Revolving Loans accompanying scheduled
reductions of the Revolving Commitments), (d) any current portion of income tax
expense deducted in the determination of Consolidated Net Income and (e)
dividends paid in cash on Preferred Stock.
"Consolidated Interest Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense": for any period, total cash
interest expense (including that attributable to Capital Lease Obligations) of
the Borrower and its Restricted Subsidiaries for such period with respect to all
outstanding Indebtedness of the Borrower and its Restricted Subsidiaries
(including net costs or net gains under Hedge Agreements in respect of interest
rates to the extent such net costs or net gains are allocable to such period in
accordance with GAAP); provided, that, in calculating Consolidated Interest
Expense for any period of four consecutive fiscal quarters that includes any of
the fiscal quarters set forth below, Consolidated Interest Expense for such
fiscal quarter shall be deemed to be the amount set forth opposite such fiscal
quarter below:
6/30/98 $10,100,000
9/30/98 $10,100,000
12/31/98 $10,100,000
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"Consolidated Lease Expense": for any period, the aggregate
amount of fixed and contingent rentals payable by the Borrower and its
Restricted Subsidiaries for such period with respect to leases of real and
personal property, determined on a consolidated basis in accordance with GAAP.
"Consolidated Leverage Ratio": as at the last day of any
period, the ratio of (a) Consolidated Total Debt on such day to (b) Consolidated
EBITDA for such period.
"Consolidated Net Income": for any period, the consolidated
net income (or loss) of the Borrower and its Restricted Subsidiaries, determined
on a consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the date it
becomes a Restricted Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Restricted Subsidiaries, (b) the
income (or deficit) of any Person (other than a Restricted Subsidiary of the
Borrower) in which the Borrower or any of its Restricted Subsidiaries has an
ownership interest, except to the extent that any such income is actually
received by the Borrower or such Restricted Subsidiary in the form of dividends
or similar distributions and (c) the undistributed earnings of any Restricted
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Restricted Subsidiary is not at the
time permitted by the terms of any Contractual Obligation (other than under any
Loan Document) or Requirement of Law applicable to such Restricted Subsidiary.
"Consolidated Senior Debt": all Consolidated Total Debt other
than (a) the Xxxxx Xxxx Senior Subordinated Notes, (b) the Xxxxx Xxxx
Subordinated Seller Note, (c) the Xxxxx Senior Notes, (d) the Exchange Notes and
(e) the Subordinated Facility and any subordinated refinancings thereof.
"Consolidated Senior Debt Ratio": as of the last day of any
period of four consecutive fiscal quarters, the ratio of (a) Consolidated Senior
Debt on such day to (b) Consolidated EBITDA for such period.
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Indebtedness of the Borrower and its Restricted
Subsidiaries at such date (including any IDB's but excluding any contingent
obligations under acceptance, letter of credit or similar facilities),
determined on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current Liabilities
on such date.
"Continuing Directors": the directors of Holdings on the
Closing Date, after giving effect to the Merger and the other transactions
contemplated hereby, and each other director, if (i) in each case, such other
director's nomination for election to the board of directors of Holdings is
recommended by at least 66-2/3% of the then Continuing Directors or such other
director receives the vote of the Permitted Investors in his or her election by
the shareholders of
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Holdings or (ii) such other director is nominated in accordance with the
Investors' Agreement with respect thereto.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control Investment Affiliate": as to any Person, any other
Person that (a) directly or indirectly, is in control of, is controlled by, or
is under common control with, such Person and (b) is organized by such Person
primarily for the purpose of making equity or debt investments in one or more
companies. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise.
"Deep Run Indebtedness": the $1,500,000 promissory note issued
June 27, 1995, by Xxxxx Xxxx as successor by merger to Deep Run Packing Co.,
Inc. to the order of Mellon Bank N.A., such indebtedness thereunder not in
excess of $100,000.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Designated Lender": as defined in Section 5.1(a).
"Disposition": with respect to any property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed of" shall have correlative meanings.
"Xxxxx": Xxxxx Pet Care Company, a Delaware corporation,
formerly known as Xxxxx Products Company.
"Xxxxx Senior Notes": the Xxxxx 10-5/8% Senior Notes due 2006
(as defined in that certain indenture dated as of March 1, 1996 made by and
among Xxxxx and United States Trust Company of Texas, N.A., as trustee, as
supplemented by the First Supplemental Indenture dated of even date herewith)
(such indenture, the "Xxxxx Senior Note Indenture").
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United
States.
"Domestic Joint Venture": any joint venture of the Borrower
organized under the laws of any jurisdiction within the United States.
"Domestic Subsidiary": any Restricted Subsidiary of the
Borrower organized under the laws of any jurisdiction within the United States.
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"ECF Percentage": (a) 75% if the Consolidated Senior Debt
Ratio is greater than or equal to 3.25:1.00; (b) 50% if the Consolidated Senior
Debt Ratio is greater than or equal to 2.75:1.00 but less than 3.25:1.00 and (c)
0% if the Consolidated Senior Debt Ratio is less than 2.75:1.00.
"Environmental Laws": any and all foreign, federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Telerate Service (or on any successor or substitute page of
such Service, or any successor to or substitute for such Service, as determined
by the Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to dollar deposits in the London
interbank market) as of 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period. In the event that such rate is not available
at such time for any reason, the "Eurodollar Base Rate" shall be determined by
reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the Administrative Agent or, in the
absence of such availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits in an amount equal to the
eurodollar tranche requested at or about 11:00 A.M., New York City time, two
Business Days prior to the beginning of such Interest Period in the interbank
eurodollar market where its eurodollar and foreign currency and exchange
operations are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
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"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all of which begin on
the same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the
excess, if any, of (a) the sum, without duplication, of (i) Consolidated Net
Income for such fiscal year, (ii) an amount equal to the amount of all non-cash
charges (including depreciation and amortization) deducted in arriving at such
Consolidated Net Income, (iii) decreases in Consolidated Working Capital for
such fiscal year, and (iv) an amount equal to the aggregate net non-cash loss on
the Disposition of property by the Borrower and its Restricted Subsidiaries
during such fiscal year (other than sales of inventory in the ordinary course of
business), to the extent deducted in arriving at such Consolidated Net Income
over (b) the sum, without duplication, of (i) an amount equal to the amount of
all non-cash credits included in arriving at such Consolidated Net Income, (ii)
the aggregate amount actually paid by the Borrower and its Restricted
Subsidiaries in cash during such fiscal year on account of Capital Expenditures
(excluding the principal amount of Indebtedness incurred in connection with such
expenditures and any such expenditures financed with the proceeds of any
Reinvestment Deferred Amount), (iii) the aggregate amount of all prepayments of
Revolving Loans and Swingline Loans during such fiscal year to the extent
accompanying permanent optional reductions of the Revolving Commitments and all
optional prepayments of the Term Loans during such fiscal year, (iv) the
aggregate amount of all regularly scheduled principal payments of Funded Debt
(including the Term Loans) of the Borrower and its Restricted Subsidiaries made
during such fiscal year (other than in respect of any revolving credit facility
to the extent there is not an equivalent permanent reduction in commitments
thereunder), (v) increases in Consolidated Working Capital for such fiscal year,
and (vi) an amount equal to the aggregate net non-cash gain on the Disposition
of property by the Borrower and its Restricted Subsidiaries during such fiscal
year (other than sales of inventory in the ordinary course of business), to the
extent included in arriving at such Consolidated Net Income.
"Excess Cash Flow Application Date": as defined in Section
2.11(c).
"Exchange Notes": the 9-3/4% Senior Subordinated Notes due
2007 that have been offered by Xxxxx pursuant to its Offer to Exchange and
Solicitation of Consents dated October 8, 1998 in an amount not less than
$120,000,000.
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"Exchange Note Indenture": the indenture dated of even date
herewith between Xxxxx, as issuer, and Wilmington Trust Company, as trustee,
pursuant to which Exchange Notes are issued.
"Existing Xxxxx Credit Facility": the Second Amended and
Restated Revolving Credit and Term Loan Agreement, dated as of April 13, 1998,
by and among Xxxxx, the banks named therein, and Mercantile Bank National
Association, as Agent, as the same may have been amended, restated, supplemented
or otherwise modified from time to time.
"Existing Xxxxx Xxxx Credit Facility": the Credit Agreement,
dated as of May 21, 1997, by and among Xxxxx Xxxx Pet Food Acquisition Co., the
several banks and other financial institutions from time to time parties
thereto, Credit Suisse First Boston, as administrative agent and The Chase
Manhattan Bank, as documentation agent, as the same may have been amended,
restated, supplemented or otherwise modified from time to time.
"Facility": each of (a) the Tranche A Term Commitments and the
Tranche A Term Loans made thereunder (the "Tranche A Term Facility"), (b) the
Tranche B Term Commitments and the Tranche B Term Loans made thereunder (the
"Tranche B Term Facility"), (c) the Tranche C Term Commitments and the Tranche C
Term Loans made thereunder (the "Tranche C Term Facility") and (d) the Revolving
Commitments and the Revolving Extensions of Credit made thereunder (the
"Revolving Facility").
"Federal Funds Effective Rate": for any day, 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 on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average of
the quotations for the day of such transactions received by the Reference Lender
from three federal funds brokers of recognized standing selected by it.
"Foreign Joint Venture": any joint venture of the Borrower
that is not a Domestic Joint Venture.
"Foreign Subsidiary": any Restricted Subsidiary of the
Borrower that is not a Domestic Subsidiary.
"Funded Debt": as to any Person, all Indebtedness of such
Person that matures more than one year from the date of its creation or matures
within one year from such date but is renewable or extendible, at the option of
such Person, to a date more than one year from such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year from such date, including
all current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from the date of
its creation and, in the case of the Borrower, Indebtedness in respect of the
Loans.
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"Funding Office": the office of the Administrative Agent
specified in Section 10.2 or such other office as may be specified from time to
time by the Administrative Agent as its funding office by written notice to the
Borrower and the Lenders.
"GAAP": generally accepted accounting principles in the United
States as in effect from time to time, except that for purposes of Section 7.1,
GAAP shall be determined on the basis of such principles in effect on the date
hereof and consistent with those used in the preparation of the most recent
audited financial statements delivered pursuant to Section 4.1(b). In the event
that any "Accounting Change" (as defined below) shall occur and such change
results in a change in the method of calculation of financial covenants,
standards or terms in this Agreement, then the Borrower and the Administrative
Agent agree to enter into negotiations in order to amend such provisions of this
Agreement so as to equitably reflect such Accounting Changes with the desired
result that the criteria for evaluating the Borrower's financial condition shall
be the same after such Accounting Changes as if such Accounting Changes had not
been made. Until such time as such an amendment shall have been executed and
delivered by the Borrower, the Administrative Agent and the Required Lenders,
all financial covenants, standards and terms in this Agreement shall continue to
be calculated or construed as if such Accounting Changes had not occurred.
"Accounting Changes" refers to changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants or, if applicable, the SEC.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Guarantee and Collateral Agreement": the Guarantee and
Collateral Agreement to be executed and delivered by Holdings, the Borrower and
each Restricted Subsidiary, substantially in the form of Exhibit A, as the same
may be amended, supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including any bank under any letter of credit) to induce the creation of which
the guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services
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primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the guaranteeing person in good faith.
"Guarantors": the collective reference to Holdings and the
Restricted Subsidiaries.
"Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements providing for protection against fluctuations
in interest rates or currency exchange rates or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"Holdings": as defined in the preamble hereto.
"IDB": industrial development bonds.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade payables incurred in the ordinary course of
such Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party under acceptance, letter of credit or similar facilities, (g) all
Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (f) above; (h) all obligations of the kind
referred to in clauses (a) through (g) above secured by (or for which the holder
of such obligation has an existing right, contingent or otherwise, to be secured
by) any Lien on property (including accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for the payment
of such obligation; and (i) for the purposes of Section 8(e) only, all
obligations of such Person in respect of Hedge Agreements.
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"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including copyrights, copyright licenses, patents, patent licenses, trademarks,
trademark licenses, technology, know-how and processes, and all rights to xxx at
law or in equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer
than three months, each day that is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such Interest
Period and (d) as to any Loan (other than any Revolving Loan that is an ABR Loan
and any Swingline Loan), the date of any repayment or prepayment made in respect
thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding
Business Day;
(ii) the Borrower may not select an Interest Period
under a particular Facility that would extend beyond the scheduled
Revolving Termination Date or beyond the date final payment is due on
the Tranche A Term Loans, the Tranche B Term Loans or the Tranche C
Term Loans, as the case may be;
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(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar
month; and
(iv) the Borrower shall select Interest Periods so
as not to require a payment or prepayment of any Eurodollar Loan prior
to the last day of an Interest Period for such Loan.
"Investments": as defined in Section 7.8.
"Investors' Agreement": the First Amended and Restated
Investors' Agreement, dated as of August 3, 1998, among DPC Acquisition Corp.,
Xxxxx Products Company, Summit Capital Inc., Summit/DPC Partners, L.P., Chase
Manhattan Investment Holdings, Inc., Baseball Partners, DLJ Merchant Banking
Partners, L.P., DLJ International Partners, C.V., DLJ Offshore Partners, C.V.,
DLJ Merchant Banking Funding, Inc., DLJ First ESC, L.L.C., Dartford Partnership,
L.L.C., Bruckmann, Xxxxxx, Xxxxxxxx & Co., L.P., PNC Capital Corp., Xxxxx Xxxx
Pet Food Company, L.L.C. and certain other persons signatories thereto, as
amended.
"Issuing Lender": The Chase Manhattan Bank, in its capacity as
issuer of any Letter of Credit.
"L/C Commitment": $10,000,000.
"L/C Fee Payment Date": the last day of each March, June,
September and December and the Revolving Termination Date.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": the collective reference to all the
Revolving Lenders other than the Issuing Lender.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or similar charge or any preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any
capital lease having substantially the same economic effect as any of the
foregoing).
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"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Security Documents and
the Notes.
"Loan Parties": Holdings, the Borrower and each Restricted
Subsidiary of the Borrower that is a party to a Loan Document.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the Term
Loans or the Total Revolving Extensions of Credit, as the case may be,
outstanding under such Facility (or, in the case of the Revolving Facility,
prior to any termination of the Revolving Commitments, the holders of more than
50% of the Total Revolving Commitments).
"Majority Revolving Facility Lenders": the Majority Facility
Lenders in respect of the Revolving Facility.
"Mandatory Prepayment Date": as defined in Section 2.11(g).
"Material Adverse Effect": a material adverse effect on (a)
the Merger, (b) the business, assets, property, operations, condition (financial
or otherwise) or prospects of Holdings, the Borrower and its Restricted
Subsidiaries taken as a whole or (c) the validity or enforceability of any
material provision of this Agreement or any of the other Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, in each case, defined or
regulated as such in or under any Environmental Law, including asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"MDFC Operating Lease": the Equipment Lease Agreement, between
Xxxxx and MDFC Equipment Leasing Corporation, dated as of October 2, 1998, as
amended.
"Merger": as defined in Section 5.1(b).
"Merger Documentation": collectively, all agreements and all
schedules, exhibits and annexes thereto and all side letters and agreements
affecting the terms of the Merger or entered into in connection therewith, in
each case as amended, supplemented or otherwise modified from time to time in
accordance with Section 7.16.
"Mortgaged Properties": the real properties listed on Schedule
1.1B, as to which the Administrative Agent for the benefit of the Lenders shall
be granted a Lien pursuant to the Mortgages, as supplemented pursuant to Section
6.10(b).
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"Mortgages": each of the mortgages and deeds of trust made by
any Loan Party in favor of, or for the benefit of, the Administrative Agent for
the benefit of the Lenders, substantially in the form of Exhibit D (with such
changes thereto as shall be advisable under the law of the jurisdiction in which
such mortgage or deed of trust is to be recorded), as the same may be amended,
supplemented or otherwise modified from time to time.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such Asset
Sale or Recovery Event, net of attorneys' fees, accountants' fees, investment
banking fees, broker's or finder's fees, amounts required to be applied to the
repayment of Indebtedness secured by a Lien expressly permitted hereunder on any
asset that is the subject of such Asset Sale or Recovery Event (other than any
Lien pursuant to a Security Document) and other customary fees and expenses
actually incurred in connection therewith and net of taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account any
available tax credits or deductions related to such Asset Sale or Recovery Event
and any tax sharing arrangements) and (b) in connection with any issuance or
sale of equity securities or debt securities or instruments or the incurrence of
loans, the cash proceeds received from such issuance or incurrence, net of
attorneys' fees, investment banking fees, accountants' fees, underwriting
discounts and commissions and other customary fees and expenses actually
incurred in connection therewith.
"Non-Excluded Taxes": as defined in Section 2.19(a).
"Non-Executing Persons": as defined in Section 5.1(a).
"Non-U.S. Lender": as defined in Section 2.19(d).
"Notes": the collective reference to the Tranche A Term Notes,
the Tranche B Term Notes, the Tranche C Term Notes, the Revolving Notes and the
Swingline Notes.
"Obligations": the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans and Reimbursement
Obligations and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of the Borrower to the Administrative Agent or to
any Lender (or, in the case of Hedge Agreements, any Affiliate of any Lender),
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which arises under, out of, or in connection
with, this Agreement, any other Loan Document, the Letters of Credit, any Hedge
Agreement entered into
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with any Lender or any Affiliate of any Lender or any other document made,
delivered or given in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs or
expenses (including all fees, charges and disbursements of counsel to the
Administrative Agent or to any Lender that are required to be paid by the
Borrower pursuant hereto) or otherwise.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Ottawa IDB": the $6,000,000 Ottawa County Finance Authority
Industrial Development Revenue Bonds, Series 1997 (Xxxxx Products Company
Project) issued pursuant to that certain Indenture of Trust dated as of March 1,
0000 xxxxxxx Xxxxxx Xxxxxx Finance Authority and Bank of Oklahoma, National
Association, Oklahoma City, Oklahoma, Trustee and all loan agreements,
mortgages, security agreements, promissory notes executed and delivered in
connection therewith.
"Participant": as defined in Section 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisition": (a) an acquisition of a majority
controlling interest in a Person (including the acquisition of an interest after
giving effect to which the Borrower and its Restricted Subsidiaries own a
majority controlling interest) or an acquisition of the assets of or a line of
business or product line of a Person; provided that, with respect to each such
acquisition:
(i) after giving effect to such acquisition, the
Borrower and its Restricted Subsidiaries shall remain in the
same businesses as before such acquisition and businesses
reasonably related to such businesses or such other lines of
business as consented to by the Administrative Agent and the
Required Lenders;
(ii) such acquisition shall be made on a fully
consensual basis between the Borrower and the sellers of such
assets or such business;
(iii) after giving effect to such acquisition, the
sum of (x) the amount of cash and Cash Equivalents on hand of
the Borrower plus (y) the Available Revolving Commitment shall
equal or exceed $15,000,000;
(iv) the Borrower shall be in compliance, on a pro
forma basis after giving effect to such acquisition, with
Sections 7.1, 7.7 and 7.8; and
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(v) no Default or Event of Default shall have
occurred and be continuing at the time of such acquisition or
shall be caused thereby.
(b) Notwithstanding the foregoing, (i) any
acquisition of Capital Stock of, or capital contribution to, Effeffe,
S.p.a. ("Effeffe") not owned by Holdings or its Subsidiaries on the
date hereof in the first year following the Closing Date for a purchase
price as set forth on Schedule 1.1C hereto or less (the "Effeffe
Acquisition") shall be a Permitted Acquisition; and (ii) any
acquisition of Pet Life Foods, Inc. ("Pet Life") in the first year
following the Closing Date for a purchase price as set forth on
Schedule 1.1C hereto or less (the "Pet Life Acquisition") shall be a
Permitted Acquisition, provided that the Pet Life Acquisition satisfies
the requirements of clauses (i), (ii), (iv) and (v) of section (a)
above.
(c) Permitted Acquisitions (other than the Pet Life
Acquisition and the Effeffe Acquisition) shall not be permitted if any
loans under the Subordinated Facility remain outstanding.
"Permitted Investors": each record or beneficial owner at the
date hereof of outstanding common stock of Holdings, or of warrants or rights to
acquire common stock of Holdings, and "Permitted Transferees" (as defined in the
Investors' Agreement) and Affiliates of the foregoing.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan": at a particular time, any employee benefit plan that
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Preferred Stock": the Borrower's 14.25% Senior Exchangeable
Preferred Stock due 2007.
"Prepayment Option Notice": as defined in Section 2.11(g).
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Pro Forma Balance Sheets": as defined in Section 4.1(a).
"Properties": as defined in Section 4.17(a).
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"Recovery Event": any settlement of or payment in excess of
$350,000 in respect of any property or casualty insurance claim or any
condemnation proceeding relating to any asset of Holdings, the Borrower or any
of its Restricted Subsidiaries that is a Domestic Subsidiary.
"Reference Lender": The Chase Manhattan Bank.
"Refinancing Subordinated Debt": as defined in Section 7.6(f).
"Refunded Swingline Loans": as defined in Section 2.7(b).
"Refunding Date": as defined in Section 2.7(c).
"Register": as defined in Section 10.6(d).
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Related Fund": with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is advised
or managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the Borrower or
any of its Restricted Subsidiaries in connection therewith that are not applied
to prepay the Term Loans or reduce the Revolving Commitments pursuant to Section
2.11(b) as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in
respect of which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer stating that no Event of Default has occurred and is
continuing and that the Borrower (directly or indirectly through a Restricted
Subsidiary) intends and expects to use all or a specified portion of the Net
Cash Proceeds of an Asset Sale or Recovery Event to acquire assets useful in its
business.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended prior to the relevant Reinvestment Prepayment Date to acquire
assets useful in the Borrower's business.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the date occurring one year after such
Reinvestment Event and (b) the date on which the Borrower shall have determined
not to, or shall have otherwise ceased to, acquire assets
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useful in the Borrower's business with all or any portion of the relevant
Reinvestment Deferred Amount.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day notice
period is waived under the applicable regulations of PBGC Reg. Section 4043.
"Required Lenders": at any time, the holders of more than 50%
of (a) until the Closing Date, the aggregate Commitments of all Lenders then in
effect and (b) thereafter, the sum of (i) the aggregate unpaid principal amount
of the Term Loans then outstanding and (ii) the Total Revolving Commitments then
in effect or, if the Revolving Commitments have been terminated, the Total
Revolving Extensions of Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders
in respect of each Facility.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chief executive officer, president
or chief financial officer of the Borrower, but in any event, with respect to
financial matters, the chief financial officer of the Borrower.
"Restricted Payments": as defined in Section 7.6.
"Restricted Subsidiary": any Subsidiary which is not an
Unrestricted Subsidiary.
"Revolving Commitment": as to any Lender, the obligation of
such Lender, if any, to make Revolving Loans and participate in Swingline Loans
and Letters of Credit in an aggregate principal and/or face amount not to exceed
the amount set forth under the heading "Revolving Commitment" opposite such
Lender's name on Schedule 1.1A or in an Assignment and Acceptance, as the same
may be changed from time to time pursuant to the terms hereof. The original
amount of the Total Revolving Commitments is $100,000,000.
"Revolving Commitment Period": the period from and including
the Closing Date to but excluding the Revolving Termination Date.
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"Revolving Extensions of Credit": as to any Revolving Lender
at any time, an amount equal to the sum of (a) the aggregate principal amount of
all Revolving Loans held by such Lender then outstanding, (b) such Lender's
Revolving Percentage of the L/C Obligations then outstanding and (c) such
Lender's Revolving Percentage of the aggregate principal amount of Swingline
Loans then outstanding.
"Revolving Lender": each Lender that has a Revolving
Commitment or that holds Revolving Loans.
"Revolving Loans": as defined in Section 2.4(a).
"Revolving Note: as defined in Section 2.4(c).
"Revolving Percentage": as to any Revolving Lender at any
time, the percentage which such Lender's Revolving Commitment then constitutes
of the Total Revolving Commitments (or, at any time after the Revolving
Commitments shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Revolving Loans then outstanding constitutes
of the aggregate principal amount of the Revolving Loans then outstanding).
"Revolving Termination Date": March 31, 2005.
"SEC": the Securities and Exchange Commission, any successor
thereto and any analogous Governmental Authority.
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement, the Mortgages and all other security
documents hereafter delivered to the Administrative Agent granting a Lien on any
property of any Person to secure the obligations and liabilities of any Loan
Party under any Loan Document.
"Single Employer Plan": any Plan that is covered by Title IV
of ERISA, but that is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that,
as of any date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the amount of
all "liabilities of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated,
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unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (y) right to an equitable remedy for
breach of performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
"Sources and Uses Table": the sources and uses table attached
hereto as Annex B.
"Specified Change of Control": a "Change of Control" as
defined in the Exchange Note Indenture or Xxxxx Xxxx Senior Subordinated Note
Indenture (so long as, in each case, at least $5,000,000 in aggregate principal
amount of notes is outstanding thereunder).
"Subordinated Facility": the credit facility provided pursuant
to the Bridge Financing Agreement, dated as of October 15, 1998, among Xxxxx
Xxxx, Holdings, Pet Food Funding, Inc. and The Chase Manhattan Bank.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Supermajority Lenders": at any time, the holders of more than
66 2/3% of (a) until the Closing Date, the aggregate Commitments of all Lenders
then in effect and (b) thereafter, the sum of (i) the aggregate unpaid principal
amount of the Term Loans then outstanding and (ii) the Total Revolving
Commitments then in effect or, if the Revolving Commitments have been
terminated, the Total Revolving Extensions of Credit then outstanding.
"Swingline Commitment": the obligation of the Swingline Lender
to make Swingline Loans pursuant to Section 2.6 in an aggregate principal amount
at any one time outstanding not to exceed $10,000,000.
"Swingline Lender": The Chase Manhattan Bank, in its capacity
as the lender of Swingline Loans.
"Swingline Loans": as defined in Section 2.6(a).
"Swingline Note ": as defined in Section 2.7(f).
"Swingline Participation Amount": as defined in Section
2.7(c).
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"Syndication Agent": as defined in the preamble hereto.
"Term Lenders": the collective reference to the Tranche A Term
Lenders, the Tranche B Term Lenders and the Tranche C Term Lenders.
"Term Loans": the collective reference to the Tranche A Term
Loans, Tranche B Term Loans and Tranche C Term Loans.
"Total Revolving Commitments": at any time, the aggregate
amount of the Revolving Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving Lenders
outstanding at such time.
"Tranche A Maturity Date": March 31, 2005.
"Tranche A Term Commitment": as to any Tranche A Term Lender,
the obligation of such Lender, if any, to make a Tranche A Term Loan to the
Borrower hereunder in a principal amount not to exceed the amount set forth
under the heading "Tranche A Term Commitment" opposite such Lender's name on
Schedule 1.1A or an Assignment and Acceptance. The original aggregate amount of
the Tranche A Term Commitments is $75,000,000.
"Tranche A Term Lender": each Lender that has a Tranche A Term
Commitment or is the holder of a Tranche A Term Loan.
"Tranche A Term Loan": as defined in Section 2.1.
"Tranche A Term Note": as defined in Section 2.3(d).
"Tranche A Term Percentage": as to any Tranche A Term Lender
at any time, the percentage which such Lender's Tranche A Term Commitment then
constitutes of the aggregate Tranche A Term Commitments (or, at any time after
the Closing Date, the percentage which the aggregate principal amount of such
Lender's Tranche A Term Loans then outstanding constitutes of the aggregate
principal amount of all Tranche A Term Loans then outstanding).
"Tranche B Maturity Date": December 31, 2005.
"Tranche B Prepayment Amount": as defined in Section 2.11(g).
"Tranche B Term Commitment": as to any Tranche B Term Lender,
the obligation of such Lender, if any, to make a Tranche B Term Loan to the
Borrower hereunder in a principal amount not to exceed the amount set forth
under the heading "Tranche B Term Commitment" opposite such Lender's name on
Schedule 1.1A or an Assignment and Acceptance. The original aggregate amount of
the Tranche B Term Commitments is $85,000,000.
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"Tranche B Term Lender": each Lender that has a Tranche B Term
Commitment or that holds a Tranche B Term Loan.
"Tranche B Term Loan": as defined in Section 2.1.
"Tranche B Term Note": as defined in Section 2.3(e).
"Tranche B Term Percentage": as to any Tranche B Term Lender
at any time, the percentage which such Lender's Tranche B Term Commitment then
constitutes of the aggregate Tranche B Term Commitments (or, at any time after
the Closing Date, the percentage which the aggregate principal amount of such
Lender's Tranche B Term Loans then outstanding constitutes of the aggregate
principal amount of all Tranche B Term Loans then outstanding); provided, that
solely for purposes of calculating the amount of each installment of Tranche B
Term Loans (other than the last installment) payable to a Tranche B Term Lender,
such Lender's Tranche B Term Percentage shall be calculated without giving
effect to any portion of any prior mandatory or optional prepayment attributable
to such Lender's Tranche B Term Loans that shall have been declined by such
Lender (or, in the case of any Lender that shall have acquired its Tranche B
Term Loans by assignment from another Person, by such other Person).
"Tranche C Maturity Date": December 31, 2006.
"Tranche C Prepayment Amount": as defined in Section 2.11(g).
"Tranche C Term Commitment": as to any Tranche C Term Lender,
the obligation of such Lender, if any, to make a Tranche C Term Loan to the
Borrower hereunder in a principal amount not to exceed the amount set forth
under the heading "Tranche C Term Commitment" opposite such Lender's name on
Schedule 1.1A or an Assignment and Acceptance. The original aggregate amount of
the Tranche C Term Commitments is $85,000,000.
"Tranche C Term Lender": each Lender that has a Tranche C Term
Commitment or that holds a Tranche C Term Loan.
"Tranche C Term Loan": as defined in Section 2.1.
"Tranche C Term Note": as defined in Section 2.3(f).
"Tranche C Term Percentage": as to any Tranche C Term Lender
at any time, the percentage which such Lender's Tranche C Term Commitment then
constitutes of the aggregate Tranche C Term Commitments (or, at any time after
the Closing Date, the percentage which the aggregate principal amount of such
Lender's Tranche C Term Loans then outstanding constitutes of the aggregate
principal amount of all Tranche C Term Loans then outstanding); provided, that
solely for purposes of calculating the amount of each installment of Tranche C
Term Loans (other than the last installment) payable to a Tranche C Term Lender,
such Lender's Tranche C Term Percentage shall be calculated without giving
effect to any portion of any prior mandatory
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or optional prepayment attributable to such Lender's Tranche C Term Loans that
shall have been declined by such Lender (or, in the case of any Lender that
shall have acquired its Tranche C Term Loans by assignment from another Person,
by such other Person).
"Transferee": any Assignee or Participant.
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"United States": the United States of America.
"Unrestricted Subsidiary or Joint Venture": any subsidiary or
joint venture designated as such and listed on Schedule 4.15 (as such schedule
may be updated from time to time) and all Subsidiaries or Joint Ventures of such
Person which do not guarantee the Facilities; provided that at the time of any
such designation and after giving effect thereto no Default or Event of Default
is in existence. A Restricted Subsidiary may be redesignated as an Unrestricted
Subsidiary (or vice versa) at any time by notice to the Administrative Agent
(which shall notify each Lender thereof), provided that at the time of any such
designation and after giving effect thereto on a pro forma basis as at the end
of the most recent fiscal quarter for which financial statements are available
no Default or Event of Default is in existence.
"Xxxxx Xxxx": Xxxxx Xxxx Pet Food Company, Inc., a Minnesota
corporation.
"Xxxxx Xxxx Senior Subordinated Notes": the Xxxxx Xxxx 9-3/4%
Senior Subordinated Notes due 2007 (as defined in that certain indenture dated
as of May 21, 1997 between Xxxxx Xxxx and Wilmington Trust Company, as trustee,
such indenture, as supplemented by the First Supplemental Indenture dated
November 12, 1998, the "Xxxxx Xxxx Senior Subordinated Note Indenture").
"Xxxxx Xxxx Subordinated Seller Note": the Convertible
Subordinated Promissory Note dated April 29, 1996 payable to Heinz Pet Food
Products Company in the original principal amount of $10,500,000.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to Holdings, the Borrower and its Subsidiaries not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to
the extent not defined, shall have the respective meanings given to them under
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GAAP, (ii) the words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation", (iii) the word "incur" shall be
construed to mean incur, create, issue, assume, become liable in respect of or
suffer to exist (and the words "incurred" and "incurrence" shall have
correlative meanings), and (iv) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, Capital Stock,
securities, revenues, accounts, leasehold interests and contract rights.
(c) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Commitments. Subject to the terms and conditions
hereof, (a) each Tranche A Term Lender severally agrees to make a term loan (a
"Tranche A Term Loan") to the Borrower on the Closing Date in an amount not to
exceed the amount of the Tranche A Term Commitment of such Lender, (b) each
Tranche B Term Lender severally agrees to make a term loan (a "Tranche B Term
Loan") to the Borrower on the Closing Date in an amount not to exceed the amount
of the Tranche B Term Commitment of such Lender and (c) each Tranche C Term
Lender severally agrees to make a term loan (a "Tranche C Term Loan") to the
Borrower on the Closing Date in an amount not to exceed the amount of the
Tranche C Term Commitment of such Lender. The Term Loans may from time to time
be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to
the Administrative Agent in accordance with Sections 2.2 and 2.12.
2.2 Procedure for Term Loan Borrowing. The Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 10:00 A.M., New York City time, one Business
Day prior to the anticipated Closing Date) requesting that the Term Lenders make
the Term Loans on the Closing Date and specifying the amount to be borrowed.
Unless otherwise agreed by the Administrative Agent in its sole discretion, no
Term Loan may be converted into or continued as a Eurodollar Loan having an
Interest Period in excess of one month prior to the date that is 60 days after
the Closing Date. Upon receipt of such notice the Administrative Agent shall
promptly notify each Term Lender thereof. Not later than 12:00 Noon, New York
City time, on the Closing Date each Term Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available
funds equal to the Term Loan or Term Loans to be made by such Lender. The
Administrative Agent shall credit the account of the Borrower on the books of
such office of the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent by the Term Lenders in immediately
available funds.
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2.3 Repayment of Term Loans. (a) The Tranche A Term Loans
shall be payable in 25 consecutive quarterly installments on the last day of
each March, June, September and December of each year, commencing on March 31,
1999, in an aggregate amount for each period set forth below opposite such
period:
Period Principal Amount
------ ----------------
01/01/99 - 12/31/99 $10,000,000
01/01/00 - 12/31/00 $10,000,000
01/01/01 - 12/31/01 $12,500,000
01/01/02 - 12/31/02 $12,500,000
01/01/03 - 12/31/03 $12,500,000
01/01/04 - 12/31/04 $12,500,000
01/01/05 - 03/31/05 $5,000,000
(b) The Tranche B Term Loans shall be payable in 28
consecutive quarterly installments on the last day of each March, June,
September and December of each year (except the last such installment shall be
payable on the Tranche B Maturity Date), commencing on March 31, 1999, the first
26 of which shall each be in the amount of $212,500 and the last two of which
shall each be in the amount of $39,737,500.
(c) The Tranche C Term Loans shall be payable in 32
consecutive quarterly installments on the last day of each March, June,
September and December of each year (except the last such installment shall be
payable on the Tranche C Maturity Date), commencing on March 31, 1999, the first
30 of which shall each be in the amount of $212,500 and the last two of which
shall each be in the amount of $39,312,500.
(d) The Borrower agrees that, upon the request to the
Administrative Agent by any Tranche A Term Lender, which request is communicated
to the Borrower, the Borrower will execute and deliver to such Tranche A Term
Lender a promissory note of the Borrower dated the Closing Date evidencing the
Tranche A Term Loans made by such Tranche A Term Lender, substantially in the
form of Exhibit I-1 (a "Tranche A Term Note"), payable to the order of such
Tranche A Term Lender and in a principal amount equal to, in the case of Tranche
A Term Notes issued on the Closing Date, the lesser of (A) the initial Tranche A
Term Commitment of such Tranche A Term Lender or (B) the unpaid principal amount
of the Tranche A Term Loan made by such Tranche A Term Lender, and, in the case
of Tranche A Term Notes issued after the Closing Date, the unpaid principal
amount of the Tranche A Term Loan made by such Tranche A Term Lender. Each
Tranche A Term Lender is hereby authorized to record the date, Type and
amount of each Tranche A Term Loan made by such Tranche A Term Lender, the date
and amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period and Eurodollar Rate
with respect thereto, on the schedule (or any continuation of the schedule)
annexed to and constituting a part of its Tranche A Term Note, and any such
recordation shall, to the extent permitted by applicable law, constitute prima
facie
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evidence of the accuracy of the information so recorded, provided that the
failure to make any such recordation (or any error therein) shall not affect the
obligation of the Borrower to repay (with applicable interest) the Tranche A
Term Loans made to the Borrower in accordance with the terms of this Agreement.
A Tranche A Term Note and the Obligations evidenced thereby may be assigned or
otherwise transferred in whole or in part only by registration of such
assignment or transfer of such Tranche A Term Note and the Obligations evidenced
thereby in the Register (and each Tranche A Term Note shall expressly so
provide).
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Tranche B Term Lender, which request is communicated
to the Borrower, the Borrower will execute and deliver to such Tranche B Term
Lender a promissory note of the Borrower dated the Closing Date evidencing the
Tranche B Term Loans made by such Tranche B Term Lender, substantially in the
form of Exhibit I-2 (a "Tranche B Term Note"), payable to the order of such
Tranche B Term Lender and in a principal amount equal to, in the case of Tranche
B Term Notes issued on the Closing Date, the lesser of (A) the initial Tranche B
Term Commitment of such Tranche B Term Lender or (B) the unpaid principal amount
of the Tranche B Term Loan made by such Tranche B Term Lender, and, in the case
of Tranche B Term Notes issued after the Closing Date, the unpaid principal
amount of the Tranche B Term Loan made by such Tranche B Term Lender. Each
Tranche B Term Lender is hereby authorized to record the date, Type and amount
of each Tranche B Term Loan made by such Tranche B Term Lender, the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period and Eurodollar Rate
with respect thereto, on the schedule (or any continuation of the schedule)
annexed to and constituting a part of its Tranche B Term Note, and any such
recordation shall, to the extent permitted by applicable law, constitute prima
facie evidence of the accuracy of the information so recorded, provided that the
failure to make any such recordation (or any error therein) shall not affect the
obligation of the Borrower to repay (with applicable interest) the Tranche B
Term Loans made to the Borrower in accordance with the terms of this Agreement.
A Tranche B Term Note and the Obligations evidenced thereby may be assigned or
otherwise transferred in whole or in part only by registration of such
assignment or transfer of such Tranche B Term Note and the Obligations evidenced
thereby in the Register (and each Tranche B Term Note shall expressly so
provide).
(f) The Borrower agrees that, upon the request to the
Administrative Agent by any Tranche C Term Lender, which request is communicated
to the Borrower, the Borrower will execute and deliver to such Tranche C Term
Lender a promissory note of the Borrower dated the Closing Date evidencing the
Tranche C Term Loans made by such Tranche C Term Lender, substantially in the
form of Exhibit I-3 (a "Tranche C Term Note"), payable to the order of such
Tranche C Term Lender and in a principal amount equal to, in the case of Tranche
C Term Notes issued on the Closing Date, the lesser of (A) the initial Tranche C
Term Commitment of such Tranche C Term Lender or (B) the unpaid principal amount
of the Tranche C Term Loan made by such Tranche C Term Lender, and, in the case
of Tranche C Term Notes issued after the Closing Date, the unpaid principal
amount of the Tranche C Term Loan made by such Tranche C Term Lender. Each
Tranche C Term Lender is hereby authorized to record the date, Type and
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amount of each Tranche C Term Loan made by such Tranche C Term Lender, the date
and amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period and Eurodollar Rate
with respect thereto, on the schedule (or any continuation of the schedule)
annexed to and constituting a part of its Tranche C Term Note, and any such
recordation shall, to the extent permitted by applicable law, constitute prima
facie evidence of the accuracy of the information so recorded, provided that the
failure to make any such recordation (or any error therein) shall not affect the
obligation of the Borrower to repay (with applicable interest) the Tranche C
Term Loans made to the Borrower in accordance with the terms of this Agreement.
A Tranche C Term Note and the Obligations evidenced thereby may be assigned or
otherwise transferred in whole or in part only by registration of such
assignment or transfer of such Tranche C Term Note and the Obligations evidenced
thereby in the Register (and each Tranche C Term Note shall expressly so
provide).
2.4 Revolving Commitments.(a) Subject to the terms and
conditions hereof, each Revolving Lender severally agrees to make revolving
credit loans ("Revolving Loans") to the Borrower from time to time during the
Revolving Commitment Period in an aggregate principal amount at any one time
outstanding which, when added to such Revolving Lender's Revolving Percentage of
the sum of (i) the L/C Obligations then outstanding and (ii) the aggregate
principal amount of the Swingline Loans then outstanding, does not exceed the
amount of such Revolving Lender's Revolving Commitment. During the Revolving
Commitment Period, the Borrower may use the Revolving Commitments by borrowing,
prepaying the Revolving Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof. The Revolving Loans may from
time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and
notified to the Administrative Agent in accordance with Sections 2.5 and 2.12.
(b) The Borrower shall repay all outstanding Revolving Loans
on the Revolving Termination Date.
(c) The Borrower agrees that, upon the request to the
Administrative Agent by any Revolving Lender, which request is communicated to
the Borrower, the Borrower will execute and deliver to such Revolving Lender a
promissory note of the Borrower dated the Closing Date evidencing the Revolving
Commitment of such Revolving Lender, substantially in the form of Exhibit I-4
with appropriate insertions as to date and principal amount (a "Revolving
Note"). Each Revolving Lender is hereby authorized to record the date, Type and
amount of each Revolving Loan made by such Revolving Lender, the date and amount
of each payment or prepayment of principal thereof, each continuation thereof,
each conversion of all or a portion thereof to another Type and, in the case of
Eurodollar Loans, the length of each Interest Period and Eurodollar Rate with
respect thereto, on the schedule (or any continuation of the schedule) annexed
to and constituting a part of its Revolving Note, and any such recordation
shall, to the extent permitted by applicable law, constitute prima facie
evidence of the accuracy of the information so recorded, provided that the
failure to make any such recordation (or any error therein) shall not affect the
obligation of the Borrower to repay (with applicable interest) the
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Revolving Loans made to the Borrower in accordance with the terms of this
Agreement. A Revolving Note and the Obligations evidenced thereby may be
assigned or otherwise transferred in whole or in part only by registration of
such assignment or transfer of such Revolving Note and the Obligations evidenced
thereby in the Register (and each Revolving Note shall expressly so provide).
Any assignment or transfer of all or part of the Obligations evidenced by a
Revolving Note shall be registered in the Register only upon surrender for
registration of assignment or transfer of the Revolving Note evidencing such
Obligations, accompanied by an Assignment and Acceptance duly executed by the
Assignor thereof, and thereupon one or more new Revolving Notes shall be issued
to the designated Assignee and the old Revolving Note shall be returned by the
Administrative Agent to the Borrower marked "cancelled."
2.5 Procedure for Revolving Loan Borrowing. The Borrower may
borrow under the Revolving Commitments during the Revolving Commitment Period on
any Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 12:00 Noon, New York City time, (a) three Business Days prior to the
requested Borrowing Date, in the case of Eurodollar Loans, or (b) one Business
Day prior to the requested Borrowing Date, in the case of ABR Loans), specifying
(i) the amount and Type of Revolving Loans to be borrowed, (ii) the requested
Borrowing Date and (iii) in the case of Eurodollar Loans, the respective amounts
of each such Type of Loan and the respective lengths of the initial Interest
Period therefor. Any Revolving Loans made on the Closing Date shall not exceed
the aggregate amount of $68,000,000. Unless otherwise agreed by the
Administrative Agent in its sole discretion, no Revolving Loan may be made as,
converted into or continued as a Eurodollar Loan having an Interest Period in
excess of one month prior to the date that is 60 days after the Closing Date.
Each borrowing under the Revolving Commitments shall be in an amount equal to
(x) in the case of ABR Loans, $100,000 or a whole multiple thereof and (y) in
the case of Eurodollar Loans, $1,000,000 or a whole multiple of $100,000 in
excess thereof; provided, that the Swingline Lender may request, on behalf of
the Borrower, borrowings under the Revolving Commitments that are ABR Loans in
other amounts pursuant to Section 2.7. Upon receipt of any such notice from the
Borrower, the Administrative Agent shall promptly notify each Revolving Lender
thereof. Each Revolving Lender will make the amount of its pro rata share of
each borrowing available to the Administrative Agent for the account of the
Borrower at the Funding Office prior to 12:00 Noon, New York City time, on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to the
Administrative Agent by the Revolving Lenders and in like funds as received by
the Administrative Agent.
2.6 Swingline Commitment. (a) Subject to the terms and
conditions hereof, the Swingline Lender agrees to make a portion of the credit
otherwise available to the Borrower under the Revolving Commitments from time to
time during the Revolving Commitment Period by making swing line loans
("Swingline Loans") to the Borrower; provided that (i) the aggregate principal
amount of Swingline Loans outstanding at any time shall not exceed the Swingline
Commitment then in effect (notwithstanding that the Swingline Loans outstanding
at any time,
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when aggregated with the Swingline Lender's other outstanding Revolving Loans
hereunder, may exceed the Swingline Commitment then in effect) and (ii) the
Borrower shall not request, and the Swingline Lender shall not make, any
Swingline Loan if, after giving effect to the making of such Swingline Loan, the
aggregate amount of the Available Revolving Commitments would be less than zero.
During the Revolving Commitment Period, the Borrower may use the Swingline
Commitment by borrowing, repaying and reborrowing, all in accordance with the
terms and conditions hereof. Swingline Loans shall be ABR Loans only.
(b) The Borrower shall repay all outstanding Swingline Loans
on the Revolving Termination Date.
2.7 Procedure for Swingline Borrowing: Refunding of Swingline
Loans. (a) Whenever the Borrower desires that the Swingline Lender make
Swingline Loans it shall give the Swingline Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swingline Lender not later than 1:00 P.M., New York City time, on the proposed
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date (which shall be a Business Day during the Revolving Commitment
Period). Each borrowing under the Swingline Commitment shall be in an amount
equal to $100,000 or a whole multiple thereof. Not later than 3:00 P.M., New
York City time, on the Borrowing Date specified in a notice in respect of
Swingline Loans, the Swingline Lender shall make available to the Administrative
Agent at the Funding Office an amount in immediately available funds equal to
the amount of the Swingline Loan to be made by the Swingline Lender. The
Administrative Agent shall make the proceeds of such Swingline Loan available to
the Borrower on such Borrowing Date by depositing such proceeds in the account
of the Borrower with the Administrative Agent on such Borrowing Date in
immediately available funds.
(b) The Swingline Lender, at any time and from time to time in
its sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swingline Lender to act on its behalf), on one Business
Day's notice given by the Swingline Lender no later than 12:00 Noon, New York
City time, request each Revolving Lender to make, and each Revolving Lender
hereby agrees to make, a Revolving Loan, in an amount equal to such Revolving
Lender's Revolving Percentage of the aggregate amount of the Swingline Loans
(the "Refunded Swingline Loans") outstanding on the date of such notice, to
repay the Swingline Lender. Each Revolving Lender shall make the amount of such
Revolving Loan available to the Administrative Agent at the Funding Office in
immediately available funds, not later than 10:00 A.M., New York City time, one
Business Day after the date of such notice. The proceeds of such Revolving Loans
shall be immediately made available by the Administrative Agent to the Swingline
Lender for application by the Swingline Lender to the repayment of the Refunded
Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender to
charge the Borrower's accounts with the Administrative Agent (up to the amount
available in each such account) in order to immediately pay the amount of such
Refunded Swingline Loans to the extent amounts received from the Revolving
Lenders are not sufficient to repay in full such Refunded Swingline Loans.
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(c) If prior to the time a Revolving Loan would have otherwise
been made pursuant to Section 2.7(b), one of the events described in Section
8(f) shall have occurred and be continuing with respect to the Borrower or if
for any other reason, as determined by the Swingline Lender in its sole
discretion, Revolving Loans may not be made as contemplated by Section 2.7(b),
each Revolving Lender shall, on the date such Revolving Loan was to have been
made pursuant to the notice referred to in Section 2.7(b) (the "Refunding
Date"), purchase for cash an undivided participating interest in the then
outstanding Swingline Loans by paying to the Swingline Lender an amount (the
"Swingline Participation Amount") equal to (i) such Revolving Lender's Revolving
Percentage times (ii) the sum of the aggregate principal amount of Swingline
Loans then outstanding that were to have been repaid with such Revolving Loans.
(d) Whenever, at any time after the Swingline Lender has
received from any Revolving Lender such Lender's Swingline Participation Amount,
the Swingline Lender receives any payment on account of the Swingline Loans, the
Swingline Lender will distribute to such Lender its Swingline Participation
Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded and, in the case of principal and interest payments, to reflect such
Lender's pro rata portion of such payment if such payment is not sufficient to
pay the principal of and interest on all Swingline Loans then due); provided,
however, that in the event that such payment received by the Swingline Lender is
required to be returned, such Revolving Lender will return to the Swingline
Lender any portion thereof previously distributed to it by the Swingline Lender.
(e) Each Revolving Lender's obligation to make the Loans
referred to in Section 2.7(b) and to purchase participating interests pursuant
to Section 2.7(c) shall be absolute and unconditional and shall not be affected
by any circumstance, including (i) any setoff, counterclaim, recoupment, defense
or other right that such Revolving Lender or the Borrower may have against the
Swingline Lender, the Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or an Event of Default or the
failure to satisfy any of the other conditions specified in Section 5; (iii) any
adverse change in the condition (financial or otherwise) of the Borrower; (iv)
any breach of this Agreement or any other Loan Document by the Borrower, any
other Loan Party or any other Revolving Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
(f) The Borrower agrees that, upon the request to the
Administrative Agent by the Swingline Lender, which request is communicated to
the Borrower, the Borrower will execute and deliver to the Swingline Lender a
promissory note of the Borrower, dated the Closing Date, evidencing the
Swingline Commitment of the Swingline Lender, substantially in the form of
Exhibit I-5 with appropriate insertions as to date and principal amount (a
"Swingline Note"). The Swingline Lender is hereby authorized to record the date
and amount of each Swingline Loan made by the Swingline Lender and the date and
amount of each payment or prepayment of principal thereof on the schedule
annexed to and constituting a part of the Swingline Note, and any such
recordation shall, to the extent permitted by applicable law, constitute prima
facie
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evidence of the accuracy of the information so recorded, provided that the
failure to make any such recordation (or any error therein) shall not affect the
obligation of the Borrower to repay (with applicable interest) the Swingline
Loans made to the Borrower by the Swingline Lender in accordance with the terms
of this Agreement. A Swingline Note and the Obligations evidenced thereby may be
assigned or otherwise transferred in whole or in part only by registration of
such assignment or transfer of such Swingline Note and the Obligations evidenced
thereby in the Register (and each Swingline Note shall expressly so provide).
Any assignment or transfer of all or part of the Obligations evidenced by a
Swingline Note shall be registered in the Register only upon surrender for
registration of assignment or transfer of the Swingline Note evidencing such
Obligations, accompanied by an Assignment and Acceptance duly executed by the
Assignor thereof, and thereupon one or more new Swingline Notes shall be issued
to the designated Assignee and the old Swingline Note shall be returned by the
Administrative Agent to the Borrower marked "cancelled."
2.8 Commitment Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Revolving Lender a commitment
fee for the period from and including the Closing Date to the last day of the
Revolving Commitment Period, computed at the Commitment Fee Rate on the average
daily amount of the Available Revolving Commitment of such Lender during the
period for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the Revolving Termination
Date, commencing on the first of such dates to occur after the date hereof.
(b) The Borrower agrees to pay to the Administrative Agent
the fees in the amounts and on the dates previously agreed to in writing by the
Borrower and the Administrative Agent.
2.9 Termination or Reduction of Revolving Commitments. The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Revolving Commitments or, from time
to time, to reduce the amount of the Revolving Commitments; provided that no
such termination or reduction of Revolving Commitments shall be permitted if,
after giving effect thereto and to any prepayments of the Revolving Loans and
Swingline Loans made on the effective date thereof, the Total Revolving
Extensions of Credit would exceed the Total Revolving Commitments. Any such
reduction shall be in an amount equal to $1,000,000, or a whole multiple
thereof, and shall reduce permanently the Revolving Commitments then in effect.
2.10 Optional Prepayments. (a) The Borrower may at any time
and from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent at least
three Business Days prior thereto in the case of Eurodollar Loans and at least
one Business Day prior thereto in the case of ABR Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is prepaid on
any day other than the last day of the Interest Period applicable thereto, the
Borrower shall also pay any amounts owing pursuant to Section 2.20. Upon receipt
of any such notice the Administrative
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Agent shall promptly notify each relevant Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of Revolving Loans that are
ABR Loans and Swingline Loans) accrued interest to such date on the amount
prepaid. Partial prepayments of Term Loans and Revolving Loans shall be in an
aggregate principal amount of $1,000,000 or a whole multiple thereof. Partial
prepayments of Swingline Loans shall be in an aggregate principal amount of
$100,000 or a whole multiple thereof.
(b) Optional prepayments of the Term Loans shall be applied
pro rata to the Tranche A Term Loans, the Tranche B Term Loans and the Tranche C
Term Loans, and ratably to the respective installments thereof. Optional
prepayments of the Term Loans may not be reborrowed.
2.11 Mandatory Prepayments and Commitment Reductions.
(a) Unless the Required Prepayment Lenders shall otherwise
agree, if any Indebtedness shall be issued or incurred by Holdings, the Borrower
or any of its Restricted Subsidiaries (excluding any Indebtedness incurred in
accordance with Section 7.2 and any proceeds of senior subordinated notes to the
extent applied to repay or repurchase the Subordinated Facility, the Xxxxx Xxxx
Senior Subordinated Notes, the Xxxxx Xxxx Subordinated Seller Note or the Xxxxx
Senior Notes), an amount equal to 100% of the Net Cash Proceeds thereof shall be
applied on the date of such issuance or incurrence toward the prepayment of the
Term Loans and the reduction of the Revolving Commitments as set forth in
Section 2.11(f).
(b) Unless the Required Prepayment Lenders shall otherwise
agree, if on any date the Borrower or any of its Restricted Subsidiaries shall
receive Net Cash Proceeds from any Asset Sale or Recovery Event (excluding (i)
the sale of assets securing IDB financings and (ii) purchase money indebtedness
used to repay the sales in clause (i) above) then, unless a Reinvestment Notice
shall be delivered in respect thereof, such Net Cash Proceeds shall be applied
on such date toward the prepayment of the Term Loans and the reduction of the
Revolving Commitments as set forth in Section 2.11(f); provided, that,
notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset
Sales and Recovery Events that may be excluded from the foregoing requirement
pursuant to a Reinvestment Notice shall not exceed $20,000,000 in the aggregate
(exclusive of any reinvestment in IDB) and (ii) on each Reinvestment Prepayment
Date, an amount equal to the Reinvestment Prepayment Amount with respect to the
relevant Reinvestment Event shall be applied toward the prepayment of the Term
Loans and the reduction of the Revolving Commitments as set forth in Section
2.11(f).
(c) Unless the Required Prepayment Lenders shall otherwise
agree, if, for any fiscal year of the Borrower commencing with the fiscal year
ending December 31, 1999, there shall be Excess Cash Flow, the Borrower shall,
on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of
such Excess Cash Flow toward the prepayment of the Term Loans and the reduction
of the Revolving Commitments as set forth in Section 2.11(f). Each such
prepayment and commitment reduction shall be made on a date (an "Excess Cash
Flow
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Application Date") no later than five days after the earlier of (i) the
date on which the financial statements of the Borrower referred to in Section
6.1(a), for the fiscal year with respect to which such prepayment is made, are
required to be delivered to the Lenders and (ii) the date such financial
statements are actually delivered.
(d) Unless the Required Prepayment Lenders shall otherwise
agree, if on any date Holdings, the Borrower or any of its Restricted
Subsidiaries shall receive Net Cash Proceeds from any sale or issuance of equity
or Capital Stock (except (i) to the extent such proceeds are used to repay or
repurchase the Subordinated Facility, the Xxxxx Xxxx Senior Subordinated Notes
or the Xxxxx Xxxx Subordinated Seller Note and (ii) equity sold to the principal
equity investors or management or employees and the exercise of options and
warrants held by them), then such Net Cash Proceeds shall be applied on such
date toward the prepayment of the Term Loans and the reduction of the Revolving
Commitments as set forth in Section 2.11(f).
(e) Unless the Required Prepayment Lenders shall otherwise
agree, if DPC Funding Corp. shall sell the approximately $9,000,000 in Clinton
IDB held by it, an amount equal to 100% of the Net Cash Proceeds thereof shall
be applied on the date of such sale to prepay the Revolving Loans, but shall not
reduce the Revolving Commitments.
(f) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to Section 2.11 (except for Section 2.11(e))
shall be applied, first, to the prepayment of the Term Loans until the Term
Loans and all accrued and unpaid interest with respect thereto shall have been
paid in full and, second, to reduce permanently the Revolving Commitments. Any
such reduction of the Revolving Commitments shall be accompanied by prepayment
of the Revolving Loans and/or Swingline Loans to the extent, if any, that the
Total Revolving Extensions of Credit exceed the amount of the Total Revolving
Commitments as so reduced, provided that the proceeds of equity sold through an
initial public offering, to the extent not used as contemplated above, may be
used first to prepay Revolving Loans without reducing the Revolving Commitments
so long as the pro forma Consolidated Senior Debt Ratio is less than 2.50:1.00
after taking into account the application of such proceeds, and provided further
that if the aggregate principal amount of Revolving Loans and Swingline Loans
then outstanding is less than the amount of such excess (because L/C Obligations
constitute a portion thereof), the Borrower shall, to the extent of the balance
of such excess, replace outstanding Letters of Credit and/or deposit an amount
in cash in a cash collateral account established with the Administrative Agent
for the benefit of the Lenders on terms and conditions satisfactory to the
Administrative Agent. The application of any prepayment pursuant to this Section
2.11(f) shall be made on a pro rata basis to the Tranche A Term Loans, the
Tranche B Term Loans and the Tranche C Term Loans, and ratably to the respective
installments thereof. Each prepayment of the Loans under Section 2.11 (except in
the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be
accompanied by accrued interest to the date of such prepayment on the amount
prepaid.
(g) Notwithstanding anything to the contrary in Section
2.11(f) or 2.17, with respect to the amount of any mandatory prepayment
described in Section 2.11 that is allocated to Tranche B Term Loans or Tranche C
Term Loans (such amounts, the "Tranche B Prepayment
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Amount" and the "Tranche C Prepayment Amount", respectively), at any time when
Tranche A Term Loans remain outstanding, the Borrower shall, in lieu of applying
such amount to the prepayment of Tranche B Term Loans and Tranche C Term Loans,
respectively, as provided in paragraph (f) above, on the date specified in
Section 2.11 for such prepayment, give the Administrative Agent telephonic
notice (promptly confirmed in writing) requesting that the Administrative Agent
prepare and provide to each Tranche B Lender and Tranche C Lender a notice
(each, a "Prepayment Option Notice") as described below. As promptly as
practicable after receiving such notice from the Borrower, the Administrative
Agent will send to each Tranche B Lender and Tranche C Lender a Prepayment
Option Notice, which shall be in the form of Exhibit G, and shall include an
offer by the Borrower to prepay on the date (each a "Mandatory Prepayment Date")
that is 10 Business Days after the date of the Prepayment Option Notice, the
relevant Term Loans of such Lender by an amount equal to the portion of the
Prepayment Amount indicated in such Lender's Prepayment Option Notice as being
applicable to such Lender's Tranche B Term Loans or Tranche C Term Loans, as the
case may be. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the
relevant Tranche B Lenders and Tranche C Lenders the aggregate amount necessary
to prepay that portion of the outstanding relevant Term Loans in respect of
which such Lenders have accepted prepayment as described above (such Lenders,
the "Accepting Lenders"), (ii) the Borrower shall pay to the Tranche A Lenders
an amount equal to the portion of the Tranche B Prepayment Amount and the
Tranche C Prepayment Amount not accepted by the Accepting Lenders, and such
amount shall be applied to the prepayment of the Tranche A Term Loans. Mandatory
prepayments of the Term Loans may not be reborrowed.
2.12 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election. The Borrower may elect from time to time to convert ABR Loans to
Eurodollar Loans by giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election (which notice shall specify the
length of the initial Interest Period therefor), provided that no ABR Loan under
a particular Facility may be converted into a Eurodollar Loan when any Event of
Default has occurred and is continuing and the Administrative Agent or the
Majority Facility Lenders in respect of such Facility have determined in its or
their sole discretion not to permit such conversions. Upon receipt of any such
notice the Administrative Agent shall promptly notify the Borrower and each
relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan under a particular Facility may be
continued as such when any Event of Default has occurred and is continuing and
the Administrative Agent has or the Majority Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
continuations, and provided, further, that if the Borrower shall fail to give
any required notice as described above in this paragraph or if such continuation
is not
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permitted pursuant to the preceding proviso, such Loans shall be automatically
converted to ABR Loans on the last day of such then expiring Interest Period.
Upon receipt of any such notice the Administrative Agent shall promptly notify
the Borrower and each relevant Lender thereof.
2.13 Limitations on Eurodollar Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions and
continuations of Eurodollar Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal
to $1,000,000 or a whole multiple of $100,000 in excess thereof and (b) no more
than fifteen Eurodollar Tranches shall be outstanding at any one time.
2.14 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to (x) in the case of the Loans, the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions
of this Section plus 2% or (y) in the case of Reimbursement Obligations, the
rate applicable to ABR Loans under the Revolving Facility plus 2%, and (ii) if
all or a portion of any interest payable on any Loan or Reimbursement Obligation
or any commitment fee or other amount payable hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the rate then applicable
to ABR Loans under the relevant Facility plus 2% (or, in the case of any such
other amounts that do not relate to a particular Facility, the rate then
applicable to ABR Loans under the Revolving Facility plus 2%), in each case,
with respect to clauses (i) and (ii) above, from the date of such non-payment
until such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
2.15 Computation of Interest and Fees. (a) Interest and fees
payable pursuant hereto shall be calculated on the basis of a 360-day year for
the actual days elapsed, except that, with respect to ABR Loans the rate of
interest on which is calculated on the basis of the Prime Rate, the interest
thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. The Administrative Agent shall as soon as
practicable
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notify the Borrower and the relevant Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall deliver to the Borrower a
statement showing the quotations used by the Administrative Agent in determining
any interest rate pursuant to Section 2.15(a).
2.16 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Facility Lenders in respect of the relevant Facility that
the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as ABR Loans,
(y) any Loans under the relevant Facility that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
ABR Loans and (z) any outstanding Eurodollar Loans under the relevant Facility
shall be converted, on the last day of the then-current Interest Period, to ABR
Loans. Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans under the relevant Facility shall be made or continued
as such, nor shall the Borrower have the right to convert Loans under the
relevant Facility to Eurodollar Loans.
2.17 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on account
of any commitment fee and any reduction of the Commitments of the Lenders shall
be made pro rata according to the respective Tranche A Term Percentages, Tranche
B Term Percentages, Tranche C Term Percentages or Revolving Percentages, as the
case may be, of the relevant Lenders.
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(b) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on any Term Loan shall be made pro rata
according to the respective outstanding principal amount of such Term Loan then
held by the Term Lenders (except as otherwise provided in Section 2.11(g)). The
amount of each principal prepayment of the Term Loans shall be applied to reduce
the then remaining installments of the Tranche A Term Loans, Tranche B Term
Loans and Tranche C Term Loans, as the case may be, pro rata based upon the then
remaining principal amount thereof. Amounts prepaid on account of the Term Loans
may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving
Loans then held by the Revolving Lenders.
(d) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Funding Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day. If any payment on a Eurodollar Loan becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
(e) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans under the relevant Facility, on demand, from the
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Borrower. Nothing herein shall be deemed to limit the rights of the Borrower or
the Administrative Agent against such Lender.
(f) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the Borrower.
2.18 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Application or any
Eurodollar Loan made by it, or change the basis of taxation of payments to such
Lender in respect thereof (except for Non-Excluded Taxes covered by Section 2.19
and changes in the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Lender that is not otherwise included in the determination of the
Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to this paragraph, it shall promptly
notify the Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled.
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(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction;
provided that the Borrower shall not be required to compensate a Lender pursuant
to this paragraph for any amounts incurred more than six months prior to the
date that such Lender notifies the Borrower of such Lender's intention to claim
compensation therefor; and provided further that, if the circumstances giving
rise to such claim have a retroactive effect, then such six-month period shall
be extended to include the period of such retroactive effect.
(c) A certificate showing in detail the calculations of any
additional amounts payable pursuant to this Section submitted by any Lender to
the Borrower (with a copy to the Administrative Agent) shall be conclusive in
the absence of manifest error. The obligations of the Borrower pursuant to this
Section shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder for a period of one year.
2.19 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender as a result
of a present or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure
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to comply with the requirements of paragraph (d) or (e) of this Section or (ii)
that are United States withholding taxes imposed on amounts payable to such
Lender at the time the Lender becomes a party to this Agreement, except to the
extent that such Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are
payable by the Borrower, as promptly as possible thereafter the Borrower shall
send to the Administrative Agent for its own account or for the account of the
relevant Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof. If the Borrower fails
to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
(d) Each Lender (or Transferee) that is not a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States (or any
jurisdiction thereof), or any estate or trust that is subject to federal income
taxation regardless of the source of its income (a "Non-U.S. Lender") shall
deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form 1001 or Form
4224, or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit H and a Form W-8, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty
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to which such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is legally entitled
to complete, execute and deliver such documentation and in such Lender's
judgment such completion, execution or submission would not materially prejudice
the legal position of such Lender.
(f) The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder for a period of one year.
2.20 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurodollar Loans after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurodollar Loans on a day that is not the last day of
an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest that would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. A certificate as to any
amounts payable pursuant to this Section submitted to the Borrower by any Lender
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder for a period of one year.
2.21 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.18 or
2.19(a) with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 2.18 or 2.19(a).
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2.22 Replacement of Lenders. The Borrower shall be permitted
to replace any Lender that (a) requests reimbursement for amounts owing pursuant
to Section 2.18 or 2.19(a) or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement,
(iii) prior to any such replacement, such Lender shall have taken no action
under Section 2.21 so as to eliminate the continued need for payment of amounts
owing pursuant to Section 2.18 or 2.19(a), (iv) the replacement financial
institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (v) the Borrower shall
be liable to such replaced Lender under Section 2.20 if any Eurodollar Loan
owing to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 10.6 (provided that the
Borrower shall be obligated to pay the registration and processing fee referred
to therein), (viii) until such time as such replacement shall be consummated,
the Borrower shall pay all additional amounts (if any) required pursuant to
Section 2.18 or 2.19(a), as the case may be, and (ix) any such replacement shall
not be deemed to be a waiver of any rights that the Borrower, the Administrative
Agent or any other Lender shall have against the replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Revolving
Lenders set forth in Section 3.4(a), agrees to issue letters of credit ("Letters
of Credit") for the account of the Borrower or any Restricted Subsidiary on any
Business Day during the Revolving Commitment Period in such form as may be
approved from time to time by the Issuing Lender; provided that the Issuing
Lender shall have no obligation to issue any Letter of Credit if, after giving
effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment
or (ii) the aggregate amount of the Available Revolving Commitments would be
less than zero. Each Letter of Credit shall (i) be denominated in Dollars and
(ii) expire no later than the earlier of (x) the first anniversary of its date
of issuance and (y) the date that is five Business Days prior to the Revolving
Termination Date, provided that any Letter of Credit with a one-year term may
provide for the renewal thereof for additional one-year periods (which shall in
no event extend beyond the date referred to in clause (y) above).
(b) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(c) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
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3.2 Procedure for Issuance of Letter of Credit. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at its address for notices specified herein
an Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The
Issuing Lender shall promptly furnish to the Administrative Agent, which shall
in turn promptly furnish to the Lenders, notice of the issuance of each Letter
of Credit (including the amount thereof).
3.3 Fees and Other Charges. (a) The Borrower will pay a fee on
all outstanding Letters of Credit at a per annum rate equal to the Applicable
Margin then in effect with respect to Eurodollar Loans under the Revolving
Facility, shared ratably among the Revolving Lenders and payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date. In addition, the
Borrower shall pay to the Issuing Lender for its own account a fronting fee of
1/8 of 1% per annum on the undrawn and unexpired amount of each Letter of
Credit, payable quarterly in arrears on each L/C Fee Payment Date after the
Issuance Date.
(b) In addition to the foregoing fees, the Borrower shall
pay or reimburse the Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by the Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
3.4 L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Percentage in the Issuing Lender's obligations and
rights under each Letter of Credit issued hereunder and the amount of each draft
paid by the Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with the Issuing Lender that, if a draft is paid under any
Letter of Credit for which the Issuing Lender is not reimbursed in full by the
Borrower in accordance with the terms of this Agreement, such L/C Participant
shall pay to the Issuing Lender upon demand at the Issuing Lender's address for
notices specified herein an amount equal to such L/C Participant's Revolving
Percentage of the amount of such draft, or any part thereof, that is not so
reimbursed.
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(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to the Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, the
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans under the Revolving Facility. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this Section shall be conclusive in the absence of
manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with Section 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of Collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, however, that in the event that any such payment received by
the Issuing Lender shall be required to be returned by the Issuing Lender, such
L/C Participant shall return to the Issuing Lender the portion thereof
previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (a) such draft
so paid and (b) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Lender in connection with such payment. Each such payment shall be
made to the Issuing Lender at its address for notices specified herein in lawful
money of the United States and in immediately available funds. Interest shall be
payable on any and all amounts remaining unpaid by the Borrower under this
Section from the date such amounts become payable (whether at stated maturity,
by acceleration or otherwise) until payment in full at the rate set forth in (i)
until the second Business Day following the date of the applicable drawing,
Section 2.14(b) and (ii) thereafter, Section 2.14(c).
3.6 Obligations Absolute. The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that the Borrower may have or have had against the Issuing Lender, any
beneficiary of a Letter of Credit or any other Person. The Borrower also agrees
with the Issuing Lender that the Issuing Lender shall not be responsible for,
and the Borrower's
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Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Lender
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Issuing Lender. The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, Holdings and the Borrower hereby jointly and severally represent and
warrant to the Agents and each Lender that:
4.1 Financial Condition. (a) The unaudited pro forma
consolidated balance sheet of Xxxxx and Xxxxx Xxxx on a combined basis and their
respective consolidated Subsidiaries as at September 30, 1998 and September 26,
1998, respectively, (the "Pro Forma Balance Sheets"), copies of which have
heretofore been furnished to each Lender, has been prepared giving effect (as if
such events had occurred on such dates) to (i) the Loans to be made and the use
of proceeds thereof and (ii) the payment of fees and expenses in connection with
the foregoing. The Pro Forma Balance Sheet has been prepared based on the best
information available to the Borrower as of the date of delivery thereof, and
presents fairly on a pro forma basis the estimated financial position of Xxxxx
and Xxxxx Xxxx on a combined basis and their respective consolidated
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Subsidiaries as at September 30, 1998 and September 26, 1998, respectively,
assuming that the events specified in the preceding sentence had actually
occurred at such dates.
(b) The audited consolidated balance sheets of Xxxxx and its
Subsidiaries as at December 31, 1997 and Xxxxx Xxxx and its Subsidiaries as at
December 27, 1997, and the related consolidated statements of income and of cash
flows for the fiscal years ended on such dates, reported on by and accompanied
by an unqualified report from KPMG Peat Marwick present fairly in all material
respects the consolidated financial condition of Xxxxx and Xxxxx Xxxx and their
respective Subsidiaries as at such date, and the consolidated results of its
operations and its consolidated cash flows for the respective fiscal years then
ended. The unaudited consolidated balance sheet of each of Xxxxx and Xxxxx Xxxx
and their respective Subsidiaries as at June 30, 1998 and June 27, 1998,
respectively, and the related unaudited consolidated statements of income and
cash flows for the six-month period ended on such date, present fairly in all
material respects the consolidated financial condition of Xxxxx and Xxxxx Xxxx
and their respective Subsidiaries as at such date, and the consolidated results
of its operations and its consolidated cash flows for the six-month period then
ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by the aforementioned firm of accountants and
disclosed therein). Except as disclosed on Schedule 4.1 hereto, the Borrower and
its Restricted Subsidiaries do not have any material Guarantee Obligations,
contingent liabilities and liabilities for taxes, or any long-term leases or
unusual forward or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives (as of the date no earlier than 30 days prior to the Closing Date),
that are not reflected in the most recent financial statements referred to in
this paragraph. During the period from June 30, 1998 and June 27, 1998,
respectively, to and including the date hereof there has been no Disposition by
Xxxxx or Xxxxx Xxxx of any material part of its business or property.
4.2 No Change. Since December 27, 1997, there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of
Holdings, the Borrower and its Restricted Subsidiaries (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority, and the legal right, to
own and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and, in the
case of the Borrower, to borrow hereunder. Each
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Loan Party has taken all necessary corporate action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party and, in
the case of the Borrower, to authorize the borrowings on the terms and
conditions of this Agreement. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the Merger and the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan Documents, except (i)
consents, authorizations, filings and notices described in Schedule 4.4, which
consents, authorizations, filings and notices have been obtained or made and are
in full force and effect and (ii) the filings referred to in Section 4.19. Each
Loan Document has been duly executed and delivered on behalf of each Loan Party
party thereto. This Agreement constitutes, and each other Loan Document upon
execution will constitute, a legal, valid and binding obligation of each Loan
Party party thereto, enforceable against each such Loan Party in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof will not violate
any Requirement of Law or any Contractual Obligation of Holdings, the Borrower
or any of its Restricted Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such Contractual Obligation
(other than the Liens created by the Security Documents). No Requirement of Law
or Contractual Obligation applicable to the Borrower or any of its Restricted
Subsidiaries could reasonably be expected to have a Material Adverse Effect.
4.6 Litigation. Except as set forth in Schedule 4.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of Holdings or the
Borrower, threatened by or against Holdings, the Borrower or any of its
Restricted Subsidiaries or against any of their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) that could reasonably be
expected to have a Material Adverse Effect.
4.7 No Default. Neither Holdings, the Borrower nor any of its
Restricted Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect that could reasonably be expected to have
a Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
4.8 Ownership of Property; Liens. Each of Holdings, the
Borrower and its Restricted Subsidiaries has title in fee simple to, or a valid
leasehold interest in, all its material real property, and good title to, or a
valid leasehold interest in, all its other material property, and none of such
property is subject to any Lien except as permitted by Section 7.3.
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4.9 Intellectual Property. Holdings, the Borrower and each of
its Restricted Subsidiaries owns, or is licensed to use, all Intellectual
Property necessary for the conduct of its business as currently conducted. Other
than as set forth on Schedule 4.9 hereto, no material claim has been asserted
and is pending by any Person challenging or questioning the use of any
Intellectual Property or the validity or effectiveness of any Intellectual
Property, nor does Holdings or the Borrower know of any valid basis for any such
claim. The use of Intellectual Property by Holdings, the Borrower and its
Restricted Subsidiaries does not infringe on the rights of any Person in any
manner that is reasonably likely to have a Material Adverse Effect.
4.10 Taxes. Each of Holdings, the Borrower and each of its
Restricted Subsidiaries has filed or caused to be filed all federal, state and
other material tax returns that are required to be filed and has paid all taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority (other than any the
amount or validity of that are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of Holdings, the Borrower or its Restricted
Subsidiaries, as the case may be); no tax Lien has been filed, and, to the
knowledge of Holdings and the Borrower, no claim is being asserted, with respect
to any such tax, fee or other charge.
4.11 Federal Regulations. No part of the proceeds of any Loans
will be used for "buying" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose that violates the provisions of the
regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
U-1 or FR Form G-3 referred to in Regulation U.
4.12 Labor Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes or other labor disputes against Holdings, the Borrower or any of its
Restricted Subsidiaries pending or, to the knowledge of Holdings or the
Borrower, threatened; (b) hours worked by and payment made to employees of
Holdings, the Borrower and its Restricted Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement of
Law dealing with such matters; and (c) all payments due from Holdings, the
Borrower or any of its Restricted Subsidiaries on account of employee health and
welfare insurance have been paid or accrued as a liability on the books of
Holdings, the Borrower or the relevant Subsidiary.
4.13 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) in excess of $5,000,000 in the aggregate has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code except as set
forth on Schedule 4.13 hereto and where the failure to so comply could not
reasonably be
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expected to have a Material Adverse Effect. Except as set forth on Schedule
4.13, no termination of a Single Employer Plan has occurred, and no Lien in
favor of the PBGC or a Plan has arisen, during such five-year period with
respect to which there is an unsatisfied liability. The present value of all
accrued benefits under each Single Employer Plan (based on those assumptions
used to fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits by an amount that
could reasonably be expected to have a Material Adverse Effect. Neither the
Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan that has resulted or could reasonably be
expected to result in a material liability under ERISA that could reasonably be
expected to have a Material Adverse Effect, and neither the Borrower nor any
Commonly Controlled Entity would become subject to any material liability under
ERISA that could reasonably be expected to have a Material Adverse Effect if the
Borrower or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made. No such Multiemployer Plan
is in Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
4.15 Subsidiaries. Except as disclosed to the Administrative
Agent by the Borrower in writing from time to time after the Closing Date, (a)
Schedule 4.15 sets forth the name and jurisdiction of incorporation of each
Subsidiary and, as to each such Subsidiary, the percentage of each class of
Capital Stock owned by any Loan Party and the designation of such Subsidiary as
a Restricted Subsidiary or an Unrestricted Subsidiary and (b) there are no
outstanding subscriptions, options, warrants, calls, rights or other agreements
or commitments (other than stock options granted to employees or directors and
directors' qualifying shares) of any nature relating to any Capital Stock of the
Borrower or any Subsidiary, except as created by the Loan Documents.
4.16 Use of Proceeds. (a) The proceeds of the Term Loans shall
be used to (i) refinance existing bank indebtedness; (ii) redeem all or a
portion of the Xxxxx Senior Notes, (iii) repay the Deep Run Indebtedness, (iv)
if the Exchange Notes are issued in an aggregate principal amount of at least
$120,000,000, (A) redeem the Xxxxx Xxxx Subordinated Seller Note and (B) repay
the Subordinated Facility, and (v) pay related fees and expenses, as indicated
in the Sources and Uses Table.
(b) The proceeds of the Revolving Loans and the Swingline
Loans, and the Letters of Credit, shall be used (i) as indicated in the Sources
and Uses Table; (ii) to finance the working capital needs and general corporate
purposes of the Borrower and its Subsidiaries in the ordinary course of business
and (iii) for Permitted Acquisitions.
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4.17 Environmental Matters. Except as, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by
Holdings, the Borrower or any of its Subsidiaries (the "Properties") do not
contain, and have not previously contained, any Materials of Environmental
Concern in amounts or concentrations or under circumstances that constitute
or constituted a violation of, or could give rise to liability under, any
Environmental Law;
(b) neither Holdings, the Borrower nor any of its Subsidiaries has
received or is aware of any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding environmental
matters or compliance with Environmental Laws with regard to any of the
Properties or the business operated by Holdings, the Borrower or any of its
Subsidiaries (the "Business"), nor does Holdings or the Borrower have
knowledge or reason to believe that any such notice will be received or is
being threatened;
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a
location that could give rise to liability under, any Environmental Law,
nor have any Materials of Environmental Concern been generated, treated,
stored or disposed of at, on or under any of the Properties in violation
of, or in a manner that could give rise to liability under, any applicable
Environmental Law;
(d) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of Holdings and the Borrower, threatened,
under any Environmental Law to which Holdings, the Borrower or any
Subsidiary is or will be named as a party with respect to the Properties or
the Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect
to the Properties or the Business;
(e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations of Holdings, the Borrower or any Subsidiary in connection
with the Properties or otherwise in connection with the Business, in
violation of or in amounts or in a manner that could give rise to liability
under Environmental Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or
about the Properties or violation of any Environmental Law with respect to
the Properties or the Business; and
(g) neither Holdings, the Borrower nor any of its Subsidiaries has
assumed any liability of any other Person under Environmental Laws.
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4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
by or on behalf of any Loan Party to the Administrative Agent or the Lenders, or
any of them, for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished (or, in the case of the
Confidential Information Memorandum, as of the date of this Agreement), any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements contained herein or therein not misleading. The
projections and pro forma financial information contained in the materials
referenced above are based upon good faith estimates and assumptions believed by
management of the Borrower to be reasonable at the time made, it being
recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. As of the date hereof,
the representations and warranties contained in the Merger Documentation are
true and correct in all material respects. There is no fact known to any Loan
Party that could reasonably be expected to have a Material Adverse Effect that
has not been expressly disclosed herein, in the other Loan Documents, in the
Confidential Information Memorandum or in any other documents, certificates and
statements furnished to the Administrative Agent and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
4.19 Security Documents. (a) The Guarantee and Collateral
Agreement is effective to create in favor of the Administrative Agent, for the
benefit of the Lenders, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. In the case of the Pledged
Stock described in the Guarantee and Collateral Agreement, when stock
certificates representing such Pledged Stock are delivered to the Administrative
Agent, and in the case of the other Collateral described in the Guarantee and
Collateral Agreement, when financing statements and other filings specified on
Schedule 4.19(a) in appropriate form are filed in the offices specified on
Schedule 4.19(a), the Guarantee and Collateral Agreement shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the Loan Parties in such Collateral and the proceeds thereof, as security for
the Obligations (as defined in the Guarantee and Collateral Agreement), in each
case prior and superior in right to any other Person (except, in the case of
Collateral other than Pledged Stock, Liens permitted by Section 7.3).
(b) Each of the Mortgages is effective to create in favor of
the Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
4.19(b), each such Mortgage shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Mortgaged Properties and the proceeds thereof, as security for the Obligations
(as defined in the relevant Mortgage), in each case prior and superior in right
to any other Person (except Liens permitted by Section 7.3(b)).
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4.20 Solvency. Each Loan Party is, and after giving effect to
the Merger and the incurrence of all Indebtedness and obligations being incurred
in connection herewith and therewith will be and will continue to be, Solvent.
4.21 Senior Indebtedness. The Obligations constitute "Senior
Indebtedness" of the Borrower under and as defined in the Exchange Note
Indenture. The obligations of each Restricted Subsidiary under the Guarantee and
Collateral Agreement constitute "Guarantor Senior Indebtedness" of such
Restricted Subsidiary under and as defined in the Exchange Note Indenture.
4.22 Year 2000 Matters. Any reprogramming or systems
replacement required to permit the proper functioning (but only to the extent
that such proper functioning would otherwise be impaired by the occurrence of
the year 2000) in and following the year 2000 of computer systems owned or
operated by Holdings, the Borrower or any of its Restricted Subsidiaries or used
or relied upon in the conduct of their business, and the testing of all such
systems as so reprogrammed or replaced, will be completed by June 30, 1999. Any
reprogramming or systems replacement required to permit the proper functioning
(but only to the extent that such proper functioning would otherwise be impaired
by the occurrence of the year 2000) in and following the year 2000 of (i)
equipment containing embedded microchips (other than computer systems) owned or
operated by Holdings, the Borrower or any of its Restricted Subsidiaries or used
or relied upon in the conduct of their business and (ii) any computer systems
and other equipment containing embedded microchips supplied by others or with
which the computer systems of Holdings, the Borrower or any of its Restricted
Subsidiaries interface, and the testing of all such systems and other equipment
as so reprogrammed or replaced, will be completed by October 31, 1999. The costs
to Holdings, the Borrower and its Restricted Subsidiaries that have not been
incurred as of the date hereof for such reprogramming or replacement and testing
and for the other reasonably foreseeable consequences to them of any improper
functioning of other computer systems and equipment containing embedded
microchips due to the occurrence of the year 2000 could not reasonably be
expected to result in a Default or Event of Default or to have a Material
Adverse Effect. Except for any reprogramming or replacement referred to above,
the computer systems of Holdings, the Borrower and its Restricted Subsidiaries
are and, with ordinary course upgrading and maintenance, will continue for the
term of this Agreement to be, sufficient for the conduct of their business as
currently conducted.
4.23 Regulation H. Except as set forth on Schedule 4.23
hereto, no Mortgage encumbers improved real property that is located in an area
that has been identified by the Secretary of Housing and Urban Development as an
area having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968.
4.24 Certain Documents. The Borrower has delivered to the
Administrative Agent a complete and correct copy of the Merger Documentation,
including any amendments, supplements or modifications with respect to any of
the foregoing.
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4.25 Mortgaged Properties. Based on the Borrower's good faith
judgment and its reliance upon certain appraisals performed in 1996 and 1997,
the list of real properties listed on Schedule 1.1B includes each domestic real
property interest having a value in excess of $1,000,000 owned by the Borrower
and its Domestic Subsidiaries on the Closing Date.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement
of each Lender to make the initial extension of credit requested to be made by
it is subject to the satisfaction, prior to or concurrently with the making of
such extension of credit on the Closing Date, of the following conditions
precedent:
(a) Credit Agreement; Guarantee and Collateral Agreement. The
Administrative Agent shall have received (i) this Agreement, executed and
delivered by the Administrative Agent, Holdings, the Borrower and each
Person listed on Schedule 1.1A, (ii) the Guarantee and Collateral
Agreement, executed and delivered by Holdings, the Borrower and each
Restricted Subsidiary and (iii) an Acknowledgment and Consent in the form
attached to the Guarantee and Collateral Agreement, executed and delivered
by each Issuer (as defined therein), if any, that is not a Loan Party.
In the event that this Agreement has not been duly executed
and delivered by each Person listed on Schedule 1.1A on the date scheduled
to be the Closing Date, the condition referred to in clause (i) above shall
nevertheless be deemed satisfied if on such date the Borrower and the
Administrative Agent shall have designated one or more Persons (the
"Designated Lenders") to assume, in the aggregate, all of the Commitments
that would have been held by the Persons listed on Schedule 1.1A (the
"Non-Executing Persons") which have not so executed and delivered this
Agreement (subject to each such Designated Lender's consent and its
execution and delivery of this Agreement). Schedule 1.1A shall
automatically be deemed to be amended to reflect the respective Commitments
of the Designated Lenders and the omission of the Non-Executing Persons as
Lenders hereunder.
(b) Merger, etc. The following transactions shall have been
consummated, in each case on terms and conditions reasonably satisfactory
to the Lenders:
(i) Xxxxx and Xxxxx Xxxx shall have merged through a
series of transactions (the "Merger");
(ii) the Administrative Agent shall have received
satisfactory evidence that the fees and expenses to be
incurred in connection with the Merger and the financing
thereof shall be reasonably consistent with the Sources and
Uses Table;
(iii) (i) The Administrative Agent shall have received
satisfactory evidence that the Existing Xxxxx Xxxx Credit
Agreement, the Existing Xxxxx
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Credit Agreement and the Deep Run Indebtedness shall have
been terminated and all amounts thereunder shall have been
paid in full and (ii) satisfactory arrangements shall have
been made for the termination of all Liens granted in
connection therewith;
(iv) The Administrative Agent shall have received
satisfactory evidence that the "change of control offer"
required by the Xxxxx Xxxx Senior Subordinated Notes shall
have been terminated and any purchases or exchanges
contemplated thereunder shall have been completed as
required by the Subordinated Facility and the Exchange
Notes; and
(v) The Borrower and its Restricted Subsidiaries shall
have no indebtedness for borrowed money other than under the
Facilities, the Xxxxx Senior Notes remaining outstanding
after the contemplated tender offer and consent solicitation
satisfactory to the Agents, the Exchange Notes, the
Subordinated Facility, the Xxxxx Xxxx Senior Subordinated
Notes, the Xxxxx Xxxx Subordinated Seller Note, the Ottawa
IDB and the Clinton IDB. To the extent that any Xxxxx Xxxx
Senior Subordinated Notes remain outstanding, the Unrestricted
Subsidiaries and Joint Ventures of the Borrower may be
transferred to Holdings to the extent that compliance with
the Xxxxx Xxxx Senior Subordinated Notes would create
material tax consequences or violate contractual or legal
requirements.
(c) Pro Forma Balance Sheet; Financial Statements. The Lenders
shall have received (i) the Pro Forma Balance Sheets, (ii) any other
existing audited and other financial statements (including pro forma
financial statements) and schedules of each of Xxxxx and Xxxxx Xxxx and
their respective Subsidiaries of the type that the SEC requires for an
initial public offering, (iii) any existing audited consolidated financial
statements of each of Xxxxx and Xxxxx Xxxx for their 1997 fiscal year and
(iv) any existing unaudited interim consolidated financial statements
prepared in the ordinary course of business of each of Xxxxx and Xxxxx Xxxx
for each fiscal quarterly period ended subsequent to the date of the latest
applicable financial statements delivered pursuant to clause (iii) of this
paragraph as to which such financial statements are available, and such
financial statements shall not, in the reasonable judgment of the Lenders,
reflect any material adverse change in the consolidated financial condition
of the Borrower and its Restricted Subsidiaries, as reflected in the
financial statements or projections contained in the Confidential
Information Memorandum.
(d) Approvals. (i) All governmental and third party approvals
(including landlords' and other consents) advisable in connection with the
Merger, the continuing operations of Holdings, the Borrower and its
Restricted Subsidiaries and the transactions contemplated hereby shall have
been obtained and be in full force and effect, except where the failure to
do so could not reasonably be expected to have a Material Adverse Effect,
and (ii) all applicable waiting periods shall have expired without any
action being
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taken or threatened by any competent authority that would restrain, prevent
or otherwise impose adverse conditions on the Merger or the financing
contemplated hereby except insofar as any such action or threatened action
could not reasonably be expected to result in a Material Adverse Effect.
(e) Lien Searches. The Administrative Agent shall have
received the results of a recent lien, tax and judgment search in each of
the jurisdictions where assets of the Loan Parties are located or recorded,
and such search shall reveal no Liens on any of the assets of the Borrower
or its Restricted Subsidiaries except for liens permitted by Section 7.3 or
discharged on or prior to the Closing Date pursuant to documentation
satisfactory to the Administrative Agent.
(f) Environmental Audit. The Administrative Agent shall have
received environmental audits with respect to the real properties of the
Borrower and its Restricted Subsidiaries as requested by the Administrative
Agent.
(g) Fees. The Lenders and the Administrative Agent shall have
received all fees required to be paid, and all expenses for which invoices
have been presented (including the reasonable fees and expenses of legal
counsel), shall have been paid on or before the Closing Date.
(h) Closing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of each Loan
Party, dated the Closing Date, substantially in the form of Exhibit C, with
appropriate insertions and attachments.
(i) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions:
(i) the legal opinion of counsel to the Borrower and its
Restricted Subsidiaries, substantially in the form of Exhibit
F;
(ii) to the extent consented to by the relevant counsel,
each legal opinion, if any, delivered in connection with the
Merger Agreement, accompanied by a reliance letter in favor of
the Lenders; and
(iii) the legal opinion of local counsel in each of
Tennessee and Minnesota and of such other special and local
counsel as may be required by the Administrative Agent.
Each such legal opinion shall cover such other matters incidental to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(j) Pledged Stock; Stock Powers; Pledged Notes. The
Administrative Agent shall have received (i) the certificates representing
the shares of Capital Stock pledged
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pursuant to the Guarantee and Collateral Agreement, together with an
undated stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof and (ii) each promissory note (if
any) pledged to the Administrative Agent pursuant to the Guarantee and
Collateral Agreement endorsed (without recourse) in blank (or accompanied
by an executed transfer form in blank) by the pledgor thereof.
(k) Filings, Registrations and Recordings. Each document
(including any Uniform Commercial Code financing statement) required by the
Security Documents or under law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to create
in favor of the Administrative Agent, for the benefit of the Lenders, a
perfected Lien on the Collateral described therein, prior and superior in
right to any other Person (other than with respect to Liens expressly
permitted by Section 7.3), shall be in proper form for filing, registration
or recordation.
(l) Mortgages, etc. (i) The Administrative Agent shall have
received a Mortgage with respect to each Mortgaged Property, executed and
delivered by a duly authorized officer of each party thereto.
(ii) If requested by the Administrative Agent, the
Administrative Agent shall have received, and the title insurance company
issuing the policy referred to in clause (iii) below (the "Title Insurance
Company") shall have received, maps or plats of an as-built survey of the
sites of the Mortgaged Properties certified to the Administrative Agent and
the Title Insurance Company in a manner satisfactory to them, dated a date
satisfactory to the Administrative Agent and the Title Insurance Company by
an independent professional licensed land surveyor satisfactory to the
Administrative Agent and the Title Insurance Company, which maps or plats
and the surveys on which they are based shall be made in accordance with
the Minimum Standard Detail Requirements for Land Title Surveys jointly
established and adopted by the American Land Title Association and the
American Congress on Surveying and Mapping in 1992, and, without limiting
the generality of the foregoing, there shall be surveyed and shown on such
maps, plats or surveys the following: (A) the locations on such sites of
all the buildings, structures and other improvements and the established
building setback lines; (B) the lines of streets abutting the sites and
width thereof; (C) all access and other easements appurtenant to the sites;
(D) all roadways, paths, driveways, easements, encroachments and
overhanging projections and similar encumbrances affecting the site,
whether recorded, apparent from a physical inspection of the sites or
otherwise known to the surveyor; (E) any encroachments on any adjoining
property by the building structures and improvements on the sites; (F) if
the site is described as being on a filed map, a legend relating the survey
to said map; and (G) the flood zone designations, if any, in which the
Mortgaged Properties are located.
(iii) The Administrative Agent shall have received in respect
of each Mortgaged Property a mortgagee's title insurance policy (or
policies) or marked up unconditional binder for such insurance. Each such
policy shall (A) be in an amount satisfactory to the
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Administrative Agent; (B) be issued at ordinary rates; (C) insure that the
Mortgage insured thereby creates a valid first Lien on such Mortgaged
Property free and clear of all defects and encumbrances, except as
disclosed therein; (D) name the Administrative Agent for the benefit of the
Lenders as the insured thereunder; (E) be in the form of ALTA Loan Policy -
1970 (Amended 10/17/70 and 10/17/84) (or equivalent policies); (F) contain
such endorsements and affirmative coverage as the Administrative Agent may
reasonably request and (G) be issued by title companies satisfactory to the
Administrative Agent (including any such title companies acting as
co-insurers or reinsurers, at the option of the Administrative Agent). The
Administrative Agent shall have received evidence satisfactory to it that
all premiums in respect of each such policy, all charges for mortgage
recording tax, and all related expenses, if any, have been paid.
(iv) If requested by the Administrative Agent, the
Administrative Agent shall have received (A) a policy of flood insurance
that (1) covers any parcel of improved real property that is encumbered by
any Mortgage (2) is written in an amount not less than the outstanding
principal amount of the Indebtedness secured by such Mortgage that is
reasonably allocable to such real property or the maximum limit of coverage
made available with respect to the particular type of property under the
National Flood Insurance Act of 1968, whichever is less, and (3) has a term
ending not later than the maturity of the Indebtedness secured by such
Mortgage and (B) confirmation that the Borrower has received the notice
required pursuant to Section 208(e)(3) of Regulation H of the Board.
(v) The Administrative Agent shall have received a copy of all
recorded documents referred to, or listed as exceptions to title in, the
title policy or policies referred to in clause (iii) above and a copy of
all other material documents affecting the Mortgaged Properties.
(m) Appraisals and Solvency Certificate. The Lenders shall
have received satisfactory limited appraisals in summary form (which may
include copies of recent appraisals for other purposes) of the Borrower's
six most valuable manufacturing facilities by appraisers satisfactory to
the Administrative Agent and a satisfactory solvency certificate from the
Chief Financial Officer of the Borrower which shall certify that the
Borrower and its Restricted Subsidiaries are Solvent after giving effect to
the Merger.
(n) No Violation. The Administrative Agent shall be satisfied
that the Borrower and its Subsidiaries are not subject to contractual or
other restrictions that would be violated by the Merger, including, without
limitation, under the Xxxxx Xxxx Senior Subordinated Notes.
(o) Merger Obligations. The Borrower and its Subsidiaries
shall not be in breach or violation of any of its obligations under the
Merger Documentation.
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(p) Hedging Strategies. The Administrative Agent shall have
reviewed and be reasonably satisfied with the terms and provisions of, and
arrangements relating to the Borrower's hedging strategies with respect to
commodity prices.
(q) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of Section 5.3(b) of the
Guarantee and Collateral Agreement.
(r) Additional Matters. All required corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by the Loan Documents shall
be reasonably satisfactory in form and substance to the Administrative
Agent, and the Administrative Agent shall have received such other
documents in respect of the transactions contemplated hereby as it shall
reasonably request.
5.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it on any
date (including its initial extension of credit) is subject to the satisfaction
of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties (including, without limitation, Material
Adverse Effect and litigation representations) made by any Loan Party in or
pursuant to the Loan Documents shall be true and correct on and as of such
date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
Holdings and the Borrower hereby jointly and severally agree
that, so long as the Commitments remain in effect, any Letter of Credit remains
outstanding or any Loan or other amount is owing to any Lender or the
Administrative Agent hereunder, each of Holdings and the Borrower shall and
shall cause each of its Restricted Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative Agent
and each Lender:
(a) as soon as available, but in any event within 100 days
after the end of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related
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audited consolidated statements of income and of cash flows for such year,
setting forth in each case in comparative form the figures for the previous
year, reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by KPMG
Peat Marwick or other independent certified public accountants of
nationally recognized standing; and
(b) as soon as available, but in any event not later than 50
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and of
cash flows for such quarter and the portion of the fiscal year through the
end of such quarter, setting forth in each case in comparative form the
figures for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year-end audit
adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to the
Administrative Agent and each Lender (or, in the case of clause (g), to the
relevant Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default in respect of Sections 7.1, 7.2 and 7.7, except
as specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer stating
that, to the best of each such Responsible Officer's knowledge, each Loan
Party during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this
Agreement and the other Loan Documents to which it is a party to be
observed, performed or satisfied by it, and that such Responsible Officer
has obtained no knowledge of any Default or Event of Default except as
specified in such certificate and (ii) in the case of quarterly or annual
financial statements, (x) a Compliance Certificate containing all
information and calculations necessary for determining compliance by
Holdings, the Borrower and its Restricted Subsidiaries with the provisions
of this Agreement referred to therein as of the last day of the fiscal
quarter or fiscal year of the Borrower, as the case may be, and (y) to the
extent not previously disclosed to the Administrative Agent, a listing of
any county or state within the United States where any Loan Party keeps
inventory or equipment with a fair market value in excess of $150,000, and
a listing of any material Intellectual Property acquired by any Loan Party
since the
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date of the most recent list delivered pursuant to this clause (y) (or, in
the case of the first such list so delivered, since the Closing Date);
(c) as soon as available, and in any event no later than 45
days after the end of each fiscal year of the Borrower, a detailed
consolidated budget for the following fiscal year (including a projected
consolidated balance sheet of the Borrower and its Restricted Subsidiaries
as of the end of the following fiscal year, the related consolidated
statements of projected cash flow, projected changes in financial position
and projected income and a description of the underlying assumptions
applicable thereto), and if any revisions are made to such budget, as soon
as available, significant revisions of such budget with respect to such
fiscal year (collectively, the "Budgets"), which Budgets shall in each case
be accompanied by a certificate of a Responsible Officer stating that such
Budgets are based on reasonable estimates, information and assumptions and
that such Responsible Officer has no reason to believe that such Budgets
are incorrect or misleading in any material respect;
(d) within 50 days after the end of each of the first three
fiscal quarters of the Borrower, and within 100 days after the end of the
fourth fiscal quarter of the Borrower, a narrative discussion and analysis
of the financial condition and results of operations of the Borrower and
its Restricted 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, as compared to the comparable periods of the previous year (with
the delivery of a quarterly or annual report filed with the SEC being
deemed to satisfy the requirement so long as it contains the management
discussion and analysis required by the instructions therefor on the date
hereof);
(e) no later than three Business Days prior to the
effectiveness thereof, copies of substantially final drafts of any proposed
amendment, supplement, waiver or other modification with respect to the
Xxxxx Xxxx Senior Subordinated Note Indenture or the Merger Documentation;
(f) within five days after the same are sent, copies of all
financial statements and reports that Holdings or the Borrower sends to the
holders of any class of its debt securities or public equity securities
and, within five days after quarterly reports are filed and within 10 days
after annual reports are filed, copies of all financial statements and
reports that Holdings or the Borrower may make to, or file with, the SEC;
and
(g) promptly, such additional financial and other information
as the Administrative Agent may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto
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have been provided on the books of Holdings, the Borrower or its Subsidiaries,
as the case may be.
6.4 Maintenance of Existence; Compliance. (a) (i) preserve,
renew and keep in full force and effect its corporate existence and (ii) take
all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business, except, in each
case, as otherwise permitted by Section 7.4 and except, in the case of clause
(ii) above, to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect; and (b) comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted and (b) maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general area by companies engaged in the same or a similar
business.
6.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities and (b)
permit representatives of the Administrative Agent (and, after an Event of
Default has occurred and is continuing, any Lender) to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
at any reasonable time upon not less than one Business Day's notice and as often
as may reasonably be desired and to discuss the business, operations, properties
and financial and other condition of Holdings, the Borrower and its Restricted
Subsidiaries with officers and employees of Holdings, the Borrower and its
Restricted Subsidiaries and with its independent certified public accountants.
6.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of Holdings, the Borrower or any of its Restricted Subsidiaries
or (ii) litigation, investigation or proceeding that may exist at any time
between Holdings, the Borrower or any of its Restricted Subsidiaries and
any Governmental Authority, that in case of either clause (i) or (ii), if
not cured or if adversely determined, as the case may be, could reasonably
be expected to have a Material Adverse Effect;
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(c) any litigation or proceeding affecting Holdings, the
Borrower or any of its Restricted Subsidiaries in which the amount involved
is $2,500,000 or more and not covered by insurance or in which injunctive
or similar relief is sought;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i)
the occurrence of any Reportable Event with respect to any Plan, a failure
by the Borrower or any Commonly Controlled Entity to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a
Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or the Borrower
or any Commonly Controlled Entity or any Multiemployer Plan with respect to
the withdrawal from, or the termination, Reorganization or Insolvency of,
any Plan (other than the termination of a Single Employer Plan by a Loan
Party or any Commonly Controlled Entity pursuant to a standard termination
under Section 404(p) of ERISA); and
(e) any development or event that has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action Holdings, the Borrower or the relevant
Subsidiary proposes to take with respect thereto.
6.8 Environmental Laws. (a) Comply with, and ensure compliance
by all tenants and subtenants, if any, with, all applicable Environmental Laws,
and obtain and comply with and maintain, and ensure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, except where the failure to do so could not reasonably be expected to have
a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives of
all Governmental Authorities regarding Environmental Laws, except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.9 Interest Rate Protection. In the case of the Borrower,
within 60 days after the Closing Date, enter into Hedge Agreements to the extent
necessary to provide that at least 50% of the aggregate principal amount of
total Indebtedness (including the Subordinated Facility, the Xxxxx Senior Notes,
the Xxxxx Xxxx Senior Subordinated Notes, the Xxxxx Xxxx Subordinated Seller
Note, the Exchange Notes and other fixed rate indebtedness) is subject to either
a fixed interest rate or interest rate protection for a period of not less than
three years, which Hedge Agreements shall have terms and conditions reasonably
satisfactory to the Administrative Agent.
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6.10 Additional Collateral, etc. (a) With respect to any
property acquired after the Closing Date with a fair market value in excess of
$150,000 by the Borrower or any of its Subsidiaries (other than (x) any property
described in paragraph (b), (c) or (d) below, (y) any property subject to a Lien
expressly permitted by Section 7.3(g) and (z) property acquired by any
Unrestricted Subsidiary or Joint Venture) as to which the Administrative Agent,
for the benefit of the Lenders, does not have a perfected Lien, promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee
and Collateral Agreement or such other documents as the Administrative Agent
deems necessary or advisable to grant to the Administrative Agent, for the
benefit of the Lenders, a security interest in such property, (ii) amend
Schedule 1.1B hereto and (iii) take all actions necessary or advisable to grant
to the Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in such property, including the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by
the Guarantee and Collateral Agreement or by law or as may be requested by the
Administrative Agent.
(b) With respect to any fee interest in any real property
having a value (together with improvements thereof) of at least $1,000,000
acquired after the Closing Date by the Borrower or any of its Subsidiaries
(other than (x) any such real property subject to a Lien expressly permitted by
Section 7.3(g) and (y) real property acquired by any Unrestricted Subsidiary or
Joint Venture), promptly (i) execute and deliver a first priority Mortgage, in
favor of the Administrative Agent, for the benefit of the Lenders, covering such
real property, (ii) if requested by the Administrative Agent, provide the
Lenders with (x) title and extended coverage insurance covering such real
property in an amount at least equal to the purchase price of such real property
(or such other amount as shall be reasonably specified by the Administrative
Agent) as well as a current ALTA survey thereof, together with a surveyor's
certificate and (y) any consents or estoppels reasonably deemed necessary or
advisable by the Administrative Agent in connection with such mortgage or deed
of trust, each of the foregoing in form and substance reasonably satisfactory to
the Administrative Agent and (iii) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
(c) With respect to any new Domestic Subsidiary or Domestic
Joint Venture created or acquired after the Closing Date by the Borrower or any
of its Restricted Subsidiaries (including the redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary), promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in the Capital Stock of such new Domestic Subsidiary or
Domestic Joint Venture that is owned by the Borrower or any of its Restricted
Subsidiaries, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the Borrower or such
Domestic Subsidiary or Domestic Joint Venture, as the case may be, (iii) cause
such new Domestic Subsidiary (A) to become a party to the Guarantee and
Collateral Agreement, (B) to take such actions necessary
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or advisable to grant to the Administrative Agent for the benefit of the Lenders
a perfected first priority security interest in the Collateral described in the
Guarantee and Collateral Agreement with respect to such new Domestic Subsidiary
including, the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement or by
law or as may be requested by the Administrative Agent and (C) to deliver to the
Administrative Agent a certificate of such Domestic Subsidiary, substantially in
the form of Exhibit C, with appropriate insertions and attachments, and (iv) if
requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(d) With respect to any new Foreign Subsidiary or Foreign
Joint Venture created or acquired after the Closing Date by the Borrower or any
of its Restricted Subsidiaries (including the redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary), promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in the Capital Stock of such new Foreign Subsidiary or Foreign
Joint Venture that is owned by the Borrower or any of its Restricted
Subsidiaries (provided that in no event shall more than 662/3% of the total
outstanding Capital Stock of any such new Foreign Subsidiary or Foreign Joint
Venture be required to be so pledged), (ii) deliver to the Administrative Agent
the certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
Borrower or such Foreign Subsidiary or Foreign Joint Venture, as the case may
be, and take such other action as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Administrative Agent's security
interest therein, and (iii) if requested by the Administrative Agent, deliver to
the Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or the Administrative Agent hereunder, the
Borrower shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as at the last day of any period of four consecutive fiscal quarters of
the Borrower ending with any fiscal quarter set forth below to exceed the ratio
set forth below opposite such fiscal quarter:
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Fiscal Quarter Consolidated Leverage Ratio
-------------- ---------------------------
3/31/99 5.50:1.00
6/30/99 - 9/30/99 5.25:1.00
12/31/99 - 3/31/00 5.00:1.00
6/30/00 - 9/30/00 4.75:1.00
12/31/00 - 3/31/01 4.25:1.00
6/30/01 - 9/30/01 4.00:1.00
12/31/01 - 3/31/02 3.75:1.00
6/30/02 - 9/30/02 3.50:1.00
12/31/02 - 3/31/03 3.25:1.00
6/30/03 - 9/30/03 3.00:1.00
12/31/03 and thereafter 2.75:1.00
(b) Consolidated Senior Debt Ratio. Permit the Consolidated
Senior Debt Ratio as at the last day of any period of four consecutive fiscal
quarters of the Borrower ending with any fiscal quarter set forth below to
exceed the ratio set forth below opposite such fiscal quarter:
Fiscal Quarter Consolidated Senior Debt
-------------- ------------------------
3/31/99 - 6/30/99 3.85:1.00
9/30/99 - 12/31/99 3.75:1.00
3/31/00 - 6/30/00 3.50:1.00
9/30/00 - 12/31/00 3.25:1.00
3/31/01 - 6/30/01 3.00:1.00
9/30/01 - 12/31/01 2.75:1.00
3/31/02 - 6/30/02 2.50:1.00
9/30/02 - 12/31/02 2.25:1.00
3/31/03 - 6/30/03 2.00:1.00
9/30/03 and thereafter 1.75:1.00
(c) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower ending with any fiscal quarter set
forth below to be less than the ratio set forth below opposite such fiscal
quarter:
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Fiscal Quarter Consolidated Interest Coverage Ratio
-------------- ------------------------------------
3/31/99 1.80:1.00
6/30/99 - 9/30/99 1.90:1.00
12/31/99 - 3/31/00 2.00:1.00
6/30/00 - 9/30/00 2.05:1.00
12/31/00 - 3/31/01 2.10:1.00
6/30/01 - 9/30/01 2.20:1.00
12/31/01 - 3/31/02 2.30:1.00
6/30/02 - 9/30/02 2.40:1.00
12/31/02 - 3/31/03 2.50:1.00
6/30/03 - 9/30/03 2.60:1.00
12/31/03 - 3/31/04 2.70:1.00
6/30/04 and thereafter 2.75:1.00
(d) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower ending with any fiscal quarter set forth below
to be less than the ratio set forth below opposite such fiscal quarter:
Fiscal Quarter Consolidated Fixed Charge Coverage Ratio
------------- ----------------------------------------
12/31/99 - 9/30/05 1.00:1.00
12/31/05 0.90:1.00
3/31/06 0.70:1.00
6/30/06 and thereafter 0.50:1.00
7.2 Indebtedness. Create, issue, incur, assume, become liable
in respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
(b) Indebtedness of the Borrower to any Subsidiary and of any
Restricted Subsidiary to the Borrower or any other Subsidiary;
(c) Guarantee Obligations incurred in the ordinary course of
business by the Borrower or any of its Subsidiaries of obligations of any
Restricted Subsidiary;
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(d) Indebtedness outstanding on the date hereof and listed on
Schedule 7.2(d) and any refinancings, refundings, renewals or extensions
thereof (without increasing, or shortening the maturity of, the principal
amount thereof);
(e) Indebtedness under the Xxxxx Xxxx Senior Subordinated
Notes, the Subordinated Facility, the Exchange Notes and the Xxxxx Senior
Notes, which shall be in an aggregate principal amount as of the Closing
Date of at least $120,000,000, provided that to the extent the sum of the
aggregate principal amount of such Indebtedness under the Xxxxx Xxxx Senior
Subordinated Notes, the Subordinated Facility, the Xxxxx Senior Notes and
the Exchange Notes as of the Closing Date exceeds $120,000,000, the Xxxxx
Xxxx Senior Subordinated Notes shall be defeased and the Xxxxx Xxxx
Subordinated Seller Note shall be prepaid and, upon defeasance or
prepayment in full thereof, the Term Loans made on the Closing Date shall
be equivalently reduced below $245,000,000 as contemplated in the
Commitment Letter dated as of September 23, 1998;
(f) Indebtedness with respect to IDB (other than the Clinton
IDB and the Ottawa IDB) in an aggregate amount not to exceed $20,000,000;
(g) additional Indebtedness of the Borrower or any of its
Restricted Subsidiaries in an aggregate principal amount (for the Borrower
and all Restricted Subsidiaries) not to exceed $10,000,000 at any one time
outstanding; and
(h) Refinancing Subordinated Debt.
7.3 Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or that are being contested in
good faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Borrower or its
Restricted Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
that are not overdue for a period of more than 30 days or that are being
contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in
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amount and that do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct
of the business of the Borrower or any of its Restricted Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f), other than liens pursuant to the MDFC Operating Lease (only on
property subject to MDFC Operating Lease), provided that no such Lien is
spread to cover any additional property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness permitted by Section 7.2(f);
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered
into by the Borrower or any other Restricted Subsidiary in the ordinary
course of its business and covering only the assets so leased; and
(j) Liens not otherwise permitted by this Section so long as
neither (i) the aggregate outstanding principal amount of the obligations
secured thereby nor (ii) the aggregate fair market value (determined as of
the date such Lien is incurred) of the assets subject thereto exceeds (as
to the Borrower and all Restricted Subsidiaries) $10,000,000 at any one
time.
7.4 Fundamental Changes. Enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of, all or substantially all of its
property or business, except that:
(a) Holdings or any Restricted Subsidiary of the Borrower may
be merged or consolidated with or into or liquidated and dissolved and pay
liquidating dividends to, the Borrower (provided that the Borrower shall be
the continuing or surviving corporation) or with or into any Restricted
Subsidiary (provided that the Restricted Subsidiary shall be the continuing
or surviving corporation); and
(b) any Restricted Subsidiary of the Borrower may Dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to the
Borrower or any Restricted Subsidiary.
7.5 Disposition of Property. Dispose of any of its property,
whether now owned or hereafter acquired, or, in the case of any Restricted
Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any
Person, except:
(a) the Disposition of obsolete or worn out property in the
ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
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(c) Dispositions permitted by Section 7.4(b);
(d) Dispositions as set forth on Schedule 7.5 hereto;
(e) the sale or issuance of any Subsidiary's Capital Stock to
the Borrower or any Restricted Subsidiary; and
(f) the Disposition of other property having a fair market
value not to exceed $20,000,000 in the aggregate.
7.6 Restricted Payments. Declare or pay any dividend (other
than dividends payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any Capital Stock of Holdings, the Borrower
or any Restricted Subsidiary, whether now or hereafter outstanding, or make any
repurchases and redemptions of subordinated debt (other than as indicated in the
Sources and Uses Table), or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
Holdings, the Borrower or any Restricted Subsidiary (collectively, "Restricted
Payments"), except that:
(a) any Restricted Subsidiary may make Restricted Payments to
the Borrower or any Restricted Subsidiary;
(b) so long as no Default or Event of Default shall have
occurred and be continuing or would occur as a result thereof, the Borrower
may pay dividends to Holdings to permit Holdings to purchase Holdings'
common stock or common stock options from present or former officers or
employees of Holdings, the Borrower or any Subsidiary upon the death,
disability or termination of employment of such officer or employee,
provided, that the aggregate amount of payments under this clause after the
date hereof (net of any proceeds received by Holdings and contributed to
the Borrower after the date hereof in connection with resales of any common
stock or common stock options so purchased) shall not exceed $5,000,000;
(c) the Borrower may pay dividends to Holdings to permit
Holdings to (i) pay corporate overhead expenses incurred in the ordinary
course of business not to exceed $1,000,000 in any fiscal year and (ii) pay
any taxes that are due and payable by Holdings and the Borrower as part of
a consolidated group;
(d) the Xxxxx Xxxx Subordinated Seller Note may be repaid as
contemplated by Section 7.2(e) or if after giving effect to such repayment
of the Xxxxx Xxxx Subordinated Seller Note, the sum of (x) the amount of
cash and Cash Equivalents on hand of the Borrower plus (y) the Available
Revolving Commitment shall equal or exceed $15,000,000;
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(e) the Borrower may pay dividends in cash and in kind of
additional shares of Preferred Stock on Preferred Stock and consent and
waiver fees on the Preferred Stock in an amount not to exceed $1,000,000 to
be paid within 10 days of the Closing Date; and
(f) the Borrower may exchange Exchange Notes for Xxxxx Xxxx
Senior Subordinated Notes or purchase Xxxxx Xxxx Senior Subordinated Notes
with the proceeds of the Subordinated Facility; and the Borrower may
defease the outstanding Xxxxx Xxxx Senior Subordinated Notes and may
refinance the Subordinated Facility (i) with the proceeds of Loans
hereunder so long as after giving effect thereto the sum of (x) the
aggregate principal amount of the Subordinated Facility and (y) the
aggregate principal amount of the Xxxxx Xxxx Senior Subordinated Notes and
the Xxxxx Senior Notes exchanged for Exchange Notes is at least
$120,000,000 or (ii) with the proceeds of other subordinated debt
("Refinancing Subordinated Debt") having no scheduled amortization prior to
the date at least three months after the maturity date of the Tranche C
Term Loans and having subordination and other terms and conditions
reasonably satisfactory to the Administrative Agent.
7.7 Capital Expenditures. Make or commit to make any Capital
Expenditure, except (a) Capital Expenditures of the Borrower and its Restricted
Subsidiaries in the ordinary course of business not exceeding $26,500,000 in any
fiscal year (excluding any Capital Expenditure related to the Clinton IDB for
fiscal year 1999 not exceeding $1,500,000); provided, that (i) up to $10,000,000
of any such amount referred to above, if not so expended in the fiscal year for
which it is permitted, may be carried over for expenditure in the next
succeeding fiscal year and (ii) Capital Expenditures made pursuant to this
clause (a) during any fiscal year shall be deemed made, first, in respect of
amounts permitted for such fiscal year as provided above and, second, in respect
of amounts carried over from the prior fiscal year pursuant to subclause (i)
above and (b) Capital Expenditures made with the proceeds of any Reinvestment
Deferred Amount.
7.8 Investments. Make any advance, loan, extension of credit
(by way of guaranty or otherwise) or capital contribution to, or purchase any
Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting a business unit of, or make any other investment in, any
Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of
business;
(b) Investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to employees of Holdings, the Borrower
or any Subsidiary of the Borrower in the ordinary course of business
(including for travel, entertainment and relocation expenses) in an
aggregate amount for Holdings, the Borrower or any Subsidiary of the
Borrower not to exceed $1,000,000 at any one time outstanding;
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(e) loans and advances to employees of Holdings, the Borrower
or any Subsidiary of the Borrower to purchase stock of Holdings not to
exceed $1,000,000 in the aggregate at any one time outstanding;
(f) Investments in assets useful in the business of the
Borrower and its Restricted Subsidiaries made by the Borrower or any of its
Restricted Subsidiaries with the proceeds of any Reinvestment Deferred
Amount;
(g) Investments by Holdings, the Borrower or any of its
Subsidiaries in the Borrower or any Person that, prior to such Investment,
is a Restricted Subsidiary;
(h) in addition to Investments otherwise expressly permitted
by this Section, Investments by the Borrower or any of its Subsidiaries in
an aggregate amount (valued at cost) not to exceed $2,500,000 during the
term of this Agreement;
(i) Permitted Acquisitions; and
(j) Investments in and acquisitions of Unrestricted
Subsidiaries and Joint Ventures (excluding existing Investments in existing
Unrestricted Subsidiaries and Joint Ventures but including the
redesignation of a Restricted Subsidiary as an Unrestricted Subsidiary with
the amount of such Investment being deemed to be the value of such
Subsidiary on the date of such redesignation) in an aggregate amount of
$15,000,000 (such amount to increase by $2,500,000 per year each year after
the first year following the Closing Date, but not to exceed $25,000,000 in
the aggregate).
7.9 Optional Payments and Modifications of Certain Debt
Instruments. (a) Make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of or otherwise optionally or voluntarily
defease or segregate funds with respect to the Xxxxx Xxxx Senior Subordinated
Notes, the Exchange Notes or any Refinancing Subordinated Debt; provided that
the Borrower may refinance or defease the Xxxxx Xxxx Senior Subordinated Notes
or the Exchange Notes as contemplated by this Agreement, (b) amend, modify,
waive or otherwise change, or consent or agree to any amendment, modification,
waiver or other change to, any of the terms of the Xxxxx Xxxx Senior
Subordinated Notes or the Exchange Notes or the Refinancing Subordinated Debt,
(other than any such amendment, modification, waiver or other change that (i)
would extend the maturity or reduce the amount of any payment of principal
thereof or reduce the rate or extend any date for payment of interest thereon
and (ii) does not involve the payment of a consent fee), (c) amend, modify,
waive or otherwise change, or consent or agree to any amendment, modification,
waiver or other change to, any of the terms of the Preferred Stock (other than
any such amendment, modification, waiver or other change that (i) would extend
the scheduled redemption date or reduce the amount of any scheduled redemption
payment or reduce the rate or extend any date for payment of dividends thereon
and (ii) does not involve the payment of a consent fee) or (d) designate any
Indebtedness (other than obligations of the Loan Parties pursuant to the Loan
Documents) as "Designated Senior Indebtedness" for the purposes of the Exchange
Note Indenture or any Refinancing Subordinated Debt.
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7.10 Transactions with Affiliates. Except as set forth on
Schedule 7.10 hereto, enter into any transaction, including any purchase, sale,
lease or exchange of property, the rendering of any service or the payment of
any management, advisory or similar fees, with any Affiliate (other than
Holdings, the Borrower or any Restricted Subsidiary) unless such transaction is
(a) otherwise permitted under this Agreement, (b) in the ordinary course of
business of Holdings, the Borrower or such Subsidiary, as the case may be, or
(c) upon fair and reasonable terms no less favorable to Holdings, the Borrower
or such Subsidiary, as the case may be, than it would obtain in a comparable
arm's length transaction with a Person that is not an Affiliate.
7.11 Sales and Leasebacks. Enter into any arrangement with any
Person providing for the leasing by Holdings, the Borrower or any Restricted
Subsidiary of real or personal property that has been or is to be sold or
transferred by Holdings, the Borrower or such Subsidiary to such Person or to
any other Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of Holdings, the Borrower or
such Subsidiary other than liens pursuant to the MDFC Operating Lease (only on
property subject of MDFC Operating Lease).
7.12 Changes in Fiscal Periods. Permit the fiscal year of the
Borrower to end on a day other than a Saturday or other day within one week of
December 31.
7.13 Negative Pledge Clauses. Enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of Holdings
(with respect to the Capital Stock of the Borrower), the Borrower or any of its
Restricted Subsidiaries to create, incur, assume or suffer to exist any Lien
upon any of its property or revenues, whether now owned or hereafter acquired,
to secure its obligations under the Loan Documents to which it is a party other
than (a) this Agreement and the other Loan Documents, (b) the Xxxxx Xxxx Senior
Subordinated Note Indenture, the Xxxxx Senior Note Indenture or the Exchange
Note Indenture, (c) IDB (only on property subject of IDB), (d) MDFC Operating
Lease or other operating leases (only on property subject of MDFC Operating
Lease or other operating leases), (e) Refinancing Subordinated Debt (only to the
extent similar to Xxxxx Xxxx Senior Subordinated Notes) and (f) any agreements
governing any purchase money Liens or Capital Lease Obligations otherwise
permitted hereby (in which case, any prohibition or limitation shall only be
effective against the assets financed thereby).
7.14 Clauses Restricting Restricted Subsidiary Distributions.
Enter into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary of the Borrower to (a)
make Restricted Payments in respect of any Capital Stock of such Restricted
Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any other
Restricted Subsidiary of the Borrower, (b) make loans or advances to, or other
Investments in, the Borrower or any other Restricted Subsidiary of the Borrower
or (c) transfer any of its assets to the Borrower or any other Restricted
Subsidiary of the Borrower, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan
Documents, (ii) any restrictions under agreements in effect as of the Closing
Date or any agreements replacing such agreements, and (iii) any restrictions
with respect to a Restricted Subsidiary imposed pursuant to an agreement that
has been entered into in connection
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with the Disposition of all or substantially all of the Capital Stock or assets
of such Restricted Subsidiary.
7.15 Lines of Business. Enter into any business, either
directly or through any Subsidiary, except for those businesses in which the
Borrower and its Restricted Subsidiaries are engaged on the date of this
Agreement or that are reasonably related thereto.
7.16 Amendments to Merger Documents. (a) Amend, supplement or
otherwise modify (pursuant to a waiver or otherwise) the terms and conditions of
the indemnities and licenses furnished to the Borrower or any of its
Subsidiaries pursuant to the Merger Documentation or any other document
delivered in connection therewith such that after giving effect thereto such
indemnities or licenses shall be materially less favorable to the interests of
the Loan Parties or the Lenders with respect thereto or (b) otherwise amend,
supplement or otherwise modify the terms and conditions of the Merger
Documentation or any such other documents except for any such amendment,
supplement or modification that (i) becomes effective after the Closing Date and
(ii) could not reasonably be expected to have a Material Adverse Effect.
7.17 Issuances of Preferred Stock. Issue any shares of any
preferred stock other than in accordance with Section 7.6(e) hereof or to the
extent permitted by Section 7.8.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan
or Reimbursement Obligation when due in accordance with the terms hereof;
or the Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other amount becomes
due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any such other Loan
Document shall prove to have been inaccurate in any material respect on or
as of the date made or deemed made; or
(c) (i) any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of Section
6.4(a) (with respect to Holdings and the Borrower only), Section 6.7(a) or
Section 7 of this Agreement or Sections 5.5 and 5.7(b) of the Guarantee and
Collateral Agreement or (ii) an "Event of Default" under and as defined in
any Mortgage shall have occurred and be continuing; or
(d) any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any other
Loan Document (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue
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unremedied for a period of 30 days after notice to the Borrower from the
Administrative Agent; or
(e) Holdings, the Borrower or any of its Restricted
Subsidiaries shall (i) default in making any payment of any principal of
any Indebtedness (including any Guarantee Obligation, but excluding the
Loans) on the scheduled or original due date with respect thereto; or (ii)
default in making any payment of any interest on any such Indebtedness
beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness was created; or (iii) default in the
observance or performance of any other agreement or condition relating to
any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is
to cause, or to permit the holder or beneficiary of such Indebtedness (or a
trustee or agent on behalf of such holder or beneficiary) to cause, with
the giving of notice if required, such Indebtedness to become due prior to
its stated maturity or (in the case of any such Indebtedness constituting a
Guarantee Obligation) to become payable; provided, that a default, event or
condition described in clause (i), (ii) or (iii) of this paragraph (e)
shall not at any time constitute an Event of Default unless, at such time,
one or more defaults, events or conditions of the type described in clauses
(i), (ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of
which exceeds in the aggregate $5,000,000; or
(f) (i) Holdings, the Borrower or any of its Restricted
Subsidiaries shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking
to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or Holdings, the
Borrower or any of its Restricted Subsidiaries shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against Holdings, the Borrower or any of its Restricted
Subsidiaries any case, proceeding or other action of a nature referred to
in clause (i) above that (A) results in the entry of an order for relief or
any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against Holdings, the Borrower or any of its Restricted
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets that results in the entry of an order
for any such relief that shall not have been vacated, discharged, or stayed
or bonded pending appeal within 60 days from the entry thereof; or (iv)
Holdings, the Borrower or any of its Restricted Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) Holdings, the Borrower or any of its Restricted Subsidiaries
shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
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(g) (i) any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise
on the assets of the Borrower or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence
to have a trustee appointed, or a trustee shall be appointed, to administer
or to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of,
a Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or
conditions, if any, could, in the sole judgment of the Required Lenders,
reasonably be expected to have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against
Holdings, the Borrower or any of its Restricted Subsidiaries involving in
the aggregate a liability (not paid or fully covered by insurance as to
which the relevant insurance company has acknowledged coverage) of
$5,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 30 days from
the entry thereof; or
(i) any of the Security Documents shall cease, for any reason,
to be in full force and effect, or any Loan Party or any Affiliate of any
Loan Party shall so assert, or any Lien created by any of the Security
Documents shall cease to be enforceable and of the same effect and priority
purported to be created thereby; or
(j) the guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason, to be in full force and
effect or any Loan Party or any Affiliate of any Loan Party shall so
assert; or
(k) (i) the Permitted Investors shall cease to have the power
to vote or direct the voting of securities having a majority of the
ordinary voting power for the election of directors of Holdings (determined
on a fully diluted basis); (ii) the Permitted Investors shall cease to own
of record and beneficially an amount of common stock of Holdings equal to
at least 51% (or, after the consummation of an initial public offering of
common stock of Holdings, 35%) of the amount of common stock of Holdings
owned by the Permitted Investors of record and beneficially as of the
Closing Date; (iii) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), excluding the Permitted Investors, shall become, or
obtain rights (whether by means or warrants, options or otherwise) to
become,
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the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the
Exchange Act), directly or indirectly, of more than 30% of the outstanding
common stock of Holdings; (iv) the board of directors of Holdings shall
cease to consist of a majority of Continuing Directors; (v) Holdings shall
cease to own and control, of record and beneficially, directly, 100% of
each class of outstanding Capital Stock of the Borrower (other than
Preferred Stock) free and clear of all Liens (except Liens created by the
Guarantee and Collateral Agreement) (any event specified in clauses (i)
through (v) above constituting a "Change of Control"); or (vi) a Specified
Change of Control shall occur if the Borrower becomes obligated to redeem
or repurchase its bonds, notes or other securities having an aggregate face
value in excess of $5,000,000; or
(l) the Xxxxx Xxxx Senior Subordinated Notes or the Exchange
Notes or the guarantees thereof shall cease, for any reason, to be validly
subordinated to the Obligations or the obligations of the Restricted
Subsidiaries under the Guarantee and Collateral Agreement, as the case may
be, as provided in the indenture therefor, or any Loan Party, any Affiliate
of any Loan Party, the trustee in respect of the Xxxxx Xxxx Senior
Subordinated Notes or the Exchange Notes or the holders of at least 25% in
aggregate principal amount of the Xxxxx Xxxx Senior Subordinated Notes or
the Exchange Notes shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the consent of
the Majority Revolving Facility Lenders, the Administrative Agent may, or upon
the request of the Majority Revolving Facility Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Revolving Commitments to be
terminated forthwith, whereupon the Revolving Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the other
Loan Documents (including all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) to be due and payable forthwith, whereupon the
same shall immediately become due and payable. With respect to all Letters of
Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit
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shall have expired or been fully drawn upon, if any, shall be applied to repay
other obligations of the Borrower hereunder and under the other Loan Documents.
After all such Letters of Credit shall have expired or been fully drawn upon,
all Reimbursement Obligations shall have been satisfied and all other
obligations of the Borrower hereunder and under the other Loan Documents shall
have been paid in full, the balance, if any, in such cash collateral account
shall be returned to the Borrower (or such other Person as may be lawfully
entitled thereto). Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived by the Borrower.
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
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9.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to Holdings or the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the Person named in the Register as
payee of any Note as the owner thereof for all purposes unless a written notice
of assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders, the Majority Facility Lenders, or, if so specified by this
Agreement, all Lenders, as it deems appropriate or it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders, the Majority
Facility Lenders, or, if so specified by this Agreement, all Lenders, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders and all future holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender, Holdings or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or, if
so specified by this Agreement, all Lenders); provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or Affiliates have
made any representations or warranties to it and that no act by any Agent
hereinafter taken, including any review of the affairs of a Loan Party or any
Affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance
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upon any Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own
decision to make its Loans hereunder and enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon any Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their affiliates. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan Party or any
Affiliate of a Loan Party that may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent
in its capacity as such (to the extent not reimbursed by Holdings or the
Borrower and without limiting the obligation of Holdings or the Borrower to do
so), ratably according to their respective Aggregate Exposure Percentages in
effect on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by such Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from such Agent's
gross negligence or willful misconduct. The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Loan Party as though such Agent was not an Agent. With
respect to its Loans made or renewed by it and with respect to any Letter of
Credit issued or participated in by it, each Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Agent; and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor
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agent for the Lenders, which successor agent shall (unless an Event of Default
under Section 8(a) or Section 8(f) with respect to the Borrower shall have
occurred and be continuing) be subject to approval by the Borrower (which
approval shall not be unreasonably withheld or delayed), whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 10 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. After any retiring Administrative Agent's
resignation as Administrative 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 Administrative Agent under this Agreement and the other Loan Documents.
9.10 Authorization to Release Guarantees and Liens.
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, the Administrative Agent is hereby irrevocably authorized by each of
the Lenders (without requirement of notice to or consent of any Lender except as
expressly required by Section 10.1) to take any action requested by the Borrower
having the effect of releasing any Collateral or Guarantee Obligations to the
extent necessary to permit consummation of any transaction not prohibited by any
Loan Document or to the extent reasonably related to the redesignation of a
Restricted Subsidiary as an Unrestricted Subsidiary in accordance with the
provisions hereof or that has been consented to in accordance with Section 10.1.
9.11 Documentation Agent, Syndication Agent and Co-Lead
Arrangers. Neither the Documentation Agent, Syndication Agent nor the Co-Lead
Arrangers shall have any duties or responsibilities hereunder in its capacity as
such.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may,
or, with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party to the relevant Loan Document may, from time to time, (a)
enter into written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders
or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
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supplement or modification shall (i) forgive the principal amount or extend the
final scheduled date of maturity of any Loan, extend the scheduled date or
principal amount of any amortization payment in respect of any Term Loan, reduce
the stated rate of any interest or fee payable hereunder or extend the scheduled
date of any payment thereof, or increase the amount or extend the expiration
date of any Lender's Revolving Commitment, in each case without the consent of
each Lender directly affected thereby; (ii) amend, modify or waive any provision
of this Section 10.1 or reduce any percentage specified in the definition of
Required Lenders or Required Prepayment Lenders, consent to the assignment or
transfer by any Loan Party of any of its rights and obligations under this
Agreement and the other Loan Documents, release all or substantially all of the
Collateral or release Holdings or all or substantially all of the other
Guarantors from its or their obligations under the Guarantee and Collateral
Agreement (except as set forth in Section 8.16 in the Guarantee and Collateral
Agreement), in each case without the written consent of all Lenders; (iii)
amend, modify or waive any condition precedent to any extension of credit under
the Revolving Facility set forth in Section 5.2 (including in connection with
any waiver of an existing Default or Event of Default) without the written
consent of the Majority Revolving Facility Lenders; (iv) amend, modify or waive
any provision of Section 2.17 without the consent of the Majority Facility
Lenders in respect of each Facility adversely affected thereby; (v) reduce the
percentage specified in the definition of Majority Facility Lenders with respect
to any Facility without the written consent of all Lenders under such Facility;
(vi) amend, modify or waive any provision of Section 9 without the written
consent of the Administrative Agent; (vii) amend, modify or waive any provision
of Section 2.6 or 2.7 without the written consent of the Swingline Lender;
(viii) amend, modify or waive any provision of Section 3 without the written
consent of the Issuing Lender or (ix) amend, modify or waive any provisions in
the Loan Documents to add additional facilities (with tenors not shorter than
and on terms no less favorable than the Facilities) entitled to share ratably in
the Collateral and in prepayments without the written consent of the
Supermajority Lenders. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Agents and all future holders of the
Loans. In the case of any waiver, the Loan Parties, the Lenders and the Agents
shall be restored to their former position and rights hereunder and under the
other Loan Documents, and any Default or Event of Default waived shall be deemed
to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of Holdings, the Borrower, the
Administrative Agent, the Syndication Agent and the Documentation Agent, and as
set forth in an administrative questionnaire delivered to the Administrative
Agent in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:
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Holdings: Xxxxx Pet Care Enterprises, Inc.
Eight Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Borrower: Xxxxx Pet Care Company
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: Xxxxxx & Xxxxxx LLP
2300 First City Tower
0000 Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Administrative Agent: The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: The Chase Manhattan Bank
One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Syndication Agent: DLJ Capital Funding, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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The Documentation Agent: Mercantile Bank National Association
000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of any Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Agents and the Co-Lead Arrangers for all their reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable fees and
disbursements of counsel to the Administrative Agent and filing and recording
fees and expenses, with statements with respect to the foregoing to be submitted
to the Borrower prior to the Closing Date (in the case of amounts to be paid on
the Closing Date) and from time to time thereafter on a quarterly basis or such
other periodic basis as the Administrative Agent shall deem appropriate, (b) to
pay or reimburse each Lender and the Agents for all its costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any such other documents, including
the reasonable fees and disbursements of counsel (including the allocated fees
and expenses of in-house counsel) to each Lender and of counsel to the
Administrative Agent, (c) to pay, indemnify, and hold each Lender, the Co-Lead
Arrangers and the Agents (and their affiliates and their respective officers,
directors, employees, advisors and agents) harmless from, any and all recording
and filing fees and any and all liabilities with respect to, or resulting from
any delay in paying, stamp, excise and other taxes, if any, that may be payable
or determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents,
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and (d) to pay, indemnify, and hold each Lender, the Co-Lead Arrangers and the
Agents and their respective officers, directors, employees, affiliates, agents
and controlling persons (each, an "Indemnitee") harmless from and against any
and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents, including any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of Holdings, the Borrower any of
its Subsidiaries or any of the Properties and the reasonable fees and expenses
of legal counsel in connection with claims, actions or proceedings by any
Indemnitee against any Loan Party under any Loan Document (all the foregoing in
this clause (d), collectively, the "Indemnified Liabilities"), provided, that
the Borrower shall have no obligation hereunder to any Indemnitee with respect
to Indemnified Liabilities to the extent such Indemnified Liabilities are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of such
Indemnitee. Without limiting the foregoing, and to the extent permitted by
applicable law, the Borrower agrees not to assert and to cause its Subsidiaries
not to assert, and hereby waives and agrees to cause its Subsidiaries to so
waive, all rights for contribution or any other rights of recovery with respect
to all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature, under or related to Environmental
Laws, that any of them might have by statute or otherwise against any
Indemnitee. All amounts due under this Section 10.5 shall be payable not later
than 15 days after written demand therefor. Statements payable by the Borrower
pursuant to this Section 10.5 shall be submitted to Xxxxxx X. Xxxxxxxxxx
(Telephone No. (000) 000-0000) (Telecopy No. (000) 000-0000), at the address of
the Borrower set forth in Section 10.2, or to such other Person or address as
may be hereafter designated by the Borrower in a written notice to the
Administrative Agent. The agreements in this Section 10.5 shall survive
repayment of the Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of Holdings,
the Borrower, the Lenders, the Agents, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
in any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. In no event shall any Participant
under any such
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participation have any right to approve any amendment or waiver of any provision
of any Loan Document, or any consent to any departure by any Loan Party
therefrom, except to the extent that such amendment, waiver or consent would
reduce the principal of, or interest on, the Loans or any fees payable
hereunder, or postpone the date of the final maturity of the Loans, in each case
to the extent subject to such participation. The Borrower agrees that if amounts
outstanding under this Agreement and the Loans are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.18, 2.19 and 2.20 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; provided that, in the case of Section 2.19, such Participant
shall have complied with the requirements of said Section and provided, further,
that no Participant shall be entitled to receive any greater amount pursuant to
any such Section than the transferor Lender would have been entitled to receive
in respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with
applicable law, at any time and from time to time assign to any Lender or any
Affiliate thereof or a Related Fund of any Lender or, with the consent of the
Borrower and the Administrative Agent (which, in each case, shall not be
unreasonably withheld or delayed), to an additional bank, financial institution
or other entity (an "Assignee") all or any part of its rights and obligations
under this Agreement pursuant to an Assignment and Acceptance, executed by such
Assignee, such Assignor and any other Person whose consent is required pursuant
to this paragraph, and delivered to the Administrative Agent for its acceptance
and recording in the Register; provided that no such assignment to an Assignee
(other than any Lender or any Affiliate thereof or a Related Fund of any Lender)
shall be in an aggregate principal amount of less than $5,000,000 (other than in
the case of an assignment of all of a Lender's interests under this Agreement),
unless otherwise agreed by the Borrower and the Administrative Agent. Any such
assignment need not be ratable as among the Facilities. Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with a Commitment and/or
Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of an Assignor's rights and obligations under this Agreement, such Assignor
shall cease to be a party hereto). Notwithstanding any provision of this Section
10.6, the consent of the Borrower shall not be required for any assignment that
occurs when an Event of Default pursuant to Sections 8(a), 8(c) or 8(f) shall
have occurred and be continuing with respect to the Borrower.
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(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitment of, and
the principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, each other Loan Party, the Agents and the Lenders shall treat
each Person whose name is recorded in the Register as the owner of the Loans and
any Notes evidencing the Loans recorded therein for all purposes of this
Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall
be effective only upon appropriate entries with respect thereto being made in
the Register (and each Note shall expressly so provide). Any assignment or
transfer of all or part of a Loan evidenced by a Note shall be registered on the
Register only upon surrender for registration of assignment or transfer of the
Note evidencing such Loan, accompanied by a duly executed Assignment and
Acceptance, and thereupon one or more new Notes shall be issued to the
designated Assignee.
(e) Upon its receipt of an Assignment and Acceptance executed
by an Assignor, an Assignee and any other Person whose consent is required by
Section 10.6(c), together with payment to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) record the information
contained therein in the Register on the effective date determined pursuant
thereto.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 10.6 concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
(g) The Borrower, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (f) above.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular Lender
or to the Lenders under a particular Facility, if any Lender (a "Benefitted
Lender") shall receive any payment of all or part of the Obligations owing to
it, or receive any Collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8(f), or otherwise), in a greater proportion than any
such payment to or Collateral received by any other Lender, if any, in respect
of the Obligations owing to such other Lender, such Benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of the Obligations owing to each such other Lender, or shall provide
such other Lenders with the benefits of any such Collateral, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, or is repaid in good faith settlement of
a pending or threatened avoidance
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claim, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to
Holdings or the Borrower, any such notice being expressly waived by Holdings and
the Borrower to the extent permitted by applicable law, upon any amount becoming
due and payable by Holdings or the Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise), to set off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of Holdings or
the Borrower, as the case may be. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and application made
by such Lender, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Administrative Agent.
10.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the agreement of Holdings, the Borrower, the Agents and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Agents or any Lender relative
to subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. Each of Holdings
and the Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition
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and enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the courts of the State of New York, the courts of
the United States for the Southern District of New York, and appellate
courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to Holdings or the Borrower, as the case may be at its address set
forth in Section 10.2 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
10.13 Acknowledgments. Each of Holdings and the Borrower
hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Agents nor any Lender has any fiduciary
relationship with or duty to Holdings or the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Agents and Lenders, on one hand, and Holdings and the
Borrower, on the other hand, in connection herewith or therewith is solely
that of creditor and debtor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among Holdings, the Borrower and the Lenders.
10.14 Confidentiality. Each of the Agents and each Lender
agrees to keep confidential all non-public information provided to it by any
Loan Party pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent the Agents or any
Lender from disclosing any such information (a) to the Administrative Agent, any
other Lender or any affiliate of any Lender, (b) to any Transferee or
prospective Transferee that agrees to comply with the provisions of this
Section, (c) to its
99
93
employees, directors, agents, attorneys, accountants and other professional
advisors or those of any of its Affiliates, (d) upon the request or demand of
any Governmental Authority, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with any
litigation or similar proceeding, (g) that has been publicly disclosed, (h) to
the National Association of Insurance Commissioners or any similar organization
or any nationally recognized rating agency that requires access to information
about a Lender's investment portfolio in connection with ratings issued with
respect to such Lender, or (i) in connection with the exercise of any remedy
hereunder or under any other Loan Document.
10.15 WAIVERS OF JURY TRIAL. HOLDINGS, THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
100
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
BORROWER: XXXXX PET CARE COMPANY
By: /s/ XXXXXX X. XXXXXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
101
HOLDINGS: XXXXX PET CARE ENTERPRISES, INC.,
as Guarantor
By: /s/ XXXXXX X. XXXXXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
102
AGENTS AND LENDERS: THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By: /s/ XXXXXX XXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice-President
103
DLJ CAPITAL FUNDING, INC.,
as Syndication Agent and as a Lender
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
104
MERCANTILE BANK NATIONAL
ASSOCIATION, as Documentation Agent
and as a Lender
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice-President
105
FLEET NATIONAL BANK
By: /s/ XXXXX XXXXXXXXX
----------------------------------------
Name: Xxxxx XxXxxxxxx
Title: Vice-President
Notice Address:
Fleet National Bank
One Federal Street, MAOF DO3C
Xxxxxx, XX 00000
Attention: Xxxxx XxXxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
106
NATIONSBANK
By: /s/ B.E. XXXXXXX
----------------------------------------
Name: B.E. Xxxxxxx
Title: Vice-President
Notice Address:
Nationsbank
One Nations Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
107
BANKBOSTON, N.A.
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice-President
Notice Address:
BankBoston, N.A.
000 Xxxxxxx Xxxxxx, Mail Stop 01-08-05
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
108
SUNTRUST BANK
By: /s/ XXXXX XXXXXX
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice-President
Notice Address:
SunTrust Bank, Nashville
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
109
XXXXXX TRUST AND SAVINGS BANK
By: /s/ XXXXXX X. XXXX
----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
Notice Address:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 00-X
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
110
CREDIT AGRICOLE INDOSUEZ
By: /s/ W. XXXXX XXXXXX
----------------------------------------
Name: W. Xxxxx Xxxxxx
Title: First Vice-President
By: /s/ XXXXX XXXXX
----------------------------------------
Name: Xxxxx Xxxxx
Title: First Vice-President
Notice Address:
Credit Agricole Indosuez
00 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and a copy to:
Xxxxxxxxx & Xxxxxxxxx
South Tower Pennzoil Place
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxxxx Xxxxxxx
111
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ XXXXXX XXXX
----------------------------------------
Name: Xxxxxx Xxxx
Title: Vice-President
Notice Address:
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
112
FIRST UNION NATIONAL BANK
By: /s/ XXXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice-President
Notice Address:
First Union National Bank
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
113
FIRST TRUST
By: /s/ X. X. X'XXXXXX
----------------------------------------
Name: X. X. X'Xxxxxx
Title: Executive Vice President
Notice Address:
First Trust
00 Xxxx Xxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
000
XXX XXXXX XXXXXXXX XXXX XX
XXXXXXX
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
Notice Address:
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx, 00xx Xxxxx,
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
115
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Duly Authorized Signatory
Notice Address:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
116
BOEING CAPITAL CORPORATION
By: /s/ XXXXX X. XXXXXXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Senior Documentation Officer
Notice Address:
Boeing Capital Corporation
0000 Xxxxxxxx Xxxx., 0xx Xxxxx
Xxxx Xxxxx, XX 00000-0000
Attention: Vice-President - Commercial
Equipment Leasing
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
117
BALANCED HIGH YIELD FUND II LTD.,
by BHF-BANK AKTIENGESELLSCHAFT,
acting through its New York Branch, as
attorney-in-fact
By: /s/ XXXXXXX XXXXXX
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Vice-President
By: /s/ XXXXXXXX X. XXXX
----------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Assistant Treasurer
Notice Address:
Balanced High Yield Fund II Ltd.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
118
KZH CNC LLC
By: /s/ XXXXXXXX XXXXXX
----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
Notice Address:
KZH CNC LLC
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
119
CYPRESSTREE INVESTMENT FUND,
LLC,
by CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC., its
Managing Member
By: /s/ XXXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
Notice Address:
CypressTree Investment Fund, LLC
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
120
CYPRESSTREE INSTITUTIONAL FUND,
LLC
by CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC., its
Managing Member
By: /s/ XXXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
Notice Address:
CypressTree Institutional Fund, LLC
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
121
NORTH AMERICAN SENIOR
FLOATING RATE FUND,
by CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC., as
Portfolio Manager
By: /s/ XXXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
Notice Address:
North American Senior Floating Rate Fund
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
122
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.,
as attorney-in-fact and on behalf of FIRST
ALLMERICA FINANCIAL LIFE
INSURANCE COMPANY, as Portfolio
Manager
By: /s/ XXXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
Notice Address:
North American Senior Floating Rate Fund
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
123
KZH CYPRESSTREE - 1 LLC
By: /s/ XXXXXXXX XXXXXX
----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
Notice Address:
KZH CypressTree - 1 LLC
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
124
THE TRAVELERS INSURANCE
COMPANY
By: /s/ XXXX X. XXXXXXXX
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Second Vice-President
Notice Address:
The Travelers Insurance Company
Securities 9PB
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Investment Group - Private
Placements
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
125
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ XXXX X. XXXXX
----------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
Notice Address:
Massachusetts Mutual Life Insurance
Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
126
MASSMUTUAL HIGH YIELD
PARTNERS II, LLC,
by HYP MANAGEMENT, INC., as
Managing Member,
By: /s/ XXXX X. XXXXX
----------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice-President
Notice Address:
MassMutual High Yield Partners II, LLC
c/o Massachusetts Mutual Life Insurance
Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
127
METROPOLITAN LIFE INSURANCE
COMPANY
By: /s/ XXXXX X. XXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
Notice Address:
Metropolitan Life Insurance Company
000 Xxxxxxx Xxxxxx
P.O. Box 633
Convent Station, NJ 07961-0633
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
128
ORIX USA CORPORATION
By: /s/ XXXXXXX XXXXXXXXX
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice-President and Manager
Notice Address:
Orix USA Corporation
1177 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
129
XXXXXXX NATIONAL LIFE
INSURANCE COMPANY,
by PPM AMERICA, INC., as attorney-in-
fact on behalf of Xxxxxxx National Life
Insurance Company
By: /s/ XXXXXXX DIRE
----------------------------------------
Name: Xxxxxxx DiRe
Title: Managing Director
Notice Address:
PPM America Inc.
000 X. Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
130
KZH RIVERSIDE LLC
By: /s/ XXXXXXXX XXXXXX
----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
Notice Address:
KZH RIVERSIDE LLC
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
131
KZH STERLING LLC
By: /s/ XXXXXXXX XXXXXX
----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
Notice Address:
KZH STERLING LLC
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
132
KZH LANGDALE LLC
By: /s/ XXXXXXX X. XXXX
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Agent
Notice Address:
KZH LANGDALE LLC
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
133
CREDIT SUISSE FIRST BOSTON
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice-President
By: /s/ XXXXXX X. XxXXXXXX
----------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Managing Director
Notice Address:
Credit Suisse First Boston
00 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
134
Annex A
Pricing Grid: Ratio of Senior Debt to EBITDA
XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0
XXXX XXXX 3.25 BUT LESS THAN 2.75 BUT
GREATER THAN OR GREATER THAN OR GREATER THAN OR LESS THAN
EQUAL TO 3.25:1 EQUAL TO 2.75:1 EQUAL TO 2.25:1 2.25:1
--------------- ----------------- ----------------- ---------
REVOLVING CREDIT LOANS
AND TRANCHE A TERM LOANS:
-------------------------
ABR LOANS 1.75% 1.50% 1.25% 1.00%
EURODOLLAR LOANS 2.75% 2.50% 2.25% 2.00%
TRANCHE B TERM LOANS:
---------------------
ABR LOANS 2.25% 2.25% 2.25% 2.25%
EURODOLLAR LOANS 3.25% 3.25% 3.25% 3.25%
TRANCHE C TERM LOANS:
---------------------
ABR LOANS 2.50% 2.50% 2.50% 2.50%
EURODOLLAR LOANS 3.50% 3.50% 3.50% 3.50%
COMMITMENT FEE RATE: .50% .50% .50% .375%
--------------------
135
Annex B
SOURCES AND USES
Revolving Credit Facility*/ $ 61,500,000 Refinancing of Existing Credit Facilities $ 93,300,000
Tranche A Term Loan Facility $ 75,000,000 Prepayment of Xxxxx Senior Notes $160,000,000
Tranche B Term Loan Facility $ 85,000,000 Premiums $ 28,200,000
Tranche C Term Loan Facility $ 85,000,000 Fees and Expenses $ 12,000,000
Accrued Interest $ 8,000,000
Effeffe Transaction**/ $ 5,000,000
$306,500,000 $306,500,000
============ ============
-------------------------
*/ $100,000,000 availability.
**/ With any unused amount to be reinvested in the Borrower.
136
Schedule 1.1A
to Credit Agreement
-------------------
COMMITMENTS
Revolving Loan Total Term Loan Tranche A Term Tranche B Term Tranche C Term
Lender Commitment Commitment Loan Commitment Loan Commitment Loan Commitment
----------------------------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $ 5,666,666.67 $131,927,083.33 $ 11,333,333.33 $ 60,296,875.00 $ 60,296,875.00
Fleet National Bank $ 3,166,666.67 $ 6,333,333.33 $ 6,333,333.33
Xxxxxx Financial, Inc. $ 4,833,333.33 $ 9,666,666.67 $ 9,666,666.67
Marine Midland Bank $ 4,833,333.33 $ 9,666,666.67 $ 9,666,666.67
PNC Bank, National $ 3,166,666.67 $ 6,333,333.33 $ 6,333,333.33
Association
SunTrust Bank, Atlanta $ 4,833,333.33 $ 9,666,666.67 $ 9,666,666.67
Xxxxx Fargo Bank, N.A $ 4,833,333.33 $ 14,666,666.67 $ 9,666,666.67 $ 2,500,000.00 $ 2,500,000.00
National City Bank $ 4,833,333.33 $ 9,666,666.67 $ 9,666,666.67
The National Westminster $ 5,333,333.33 $ 10,666,666.67 $ 10,666,666.67
Bank PLC
Swiss Bank Corporation $ 5,000,000.00 $ 10,000,000.00 $ 10,000,000.00
BankBoston, N.A $ 3,166,666.67 $ 6,333,333.33 $ 6,333,333.33
Xxxxxx Trust and Savings $ 3,166,666.67 $ 6,333,333.33 $ 6,333,333.33
Bank
Credit Agricole Indosuez $ 3,166,666.67 $ 6,333,333.33 $ 6,333,333.33
(Chicago)
137
Revolving Loan Total Term Loan Tranche A Term Tranche B Term Tranche C Term
Lender Commitment Commitment Loan Commitment Loan Commitment Loan Commitment
----------------------------------------------------------------------------------------------------------------------------------
U.S. Bank National
Association $ 3,166,666.67 $ 6,333,333.33 $ 6,333,333.33
BHF-Bank $ 3,166,666.67 $ 6,333,333.33 $ 6,333,333.33
Aktiengesellschaft
Grand Cayman Branch
First Union National Bank $ 3,166,666.67 $ 6,333,333.33 $ 6,333,333.33
Summit Bank $ 3,166,666.67 $ 6,333,333.33 $ 6,333,333.33
The Long-Term Credit Bank
of Japan, Ltd. $ 3,166,666.67 $ 6,333,333.33 $ 6,333,333.33
DLJ Capital Funding, Inc. $ 3,166,666.67 $ 6,333,333.33 $ 6,333,333.33
Credit Agricole Indosuez $10,000,000.00 $ 5,000,000.00 $ 5,000,000.00
(New York)
Balanced High Yield Fund $ 7,000,000.00 $ 3,500,000.00 $ 3,500,000.00
Ltd.
Metropolitan Life Insurance $13,000,000.00 $ 6,500,000.00 $ 6,500,000.00
Company
The Travelers Insurance $ 5,000,000.00 $ 2,500,000.00 $ 2,500,000.00
Company
The Travelers Life and $ 5,000,000.00 $ 2,500,000.00 $ 2,500,000.00
Annuity Company
Wareconseco $ 5,000,000.00 $ 2,500,000.00 $ 2,500,000.00
Pilgrim America Prime $ 7,250,000.00 $ 3,625,000.00 $ 3,625,000.00
Rate Trust
Octagon Credit Investors $10,000,000.00 $ 5,000,000.00 $ 5,000,000.00
Loan Portfolio
Allstate Insurance Company $10,000,000.00 $ 5,000,000.00 $ 5,000,000.00
138
Revolving Loan Total Term Loan Tranche A Term Tranche B Term Tranche C Term
Lender Commitment Commitment Loan Commitment Loan Commitment Loan Commitment
----------------------------------------------------------------------------------------------------------------------------------
Prime Income Trust $ 13,000,000.00 $ 6,500,000.00 $ 6,500,000.00
Cypress Tree Boston $ 13,000,000.00 $ 6,500,000.00 $ 6,500,000.00
Partners
KZH Holding Corporation $ 58,156,250.00 $ 29,078,125.00 $ 29,078,125.00
III
KZH-ING-2 Corporation $ 6,500,000.00 $ 3,250,000.00 $ 3,250,000.00
ACM Credit Opportunities $ 5,000,000.00 $ 2,500,000.00 $ 2,500,000.00
Master Fund
ING High Income Principal $ 6,500,000.00 $ 3,250,000.00 $ 3,250,000.00
Preservation Fund Holdings
LDC
Totals: $ 75,000,000.00 $450,000,000.00 $150,000,000.00 $150,000,000.00 $150,000,000.00
The initial Lending Office of each Lender shall be the primary address set forth
below its name on the appropriate signature page of the Credit Agreement.
