EXECUTION COPY
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SUIZA FOODS CORPORATION
----------------------------
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
$200,000,000 of $700,000,000 Aggregate Credit Facility
Dated as of July 31, 1997
----------------------------
FIRST UNION NATIONAL BANK,
as Administrative Agent
BHF-BANK AKTIENGESELLSCHAFT (NEW YORK)
BANK BOSTON, N.A.
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND"
CREDIT LYONNAIS
FLEET NATIONAL BANK
XXXXXXX XXXXX ASSET
MANAGEMENT, INC.,
as Co-Agents
THE FIRST NATIONAL BANK OF CHICAGO,
as Syndication Agent
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is attached
but is inserted for convenience of reference only.
PAGE
----
Section 1. Definitions and Accounting Matters . . . . . . . . . . . . . . . . 2
1.01 Certain Defined Terms. . . . . . . . . . . . . . . . . . . . . . . 2
1.02 Accounting Terms and Determinations. . . . . . . . . . . . . . . . 27
1.03 Classes and Types of Loans . . . . . . . . . . . . . . . . . . . . 28
Section 2. Commitments, Loans, Notes and Prepayments. . . . . . . . . . . . . 29
2.01 Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.02 Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.03 Changes of Commitments . . . . . . . . . . . . . . . . . . . . . . 32
2.04 Commitment Fee . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.05 Lending Offices. . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.06 Several Obligations; Remedies Independent. . . . . . . . . . . . . 33
2.07 Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.08 Optional Prepayments and Conversions or Continuations of Loans . . 35
2.09 Mandatory Prepayments and Reductions of Commitments. . . . . . . . 36
2.10 Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 3. Payments of Principal and Interest . . . . . . . . . . . . . . . . 45
3.01 Repayment of Loans . . . . . . . . . . . . . . . . . . . . . . . . 45
3.02 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 4. Payments; Pro Rata Treatment; Computations; Etc. . . . . . . . . . 47
4.01 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4.02 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . . . . 48
4.03 Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.04 Minimum Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.05 Certain Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.06 Non-Receipt of Funds by the Agent. . . . . . . . . . . . . . . . . 51
4.07 Sharing of Payments, Etc.. . . . . . . . . . . . . . . . . . . . . 52
Section 5. Yield Protection, Etc. . . . . . . . . . . . . . . . . . . . . . . 53
5.01 Additional Costs . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.02 Limitation on Types of Loans . . . . . . . . . . . . . . . . . . . 56
5.03 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
5.04 Treatment of Affected Loans. . . . . . . . . . . . . . . . . . . . 57
5.05 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(i)
5.06 Net Payments; Taxes. . . . . . . . . . . . . . . . . . . . . . . . 59
5.07 Replacement of Lenders . . . . . . . . . . . . . . . . . . . . . . 61
5.08 Additional Costs in Respect of Letters of Credit . . . . . . . . . 62
Section 6. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . 63
6.01 Conditions to Effectiveness. . . . . . . . . . . . . . . . . . . . 63
6.02 Conditions to all Extensions of Credit . . . . . . . . . . . . . . 66
Section 7. Representations and Warranties . . . . . . . . . . . . . . . . . . 67
7.01 Corporate Existence. . . . . . . . . . . . . . . . . . . . . . . . 67
7.02 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . . 67
7.03 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
7.04 No Breach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
7.05 Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.06 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.07 Use of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.08 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
7.09 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
7.10 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . 70
7.11 Public Utility Holding Company Act . . . . . . . . . . . . . . . . 70
7.12 Material Agreements and Liens. . . . . . . . . . . . . . . . . . . 71
7.13 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . 71
7.14 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.15 Subsidiaries, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 75
7.16 Title to Assets. . . . . . . . . . . . . . . . . . . . . . . . . . 75
7.17 True and Complete Disclosure . . . . . . . . . . . . . . . . . . . 76
7.18 Real Property. . . . . . . . . . . . . . . . . . . . . . . . . . . 76
7.19 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 8. Covenants of the Company . . . . . . . . . . . . . . . . . . . . . 77
8.01 Financial Statements, Etc. . . . . . . . . . . . . . . . . . . . . 77
8.02 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
8.03 Existence, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . 81
8.04 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
8.05 Prohibition of Fundamental Changes . . . . . . . . . . . . . . . . 84
8.06 Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . . . 86
8.07 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
8.08 Investments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
8.09 Restricted Payments. . . . . . . . . . . . . . . . . . . . . . . . 90
8.10 Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . 90
8.11 Minimum Net Worth. . . . . . . . . . . . . . . . . . . . . . . . . 91
8.12 Fixed Charges Ratio. . . . . . . . . . . . . . . . . . . . . . . . 91
8.13 Interest Coverage Ratio. . . . . . . . . . . . . . . . . . . . . . 91
8.14 [Intentionally left blank] . . . . . . . . . . . . . . . . . . . 91
8.15 Interest Rate Protection Agreements. . . . . . . . . . . . . . . . 91
(ii)
8.16 Lines of Business. . . . . . . . . . . . . . . . . . . . . . . . . 91
8.17 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . 91
8.18 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . 92
8.19 Certain Obligations Respecting Subsidiaries; Additional Mortgaged
Properties. . . . . . . . . . . . . . . . . . . . . . . . . . 92
8.20 Modifications of Certain Documents . . . . . . . . . . . . . . . . 94
8.21 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . 94
8.22 Puerto Rico Security Documents . . . . . . . . . . . . . . . . . . 94
Section 9. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . 95
Section 10. The Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
10.01 Appointment, Powers and Immunities . . . . . . . . . . . . . . . . 99
10.02 Reliance by Agent. . . . . . . . . . . . . . . . . . . . . . . . . 100
10.03 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
10.04 Rights as a Lender . . . . . . . . . . . . . . . . . . . . . . . . 101
10.05 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . 101
10.06 Non-Reliance on Agent and Other Lenders. . . . . . . . . . . . . . 102
10.07 Failure to Act . . . . . . . . . . . . . . . . . . . . . . . . . . 102
10.08 Resignation or Removal of Agent. . . . . . . . . . . . . . . . . . 103
10.09 Agency Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
10.10 Consents under Other Loan Documents. . . . . . . . . . . . . . . . 103
10.11 Syndication Agent and Co-Agents. . . . . . . . . . . . . . . . . . 104
Section 11. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.01 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.03 Expenses, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 105
11.04 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 106
11.05 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . 107
11.06 Assignments and Participations . . . . . . . . . . . . . . . . . . 107
11.07 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
11.08 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
11.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
11.10 Governing Law; Submission to Jurisdiction;
Service of Process and Venue . . . . . . . . . . . . . . . . . 112
11.11 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . 113
11.12 Treatment of Certain Information; Confidentiality. . . . . . . . . 113
11.13 Intention of Parties . . . . . . . . . . . . . . . . . . . . . . . 114
(iii)
SCHEDULE I - Existing Material Agreements and Liens
SCHEDULE II - Environmental Matters
SCHEDULE III - Subsidiaries and Investments
SCHEDULE IV - Real Property
SCHEDULE V - Litigation
SCHEDULE VI - Existing Puerto Rico Security Documents
SCHEDULE VII - Existing Mortgages
EXHIBIT A-1 - Form of Facility A Note
EXHIBIT A-2 - Form of Facility B Note
EXHIBIT B - Form of Mortgage
EXHIBIT C - Form of Deed of Trust
EXHIBIT D-1 - Form of Opinion of Counsel to the Obligors
EXHIBIT D-2 - Form of Opinion of Puerto Rico Counsel to the Obligors
EXHIBIT E - Form of Opinion of Local Counsel
EXHIBIT F - Form of Opinion of Special New York Counsel to First Union
EXHIBIT G - Form of Confidentiality Agreement
EXHIBIT H - Form of Assignment and Acceptance
EXHIBIT I - [Intentionally Left Blank]
EXHIBIT J-1 - Form of Notice of Borrowing
EXHIBIT J-2 - Form of Notice of Prepayment
EXHIBIT J-3 - Form of Notice of Conversion/Continuation
EXHIBIT J-4 - Form of Notice of Account Designation
(iv)
THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 31, 1997
between: SUIZA FOODS CORPORATION, a corporation duly organized and validly
existing under the laws of the State of Delaware (the "COMPANY"); each of the
lenders that is a signatory hereto identified under the caption "LENDERS" on the
signature pages hereto or that, pursuant to Section 11.06(b) hereof, shall
become a "Lender" hereunder (individually, a "LENDER" and, collectively, the
"LENDERS"); and FIRST UNION NATIONAL BANK (formerly First Union National Bank of
North Carolina), a national banking association, as administrative agent for the
Lenders (in such capacity, together with its successors in such capacity, the
"AGENT").
WHEREAS, the Company, certain of the Lenders and the Agent are party
to a Second Amended and Restated Credit Agreement dated as of March 5, 1997 as
amended by an Amendment and Consent dated as of May 15, 1997 (as heretofore
modified and supplemented and in effect immediately prior to the Effective Date
referred to below, the "EXISTING CREDIT AGREEMENT") (which Existing Credit
Agreement in turn amended and restated an Amended and Restated Credit Agreement
dated as of July 17, 1996 as amended by Amendment and Waiver dated as of August
7, 1996, Amendment No. 2 dated as of September 6, 1996, and Amendment No. 3
dated as of December 2, 1996) providing, subject to the terms and conditions
thereof, for extensions of credit (by making of loans and issuing letters of
credit) to be made by such Lenders to the Company in an aggregate principal or
face amount not exceeding $200,000,000.
WHEREAS, the parties hereto now wish to amend and restate the Existing
Credit Agreement by, among other things, extending the term of the Facility A
Commitments under the Existing Credit Agreement, restoring the available amount
of Facility B Commitments under the Existing Credit Agreement, changing the
amortization and extending the final maturity of the Facility B Loans under the
Existing Credit Agreement, and by amending certain of the other provisions
thereof and, in that connection, wish to amend and restate the Existing Credit
Agreement in its entirety, it being the intention of the parties hereto that the
loans and letters of credit outstanding under the Existing Credit Agreement to
or for the account of the Company on the Effective Date (as hereinafter defined)
shall continue and remain outstanding and not be repaid on the Effective Date,
and accordingly the Loans and Commitments (as hereinafter defined) are not in
novation or discharge thereof.
CREDIT AGREEMENT
-2-
WHEREAS, each of the Obligors (as hereinafter defined) expects to
derive benefit, directly or indirectly, from the loans so made to the Company,
both in its separate capacity and as a member of the integrated group, since the
successful operation of each of the Company and its Subsidiaries is dependent on
the continued successful performance of the functions of the integrated group as
a whole.
Accordingly, the parties hereto hereby agree that the Existing Credit
Agreement shall, as of the Effective Date (the occurrence of which is subject to
the satisfaction of the conditions precedent specified in Section 6.01 hereof),
be amended and restated in its entirety as follows:
Section 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.01 CERTAIN DEFINED TERMS. As used herein, the following terms shall
have the following meanings (all terms defined in this Section 1.01 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and vice versa):
"ADDITIONAL PUERTO RICO SECURITY DOCUMENTS" shall have the meaning
assigned to such term in Section 8.21 hereof.
"AFFILIATE" shall mean any Person that directly or indirectly
controls, or is under common control with, or is controlled by, the Company and,
if such Person is an individual, any member of the immediate family (including
parents, spouse, children and siblings) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such
immediate family and any Person who is controlled by any such member or trust.
As used in this definition, "control" (including, with its correlative meanings,
"controlled by" and "under common control with") shall mean possession, directly
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise), PROVIDED that, in any event, any
Person that owns directly or indirectly securities having 10% or more of the
voting power for the election of directors or other governing body of a
corporation or 10% or more of the partnership or other ownership interests of
any other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person. Notwithstanding the
foregoing,
CREDIT AGREEMENT
-3-
(a) no individual shall be an Affiliate solely by reason of his or
her being a director, officer or employee of the Company or any of its
Subsidiaries and (b) none of the Wholly Owned Subsidiaries of the Company shall
be Affiliates.
"APPLICABLE COMMITMENT FEE RATE" shall mean 0.25% per annum; PROVIDED
that if the Leverage Ratio as at the last day of any fiscal quarter of the
Company ending on or after the Effective Date shall fall within any of the
ranges set forth below then, upon the delivery to the Agent of a certificate of
a Responsible Financial Officer of the Company (which shall accompany the
financial statements for such fiscal quarter delivered under Section 8.01(a)
hereof on which the calculation of such Leverage Ratio is based) demonstrating
such fact prior to the end of the next succeeding fiscal quarter, the
"Applicable Commitment Fee Rate" shall be adjusted upwards or downwards, as the
case may be, to the rate per annum set forth below opposite such range during
the period commencing on the third Business Day following the date of receipt of
such certificate to but not including the date the next such certificate to be
delivered under this definition is delivered or due, whichever is earlier
(except that, notwithstanding the foregoing, the Applicable Commitment Fee Rate
shall not as a consequence of this proviso be so reduced for any period during
which an Event of Default shall have occurred and be continuing):
Range
of
Leverage Ratio Applicable Commitment Fee Rate
-------------- ------------------------------
Less than 2.0:1 0.20%
Equal to or greater than 0.25%
2.0:1 but less
than 2.50:1
Equal to or greater than
2.50:1 0.375%
; provided that in the event that there is an Equity Issuance by the Company
resulting in Net Available Proceeds to the Company of at least $50,000,000, and
the Company provides the Agent with the written advice required by
Section 2.09(c) hereof with respect to such Equity Issuance and makes the
application of Net Available
CREDIT AGREEMENT
-4-
Proceeds provided therein, the Applicable Commitment Fee Rate shall upon such
application be immediately adjusted to give effect to the change in the
Leverage Ratio resulting from such application.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or of an affiliate of such
Lender) designated for such Type of Loan on the signature pages hereof or such
other office of such Lender (or of an affiliate of such Lender) as such Lender
may from time to time specify to the Agent and the Company as the office by
which its Loans of such Type are to be made and maintained.
"APPLICABLE MARGIN" shall mean: with respect to Loans that are Base
Rate Loans, 0.50% and/or Eurodollar Loans, 1.75% per annum; PROVIDED that if the
Leverage Ratio as at the last day of any fiscal quarter of the Company ending on
or after the Effective Date shall fall within any of the ranges set forth below
then, upon the delivery to the Agent of a certificate of a Responsible Financial
Officer of the Company (which shall accompany the financial statements for such
fiscal quarter delivered under Section 8.01(a) hereof on which the calculation
of such Leverage Ratio is based) demonstrating such fact prior to the end of the
next succeeding fiscal quarter, the "Applicable Margin" for each Loan shall be
adjusted upwards or downwards, as the case may be, to the rate per annum for the
respective Type and Class of Loan set forth below opposite such range during the
period commencing on the third Business Day following the date of receipt of
such certificate to but not including the date the next succeeding such
certificate to be delivered hereunder is delivered or due, whichever is earlier
(except that, notwithstanding the foregoing, the Applicable Margin for any such
Loan shall not as a consequence of this proviso be so reduced for any period
during which an Event of Default shall have occurred and be continuing):
CREDIT AGREEMENT
-5-
Applicable Margin (%p.a.)
Range -------------------------
of
Leverage Base Rate Loans Eurodollar Loans
-------- --------------- ----------------
Less than 2.0:1 0% 0.75%
Equal to or greater than 0% 1.0%
2.0:1 but less
than 2.50:1
Equal to or greater than 0% 1.25%
2.50:1 but less than
3.25:1
Equal to or greater than 0.25% 1.50%
3.25:1 but less than
3.75:1
Equal to or greater than 0.50% 1.75%
3.75:1
; PROVIDED that in the event that there is an Equity Issuance by the Company
resulting in Net Available Proceeds to the Company of at least $50,000,000, and
the Company provides the Agent with the written advice required by
Section 2.09(c) hereof with respect to such Equity Issuance and makes the
application of Net Available Proceeds provided therein, the Applicable Margin
shall upon such application be immediately adjusted to give effect to the change
in the Leverage Ratio resulting from such application.
"BANKRUPTCY CODE" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"BASE RATE" shall mean, for any day, a rate per annum equal to the
higher of (a) the Federal Funds Rate for such day PLUS 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"BASE RATE LOANS" shall mean Loans that bear interest at rates based
upon the Base Rate.
CREDIT AGREEMENT
-6-
"BASIC DOCUMENTS" shall mean, collectively, the Loan Documents and,
except for purposes of the definitions of "Secured Obligations" and "Guaranteed
Obligations" in any of the Security Documents, the Purchase Agreements.
"XXXXXX ACQUISITION" shall have the meaning set forth in the Second
Restated Supplemental Credit Agreement.
"BUSINESS DAY" shall mean any day on which (a) commercial banks are
not authorized or required to close in North Carolina and (b) if such day
relates to a borrowing of, a payment or prepayment of principal of or interest
on, a Conversion of or into, or an Interest Period for, a Eurodollar Loan or a
notice by the Company with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, any day on which dealings in Dollar deposits are
carried out in the London interbank market.
"CAPITAL EXPENDITURES" shall mean, for any period, expenditures
(including, without limitation, the aggregate amount of Capital Lease
Obligations incurred during such period) made by the Company or any of its
Subsidiaries to acquire or construct fixed assets, plant and equipment
(including renewals, improvements and replacements, but excluding repairs)
during such period computed in accordance with GAAP.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"CASUALTY EVENT" shall mean, with respect to any Property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Subsidiaries receives insurance
proceeds, proceeds of a condemnation award or other compensation.
"CLASS" shall have the meaning assigned to such term in Section 1.03
hereof.
CREDIT AGREEMENT
-7-
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL ACCOUNT" shall mean with respect to the Company and any of
its Subsidiaries, the Collateral Account as defined in the Security Agreement.
"COMMISSION" shall mean the Securities and Exchange Commission or any
governmental agency substituted therefor.
"COMMITMENTS" shall mean the Facility A Commitments and the Facility B
Commitments.
"COMMONWEALTH" shall mean the Commonwealth of Puerto Rico and its
political subdivisions, municipalities, agencies and instrumentalities.
"COMPANY" shall have the meaning assigned to such term in the preamble
of this Agreement.
"CONTINUE", "CONTINUATION" and "CONTINUED" shall refer to the
continuation pursuant to Section 2.08 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"CONVERT", "CONVERSION" and "CONVERTED" shall refer to a conversion
pursuant to Section 2.08 hereof of one Type of Loans into another Type of Loans,
which may be accompanied by the transfer by a Lender (at its sole discretion) of
a Loan from one Applicable Lending Office to another.
"DAIRY FRESH" shall mean Dairy Fresh, Inc., a Delaware corporation and
a Wholly Owned Subsidiary of the Company.
"DEBT SERVICE" shall mean, for any period, the sum, for the Company
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) all payments of principal of
Indebtedness (including, without limitation, the principal component of any
payments in respect of Capital Lease Obligations) scheduled to be made during
such period PLUS (b) all Interest Expense for such period, it being understood
that, if any installment of principal of the Facility B Loans or the Facility D
Loans shall have been prepaid during or prior to such period, the amount of
principal of the Facility B Loans and the Facility D Loans included in Debt
CREDIT AGREEMENT
-8-
Service for such period shall be equal to the aggregate amount of principal of
the Facility B Loans and the Facility D Loans originally scheduled to be paid
hereunder and under the Second Restated Supplemental Credit Agreement during
such period.
"DEFAULT" shall mean an Event of Default or an event that with notice
or lapse of time or both would become an Event of Default.
"DISPOSITION" shall mean any sale, assignment, transfer or other
disposition of any Property (whether now owned or hereafter acquired) by the
Company or any of its Subsidiaries to any other Person, excluding any sale,
assignment, transfer or other disposition of any Property sold or disposed of in
the ordinary course of business and on ordinary business terms.
"DIVIDEND PAYMENT" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of the Company or of any warrants, options or other rights to
acquire the same (or to make any payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market or equity value of the Company or any of its Subsidiaries), but excluding
dividends payable solely in shares of common stock of the Company.
"DOLLARS" and "$" shall mean lawful money of the United States.
"EBITDA" shall mean, for any period, the sum, for the Company and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) operating income (calculated
before income taxes, Interest Expense, extraordinary and unusual items and
income or loss attributable to equity in Affiliates) for such period PLUS
(b) depreciation and amortization (to the extent deducted in determining
operating income) for such period PLUS (c) other income not exceeding $2,000,000
for such period.
"EFFECTIVE DATE" shall mean the date on which all of the conditions to
effectiveness of this Agreement set forth in Section 6.01 hereof shall have been
satisfied or waived.
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"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person, any
written or oral notice, claim, demand or other communication (collectively, a
"claim") by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (a) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (b) circumstances forming the basis of any violation, or alleged
violation, of any Environmental Law. The term "Environmental Claim" shall
include, without limitation, any claim by any governmental authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and any claim by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence of Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment.
"ENVIRONMENTAL LAWS" shall mean any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the indoor or outdoor
environment, including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or toxic or
hazardous substances or wastes.
"EQUITY ISSUANCE" shall mean (a) any issuance or sale by the Company
or any of its Subsidiaries after the Effective Date of (i) any capital stock,
(ii) any warrants or options exercisable in respect of capital stock (other than
any warrants or options issued to directors, officers or employees of the
Company or any of its Subsidiaries, pursuant to employee benefit plans
established in the ordinary course of business and any capital stock of the
Company or any of its Subsidiaries issued upon the exercise of such warrants or
options) or (iii) any other security or instrument representing an equity
interest (or the right to obtain any equity interest) in the Company or any of
its
CREDIT AGREEMENT
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Subsidiaries or (b) the receipt by the Company or any of its Subsidiaries
whether directly (or indirectly through one or more of its Subsidiaries) after
the Effective Date of any capital contribution (whether or not evidenced by any
equity security issued by the recipient of such contribution); PROVIDED that
Equity Issuance shall not include (x) any such issuance or sale by any
Subsidiary of the Company to the Company or any Wholly Owned Subsidiary of the
Company or (y) any capital contribution by the Company or any Wholly Owned
Subsidiary of the Company to any Subsidiary of the Company.
"EQUITY RIGHTS" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA AFFILIATE" shall mean any corporation or trade or business that
is a member of any group of organizations (i) described in Section 414(b) or (c)
of the Code of which the Company is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which the Company
is a member.
"EURODOLLAR BASE RATE" shall mean, with respect to any Eurodollar Loan
for any Interest Period therefor, the rate per annum for deposits in Dollars for
a period comparable to such Interest Period which appears on display page 3750
(British Bankers Association - LIBOR) of the Dow Xxxxx Markets Service as of
11:00 a.m. London time two Business Days preceding the first day of such
Interest Period or, if such display page 3750 is unavailable at such time, the
rate which appears on the Reuters Screen ISDA Page as of such date and time;
PROVIDED, however, that if the Agent determines that the relevant foregoing
source is unavailable for the relevant Interest Period, Eurodollar Base Rate
shall mean the rate of interest determined by the Agent to
CREDIT AGREEMENT
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be the average (rounded upward, if necessary, to the nearest 1/100th of 1%) of
the rates per annum at which deposits in Dollars in immediately available
funds are offered to the Agent or other money center banks two Business Days
preceding the first day of such Interest Period by leading banks in the London
interbank market as of 11:00 a.m. London time for delivery on the first day of
such Interest Period, for the number of days comprised therein and in an
amount comparable to the amount of the relevant Loan.
"EURODOLLAR LOANS" shall mean Loans that bear interest at rates based
on rates referred to in the definition of "Eurodollar Base Rate" in this
Section 1.01.
"EURODOLLAR RATE" shall mean, for any Eurodollar Loan for any Interest
Period therefor, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Agent to be equal to the Eurodollar Base Rate for
such Loan for such Interest Period divided by 1 MINUS the Reserve Requirement
(if any) for such Loan for such Interest Period.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Section 9 hereof.
"EXCESS CASH FLOW" shall mean, for any period, the sum, determined
without duplication, for the Company and its Subsidiaries, of (a) EBITDA for
such period MINUS (b) Capital Expenditures made during such period (other than
Capital Expenditures made from the proceeds of Indebtedness permitted under
Section 8.07 hereof) MINUS (c) the aggregate amount of Debt Service for such
period PLUS (d) decreases (if any) (or MINUS increases (if any)) in Working
Capital for such period, MINUS (e) income taxes paid in cash for such period.
"EXCLUDED DISPOSITION" shall mean the Disposition of (i) an Investment
Tax Credit or (ii) any motor vehicles or other equipment no longer used or
useful in the business of the Company or any of its Subsidiaries to the extent
the proceeds thereof are used to acquire similar replacement Property within a
period of 30 days after the end of the fiscal quarter in which such Disposition
was made.
"EXISTING LENDER" shall mean each Lender under the Existing Credit
Agreement.
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"EXISTING SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT" shall mean the
Subsidiary Guarantee and Security Agreement dated as of March 31, 1995 between
each Subsidiary of the Company party thereto and the Agent, as the same shall be
modified and supplemented and in effect from time to time.
"FACILITY A COMMITMENT" shall mean, for each Facility A Lender, the
obligation of such Lender to make Facility A Loans to the Company in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount set opposite the name of such Lender on the signature pages hereof
under the caption "Facility A Commitment" (as the same may be reduced from time
to time pursuant to Section 2.03 hereof). The original aggregate principal
amount of the Facility A Commitments is $50,000,000.
"FACILITY A COMMITMENT PERCENTAGE" shall mean, with respect to any
Facility A Lender, the ratio of (a) the amount of the Facility A Commitment of
such Lender to (b) the aggregate amount of the Facility A Commitments of all of
the Facility A Lenders.
"FACILITY A LENDERS" shall mean the Lenders having Facility A
Commitments and/or holding Facility A Loans from time to time.
"FACILITY A LOANS" shall mean the loans provided for by
Section 2.01(a)(i) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"FACILITY A NOTES" shall mean the promissory notes provided for by
Section 2.07(a) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"FACILITY B COMMITMENT" shall mean, for each Facility B Lender, the
obligation of such Lender to make a Facility B Loan to the Company in a
principal amount up to but not exceeding the amount set opposite the name of
such Lender on the signature pages hereof under the caption "Facility B
Commitment" (as the same may be reduced from time to time pursuant to
Section 2.03 hereof). The aggregate principal amount of the Facility B
Commitments as of the Effective Date is $150,000,000.
CREDIT AGREEMENT
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"FACILITY B LENDERS" shall mean the Lenders having Facility B
Commitments and/or holding Facility B Loans from time to time.
"FACILITY B LOANS" shall mean the loans provided for by
Section 2.01(b) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"FACILITY B NOTES" shall mean the promissory notes provided for by
Section 2.07(b) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time. The term "Facility B Notes" shall include any
Registered Notes evidencing Facility B Loans executed and delivered pursuant to
Section 2.07(e).
"FACILITY C COMMITMENTS" shall have the meaning set forth in the
Second Restated Supplemental Credit Agreement.
"FACILITY C COMMITMENT TERMINATION DATE" shall have the meaning set
forth in the Second Restated Supplemental Credit Agreement.
"FACILITY C LENDER" shall have the meaning set forth in the Second
Restated Supplemental Credit Agreement.
"FACILITY C LOANS" shall have the meaning set forth in the Second
Restated Supplemental Credit Agreement.
"FACILITY C NOTES" shall have the meaning set forth in the Second
Restated Supplemental Credit Agreement.
"FACILITY D COMMITMENTS" shall have the meaning set forth in the
Second Restated Supplemental Credit Agreement.
"FACILITY D LENDER" shall have the meaning set forth in the Second
Restated Supplemental Credit Agreement.
"FACILITY D LOAN COMMITMENT TERMINATION DATE" shall have the meaning
set forth in the Second Restated Supplemental Credit Agreement.
"FACILITY D LOANS" shall have the meaning set forth in the Second
Restated Supplemental Credit Agreement.
CREDIT AGREEMENT
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"FACILITY D NOTES" shall have the meaning set forth in the Second
Restated Supplemental Credit Agreement.
"FACTOR'S LIEN CONTRACT" shall mean one or more certain
agreements for the creation of a factor's lien under the provisions of Act
No. 86 of June 24, 1954 of the Commonwealth, as amended, between each of the
Obligors operating in the Commonwealth and the Agent, as the same shall be
modified and supplemented and in effect from time to time.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers
on such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day, PROVIDED that (a) if the day for which
such rate is to be determined is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day and (b) if
such rate is not so published for any Business Day, the Federal Funds Rate
for such Business Day shall be the average rate charged to First Union on
such Business Day on such transactions as determined by the Agent.
"FIRST UNION" shall mean First Union National Bank (formerly
First Union National Bank of North Carolina).
"FIXED CHARGES" shall mean, for any period, the sum, for the
Company and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) the aggregate
amount of Debt Service for such period, PLUS (b) the aggregate amount of
taxes paid in respect of the income or profit of the Company and its
Subsidiaries for such period, PLUS (c) Capital Expenditures made during such
period, PLUS (d) any Dividend Payments made for such period PLUS (e)
Management Fees for such period (but only to the extent such Management Fees
are not included in the calculation of EBITDA); PROVIDED that Capital
Expenditures shall not include the following: (i) the acquisition of
replacement Property in respect of an Excluded Disposition, (ii) the purchase
price paid by the Company or any of its Subsidiaries in respect of any
acquisition permitted under Section 8.05(b)(iv) hereof, and (iii) Capital
Expenditures made with the proceeds of property or
CREDIT AGREEMENT
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casualty insurance for the purposes of repairing or replacing damaged or
destroyed fixed or capital assets.
"FIXED CHARGES RATIO" shall mean, as at any date, the ratio of
(a) EBITDA for the period of four consecutive fiscal quarters ending on or
most recently ended prior to such date to (b) Fixed Charges for such period.
"GAAP" shall mean generally accepted accounting principles
applied on a basis consistent with those that, in accordance with the last
sentence of Section 1.02(a) hereof, are to be used in making the calculations
for purposes of determining compliance with this Agreement.
"XXXXXXX" shall mean Xxxxxxx y Compania, Inc., a Puerto Rico
corporation.
"XXXXXXX NEGATIVE PLEDGE AGREEMENT" shall mean the Xxxxxxx
Negative Pledge Agreement dated as of September 6, 1996 between the Agent and
Xxxxxxx, as the same shall be modified and supplemented and in effect from
time to time.
"GUARANTEE" shall mean a guarantee, an endorsement, a
contingent agreement to purchase or to furnish funds for the payment or
maintenance of, or otherwise to be or become contingently liable under or
with respect to, the Indebtedness, other obligations, net worth, working
capital or earnings of any Person, or a guarantee of the payment of dividends
or other distributions upon the stock or equity interests of any Person, or
an agreement to purchase, sell or lease (as lessee or lessor) Property,
products, materials, supplies or services primarily for the purpose of
enabling a debtor to make payment of such debtor's obligations or an
agreement to assure a creditor against loss, and including, without
limitation, causing a bank or other financial institution to issue a letter
of credit or other similar instrument for the benefit of another Person, but
excluding endorsements for collection or deposit in the ordinary course of
business. The terms "GUARANTEE" and "GUARANTEED" used as a verb shall have a
correlative meaning.
"GUARANTEE AGREEMENT" shall mean the Guarantee Agreement dated
as of September 6, 1996 between Suiza Dairy, Suiza Fruit, Xxxx Plastics,
Reddy Ice Corporation, Xxxxx Farms, Inc., Suiza Management Corporation and
the Agent, as the same
CREDIT AGREEMENT
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shall be modified and supplemented and in effect from time to time.
"HAZARDOUS MATERIAL" shall mean, collectively, (a) any
petroleum or petroleum products, flammable materials, explosives, radioactive
materials, asbestos, urea formaldehyde foam insulation, and transformers or
other equipment that contain polychlorinated biphenyls ("PCB'S"), (b) any
chemicals or other materials or substances that are now or hereafter become
defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous wastes",
"restricted hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants", "pollutants" or words of similar import under any
Environmental Law and (c) any other chemical or other material or substance,
exposure to which is now or hereafter prohibited, limited or regulated under
any Environmental Law.
"INDEBTEDNESS" shall mean, for any Person: (a) obligations
created, issued or incurred by such Person for borrowed money (whether by
loan, the issuance and sale of debt securities or the sale of Property to
another Person subject to an understanding or agreement, contingent or
otherwise, to repurchase such Property from such Person); (b) obligations of
such Person to pay the deferred purchase or acquisition price of Property or
services, other than trade accounts payable (other than for borrowed money)
arising, and accrued expenses incurred, in the ordinary course of business so
long as such trade accounts payable are payable within 120 days of the date
the respective goods are delivered or the respective services are rendered;
(c) Indebtedness of others secured by a Lien on the Property of such Person,
whether or not the respective indebtedness so secured has been assumed by
such Person; (d) obligations of such Person in respect of letters of credit
or similar instruments issued or accepted by banks and other financial
institutions for account of such Person; (e) Capital Lease Obligations of
such Person; and (f) Indebtedness of others Guaranteed by such Person.
"INTEREST COVERAGE RATIO" shall mean, as at any date, the
ratio of (a) EBITDA for a period of four consecutive fiscal quarters ending
on, or most recently ended prior to, such date to (b) Interest Expense for
such period.
"INTEREST EXPENSE" shall mean, for any period, the sum, for
the Company and its Subsidiaries (determined on a
CREDIT AGREEMENT
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consolidated basis without duplication in accordance with GAAP), of the
following: (a) all interest in respect of Indebtedness (including, without
limitation, the interest component of any payments in respect of Capital
Lease Obligations, but excluding amortization of any deferred loan costs
incurred in connection with the transactions contemplated hereby and by the
Second Restated Supplemental Credit Agreement) capitalized or expensed during
such period (whether or not actually paid during such period), but excluding
any non-cash interest, PLUS (b) the net amount payable (or MINUS the net
amount receivable) under Interest Rate Protection Agreements during such
period (whether or not actually paid or received during such period) MINUS
(c) all interest income for such period.
"INTEREST PERIOD" shall mean with respect to any Eurodollar
Loan, each period commencing on the date such Eurodollar Loan is made or
Converted from a Base Rate Loan or the last day of the next preceding
Interest Period for such Loan and ending on the numerically corresponding day
in the first, second, third or sixth calendar month thereafter, as the
Company may select as provided in Section 4.05 hereof, except that each
Interest Period for a Eurodollar Loan that commences on the last Business Day
of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on
the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period for any Facility A
Loan would otherwise end after the Revolving Credit Commitment Termination
Date, such Interest Period shall end on the Revolving Credit Commitment
Termination Date; (ii) no Interest Period for any Facility B Loan may
commence before and end after any Principal Payment Date for such Facility B
Loan unless, after giving effect thereto, the aggregate principal amount of
the Facility B Loans having Interest Periods that end after such Principal
Payment Date shall be equal to or less than the aggregate principal amount of
such Facility B Loans scheduled to be outstanding after giving effect to the
payments of principal required to be made on such Principal Payment Date;
(iii) each Interest Period that would otherwise end on a day that is not a
Business Day shall end on the next succeeding Business Day (or, if such next
succeeding Business Day falls in the next succeeding calendar month, on the
next preceding Business Day); and (iv) notwithstanding clauses (i) through
(iii) above, no Interest Period shall have a duration of less than one month
for any Eurodollar Loan and, if the Interest Period for any such Loan
CREDIT AGREEMENT
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would otherwise be a shorter period, such Loan shall not be available as a
Eurodollar Loan hereunder for such period.
"INTEREST RATE PROTECTION AGREEMENT" shall mean, for any
Person, an interest rate swap, cap or collar agreement or similar arrangement
between such Person and one or more financial institutions providing for the
transfer or mitigation of interest risks either generally or under specific
contingencies.
"INTEREST RATE PROTECTION OBLIGATIONS" shall mean the
obligations of any Obligor in respect of Interest Rate Protection Agreements
permitted under Section 8.08(d) hereof.
"INVESTMENT" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of
any securities at a time when such securities are not owned by the Person
entering into such sale); (b) the making of any deposit with, or advance,
loan or other extension of credit to, any other Person (including the
purchase of Property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such Property to such Person),
but excluding any such advance, loan or extension of credit having a term not
exceeding 90 days representing the purchase price of inventory or supplies
sold by such Person in the ordinary course of business); (c) the entering
into of any Guarantee of, or other contingent obligation with respect to,
Indebtedness or other liability of any other Person and (without duplication)
any amount committed to be advanced, lent or extended to such Person; or (d)
the entering into of any Interest Rate Protection Agreement.
"INVESTMENT TAX CREDIT" shall have the meaning set forth in
the Second Restated Supplemental Credit Agreement.
"ISSUING BANK" shall mean First Union, as the issuer of
Letters of Credit under Section 2.10 hereof, together with its successors and
assigns in such capacity.
"LETTER OF CREDIT" shall have the meaning assigned to such
term in the first sentence of Section 2.10 hereof.
CREDIT AGREEMENT
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"LETTER OF CREDIT DOCUMENTS" shall mean, with respect to any
Letter of Credit, collectively, any application therefor and any other
agreements, instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (a) the rights and obligations of the parties concerned or at
risk with respect to such Letter of Credit or (b) any collateral security for
any of such obligations, each as the same shall be modified and supplemented
and in effect from time to time.
"LETTER OF CREDIT INTEREST" shall mean, for each Facility A
Lender, such Facility A Lender's participation interest in the Issuing Bank's
liability under Letters of Credit (or, in the case of the Issuing Bank, the
Issuing Bank's retained interest therein) and such Facility A Lender's rights
and interests in Reimbursement Obligations and fees, interest and other
amounts payable in connection with Letters of Credit and Reimbursement
Obligations.
"LETTER OF CREDIT LIABILITY" shall mean, without duplication,
at any time and in respect of any Letter of Credit, the sum of (a) the
undrawn face amount of such Letter of Credit PLUS (b) the aggregate unpaid
principal amount of all Reimbursement Obligations of the Company at such time
due and payable in respect of all drawings made under such Letter of Credit.
For purposes of this Agreement, a Facility A Lender (other than the Issuing
Bank) shall be deemed to hold a Letter of Credit Liability in an amount equal
to its participation interest in the related Letter of Credit under Section
2.10 hereof, and the Issuing Bank shall be deemed to hold a Letter of Credit
Liability in an amount equal to its retained interest in such Letter of
Credit after giving effect to the acquisition by the Facility A Lenders other
than the Issuing Bank of their participation interests under said Section
2.10, together with its successors and assigns in such capacity.
"LEVERAGE RATIO" shall mean, as at any date, the ratio of (a)
the aggregate outstanding principal amount of Indebtedness at such date to
(b) EBITDA for the period of four consecutive fiscal quarters ending on, or
most recently ended prior to, such date; provided that if the Company or any
of its Subsidiaries shall have acquired any business, Property or Person
during such period (whether before, on or after the Effective Date), EBITDA
shall, to the extent the Company shall have delivered audited financial
statements (or, if audited financial statements are not
CREDIT AGREEMENT
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available to the Company, unaudited financial statements (i) reviewed by
independent certified accountants of recognized national standing and
acceptable to the Agent and (ii) in form satisfactory to the Agent) for the
acquired business, Property or Person for such period, be adjusted to reflect
on a pro forma basis EBITDA for such business, Property or Person as if such
business, Property or Person had been acquired at the beginning of such
period.
"LIEN" shall mean, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect
of such Property. For purposes of this Agreement and the other Loan
Documents, a Person shall be deemed to own, subject to a Lien, any Property
that it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement (other than an operating lease) relating to such Property.
"LOANS" shall mean the Facility A Loans and the Facility B Loans.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the
Second Restated Supplemental Credit Agreement, the Notes, the Facility C
Notes, the Facility D Notes, the Letter of Credit Documents and the Security
Documents.
"MAJORITY LENDERS" shall mean, as at any time, Facility A
Lenders and Facility B Lenders having at least a majority of the sum of (a)
the aggregate unused amount, if any, of the Facility A Commitments and the
Facility B Commitments as at such time PLUS (b) the aggregate outstanding
principal amount of the Facility A Loans and Facility B Loans at such time PLUS
(c) the aggregate amount of all Letter of Credit Liabilities at such time.
"MANAGEMENT FEES" shall mean, for any period, any amounts paid
or incurred by the Company or any of its Subsidiaries to any Person on
account of fees, salaries and other compensation in respect of services
rendered in connection with the management or supervision of the Company
and/or any of its Subsidiaries (but excluding customary and reasonable
compensation and other benefits paid or provided to officers, employees and
directors for services rendered to the Company or any of its Subsidiaries in
such capacities or any such amounts by any
CREDIT AGREEMENT
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Subsidiary of the Company to the Company or any other Subsidiary of the
Company).
"MARGIN STOCK" shall mean "margin stock" within the meaning of
Regulations U and X.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect
on (a) the Property, business, operations, financial condition, prospects,
liabilities or capitalization of the Company and its Subsidiaries taken as a
whole, (b) the ability of any Obligor to perform its obligations under any of
the Loan Documents to which it is a party, (c) the validity or enforceability
of any of the Loan Documents, (d) the rights and remedies of the Lenders and
the Agent under any of the Loan Documents or (e) the timely payment of the
principal of or interest on the Loans or the Reimbursement Obligations or
other amounts payable in connection therewith or under the Loan Documents.
"MODEL DAIRY" shall mean Model Dairy, Inc., a Delaware
corporation.
"MORTGAGES" shall mean, collectively, (a) the mortgages or
deeds of trust identified in Schedule VII hereto and (b) one or more
mortgages or deeds of trust, in the respective forms of Exhibits B and C
hereto or of Exhibits C and D to the Second Restated Supplemental Credit
Agreement (with such modifications thereto requested by the Agent as may be
appropriate to effect a lien on real property in the state where the
respective property to be covered by such instrument is located), executed by
the respective Obligors who own or lease such property in favor of the Agent
(or, in the case of a deed of trust, in favor of the trustee for the benefit
of the Agent and the Lenders) pursuant to Section 8.19(c) and 8.19(d) hereof
or Section 8.19(c) and 8.19(d) of the Second Restated Supplemental Credit
Agreement covering the respective Properties and/or leasehold interests
identified in Schedule IV hereto or subject to the requirements of said
Section 8.19(c) and 8.19(d) hereof or Section 8.19(c) and 8.19(d) of the
Second Restated Supplemental Credit Agreement, as the case may be, in each
case as the same shall be modified and supplemented and in effect from time
to time.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan defined
as such in Section 3(37) of ERISA to which contributions
CREDIT AGREEMENT
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have been made by the Company or any ERISA Affiliate and that is covered by
Title IV of ERISA.
"NET AVAILABLE PROCEEDS" shall mean:
(a) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition;
(b) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation
received by the Company and its Subsidiaries in respect of such
Casualty Event net of (i) reasonable expenses incurred by the Company
and its Subsidiaries in connection therewith and (ii) contractually
required repayments of Indebtedness to the extent secured by a Lien
on such Property and any income and transfer taxes payable by the
Company or any of its Subsidiaries in respect of such Casualty Event;
and
(c) in the case of any Equity Issuance, the aggregate amount of
all cash received by the Company and its Subsidiaries in respect of
such Equity Issuance net of reasonable expenses incurred by the
Company and its Subsidiaries in connection therewith.
"NET CASH PAYMENTS" shall mean, with respect to any
Disposition, the aggregate amount of all cash payments, and the fair market
value of any non-cash consideration, received by the Company and its
Subsidiaries directly or indirectly in connection with such Disposition;
PROVIDED that (a) Net Cash Payments shall be net of (i) the amount of any
legal, title and recording tax expenses, commissions and other fees and
expenses paid by the Company and its Subsidiaries in connection with such
Disposition and (ii) any Federal, state and local income or other taxes
estimated to be payable by the Company and its Subsidiaries as a result of
such Disposition (but only to the extent that such estimated taxes are in
fact paid to the relevant Federal, state or local governmental authority
within six months of the date of such Disposition) and (b) Net Cash Payments
shall be net of any repayments by the Company or any of its Subsidiaries of
Indebtedness to the extent that (i) such Indebtedness is secured by a Lien on
the Property that is the subject of such Disposition and (ii) the transferee
of (or holder of a Lien on) such Property requires that such Indebtedness be
repaid as a condition to the Disposition thereof.
CREDIT AGREEMENT
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"NET PURCHASE PRICE" shall have the meaning set forth in the
Second Restated Supplemental Credit Agreement.
"NET WORTH" shall mean, as at any date, the sum for the
Company and its Subsidiaries (determined on a consolidated basis without
duplication) of (a) the amount of capital stock PLUS (b) the amount of
additional paid-in capital PLUS (c) the amount of retained earnings (or, in
the case of any retained earnings deficit, MINUS the amount of such deficit).
"XXXX PLASTICS" shall mean Xxxx Plastics Manufacturing Corp.,
a Delaware corporation.
"NEW LENDER" shall mean each Lender party to this Agreement on
the Effective Date which is not a party to the Existing Credit Agreement.
"NOTES" shall mean the Facility A Notes and the Facility B Notes.
"OBLIGOR" shall mean the Company and each Subsidiary of the
Company party to any Security Document.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"PERMITTED ACQUISITION" shall have the meaning set forth in
the Second Restated Supplemental Credit Agreement.
"PERMITTED INVESTMENTS" shall mean: (a) direct obligations of
the United States, or of any agency thereof, or obligations guaranteed as to
principal and interest by the United States, or of any agency thereof, in
either case maturing not more than one year from the date of acquisition
thereof; (b) direct obligations issued by any state of the United States or
any political subdivision of any such state or any public instrumentality
thereof maturing within one year from the date of acquisition thereof and, at
the time of such acquisition, having the highest rating obtainable from
either Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc.
("S&P") or Xxxxx'x Investors Services, Inc. ("MOODY'S"); (c) certificates of
deposit issued by any bank or trust company organized under the laws of the
United States or any state thereof or the Commonwealth and
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having capital, surplus and undivided profits of at least $500,000,000,
maturing not more than six months from the date of acquisition thereof; (d)
commercial paper rated A-1 or better or P-1 by S&P or Moody's, respectively,
maturing not more than six months from the date of acquisition thereof; and
(e) Eurodollar time deposits having a maturity of less than six months
purchased directly from any bank meeting the criteria set forth in clause (c)
above (whether such deposit is with such bank or any other such bank).
"PERSON" shall mean any individual, corporation, company,
voluntary association, partnership, joint venture, trust, unincorporated
organization or government (or any agency, instrumentality or political
subdivision thereof).
"PLAN" shall mean an employee benefit or other plan
established or maintained by the Company or any ERISA Affiliate and that is
covered by Title IV of ERISA, other than a Multiemployer Plan.
"POST-DEFAULT RATE" shall mean, in respect of any principal of
any Loan, any Reimbursement Obligation or any other amount under this
Agreement, any Note or any other Loan Document that is not paid when due
(whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise), and in respect of any principal of any Loan during any period
commencing upon the occurrence of any Event of Default and thereafter for so
long as any Event of Default shall be continuing, a rate per annum during the
period from and including the due date to but excluding the earlier of the
date on which such amount is paid in full or such Event of Default ceases to
be continuing equal to 2% PLUS the Base Rate as in effect from time to time
PLUS the Applicable Margin for Base Rate Loans (PROVIDED that, if the amount
so in default is principal of a Eurodollar Loan and the due date thereof is a
day other than the last day of the Interest Period therefor, the
"Post-Default Rate" for such principal shall be, for the period from and
including such due date to but excluding the last day of such Interest
Period, 2% PLUS the interest rate for such Loan as provided in Section
3.02(b) hereof and, thereafter, the rate provided for above in this
definition).
"PRIME RATE" shall mean the rate of interest from time to time
announced by First Union at its principal office as its prime commercial
lending rate.
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"P.R. INVENTORY AGREEMENT" shall mean the P.R. Inventory
Agreement dated as of July 17, 1996 between each Subsidiary of the Company
that owns Inventory in the Commonwealth (other than Xxxxxxx) and the Agent,
as the same shall be modified and supplemented and in effect from time to
time.
"PRINCIPAL PAYMENT DATES" shall mean the Quarterly Dates
falling on or nearest to March 31, June 30, September 30 and December 31 of
each year, commencing with September 30, 1997, through and including
September 30, 2003.
"PROCESS AGENT" shall have the meaning assigned to such term
in Section 11.10(c) hereof.
"PROPERTY" shall mean any right or interest in or to property
of any kind whatsoever, whether real, personal (including, without
limitation, cash) or mixed and whether tangible or intangible.
"PUERTO RICO SECURITY DOCUMENTS" shall mean each of the
agreements listed in Schedule VI hereto, the P.R. Inventory Agreement, and
each of the Additional Puerto Rico Security Documents, in each case, as any
such agreement shall be modified and supplemented and in effect from time to
time.
"PURCHASE AGREEMENTS" shall have the meaning set forth in the
Second Restated Supplemental Credit Agreement.
"QUARTERLY DATES" shall mean the last Business Day of March,
June, September and December in each year, the first of which shall be
September 30, 1997.
"REGISTER" shall have the meaning assigned to such term in
Section 11.06(g) hereof.
"REGISTERED HOLDER" shall have the meaning assigned to such
term in Section 5.06(b)(ii) hereof.
"REGISTERED LOANS" shall have the meaning assigned to such
term in Section 2.07(e) hereof.
"REGISTERED NOTE" shall have the meaning assigned to such term
in Section 2.07(e) hereof.
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"REGULATIONS A, D, U AND X" shall mean, respectively, Regulations A,
D, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"REGULATORY CHANGE" shall mean, with respect to any Lender, any change
after the date of this Agreement in United States, Federal, state or foreign law
or regulations or in the law or regulations of the Commonwealth (including,
without limitation, Regulation D) or the adoption or making after such date of
any interpretation, directive or request applying to a class of banks including
such Lender of or under any Federal, state or foreign law or regulations or in
the law or regulations of the Commonwealth (whether or not having the force of
law and whether or not failure to comply therewith would be unlawful) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"REIMBURSEMENT OBLIGATIONS" shall mean, at any time, the obligations
of the Company then outstanding, or that may thereafter arise in respect of all
Letters of Credit then outstanding, to reimburse amounts paid by the Issuing
Bank in respect of any drawings under a Letter of Credit.
"RELEASE" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including, without limitation, the movement
of Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"RESERVE REQUIREMENT" shall mean, for any Interest Period for any
Eurodollar Loan, the average maximum rate at which reserves (including, without
limitation, any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to which the Eurodollar Base Rate is to be
determined as provided in the definition of "Eurodollar Base Rate" in this
Section 1.01 or
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(ii) any category of extensions of credit or other assets that
includes Eurodollar Loans.
"RESPONSIBLE FINANCIAL OFFICER" shall mean, with respect to any
Person, the Chairman of the Board of Directors, the President, the Chief
Executive Officer, the Chief Financial Officer or the Treasurer of such Person.
"REVOLVING CREDIT COMMITMENT TERMINATION DATE" shall mean the
Quarterly Date falling on or nearest to September 30, 2003.
"SECOND RESTATED SUPPLEMENTAL CREDIT AGREEMENT" shall mean the Second
Restated Supplemental Credit Agreement dated as of the date hereof between the
Company, the Lenders and the Agent providing for the Facility C Commitments and
the Facility C Loans and the Facility D Commitments and the Facility D Loans, as
the same may be amended, modified and supplemented and in effect from time to
time.
"SECURITY AGREEMENT" shall mean the Security Agreement dated as of
March 31, 1995 between the Company and the Agent, as the same may be amended,
modified and supplemented and in effect from time to time.
"SECURITY DOCUMENTS" shall mean, collectively, the Security Agreement,
the Mortgages, each Supplemental Subsidiary Guarantee and Security Agreement,
the Existing Subsidiary Guarantee and Security Agreement, the Guarantee
Agreement, the Puerto Rico Security Documents and all Uniform Commercial Code
financing statements and/or other filings required hereby or thereby to be filed
with respect to the security interests in personal Property and fixtures created
pursuant hereto or thereto.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at
CREDIT AGREEMENT
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the time directly or indirectly owned or controlled by such Person or one or
more Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person.
"SUBSIDIARY GUARANTORS" shall mean Suiza Dairy, Suiza Fruit, Model
Dairy, Xxxx Plastics, Reddy Ice Corporation, Swiss Dairy, Xxxxx Farms, Inc.,
Dairy Fresh and Suiza Management Corporation, each a Delaware corporation, and
each Supplemental Guarantor.
"SUIZA DAIRY" shall mean Suiza Dairy Corporation, a Delaware
corporation.
"SUIZA FRUIT" shall mean Suiza Fruit Corporation, a Delaware
corporation.
"SUPPLEMENTAL CREDIT AGREEMENT" shall mean the Amended and Restated
Supplement Credit Agreement dated as of March 5, 1997 between the Company,
certain lenders and the Agent which amended and restated the Supplemental Credit
Agreement dated as of September 6, 1996, as amended by Amendment No. 1 thereto
dated as of December 2, 1996, between the Company, certain lenders and the
Agent.
"SUPPLEMENTAL GUARANTOR" shall mean each Subsidiary of the Company
party to a Supplemental Subsidiary Guarantee and Security Agreement.
"SUPPLEMENTAL SECURITY DOCUMENTS" shall mean, collectively, each
Supplemental Subsidiary Guarantee and Security Agreement between a Supplemental
Guarantor and the Agent, each Amendment to the Security Agreement, the Existing
Subsidiary Guarantee and Security Agreement and the Guarantee Agreement and all
Uniform Commercial Code financing statements and/or other filings required
hereby or thereby to be filed with respect to the security interests in personal
Property and fixtures created pursuant hereto or thereto.
"SUPPLEMENTAL SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT" shall mean,
collectively, (i) the Supplemental Subsidiary Guarantee and Security Agreement
dated as of September 6, 1996 between the Agent and Swiss Dairy, (ii) the
Supplemental Subsidiary Guarantee and Security Agreement dated as of December 2,
1996 between the Agent and Model Dairy, (iii) the Supplemental Subsidiary
Guarantee and Security Agreement dated as
CREDIT AGREEMENT
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of June 10, 1997 between the Agent and Dairy Fresh (formerly known as DF
Acquisition Corp.), and (iv) each other Supplemental Subsidiary Guarantee and
Security Agreement, substantially in the form of Exhibit B to the Second
Restated Supplemental Credit Agreement, as the same shall be modified and
supplemented from time to time.
"SWISS DAIRY" shall mean Swiss Dairy Corporation, a Delaware
corporation and a Wholly Owned Subsidiary of the Company.
"TAXES" shall have the meaning assigned to such term in
Section 5.06(a) hereof.
"TERM LOAN COMMITMENT TERMINATION DATE" shall mean September 22, 1997.
"TYPE" shall have the meaning assigned to such term in Section 1.03
hereof.
"UNITED STATES" shall mean the United States of America.
"U.S. TAXES" shall have the meaning assigned to such term in
Section 5.06(b) hereof.
"WHOLLY OWNED SUBSIDIARY" shall mean, with respect to any Person, any
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are directly or indirectly owned or controlled by
such Person or one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
"WORKING CAPITAL" shall mean, for any period, the excess of (a) the
aggregate amount of inventory, accounts receivable and prepaid expenses of the
Company and its Subsidiaries over (b) the aggregate amount of accounts payable
and current accrued expenses of the Company and its Subsidiaries.
1.02 ACCOUNTING TERMS AND DETERMINATIONS.
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all
CREDIT AGREEMENT
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financial statements and certificates and reports as to financial matters
required to be delivered to the Lenders hereunder shall (unless otherwise
disclosed to the Lenders in writing at the time of delivery thereof in the
manner described in subsection (b) below) be prepared, in accordance with
generally accepted accounting principles applied on a basis consistent with
those used in the preparation of the latest financial statements furnished to
the Lenders hereunder. All calculations made for the purposes of determining
compliance with this Agreement shall (except as otherwise expressly provided
herein) be made by application of generally accepted accounting principles
applied on a basis consistent with those used in the preparation of the latest
annual or quarterly financial statements furnished to the Lenders pursuant to
Section 8.01 hereof unless (i) the Company shall have objected to determining
such compliance on such basis at the time of delivery of such financial
statements or (ii) the Majority Lenders shall so object in writing within 30
days after delivery of such financial statements, in either of which events
such calculations shall be made on a basis consistent with those used in the
preparation of the latest financial statements as to which such objection
shall not have been made.
(b) The Company shall deliver to the Lenders at the same time as the
delivery of any annual or quarterly financial statement under Section 8.01
hereof (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
subSection (a) above and (ii) reasonable estimates of the difference between
such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of compliance
with the covenants set forth in Section 8 hereof, the Company will not, without
the prior consent of the Majority Lenders, change the last day of its fiscal
year from December 31 of each year, or the last days of the first three fiscal
quarters in each of its fiscal years from March 31, June 30 and September 30 of
each year, respectively.
1.03 CLASSES AND TYPES OF LOANS. Loans hereunder are distinguished by
"Class" and by "Type". The "Class" of a Loan (or of a Commitment to make a Loan
or the related Note) refers to
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whether such Loan is a Facility A Loan, or a Facility B Loan, each of which
constitutes a Class. The "Type" of a Loan refers to whether such Loan is a
Base Rate Loan or a Eurodollar Loan, each of which constitutes a Type. Loans
may be identified by both Class and Type.
Section 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS.
2.01 LOANS.
(a) FACILITY A LOANS.
(i) On the Effective Date, (i) the "Facility A Loans" (as defined in
the Existing Credit Agreement) held by the Existing Lenders under the
Existing Credit Agreement shall automatically, and without any action on
the part of any Person, be deemed to be Facility A Loans hereunder,
(ii) the New Lenders shall be Facility A Lenders and parties hereto, and
(iii) the Facility A Lenders shall take such steps, which may include the
making of assignments and Facility A Loans and other adjustments among the
Facility A Lenders, as shall be necessary so that after giving effect to
such assignments and adjustments, the Facility A Lenders shall hold
Facility A Loans hereunder ratably in accordance with their respective
Facility A Commitments. On the Effective Date all Interest Periods under
the Existing Credit Agreement in respect of the "Facility A Loans" under
and as defined in the Existing Credit Agreement shall automatically be
terminated (and the Company shall on the Effective Date make payments to
the Existing Lenders that held such "Facility A Loans" under Section 5.05
thereof to compensate for such termination as if such termination were a
payment or prepayment referred to in said Section 5.05), and, subject to
the provisions of paragraph (c) below, the Company shall be permitted to
Continue such "Facility A Loans" as Eurodollar Loans hereunder, or to
convert such "Facility A Loans" into Base Rate Loans hereunder.
(ii) Each Facility A Lender severally agrees, on the terms and
conditions of this Agreement, to make loans to the Company in Dollars
during the period from and including the Effective Date to but not
including the Revolving Credit Commitment Termination Date in an aggregate
principal amount (including any Loans outstanding to it by reason of the
CREDIT AGREEMENT
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assignments and other adjustments under the immediately preceding paragraph
and also taking into account the provisions of clause (c) below) at any
one time outstanding up to but not exceeding the amount of the Facility A
Commitment of such Lender as in effect from time to time (such Loans being
herein called "FACILITY A LOANS"); PROVIDED that in no event shall the
aggregate principal amount of all Facility A Loans, together with the
aggregate amount of all Letter of Credit Liabilities, exceed the aggregate
amount of the Facility A Commitments as in effect from time to time.
Subject to the terms and conditions of this Agreement, during such period
the Company may borrow, repay and reborrow the amount of the Facility A
Commitments by means of Base Rate Loans and/or Eurodollar Loans and may
Convert Facility A Loans of one Type into Facility A Loans of another Type
(as provided in Section 2.08 hereof) or Continue Facility A Loans of one
Type as Facility A Loans of the same Type (as provided in Section 2.08
hereof).
(b) FACILITY B LOANS.
(i) On the Effective Date, (i) the "Facility B Loans" (as defined in
the Existing Credit Agreement) held by the Existing Lenders under the
Existing Credit Agreement shall automatically, and without any action on
the part of any Person, be deemed to be Facility B Loans hereunder,
(ii) the New Lenders shall be Facility B Lenders and parties hereto, and
(iii) the Facility B Lenders shall take such steps, which may include the
making of assignments and Facility B Loans and other adjustments among the
Facility B Lenders, as shall be necessary and as the Agent shall reasonably
direct so that after giving effect to such assignments and adjustments, the
Facility B Lenders shall hold Facility B Loans hereunder ratably in
accordance with their respective Facility B Commitments. On the Effective
Date all Interest Periods under the Existing Credit Agreement in respect of
the "Facility B Loans" under and as defined in the Existing Credit
Agreement shall automatically be terminated (and the Company shall on the
Effective Date make payments to the Existing Lenders that held such
"Facility B Loans" under Section 5.05 thereof to compensate for such
termination as if such termination were a payment or prepayment referred to
in said Section 5.05), and, subject to the provisions of paragraph
(c) below, the Company shall be permitted to Continue such "Facility B
Loans" as Eurodollar Loans
CREDIT AGREEMENT
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hereunder, or to convert such "Facility B Loans" into Base Rate Loans
hereunder.
(ii) Each Facility B Lender severally agrees, on the terms and
conditions of this Agreement, to make a single term loan to the Company in
Dollars on the Effective Date (PROVIDED that the same shall occur no later
than the Term Loan Commitment Termination Date) in a principal amount up to
but not exceeding the amount of the Facility B Commitment of such Lender
less the amount of any Facility B Loan outstanding to it by reason of the
assignments and Loans and other adjustments under the immediately preceding
paragraph and also taking into account the provisions of clause (c) below.
Subject to the terms and conditions of this Agreement, the Company may
borrow the amount of the Facility B Commitments by means of Base Rate Loans
and/or Eurodollar Loans and thereafter may Convert Facility B Loans of one
Type into Facility B Loans of another Type (as provided in Section 2.08
hereof) or Continue Facility B Loans of one Type as Facility B Loans of the
same Type (as provided in Section 2.08 hereof).
(c) CONVERSIONS. On the Effective Date, outstanding Facility A Loans
(after giving effect to Section 2.01(a)(i) hereof) shall be deemed converted to
Facility B Loans (or other appropriate adjustments shall be made upon the
instructions of the Agent) in such amounts as may be required so that, after
giving effect to the transactions contemplated by clause (b) above and by this
clause (c), the aggregate principal amount of Facility B Loans outstanding
hereunder shall be $150,000,000. On the Effective Date, after giving effect to
the conversions provided for under the preceding sentence, remaining outstanding
Facility A Loans shall be deemed converted to Facility D Loans under the Second
Restated Supplemental Credit Agreement in an amount which, together with the
amount borrowed under Section 2.01(b) of the Second Restated Supplemental Credit
Agreement on the Effective Date, does not exceed the Facility D Commitments.
Each Lender hereby agrees to the provisions contained in this clause (c) in its
capacity as a Lender hereunder and as a Facility D Lender under the Second
Restated Supplemental Credit Agreement.
(d) ADJUSTMENTS GENERALLY. On the date three Business Days prior to
the Effective Date, the Agent shall notify each Lender of the amount of Loans
required to be made by such Lender
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(if any) to the Company on the Effective Date, the amount of increase or
decrease in each Commitment of such Lender and of any other assignments or
adjustments that the Agent deems necessary and advisable such that after
giving effect to the transactions contemplated in this Section to occur on the
Effective Date, each Lender's Commitments shall be in accordance with the
Commitments set forth opposite its name on the signature pages hereof, each
Lender's Loans of any Class to the Company shall not exceed its pro rata
portion of all Loans of any such Class then outstanding to the Company
hereunder and the unused Commitments of all the Lenders plus all outstanding
Loans under this Agreement shall not exceed $200,000,000 in aggregate
principal amount. Any such assignments shall be deemed to occur hereunder
automatically on the Effective Date and without any requirement for additional
documentation and in the case of any such assignment, the assigning party
shall be deemed to represent and warrant to each assignee that it has not
created any adverse claim upon the interest being assigned and that such
interest is free and clear of any adverse claim. Each Lender hereby agrees to
give effect to the instructions of the Agent to such Lender contained in the
notice described above.
(e) LIMIT ON CERTAIN LOANS. No more than six separate Interest
Periods in respect of Eurodollar Loans of any Class from each Lender may be
outstanding at any one time.
2.02 BORROWINGS.
(a) The Company shall give the Agent notice of each borrowing
hereunder as provided in Section 4.05 hereof.
(b) With respect to each borrowing, not later than 3:30 p.m.
Charlotte, North Carolina time on the date specified for such borrowing, each
Lender shall make available the amount of the Loan or Loans to be made by it to
the Company on such date to the Agent at any account designated by the Agent, in
immediately available funds, for account of the Company. The amount so received
by the Agent shall, subject to the terms and conditions of this Agreement, be
made available to the Company by depositing the same, in immediately available
funds, in the deposit account of the Company identified in the most recent
Notice of Account Designation substantially in the form of Exhibit J-4 hereto
delivered by the Company to the Agent or as may be otherwise agreed by the
Company and the Agent from time to time.
CREDIT AGREEMENT
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2.03 CHANGES OF COMMITMENTS.
(a) The aggregate amount of each of the Facility A Commitments shall
be automatically reduced to zero on the Revolving Credit Commitment Termination
Date.
(b) The Company shall have the right at any time or from time to time
(i) to terminate or reduce the aggregate unused amount of any of the Facility B
Commitments, (ii) so long as no Facility A Loans or Letter of Credit Liabilities
in respect of Letters of Credit are outstanding, to terminate the Facility A
Commitments, and (iii) to reduce the aggregate unused amount of any of the
Facility A Commitments (for which purpose use of the Facility A Commitments
shall be deemed to include the aggregate amount of Letter of Credit
Liabilities); PROVIDED that (x) the Company shall give notice of each such
termination or reduction as provided in Section 4.05 hereof and (y) each such
partial reduction shall be in an aggregate amount at least equal to $2,000,000
(or a larger multiple of $1,000,000).
(c) Any portion of the Facility B Commitments not used on the
Effective Date shall be automatically terminated.
(d) The Commitments once terminated or reduced may not be reinstated.
2.04 COMMITMENT FEE. The Company shall pay to the Agent for account
of each Facility A Lender a commitment fee on the daily average unused amount of
such Lender's Facility A Commitment (for which purpose the aggregate amount of
any Letter of Credit Liabilities in respect of Letters of Credit shall be deemed
to be a pro rata (based on the Facility A Commitments) use of each Facility A
Lender's Facility A Commitment), for the period from and including the Effective
Date to but not including the earlier of the date such Commitment is terminated
and the Revolving Credit Commitment Termination Date, at a rate per annum equal
to the Applicable Commitment Fee Rate. Accrued commitment fees shall be payable
in arrears on each Quarterly Date and on the earlier of (i) the date the
relevant Commitments are terminated and (ii) the Revolving Credit Commitment
Termination Date.
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2.05 LENDING OFFICES. The Loans of each Type made by each Lender
shall be made and maintained at such Lender's Applicable Lending Office for
Loans of such Type.
2.06 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. The failure of any
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loan on such date,
but neither any Lender nor the Agent shall be responsible for the failure of any
other Lender to make a Loan to be made by such other Lender, and no Lender shall
have any obligation to the Agent or any other Lender for the failure by such
Lender to make any Loan required to be made by such Lender. The amounts payable
by the Company at any time hereunder and under the Notes to each Lender shall be
a separate and independent debt and each Lender shall be entitled, subject to
the prior written consent of the Majority Lenders, to protect and enforce its
rights arising out of this Agreement and the Notes, and it shall not be
necessary for any other Lender or the Agent to be joined as an additional party
in any proceedings for such purposes.
2.07 NOTES.
(a) The Facility A Loans made (or continued, as the case may be) by
each Lender shall be evidenced by a single promissory note of the Company
substantially in the form of Exhibit A-1 hereto, dated the Effective Date,
payable to such Lender in a principal amount equal to the amount of its
Facility A Commitment as originally in effect and otherwise duly completed.
(b) The Facility B Loan made (or continued, as the case may be) by
each Lender shall be evidenced by a single promissory note of the Company
substantially in the form of Exhibit A-2 hereto, dated the Effective Date,
payable to such Lender in a principal amount equal to the amount of its
Facility B Commitment as originally in effect and otherwise duly completed.
(c) The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Loan of each Class made by each Lender, and each
payment made on account of the principal thereof, shall be recorded by such
Lender on its books and, prior to any transfer of the Note evidencing the Loans
of such Class held by it, endorsed by such Lender on the schedule
CREDIT AGREEMENT
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attached to such Note or any continuation thereof; PROVIDED that the failure
of such Lender to make any such recordation or endorsement or an error therein
shall not affect the obligations of the Company to make a payment when due of
any amount owing hereunder or under such Note in respect of the Loans to be
evidenced by such Note.
(d) No Lender shall be entitled to have its Notes subdivided, by
exchange for promissory notes of lesser denominations or otherwise, except in
connection with a permitted assignment of all or any portion of such Lender's
relevant Commitments, Loans and Notes pursuant to Section 11.06(b) hereof.
(e) Notwithstanding the foregoing, any Lender that is not a U.S.
Person and is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code may request the Company (through the Agent), and the Company agrees
thereupon, to record on the Register referred to in Section 11.06(g) hereof any
Facility B Loans held by such Lender under this Agreement. Loans recorded on
the Register ("REGISTERED LOANS") may not be evidenced by promissory notes other
than Registered Notes as defined below and, upon the registration of any
Facility B Loan, any promissory note (other than a Registered Note) evidencing
the same shall be null and void and shall be returned to the Company. The
Company agrees, at the request of any Lender that is the holder of Registered
Loans, to execute and deliver to such Lender a promissory note in registered
form to evidence such Registered Loans and registered as provided in
Section 11.06(g) hereof (herein, a "REGISTERED NOTE"), dated the Effective Date,
payable to such Lender and otherwise duly completed. A Facility B Loan once
recorded on the Register may not be removed from the Register so long as it
remains outstanding and a Registered Note may not be exchanged for a promissory
note that is not a Registered Note.
2.08 OPTIONAL PREPAYMENTS AND CONVERSIONS OR CONTINUATIONS OF LOANS.
Subject to Section 4.04 hereof, the Company shall have the right to prepay
Loans, or to Convert Loans of one Type into Loans of another Type or Continue
Loans of one Type as Loans of the same Type, at any time or from time to time,
PROVIDED that:
(a) the Company shall give the Agent notice of each such prepayment,
Conversion or Continuation as provided in Section 4.05 hereof (and, upon the
date specified in any such
CREDIT AGREEMENT
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notice of prepayment, the amount to be prepaid shall become due and payable
hereunder);
(b) Eurodollar Loans may be prepaid or Converted on any day, PROVIDED
that, if such prepayment or Conversion falls on a day other than the last day of
an Interest Period for such Loans, the Company shall pay any and all amounts
required by Section 5.05 hereof as a result thereof; and
(c) prepayments of the Facility B Loans under this Section 2.08 shall
be applied ratably as among the remaining installments of the Facility B Loans.
Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 9 hereof, in the event that any Event of Default shall
have occurred and be continuing, the Agent may (and at the request of the
Majority Lenders shall) suspend the right of the Company to borrow any Loan as a
Eurodollar Loan or to Convert any Loan into a Eurodollar Loan, or to Continue
any Loan as a Eurodollar Loan, in which event all Eurodollar Loans outstanding
shall be automatically Converted (on the last day(s) of the respective Interest
Periods therefor) to, or all Base Rate Loans shall be Continued, as the case may
be, as Base Rate Loans.
2.09 MANDATORY PREPAYMENTS AND REDUCTIONS OF COMMITMENTS.
(a) CASUALTY EVENTS. Not later than 60 days following the receipt by
the Company or any of its Subsidiaries (other than a Supplemental Guarantor) of
the proceeds of insurance, condemnation award or other compensation in respect
of any Casualty Event affecting any Property of the Company or any of its
Subsidiaries (other than Property of a Supplemental Guarantor or acquired with
the proceeds of Facility C Loans or Facility D Loans under the Second Restated
Supplemental Credit Agreement) (or upon such earlier date as the Person owning
such Property shall have determined not to repair or replace the Property
affected by such Casualty Event), the Company shall prepay the Loans (and/or
provide cover for Letter of Credit Liabilities as specified in paragraph (f)
below), and the Facility A Commitments shall be subject to automatic reduction,
in an aggregate amount, if any, equal to 100% of the Net Available Proceeds of
such Casualty Event not theretofore applied to the repair or replacement of such
Property or prepayment of the Facility B
CREDIT AGREEMENT
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Loans, such prepayment and reduction to be effected in each such case in the
manner and to the extent specified in paragraph (e) below. Nothing in this
paragraph (a) shall be deemed to limit any obligation of the Company or any
of its Subsidiaries pursuant to any of the Security Documents to remit to a
collateral or similar account (including, without limitation, the Collateral
Account) maintained by the Agent pursuant to any of the Security Documents
the proceeds of insurance, condemnation award or other compensation received
in respect of any Casualty Event. Notwithstanding the foregoing, in the
event that a Casualty Event shall occur with respect to Property of the
Company or any of its Subsidiaries (other than Property of a Supplemental
Guarantor or acquired with the proceeds of Facility C Loans or Facility D
Loans under the Second Restated Supplemental Credit Agreement) and covered by
any Mortgage, the Company shall prepay the Loans (and/or provide cover for
Letter of Credit Liabilities) on the dates and in the amounts to the extent
specified in such Mortgage. In the event of a Casualty Event involving
Property of a Supplemental Guarantor or acquired with the proceeds of
Facility C Loans or Facility D Loans under the Second Restated Supplemental
Credit Agreement, the Net Available Proceeds of such Casualty Event shall be
applied in accordance with the terms of the Second Restated Supplemental
Credit Agreement.
(b) SALE OF ASSETS. Without limiting the obligation of the Company
to obtain the consent of the Majority Lenders pursuant to Section 8.05(c) hereof
to any Disposition not otherwise permitted hereunder, in the event that the Net
Available Proceeds of any Disposition of Property of the Company or any of its
Subsidiaries (other than Property of a Supplemental Guarantor or acquired with
the proceeds of Facility C Loans or Facility D Loans under the Second Restated
Supplemental Credit Agreement) other than an Excluded Disposition (herein, the
"CURRENT DISPOSITION"), and of all prior Dispositions of Property of the Company
or any of its Subsidiaries (other than Property of a Supplemental Guarantor or
acquired with the proceeds of Facility C Loans or Facility D Loans under the
Second Restated Supplemental Credit Agreement) as to which a prepayment has not
yet been made under this Section 2.09(b), shall exceed $1,000,000 then, no later
than 5 Business Days prior to the occurrence of the Current Disposition, the
Company will deliver to the Lenders a statement, certified by a Responsible
Financial Officer of the Company, in form and detail satisfactory to the Agent,
of the amount of the Net Available Proceeds of the Current Disposition and of
all such prior Dispositions and the Company will prepay
CREDIT AGREEMENT
-40-
the Loans (or cause the Loans to be prepaid) and the Facility A Commitments
shall be subject to automatic reduction, in an aggregate amount equal to 100%
of the Net Available Proceeds of the Current Disposition and such prior
Dispositions not theretofore used to prepay Facility B Loans, such prepayment
and reduction to be effected in each case in the manner and to the extent
specified in paragraph (e) below. In the case of all Dispositions of
Property of a Supplemental Guarantor or acquired with the proceeds of
Facility C Loans or Facility D Loans under the Second Restated Supplemental
Credit Agreement, the Company will make (or cause to be made) prepayments of
the Facility C Loans and the Facility D Loans as required by the Second
Restated Supplemental Credit Agreement.
(c) EQUITY ISSUANCE; INVESTMENT TAX CREDITS. Upon any Equity
Issuance or the issuance of any Indebtedness (other than Indebtedness permitted
under Section 8.07 hereof) or the Disposition of any Investment Tax Credit after
the Effective Date, the Company shall (i) prepay the Facility C Loans or the
Facility D Loans or the Facility B Loans in an aggregate amount equal to 100% of
the Net Available Proceeds thereof or (ii) in connection with a Disposition of
any Investment Tax Credit, apply any part of the Net Available Proceeds thereof,
within six months of receipt, to the purchase price of a Permitted Acquisition
if any and use the balance of such Net Available Proceeds to prepay the
Facility C Loans or the Facility D Loans or the Facility B Loans as contemplated
in clause (i) above. Promptly after each such Equity Issuance the Company shall
advise the Agent in writing of its designated application of such Net Available
Proceeds thereof. Any such prepayments of the Facility C Loans and the
Facility D Loans shall be effected in the manner specified in the Second
Restated Supplemental Credit Agreement. Any such prepayment of the Facility B
Loans shall be effected in the manner and to the extent specified in paragraph
(e) below.
(d) EXCESS CASH FLOW. Not later than 90 days after the end of each
fiscal year of the Company, commencing with the fiscal year ending December 31,
1997, the Company shall prepay the Facility B Loans, the Facility C Loans and
the Facility D Loans in an aggregate amount equal to the excess of (A) 50% of
Excess Cash Flow for such fiscal year (or, if the Leverage Ratio is less than
3.25 to 1, 0% of such Excess Cash Flow) over (B) the aggregate amount of
prepayments of Facility B Loans, Facility C Loans and Facility D Loans made
during such fiscal year pursuant to Section 2.08 hereof and Section 2.08 of the
Second Restated
CREDIT AGREEMENT
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Supplemental Credit Agreement. Mandatory prepayments arising from Excess
Cash Flow shall be applied to the Facility B Loans, the Facility C Loans and
the Facility D Loans pro rata based on the aggregate principal amounts
thereof then outstanding and such prepayments of Facility B Loans shall be
effected in each case in the manner and to the extent specified in paragraph
(e) below.
(e) APPLICATION. Prepayments and reductions of Commitments described
in paragraphs (a), (b), (c) and (d) above shall be effected as follows:
(i) first, the amount of the prepayment specified in such paragraphs
shall be applied to the Facility B Loans then outstanding, 50% of which
amount shall be applied in the inverse order of the maturities of the
installments thereof and (after taking into account such application) the
remainder thereof shall be applied ratably to then remaining installments
of principal of the Facility B Loans; and
(ii) second, the Facility A Commitments shall be automatically reduced
in an amount equal to any excess over the amount referred to in the
foregoing clause (i) (and to the extent that, after giving effect to such
reduction, the aggregate principal amount of Facility A Loans, together
with the aggregate amount of all Letter of Credit Liabilities, would exceed
the Facility A Commitments, the Company shall prepay Facility A Loans in an
aggregate amount equal to such excess (and, to the extent that the amount
of any such prepayment to be applied to the Facility A Loans exceeds the
outstanding amount thereof, provide cover for Letter of Credit Liabilities
as specified in paragraph (f) below).
(f) COVER FOR LETTER OF CREDIT LIABILITIES. In the event that the
Company shall be required pursuant to this Section 2.09 to provide cover for
Letter of Credit Liabilities, the Company shall effect the same by paying to the
Agent in immediately available funds an amount equal to the required amount,
which funds shall be retained by the Agent in the Collateral Account (as
collateral security in the first instance for the Letter of Credit Liabilities)
until such time as the Letters of Credit shall have been terminated and all of
such Letter of Credit Liabilities paid in full.
CREDIT AGREEMENT
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2.10 LETTERS OF CREDIT. Subject to the terms and conditions of this
Agreement, the Facility A Commitments may be utilized, upon the request of
the Company, in addition to the Facility A Loans provided for by Section
2.01(a) hereof, by the issuance by the Issuing Bank of letters of credit
(collectively, "LETTERS OF CREDIT") including (a) Letters of Credit issued
under the Existing Credit Agreement and outstanding on the Effective Date,
for account of any of the Subsidiaries of the Company, and (b) in respect of
all (1) Letters of Credit described in clause (a) above that are amended,
renewed or otherwise modified and (2) other Letters of Credit, for account of
the Company and any of its Subsidiaries PROVIDED that in no event shall (i)
the aggregate amount of all Letter of Credit Liabilities, together with the
aggregate principal amount of the Facility A Loans, exceed the aggregate
amount of the Facility A Commitments as in effect from time to time and (ii)
the expiration date of any Letter of Credit extend beyond the earlier of the
Revolving Credit Commitment Termination Date and the date 12 months following
the issuance of such Letter of Credit. The following additional provisions
shall apply to Letters of Credit:
(a) The Company shall give the Agent at least three Business Days'
irrevocable prior notice (effective upon receipt) specifying the Business
Day (which shall be no later than 30 days preceding the Revolving Credit
Commitment Termination Date) each Letter of Credit is to be issued and the
account party or parties therefor and describing in reasonable detail the
proposed terms of such Letter of Credit (including the beneficiary thereof)
and the nature of the transactions or obligations proposed to be supported
thereby (including whether such Letter of Credit is to be a commercial
letter of credit or a standby letter of credit). Upon receipt of any such
notice, the Agent shall advise the Issuing Bank of the contents thereof.
(b) On each day during the period commencing with the issuance by the
Issuing Bank of any Letter of Credit (from the Effective Date in the case
of outstanding Letters of Credit) and until such Letter of Credit shall
have expired or been terminated, the Facility A Commitment of each
Facility A Lender shall be deemed to be utilized for all purposes of this
Agreement in an amount equal to such Lender's Facility A Commitment
Percentage of the then undrawn face amount of such Letter of Credit. Each
Facility A Lender (other than the Issuing Bank) agrees that,
CREDIT AGREEMENT
-43-
upon the issuance of any Letter of Credit hereunder, it shall automatically
acquire a participation in the Issuing Bank's liability under such Letter
of Credit in an amount equal to such Lender's Facility A Commitment
Percentage of such liability, and each Facility A Lender (other than the
Issuing Bank) thereby shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and shall be unconditionally
obligated to the Issuing Bank to pay and discharge when due, its Facility A
Commitment Percentage of the Issuing Bank's liability under such Letter of
Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit of any
demand for payment under such Letter of Credit, the Issuing Bank shall
promptly notify the Company (through the Agent) of the amount to be paid by
the Issuing Bank as a result of such demand and the date on which payment
is to be made by the Issuing Bank to such beneficiary in respect of such
demand (but the failure to give such notice shall not impair the Company's
obligations). Notwithstanding the identity of the account party of any
Letter of Credit, the Company hereby unconditionally agrees to pay and
reimburse the Agent for account of the Issuing Bank for the amount of each
demand for payment under such Letter of Credit that is in substantial
compliance with the provisions of such Letter of Credit at or prior to the
date on which payment is to be made by the Issuing Bank to the beneficiary
thereunder, without presentment, demand, protest or other formalities of
any kind and irrespective of any claim, set-off, defense or other right
which the Company or any of its Subsidiaries or Affiliates may have at any
time against such Issuing Bank or any other Person, under all
circumstances, including without limitation, any of the following
circumstances: (i) any lack of validity or enforceability of this
Agreement or any of the Loan Documents; (ii) the existence of any claim,
set-off, defense or other right which the Company or any of its
Subsidiaries or Affiliates may have at any time against a beneficiary named
in any Letter of Credit or any transferee thereof (or any Person for whom
any such transferee may be acting), the Issuing Bank, any Lender or any
other Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transactions between the Company or any of its
Subsidiaries
CREDIT AGREEMENT
-44-
or Affiliates and the beneficiary named in any Letter of Credit; (iii) any
draft, certificate or any other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents; or (v) the
existence of any Default.
(d) Forthwith upon its receipt of a notice referred to in
paragraph (c) of this Section 2.10, the Company shall advise the Agent
whether or not the Company intends to borrow hereunder to finance its
obligation to reimburse the Issuing Bank for the amount of the related
demand for payment and, if it does, submit a notice of such borrowing as
provided in Section 4.05 hereof.
(e) Each Facility A Lender (other than the Issuing Bank) shall pay to
the Agent for account of the Issuing Bank at its principal office in
Dollars and in immediately available funds, the amount of such Lender's
Facility A Commitment Percentage of any payment under a Letter of Credit
upon notice by the Issuing Bank (through the Agent) to such Facility A
Lender requesting such payment and specifying such amount. Each such
Facility A Lender's obligation to make such payment to the Agent for
account of the Issuing Bank under this paragraph (e), and the Issuing
Bank's right to receive the same, shall be absolute and unconditional and
shall not be affected by any circumstance whatsoever (except as provided in
the proviso at the end of this sentence), including, without limitation,
the failure of any other Facility A Lender to make its payment under this
paragraph (e), the financial condition of the Company (or any other account
party), the existence of any Default or the termination of the Commitments;
PROVIDED that no Facility A Lender shall be obligated to make any payment
to the Agent for account of the Issuing Bank in respect of any payment made
by the Issuing Bank under a Letter of Credit where such payment was made in
respect of a demand for payment that was not in substantial compliance with
the provisions of such Letter of Credit or to the extent that the Company
shall not be required to indemnify any Lender or the Agent in the
circumstances provided in clause (x) of the penultimate sentence of the
last paragraph of this Section 2.10. Each such payment to the Issuing Bank
shall
CREDIT AGREEMENT
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be made without any offset, abatement, withholding or reduction whatsoever.
If any Facility A Lender shall default in its obligation to make any such
payment to the Agent for account of the Issuing Bank, for so long as such
default shall continue the Agent may at the request of the Issuing Bank
withhold from any payments received by the Agent under this Agreement or
any Note for account of such Facility A Lender the amount so in default
and, to the extent so withheld, pay the same to the Issuing Bank in
satisfaction of such defaulted obligation.
(f) Upon the making of each payment by a Facility A Lender to the
Issuing Bank pursuant to paragraph (e) above in respect of any Letter of
Credit, such Lender shall, automatically and without any further action on
the part of the Agent, the Issuing Bank or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement
Obligation owing to the Issuing Bank by the Company hereunder and under the
Letter of Credit Documents relating to such Letter of Credit and (ii) a
participation in a percentage equal to such Lender's Facility A Commitment
Percentage in any interest or other amounts payable by the Company
hereunder and under such Letter of Credit Documents in respect of such
Reimbursement Obligation (other than the commissions, charges, costs and
expenses payable to the Issuing Bank pursuant to paragraph (g) of this
Section 2.10). Upon receipt by the Issuing Bank from or for account of the
Company of any payment in respect of any Reimbursement Obligation or any
such interest or other amount (including by way of setoff or application of
proceeds of any collateral security), the Issuing Bank shall promptly pay
to the Agent for account of each Facility A Lender entitled thereto, such
Facility A Lender's Facility A Commitment Percentage of such payment, each
such payment by the Issuing Bank to be made in the same money and funds in
which received by the Issuing Bank. In the event any payment received by
the Issuing Bank and so paid to the Facility A Lenders hereunder is
rescinded or must otherwise be returned by the Issuing Bank, each
Facility A Lender shall, upon the request of the Issuing Bank (through the
Agent), repay to the Issuing Bank (through the Agent) the amount of such
payment paid to such Lender, with interest at the rate specified in
paragraph (j) of this Section 2.10.
CREDIT AGREEMENT
-46-
(g) The Company shall pay to the Agent for account of each Facility A
Lender (ratably in accordance with their respective Commitment Percentages)
a letter of credit fee in respect of each Letter of Credit in an amount
equal to the percentage equivalent of the Applicable Margin for Eurodollar
Loans (less 0.25%) of the daily average undrawn face amount of such Letter
of Credit for the period from and including the date of issuance of such
Letter of Credit (i) in the case of a Letter of Credit that expires in
accordance with its terms, to and including such expiration date and
(ii) in the case of a Letter of Credit that is drawn in full or is
otherwise terminated other than on the stated expiration date of such
Letter of Credit, to but excluding the date such Letter of Credit is drawn
in full or is terminated (such fee to be non-refundable, to be paid in
arrears on each Quarterly Date and on the Revolving Credit Commitment
Termination Date and to be calculated for any day after giving effect to
any payments made under such Letter of Credit on such day). In addition,
the Company shall pay to the Agent for account of the Issuing Bank a
fronting fee in respect of each Letter of Credit in an amount equal to
0.25% per annum of the daily average undrawn face amount of such Letter of
Credit for the period from and including the date of issuance of such
Letter of Credit (i) in the case of a Letter of Credit that expires in
accordance with its terms, to and including such expiration date and
(ii) in the case of a Letter of Credit that is drawn in full or is
otherwise terminated other than on the stated expiration date of such
Letter of Credit, to but excluding the date such Letter of Credit is drawn
in full or is terminated (such fee to be non-refundable, to be paid in
arrears on each Quarterly Date and on the Revolving Credit Commitment
Termination Date and to be calculated for any day after giving effect to
any payments made under such Letter of Credit on such day) plus all
commissions, charges, costs and expenses in the amounts customarily charged
by the Issuing Bank from time to time in like circumstances with respect to
the issuance of each Letter of Credit and drawings and other transactions
relating thereto.
(h) Promptly following the end of each fiscal quarter, the Issuing
Bank shall deliver (through the Agent) to each Facility A Lender and the
Company a notice describing the aggregate amount of all Letters of Credit
outstanding at the end of such quarter. Upon the request of any Facility A
CREDIT AGREEMENT
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Lender from time to time, the Issuing Bank shall deliver any other
information reasonably requested by such Lender with respect to each Letter
of Credit then outstanding.
(i) The issuance by the Issuing Bank of each Letter of Credit shall,
in addition to the conditions precedent set forth in Section 6 hereof, be
subject to the conditions precedent that (i) such Letter of Credit shall be
in such form, contain such terms and support such transactions as shall be
reasonably satisfactory to the Issuing Bank consistent with its then
current practices and procedures with respect to letters of credit of the
same type and (ii) the Company shall have executed and delivered such
applications, agreements and other instruments relating to such Letter of
Credit as the Issuing Bank shall have reasonably requested consistent with
its then current practices and procedures with respect to letters of credit
of the same type, PROVIDED that in the event of any conflict between any
such application, agreement or other instrument and the provisions of this
Agreement or any Security Document, the provisions of this Agreement and
the Security Documents shall control.
(j) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (e) or (f) of this Section 2.10
on the due date therefor, such Lender shall pay interest to the Issuing
Bank (through the Agent) on such amount from and including such due date to
but excluding the date such payment is made at a rate per annum equal to
the Federal Funds Rate, PROVIDED that if such Lender shall fail to make
such payment to the Issuing Bank within three Business Days of such due
date, then, retroactively to the due date, such Lender shall be obligated
to pay interest on such amount at the Post-Default Rate.
(k) The issuance by the Issuing Bank of any modification or
supplement to any Letter of Credit hereunder shall be subject to the same
conditions applicable under this Section 2.10 to the issuance of new
Letters of Credit, and no such modification or supplement shall be issued
hereunder unless either (i) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been
issued hereunder in such modified or
CREDIT AGREEMENT
-48-
supplemented form or (ii) each Facility A Lender shall have consented
thereto.
The Company hereby indemnifies and holds harmless each Facility A Lender and the
Agent from and against any and all claims and damages, losses, liabilities,
costs or expenses that such Lender or the Agent may incur (or that may be
claimed against such Lender or the Agent by any Person whatsoever) by reason of
or in connection with the execution and delivery or transfer of or payment or
refusal to pay by the Issuing Bank under any Letter of Credit; PROVIDED that the
Company shall not be required to indemnify any Lender or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, caused by (x) the willful misconduct or gross negligence of the
Issuing Bank in determining whether a request presented under any Letter of
Credit complied with the terms of such Letter of Credit or (y) in the case of
the Issuing Bank, such Lender's failure to pay under any Letter of Credit after
the presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit. Nothing in this Section 2.10 is intended
to limit the other obligations of the Company, any Lender or the Agent under
this Agreement.
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01 REPAYMENT OF LOANS.
(a) The Company hereby promises to pay to the Agent for account of
each Facility A Lender the entire outstanding principal amount of such Lender's
Facility A Loans, and each such Facility A Loan shall mature, on the Revolving
Credit Commitment Termination Date.
(b) The Company hereby promises to pay to the Agent for account of
each Facility B Lender the principal of such Lender's Facility B Loan in 25
installments payable on the Principal Payment Dates falling on or nearest to the
dates specified below, each in an amount equal to such Lender's ratable share of
the aggregate amount set forth opposite such date, as follows:
Date Amount of Installment ($)
---- -------------------------
September 30, 1997 4,000,000
December 31, 1997 4,000,000
CREDIT AGREEMENT
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March 31, 1998 4,000,000
June 30, 1998 4,000,000
September 30, 1998 4,500,000
December 31, 1998 4,500,000
March 31, 1999 4,500,000
June 30, 1999 4,500,000
September 30, 1999 5,000,000
December 31, 1999 5,000,000
March 31, 2000 5,000,000
June 30, 2000 5,000,000
September 30, 2000 5,500,000
December 31, 2000 5,500,000
March 31, 2001 5,500,000
June 30, 2001 5,500,000
September 30, 2001 6,000,000
December 31, 2001 6,000,000
March 31, 2002 6,000,000
June 30, 2002 6,000,000
September 30, 2002 6,500,000
December 31, 2002 6,500,000
March 31, 2003 6,500,000
June 30, 2003 6,500,000
September 30, 2003 24,000,000
------------
$150,000,000
If the Company does not borrow the full amount of the aggregate Facility B
Commitments on or before the Term Loan Commitment Termination Date, the
shortfall shall be applied to reduce the foregoing installments ratably.
3.02 INTEREST. The Company hereby promises to pay to the Agent for
account of each Lender interest on the unpaid principal amount of each Loan for
the period from and including the date of such Loan to but excluding the date
such Loan shall be paid in full, at the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the Base
Rate (as in effect from time to time) PLUS the Applicable Margin, and
(b) during such periods as such Loan is a Eurodollar Loan, for each
Interest Period relating thereto, the Eurodollar Rate for such Loan for
such Interest Period PLUS the Applicable Margin.
CREDIT AGREEMENT
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Notwithstanding the foregoing, the Company hereby promises to pay to the Agent
for account of each Lender interest at the applicable Post-Default Rate as
follows:
(i) on any principal of any Loan made by such Lender, on any
Reimbursement Obligation held by such Lender and on any other amount
payable by the Company hereunder or under the Notes held by such
Lender to or for account of such Lender that shall not be paid in
full when due (whether at stated maturity, by acceleration, by
mandatory prepayment or otherwise), for the period from and including
the due date thereof to but excluding the date the same is paid in
full; and
(ii) on the principal of all Loans made by such Lender commencing
upon the occurrence of any Event of Default, and thereafter for so
long as any Event of Default shall be continuing.
Accrued interest on each Loan shall be payable (i) in the case of a Base Rate
Loan, quarterly on the Quarterly Dates, (ii) in the case of a Eurodollar Loan,
on the last day of each Interest Period therefor and, if such Interest Period is
longer than three months, at three-month intervals following the first day of
such Interest Period, and (iii) at the option of the Agent, in the case of any
Loan upon the payment or prepayment thereof or the Conversion of such Loan to a
Loan of another Type (but only on the principal amount so paid, prepaid or
Converted) except that interest payable at the Post-Default Rate shall be
payable from time to time on demand. Promptly after the determination of any
interest rate provided for herein or any change therein, the Agent shall give
notice thereof to the Lenders to which such interest is payable and to the
Company.
Section 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.01 PAYMENTS.
(a) Except to the extent otherwise provided herein, all
payments of principal, interest, Reimbursement Obligations and other amounts
to be made by the Company under this Agreement and the Notes of the Company,
and, except to the extent otherwise provided therein, all payments to be made
by the Obligors under
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any other Loan Document, shall be made in Dollars, in immediately available
funds, to the Agent at any account designated by the Agent not later than
2:00 p.m. Charlotte, North Carolina time on the date on which such payment
shall become due (each such payment made after such time on such due date to
be deemed to have been made on the next succeeding Business Day).
(b) Any Lender for whose account any such payment is to be
made may (but shall not be obligated to) debit the amount of any such payment
that is not made by such time to any ordinary deposit account of the Company
with such Lender (with notice to the Company and the Agent).
(c) The Company shall, at the time of making each payment
under this Agreement or any Note for account of any Lender, specify to the
Agent (which shall so notify the intended recipient(s) thereof) the Loans,
Reimbursement Obligations or other amounts payable hereunder to which such
payment is to be applied (and in the event that the Company fails to so
specify, or if an Event of Default has occurred and is continuing, the Agent
may distribute such payment to the Lenders for application in such manner as
it or the Majority Lenders, subject to Section 4.02 hereof, may determine to
be appropriate).
(d) Except to the extent otherwise provided in the last
sentence of Section 2.10(e) hereof, each payment received by the Agent under
this Agreement or any Note for account of any Lender shall be paid by the
Agent promptly to such Lender, in immediately available funds, for account of
such Lender's Applicable Lending Office for the Loan or other obligation in
respect of which such payment is made.
(e) If the due date of any payment under this Agreement or
any Note would otherwise fall on a day that is not a Business Day, such date
shall be extended to the next succeeding Business Day, and interest shall be
payable for any principal so extended for the period of such extension.
4.02 PRO RATA TREATMENT. Except to the extent otherwise
provided herein: (a) each borrowing of Loans of a particular Class from the
Lenders under Section 2.01 hereof shall be made from the relevant Lenders,
each payment of commitment fee under Section 2.04 hereof in respect of
Commitments of a particular Class shall be made for account of the relevant
Lenders, and each termination or reduction of the amount of the
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Commitments of a particular Class under Section 2.03 hereof shall be applied
to the respective Commitments of such Class of the relevant Lenders, pro rata
according to the amounts of their respective Commitments of such Class; (b)
the making, Conversion and Continuation of Loans of a particular Type and
Class (other than Conversions provided for by Section 5.04 hereof) shall be
made pro rata among the relevant Lenders according to the amounts of their
respective Commitments (in the case of making of Loans) or their respective
Loans (in the case of Conversions and Continuations of Loans); (c) each
payment or prepayment of principal of Loans of any Class by the Company shall
be made for account of the relevant Lenders pro rata in accordance with the
respective unpaid principal amounts of the Loans of such Class held by them;
and (d) each payment of interest on any Loans of any Class by the Company
shall be made for account of the relevant Lenders pro rata in accordance with
the amounts of interest on such Loans then due and payable to the respective
Lenders.
4.03 COMPUTATIONS. Interest on Eurodollar Loans, commitment
fees and letter of credit fees shall be computed on the basis of a year of
360 days and actual days elapsed (including the first day but, except as
otherwise provided in Section 2.10(g) hereof, excluding the last day)
occurring in the period for which payable and interest on Base Rate Loans and
Reimbursement Obligations shall be computed on the basis of a year of 365 or
366 days, as the case may be, and actual days elapsed (including the first
day but excluding the last day) occurring in the period for which payable.
4.04 MINIMUM AMOUNTS. Except for mandatory prepayments made
pursuant to Section 2.09 hereof and Conversions or prepayments made pursuant
to Section 5.04 hereof, (a) each borrowing and Conversion of principal of
Base Rate Loans shall be in an aggregate amount at least equal to $1,000,000
or a larger multiple of $500,000, (b) each borrowing and Conversion of
Eurodollar Loans shall be in an aggregate amount at least equal to $5,000,000
or a larger multiple of $1,000,000, (c) each partial prepayment of principal
of Eurodollar Loans shall be in an aggregate amount at least equal to
$5,000,000 or a larger multiple of $1,000,000 and each partial prepayment of
principal of Base Rate Loans shall be in an aggregate amount at least equal
to $1,000,000 or a larger multiple of $500,000 (borrowings, Conversions or
prepayments of or into Loans of different Types or, in the case of Eurodollar
Loans, having different Interest
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Periods at the same time hereunder to be deemed separate borrowings,
Conversions and prepayments for purposes of the foregoing, one for each Type
or Interest Period).
4.05 CERTAIN NOTICES. Notices by the Company to the Agent of
terminations or reductions of the Commitments, of Borrowings, Conversions,
Continuations and optional prepayments of Loans and of Classes of Loans, of
Types of Loans and of the duration of Interest Periods shall be irrevocable
(other than with respect to notices of optional prepayments, which shall be
revocable, PROVIDED that upon any such revocation the Company shall be
obligated to pay the Lenders any amounts payable under Section 5.05 hereof as
a consequence of such revocation) and shall be effective only if received by
the Agent not later than 1:30 p.m. Charlotte, North Carolina time on the
number of Business Days prior to the date of the relevant termination,
reduction, borrowing, Conversion, Continuation or prepayment or the first day
of such Interest Period specified below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of, or
Conversions into,
Base Rate Loans Same Day
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class of Loans to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.04 hereof) and Type of each Loan to be borrowed,
Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each
such notice of the duration of an Interest Period shall specify the Loans to
which such Interest Period is
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to relate. The Agent shall promptly notify the Lenders of the contents of
each such notice. In the event that the Company fails to select the Type of
Loan, or the duration of any Interest Period for any Eurodollar Loan, within
the time period and otherwise as provided in this Section 4.05, such Loan (if
outstanding as a Eurodollar Loan) will be automatically Converted into a Base
Rate Loan on the last day of the then current Interest Period for such Loan
or (if outstanding as a Base Rate Loan) will remain as, or (if not then
outstanding) will be made as, a Base Rate Loan. The Company agrees that each
notice of borrowing, each notice of prepayment and each notice of Conversion
or Continuation hereunder shall be substantially in the form of Exhibit J-1,
Exhibit J-2 and Exhibit J-3 hereto, respectively.
4.06 NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Agent
shall have been notified by a Lender or the Company (the "PAYOR") prior to
the date on which the Payor is to make payment to the Agent of (in the case
of a Lender) the proceeds of a Loan to be made by such Lender hereunder or
(in the case of the Company) a payment to the Agent for account of one or
more of the Lenders hereunder (such payment being herein called the "REQUIRED
PAYMENT"), which notice shall be effective upon receipt, that the Payor does
not intend to make the Required Payment to the Agent, the Agent may assume
that the Required Payment has been made and may, in reliance upon such
assumption (but shall not be required to), make the amount thereof available
to the intended recipient(s)on such date; and, if the Payor has not in fact
made the Required Payment to the Agent, the recipient(s) of such payment
shall, on demand, repay to the Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on
the date (the "ADVANCE DATE") such amount was so made available by the Agent
until the date the Agent recovers such amount at a rate per annum equal to
the Federal Funds Rate for such day and, if such recipient(s) shall fail
promptly to make such payment, the Agent shall be entitled to recover such
amount, on demand, from the Payor, together with interest as aforesaid,
PROVIDED that if neither the recipient(s) nor the Payor shall return the
Required Payment to the Agent within three Business Days of the Advance Date,
then, retroactively to the Advance Date, the Payor and the recipient(s) shall
each be obligated to pay interest on the Required Payment as follows:
CREDIT AGREEMENT
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(i) if the Required Payment shall represent a payment to be
made by the Company to the Lenders, the Company and the recipient(s)
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment at the Post-Default Rate
(and, in case the recipient(s) shall return the Required Payment to
the Agent, without limiting the obligation of the Company under
Section 3.02 hereof to pay interest to such recipient(s) at the
Post-Default Rate in respect of the Required Payment) and
(ii) if the Required Payment shall represent proceeds of a Loan
to be made by the Lenders to the Company, the Payor and the Company
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment at the rate of interest
provided for such Required Payment pursuant to Section 3.02 hereof
(and, in case the Company shall return the Required Payment to the
Agent, without limiting any claim the Company may have against the
Payor in respect of the Required Payment).
4.07 SHARING OF PAYMENTS, ETC.
(a) The Company agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a Lender
may otherwise have, each Lender shall be entitled, at its option but with the
prior written consent of the Majority Lenders, to offset balances held by it
for account of the Company at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Lender's Loans,
Reimbursement Obligations or any other amount payable to such Lender
hereunder, that is not paid when due (regardless of whether such balances are
then due to the Company), in which case it shall promptly notify the Company
and the Agent thereof, PROVIDED that such Lender's failure to give such
notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of
any principal of or interest on any Loan of any Class or Letter of Credit
Liability owing to it or payment of any other amount under this Agreement or
any other Loan Document through the exercise of any right of set-off,
Lender's lien or counterclaim or similar right or otherwise (other than from
the Agent as provided herein), and, as a result of such payment, such Lender
shall have received a greater percentage of the principal
CREDIT AGREEMENT
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of or interest on the Loans of such Class or Letter of Credit Liabilities or
such other amounts then due hereunder or thereunder by such Obligor to such
Lender than the percentage received by any other Lender, it shall promptly
purchase from such other Lenders participations in (or, if and to the extent
specified by such Lender, direct interests in) the Loans of such Class or
such other amounts, respectively, owing to such other Lenders (or in interest
due thereon, as the case may be) in such amounts, and make such other
adjustments from time to time as shall be equitable, to the end that all the
Lenders shall share the benefit of such excess payment (net of any expenses
that may be incurred by such Lender in obtaining or preserving such excess
payment) pro rata in accordance with the unpaid principal of and/or interest
on the Loans of such Class or Letter of Credit Liabilities or such other
amounts, respectively, owing to each of the Lenders. To such end all the
Lenders shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must
otherwise be restored.
(c) The Company agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off,
banker's lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans or
other amounts (as the case may be) owing to such Lender in the amount of such
participation.
(d) Nothing contained herein shall require any Lender to
exercise any such right or shall affect the right of any Lender to exercise,
and retain the benefits of exercising, any such right with respect to any
other indebtedness or obligation of any Obligor. If, under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured
claim in lieu of a set-off to which this Section 4.07 applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders entitled
under this Section 4.07 to share in the benefits of any recovery on such
secured claim.
Section 5. YIELD PROTECTION, ETC.
5.01 ADDITIONAL COSTS.
(a) The Company shall pay directly to each Lender from time
to time such amounts as such Lender may determine to be
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necessary to compensate such Lender for any costs that such Lender determines
are attributable to its making or maintaining of any Eurodollar Loans or its
obligation to make any Eurodollar Loans hereunder or any reduction in any
amount receivable by such Lender hereunder in respect of any of such Loans or
such obligation (such increases in costs and reductions in amounts receivable
being herein called "ADDITIONAL COSTS"), resulting from any Regulatory Change
that:
(i) shall subject any Lender (or its Applicable Lending Office
for any of such Loans) to any tax, duty or other charge in respect of
such Loans or its Notes or changes the basis of taxation of any
amounts payable to such Lender under this Agreement or its Notes in
respect of any of such Loans (excluding changes in the rate of tax on
the overall net income of such Lender or of its Applicable Lending
Office by the jurisdiction in which such Lender is organized or has
its principal office or in which its Applicable Lending Office is
organized or located or, in each case, any political subdivision or
taxing authority thereof or therein); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation, any of
such Loans or any deposits referred to in the definitions of
"Eurodollar Base Rate" in Section 1.01 hereof), or any commitment of
such Lender (including, without limitation, the Commitments of such
Lender hereunder); or
(iii) imposes any other condition affecting this Agreement or
its Notes (or any of such extensions of credit or liabilities) or its
Commitments.
If any Lender requests compensation from the Company under this Section 5.01(a),
the Company may, by notice to such Lender (with a copy to the Agent), suspend
the obligation of such Lender thereafter to make or Continue Eurodollar Loans,
to Convert Loans of another Type into Eurodollar Loans or to Convert Eurodollar
Loans into Loans of another Type until the Regulatory Change giving rise to such
request ceases to be in effect (in which case the provisions of Section 5.04
hereof shall be applicable),
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PROVIDED that such suspension shall not affect the right of such Lender to
receive the compensation so requested.
(b) Without limiting the effect of the provisions of
paragraph (a) of this Section 5.01, in the event that, by reason of any
Regulatory Change, any Lender (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by
reference to which the interest rate on Eurodollar Loans is determined as
provided in this Agreement or a category of extensions of credit or other
assets of such Lender that includes Eurodollar Loans or (ii) becomes subject
to restrictions on the amount of such a category of liabilities or assets
that it may hold then, if such Lender so elects by notice to the Company
(with a copy to the Agent), the obligation of such Lender to make or
Continue, or to Convert Loans of another type into, Eurodollar Loans,
hereunder (as the case may be) shall be suspended until any such Regulatory
Change ceases to be in effect (in which case the provisions of Section 5.04
hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions
of this Section 5.01 (but without duplication), the Company shall pay
directly to each Lender from time to time on request such amounts as such
Lender may determine to be necessary to compensate such Lender (or, without
duplication, the bank holding company of which such Lender is a subsidiary)
for any costs that it determines are attributable to the maintenance by such
Lender (or any Applicable Lending Office or such bank holding company),
pursuant to any law or regulation or any interpretation, directive or request
(whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) of any court or governmental or monetary
authority (i) following any Regulatory Change or (ii) hereafter implementing
any risk-based capital guideline or other requirement (whether or not having
the force of law and whether or not the failure to comply therewith would be
unlawful) heretofore or hereafter issued by any government or governmental or
supervisory authority implementing at the national level the Basle Accord
(including, without limitation, the Final Risk-Based Capital Guidelines of
the Board of Governors of the Federal Reserve System (12 C.F.R. Part 208,
Appendix A; 00 X.X.X. Xxxx 000, Xxxxxxxx X) and the Final Risk-Based Capital
Guidelines of the Office of the Comptroller of the Currency (12 C.F.R. Part 3,
Appendix A)), of capital in respect of its Commitments or
CREDIT AGREEMENT
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Loans (such compensation to include, without limitation, an amount equal to
any reduction of the rate of return on assets or equity of such Lender (or
any Applicable Lending Office or such bank holding company) to a level below
that which such Lender (or any Applicable Lending Office or such bank holding
company) could have achieved but for such law, regulation, interpretation,
directive or request). For purposes of this Section 5.01(c) and Section 5.08
hereof, "BASLE ACCORD" shall mean the proposals for risk-based capital framework
described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988, as amended, modified and
supplemented and in effect from time to time or any replacement thereof.
(d) Each Lender shall notify the Company of any event
occurring after the date of this Agreement entitling such Lender to
compensation under paragraph (a) or (c) of this Section 5.01 as promptly as
practicable, but in any event within 45 days, after such Lender obtains
actual knowledge thereof; PROVIDED that (i) if any Lender fails to give such
notice within 45 days after it obtains actual knowledge of such an event,
such Lender shall, with respect to compensation payable pursuant to this
Section 5.01 in respect of any costs resulting from such event, only be
entitled to payment under this Section 5.01 for costs incurred from and after
the date 45 days prior to the date that such Lender does give such notice and
(ii) each Lender will designate a different Applicable Lending Office for the
Loans of such Lender affected by such event if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
sole opinion of such Lender, be disadvantageous to such Lender, except that
such Lender shall have no obligation to designate an Applicable Lending
Office located in the United States. Each Lender will furnish to the Company
a certificate setting forth the basis and amount of each request by such
Lender for compensation under paragraph (a) or (c) of this Section 5.01.
Determinations and allocations by any Lender for purposes of this Section
5.01 of the effect of any Regulatory Change pursuant to paragraph (a) or (b)
of this Section 5.01, or of the effect of capital maintained pursuant to
paragraph (c) of this Section 5.01, on its costs or rate of return of
maintaining Loans or its obligation to make Loans, or on amounts receivable
by it in respect of Loans, and of the amounts required to compensate such
Lender under this Section 5.01, shall be conclusive in the
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absence of manifest error, PROVIDED that such determinations and allocations
are made on a reasonable basis.
5.02 LIMITATION ON TYPES OF LOANS. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of any
Eurodollar Base Rate for any Interest Period:
(a) the Agent determines, which determination shall be
conclusive, that quotations of interest rates for the relevant
deposits referred to in the definition of "Eurodollar Base Rate"
in Section 1.01 hereof are not being provided in the relevant amounts
or for the relevant maturities for purposes of determining rates of
interest for Eurodollar Loans as provided herein; or
(b) The Majority Lenders determine, which determination shall be
conclusive, and notify the Agent that the relevant rates of interest
referred to in the definitions of "Eurodollar Base Rate" in Section
1.01 hereof upon the basis of which the rate of interest for
Eurodollar Loans for such Interest Period is to be determined are not
likely adequately to cover the cost to such Lenders of making or
maintaining Eurodollar Loans for such Interest Period;
then the Agent shall give the Company and each Lender prompt notice thereof
(describing the circumstances giving rise to such event) and, so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Eurodollar Loans, to Continue Eurodollar Loans, to Convert Loans of
another Type into Eurodollar Loans and the Company shall, on the last day(s) of
the then current Interest Period(s) for the outstanding Eurodollar Loans either
prepay such Loans or Convert such Loans into Loans of another Type in accordance
with Section 2.08 hereof.
5.03 ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain
Eurodollar Loans hereunder, then such Lender shall promptly notify the
Company thereof (with a copy to the Agent) and such Lender's obligation to
make or Continue, or to Convert Loans of any other Type into, Eurodollar
Loans shall be suspended until such time as such Lender may again make and
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maintain Eurodollar Loans (in which case the provisions of Section 5.04
hereof shall be applicable).
5.04 TREATMENT OF AFFECTED LOANS. If the obligation of any
Lender to make Eurodollar Loans ("AFFECTED LOANS"), or to Continue, or to
Convert Loans of another Type into Affected Loans shall be suspended pursuant
to Section 5.01 or 5.03 hereof, such Lender's Affected Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) therefor (or, in the case of a Conversion required
by Section 5.01(b), 5.01(c) or 5.03 hereof, on such earlier date as such
Lender may specify to the Company with a copy to the Agent) and, unless and
until such Lender gives notice as provided below that the circumstances
specified in Section 5.01 or 5.03 hereof that gave rise to such Conversion no
longer exist:
(a) to the extent that such Lender's Affected Loans have been so
Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Affected Loans shall be made or Continued instead as Base
Rate Loans, and all Base Rate Loans of such Lender that would
otherwise be Converted into Affected Loans (as the case may be) shall
remain as Base Rate Loans.
If such Lender gives notice to the Company with a copy to the Agent that the
circumstances specified in Section 5.01 or 5.03 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this Section 5.04 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Affected Loans made by other Lenders, and of
the same Class as such Lender's Loans are outstanding, such Lender's Base Rate
Loans of each Class (subject to Section 2.10 hereof) shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Affected Loans and of such Class, to the extent necessary so
that, after giving effect thereto, all Loans of such Class held by the Lenders
holding Affected Loans and by such Lender are held pro rata (as to principal
amounts, Types and Interest Periods) in accordance with their respective
Commitments.
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5.05 COMPENSATION. The Company shall pay to the Agent for account of
each Lender, upon the request of such Lender through the Agent, such amount
or amounts as shall be sufficient (in the reasonable opinion of such Lender)
to compensate it for any loss, cost or expense that such Lender determines is
attributable to:
(a) any payment, mandatory or optional prepayment or Conversion of
a Eurodollar Loan made by the Company for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 9 hereof)
on a date other than the last day of the Interest Period for such Loan;
or
(b) any failure by the Company for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 6 hereof to be satisfied) to borrow a Eurodollar Loan from such
Lender on the date for such borrowing specified in the relevant notice
of borrowing given pursuant to Section 2.02 hereof or in the notice from
the Agent given pursuant to Section 2.01(c);
(c) any failure for any reason (including, without limitation, as
provided in Section 5.02 or 5.03 hereof) of a Loan of such Lender to be
Continued as or Converted into a Eurodollar Loan on the date for such
Continuation or Conversion specified in the relevant notice given under
Section 4.05 hereof; or
(d) the revocation of any notice of optional prepayment or any
failure for any reason to make any optional prepayment on the date
specified therefor in the relevant notice of prepayment given pursuant
to Section 4.05 hereof.
Without limiting the effect of the preceding sentence, such compensation
shall include an amount equal to the excess, if any, of (i) the amount of
interest that otherwise would have accrued on the principal amount so paid,
prepaid, Converted or not borrowed or prepaid for the period from the date of
such payment, prepayment, Conversion or failure to borrow or prepay to the
last day of the then current Interest Period for such Loan (or, in the case
of a failure to borrow, the Interest Period for such Loan that would have
commenced on the date specified for such borrowing) at the applicable rate of
interest for such Loan (MINUS the Applicable Margin) provided for herein over
(ii) the
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amount of interest that otherwise would have accrued on such principal amount
at a rate per annum equal to the interest component of the amount such Lender
would have bid on the date of such payment, prepayment, Conversion or failure
to borrow or prepay in the London interbank market for Dollar deposits of
leading banks in amounts comparable to such principal amount and with
maturities comparable to such period (as reasonably determined by such
Lender).
5.06 NET PAYMENTS; TAXES.
(a) All payments to be made hereunder and under the Notes and any other
Loan Documents by the Company shall be made without setoff, counterclaim or
other defense. Subject to Section 5.06(b) hereof with respect to U.S. Taxes,
all such payments shall be made free and clear of and without deduction 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 (other than taxes imposed on the Agent, any Lender or its
Applicable Lending Office by the jurisdiction in which the Agent or such
Lender is organized or has its principal office or in which its Applicable
Lending Office is organized or located or, in each case, any political
subdivision or taxing authority thereof or therein) (collectively, "TAXES").
If any Taxes are imposed and required to be withheld from any amount payable
by the Company hereunder or under the Notes, the Company shall be obligated
to (i) pay such additional amount so that the Agent and the Lenders will
receive a net amount (after giving effect to the payment of such additional
amount and to the deduction of all Taxes) equal to the amount due hereunder,
(ii) pay such Taxes to the appropriate taxing authority for the account of
the Agent, for the benefit of the Lenders and (iii) as promptly as possible
thereafter, sending the Agent a certified copy of any original official
receipt showing payment thereof, together with such additional documentary
evidence as the Agent may from time to time reasonably require. If the
Company fails to pay any Taxes when due to the appropriate taxing authority
or fails to remit to the Agent the required receipts or other required
documentary evidence, the Company shall be obligated to indemnify the Agent
and each Lender for any incremental taxes, interest or penalties that may
become payable by the Agent or such Lender as a result of such failure. The
obligations of the Company under this
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Section 5.06(a) shall survive the repayment of the Loans and the termination
of the Commitments.
(b) The Company agrees to pay to each Lender that is not a U.S. Person
such additional amounts as are necessary in order that the net payment of any
amount due to and received by such non-U.S. Person hereunder after deduction
for or withholding in respect of any U.S. Tax imposed with respect to such
payment (or in lieu thereof, payment of such U.S. Tax by such non-U.S.
Person), will not be less than the amount stated herein to be then due and
payable, PROVIDED that the foregoing obligation to pay such additional
amounts shall not apply:
(i) to any payment to a Lender (other than in respect of a
Registered Loan) hereunder unless such Lender is, on the date hereof (or
on the date it becomes a Lender as provided in Section 11.06(b) hereof)
and on the date of any change in the Applicable Lending Office of such
Lender, either entitled to submit a Form 1001 (relating to such Lender
and entitling it to a complete exemption from withholding on all
interest to be received by it hereunder in respect of the Loans) or Form
4224 (relating to all interest to be received by such Lender hereunder
in respect of the Loans), or
(ii) to any payment to any Lender hereunder in respect of a
Registered Loan (a "REGISTERED HOLDER"), unless such Registered Holder
(or, if such Registered Holder is not the beneficial owner of such
Registered Loan, the beneficial owner thereof) is, on the date hereof
(or on the date such Registered Holder becomes a Lender as provided in
Section 11.06(b) hereof) and on the date of any change in the Applicable
Lending Office of such Lender, entitled to submit a Form W-8, together
with an annual certificate stating that (x) such Registered Holder (or
beneficial owner, as the case may be) is not a "bank" within the meaning
of Section 881(c)(3)(A) of the Code, and (y) such Registered Holder (or
beneficial owner, as the case may be) shall promptly notify the Company
if at any time, such Registered Holder (or beneficial owner, as the case
may be) determines that it is no longer in a position to provide such
certificate to the Company (or any other form of certification adopted
by the relevant taxing authorities of the United States of America for
such purposes), or
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(iii) to any U.S. Tax imposed solely by reason of the failure by
such non-U.S. Person (or, if such non-U.S. Person is not the beneficial
owner of the relevant Loan, such beneficial owner) to comply with
applicable certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or
connections with the United States of such non-U.S. Person (or such
beneficial owner, as the case may be) if such compliance is required by
statute or regulation of the United States as a precondition to relief
or exemption from such U.S. Tax.
For the purposes of this Section 5.06(b), (v) "FORM 1001" shall mean Form
1001 (Ownership, Exemption, or Reduced Rate Certificate) of the Department of
the Treasury of the United States, (w) "FORM 4224" shall mean Form 4224
(Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States, (x) "FORM W-8" shall mean Form W-8
(Certificate of Foreign Status of the Department of Treasury of the United
States of America) (or in relation to any of such Forms such successor and
related forms as may from time to time be adopted by the relevant taxing
authorities of the United States to document a claim to which such Form
relates), (y) "U.S. PERSON" shall mean a citizen, national or resident of the
United States, a corporation, partnership or other entity created or
organized in or under any laws of the United States, or any estate or trust
that is subject to Federal income taxation regardless of the source of its
income and (z) "U.S. TAXES" shall mean any present or future tax, assessment
or other charge or levy imposed by or on behalf of the United States or any
taxing authority thereof or therein.
Within 30 days after paying any amount to the Agent or any Lender from
which it is required by law to make any deduction or withholding, and within
30 days after it is required by law to remit such deduction or withholding to
any relevant taxing or other authority, the Company shall deliver to the
Agent for delivery to such non-U.S. Person evidence satisfactory to such
Person of such deduction, withholding or payment (as the case may be).
5.07 REPLACEMENT OF LENDERS. If any Lender requests compensation
pursuant to Section 5.01 or 5.06 hereof, or any Lender's obligation to make
or Continue, or to Convert Loans of
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any Type into, any other Type of Loan shall be suspended pursuant to Section
5.01 or 5.03 hereof (any such Lender so requesting compensation, or whose
obligations are so suspended being herein called a "RELEVANT LENDER"), the
Company upon three Business Days notice may require that such Relevant Lender
transfer all of its right, title and interest under this Agreement and such
Relevant Lender's Notes to any bank or other financial institution identified
by the Company that is reasonably satisfactory to the Agent (i) if such bank
or other financial institution (a "PROPOSED LENDER") agrees to assume all of
the obligations of such Relevant Lender hereunder, and to purchase all of
such Relevant Lender's Loans hereunder for consideration equal to the
aggregate outstanding principal amount of such Relevant Lender's Loans,
together with accrued, but unpaid interest thereon to the date of such
purchase, and satisfactory arrangements are made for payment to such Relevant
Lender of all other amounts payable hereunder to such Relevant Lender on or
prior to the date of such transfer (including any fees accrued hereunder and
any amounts that would be payable under Section 5.05 hereof as if all of such
Relevant Lender's Loans were being prepaid in full on such date) and (ii) if
such Relevant Lender has requested compensation pursuant to Section 5.01 or
5.06 hereof, such Proposed Lender's aggregate requested compensation, if any,
pursuant to said Section 5.01 or 5.06 with respect to such Relevant Lender's
Loans is lower than that of the Relevant Lender. Subject to compliance with
the provisions of Section 11.06(b) hereof, such Proposed Lender shall be a
"Lender" for all purposes hereunder. Without prejudice to the survival of
any other agreement of the Company hereunder, the agreements of the Company
contained in Sections 5.01, 5.06 and 11.03 hereof (without duplication of any
payments made to such Relevant Lender by the Company or the Proposed Lender)
shall survive for the benefit of such Relevant Lender under this Section 5.07
with respect to the time prior to such replacement.
5.08 ADDITIONAL COSTS IN RESPECT OF LETTERS OF CREDIT. Without limiting
the obligations of the Company under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based
capital guideline or other requirement heretofore or hereafter issued by any
government or governmental or supervisory authority implementing at the
national level the Basle Accord there shall be hereafter imposed, modified or
deemed applicable any tax, reserve, special deposit, capital adequacy or
similar requirement against or with respect to or measured by reference to
Letters of Credit issued
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or to be issued hereunder and the result shall be to increase the cost to any
Lender or Lenders of issuing (or purchasing participations in) or maintaining
its obligation hereunder to issue (or purchase participations in) any Letter
of Credit hereunder or reduce any amount receivable by any Lender hereunder
in respect of any Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Lender's or Lenders'
reasonable allocation of the aggregate of such increases or reductions
resulting from such event), then, upon demand by such Lender or Lenders
(through the Agent), the Company shall pay immediately to the Agent for
account of such Lender or Lenders, from time to time as specified by such
Lender or Lenders (through the Agent), such additional amounts as shall be
sufficient to compensate such Lender or Lenders (through the Agent) for such
increased costs or reductions in amount. A statement as to such increased
costs or reductions in amount incurred by any such Lender or Lenders,
submitted by such Lender or Lenders to the Company shall be conclusive in the
absence of manifest error as to the amount thereof.
Section 6. CONDITIONS PRECEDENT.
6.01 CONDITIONS TO EFFECTIVENESS. The effectiveness of this Agreement
(and the Amendment and restatement of the Existing Credit Agreement to be
effected hereby), and the obligation of any Lender to extend or continue
credit hereunder on the Effective Date, are subject to (i) the condition
precedent that the Effective Date shall occur on or before September 22, 1997
and (ii) the receipt by the Agent of the following documents, each of which
shall be satisfactory to the Agent (and to the extent specified below, to
each Lender or the Majority Lenders, as the case may be) in form and
substance:
(a) CORPORATE DOCUMENTS. Certified copies of the charter and
by-laws (or equivalent documents) of each Obligor and of all corporate
authority for each Obligor (including, without limitation, board of
director resolutions and evidence of the incumbency of officers,
together with specimen signatures of each such officer) with respect to
the execution, delivery and performance of such of the Basic Documents
to which such Obligor is intended to be a party and each other document
to be delivered by such Obligor from time to time in connection herewith
and the extensions of credit hereunder (and the Agent and each Lender
may conclusively rely on such certificate until it
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receives notice in writing from such Obligor to the contrary).
(b) OFFICER'S CERTIFICATE. A certificate of a Responsible
Financial Officer of the Company, dated the Effective Date, to the
effect set forth in the first sentence of Section 6.02(a) hereof.
(c) OPINION OF COUNSEL TO THE OBLIGORS. Opinions, each dated the
Effective Date, of Xxxxxx & Xxxx, counsel to the Obligors, substantially
in the form of Exhibit D-1 hereto, and of Axtmayer Adsuar Xxxxx & Xxxxx,
special Puerto Rico counsel to the Subsidiary Guarantors operating in
the Commonwealth, substantially in the form of Exhibit D-2 hereto and,
in each case, covering such other matters as the Agent or any Lender may
reasonably request (and each Obligor hereby instructs such counsel to
deliver such opinion to the Lenders and the Agent).
(d) OPINION OF COUNSEL TO FIRST UNION. An opinion, dated the
Effective Date, of Milbank, Tweed, Xxxxxx & XxXxxx, special New York
counsel to First Union, substantially in the form of Exhibit F hereto
(and First Union hereby instructs such counsel to deliver such opinion
to the Lenders).
(e) NOTES. The Notes, duly completed and executed.
(f) INSURANCE. Certificates of insurance evidencing the existence
of all insurance required to be maintained by the Company and its
Subsidiaries pursuant to Section 8.04 hereof and the designation of the
Agent as the loss payee or additional named insured, as the case may be,
thereunder. In addition, the Company shall have delivered a certificate
of a Responsible Financial Officer of the Company setting forth the
insurance obtained by it in accordance with the requirements of Section
8.04 and stating that such insurance is in full force and effect and
that all premiums then due and payable thereon have been paid.
(g) PUERTO RICO TAX EXEMPTION AND TAX RULING. Evidence that each
tax exemption grant heretofore issued to Suiza Fruit and Xxxx Plastics
by the Commonwealth in respect of manufacturing income from its
respective operations in the Commonwealth shall be in full force and
effect, and the
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Agent shall have received true and complete copies thereof, certified by
a Responsible Financial Officer of the relevant Subsidiary Guarantor.
(h) SOLVENCY ANALYSIS. A certificate from a Responsible Financial
Officer of the Company to the effect that, as of the Effective Date and
after giving effect to the initial extension of credit hereunder and to
the other transactions contemplated hereby, (i) the aggregate value of
all Properties of the Company and its Subsidiaries, at their present
fair saleable value (i.e., the amount that may be realized within a
reasonable time, considered to be six months to one year, either through
collection or sale at the regular market value, conceiving the latter as
the amount that could be obtained for the Property in question within
such period by a capable and diligent businessman from an interested
buyer who is willing to purchase under ordinary selling conditions),
exceeds the amount of all the debts and liabilities (including
contingent, subordinated, unmatured and unliquidated liabilities) of the
Company and its Subsidiaries, (ii) the Company and its Subsidiaries will
not have, on a consolidated basis, unreasonably small capital with which
to conduct their business operations as heretofore conducted and (iii)
the Company and its Subsidiaries will have, on a consolidated basis,
sufficient cash flow to enable them to pay their debts as they mature.
The Agent shall have also received (x) a certificate from a Responsible
Financial Officer of the Company certifying that the financial
projections and underlying assumptions contained in such analyses were
at the time made, and on the Effective Date are, fair and reasonable and
accurately computed and (y) appropriate factual information supporting
the conclusions of the solvency analyses and the financial condition
certificate required to be delivered as provided above.
(i) FINANCIAL INFORMATION. (i) Copies of the pro forma
projections of the Company and its Subsidiaries for the period from the
Effective Date through December 31, 1997 and (ii) unaudited
consolidating financial statements of the Company and its Subsidiaries
for the twelve-month period ended on December 31, 1996.
(j) PROCESS AGENT ACCEPTANCE. A letter from the Process Agent to
the Agent, in form and substance
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satisfactory to the Agent, accepting the appointment of the Process
Agent by the Obligors operating in the Commonwealth (other than Xxxxxxx)
as provided in Section 11.10(c) hereof.
(k) 1997 BUDGET. A budget for the fiscal year ending December 31,
1997 setting forth for each Subsidiary of the Company and for the
Company and its Subsidiaries as a whole, anticipated income, expense and
capital expenditure items for each quarter during such fiscal year.
(l) PAYMENT OF FEES AND EXPENSES, ETC. Evidence that the Company
shall have paid such fees and expenses as the Company shall have agreed
to pay to the Agent in connection herewith, including, without
limitation, the reasonable fees and expenses of Milbank, Tweed, Xxxxxx &
XxXxxx, special New York counsel to First Union, and Fiddler Xxxxxxxx &
Xxxxxxxxx, special Puerto Rico counsel to First Union, in connection
with the negotiation, preparation, execution and delivery of this
Agreement and the Notes and the other Loan Documents and the making of
the Loans hereunder (to the extent that statements for such fees and
expenses have been delivered to the Company).
(m) SECOND RESTATED SUPPLEMENTAL CREDIT AGREEMENT. The Second
Restated Supplemental Credit Agreement, duly executed and delivered by
each of the parties thereto, together with evidence that all of the
conditions precedent to the effectiveness thereof have been satisfied or
waived.
(n) ACCRUED INTEREST. Evidence that (i) all interest accrued on
the outstanding "Facility A Loans" and "Facility B Loans" under the
Existing Credit Agreement and all accrued commitment and other fees
thereunder to the Effective Date, (ii) all interest accrued on the
outstanding "Facility C Loans" under the Supplemental Credit Agreement
and all accrued commitment and other fees thereunder to the Effective
Date, and (iii) all amounts payable by the Company (if any) under
Sections 2.01(a)(i), 2.01(b)(i) and 2.01(c) hereof have been paid in
full.
(o) OTHER DOCUMENTS. Such other documents as the Agent or any
Lender or special New York counsel to First Union may reasonably request.
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6.02 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
(a) The effectiveness of this Agreement (and the Amendment and
restatement of the Existing Credit Agreement to be effected thereby) and the
obligation of the Lenders to make any Loan or otherwise extend any credit to
the Company upon the occasion of each borrowing hereunder (including the
borrowing on the Effective Date) are subject to the further conditions
precedent that, both immediately prior to such effectiveness and to the
making of such Loan or other extension of credit and also after giving effect
thereto and to the intended use thereof:
(i) no Default shall have occurred and be continuing; and
(ii) the representations and warranties made by the Company in
Section 7 hereof, and by each Obligor in each of the other Loan
Documents to which it is a party, shall be true and complete on and as
of the date of such effectiveness or the date of the making of such Loan
or other extension of credit, as the case may be, with the same force
and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date).
Each notice of borrowing or request for the issuance of a Letter of Credit by
the Company hereunder shall constitute a certification by the Company to the
effect set forth in the first sentence of this Section 6.02(a) (both as of
the date of such notice and, unless the Company otherwise notifies the Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
(b) The Agent shall have received (i) such Additional Puerto Rico
Security Documents as shall be reasonably requested by the Agent in proper form
for filing in the corresponding Section of the Registry of Property of the
Commonwealth as are required from time to time pursuant to this Agreement and
payment of all required filing fees, taxes and all other expenses related to
such filings and (ii) an opinion of counsel for the Obligors in form and
substance reasonably satisfactory to the Agent in connection with such
Additional Puerto Rico Security Documents.
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Section 7. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Agent and the Lenders that (with respect to matters
pertaining to itself and each of its Subsidiaries):
7.01 CORPORATE EXISTENCE. Each of the Company and its Subsidiaries: (a)
is a corporation, partnership or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals
necessary to own its assets and carry on its business as now being or as
proposed to be conducted; and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business conducted
by it makes such qualification necessary and where failure so to qualify
could (either individually or in the aggregate) have a Material Adverse
Effect.
7.02 FINANCIAL CONDITION. The Company has heretofore furnished to each
of the Lenders the following:
(a) unaudited consolidating balance sheets of the Company and its
Subsidiaries as at December 31, 1996, and the related consolidating
statements of income and operating cash flow for the twelve-month period
ended on said date; and
(b) an audited consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 1996 and the related consolidated
statements of income, retained earnings and cash flow of the Company and
its Subsidiaries for the fiscal period ended on said date, with the
opinion thereon of Deloitte & Touche LLP.
All such financial statements fairly present the financial condition of the
respective entities as at the respective dates, and the respective results of
operations for the respective periods ended on said respective dates, all in
accordance with generally accepted accounting principles and practices
applied on a consistent basis. None of such respective entities has on the
date hereof any material contingent liabilities, liabilities for taxes,
unusual forward or long-term commitments or unrealized or anticipated losses
from any unfavorable commitments, except as referred to or reflected or
provided for in the respective
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balance sheets referred to above. Since December 31, 1996 (with respect to
the Company and each of its Subsidiaries), there has been no material adverse
change in the respective financial condition, operations, business or
prospects of each such entity from that set forth in the respective financial
statements as at such date.
7.03 LITIGATION. Except as disclosed in Schedule V hereto, there are no
legal or arbitral proceedings, or any proceedings by or before any
governmental or regulatory authority or agency, now pending or (to the
knowledge of the Company) threatened against the Company or any of its
Subsidiaries that, if adversely determined could (either individually or in
the aggregate) have a Material Adverse Effect.
7.04 NO BREACH. None of the execution and delivery of this Agreement
and the Notes and the other Basic Documents, the consummation of the
transactions herein and therein contemplated or compliance with the terms and
provisions hereof and thereof will conflict with or result in a breach of, or
require any consent under, the charter or by-laws of any Obligor, or any
applicable law or regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency, or any material agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which any of them or any of their Property is bound or to which any of them
is subject, or constitute a default under any such agreement or instrument,
or (except for the Liens created pursuant to the Security Documents) result
in the creation or imposition of any Lien upon any Property of the Company or
any of its Subsidiaries pursuant to the terms of any such agreement or
instrument.
7.05 ACTION. Each Obligor has all necessary corporate power, authority
and legal right to execute, deliver and perform its obligations under each of
the Basic Documents to which it is a party; the execution, delivery and
performance by each Obligor of each of the Basic Documents to which it is a
party have been duly authorized by all necessary corporate action on its part
(including, without limitation, any required shareholder approvals); and this
Agreement has been duly and validly executed and delivered by each Obligor
and constitutes, and each of the Notes and the other Basic Documents to which
it is a party when executed and delivered by such Obligor (in the case of the
Notes, for value) will constitute, its legal, valid and binding obligation,
enforceable against each Obligor in accordance with
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its terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Each
Security Document is effective to create in favor of the Agent for the
benefit of the Lenders a legal, valid and enforceable first priority Lien
upon all right, title and interest of the Obligor or Obligors party thereto
in the Property described therein and such Lien has been perfected, except as
otherwise permitted under Section 8.06 hereof or in such Security Document.
7.06 APPROVALS. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange, are necessary for the execution, delivery
or performance by any Obligor of the Basic Documents to which it is a party
or for the legality, validity or enforceability hereof or thereof, except for
filings and recordings in respect of the Liens created pursuant to the
Security Documents.
7.07 USE OF CREDIT. None of the Company nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business
of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
the Loans hereunder will be used to buy or carry any Margin Stock.
7.08 ERISA. Each Plan, and, to the knowledge of the Company, each
Multiemployer Plan, is in compliance in all material respects with, and has
been administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no
event or condition has occurred and is continuing as to which the Company
would be under an obligation to furnish a report to the Lenders under Section
8.01(e) hereof.
7.09 TAXES. The Company and its Subsidiaries (other than the Obligors
operating in the Commonwealth and Xxxxxxx) are members of an affiliated group
of corporations filing consolidated returns for Federal income tax purposes,
of which the Company is the "common parent" (within the meaning of Section
1504 of the Code) of such group. The Company and its Subsidiaries have filed
all Federal income tax returns and all
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other material tax returns that are required to be filed by them and have
paid all taxes due pursuant to such returns or pursuant to any assessment
received by the Company or any of its Subsidiaries. The charges, accruals and
reserves on the books of the Company and its Subsidiaries in respect of taxes
and other governmental charges are, in the opinion of the Company, adequate.
The Company has not given or been requested to give a waiver of the statute
of limitations relating to the payment of Federal, state, local and foreign
taxes or other impositions. Xxxx Plastics and Suiza Fruit each hold
industrial tax exemption grants entitling each of them to a 90% exemption
from income and property taxes and a 60% exemption from municipal license
taxes. The grant held by Xxxx Plastics will expire on August 31, 2000 for
income tax purposes, on June 30, 2001 for municipal tax purposes and on
January 1, 2000 for property tax purposes. The grant held by Suiza Fruit
will expire on October 12, 2002 for income and property tax purposes and on
June 30, 2003 for municipal license tax purposes.
7.10 INVESTMENT COMPANY ACT. Neither the Company nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of
1940, as amended.
7.11 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Company nor any of
its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
7.12 MATERIAL AGREEMENTS AND LIENS.
(a) Part A of Schedule I hereto is a complete and correct list, as of
the Effective Date, and after giving effect to the transactions contemplated
hereunder to occur on such date, of each credit agreement, loan agreement,
indenture, purchase agreement, guarantee, letter of credit or other
arrangement providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit) to, or
guarantee by, the Company or any of its Subsidiaries, and the aggregate
principal or face amount outstanding or that may become outstanding under
each such arrangement is correctly described in Part A of said Schedule I.
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(b) Part B of Schedule I hereto is a complete and correct list, as of
the Effective Date (and after giving effect to the transactions contemplated
hereunder to occur on such date), of each Lien securing Indebtedness of any
Person and covering any Property of the Company or any of its Subsidiaries
that will continue after the Effective Date, and the aggregate Indebtedness
secured (or that may be secured) by each such Lien and the Property covered
by each such Lien is correctly described in Part B of said Schedule I.
7.13 ENVIRONMENTAL MATTERS. Each of the Company and its Subsidiaries
has obtained all environmental, health and safety permits, licenses and other
authorizations required under all Environmental Laws to carry on its business
as now being or as proposed to be conducted, except to the extent failure to
have any such permit, license or authorization would not (either individually
or in the aggregate) have a Material Adverse Effect. Each of such permits,
licenses and authorizations is in full force and effect and each of the
Company and its Subsidiaries is in compliance with the terms and conditions
thereof, and is also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in any applicable Environmental Law or in any
regulation, code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder, except to the
extent failure to comply therewith would not (either individually or in the
aggregate) have a Material Adverse Effect.
In addition, except as to matters with respect to which the Company and
its Subsidiaries could not reasonably be expected to incur liabilities in
excess of $1,000,000 in the aggregate:
(a) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been filed,
no penalty has been assessed and no investigation or review is pending
or threatened by any governmental or other entity with respect to any
alleged failure by the Company or any of its Subsidiaries to have any
environmental, health or safety permit, license or other authorization
required under any Environmental Law in connection with the conduct of
the business of the Company or any of its Subsidiaries or with respect
to any generation, treatment, storage, recycling, transportation,
discharge or disposal, or any Release of any Hazardous
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Materials generated by the Company or any of its Subsidiaries.
(b) Neither the Company nor any of its Subsidiaries owns, operates
or leases a treatment, storage or disposal Facility requiring a permit
under the Resource Conservation and Recovery Act of 1976, as amended, or
under any comparable state or local statute; and
(i) no polychlorinated biphenyls (PCB's) is or has been
present at any site or Facility now or previously owned, operated
or leased by the Company or any of its Subsidiaries;
(ii) no asbestos or asbestos-containing materials is or has
been present at any site or Facility now or previously owned,
operated or leased by the Company or any of its Subsidiaries;
(iii) there are no underground storage tanks, other than
those disclosed in consultant reports provided to the Agent by the
Company or its Subsidiaries, or surface impoundments for Hazardous
Materials, active or abandoned, at any site or Facility now or
previously owned, operated or leased by the Company or any of its
Subsidiaries;
(iv) no Hazardous Materials have been Released at, on or under
any site or Facility now or previously owned, operated or leased by
the Company or any of its Subsidiaries in a reportable quantity
established by statute, ordinance, rule, regulation or order; and
(v) no Hazardous Materials have been otherwise Released at,
on or under any site or Facility now or previously owned, operated
or leased by the Company or any of its Subsidiaries that would
(either individually or in the aggregate) have a Material Adverse
Effect.
(c) Neither the Company nor any of its Subsidiaries has
transported or arranged for the transportation of any Hazardous Material
to any location that is listed on the National Priorities List ("NPL")
under the Comprehensive
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Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA"), listed for possible inclusion on the NPL by the
Environmental Protection Agency in the Comprehensive Environmental
Response and Liability Information System, as provided for by 40 C.F.R.
Section 300.5 ("CERCLIS"), or on any similar state or local list or
that is the subject of Federal, state or local enforcement actions or
other investigations that may lead to Environmental Claims against the
Company or any of its Subsidiaries.
(d) No Hazardous Material generated by the Company or any of its
Subsidiaries has been recycled, treated, stored, disposed of or Released
by the Company or any of its Subsidiaries at any location other than
those listed in Schedule II hereto.
(e) No oral or written notification of a Release of a Hazardous
Material has been filed by or on behalf of the Company or any of its
Subsidiaries and no site or Facility now or previously owned, operated
or leased by the Company or any of its Subsidiaries is listed or
proposed for listing on the NPL, CERCLIS or any similar state list of
sites requiring investigation or clean-up.
(f) No Liens have arisen under or pursuant to any Environmental
Laws on any site or Facility owned, operated or leased by the Company or
any of its Subsidiaries, and no government action has been taken or is
in process that could subject any such site or Facility to such Liens
and neither the Company nor any of its Subsidiaries would be required to
place any notice or restriction relating to the presence of Hazardous
Materials at any site or Facility owned by it in any deed to the real
property on which such site or Facility is located.
(g) All environmental investigations, studies, audits, tests,
reviews or other analyses conducted by or that are in the possession of
the Company or any of its Subsidiaries in relation to facts,
circumstances or conditions at or affecting any site or Facility now or
previously owned, operated or leased by the Company or any of its
Subsidiaries and that could result in a Material Adverse Effect have
been made available to the Lenders.
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7.14 CAPITALIZATION.
(a) As of the Effective Date, the authorized capital stock of the
Company consists of 101,000,000 shares, consisting of 100,000,000 shares
of common stock, par value $0.01 per share, and 1,000,000 shares of
preferred stock, par value $0.01 per share;
(b) As of July 15, 1997, the Company has 15,298,718 shares of
issued and outstanding common stock, and all of such issued shares are
duly and validly issued and outstanding and are not held in treasury;
(c) As of the Effective Date, the Company has no issued or
outstanding preferred stock;
(d) As of July 15, 1997, except for (i) options to purchase
369,838 shares of common stock granted under the Company's Exchange
Stock Option and Restricted Stock Plan, (ii) options to purchase up to
1,021,748 shares of common stock granted (1,020,708) or available
(1,040) for future grants under the Company's 1995 Stock Option and
Restricted Stock Plan, (iii) options to purchase up to 1,150,000 shares
of common stock granted (913,200) or available (236,800) for future
grants under the Company's 1997 Stock Option and Restricted Stock Plan,
and (iv) up to 250,000 shares of common stock available for future
purchase under the Company's 1997 Employee Stock Purchase Plan, there
are no outstanding Equity Rights with respect to the Company; and
(e) As of the Effective Date, there are no outstanding obligations
of the Company or any of its Subsidiaries to repurchase, redeem, or
otherwise acquire any shares of capital stock of the Company or any of
its Subsidiaries or to make payments to any Person, such as "phantom
stock" payments, where the amount thereof is calculated with reference
to the fair market value or equity value of the Company or any of its
Subsidiaries, except for the right of the holders of certain warrants
for the purchase of stock of Franklin Plastics, Inc., a Delaware
corporation and a Subsidiary of the Company, to put such stock or
warrants to the issuer thereof or the Company.
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7.15 SUBSIDIARIES, ETC.
(a) Set forth in Part A of Schedule III hereto is a complete and
correct list, as of the date hereof, of all of the Subsidiaries of the
Company, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests
in such Subsidiary and (iii) the nature of the ownership interests held by
each such Person and the percentage of ownership of such Subsidiary
represented by such ownership interests. Except as disclosed in Part A of
Schedule III hereto, (x) each of the Company and its Subsidiaries owns, free
and clear of Liens (other than Liens created pursuant to the Security
Documents), and has the unencumbered right to vote, all outstanding ownership
interests in each Person shown to be held by it in Part A of Schedule III
hereto, (y) all of the issued and outstanding capital stock of each such
Person organized as a corporation is validly issued, fully paid and
nonassessable and (z) there are no outstanding Equity Rights with respect to
such Person.
(b) Set forth in Part B of Schedule III hereto is a complete and
correct list, as of the date of this Agreement, of all Investments (other
than Investments disclosed in Part A of said Schedule III hereto) held by the
Company or any of its Subsidiaries in any Person and, for each such
Investment, (x) the identity of the Person or Persons holding such Investment
and (y) the nature of such Investment. Except as disclosed in Part B of
Schedule III hereto, each of the Company and its Subsidiaries owns, free and
clear of all Liens (other than Liens created pursuant to the Security
Documents), all such Investments.
(c) None of the Subsidiaries of the Company is, on the Effective Date,
subject to any indenture, agreement, instrument or other arrangement of the
type described in Section 8.19(b) hereof.
7.16 TITLE TO ASSETS. The Company owns and has on the date hereof, and
will own and have on the Effective Date, good and marketable title (subject
only to Liens permitted by Section 8.06 hereof) to the Properties shown to be
owned in the most recent financial statements referred to in Section 7.02
hereof (other than Properties disposed of in the ordinary course of business
or otherwise permitted to be disposed of pursuant to Section 8.05 hereof).
The Company owns and has on the date hereof, and will own and have on the
Effective Date, good and
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marketable title to, and enjoys on the date hereof, and will enjoy on the
Effective Date, peaceful and undisturbed possession of, all Properties
(subject only to Liens permitted by Section 8.06 hereof) that are necessary
for the operation and conduct of its businesses.
7.17 TRUE AND COMPLETE DISCLOSURE. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of
the Obligors to the Agent or any Lender in connection with the negotiation,
preparation or delivery of this Agreement and the other Loan Documents or
included herein or therein or delivered pursuant hereto or thereto, when
taken as a whole do not contain any untrue statement of material fact or omit
to state any material fact necessary to make the statements herein or
therein, in light of the circumstances under which they were made, not
misleading. All written information furnished after the date hereof by the
Company and its Subsidiaries to the Agent and the Lenders in connection with
this Agreement and the other Loan Documents and the transactions contemplated
hereby and thereby will be true, complete and accurate in every material
respect, or (in the case of projections) based on reasonable estimates, on
the date as of which such information is stated or certified. There is no
fact known to the Company that could have a Material Adverse Effect that has
not been disclosed herein, in the other Loan Documents or in a report,
financial statement, exhibit, schedule, disclosure letter or other writing
furnished to the Lenders for use in connection with the transactions
contemplated hereby or thereby.
7.18 REAL PROPERTY. Set forth on Schedule IV attached hereto is a list,
as of the Effective Date, of all of the real property interests held by the
Company and its Subsidiaries, indicating in each case whether the respective
Property is owned or leased, the identity of the owner or lessee and the
location of the respective Property.
7.19 SOLVENCY. As of the Effective Date and after giving effect to the
initial extension of credit hereunder and the other transactions contemplated
hereby, (a) the aggregate value of all Properties of the Company and its
Subsidiaries at their present fair saleable value (i.e., the amount that may
be realized within a reasonable time, considered to be six months to one
year, either through collection or sale at the regular market value,
conceiving the latter as the amount that could be obtained
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for the Property in question within such period by a capable and diligent
businessman from an interested buyer who is willing to purchase under
ordinary selling conditions), exceeds the amount of all the debts and
liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities) of the Company and its Subsidiaries, (b) the Company and its
Subsidiaries will not, on a consolidated basis, have unreasonably small
capital with which to conduct their business operations as heretofore
conducted and (c) the Company and its Subsidiaries will have, on a
consolidated basis, sufficient cash flow to enable them to pay their debts as
they mature.
Section 8. COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Lenders and the Agent that, so long as any Commitment or Loan or
Letter of Credit Liability is outstanding and until payment in full of all
amounts payable by the Company hereunder:
8.01 FINANCIAL STATEMENTS, ETC. The Company shall deliver, or shall
cause to be delivered, to each of the Lenders:
(a) as soon as available and in any event within 45 days after the
end of each quarterly fiscal period of each fiscal year of the Company,
consolidated statements of income, retained earnings and cash flow of
the Company and its Subsidiaries for such period and for the period from
the beginning of the respective fiscal year to the end of such period,
and the related consolidated balance sheet of the Company and its
Subsidiaries as at the end of such period, setting forth in each case in
comparative form the corresponding consolidated figures for the
corresponding periods in the preceding fiscal year, accompanied by a
certificate of a Responsible Financial Officer of the Company, which
certificate shall state that said consolidated financial statements
fairly present the consolidated financial condition and results of
operations of the Company and its Subsidiaries, in accordance with
generally accepted accounting principles, consistently applied, as at
the end of, and for, such period (subject to normal year-end audit
adjustments);
(b) as soon as available and in any event within 90 days after the
end of each fiscal year of the Company, consolidated statements of
income, retained earnings and cash flow of the Company and its
Subsidiaries for such
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fiscal year and the related consolidated balance sheet of the Company
and its Subsidiaries as at the end of such fiscal year, setting forth in
each case in comparative form the corresponding consolidated figures for
the preceding fiscal year, and accompanied by an opinion thereon of
independent certified public accountants of recognized national
standing, which opinion shall state that said consolidated financial
statements fairly present the consolidated financial condition and
results of operations of the Company and its Subsidiaries as at the end
of, and for, such fiscal year in accordance with generally accepted
accounting principles, and a certificate of such accountants stating
that, in making the examination necessary for their opinion, they
obtained no knowledge, except as specifically stated, of any Default;
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that the
Company shall have filed with the Commission or any national securities
exchange;
(d) promptly upon mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(e) as soon as possible, and in any event within ten days after
the Company knows or has reason to believe that any of the events or
conditions specified below with respect to any Plan or Multiemployer
Plan has occurred or exists, a statement signed by a Responsible
Financial Officer of the Company setting forth details respecting such
event or condition and the action, if any, that the Company or its ERISA
Affiliate proposes to take with respect thereto (and a copy of any
report or notice required to be filed with or given to PBGC by the
Company or an ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of
ERISA and the regulations issued thereunder, with respect to a
Plan, as to which PBGC has not by regulation waived the requirement
of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event (PROVIDED that a failure to meet the
minimum funding standard of Section 412 of the Code or Section 302
of ERISA,
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including, without limitation, the failure to make on or
before its due date a required installment under Section 412(m) of
the Code or Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with Section
412(d) of the Code); and any request for a waiver under Section 412(d)
of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of a notice
of intent to terminate any Plan or any action taken by the Company
or an ERISA Affiliate to terminate any Plan;
(iii) the institution by PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the Company or
any ERISA Affiliate of a notice from a Multiemployer Plan that such
action has been taken by PBGC with respect to such Multiemployer
Plan;
(iv) the complete or partial withdrawal from a Multiemployer
Plan by the Company or any ERISA Affiliate that results in
liability under Section 4201 or 4204 of ERISA (including the
obligation to satisfy secondary liability as a result of a
purchaser default) or the receipt by the Company or any ERISA
Affiliate of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA or that it intends to terminate or has terminated under
Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Company or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed
within 30 days; and
(vi) the adoption of an Amendment to any Plan that, pursuant
to Section 401(a)(29) of the Code or Section 307 of ERISA, would
result in the loss of tax-exempt status of the trust of which such
Plan is a part if the Company or an ERISA Affiliate fails to timely
provide security to the Plan in accordance with the provisions of
said Sections;
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(f) promptly after the Company knows or has reason to believe that
any Default has occurred, a notice of such Default describing the same
in reasonable detail and, together with such notice or as soon
thereafter as possible, a description of the action that the Company has
taken or proposes to take with respect thereto;
(g) promptly upon receipt thereof, copies of all management
letters and other material reports which are submitted to the Board of
Directors of the Company or any of its Subsidiaries by their independent
certified public accountants in connection with any annual audit of the
Company and/or any such Subsidiary by such accountants;
(h) as soon as available and in any event on or before December 31
of each fiscal year, a budget for the next following fiscal year setting
forth for each Subsidiary of the Company and for the Company and its
Subsidiaries as a whole, anticipated income, expense and capital
expenditure items for each quarter during such fiscal year, together
with pro forma unaudited balance sheets of the Company and its
Subsidiaries and the related pro forma statements of retained earnings,
and quarterly, concurrently with the delivery of the financial
statements for such fiscal year pursuant to clause (a) above, a report
setting forth a detailed comparison of actual performance to the budget
referred to above; and
(i) from time to time such other information regarding the
financial condition, operations, business or prospects of the Company or
any of its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required to be
filed under ERISA) as any Lender or the Agent may reasonably request.
The Company will furnish to each Lender, at the time it furnishes each set of
financial statements pursuant to clause (a) above, a certificate of a
Responsible Financial Officer of the Company (i) to the effect that no
Default has occurred and is continuing (or, if any Default has occurred and
is continuing, describing the same in reasonable detail and describing the
action that the Company has taken or proposes to take with respect thereto)
and (ii) setting forth in reasonable detail the computations necessary to
determine whether the Company is in compliance with
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Sections 8.10, 8.11, 8.12 and 8.13 hereof as of the end of the respective
quarterly fiscal period or fiscal year.
8.02 LITIGATION. The Company will promptly give to each Lender notice
of all legal or arbitral proceedings, and of all proceedings by or before any
governmental or regulatory authority or agency, and any material development
in respect of such legal or other proceedings, affecting the Company or any
of its Subsidiaries, except proceedings that, if adversely determined, would
not (either individually or in the aggregate) have a Material Adverse Effect.
Without limiting the generality of the foregoing, the Company will give to
each Lender notice of the assertion of any Environmental Claim by any Person
against, or with respect to the activities of, the Company or any of its
Subsidiaries and notice of any alleged violation of or non-compliance with
any Environmental Laws or any permits, licenses or authorizations, other than
any Environmental Claim or alleged violation that, if adversely determined,
would not (either individually or in the aggregate) have a Material Adverse
Effect.
8.03 EXISTENCE, ETC. The Company will, and will cause each of its
Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (PROVIDED that
nothing in this Section 8.03 shall prohibit any transaction expressly
permitted under Section 8.05 hereof);
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if
failure to comply with such requirements could (either individually or
in the aggregate) have a Material Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any of
its Property prior to the date on which penalties attach thereto, except
for any such tax, assessment, charge or levy the payment of which is
being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained;
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(d) maintain all of its Properties used or useful in its business
in good working order and condition, ordinary wear and tear excepted;
(e) keep adequate records and books of account, in which complete
entries will be made in accordance with generally accepted accounting
principles consistently applied; and
(f) permit representatives of any Lender or the Agent, during
normal business hours, to examine, copy and make extracts from its books
and records, to inspect any of its Properties, and to discuss its
business and affairs with its officers, all to the extent reasonably
requested by such Lender or the Agent (as the case may be).
8.04 INSURANCE. The Company will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to Property and risks of a character
usually maintained by corporations engaged in the same or similar business
similarly situated, against loss, damage and liability of the kinds and in
the amounts customarily maintained by such corporations. The Company will in
any event maintain (with respect to itself and each of its Subsidiaries):
(1) Casualty Insurance - insurance against loss or damage covering
all of the tangible real and personal Property and improvements of the
Company and each of its Subsidiaries by reason of any Peril (as defined
below) in such amounts (subject to such deductibles as shall be
satisfactory to the Majority Lenders) as shall be reasonable and
customary and sufficient to avoid the insured named therein from
becoming a co-insurer of any loss under such policy but in any event in
an amount (i) in the case of fixed assets and equipment (including,
without limitation, vehicles), at least equal to 100% of the actual
replacement cost of such assets (including, without limitation,
foundation, footings and excavation costs), subject to deductibles as
aforesaid (PROVIDED that recovery limits may be applicable to losses
caused by flood or earthquake) and (ii) in the case of inventory, not
less than the fair market value thereof, subject to deductibles as
aforesaid.
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(2) Automobile Liability Insurance for Bodily Injury and Property
Damage - insurance against liability for bodily injury and property
damage in respect of all vehicles (whether owned, hired or rented by the
Company or any of its Subsidiaries) at any time located at, or used in
connection with, its Properties or operations in such amounts as are
then customary for vehicles used in connection with similar Properties
and businesses, but in any event to the extent required by applicable
law.
(3) Comprehensive General Liability Insurance - insurance against
claims for bodily injury, death or Property damage occurring on, in or
about the Properties (and adjoining streets, sidewalks and waterways) of
the Company and its Subsidiaries, in such amounts as are then customary
for Property similar in use in the jurisdictions where such Properties
are located.
(4) Workers' Compensation Insurance -- workers' compensation
insurance (including, without limitation, Employers' Liability
Insurance) to the extent required by applicable law.
(5) Product Liability Insurance -- insurance against claims for
bodily injury, death or Property damage resulting from the use of
products sold by the Company or any of its Subsidiaries in such amounts
as are then customarily maintained by responsible persons engaged in
businesses similar to that of the Company and its Subsidiaries.
(6) Business Interruption Insurance -- insurance against loss of
operating income (up to an aggregate amount equal to $15,000,000 and
subject to a deductible, or self-insured amount, not in excess of
$500,000) by reason of any Peril.
(7) Other Insurance -- such other insurance, including, without
limitation, War-Risk Insurance when and to the extent obtainable from
the United States Government, in each case as generally carried by
owners of similar Properties in the jurisdictions where such Properties
are located, in such amounts and against such risks as are then
customary for Property similar in use.
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Such insurance shall be written by financially responsible companies selected by
the Company and having an A. M. Best rating of "A-" or better and being in a
financial size category of VIII or larger, or by other companies acceptable to
the Majority Lenders, and (other than workers' compensation) shall name the
Agent as loss payee (to the extent covering risk of loss or damage to tangible
property) and as an additional named insured as its interests may appear (to the
extent covering any other risk). Each policy referred to in this Section 8.04
shall provide that it will not be canceled or reduced, or allowed to lapse
without renewal, except after not less than 30 days' notice to the Agent and
shall also provide that the interests of the Agent and the Lenders shall not be
invalidated by any act or negligence of the Company or any Person having an
interest in any Property covered by the Mortgages nor by occupancy or use of any
such Property for purposes more hazardous than permitted by such policy nor by
any foreclosure or other proceedings relating to such Property. The Company
will advise the Agent promptly of any policy cancellation, reduction or
amendment.
On or before the Effective Date, the Company will deliver to the
Agent certificates of insurance satisfactory to the Agent evidencing the
existence of all insurance required to be maintained by the Company hereunder
setting forth the respective coverages, limits of liability, carrier, policy
number and period of coverage (and attaching original copies of any policies
with respect to casualty insurance). Thereafter, each year the Company will
deliver to the Agent certificates of insurance evidencing that all insurance
required to be maintained by the Company hereunder will be in effect through
the calendar year following the date of such certificates, subject only to
the payment of premiums as they become due. In addition, the Company will
not modify any of the provisions of any policy with respect to casualty
insurance without delivering the original copy of the endorsement reflecting
such modification to the Agent accompanied by (if requested by the Agent) a
written report of a firm of independent insurance brokers of nationally
recognized standing, stating that, in their opinion, such policy (as so
modified) adequately protects the interests of the Lenders and the Agent, is
in compliance with the provisions of this Section 8.04, and is comparable in
all respects with insurance carried by responsible owners and operators of
Properties similar to those covered by the Mortgages. The Company will not
obtain or carry separate insurance concurrent in form or contributing in the
event of loss with that required by this Section 8.04 unless
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the Agent is the named insured thereunder, with loss payable as provided
herein. The Company will immediately notify the Agent whenever any such
separate insurance is obtained and shall deliver to the Agent the
certificates evidencing the same.
Without limiting the obligations of the Company under the foregoing
provisions of this Section 8.04, in the event the Company shall fail to
maintain in full force and effect insurance as required by the foregoing
provisions of this Section 8.04, then the Agent may, but shall have no
obligation so to do, procure insurance covering the interests of the Lenders
and the Agent in such amounts and against such risks as the Agent (or the
Majority Lenders) shall deem appropriate, and the Company shall reimburse the
Agent in respect of any premiums paid by the Agent in respect thereof.
For purposes hereof, the term "PERIL" shall mean, collectively,
fire, lightning, flood, windstorm, hail, earthquake, explosion, riot and
civil commotion, vandalism and malicious mischief, damage from aircraft,
vehicles and smoke and all other perils covered by the "all-risk" endorsement
then in use in the jurisdictions where the Properties of the Company and its
Subsidiaries are located.
8.05 PROHIBITION OF FUNDAMENTAL CHANGES. (a) The Company will
not, nor will it permit any of its Subsidiaries to, enter into any
transaction of merger or consolidation or amalgamation, or liquidate, wind up
or dissolve itself (or suffer any liquidation or dissolution).
(b) The Company will not, nor will it permit any of its
Subsidiaries to, acquire any business or Property from, or capital stock of,
or be a party to any acquisition of, any Person except:
(i) for purchases of inventory and other Property to be sold or used
in the ordinary course of business;
(ii) Investments permitted under Section 8.08 hereof;
(iii) [Intentionally left blank]
(iv) Permitted Acquisitions and the acquisition of any capital stock,
business or Property of any Person with the proceeds of Facility A Loans
PROVIDED that unless otherwise
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consented to by the Majority Lenders (w) no more than $5,000,000 of the
proceeds of Facility A Loans may be used, directly or indirectly, to
finance any single acquisition and no more than $25,000,000 in the
aggregate of the proceeds of Facility A Loans at any one time outstanding
may be used, directly or indirectly, to finance acquisitions, (x) the Net
Purchase Price of any such acquisition financed with the proceeds of
Facility A Loans shall not exceed $5,000,000 in a single transaction (or
series of related transactions), (y) at the time of such acquisition no
Default shall have occurred and be continuing and (z) any future earn-out
payments in connection with any such acquisition shall be counted at the
time such earn-out payment is made in determining whether the dollar
limitations contained in this clause (iv) have been exceeded.
(c) The Company will not, nor will it permit any of its
Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in
one transaction or a series of transactions, any part of its business or
Property, whether now owned or hereafter acquired (including, without
limitation, receivables and leasehold interests), but excluding:
(i) any Excluded Disposition;
(ii) obsolete or worn-out Property, tools or equipment no longer used
or useful in its business (other than any Excluded Disposition) or real
Property no longer used or useful in its business so long as the aggregate
amount thereof sold in any single fiscal year by the Company and its
Subsidiaries shall not have a fair market value in excess of $1,000,000;
(iii) any inventory or other Property sold or disposed of in the
ordinary course of business and on ordinary business terms; and
(iv) other Property so long as the aggregate amount thereof sold or
otherwise disposed of in any single fiscal year by the Company and its
Subsidiaries shall not have a fair market value in excess of $10,000,000.
(d) Notwithstanding the foregoing provisions of this Section 8.05,
so long as no Default shall have occurred and be
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continuing, and after giving effect to any of the succeeding transactions, no
Default would exist hereunder and so long as the Liens created under the
Security Documents continue to be in effect:
(i) any Subsidiary of the Company may be merged or consolidated with
or into: (x) the Company if the Company shall be the continuing or
surviving corporation or (y) any other such Subsidiary; and
(ii) any Subsidiary of the Company may sell, lease, transfer or
otherwise dispose of any or all of its Property (upon voluntary liquidation
or otherwise) to the Company or a Subsidiary of the Company.
8.06 LIMITATION ON LIENS. The Company will not, nor will it permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed in Part B of
Schedule I hereto;
(c) Liens imposed by any governmental authority for taxes,
assessments or charges not yet delinquent or that are being contested in
good faith and by appropriate proceedings if, unless the amount thereof is
not material with respect to it or its financial condition, adequate
reserves with respect thereto are maintained on the books of the Company or
the affected Subsidiaries, as the case may be, in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, landlord'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 and by appropriate proceedings;
(e) Liens securing judgments but only to the extent for an amount and
for a period not resulting in an Event of Default under Section 9(i)
hereof;
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(f) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(g) deposits or pledges to secure the performance of bids, trade
contracts (other than for Indebtedness), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the
use of Property or minor imperfections in title thereto that, in the
aggregate, are not material in amount, and that do not in any case
materially detract from the value of the Property subject thereto or
interfere with the ordinary conduct of the business of the Company or any
of its Subsidiaries;
(i) Liens upon tangible personal Property acquired after the date
hereof (by purchase, construction or otherwise), or upon other property
acquired after the date hereof as a Capital Expenditure, by the Company or
any of its Subsidiaries, each of which Liens either (A) existed on such
Property before the time of its acquisition and was not created in
anticipation thereof or (B) was created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, the
cost of such Property; PROVIDED that (i) no such Lien shall extend to or
cover any Property of the Company or such Subsidiary other than the
Property so acquired, (ii) the principal amount of Indebtedness secured by
any such Lien shall at no time exceed the fair market value (as determined
in good faith by a Responsible Financial Officer of the Company) of such
Property at the time it was acquired, and (iii) the principal amount of all
Indebtedness (other than Indebtedness permitted by Section 8.07(d) hereof)
secured by such Liens shall not exceed $1,000,000 in the aggregate;
(j) Liens upon real Property heretofore leased or leased after the
date hereof (under operating or capital leases) in the ordinary course of
business by the Company or any of its Subsidiaries in favor of the lessor
created at the inception of the lease transaction, securing obligations
CREDIT AGREEMENT
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of the Company or any of its Subsidiaries under or in respect of such lease
and extending to or covering only the Property subject to such lease and
improvements thereon;
(k) Liens of sellers or creditors of sellers of farm products
encumbering such farm products when sold to any of the Obligors pursuant to
the Food Security Act of 1985 or pursuant to similar state laws to the
extent such Liens may be deemed to extend to the assets of such Obligors;
(l) protective Uniform Commercial Code filings with respect to
personal Property leased by any Obligor; and
(m) any extension, renewal or replacement of the foregoing, PROVIDED,
however, that the Liens permitted hereunder shall not be spread to cover
any additional Indebtedness or Property.
8.07 INDEBTEDNESS. The Company will not, nor will it permit any of
its Subsidiaries to, create, incur or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder, under the other Loan
Documents and under the Second Restated Supplemental Credit Agreement;
(b) Indebtedness outstanding on the date hereof and listed in Part A
of Schedule I hereto;
(c) Indebtedness of Subsidiaries of the Company to the Company or to
other Subsidiaries of the Company or of the Company to any of its
Subsidiaries to the extent permitted under Section 8.08(e) or (g) hereof;
(d) Indebtedness (including Capital Lease Obligations) incurred to
finance the purchase of equipment, and other Capital Lease Obligations, not
to exceed $20,000,000 in the aggregate outstanding at any time;
(e) Indebtedness in respect of an irrevocable letter of credit issued
by a financial institution located in the State of Nevada in favor of the
State of Nevada Department of Insurance for account of the Company or any
of its Subsidiaries, and any extensions or renewals thereof, in an
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aggregate amount not exceeding $5,000,000 at any one time outstanding;
(f) Indebtedness in respect of certain irrevocable letters of credit
outstanding on the date hereof issued by Fleet National Bank or Bank
Boston, N.A. and described in Part C of Schedule I hereto; and
(g) additional Indebtedness of the Company and its Subsidiaries up to
but not exceeding $5,000,000 at any one time outstanding.
8.08 INVESTMENTS. The Company will not, nor will it permit any of its
Subsidiaries to, make or permit to remain outstanding any Investments except:
(a) Investments outstanding as of the Effective Date and identified
in Part B of Schedule III hereto (including, without limitation,
Indebtedness of any Subsidiary of the Company to the Company or any other
Subsidiary of the Company);
(b) operating deposit accounts with depository institutions;
(c) Permitted Investments;
(d) Interest Rate Protection Agreements entered into pursuant to
Section 8.15 hereof;
(e) (i) Investments permitted under Section 8.05(b) hereof and
(ii) indemnities executed in connection with the sale of Investment Tax
Credits;
(f) Investments by the Company in the capital stock of its
Subsidiaries to the extent outstanding as of the Effective Date;
(g) Investments (other than of a type specified in clause (f) above
and other than the Investments permitted under clause (a) above and
Investments in Subsidiaries made in connection with Investments pursuant to
clause (e)(i) above) by the Company in its Subsidiaries or by any
Subsidiary of the Company in the Company or any other Subsidiary of the
Company;
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(h) loans and advances to employees;
(i) deposits to secure bids, tenders, utilities, vendors, leases,
statutory obligations, surety and appeal bonds and other deposits of like
nature arising in the ordinary course of business not exceeding $2,000,000
in the aggregate;
(j) additional Investments up to but not exceeding $2,000,000 in the
aggregate; and
(k) any guarantees permitted under Section 8.07 hereof.
8.09 RESTRICTED PAYMENTS.
(a) DIVIDEND PAYMENTS. The Company will not, nor will it permit
any of its Subsidiaries to, declare or make any Dividend Payment at any time,
PROVIDED that the Company may redeem or retire shares of its common stock
from any of its officers in connection with his or her voluntary departure,
dismissal, retirement or death, PROVIDED that (i) at the time of such
redemption or retirement no Default shall have occurred and be continuing and
(ii) the aggregate amount of all cash paid in respect of all such shares so
redeemed or repurchased does not exceed $2,000,000 in any fiscal year.
Nothing herein shall be deemed to prohibit the payment of dividends by any
Subsidiary of the Company to the Company or any other Subsidiary of the
Company.
(b) MANAGEMENT FEES. The Company will not, nor will it permit any
of its Subsidiaries to, accrue or pay any Management Fees to any Person
(including, without limitation, any Affiliates), other than the Company or
any of its Subsidiaries.
8.10 LEVERAGE RATIO. The Company will not permit the Leverage Ratio
to exceed the following ratios for the following respective periods:
8.11 MINIMUM NET WORTH. The Company will not permit its Net Worth at
any time to be less than $140,000,000 plus 50% of net income for all preceding
fiscal quarters (without including the results of any fiscal quarter in respect
of which there was a net loss) commencing with the fiscal quarter
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beginning July 1, 1997. The amount of Net Worth set forth above shall be
increased by 75% of the amount by which the "total stockholders equity" of
the Company is increased as a result of any public or private offering of
common stock of the Company after July 1, 1997. Promptly upon consummation
of each such public or private offering, the Company shall notify the Agent
in writing of the amount of such increase in total stockholders equity.
8.12 FIXED CHARGES RATIO. The Company will not permit the Fixed
Charges Ratio to be less than 1.10 to 1 at any time.
8.13 INTEREST COVERAGE RATIO. The Company will not permit the
Interest Coverage Ratio to be less than 3.0 to 1 at any time.
8.14 [Intentionally left blank]
8.15 INTEREST RATE PROTECTION AGREEMENTS. The Company agrees to
provide to the Agent on or before January 31, 1998 evidence that it has in
full force and effect Interest Rate Protection Agreements in form and
substance satisfactory to the Agent that enable the Company to protect
against floating interest rates as to a notional principal amount at least
equal to 50% of the maximum aggregate principal amount of the Facility B
Loans and the Facility D Loans outstanding from time to time during the
period from January 31, 1998 to and including the date three years after the
Effective Date.
8.16 LINES OF BUSINESS. Neither the Company nor any of its
Subsidiaries will engage to any substantial extent in any line or lines of
business activity other than operations involved in the manufacture,
processing or distribution of ice, ice-related products, coffee, dairy
products or bottled water which is similar to the water products that are
currently processed, bottled and distributed from the dairy facilities of the
Company and/or its Subsidiaries, or from and after the Xxxxxx Acquisition,
the manufacture of blow molded plastic bottles, or the lines of business
conducted by the Company or any of its Subsidiaries as of the Effective Date.
8.17 TRANSACTIONS WITH AFFILIATES. Except as expressly permitted
by this Agreement, the Company will not, nor will it permit any of its
Subsidiaries to, directly or indirectly: (a) make any Investment in an
Affiliate; (b) transfer, sell,
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lease, assign or otherwise dispose of any Property to an Affiliate; (c) merge
into or consolidate with or purchase or acquire Property from an Affiliate;
or (d) enter into any other transaction directly or indirectly with or for
the benefit of an Affiliate (including, without limitation, Guarantees and
assumptions of obligations of an Affiliate); PROVIDED that (i) any Affiliate
who is an individual may serve as a director, officer or employee of the
Company or any of its Subsidiaries and receive reasonable compensation for
his or her services in such capacity and (ii) the Company and its
Subsidiaries may enter into transactions (other than extensions of credit by
the Company or any of its Subsidiaries to an Affiliate) if the monetary or
business consideration arising therefrom would be substantially as
advantageous to the Company and its Subsidiaries as the monetary or business
consideration that would obtain in a comparable transaction with a Person not
an Affiliate.
8.18 USE OF PROCEEDS. The Company will use the proceeds of the
Facility A Loans and the Facility B Loans to be made at any time hereunder
solely for working capital or other general corporate purposes (including,
without limitation, to finance acquisitions permitted under Section 8.05(b)(iv)
hereof). The Company will use the proceeds of all Loans hereunder in
compliance with all applicable legal and regulatory requirements. Neither the
Agent nor any Lender shall have any responsibility as to the use of any of
such proceeds.
8.19 CERTAIN OBLIGATIONS RESPECTING SUBSIDIARIES; ADDITIONAL MORTGAGED
PROPERTIES.
(a) The Company will, and will cause each of its Subsidiaries to,
take such action from time to time as shall be necessary to ensure that each
of its Subsidiaries is a Wholly Owned Subsidiary unless otherwise permitted
or agreed in connection with a Permitted Acquisition. In the event that any
additional shares of stock shall be issued by any Subsidiary, the respective
Obligor agrees forthwith to deliver to the Agent pursuant to the relevant
Security Document the certificates evidencing such shares of stock,
accompanied by undated stock powers executed in blank and to take such other
action as the Agent shall request to perfect the security interest created
therein pursuant to such Security Document.
(b) The Company will not permit any of its Subsidiaries to enter
into, after the date of this Agreement, any
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indenture, agreement, instrument or other arrangement (other than the Xxxxxxx
Negative Pledge Agreement) that, directly or indirectly, prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the incurrence or payment of
Indebtedness, the granting of Liens, the declaration or payment of dividends,
the making of loans, advances or Investments or the sale, assignment,
transfer or other disposition of Property.
(c) The Company will take such action, and will cause each of its
Subsidiaries (other than Xxxxxxx) to take such action, from time to time as
shall be necessary to ensure that all Subsidiaries of the Company (other than
Xxxxxxx) are party to, as obligors, the Existing Subsidiary Guarantee and
Security Agreement or a Supplemental Subsidiary Guarantee and Security
Agreement. Without limiting the generality of the foregoing, in the event that
the Company or any of its Subsidiaries shall form or acquire any new Subsidiary,
the Company or the respective Subsidiary will cause such new Subsidiary to
(i) become a party to the Existing Subsidiary Guarantee and Security Agreement
or a Supplemental Subsidiary Guarantee and Security Agreement pursuant to a
written instrument in form and substance satisfactory to the Agent, (ii) if
requested by the Majority Lenders, cause such new Subsidiary to execute and
deliver one or more Mortgages, in substantially the form of Exhibits B or C
hereto or Exhibits C or D of the Second Restated Supplemental Credit Agreement
(with such changes thereto as the Agent may reasonably request), covering the
real Property and/or fixtures of such Subsidiary, and (iii) to deliver such
proof of corporate action, incumbency of officers, opinions of counsel and other
documents relating to the foregoing as is consistent with those delivered by
each Obligor pursuant to Section 6.02 of the Second Restated Supplemental Credit
Agreement, or as any Lender or the Agent shall have reasonably requested.
(d) Without affecting the obligations of the Company under any
provision prohibiting such action hereunder, in the event that the Company or
any of its Subsidiaries (other than Xxxxxxx) shall acquire any business or
Property after the Effective Date, the Company shall, or shall cause such
Subsidiary to (i) if requested by the Majority Lenders, execute and deliver one
or more Mortgages, substantially in the form of Exhibits B or C hereto or
Exhibit C or D of the Second Restated Supplemental Credit Agreement (with such
changes as the Agent may reasonably request), covering the real property and/or
fixtures so acquired,
CREDIT AGREEMENT
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(ii) execute and deliver to the Agent for filing, appropriately completed
Uniform Commercial Code financing statements or other filings or instruments
as the Agent shall request in order to perfect the security interest in favor
of the Agent for the benefit of the Lenders in such Property so acquired and
(iii) deliver such proof of corporate action, incumbency of officers,
opinions of counsel and other documents relating to the foregoing as is
consistent with those delivered by each Obligor pursuant to Section 6.02 of
the Second Restated Supplemental Credit Agreement, or as any Lender or the
Agent shall have reasonably requested.
8.20 MODIFICATIONS OF CERTAIN DOCUMENTS. Except in connection with
any transaction expressly permitted hereunder, the Company will not, nor will it
permit any of its Subsidiaries to, consent to any modification, supplement or
waiver of any of the provisions of any agreement, instrument or other document
evidencing or relating to the charter or by-laws of the Company or any of its
Subsidiaries, in each case, without the prior consent of the Agent (with the
approval of the Majority Lenders). Without limiting the requirement for consent
as provided in the immediately preceding sentence, the Company will furnish to
the Agent a copy of each such modification, supplement or waiver promptly upon
the effectiveness thereof (and the Agent will promptly furnish a copy thereof to
each Lender).
8.21 FURTHER ASSURANCES. As and to the extent requested from time to
time by the Agent or the Majority Lenders, each Obligor operating in the
Commonwealth will grant to the Agent, for the benefit of the Lenders, a Lien in
respect of any Property acquired by such Obligor operating in the Commonwealth
after the Effective Date and not otherwise covered by the Puerto Rico Security
Documents (collectively, the "ADDITIONAL PUERTO RICO SECURITY DOCUMENTS"). Such
Lien shall be granted pursuant to documentation reasonably satisfactory in form
and substance to the Agent and shall constitute valid and enforceable perfected
liens superior to and prior to the rights of all other Persons and subject to no
other Liens except for the Liens permitted pursuant to Section 8.06 hereof. The
Additional Puerto Rico Security Documents or other instruments related thereto
shall be duly recorded or filed in such manner and in such places as are
required by law to establish, perfect, preserve and protect the Liens in favor
of the Agent for the benefit of the Lenders required to be granted pursuant to
the Additional Puerto Rico
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Security Documents and all taxes, fees and other charges payable in connection
therewith shall be paid in full.
8.22 PUERTO RICO SECURITY DOCUMENTS. The Company shall, within 15
days of the Effective Date, (i) execute such amendments to the Puerto Rico
Security Documents as reasonably requested by the Agent, (ii) duly file such
amendments with the appropriate filing offices in Puerto Rico and (iii) pay all
filing fees in connection therewith.
Section 9. EVENTS OF DEFAULT. If one or more of the following
events (herein called "EVENTS OF DEFAULT") shall occur and be continuing:
(a) The Company shall: (i) default in the payment of any principal
of any Loan when due (whether at stated maturity or at mandatory
prepayment); or (ii) default in the payment of any interest on any Loan or
Reimbursement Obligation, any fee or any other amount payable by it
hereunder or under any other Loan Document or under the Second Restated
Supplemental Credit Agreement when due and such default shall have
continued unremedied for three or more Business Days; or
(b) The Company or any of its Subsidiaries shall default in the
payment when due of any principal of or interest on any of its other
Indebtedness aggregating $500,000 or more, or in the payment when due of
any amount under any Interest Rate Protection Agreement; or any event
specified in any note, agreement, indenture or other document evidencing or
relating to any such Indebtedness or any event specified in any Interest
Rate Protection Agreement shall occur if the effect of such event is to
cause, or (with the giving of any notice or the lapse of time or both) to
permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause, such Indebtedness to become
due, or to be prepaid in full (whether by redemption, purchase, offer to
purchase or otherwise), prior to its stated maturity or to have the
interest rate thereon reset to a level so that securities evidencing such
Indebtedness trade at a level specified in relation to the par value
thereof or, in the case of an Interest Rate Protection Agreement, to permit
the payments owing under such Interest Rate Protection Agreement to be
liquidated or any Event of Default (as defined in the
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Second Restated Supplemental Credit Agreement) shall occur and be
continuing; or
(c) Any representation, warranty or certification made or deemed made
herein or in any other Loan Document (or in any modification or supplement
hereto or thereto) by any Obligor, or any certificate furnished to any
Lender or the Agent pursuant to the provisions hereof or thereof, shall
prove to have been false or misleading as of the time made or furnished in
any material respect; or
(d) The Company shall default in the performance of any of its
obligations under any of Sections 8.01(f), 8.05, 8.06, 8.07, 8.08, 8.09,
8.10, 8.11, 8.12, 8.13, 8.15, 8.16, 8.17, 8.19, 8.21 or 8.22 hereof; or the
Company shall default in the performance of any of its other obligations in
this Agreement and such default shall continue unremedied for a period of
30 or more days after notice thereof to the Company by the Agent or any
Lender (through the Agent); or
(e) The Company shall default in the performance of any of its
obligations under Section 4.02 of the Security Agreement; any Obligor party
to the Existing Subsidiary Guarantee and Security Agreement or any
Supplemental Subsidiary Guarantee and Security Agreement shall default in
the performance of any of its obligations under Section 2 or 5.02 thereof;
or any Obligor shall default in the performance of any of its other
obligations in any Loan Document (other than this Agreement) to which it is
party and such default shall continue unremedied for a period of 30 or more
days after notice thereof to the Company by the Agent or any Lender
(through the Agent); or
(f) The Company or any of its Subsidiaries shall admit in writing its
inability to, or be generally unable to, pay its debts as such debts become
due; or
(g) The Company or any of its Subsidiaries shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee, examiner or liquidator of itself or of all or a
substantial part of its Property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case under the
Bankruptcy Code, (iv) file a petition seeking to take advantage of any
other law relating to bankruptcy,
CREDIT AGREEMENT
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insolvency, reorganization, liquidation, dissolution, arrangement or
winding-up, or composition or readjustment of debts, (v) fail to controvert
in a timely and appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case under the Bankruptcy Code
(or such similar laws) or (vi) take any corporate action for the purpose
of effecting any of the foregoing; or
(h) A proceeding or case shall be commenced, without the application
or consent of the Company or the relevant Subsidiary affected thereby, in
any court of competent jurisdiction, seeking (i) its reorganization,
liquidation, dissolution, arrangement or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a receiver, custodian,
trustee, examiner, liquidator or the like of the Company or such
Subsidiary, as the case may be, or of all or any substantial part of its
Property, or (iii) similar relief in respect of such Company or such
Subsidiary, as the case may be, under any law relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of
debts, and such proceeding or case shall continue undismissed, or an order,
judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of 60 or more
days; or an order for relief against the Company or any of its Subsidiaries
shall be entered in an involuntary case under the Bankruptcy Code; or
(i) A final judgment or judgments for the payment of money in excess
of $1,000,000 in the aggregate (exclusive of judgment amounts fully bonded
or covered by insurance where the surety or the insurer, as the case may
be, has admitted liability in respect of such judgment) shall be rendered
by one or more courts, administrative tribunals or other bodies having
jurisdiction against the Company or any of its Subsidiaries and the same
shall not be discharged (or provision shall not be made for such
discharge), or a stay of execution thereof shall not be procured, within 30
days from the date of entry thereof and the Company or any such Subsidiary,
as the case may be, shall not, within said period of 30 days, or such
longer period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during such
appeal; or
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(j) An event or condition specified in Section 8.01(e) hereof shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions, the Company or any ERISA Affiliate shall incur or shall be
reasonably likely to incur a liability to a Plan, a Multiemployer Plan or
PBGC (or any combination of the foregoing) that, in the determination of
the Majority Lenders, would (either individually or in the aggregate) have
a Material Adverse Effect; or
(k) A reasonable basis shall exist for the assertion against the
Company or any of its Subsidiaries, or any predecessor in interest of the
Company or any of its Subsidiaries, of (or there shall have been asserted
against the Company or any of its Subsidiaries) an Environmental Claim
that, in the judgment of the Majority Lenders, is reasonably likely to be
determined adversely to the Company or any of its Subsidiaries, and the
amount thereof (either individually or in the aggregate) is reasonably
likely to have a Material Adverse Effect (insofar as such amount is payable
by the Company or any of its Subsidiaries but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor); or
(l) Any of the Subsidiaries of the Company shall cease to be a Wholly
Owned Subsidiary of the Company; or during any period of 25 consecutive
calendar months, a majority of the Board of Directors of the Company shall
no longer be composed of individuals (i) who were members of said Board on
the first day of such period or (ii) whose election or nomination to said
Board was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority
of said Board; or any Person or group of Persons acting in concert, other
than Xx. Xxxxx X. Xxxxxx or any other shareholder of the Company as of the
Effective Date, shall at any time own or control, directly or indirectly,
20% or more of the Company's voting capital stock; or
(m) The Liens created by the Security Documents shall at any time not
constitute a valid and perfected Lien on any material portion of the
collateral intended to be covered thereby (to the extent perfection by
filing, registration,
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recordation or possession is required herein or therein) in favor of the
Agent, free and clear of all other Liens (other than Liens permitted under
Section 8.06 hereof or under the respective Security Documents), or, except
for expiration in accordance with its terms, any of the Security Documents
shall for whatever reason be terminated or cease to be in full force and
effect, or the enforceability thereof shall be contested by any Obligor.
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (g) or (h) of this Section 9 with respect to any Obligor, the Agent may
(and, if requested by the Majority Lenders shall), by notice to the Company,
terminate the Commitments and/or declare the principal amount then outstanding
of, and the accrued interest on, the Loans, the Reimbursement Obligations and
all other amounts payable by the Obligors hereunder, under the other Loan
Documents and under the Notes (including, without limitation, any amounts
payable under Section 5.05 or 5.08 hereof) to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are hereby
expressly waived by each Obligor; and (2) in the case of the occurrence of an
Event of Default referred to in clause (g) or (h) of this Section 9 with respect
to any Obligor, the Commitments shall automatically be terminated and the
principal amount then outstanding of, and the accrued interest on, the Loans,
the Reimbursement Obligations and all other amounts payable by the Company
hereunder and under the Notes (including, without limitation, any amounts
payable under Section 5.05 or 5.08 hereof) shall automatically become
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by each
Obligor.
In addition, upon the occurrence and during the continuance of any
Event of Default (if the Agent has declared the principal amount then
outstanding of, and accrued interest on, the Loans, the Reimbursement
Obligations and all other amounts payable by the Company hereunder and under the
Notes to be due and payable), the Company agrees that it shall, if requested by
the Agent or the Majority Lenders through the Agent (and, in the case of any
Event of Default referred to in clause (g) or (h) of this Section 9 with respect
to the Company, forthwith, without any demand or the taking of any other action
by the Agent or such Lenders) provide cover for the Letter of
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Credit Liabilities by paying to the Agent immediately available funds in an
amount equal to the then aggregate undrawn face amount of all Letters of
Credit, which funds shall be held by the Agent in the Collateral Account as
collateral security in the first instance for the Letter of Credit Liabilities
and be subject to withdrawal only as therein provided.
Section 10. THE AGENT.
10.01 APPOINTMENT, POWERS AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Loan Documents with such powers as are specifically delegated to
the Agent by the terms of this Agreement and of the other Loan Documents,
together with such other powers as are reasonably incidental thereto. The Agent
(which term as used in this sentence and in Section 10.05 and the first sentence
of Section 10.06 hereof shall include reference to its affiliates and its own
and its affiliates' officers, directors, employees and agents): (a) shall have
no duties or responsibilities except those expressly set forth in this Agreement
and in the other Loan Documents, and shall not by reason of this Agreement or
any other Loan Document be a trustee for any Lender; (b) shall not be
responsible to the Lenders for any recitals, statements, representations or
warranties contained in this Agreement or in any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by any
of them under, this Agreement or any other Loan Document, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement, any Note or any other Loan Document or any other document referred to
or provided for herein or therein or for any failure by the Company or any other
Person to perform any of its obligations hereunder or thereunder; (c) shall not
be required to initiate or conduct any litigation or collection proceedings
hereunder or under any other Loan Document; and (d) shall not be responsible for
any action taken or omitted to be taken by it hereunder or under any other Loan
Document or under any other document or instrument referred to or provided for
herein or therein or in connection herewith or therewith, except for its own
gross negligence or willful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it in good faith. The Agent
may deem and treat the payee of any Note as the holder thereof for all purposes
hereof unless and until a notice
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of the assignment or transfer thereof shall have been filed with the Agent.
10.02 RELIANCE BY AGENT. The Agent shall be entitled to rely upon
any certification, notice or other communication (including, without limitation,
any thereof by telephone, telecopy, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Agent. As to any
matters not expressly provided for by this Agreement or any other Loan Document,
the Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or thereunder in accordance with instructions given by the
Majority Lenders or, if provided herein, in accordance with the instructions
given by all of the Lenders as is required in such circumstance, and such
instructions of such Lenders and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders.
10.03 DEFAULTS. The Agent shall not be deemed to have knowledge
or notice of the occurrence of a Default unless the Agent has received notice
from a Lender or any Obligor specifying such Default and stating that such
notice is a "Notice of Default". In the event that the Agent receives such a
notice of the occurrence of a Default, the Agent shall give prompt notice
thereof to the Lenders. The Agent shall (subject to Section 10.07 hereof) take
such action with respect to such Default as shall be directed by the Majority
Lenders, PROVIDED that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable in the best interest of the Lenders except to the extent that this
Agreement expressly requires that such action be taken, or not be taken, only
with the consent or upon the authorization of the Majority Lenders, or all of
the Lenders.
10.04 RIGHTS AS A LENDER. With respect to its Commitments and the
Loans made by it, First Union (and any successor acting as Agent) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include the Agent in its individual
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capacity. First Union (and any successor acting as Agent) and its affiliates
may (without having to account therefor to any Lender) accept deposits from,
lend money to, make investments in and generally engage in any kind of
banking, trust or other business with the Obligors (and any of their
Subsidiaries or Affiliates) as if it were not acting as the Agent, and First
Union and its affiliates may accept fees and other consideration from the
Obligors for services in connection with this Agreement or otherwise without
having to account for the same to the Lenders.
10.05 INDEMNIFICATION. The Lenders agree to indemnify the Agent
(to the extent not reimbursed under Section 11.03 hereof, but without limiting
the obligations of the Company under said Section 11.03, and including in any
event any payments under any indemnity that the Agent is required to issue to
any bank referred to in Section 4.02 of the Security Agreement and Section 5.02
of each of the Existing Subsidiary Guarantee and Security Agreement and each
Supplemental Subsidiary Guarantee and Security Agreement to which remittances in
respect of Accounts, as defined in each such agreement, are to be made) ratably
in accordance with the aggregate principal amount of the Loans and Reimbursement
Obligations held by the Lenders (or, if no Loans or Reimbursement Obligations
are at the time outstanding, ratably in accordance with their respective
Commitments), for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever that may be imposed on, incurred by or asserted
against the Agent (including by any Lender) arising out of or by reason of any
investigation in or in any way relating to or arising out of this Agreement or
any other Loan Document or any other documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby (including,
without limitation, the costs and expenses that the Company is obligated to pay
under Section 11.03 hereof, and including also any payments under any indemnity
that the Agent is required to issue to any bank referred to in Section 4.02 of
the Security Agreement and Section 5.02 of each of the Existing Subsidiary
Guarantee and Security Agreement and each Supplemental Subsidiary Guarantee and
Security Agreement to which remittances in respect of Accounts, as defined in
each such agreement, are to be made, but excluding, unless a Default has
occurred and is continuing, normal administrative costs and expenses incident to
the performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or thereof or of any such
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other documents, PROVIDED that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified.
10.06 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender
agrees that it has, independently and without reliance on the Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Company and its Subsidiaries
and decision to enter into this Agreement and that it will, independently and
without reliance upon the 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 analysis and decisions in taking or not taking action under this Agreement
or under any other Loan Document. The Agent shall not be required to keep
itself informed as to the performance or observance by any Obligor of this
Agreement or any of the other Loan Documents or any other document referred to
or provided for herein or therein or to inspect the Properties or books of the
Company or any of its Subsidiaries. Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders by
the Agent hereunder or under the Security Documents, the Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition or business of the
Company or any of its Subsidiaries (or any of their affiliates) that may come
into the possession of the Agent or any of its affiliates.
10.07 FAILURE TO ACT. Except for action expressly required of the
Agent hereunder and under the other Loan Documents, the Agent shall in all cases
be fully justified in failing or refusing to act hereunder and thereunder unless
it shall receive further assurances to its satisfaction from the Lenders of
their indemnification obligations under Section 10.05 hereof against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.
10.08 RESIGNATION OR REMOVAL OF AGENT. Subject to the appointment
and acceptance of a successor Agent as provided below, the Agent may resign at
any time by giving notice thereof to the Lenders and the Company, and the Agent
may be removed at any time with or without cause by the Majority Lenders. Upon
any such resignation or removal, the Majority Lenders shall have the
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right to appoint a successor Agent with the prior consent of the Company
(which consent shall not be unreasonably withheld); PROVIDED that no such
consent of the Company shall be required if an Event of Default has occurred
and is continuing and the Commitments have been terminated and/or the Loans
and other amounts payable by the Obligors hereunder have been declared
forthwith due and payable. If no successor Agent shall have been so appointed
by the Majority Lenders and shall have accepted such appointment within 30
days after the retiring Agent's giving of notice of resignation or the
Majority Lenders' removal of the retiring Agent, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent, that shall be a bank with
a combined capital and surplus of at least $500,000,000. Upon the acceptance
of any appointment as Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Section 10 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
10.09 AGENCY FEE. So long as the Commitments are in effect and
until payment in full of the principal of and interest on the Loans and all
other amounts payable by the Company hereunder, the Company will pay to the
Agent an agency fee in the amount agreed in writing between the Company and the
Agent, payable quarterly in arrears commencing on September 30, 1997 and on the
last day of each calendar quarter thereafter; PROVIDED that if the Commitments
shall have been terminated prior to such date, the agency fee shall be payable
on the date of such termination. Such fee, once paid, shall be non-refundable.
10.10 CONSENTS UNDER OTHER LOAN DOCUMENTS. Except as otherwise
provided in Section 11.04 hereof with respect to this Agreement, the Agent may,
with the prior consent of the Majority Lenders (but not otherwise), consent to
any modification, supplement or waiver under any of the Loan Documents, PROVIDED
that, without the prior consent of each Lender, the Agent shall not (except as
provided herein or in the Security Documents) release any guarantee or
collateral or otherwise terminate any Lien under any Loan Document providing for
collateral security, or agree to additional obligations being secured by such
collateral security, except that no such consent
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shall be required, and the Agent is hereby authorized, to release any Lien
covering Property that is the subject of a disposition of Property permitted
hereunder or to which the Majority Lenders have consented or to release any
guarantee of any Obligor that is the subject of a disposition to which the
Majority Lenders have consented.
10.11 SYNDICATION AGENT AND CO-AGENTS. The Syndication Agent and
Co-Agents named on the cover page of this Agreement shall have no duties,
obligations or responsibilities hereunder except in their capacities as Lenders.
Section 11. MISCELLANEOUS.
11.01 WAIVER. No failure on the part of the Agent or any Lender
to exercise and no delay in exercising, and no course of dealing with respect
to, any right, power or privilege under this Agreement or any Note shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
power or privilege under this Agreement or any Note preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
11.02 NOTICES. All notices, requests and other communications
provided for herein and under the Security Documents (including, without
limitation, any modifications of, or waivers, requests or consents under, this
Agreement) shall be given or made in writing (including, without limitation, by
telex or telecopy) delivered to the intended recipient at the "Address for
Notices" specified below its name on the signature pages hereof; or, as to any
party, at such other address as shall be designated by such party in a notice to
each other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by telex
or telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
11.03 EXPENSES, ETC. The Company agrees to pay or reimburse each
of the Lenders and the Agent for: (a) all reasonable out-of-pocket costs and
expenses of the Agent (including, without limitation, the reasonable fees and
expenses of Milbank, Tweed, Xxxxxx & XxXxxx, special New York counsel to First
Union, and Fiddler Xxxxxxxx & Xxxxxxxxx, special Puerto
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Rico counsel to First Union) in connection with (i) the negotiation,
preparation, execution and delivery of this Agreement and the other Loan
Documents and the extensions of credit hereunder and (ii) the negotiation or
preparation of any modification, supplement or waiver of any of the terms of
this Agreement or any of the other Loan Documents (whether or not
consummated); (b) all reasonable out-of-pocket costs or allocated costs and
expenses of the Lenders and the Agent (including, without limitation, the
reasonable fees, allocated costs and expenses of legal counsel, which may be
employees of the Lenders or the Agent) in connection with (i) any Default and
any enforcement or collection proceedings resulting therefrom, including,
without limitation, all manner of participation in or other involvement with
(x) bankruptcy, insolvency, receivership, foreclosure, winding up or
liquidation proceedings, (y) judicial or regulatory proceedings and (z)
workout, restructuring or other negotiations or proceedings (whether or not
the workout, restructuring or transaction contemplated thereby is consummated)
and (ii) the enforcement of this Section 11.03; (c) all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement or any of the
other Loan Documents or any other document referred to herein or therein and
all costs, expenses, taxes, assessments and other charges incurred in
connection with any filing, registration, recording or perfection of any
security interest contemplated by any Loan Document or any other document
referred to therein; and (d) all costs, expenses and other charges in respect
of title insurance procured with respect to the Liens created pursuant to the
Mortgages.
The Company hereby agrees to indemnify the Agent and each Lender and
their respective directors, officers, employees, attorneys and agents from, and
hold each of them harmless against, any and all losses, liabilities, claims,
damages or expenses incurred by any of them (including, without limitation, any
and all losses, liabilities, claims, damages or expenses incurred by the Agent
to any Lender, whether or not the Agent or any Lender is a party thereto)
arising out of or by reason of any investigation or litigation or other
proceedings (including any threatened investigation or litigation or other
proceedings) relating to the extensions of credit hereunder or any actual or
proposed use by the Company or any of its Subsidiaries of the proceeds of any of
the extensions of credit hereunder, including, without limitation, the
reasonable fees and disbursements of
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counsel incurred in connection with any such investigation or litigation or
other proceedings (but excluding any such losses, liabilities, claims, damages
or expenses incurred by reason of the gross negligence or willful misconduct
of the Person to be indemnified). Without limiting the generality of the
foregoing, the Company will (x) indemnify the Agent for any payments that the
Agent is required to make under any indemnity issued to any bank referred to
in Section 4.02 of the Security Agreement and Section 5.02 of each of the
Existing Subsidiary Guarantee and Security Agreement and each Supplemental
Subsidiary Guarantee and Security Agreement to which remittances in respect to
Accounts, as defined in each such agreement, are to be made and (y) indemnify
the Agent and each Lender from, and hold the Agent and each Lender harmless
against, any losses, liabilities, claims, damages or expenses described in the
preceding sentence (including any Lien filed against all or any part of the
Property covered by the Mortgages in favor of any governmental entity, but
excluding, as provided in the preceding sentence, any loss, liability, claim,
damage or expense incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified) arising under any Environmental
Law as a result of the past, present or future operations of the Company or
any of its Subsidiaries (or any predecessor in interest to the Company or any
of its Subsidiaries), or the past, present or future condition of any site or
Facility owned, operated or leased at any time by the Company or any of its
Subsidiaries (or any such predecessor in interest), or any Release or
threatened Release of any Hazardous Materials at or from any such site or
facility, including any such Release or threatened Release that shall occur
during any period prior to the termination of the Commitments and the payment
in full of the Loans and other amounts owing hereunder and under the other
Loan Documents when the Agent or any Lender shall be in possession of any such
site or Facility following the exercise by the Agent or any Lender of any of
its rights and remedies hereunder or under any of the Security Documents to
the extent such Release results from a continuation of conditions previously
in existence at, or practices theretofore employed in connection with the
operation of, such site or facility.
11.04 AMENDMENTS, ETC. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be modified or supplemented
only by an instrument in writing signed by the Company, the Agent and the
Majority Lenders, or by the Company and the Agent acting with the consent
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of the Majority Lenders, and any provision of this Agreement may be waived by
the Majority Lenders or by the Agent acting with the consent of the Majority
Lenders; PROVIDED that: (a) no modification, supplement or waiver shall,
unless by an instrument signed by all of the Lenders or by the Agent acting
with the consent of all of the Lenders: (i) increase, or extend the term of
any of the Commitments, or extend the time or waive any requirement for the
reduction or termination of any of the Commitments, (ii) extend the date fixed
for the payment of principal of or interest on any Loan, the Reimbursement
Obligations or any fee hereunder, (iii) reduce the amount of any such payment
of principal, (iv) reduce the rate at which interest is payable thereon or any
fee is payable hereunder, (v) alter the rights or obligations of the Company
to prepay Loans, (vi) alter the terms of this Section 11.04, (vii) modify the
definition of the term "Majority Lenders", or modify in any other manner the
number or percentage of the Lenders required to make any determinations or
waive any rights hereunder or to modify any provision hereof or modify Section
4.07(b) or Section 11.06(b)(ii) or (iii) hereof, (viii) release any Subsidiary
Guarantor or Supplemental Guarantor from any of its guarantee obligations
under the Existing Subsidiary Guarantee and Security Agreement or any
Supplemental Subsidiary Guarantee and Security Agreement or release (or
terminate any Lien on) all or substantially all of the Collateral except as
provided in the Security Documents with respect to such Collateral in any of
the Security Documents or (ix) waive any of the conditions precedent set forth
in Section 6.01 or 6.02 hereof; and (b) any modification of any of the rights
or obligations of the Agent or any Issuing Bank shall require the consent of
the Agent or the Issuing Bank, as the case may be.
11.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
11.06 ASSIGNMENTS AND PARTICIPATIONS.
(a) The Company may not assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the Lenders and
the Agent.
(b) Each Lender may assign any of its Loans, its Notes, its
Commitments, and, if such Lender is a Facility A Lender, its Letter of Credit
Interest with the consent of the
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Company and the Agent, and in the case of the Facility A Commitment or Letter
of Credit Interest, the Issuing Bank (which consents shall not be unreasonably
withheld) pursuant to an Assignment and Acceptance substantially in the form
of Exhibit H hereto; PROVIDED that:
(i) no such consent by the Company shall be required in the case of
any assignment to another Lender or in any case if an Event of Default has
occurred and is continuing;
(ii) each assignment by a Lender of its Loans, Note or Commitment of
any Class or Letter of Credit Interest shall be made in such a manner so
that the same portion of such Loans, Note, Commitment and (if
applicable) Letter of Credit Interest is assigned to the respective
assignee;
(iii) each assignment by any Facility A Lender or Facility B
Lender of any of its Loans (and related Note and Commitment) of a
particular Class and (in the case of a Facility A Lender) its Letter of
Credit Interest shall be made in such a manner so that (x) the same ratable
portion of all of its Loans to the Company under this Agreement of the
other Class (and related Notes and Commitments) and (if applicable) its
Letter of Credit Interest is assigned to the respective assignee and
(y) the same ratable portion of all of its Facility C Loans and Facility D
Loans (and related Facility C Note and Facility D Note and Facility C
Commitment and Facility D Commitment) under and as defined in the Second
Restated Supplemental Credit Agreement is assigned to the respective
assignee; and
(iv) any such assignment of less than all of such Lender's interests
in the Facility A Loans, Facility B Loans, Facility C Loans and Facility D
Loans, Facility A Notes, Facility B Notes, Facility C Notes and Facility D
Notes, and Facility A Commitments, Facility B Commitments, Facility C
Commitments and Facility D Commitments, as the case may be, shall be in an
aggregate amount at least equal to $10,000,000 ($5,000,000 if the assignee
is already a Lender).
Upon execution and delivery by the assignor and assignee to the Company, the
Agent and, if applicable, the Issuing Bank of such Assignment and Acceptance,
and upon consent thereto by the Company, the Agent and Issuing Bank, to the
extent required
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above, the assignee shall have, to the extent of such assignment, the
obligations, rights and benefits of a Lender hereunder holding the
Commitment(s) and Loans and, if applicable, Letter of Credit Interests (or
portions thereof) assigned to it as specified in such Assignment and
Acceptance (in addition to the Commitment(s), Loans and/or Letter of Credit
Interests, if any, theretofore held by such assignee) and the assigning Lender
shall, to the extent of such assignment, be released from the Commitment(s)
(or portion(s) thereof) so assigned. Upon each such assignment the assigning
Lender shall pay the Agent an assignment fee of $3,000.
(c) A Lender may sell or agree to sell to one or more other Persons a
participation in all or any part (in a minimum amount of $5,000,000) of any
Loans or Letter of Credit Interests held by it, or in its Commitments, in which
event each purchaser of a participation (a "PARTICIPANT") shall be entitled to
the rights and benefits of the provisions of Section 8.01(i) hereof with respect
to its participation in such Loans, Letter of Credit Interests and Commitments
as if (and the Company shall be directly obligated to such Participant under
such provisions as if) such Participant were a "Lender" for purposes of said
Section, but, except as otherwise provided in Section 4.07(c) hereof, shall not
have any other rights or benefits under this Agreement or any Note or any other
Loan Document (the Participant's rights against such Lender in respect of such
participation to be those set forth in the agreements executed by such Lender in
favor of the Participant). All amounts payable by the Company to any Lender
under Section 5 hereof in respect of Loans or Letter of Credit Interests held by
it, and its Commitments, shall be determined as if such Lender had not sold or
agreed to sell any participations in such Loans, Letter of Credit Interests and
Commitments, and as if such Lender were funding each of such Loans, Letter of
Credit Interests and Commitments in the same way that it is funding the portion
of such Loans, Letter of Credit Interests and Commitments in which no
participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Loan Document except that such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase or extend the term, or extend the time or
waive any requirement for the reduction or termination, of such Lender's related
Commitment, (ii) extend the date fixed for the payment of principal of or
interest on the related Loan or Loans,
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Reimbursement Obligations or any portion of any fee hereunder payable to the
Participant, (iii) reduce the amount of any such payment of principal, (iv)
reduce the rate at which interest is payable thereon, or any fee hereunder
payable to the Participant, to a level below the rate at which the Participant
is entitled to receive such interest or fee, (v) alter the rights or
obligations of the Company to prepay the related Loans, (vi) consent to any
modification, supplement or waiver hereof or of any of the other Loan
Documents to the extent that the same, under Section 10.10 or 11.04 hereof,
requires the consent of each Lender or (vii) release any Subsidiary Guarantor
or Supplemental Guarantor from any of its guarantee obligations under the
Existing Subsidiary Guarantee and Security Agreement or any Supplemental
Subsidiary Guarantee and Security Agreement or release (or terminate any Lien
on) all or substantially all of the Collateral except as provided in the
Security Documents with respect to such Collateral in any of the Security
Documents.
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 11.06, any Lender may (without notice
to the Company, the Agent or any other Lender and without payment of any
fee) (i) assign and pledge all or any portion of its Loans, Notes and/or Letter
of Credit Interests to any Federal Reserve Bank as collateral security pursuant
to Regulation A and any Operating Circular issued by such Federal Reserve Bank
and (ii) assign all or any portion of its rights under this Agreement and its
Loans, Notes and Letter of Credit Interests to an affiliate. No such assignment
shall release the assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning the Company or
any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.12(b) hereof.
(f) Anything in this Section 11.06 to the contrary notwithstanding,
no Lender may assign or participate any interest in any Loan or Reimbursement
Obligation held by it hereunder to the Company or any of its Subsidiaries or
Affiliates without the prior consent of each Lender.
(g) At the request of any Lender that is not a U.S. Person and is not
a "bank" within the meaning of
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Section 881(c)(3)(A) of the Code, the Company shall maintain, or cause to be
maintained, a register (the "Register") that, at the request of the Company,
shall be kept by the Agent on behalf of the Company at no charge to the
Company at the address to which notices to the Agent are to be sent hereunder,
on which it enters the name of such Lender as the registered owner of each
Registered Loan held by such Lender. A Registered Loan (and the Registered
Note, if any, evidencing the same) may be assigned or otherwise transferred in
whole or in part by registration of such assignment or transfer on the
Register (and each Registered Note shall expressly so provide). Any
assignment or transfer of all or part of such Registered Loan (and the
Registered Note, if any, evidencing the same) may be effected by registration
of such assignment or transfer on the Register, together with the surrender of
the Registered Note, if any, evidencing the same duly endorsed by (or
accompanied by a written instrument of assignment or transfer duly executed
by) the holder of such Registered Note, whereupon, at the request of the
designated assignee(s) or transferee(s), one or more new Registered Notes in
the same aggregate principal amount shall be issued to the designated
assignee(s) or transferee(s). Prior to the registration of assignment or
transfer of any Registered Loan (and the Registered Note, if any, evidencing
the same), the Company shall treat the Person in whose name such Registered
Loan (and the Registered Note, if any, evidencing the same) is registered as
the owner thereof for the purpose of receiving all payments thereon and for
all other purposes, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Company and any Lender that is a
Registered Holder at any reasonable time upon reasonable prior notice.
11.07 SURVIVAL. The obligations of the Company under Sections
5.01, 5.05, 5.06, 5.08 and 11.03 hereof, and the obligations of the Lenders
under Section 10.05 hereof, shall survive the repayment of the Loans and
Reimbursement Obligations and the termination of the Commitments. In addition,
each representation and warranty made, or deemed to be made by a notice of any
extension of credit (whether by means of a Loan or the issuance of a Letter of
Credit), herein or pursuant hereto shall survive the making of such
representation and warranty, and no Lender shall be deemed to have waived, by
reason of making any extension of credit hereunder (whether by means of a Loan
or the issuance of a Letter of Credit), any Default that may arise by reason of
such representation or warranty proving to have been false or misleading,
notwithstanding that such Lender or the
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Agent may have had notice or knowledge or reason to believe that such
representation or warranty was false or misleading at the time such extension
of credit was made.
11.08 CAPTIONS. The table of contents and captions and Section
headings appearing herein are included solely for convenience of reference
and are not intended to affect the interpretation of any provision of this
Agreement.
11.09 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; SERVICE OF
PROCESS AND VENUE.
(a) This Agreement and the Notes shall be governed by, and construed
in accordance with, the law of the State of New York.
(b) The Company hereby agrees that any suit, action or proceeding
with respect to this Agreement, any Note or any other Loan Document to which it
is a party or any judgment entered by any court in respect thereof may be
brought in the United States District Court for the Southern District of New
York, in the Supreme Court of the State of New York sitting in New York County
(including its Appellate Division), or in any other appellate court in the State
of New York, as the party commencing such suit, action or proceeding may elect
in its sole discretion; and each party hereto hereby irrevocably submits to the
non-exclusive jurisdiction of such court for the purpose of any such suit,
action, proceeding or judgment. Each party hereto further submits, for the
purpose of any such suit, action, proceeding or judgment brought or rendered
against it, to the appropriate courts of the jurisdiction of its domicile.
(c) The Company hereby agrees that service of all writs, process and
summonses in any suit, action or proceeding brought hereunder or under any of
the other Loan Documents to which the Company is a party may be made upon The
Prentice Hall Corporation System, Inc. presently located at 00 Xxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X. (the "Process Agent"), and the Company hereby
confirms and agrees that the Process Agent has
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been duly and irrevocably appointed as its agent and true and lawful attorney
in fact in its name, place and stead to accept such service of any and all
such writs, process and summonses, and agrees that the failure of the Process
Agent to give any notice of any such service of process to the Company shall
not impair or affect the validity of such service or of any judgment based
thereon. Without limiting the foregoing, the Company hereby irrevocably
consents to the service of process in any suit, action or proceeding in such
courts by the mailing thereof by the Agent or any Lender by registered or
certified mail, postage prepaid, at its address set forth beneath its
signature hereto. Nothing herein shall in any way be deemed to limit the
ability of the Agent or any Lender to serve any such writs, process or
summonses in any other manner permitted by applicable law or to obtain
jurisdiction over the Company in such other jurisdictions, and in such manner,
as may be permitted by applicable law.
(d) The Company hereby irrevocably waives any objection that it may
now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement, the Notes or the other
Loan Documents brought in any such court and hereby further irrevocably waives
any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
11.11 WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE AGENT AND
THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
11.12 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
(a) The Company acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Company or one or more of its Subsidiaries (in connection with this
Agreement or otherwise) by any Lender or by one or more subsidiaries or
affiliates of such Lender and the Company hereby authorizes each Lender to share
any information delivered to such Lender by the Company and its Subsidiaries
pursuant to this Agreement, or in connection with the decision of such Lender to
enter into this Agreement, to any such subsidiary or affiliate, it being
understood that any such
CREDIT AGEEMENT
-121-
subsidiary or affiliate receiving such information shall be bound by the
provisions of clause (b) below as if it were a Lender hereunder. Such
authorization shall survive the repayment of the Loans and Reimbursement
Obligations and the termination of the Commitments.
(b) Each Lender and the Agent agree (on behalf of itself and each of
its affiliates, directors, officers, employees and representatives) to use
reasonable precautions to keep confidential, in accordance with their customary
procedures for handling confidential information of the same nature and in
accordance with safe and sound banking practices, any non-public information
supplied to it by any Obligor pursuant to this Agreement that is identified by
such Person as being confidential at the time the same is delivered to the
Lenders or the Agent, PROVIDED that nothing herein shall limit the disclosure of
any such information (i) to the extent required by statute, rule, regulation or
judicial process, (ii) to counsel for any of the Lenders or the Agent, (iii) to
any Lender's examiners, auditors or accountants, (iv) to the Agent, the
Syndication Agent named on the cover page of this Agreement or any other Lender,
(v) in connection with any litigation to which any one or more of the Lenders or
the Agent is a party, (vi) to a subsidiary or affiliate of such Lender as
provided in clause (a) above or (vii) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or participant (or
prospective assignee or participant) first executes and delivers to the
respective Lender a Confidentiality Agreement substantially in the form of
Exhibit G hereto; PROVIDED, further, that in no event shall any Lender or the
Agent be obligated or required to return any materials furnished by any Obligor.
The obligations of any assignee that has executed a Confidentiality Agreement in
the form of Exhibit G hereto shall be superseded by this Section 11.12 upon the
date upon which such assignee becomes a Lender hereunder pursuant to
Section 11.06 hereof.
11.13 INTENTION OF PARTIES. Notwithstanding anything contained
herein to the contrary, it is the intention of the parties hereto that this
Agreement and the Commitments and extensions of credit provided hereunder
represent a continuation, renewal and extension of, but not a novation or
discharge of, the credit facilities provided by the Existing Credit
Agreement; and the Company hereby represents and warrants to the Agent and
each Lender that after giving effect to the transactions contemplated hereby,
the security interests created by the Security Documents
CREDIT AGEEMENT
-122-
continue to constitute valid, perfected and first priority security interests
(subject only to Liens permitted by Section 8.06 hereof) securing all
obligations purported to be secured thereby, and each of the Security
Documents and the security interests provided for therein continue in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amended
and Restated Credit Agreement to be duly executed and delivered as of the day
and year first above written.
CREDIT AGEEMENT
-123-
COMPANY
SUIZA FOODS CORPORATION
By
--------------------------------
Title: Vice President
Address for Notices:
0000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
CREDIT AGEEMENT
-124-
LENDERS
FACILITY A LENDERS AND FACILITY B
LENDERS
FACILITY A. COMMITMENT THE FIRST NATIONAL BANK OF CHICAGO
$2,857,142.86
FACILITY B COMMITMENT
$8,571,428.57 By
--------------------------------
Title:
Lending Office for Base Rate Loans
and Eurodollar Loans:
The First National Bank of Chicago
1 First Xxxxxxxx Xxxxx
Xxxxx 0000, 00xx Xxxxx
Xxxxxxx, XX 00000
Address for Notices:
The First National Bank of Chicago
1 First Xxxxxxxx Xxxxx
Xxxxx 0000, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: April Yebd
Telecopier No.: (000) 000-0000
(000) 000-0000
Telephone No.: (000) 000-0000
CREDIT AGEEMENT
-125-
FACILITY A COMMITMENT FIRST UNION NATIONAL BANK
$2,857,142.86
Facility B Commitment
$8,571,428.57 By
--------------------------------
Title:
Lending Office for Base Rate Loans
and Eurodollar Loans:
First Union National Bank
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Address for Notices:
First Union National Bank
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Sana Alkoor - Suiza
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
CREDIT AGEEMENT
-126-
FACILITY A COMMITMENT BANKBOSTON, N.A.
$2,214,285.71
FACILITY B COMMITMENT By
$6,642,857.14 ---------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Bank of Boston, N.A.
000 Xxxxxxx Xxxxxx
Mail Code 01-09-04
Xxxxxx, XX 00000
Address for Notices:
Bank of Boston, N.A.
000 Xxxxxxx Xxxxxx
Mail Code 01-09-04
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-127-
FACILITY A COMMITMENT BHF BANK, AKTIENGESELLSCHAFT
$2,214,285.71
Facility B Commitment By
$6,642,857.14 ---------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
BHF Bank, A.G.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Address for Notices:
BHF Bank, A.G.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx Xxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-128-
FACILITY A COMMITMENT COOPERATIEVE CENTRALE
$2,214,285.71 RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
FACILITY B COMMITMENT By
$6,642,857.14 ---------------------------------
Title:
By
---------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland",
New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Address for Notices:
Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland",
New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Services
Department
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-129-
With a copy to:
Rabobank Nederland
One Galleria Tower
00000 Xxxx Xxxx, Xxxxx 0000
Xxxx Xxx 00
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-130-
FACILITY A COMMITMENT CREDIT LYONNAIS NEW YORK BRANCH
$2,214,285.71
FACILITY B COMMITMENT
$6,642,857.14 By
---------------------------------
Title:
Lending Office for Base Rate Loans
and Eurodollar Loans:
Credit Lyonnais New York Branch
c/o Credit Lyonnais Dallas
0000 Xxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxxx, Xxxxx 00000
Address for Notices:
Credit Lyonnais New York Branch
c/o Credit Lyonnais Dallas
0000 Xxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxx X'Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
CREDIT AGREEMENT
-131-
FACILITY A COMMITMENT FLEET NATIONAL BANK
$2,214,285.71
FACILITY B COMMITMENT By
$6,642,857.14 ---------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Fleet National Bank
1 Landmark Square
Mailstop CTFD 0752
Xxxxxxxx, XX 00000
Address for Notices:
Fleet National Bank
1 Landmark Square
Mailstop CTFD 0752
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-132-
FACILITY A COMMITMENT XXXXXXX XXXXX SENIOR FLOATING
$2,214,285.71 RATE FUND, INC.
FACILITY B COMMITMENT By
$6,642,857.14 ---------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Xxxxxxx Xxxxx Senior Floating
Rate Fund, Inc.
c/o Merrill Xxxxx Asset
Management
800 Scudders Mill Road - Area 1B
Xxxxxxxxxx, XX 00000
Address for Notices:
Xxxxxxx Xxxxx Senior Floating
Rate Fund, Inc.
000 Xxxxxxxx Xxxx Xxxx - Xxxx 0X
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
With a copy to:
MLAM Accounting
000 Xxxxxxx Xxxx - 0X
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-133-
FACILITY A COMMITMENT AMSOUTH BANK
$1,857,142.86
FACILITY B COMMITMENT By
$5,571,428.57 ---------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
AmSouth Bank
0000 0xx Xxxxxx, Xxxxx
Sonat Tower - 7th
Xxxxxxxxxx, XX 00000
Address for Notices:
AmSouth Bank
0000 0xx Xxxxxx, Xxxxx
Sonat Tower - 7th
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-134-
FACILITY A COMMITMENT BANCO POPULAR DE PUERTO RICO
$1,857,142.86
FACILITY B COMMITMENT
$5,571,428.57 By
---------------------------------
Title:
Lending Office for Base Rate Loans
and Eurodollar Loans:
Banco Popular de Puerto Rico
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
Banco Popular de Puerto Rico
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
CREDIT AGREEMENT
-135-
FACILITY A COMMITMENT BANK OF AMERICA ILLINOIS
$1,857,142.86
FACILITY B COMMITMENT
$5,571,428.57 By
---------------------------------
Title:
Lending Office for Base Rate Loans
and Eurodollar Loans:
Bank of America Illinois
000 X. XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Address for Notices:
Bank of America Illinois
000 X. XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Youmaura
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
CREDIT AGREEMENT
-136-
FACILITY A COMMITMENT THE BANK OF NOVA SCOTIA
$1,857,142.86
FACILITY B COMMITMENT
$5,571,428.57 By
---------------------------------
Title:
Lending Office for Base Rate Loans
and Eurodollar Loans:
The Bank of Nova Scotia
Atlanta Agency
000 Xxxxxxxxx Xxxxxx X.X.,
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Address for Notices:
The Bank of Nova Scotia
Atlanta Agency
000 Xxxxxxxxx Xxxxxx X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: F.C.H. Xxxxx
Senior Assistant Agent
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
The Bank of Nova Scotia
Houston Representative Xxxxxx
0000 Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Relationship Manager
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
CREDIT AGREEMENT
-137-
FACILITY A COMMITMENT CAISSE NATIONALE DE CREDIT AGRICOLE
$1,857,142.86
FACILITY B COMMITMENT
$5,571,428.57 By
----------------------------------------------
Title:
Lending Office for Base Rate Loans
and Eurodollar Loans:
Caisse Nationale de Credit Agricole
00 X. Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Address for Notices:
Caisse Nationale de Credit Agricole
00 X. Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
CREDIT AGREEMENT
-138-
FACILITY A COMMITMENT XXXXXX TRUST AND SAVINGS BANK
$1,857,142.86
FACILITY B COMMITMENT
$5,571,428.57 By
----------------------------------------------
Title:
Lending Office for Base Rate Loans
and Eurodollar Loans:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Address for Notices:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx/
Marieky Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000/7664
CREDIT AGREEMENT
-139-
FACILITY A COMMITMENT THE LONG-TERM CREDIT BANK OF JAPAN,
$1,857,142.86 LIMITED, NEW YORK BRANCH
FACILITY B COMMITMENT
$5,571,428.57 By
----------------------------------------------
Title:
Lending Office for Base Rate Loans
and Eurodollar Loans:
The Long-Term Credit Bank of Japan,
Limited, New York Branch
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Address for Notices:
The Long-Term Credit Bank of Japan,
Limited, New York Branch
Dallas Representative Xxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000 Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
CREDIT AGREEMENT
-140-
FACILITY A COMMITMENT MARINE MIDLAND BANK
$1,857,142.86
FACILITY B COMMITMENT
$5,571,428.57 By
----------------------------------------------
Title:
Lending Office for Base Rate Loans
and Eurodollar Loans:
Marine Midland Bank
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Address for Notices:
Marine Midland Bank
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
CREDIT AGREEMENT
-141-
FACILITY A COMMITMENT BANQUE PARIBAS
$1,042,857.15
FACILITY B COMMITMENT
$4,928,571.47 By
----------------------------------------------
Title:
By
----------------------------------------------
Title:
Lending Office for Base Rate Loans
and Eurodollar Loans:
Banque Paribas
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Address for Notices:
Banque Paribas
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
CREDIT AGREEMENT
-142-
FACILITY A COMMITMENT THE FUJI BANK, LIMITED,
$1,642,857.15 HOUSTON AGENCY
FACILITY B COMMITMENT
$4,928,571.47 By
----------------------------------------------
Title:
Lending Office for Base Rate Loans
and Eurodollar Loans:
The Fuji Bank, Limited,
Houston Agency
One Houston Center
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Address for Notices:
The Fuji Bank, Limited,
Houston Agency
One Houston Center
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx III
Vice President and Joint
Manager or
Xxxxx X. Xxxxxx
Senior Vice President
(000) 000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
CREDIT AGREEMENT
-143-
FACILITY A COMMITMENT THE BANK OF TOKYO -
$1,071,428.57 MITSUBISHI, LTD.
FACILITY B COMMITMENT
$3,214,285.71 By
----------------------------------------------
Title:
Lending Office for Base Rate Loans
and Eurodollar Loans:
The Bank of Tokyo -
Mitsubishi, Ltd.
0000 Xxxx Xxx.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Address for Notices:
The Bank of Tokyo -
Mitsubishi, Ltd.
0000 Xxxx Xxx.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
CREDIT AGREEMENT
-144-
FACILITY A COMMITMENT CIBC, INC.
$1,071,428.57
FACILITY B COMMITMENT
$3,214,285.71 By
----------------------------------------------
Title:
Lending Office for Base Rate Loans
and Eurodollar Loans:
CIBC, Inc.
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Address for Notices:
CIBC Wood Gundy Securities Corp.
Two Houston Center, Suite 1200
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
With a copy to:
CIBC Wood Gundy Securities Corp.
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx (Borrowings)
Xxx Xxxxxxx
(Other Notices)
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
(Xxxxxxx)
000-000-0000 (Xxxxxx)
CREDIT AGREEMENT
-145-
FACILITY A COMMITMENT COMMERZBANK AG,
$1,071,428.57 NEW YORK BRANCH
FACILITY B COMMITMENT By
$3,214,285.71 -----------------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Commerzbank AG,
New York Branch
2 World Financial Center
Xxx Xxxx, XX 00000
Address for Notices:
Commerzbank AG,
New York Branch
2 World Financial Center
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-146-
FACILITY A COMMITMENT COMPAGNIE FINANCIERE DE
$1,071,428.57 CIC ET DE L'UNION EUROPEENNE
FACILITY B COMMITMENT By
$3,214,285.71 -----------------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Compagnie Financiere de
CIC et de l'Union Europeenne
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Address for Notices:
Compagnie Financiere de
CIC et de l'Union Europeenne
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X'Xxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-147-
FACILITY A COMMITMENT CREDITANSTALT - BANKVEREIN
$1,071,428.57
FACILITY B COMMITMENT
$3,214,285.71 By
------------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Creditanstalt - Bankverein
Xxx Xxxxxxx Xxxxx, Xxx. 0000
Xxxxxxx, XX 00000
Address for Notices:
Creditanstalt - Bankverein
Xxx Xxxxxxx Xxxxx, Xxx. 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-148-
FACILITY A COMMITMENT HIBERNIA NATIONAL BANK
$1,071,428.57
FACILITY B COMMITMENT
$3,214,285.71 By
------------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Hibernia National Bank
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Address for Notices:
Hibernia National Bank
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-149-
FACILITY A COMMITMENT MELLON BANK, N.A.
$1,071,428.57
Facility B Commitment
$3,214,285.71 By
------------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Mellon Bank, N.A.
Three Mellon Bank Center
Room 152-2300
Xxxxxxxxxx, XX 00000
Attention: Loan Administrator
Telecopier No: 000-000-0000
Telephone No: 000-000-0000
Address for Notices:
Mellon Bank, N.A.
Three Mellon Bank Center
Room 152-2300
Xxxxxxxxxx, XX 00000
Attention: Loan Administrator
Telecopier No: 000-000-0000
Telephone No: 000-000-0000
With a copy to:
Mellon Bank, N.A.
One Boston Place
Room 024-006A
Xxxxxx, XX 00000
Attention: R. Xxxx Xxxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-150-
FACILITY A COMMITMENT THE MITSUBISHI TRUST AND BANKING
$1,071,428.57 CORPORATION, CHICAGO BRANCH
FACILITY B COMMITMENT
$3,214,285.71 By
------------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
The Mitsubishi Trust and Banking
Corporation, Chicago Branch
000 X. Xxxxxx Xx.
Xxxxx 0000
Xxxxxxx, XX 00000
Address for Notices:
The Mitsubishi Trust and Banking
Corporation, Chicago Branch
000 X. Xxxxxx Xx.
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-151-
FACILITY A COMMITMENT NATEXIS BANQUE
$1,071,428.57 (Previously Banque Francaise du
Commerce Exterieur)
FACILITY B COMMITMENT
$3,214,285.71 By
------------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
NATEXIS Banque
New York Branch
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
NATEXIS Banque
Southwest Representative Xxxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx XxXxxxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
With a copy to:
NATEXIS Banque
New York Branch
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Telecopier No.: 000-000-0000
CREDIT AGREEMENT
-152-
FACILITY A COMMITMENT NATIONAL CITY BANK OF KENTUCKY
$1,071,428.57
FACILITY B COMMITMENT
$3,214,285.71 By
------------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
National City Bank
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Address for Notices:
National City Bank
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-153-
FACILITY A COMMITMENT THE SUMITOMO TRUST & BANKING
$1,071,428.57 CO. LTD., NEW YORK BRANCH
FACILITY B COMMITMENT
$3,214,285.71 By
------------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
The Sumitomo Trust & Banking
Co. Ltd., New York Branch
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Address for Notices:
The Sumitomo Trust & Banking
Co. Ltd., New York Branch
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopier No.: 212-418-4848
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-154-
FACILITY A COMMITMENT XXXXX FARGO BANK (TEXAS), N.A.
$1,071,428.57
FACILITY B COMMITMENT
$3,214,285.71 By
------------------------------------
Title:
Lending Office for Base
Rate Loans and
Eurodollar Loans:
Xxxxx Fargo Bank (Texas), N.A.
0000 Xxxx Xxx., Xxxxx 000
Xxxxxx, XX 00000
Address for Notices:
Xxxxx Fargo Bank (Texas), N.A.
0000 Xxxx Xxx., Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Telecopier No.: 214-740=1543
Telephone No.: 000-000-0000
CREDIT AGREEMENT
-155-
AGENT
FIRST UNION NATIONAL BANK,
as Agent
By
----------------------------------
Title:
Address for Notices to
the Agent:
First Union National Bank
000 X. Xxxxxxx Xxxxxx XX-00
Xxxxxxxxx, XX 00000-0000
Attention: Syndication Agency
Services
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
CREDIT AGREEMENT
-156-
CONSENT AND AGREEMENT
Each of the undersigned Subsidiary Guarantors hereby (1) consents to the terms
of the Second Restated Supplemental Credit Agreement and this Agreement,
(2) agrees that each reference to the "Credit Agreement" or the "Supplemental
Credit Agreement" (if any) in each Security Document to which such Subsidiary
Guarantor is a party shall be a reference to this Agreement and the Second
Restated Supplemental Credit Agreement, respectively, and (3) confirms its
obligations under each Security Document to which it is a party after the Second
Restated Supplemental Credit Agreement and this Agreement become effective on
the Effective Date.
REDDY ICE CORPORATION SUIZA FRUIT CORPORATION
By By
---------------------------- ----------------------------
Title: Title:
XXXXX FARMS, INC. XXXX PLASTICS MANUFACTURING
CORP.
By By
---------------------------- ----------------------------
Title: Title:
SUIZA MANAGEMENT CORPORATION MODEL DAIRY, INC.
By By
---------------------------- ----------------------------
Title: Title:
SUIZA DAIRY CORPORATION SWISS DAIRY CORPORATION
By By
---------------------------- ----------------------------
Title: Title:
DAIRY FRESH, INC.
By
----------------------------
Title:
CREDIT AGREEMENT
