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EXHIBIT 10.1
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF JANUARY 14, 2000
AMONG
DEL MONTE CORPORATION,
VARIOUS FINANCIAL INSTITUTIONS,
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT,
BANKERS TRUST COMPANY,
AS DOCUMENTATION AGENT,
AND
FLEET BUSINESS CREDIT CORPORATION
AND
GENERAL ELECTRIC CAPITAL CORPORATION,
AS CO-AGENTS
ARRANGED BY
BANC OF AMERICA SECURITIES LLC
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***Indicates confidential material that has been omitted pursuant to a request
for confidential treatment and filed separately with the Securities and
Exchange Commission.
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS.....................................1
1.1 Certain Defined Terms.........................................................1
1.2 Other Interpretive Provisions................................................37
1.3 Accounting Principles........................................................38
ARTICLE II
THE CREDITS....................................39
2.1 Amounts and Terms of Commitments.............................................39
(a) The Term A Credit...............................................39
(b) The Term B Credit...............................................39
(c) The Revolving Credit............................................39
2.2 Loan Accounts................................................................39
2.3 Procedure for Borrowing......................................................40
2.4 Conversion and Continuation Elections........................................41
2.5 Swingline Loans..............................................................42
2.6 Termination or Reduction of Revolving Commitments............................45
2.7 Optional Prepayments.........................................................45
2.8 Mandatory Prepayments of Loans...............................................46
2.9 Repayment....................................................................49
(a) The Term A Credit...............................................49
(b) The Term B Credit...............................................49
(c) The Revolving Credit............................................50
2.10 Interest.....................................................................50
2.11 Fees.........................................................................51
(a) Arranger and Agency Fees........................................51
(b) Commitment Fees.................................................51
2.12 Computation of Fees and Interest.............................................51
2.13 Payments by the Company......................................................52
2.14 Payments by the Lenders to the Administrative Agent..........................52
2.15 Sharing of Payments, Etc.....................................................53
2.16 Optional Increase............................................................54
ARTICLE III
THE LETTERS OF CREDIT...............................56
3.1 The Letter of Credit Subfacility.............................................56
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3.2 Issuance, Amendment and Extension of Letters of Credit.......................58
3.3 Risk Participations, Drawings and Reimbursements.............................60
3.4 Repayment of Participations..................................................61
3.5 Role of the Issuing Lender...................................................62
3.6 Obligations Absolute.........................................................63
3.7 Cash Collateral Pledge.......................................................64
3.8 Letter of Credit Fees........................................................64
3.9 Uniform Customs and Practice.................................................64
3.10 Non-Dollar Letters of Credit................................................64
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY.....................67
4.1 Taxes........................................................................67
4.2 Illegality...................................................................68
4.3 Increased Costs and Reduction of Return......................................69
4.4 Funding Losses...............................................................69
4.5 Inability to Determine Rates.................................................70
4.6 Certificates of Lenders......................................................71
4.7 Substitution of Lenders......................................................71
4.8 Survival.....................................................................71
ARTICLE V
CONDITIONS PRECEDENT................................71
5.1 Conditions to Effectiveness. ...............................................71
(a) Credit Agreement................................................71
(b) Incumbency......................................................72
(c) Organization Documents; Good Standing...........................72
(d) Legal Opinions..................................................72
(e) Notes...........................................................72
(f) Payment of Fees.................................................72
(g) Confirmation....................................................72
(h) Certificate.....................................................72
(i) Other Documents.................................................73
5.2 Conditions to All Credit Extensions..........................................73
(a) Notice, Application.............................................73
(b) Continuation of Representations and Warranties..................73
(c) No Existing Default.............................................73
ARTICLE VI
REPRESENTATIONS AND WARRANTIES...........................74
6.1 Corporate Existence and Power................................................74
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6.2 Corporate Authorization; No Contravention....................................74
6.3 Governmental Authorization...................................................75
6.4 Binding Effect...............................................................75
6.5 Litigation...................................................................75
6.6 No Default...................................................................75
6.7 ERISA Compliance.............................................................75
6.8 Use of Proceeds; Margin Regulations..........................................76
6.9 Title to Properties..........................................................76
6.10 Taxes.......................................................................76
6.11 Financial Condition.........................................................77
6.12 Regulated Entities..........................................................77
6.13 No Burdensome Restrictions..................................................77
6.14 Copyrights, Patents, Trademarks and Licenses, etc...........................77
6.15 Subsidiaries................................................................78
6.16 Insurance...................................................................78
6.17 Solvency, etc...............................................................78
6.18 Real Property...............................................................78
6.19 Swap Obligations............................................................78
6.20 Senior Indebtedness.........................................................79
6.21 Environmental Warranties....................................................79
6.22 Year 2000...................................................................80
6.23 Full Disclosure.............................................................80
ARTICLE VII
AFFIRMATIVE COVENANTS..............................81
7.1 Financial Statements.........................................................81
7.2 Certificates; Other Information..............................................82
7.3 Notices......................................................................82
7.4 Preservation of Corporate Existence, Etc.....................................84
7.5 Maintenance of Property......................................................84
7.6 Insurance....................................................................84
7.7 Payment of Obligations.......................................................84
7.8 Compliance with Laws.........................................................84
7.9 Compliance with ERISA........................................................85
7.10 Inspection of Property and Books and Records................................85
7.11 Interest Rate Protection....................................................85
7.12 Environmental Covenant......................................................86
7.13 Use of Proceeds.............................................................86
7.14 Further Assurances..........................................................86
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ARTICLE VIII
NEGATIVE COVENANTS................................88
8.1 Limitation on Liens..........................................................88
8.2 Disposition of Assets........................................................90
8.3 Consolidations and Mergers...................................................91
8.4 Loans and Investments........................................................91
8.5 Limitation on Indebtedness...................................................93
8.6 Transactions with Affiliates.................................................95
8.7 Use of Proceeds..............................................................95
8.8 Contingent Obligations.......................................................95
8.9 Joint Ventures...............................................................95
8.10 Lease Obligations...........................................................96
8.11 Minimum Fixed Charge Coverage...............................................96
8.12 Minimum Adjusted Net Worth..................................................96
8.13 Maximum Senior Debt Ratio...................................................97
8.14 Maximum Total Debt Ratio....................................................97
8.15 Maximum Capital Expenditures................................................97
8.16 Restricted Payments.........................................................98
8.17 ERISA......................................................................100
8.18 Limitations on Sale and Leaseback Transactions.............................100
8.19 Limitation on Restriction of Subsidiary Dividends and Distributions........100
8.20 Inconsistent Agreements....................................................101
8.21 Change in Business.........................................................101
8.22 Amendments to Certain Documents............................................101
8.23 Fiscal Year................................................................101
8.24 Limitation on Issuance of Guaranty Obligations.............................101
ARTICLE IX
EVENTS OF DEFAULT................................102
9.1 Event of Default............................................................102
(a) Non-Payment....................................................102
(b) Representation or Warranty.....................................102
(c) Specific Defaults..............................................102
(d) Other Defaults.................................................102
(e) Cross-Default..................................................103
(f) Insolvency; Voluntary Proceedings..............................103
(g) Involuntary Proceedings........................................103
(h) ERISA..........................................................104
(i) Monetary Judgments.............................................104
(j) Non-Monetary Judgments.........................................104
(k) Change of Control..............................................104
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(l) Guarantor Defaults.............................................104
(m) Collateral Documents, etc......................................104
9.2 Remedies....................................................................105
9.3 Rights Not Exclusive........................................................105
ARTICLE X
THE AGENTS...................................105
10.1 Appointment and Authorization..............................................105
10.2 Delegation of Duties.......................................................106
10.3 Liability of Administrative Agent..........................................106
10.4 Reliance by Administrative Agent...........................................107
10.5 Notice of Default..........................................................107
10.6 Credit Decision............................................................108
10.7 Indemnification of Agents..................................................108
10.8 Administrative Agent in Individual Capacity................................108
10.9 Successor Administrative Agent.............................................109
10.10 Withholding Tax...........................................................109
10.11 Collateral Matters........................................................111
ARTICLE XI
MISCELLANEOUS..................................113
11.1 Amendments and Waivers.....................................................113
11.2 Notices....................................................................115
11.3 No Waiver; Cumulative Remedies.............................................116
11.4 Costs and Expenses.........................................................116
11.5 Company Indemnification....................................................116
11.6 Payments Set Aside.........................................................117
11.7 Successors and Assigns.....................................................117
11.8 Assignments, Participations, etc...........................................118
11.9 Confidentiality............................................................120
11.10 Set-off...................................................................120
11.11 Automatic Debits of Fees..................................................121
11.12 Notification of Addresses, Lending Offices, Etc...........................121
11.13 Counterparts..............................................................121
11.14 Severability..............................................................121
11.15 No Third Parties Benefited................................................121
11.16 Governing Law and Jurisdiction............................................121
11.17 Waiver of Jury Trial......................................................122
11.18 Entire Agreement..........................................................122
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SCHEDULES
Pricing Schedule
Schedule 1.1 Commitments, Total Percentages, Revolving Percentages,
Term A Percentages, Term B Percentages
Schedule 2.8 Assets Held For Sale
Schedule 6.5 Litigation
Schedule 6.11 Permitted Liabilities
Schedule 6.14 Material Intellectual Property
Schedule 6.15(a) Subsidiaries of the Company
Schedule 6.15(b) Equity Investments of the Company
Schedule 6.16 Insurance Matters
Schedule 6.18 Real Property
Schedule 6.21 Environmental Matters
Schedule 8.1 Liens
Schedule 8.4 Permitted Investments
Schedule 8.5(d) Existing Indebtedness
Schedule 8.8 Contingent Obligations
Schedule 11.2 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Promissory Note
Exhibit E-1 Form of Security Agreement (Company and Parent)
Exhibit E-2 Form of Subsidiary Security Agreement
Exhibit F-1 Form of Amended and Restated Parent Guaranty
Exhibit F-2 Form of Subsidiary Guaranty
Exhibit G-1 Form of Parent Pledge Agreement
Exhibit G-2 Form of Company Pledge Agreement
Exhibit G-3 Form of Subsidiary Pledge Agreement
Exhibit H-1 Form of Company Solvency Certificate
Exhibit H-2 Form of Parent Solvency Certificate
Exhibit I-1 Form of Opinion of special counsel to the Company, Parent and
Xxxx Mac
Exhibit I-2 Form of Opinion of Xxxxxxx X. Xxxxxxx, General Counsel to the
Company, Parent and Xxxx Mac
Exhibit J [Reserved]
Exhibit K Form of Assignment and Xxxxxxxxxx
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Exhibit L Form of Lender Certificate
Exhibit M Form of Borrowing Base Certificate
Exhibit N Form of Bailee's Consent
Exhibit O Form of Landlord's Consent
Exhibit P Form of Warehouseman's Consent
Exhibit Q Intercreditor Agreement
Exhibit R Form of Intellectual Property License
Exhibit S Form of Environmental Indemnity
Exhibit T Form of Confirmation
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of
January 14, 2000, among DEL MONTE CORPORATION, the several financial
institutions from time to time party to this Agreement, BANK OF AMERICA, N.A.
(formerly known as Bank of America National Trust and Savings Association), as
administrative agent for the Lenders, BANKERS TRUST COMPANY, as documentation
agent for the Lenders, and FLEET BUSINESS CREDIT CORPORATION and GENERAL
ELECTRIC CAPITAL CORPORATION, as co-agents for the Lenders.
W I T N E S S E T H:
WHEREAS, the Company, the Administrative Agent and the Lenders are
parties to that certain Amended and Restated Credit Agreement dated as of
December 17, 1997 (the "Existing Credit Agreement"), which amended and restated
a Credit Agreement, dated as of April 18, 1997 (the "Original Credit
Agreement"); and
WHEREAS, the Company, the Administrative Agent and the Lenders desire
that the Existing Credit Agreement be amended and restated on the terms and
conditions set forth herein to, among other things, provide for, at the option
of the Company, at any time during the term of this Agreement, one or more
increases in the aggregate amount of the Revolving Commitments, or the creation
of commitments to make Additional Term B Loans, with the aggregate amount of all
such increases and additional commitments not to exceed $100,000,000 and set
forth the terms and conditions under which the Lenders hereafter will extend
credit to the Company; it being the intention of the Company, the Administrative
Agent and the Lenders that this Agreement and the execution and delivery of any
substituted promissory notes not effect a novation of the obligations of the
Company to the Lenders under the Existing Credit Agreement but merely a
restatement and, where applicable, a substitution of the terms governing and
evidencing such obligations hereafter;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the Existing Credit Agreement is amended and
restated to read in its entirety, and the parties agree, as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. In this Agreement, including the foregoing
preamble and recitals, the following terms have the following meanings:
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Account Debtor means any Person who is obligated to the Company or any
Domestic Subsidiary under, with respect to, or on account of an Account
Receivable.
Account Receivable means, with respect to any Person, any right of such
person to payment for goods sold or leased or for services rendered, whether or
not evidenced by an instrument or chattel paper and whether or not yet earned by
performance.
Acquired Indebtedness means mortgage Indebtedness or Indebtedness with
respect to capital leases of a Person existing at the time such Person became a
Subsidiary or assumed by the Company or a Subsidiary in an Acquisition permitted
hereunder (and not created or incurred in connection with or in anticipation of
such Acquisition); provided that such Indebtedness is purchase money
Indebtedness or Indebtedness with respect to a capital lease, as the case may
be, and was incurred by such Person to finance the acquisition of property or,
in either case, such Indebtedness was incurred to refinance such Indebtedness,
and the principal amount of such Indebtedness does not exceed the purchase price
of such property.
Acquisition means any transaction or series of related transactions for
the purpose of, or resulting directly or indirectly in, (a) the acquisition of
all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary) provided that the Company or a Subsidiary is the surviving
entity.
Acquisition Prospect means each Person whose stock or assets is
intended to be acquired in an Acquisition permitted under subsection 8.4(i)
including, in each case, the assets and the liabilities thereof.
Additional Term B Loan - see subsection 2.1(b).
Administrative Agent means BofA in its capacity as administrative agent
for the Lenders hereunder, and any successor administrative agent arising under
Section 10.9.
Affiliate means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such other Person, whether
through the ownership of voting securities or membership interests, by contract,
or otherwise. Without limiting the foregoing, any Person which is an officer,
director or shareholder of the Company, or a member of the immediate family of
any such officer, director or shareholder, shall be deemed to be an Affiliate of
the Company.
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Agent-Related Persons means the Agent and any successor administrative
agent arising under Section 10.9, the Issuing Lender and any successor Issuing
Lender, and the Swingline Lender and any successor Swingline Lender, whether or
not acting in such capacities, together with their respective Affiliates
(including the Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
Agent's Payment Office means the address for payments set forth on
Schedule 11.2 in relation to the Administrative Agent, or such other address as
the Administrative Agent may from time to time specify.
Agents means the Administrative Agent, the Documentation Agent and the
Co- Agents.
Agreement means this Second Amended and Restated Credit Agreement.
Agreement Currency - see subsection 3.10(f).
Applicable Base Rate Margin - see the Pricing Schedule.
Applicable Offshore Rate Margin - see the Pricing Schedule.
Arranger means Banc of America Securities LLC, a Delaware limited
liability company.
Assets Held For Sale means assets of the Company and its Subsidiaries
listed on Schedule 2.8.
Assignee - see subsection 11.8(a).
Assignment and Acceptance - see subsection 11.8(a).
Attorney Costs means and includes all reasonable fees and disbursements
of any law firm or other external counsel and, without duplication of effort,
the allocated cost of internal legal services and all reasonable disbursements
of internal counsel.
Bailee's Consent means a document substantially in the form of Exhibit
N, with appropriate insertions, or such other form as shall be acceptable to the
Administrative Agent or Required Revolving Lenders.
Bankruptcy Code means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.).
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Base Rate means, for any day, the higher of: (a) 0.50% per annum above
the latest Federal Funds Rate; and (b) the rate of interest in effect for such
day as publicly announced from time to time by BofA in San Francisco, California
as its "reference rate." (The "reference rate" is a rate set by BofA based upon
various factors including BofA's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above or below such announced rate.) Any change
in the reference rate announced by BofA shall take effect at the opening of
business on the day specified in the public announcement of such change.
Base Rate Loan means a Loan that bears interest based on the Base Rate.
BofA means Bank of America, N.A., a national banking association.
Borrowing means a borrowing hereunder consisting of (a) Revolving
Loans, Term A Loans or Term B Loans of the same Type made to the Company on the
same day by the Lenders and, in the case of Offshore Rate Loans, having the same
Interest Period, or (b) a Swingline Loan made to the Company by the Swingline
Lender, in each case pursuant to Article II.
Borrowing Base means an amount equal to the total of (a) 85% of the
unpaid amount (net of such reserves and allowances as the Administrative Agent
deems necessary in its sole reasonable discretion and in accordance with its
customary commercial lending practices) of all Eligible Accounts Receivable plus
(b) 70% of the value of all Eligible Inventory consisting of finished goods
(whether labeled or unlabeled) or bulk tomato paste, valued at the lower of cost
or market (net of such reserves and allowances as the Administrative Agent deems
necessary in its sole reasonable discretion and in accordance with its customary
commercial lending practices) plus (c) 20% of the value of all other Eligible
Inventory, valued at the lower of cost and market (net of such reserves and
allowances as the Administrative Agent deems necessary in its sole reasonable
discretion and in accordance with its customary commercial lending practices)
plus (d) an amount equal to (x) the aggregate cash purchase price paid by the
Company and its Subsidiaries (including related fees and expenses and amounts
paid to refinance Indebtedness in connection therewith but excluding the amount
of cash purchase price funded with the proceeds of capital contributions to, or
new equity sold by, the Company) in Acquisitions permitted under subsection
8.4(i) minus (y) an amount equal to the average calendar month end amount of the
value of accounts receivable and inventory of the business acquired in each such
Acquisition (to the extent the same would have been eligible for inclusion in
the Borrowing Base assuming such Acquisition had occurred a year earlier) for
the year preceding such Acquisition, as it shall be reasonably determined
by a Responsible Officer, in each case multiplied by the applicable advance
rate, less (e) the net aggregate payables owing to growers or other suppliers of
crops or produce at such time, to the extent that such payables are subject to
statutory liens, trusts or priority claims (provided, that if the Company is
holding
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any Inventory at premises leased by the Company or with a bailee or
warehouseman and with respect to which the Company shall not have obtained a
Landlord's Consent, Bailee's Consent or Warehouseman's Consent, as applicable,
the Company may request that a reserve equal to all rent payable by the Company
with respect to such property for one year from the date of determination of the
reserve (in the case of leased premises) or such other reserve in respect of
storage, transportation and other charges as shall be acceptable to the
Administrative Agent or Required Revolving Lenders (in the case of Inventory
with a bailee or warehouseman) be established, in which case such reserve shall
be, if any Inventory located at such premises is to be included in the Borrowing
Base, deducted from the Borrowing Base and such Inventory shall not, solely by
virtue of clause (3), clause (4) or clause (6) of the definition of "Eligible
Inventory," be deemed ineligible). Nothing in this definition providing for
reserves on Accounts Receivable or Inventory shall be construed as requiring the
Company to set up reserves for financial reporting purposes.
Borrowing Base Certificate means a certificate substantially in the
form of Exhibit M.
Borrowing Date means any date on which a Borrowing occurs under Section
2.3.
BTCo. means Bankers Trust Company, a New York banking corporation.
Business Day means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City or San Francisco are authorized or
required by law to close and, if the applicable Business Day relates to any
Offshore Rate Loan, means such a day on which dealings are carried on in the
applicable offshore Dollar interbank market.
Capital Adequacy Regulation means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, of any central bank or
Governmental Authority in each case regarding capital adequacy of any bank or of
any Person controlling a bank.
Capital Expenditures means all expenditures which, in accordance with
GAAP, would be required to be capitalized and shown on the consolidated balance
sheet of the Company, but excluding expenditures made in connection with the
replacement, substitution or restoration of assets to the extent financed (i)
from insurance proceeds (or other similar recoveries) paid on account of the
loss of or damage to the assets being replaced or restored or (ii) with awards
of compensation arising from the taking by eminent domain or condemnation of the
assets being replaced.
Cash Collateralize means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, the Issuing
Lender and the Revolving Lenders, as additional collateral for the L/C
Obligations, cash or deposit account balances
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pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the Issuing Lender (which documents are hereby
consented to by the Lenders). Derivatives of such term shall have corresponding
meanings. The Company hereby grants the Administrative Agent, for the benefit of
the Administrative Agent, the Issuing Lender and the Revolving Lenders, a
security interest in all such cash and deposit account balances. Cash collateral
shall be maintained in blocked, non-interest bearing deposit accounts at BofA.
Cash Equivalent Investments shall mean (i) securities issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof) having maturities of
not more than three years from the date of acquisition, (ii) marketable direct
obligations issued by any State of the United States of America or any local
government or other political subdivision thereof rated (at the time of
acquisition of such security) at least AA by Standard & Poor's Ratings Service,
a division of The XxXxxx-Xxxx Companies, Inc. ("S&P") or the equivalent thereof
by Xxxxx'x Investors Service, Inc. ("Moody's") having maturities of not more
than one year from the date of acquisition, (iii) time deposits (including
eurodollar time deposits), certificates of deposit (including eurodollar
certificates of deposit) and bankers' acceptances of (x) any Lender or any
Affiliate of any Lender, (y) any commercial bank of recognized standing either
organized under the laws of the United States (or any State or territory
thereof) or another country (or a political subdivision thereof) which is a
member of the Organization for Economic Cooperation and Development and acting
through a branch or agency located in the United States, in either case having
capital and surplus in excess of $250,000,000 or (z) any bank whose short-term
commercial paper rating (at the time of acquisition of such security) by S&P is
at least A-1 or the equivalent thereof (any such bank, an "Approved Bank"), in
each case with maturities of not more than six months from the date of
acquisition, (iv) commercial paper and variable or fixed rate notes issued by
any Lender or Approved Bank or by the parent company of any Lender or Approved
Bank and commercial paper and variable rate notes issued by, or guaranteed by,
any industrial or financial company with a short-term commercial paper rating
(at the time of acquisition of such security) of at least A-1 or the equivalent
thereof by S&P or at least P-1 or the equivalent thereof by Moody's, or
guaranteed by any industrial company with a long-term unsecured debt rating (at
the time of acquisition of such security) of at least AA or the equivalent
thereof by S&P or at least Aa or the equivalent thereof by Moody's and in each
case maturing within one year after the date of acquisition and (v) repurchase
agreements with any Lender or any primary dealer maturing within one year from
the date of acquisition that are fully collateralized by investment instruments
that would otherwise be Cash Equivalent Investments; provided that the terms of
such repurchase agreements comply with the guidelines set forth in the Federal
Financial Institutions Examination Council Supervisory Policy -- Repurchase
Agreements of Depository Institutions With Securities Dealers and Others, as
adopted by the Comptroller of the Currency on October 31, 1985.
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CERCLA means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980.
CERCLIS means the Comprehensive Environmental Response Compensation
Liability Information System List.
Change of Control means (i) (A) any Person or group of related persons
for purposes of Section 13(d) of the Exchange Act (a "Group") (other than TPG
Partners or its Affiliates) shall become the owner, directly or indirectly,
beneficially or of record, of shares representing 30% or more of the aggregate
ordinary voting power represented by the issued and outstanding capital stock
(the "Voting Stock") of the Parent and (B) TPG Partners and its Affiliates shall
beneficially own, directly or indirectly, in the aggregate a lesser percentage
of the Voting Stock of the Parent than such Person or Group, (ii) the
replacement of a majority of the Board of Directors of the Parent over a
two-year period from the directors who constituted the Board of Directors of the
Parent at the beginning of such period, and such replacement shall not have been
approved by a vote of at least a majority of the Board of Directors of the
Parent then still in office who either were members of such Board of Directors
at the beginning of such period or whose election as a member of such Board of
Directors was previously so approved, (iii) the failure of the Parent to own
100% of the issued and outstanding capital stock of the Company free and clear
of all Liens (other than Permitted Liens of the type described in subsection
8.1(b), (c) or (g)), (iv) while any Subordinated Notes are outstanding, any
"Change of Control" as defined in the Subordinated Indenture or, while any
Qualified Notes are outstanding, any "Change of Control" as defined in any
Qualified Indenture or any other similar event, regardless of how designated, if
the occurrence of such event would require the Company to redeem or repurchase
any Qualified Notes prior to their expressed maturity or (v) while any Parent
Discount Notes are outstanding, any "Change of Control" as defined in the Parent
Discount Indenture or in any other instrument governing the Parent Discount
Notes or, while any Qualified Parent Notes are outstanding, any "Change of
Control" as defined in any Qualified Parent Indenture or any other similar
event, regardless of how designated, if the occurrence of such event would
require Parent, pursuant to any Qualified Parent Indenture, to redeem or
repurchase any Qualified Parent Notes prior to their expressed maturity.
Closing Date means April 18, 1997.
Co-Agents means General Electric Capital Corporation and Fleet Business
Credit Corporation in their capacities as co-agents for the Lenders.
Code means the Internal Revenue Code of 1986.
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Collateral means any property of Parent, the Company or any Domestic
Subsidiary upon which a security interest in favor of the Administrative Agent
for the benefit of the Lender Parties is purported to be granted pursuant to any
Collateral Document.
Collateral Document means the Security Agreements, each Copyright
Security Agreement, the Intellectual Property License, each Trademark Security
Agreement, each Patent Security Agreement, each Pledge Agreement, each Mortgage
and any other document pursuant to which collateral securing the liabilities of
the Company, Parent or any Subsidiary under any Loan Document is granted or
pledged to the Administrative Agent for the benefit of itself and the Lenders.
Commercial Letter of Credit means any Letter of Credit which is
drawable upon presentation of a sight draft and other documents evidencing the
sale or shipment of goods purchased by the Company in the ordinary course of
business.
Commitment means, as to each Lender, such Lender's Revolving Commitment
and any Term B Commitment as may from time to time be committed to pursuant to
Section 2.16.
Commitment Date - see subsection 2.16(b).
Commitment Fee Rate - see the Pricing Schedule.
Commitment Increase - see subsection 2.16(a).
Common Stock means the common stock, par value $1.00 per share, of the
Company.
Company means Del Monte Corporation, a New York corporation and a
Wholly-Owned Subsidiary of Parent.
Company Pledge Agreement means the Company Pledge Agreement, dated as
of the Closing Date, between the Company and the Agent, in the form of Exhibit
G-2.
Compliance Certificate means a certificate substantially in the form of
Exhibit C.
Computation Period means, except as otherwise expressly provided
herein, any period of four consecutive fiscal quarters and in any case ending on
the last day of a fiscal quarter.
Consolidated Net Income means, with respect to Parent and its
Subsidiaries for any period, the net income (or loss) of Parent and its
Subsidiaries on a consolidated basis for such period. Notwithstanding the
foregoing, "Consolidated Net Income" shall be calculated without giving effect
to any charges arising from any purchase accounting valuation adjustments over
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17
historical cost of the Person or assets acquired, as required or permitted by
Accounting Principles Board Opinion Nos. 16 and 17.
Contadina Acquisition means the acquisition by the Company in December
1997 of the assets constituting the Contadina canned tomato business of Nestle
USA.
Contingent Obligation means, as to any Person, any direct or indirect
liability of such Person, whether or not contingent, with or without recourse:
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligation") of another Person (the "primary obligor"),
including any obligation of such Person (i) to purchase, repurchase or otherwise
acquire such primary obligation or any security therefor, (ii) to advance or
provide funds for the payment or discharge of any primary obligation, or to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency or any balance sheet item, level of income
or financial condition of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
primary obligation of the ability of the primary obligor to make payment of such
primary obligation, or (iv) otherwise to assure or hold harmless the holder of
any primary obligation against loss in respect thereof (each, a "Guaranty
Obligation"); (b) with respect to any Surety Instrument (other than any Letter
of Credit) issued for the account of such Person or as to which such Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered; or (d) in respect of any Swap Contract. The amount of any
Contingent Obligation shall, (1) in the case of Guaranty Obligations, be deemed
equal to the stated or determinable amount of the primary obligation in respect
of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof,
(2) in the case of Swap Contracts, be equal to the Swap Termination Value and
(3) in the case of other Contingent Obligations, be equal to the maximum
reasonably anticipated liability in respect thereof.
Contractual Obligation means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
Conversion/Continuation Date means any date on which, under Section
2.4, the Company (a) converts Loans of one Type to the other Type or (b)
continues as Offshore Rate Loans, but with a new Interest Period, Offshore Rate
Loans having Interest Periods expiring on such date.
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Copyright Security Agreement means a copyright security agreement in
the form attached to a Security Agreement.
Designated Proceeds - see subsection 2.8(a).
Documentation Agent means BTCo., in its capacity as documentation agent
for the Lenders.
Dollar Amount means, in relation to any Indebtedness (i) denominated in
Dollars, the amount of such Indebtedness, and (ii) denominated in a currency
other than Dollars, the Dollar Equivalent of the amount of such Indebtedness on
the last day of the immediately preceding calendar month.
Dollar Equivalent means, in relation to an amount denominated in a
currency other than Dollars, the amount of Dollars which could be purchased with
such amount at the prevailing foreign exchange spot rate.
Dollars and $ mean lawful money of the United States.
Domestic Subsidiary means each Subsidiary other than a Foreign
Subsidiary.
EBITDA means, as to any Person for any Computation Period, the sum of
(a) Consolidated Net Income of such Person for such period excluding,
to the extent reflected in determining such Consolidated Net Income,
extraordinary gains and losses for such period, plus
(b) to the extent deducted in determining Consolidated Net Income and
without duplication, Interest Expense, income tax expense, depreciation and
amortization (including amortization of goodwill and other intangible assets) of
such Person for such period, non-cash charges and losses from sales of assets
other than Inventory sold in the ordinary course of business (provided that in
the event cash expenditures are made in such Computation Period to reduce any
non-cash charges established in such Computation Period or a prior Computation
Period, such cash expenditures shall be deducted to calculate EBITDA for such
Computation Period), minus
(c) to the extent reflected in determining Consolidated Net Income and
without duplication, non-cash credits and gains of such Person from sales of
assets other than Inventory sold in the ordinary course of business (provided
that in the event cash payments are received in such Computation Period to
offset any non-cash credits established in such Computation
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Period or a prior Computation Period, such cash payments shall be added to
calculate EBITDA for such Computation Period), plus
(d) in the case of Parent, to the extent deducted in determining
Consolidated Net Income of Parent and without duplication, management incentive
payments in connection with the DMFC Recapitalization (as defined in the
Existing Credit Agreement) and other fees and expenses in connection with the
DMFC Recapitalization, the Contadina Acquisition, the amendment and restatement
of the Existing Credit Agreement and Acquisitions permitted under subsection
8.4(i);
provided that for purposes of calculating EBITDA of Parent for any period, the
EBITDA (as calculated pursuant to clauses (a), (b), (c) and (d) above) of any
Person, or attributable to any assets, acquired by the Company or any Subsidiary
during such period shall be included on a pro forma basis for such period
(assuming the consummation of each such acquisition and the incurrence or
assumption of any Indebtedness in connection therewith occurred on the first day
of such period, but without any adjustment for expected cost savings or other
synergies) if (i) either (x) the audited consolidated balance sheet of such
acquired Person and its consolidated Subsidiaries as at the end of the fiscal
year of such Person preceding the acquisition of such Person and the related
audited consolidated statements of income, stockholders' equity and cash flows
for such fiscal year have been provided to the Administrative Agent and the
Lenders and have been reported on without a qualification arising from the scope
of the audit or a "going concern" or like qualification or exception or (y) such
other financial information furnished to the Lenders with respect to such period
and such acquisition has been found acceptable by the Required Lenders and (ii)
either (x) any subsequent unaudited financial statements for such Person for the
period prior to the acquisition of such Person were prepared on a basis
consistent with such audited financial statements, have been provided to the
Administrative Agent and the Lenders and have been reported on without a
qualification arising from the scope of the audit or a "going concern" or like
qualification or (y) such other financial information furnished to the Lenders
with respect to such period and such acquisition has been found acceptable by
the Required Lenders.
Effective Amount means, (a) with respect to any Revolving Loans,
Swingline Loans and Term Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any Borrowings and prepayments or
repayments of Revolving Loans, Swingline Loans and Term Loans occurring on such
date, and (b) with respect to any outstanding L/C Obligations on any date (i)
the amount of such L/C Obligations on such date after giving effect to any
Issuances of Letters of Credit occurring on such date, (ii) the amount of any
undrawn Commercial Letters of Credit which have expired less than 15 days prior
to such date and (iii) any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letter of Credit or
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any reduction in the maximum amount available for drawing under Letters of
Credit taking effect on such date.
Eligible Account Receivable means an Account Receivable owing to the
Company or any Domestic Subsidiary which meets the following requirements:
(1) it arises from the sale of goods or the rendering of services by
the Company or such Domestic Subsidiary; and if it arises from the sale of
goods, (i) such goods comply with such Account Debtor's specifications (if any)
and have been shipped to such Account Debtor (other than "xxxx and hold"
Accounts Receivable that are not ineligible under clause (6)) and (ii) the
Company has possession of, or if requested by the Administrative Agent has
delivered to the Administrative Agent, shipping receipts evidencing such
shipment;
(2) it (a) is subject to a perfected Lien in favor of the
Administrative Agent and (b) is not subject to any other assignment, claim or
Lien (other than Permitted Liens of the type described in subsections 8.1(c) and
(g) and statutory nonconsensual Liens in favor of growers);
(3) it is a valid, legally enforceable and unconditional obligation of
the Account Debtor with respect thereto, and is not subject to any counterclaim,
credit, allowance, discount, rebate or adjustment by the Account Debtor with
respect thereto, or to any claim by such Account Debtor denying liability
thereunder in whole or in part, and such Account Debtor has not refused to
accept any of the goods which are the subject of such Account Receivable or
offered or attempted to return any of such goods (provided, that in the event
any counterclaim, credit, allowance, rebate or adjustment is asserted, or
discount is granted, the Account Receivable shall only be ineligible pursuant to
this clause (3) to the extent of the same);
(4) there is no Insolvency Proceeding by or against the Account Debtor
with respect thereto;
(5) the Account Debtor with respect thereto is a resident or citizen
of, and is located within, the United States or a province of Canada in which
the Personal Property Security Act is in effect, unless (x) the sale of goods
giving rise to such Account Receivable is on letter of credit, banker's
acceptance or other credit support terms reasonably satisfactory to the
Administrative Agent or (y) such Account Receivable is payable by Plaza
Provision, a Puerto Rico corporation, or such other Account Debtors in Puerto
Rico, or any other territory or possession of the U.S. which has adopted Article
9 of the Uniform Commercial Code or as may be approved by the Administrative
Agent or Required Revolving Lenders;
(6) it is not an Account Receivable arising from a "sale on approval,"
"sale or return," "consignment" or "xxxx and hold" or subject to any other
repurchase or return agreement (provided, that "xxxx and hold" Accounts
Receivable shall not be ineligible solely by virtue of this
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clause (6) if subject to a written agreement reasonably acceptable to the
Administrative Agent or Required Revolving Lenders to the effect that the
related Account Debtor's payment obligation is irrevocable);
(7) it is not an Account Receivable with respect to which possession
and/or control of the goods sold giving rise thereto is held, maintained or
retained by the Company or any Subsidiary (or by any agent or custodian of the
Company or any Subsidiary) for the account of or subject to further and/or
future direction from the Account Debtor with respect thereto;
(8) it arises in the ordinary course of business of the Company or such
Domestic Subsidiary;
(9) if the Account Debtor is the United States or any department,
agency or instrumentality thereof, the Company has assigned its right to payment
of such Account Receivable to the Administrative Agent pursuant to the
Assignment of Claims Act of 1940, provided, however, that any Accounts
Receivable arising out of business conducted by the Company consistent with
business conducted prior to the Closing Date shall not be subject to this clause
(9);
(10) if the Company or such Domestic Subsidiary maintains a credit
limit for an Account Debtor, the aggregate dollar amount of Accounts Receivable
due from such Account Debtor, including such Account Receivable, does not exceed
such credit limit (provided, that (i) the Company may grant exceptions to such
credit limits consistent with past practice and in the ordinary course of
business and (ii) only the amount in excess of the credit limit shall be
ineligible under this clause (10));
(11) if the Account Receivable is evidenced by chattel paper or an
instrument, the originals of such chattel paper or instrument shall have been
endorsed and/or assigned and delivered to the Administrative Agent in a manner
reasonably satisfactory to the Administrative Agent;
(12) such Account Receivable is not more than (a) 60 days past the due
date thereof or (b) 120 days past the original invoice date thereof, in each
case according to the original terms of sale;
(13) it is not an Account Receivable with respect to an Account Debtor
that is located in any jurisdiction which has adopted a statute or other
requirement with respect to which any Person that obtains business from within
such jurisdiction must file a business activity report or make any other
required filings in a timely manner in order to enforce its claims in such
jurisdiction's courts unless such business activity report has been duly and
timely filed or the
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Company is exempt from filing such report and has provided the Administrative
Agent with satisfactory evidence of such exemption; and
(14) it is not owed by an Account Debtor if (x) 30% or more of the
aggregate Dollar amount of outstanding Accounts Receivable owed at such time by
such Account Debtor is classified as ineligible under clause (12) of this
definition or (y) the aggregate Dollar amount of all Accounts Receivable owed by
the Account Debtor thereon exceeds 20% of the aggregate amount of all Accounts
Receivable at such time (but only, in the case of this clause (y), to the extent
of such excess).
An Account Receivable which is at any time an Eligible Account Receivable, but
which subsequently fails to meet any of the foregoing requirements, shall
forthwith cease to be an Eligible Account Receivable. Further, with respect to
any Account Receivable, if the Administrative Agent or the Required Revolving
Lenders at any time hereafter determine in its or their reasonable discretion
and in accordance with its or their customary commercial lending practices that
the prospect of payment or performance by the Account Debtor with respect
thereto is materially impaired for any reason whatsoever, such Account
Receivable shall cease to be an Eligible Account Receivable after notice of such
determination is given to the Company.
Eligible Assignee means (i) an "accredited investor" as such term is
defined in Rule 501(a) of Regulation D under the Securities Act of 1933 (other
than the Company or an Affiliate of the Company), (ii) a Lender, (iii) an
Affiliate of a Lender (provided such Affiliate is an "accredited investor"),
(iv) any fund that invests in bank loans that is managed by the same investment
adviser as another Lender that is such a fund (provided such assignee fund is an
"accredited investor") or (v) any investment adviser of any Lender which is a
fund (provided that (A) such investment adviser is an "accredited investor" and
is acting with discretion, or (B) if such investment adviser is not acting with
discretion, then each of such investment adviser and such fund shall be an
"accredited investor").
Eligible Inventory means Inventory which meets the following
requirements:
(1) it (a) is subject to a perfected Lien in favor of the
Administrative Agent and (b) is not subject to any other assignment, claim or
Lien (other than Permitted Liens of the type described in subsections 8.1(c) and
(g) and statutory nonconsensual Liens in favor of growers) (provided, that if
the Company has not delivered any Bailee's Consent, Warehouseman's Consent or
Landlord's Consent but the Administrative Agent has established adequate
reserves in respect thereof under the definition of "Borrowing Base" any claim
or Lien of the related bailee, warehouseman or landlord, if it is a Permitted
Lien, shall not cause the Inventory kept at such location to be ineligible
solely by virtue of this clause (1));
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23
(2) it is (except as the Required Revolving Lenders may otherwise
consent in writing) salable;
(3) except as provided in clause (4) below or as the Required Revolving
Lenders may otherwise consent, it is in the possession and control of the
Company or the relevant Domestic Subsidiary and it is stored and held in
facilities owned by the Company or the relevant Domestic Subsidiary or, if such
facilities are not so owned, leased to the Company or the relevant Domestic
Subsidiary and with respect to which the Administrative Agent has received a
Landlord's Consent (unless a reserve with respect thereto has been established
by the Administrative Agent in accordance with the proviso in the definition of
"Borrowing Base") (provided that no Landlord's Consents shall be required with
respect to Inventory acquired in any Acquisition permitted under subsection
8.4(i) for the first 60 days after the closing of such Acquisition);
(4) if it is in the possession or control of a bailee, warehouseman or
processor, the Administrative Agent is in possession of a Bailee's Consent,
Warehouseman's Consent or such other agreements, instruments and documents as
the Administrative Agent may reasonably require in good faith, including
warehouse receipts in the Administrative Agent's name covering such Inventory
(unless a reserve with respect thereto has been established by the
Administrative Agent in accordance with the proviso in the definition of
"Borrowing Base") (provided that no Bailee's Consents shall be required with
respect to Inventory acquired in any Acquisition permitted under subsection
8.4(i) for the first 60 days after the closing of such Acquisition);
(5) it is not Inventory produced in violation of the Fair Labor
Standards Act and subject to the "hot goods" provisions contained in Title 29
U.S.C. Section 215;
(6) it is not subject to any agreement which would restrict the
Administrative Agent's ability to sell or otherwise dispose of such Inventory
(provided, that if the Company has not delivered any Bailee's Consent,
Warehouseman's Consent or Landlord's Consent and has established adequate
reserves in respect thereof under the definition of "Borrowing Base", any
agreement entered into in the ordinary course of business with such bailee,
warehouseman or landlord shall not render the Inventory kept at such location to
be ineligible solely by virtue of this clause (6));
(7) it is located in the United States or in any territory or
possession of the United States that has adopted Article 9 of the Uniform
Commercial Code or as may be approved by the Administrative Agent or Required
Revolving Lenders;
(8) it is not "in transit" to the Company or the relevant Domestic
Subsidiary or held by the Company or the relevant Domestic Subsidiary on
consignment; and
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(9) the Administrative Agent (or Required Revolving Lenders) shall not
have determined (which determination shall be effective upon notice to the
Company) in its (or their) reasonable discretion and in accordance with its (or
their) customary commercial lending practices that it is unacceptable due to
age, type, category, quality, quantity and/or any other reason whatsoever.
Inventory which is at any time Eligible Inventory but which subsequently fails
to meet any of the foregoing requirements shall forthwith cease to be Eligible
Inventory.
Environmental Claims means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability under any
Environmental Law or responsibility for violation of any Environmental Law, or
for release or injury to the environment.
Environmental Indemnity means an unsecured environmental indemnity in
the form of Exhibit S in favor of the Administrative Agent.
Environmental Laws means CERCLA, the Resource Conservation and Recovery
Act and all other federal, state or local laws, statutes, common law duties,
rules, regulations, ordinances and codes relating to pollution or protection of
public or employee health or the environment, together with all administrative
orders, consent decrees, licenses, authorizations and permits of any
Governmental Authority implementing them.
ERISA means the Employee Retirement Income Security Act of 1974.
ERISA Affiliate means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
ERISA Event means: (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
substantial cessation of operations which is treated as such a withdrawal; (c) a
complete or partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Pension Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f)
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the imposition of any material liability under Title IV of ERISA, other than
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the
Company or any ERISA Affiliate.
Event of Default means any of the events or circumstances specified in
Section 9.1.
Excess Cash Flow means, for any period, the remainder of
(a) EBITDA of Parent for such period (without giving effect to any
amount included in such EBITDA on a pro forma basis solely by virtue of the
proviso to the definition of "EBITDA"), less
(b) the sum, without duplication, of
(i) repayments of principal of Term Loans pursuant to Section
2.9, regularly scheduled principal payments arising with respect to any
other long-term Indebtedness of the Company and its Subsidiaries, and
the portion of any regularly scheduled payments with respect to capital
leases allocable to principal, in each case made during such period,
plus
(ii) voluntary prepayments of the Term Loans pursuant to
Section 2.7 during such period (other than any such voluntary
prepayments to the extent that the same are applied during such period
to the scheduled unpaid principal installments of the Term Loans in
forward order of maturity pursuant to Section 2.7), plus
(iii) cash payments made in such period with respect to
Capital Expenditures, plus
(iv) all federal, state, local and foreign income taxes paid
by the Company and its Subsidiaries during such period, plus
(v) cash Interest Expense of the Company and its Subsidiaries
during such period and, to the extent not deducted in determining
EBITDA of Parent, cash payments (other than payments of principal) made
by the Company in connection with prepayments and repayments of Term
Loans under clauses (b)(i) and (b)(ii) above, plus
(vi) cash dividends of the Company permitted under subsection
8.16(e) or (f) made in such period, plus
(vii) cash payments made by the Company and its Subsidiaries
in respect of pension liability, workers' compensation and other
post-employment benefits to the
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extent such payments exceed book expenses for such items reflected in
the calculation of EBITDA, plus
(viii) cash payments made by Parent and its Subsidiaries
during such period in respect of fees and expenses in connection with
Acquisitions permitted under subsection 8.4(i) and the amendment and
restatement of the Existing Credit Agreement.
Exchange Act means the Securities Exchange Act of 1934.
Excluded Taxes - see the definition of "Taxes."
Existing Credit Agreement - see the recitals.
Federal Funds Rate means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor,
"H.15(519)") on the preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such rate is not so published on any
such preceding Business Day, the rate for such day will be the arithmetic mean
as determined by the Administrative Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on
that day by each of three leading brokers of Federal funds transactions in New
York City selected by the Administrative Agent.
Fee Letter - see subsection 2.11(a).
Fixed Charge Coverage Ratio means, for the Computation Period most
recently ended on or before such date, the ratio of (a) EBITDA of Parent for
such Computation Period to (b) the sum of (i) Interest Expense of Parent for
such Computation Period (excluding, for purposes of this definition, any
Interest Expense attributable to the Parent Discount Notes or any Qualified
Parent Notes) and (ii) the scheduled installments of principal of the Term Loans
for such Computation Period (excluding therefrom the last four scheduled
installments of principal of Term B Loans to the extent that such installments
are refinanced with Indebtedness maturing after, and having no mandatory
prepayments or sinking fund payments prior to, March 31, 2005 and giving effect
to any reduction of such scheduled installments by virtue of the application of
any prepayments or repayments made which reduce scheduled installments pro rata
or in inverse order of maturity pursuant to Section 2.7 or 2.8).
Foreign Subsidiary shall mean each Subsidiary of the Company organized
under the laws of any jurisdiction other than the United States or any state
thereof.
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FRB means the Board of Governors of the Federal Reserve System, and any
Governmental Authority succeeding to any of its principal functions.
Further Taxes means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar charges
(including net income taxes and franchise taxes), and all liabilities with
respect thereto, imposed by any jurisdiction on account of amounts paid or
payable pursuant to Section 4.1 other than Excluded Taxes (as defined below
under the definition of "Taxes").
GAAP means generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
Governmental Authority means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
Guarantor means Parent and each Subsidiary that from time to time
executes and delivers a counterpart of the Subsidiary Guaranty.
Guaranty means the Parent Guaranty or the Subsidiary Guaranty, as
applicable.
Guaranty Obligation has the meaning specified in the definition of
Contingent Obligation.
Hazardous Material means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous or toxic
chemical, material or substance within the meaning of any other
Environmental Law.
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Honor Date - see subsection 3.3(b).
Increase Date - see subsection 2.16(a).
Increasing Lender - see subsection 2.16(c).
Indebtedness of any Person means, without duplication: (a) all
indebtedness of such Person for borrowed money; (b) all obligations issued,
undertaken or assumed by such Person as the deferred purchase price of property
or services (other than trade payables entered into and accrued expenses arising
in the ordinary course of business on ordinary terms); (c) all non-contingent
reimbursement or payment obligations with respect to Surety Instruments; (d) all
obligations of such Person evidenced by notes, bonds, debentures or similar
instruments; (e) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement, or incurred as financing,
in either case with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property); (f) all
obligations of such Person with respect to capital leases; (g) all indebtedness
referred to in clauses (a) through (f) above secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including Accounts Receivable and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness; and (h) all Guaranty
Obligations of such Person in respect of indebtedness or obligations of others
of the kinds referred to in clauses (a) through (g) above.
Indemnified Liabilities - see Section 11.5.
Indemnified Person - see Section 11.5.
Independent Auditor - see subsection 7.1(a).
Insolvency Proceeding means, with respect to any Person, (a) any case,
action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors or (b)
any general assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other, similar arrangement in respect of such Person's
creditors generally or any substantial portion of such creditors; in each case
undertaken under any U.S. Federal, State or foreign law, including the
Bankruptcy Code.
Intellectual Property - see Section 6.14.
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Intellectual Property License means the Intellectual Property License,
substantially in the form of Exhibit R, between the Company and the
Administrative Agent dated as of the Closing Date.
Intercreditor Agreement means the Amended and Restated Intercreditor
Agreement, dated as of December 5, 1989, among certain Creditors (as therein
defined), a copy of which is attached hereto as Exhibit Q.
Interest Expense means as to any Person for any period the consolidated
interest expense of such Person and its Subsidiaries for such period (including
all imputed interest on capital leases) excluding amortization or write-off of
deferred financing costs.
Interest Payment Date means (i) as to any Offshore Rate Loan, the last
day of each Interest Period applicable to such Loan and, in the case of any
Offshore Rate Loan with a six-month Interest Period, the three-month anniversary
of the first day of such Interest Period, and (ii) as to any Base Rate Loan, the
last Business Day of each fiscal quarter.
Interest Period means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the Conversion/Continuation
Date on which the Loan is converted into or continued as an Offshore Rate Loan,
and ending one, two, three or six months thereafter, as selected by the Company
in its Notice of Borrowing or Notice of Conversion/Continuation; provided that:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
following Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the preceding Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period;
(iii) no Interest Period applicable to a Term A Loan or a Term
B Loan or any portion of any thereof shall extend beyond any date upon
which is due any scheduled principal payment in respect of the Term A
Loans or Term B Loans, as applicable, unless the aggregate principal
amount of Term A Loans or Term B Loans, as applicable, represented by
Base Rate Loans, or by Offshore Rate Loans having Interest Periods that
will expire on or before such date, equals or exceeds the amount of
such principal payment; and
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(iv) no Interest Period for any Revolving Loan shall extend
beyond the Revolving Termination Date.
Inventory means any and all of the goods of the Company or a Domestic
Subsidiary, wheresoever located, that are held for sale or held as raw
materials, work in process or materials used or consumed in the business of the
Company or the applicable Domestic Subsidiary.
IRS means the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.
Issuance Date - see subsection 3.1(a).
Issue means, with respect to any Letter of Credit, to issue or amend
such Letter of Credit; and the terms "Issued," "Issuing" and "Issuance" have
corresponding meanings.
Issuing Lender means BofA in its capacity as issuer of one or more
Letters of Credit hereunder, together with any replacement letter of credit
issuer arising under subsection 10.1(b) or Section 10.9, or any successor
thereto acceptable to the Company, the Administrative Agent and the predecessor
Issuing Lender.
Joint Venture means a corporation, partnership, limited liability
company, joint venture or other similar legal arrangement (whether created by
contract or conducted through a separate legal entity) which is not a Subsidiary
of the Company or any of its Subsidiaries and which is now or hereafter formed
by the Company or any of its Subsidiaries with another Person in order to
conduct a common venture or enterprise with such Person.
Judgment Currency - see subsection 3.10(f).
Landlord's Consent means a document substantially in the form of
Exhibit O, with appropriate insertions, or such other form as shall be
acceptable to the Administrative Agent or Required Revolving Lenders.
L/C Advance means each Lender's participation in any L/C Borrowing in
accordance with its Revolving Percentage.
L/C Amendment Application means an application form for amendment of an
outstanding standby or commercial documentary letter of credit as shall at any
time be in use at the Issuing Lender, as the Issuing Lender shall request.
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L/C Application means an application form for issuances of a standby or
commercial documentary letter of credit as shall at any time be in use at the
Issuing Lender, as the Issuing Lender shall request.
L/C Borrowing means an extension of credit resulting from a drawing
under any Letter of Credit which shall not have been reimbursed on the date when
made nor converted into a Borrowing of Revolving Loans under subsection 3.3(c).
L/C Commitment means the commitment of the Issuing Lender to Issue, and
the commitments of the Revolving Lenders severally to participate in, Letters of
Credit from time to time Issued or outstanding under Article III, in an
aggregate amount not to exceed on any date the lesser of $70,000,000 and the
amount of the aggregate amount of all Revolving Commitments; it being understood
that the L/C Commitment is a part of the Revolving Commitments, rather than a
separate, independent commitment.
L/C Fee Rate -- see the Pricing Schedule.
L/C Obligations means at any time the sum of (a) the aggregate undrawn
amount of all Letters of Credit then outstanding, plus (b) the amount of all
unreimbursed drawings under all Letters of Credit, including all outstanding L/C
Borrowings.
L/C-Related Documents means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document relating to
any Letter of Credit, including any of the Issuing Lender's standard form
documents for letter of credit issuances.
Lenders means the several financial institutions from time to time
party to this Agreement. References to the "Lenders" shall include BofA in its
capacity as the Issuing Lender and BofA in its capacity as Swingline Lender; for
purposes of clarification only, to the extent that the Swingline Lender or the
Issuing Lender may have any rights or obligations in addition to those of the
other Lenders due to its status as Swingline Lender or Issuing Lender, its
status as such will be specifically referenced. For purposes of making any
determination with respect to Citicorp USA, Inc. under Section 4.2 or 4.3,
"Lender" shall be deemed to include Citibank.
Lender Party means (i) any Lender or any Agent or (ii) any Affiliate of
any Lender that is party to a Swap Contract with the Company.
Lending Office means, as to any Lender, the office or offices of such
Lender specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office", as the case may be, on Schedule 11.2, or such other
office or offices as such Lender may from time to time specify to the Company
and the Administrative Agent.
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Letters of Credit means any letters of credit (whether standby letters
of credit or commercial documentary letters of credit) Issued by the Issuing
Lender pursuant to Article III.
Liabilities means (i) all Obligations owing by the Company, Parent or
any Subsidiary (including post-petition interest) and (ii) all Permitted Swap
Obligations (monetary or otherwise) of the Company under any Swap Contract with
a Lender Party (other than Swap Contracts that, by their terms, are unsecured);
provided, however, that the term "Liabilities" shall not include any obligations
arising under any Environmental Indemnity.
Lien means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising under
or evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease, or any financing lease having
substantially the same economic effect as any of the foregoing, but not
including the interest of a lessor under an operating lease).
Loan means an extension of credit by a Lender to the Company under
Article II or Article III in the form of a Revolving Loan, Term Loan, Swingline
Loan or L/C Advance. Each Revolving Loan and each Term Loan may be divided into
tranches which are Base Rate Loans or Offshore Rate Loans (each a "Type" of
Loan). For purposes of greater clarity, a conversion of one Type of Loan to the
other Type or the continuation of an Offshore Rate Loan into a different
Interest Period is not the making of a "Loan" hereunder.
Loan Documents means this Agreement, any Notes, the Fee Letter, the fee
letter delivered to BofA in connection with this Agreement, the L/C-Related
Documents, the Guaranties, the Collateral Documents and all other documents
delivered to the Administrative Agent or any Lender in connection herewith or
therewith.
Mandatory Prepayment Event - see subsection 2.8(a).
Margin Stock means "margin stock" as such term is defined in Regulation
T, U or X of the FRB.
Material Adverse Effect means: (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Company and its Subsidiaries taken
as a whole; (b) a material impairment of the ability of the Company, Parent or
any Subsidiary to perform any of its obligations under any Loan Document; (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against the Company, Parent or any Subsidiary of any Loan
Document; or (d) a material adverse effect upon the Lien of any Collateral
Document or a material impairment of
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the rights, powers and remedies of the Administrative Agent or any Lender under
any Loan Document.
Material Subsidiary means a Subsidiary of the Company that meets any of
the following criteria:
(i) the assets of such Subsidiary and its Subsidiaries exceed
3% of the consolidated assets (giving effect to intercompany
eliminations) of the Company and its Subsidiaries;
(ii) the revenues of such Subsidiary and its Subsidiaries for
any fiscal quarter exceed 3% of the consolidated revenues (giving
effect to intercompany eliminations) of the Company and its
Subsidiaries for such period; or
(iii) the investments of the Company and its other
Subsidiaries in and advances to such Subsidiary and its Subsidiaries
exceed 3% of the consolidated assets (giving effect to intercompany
eliminations) of the Company and its Subsidiaries.
Xxxx Mac means Xxxx Mac IHC, Inc., a Delaware corporation and
a Subsidiary.
Mortgage means a mortgage, leasehold mortgage, deed of trust
or similar document granting a Lien on real property in appropriate
form for filing or recording in the applicable jurisdiction and
otherwise reasonably satisfactory to the Administrative Agent.
Multiemployer Plan means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, with respect to which the
Company or any ERISA Affiliate may have any liability.
Net Cash Proceeds means:
(a) with respect to the sale, transfer, or other disposition by
the Company or any Subsidiary of any asset (including any
stock of any Subsidiary or any Accounts Receivable pursuant to
a Permitted Receivables Facility), the aggregate cash proceeds
(including cash proceeds received by way of deferred payment
of principal pursuant to a note, installment receivable or
otherwise, but only as and when received) received by the
Company or any Subsidiary pursuant to such sale, transfer or
other disposition, net of (i) the direct costs relating to
such sale, transfer or other disposition (including sales
commissions and legal, accounting and investment banking
fees), (ii) taxes paid or reasonably estimated by the Company
to be payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing
arrangements), (iii) amounts required to be applied to the
repayment of any Indebtedness secured by a
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Lien on the asset subject to such sale, transfer or other
disposition (other than the Loans) and (iv) appropriate
amounts to be provided by the Company or any Subsidiary, as
the case may be, as a reserve, in accordance with GAAP,
against any liabilities associated with such sale, transfer or
other disposition and retained by the Company or any
Subsidiary, as the case may be, after such sale, transfer or
other disposition, including pension and other post-employment
benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations
associated with such sale, transfer or other disposition; and
(b) with respect to any issuance of equity securities or Other
Debt, the aggregate cash proceeds received by Parent, the
Company or any Subsidiary pursuant to such issuance, net of
the direct costs relating to such issuance (including sales
and underwriter's commissions, private placement fees and
legal, accounting and investment banking fees).
Net Worth means Parent's consolidated stockholders' equity,
but excluding therefrom (i) changes in cumulative translation
adjustments since January 3, 2000, which would otherwise be included
therein, and (ii) the effects arising from any purchase accounting
valuation adjustments incurred from and after January 3, 2000, over
historical cost of the Person or assets acquired, as required or
permitted by Accounting Principles Board Opinion Nos. 16 and 17.
New Lender - see subsection 2.16(e).
Non-Dollar Letter of Credit - see Section 3.10.
Note means a promissory note executed by the Company in favor
of a Lender pursuant to subsection 2.2(b), in substantially the form of
Exhibit D.
Notice of Borrowing means a notice in substantially the form
of Exhibit A.
Notice of Conversion/Continuation means a notice in
substantially the form of Exhibit B.
Obligations means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing
by the Company, Parent or any Subsidiary to any Lender, the
Administrative Agent, or any Indemnified Person, whether direct or
indirect (including those acquired by assignment), absolute or
contingent, due or to become due, or now existing or hereafter arising;
provided, that "Obligations" shall not include any obligations under
any Environmental Indemnity.
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Offshore Rate means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward, if necessary, to the next 1/16th of
1%) determined by the Administrative Agent as follows:
Offshore Rate = IBOR
-----------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any
Interest Period the maximum reserve percentage (expressed as a
decimal, rounded upward, if necessary, to the next 1/100th of
1%) in effect on such day (whether or not applicable to any
Lender) under regulations issued from time to time by the FRB
for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"); and
"IBOR" means the rate of interest per annum determined on the
basis of the rate for deposits in Dollars for a period equal
to such Interest Period commencing on the first day of such
Interest Period appearing on Page 3750 of the Telerate screen
as of 11:00 a.m., London time, two Business Days prior to the
beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate Service (or
otherwise on such service), "IBOR" for purposes of this
definition shall be determined by the Administrative Agent as
the rate at which Dollar deposits in the approximate amount of
BofA's Offshore Rate Loan for such Interest Period would be
offered by BofA's Grand Cayman Branch, Grand Cayman B.W.I. (or
such other office as may be designated for such purpose by
BofA), to major banks in the offshore dollar interbank market
at their request at approximately 11:00 a.m. (New York City
time) two Business Days prior to the commencement of such
Interest Period.
The Offshore Rate shall be adjusted automatically as to all
Offshore Rate Loans then outstanding as of the effective date of any
change in the Eurodollar Reserve Percentage.
Offshore Rate Loan means a Loan that bears interest based on
the Offshore Rate.
Organization Documents means, (a) for any domestic
corporation, the certificate or articles of incorporation, the bylaws,
any certificate of determination or instrument relating to the rights
of preferred shareholders of such corporation, any shareholder rights
agreement, and all applicable resolutions of the board of directors (or
any
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committee thereof) of such corporation and (b) for any foreign
corporation, the equivalent documents.
Original Credit Agreement - see the recitals.
Other Debt means debt securities of Parent, the Company and
its Subsidiaries, other than as expressly permitted by (i) Section 8.5
or, (ii) with respect to Parent, the Parent Guaranty.
Other Taxes means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Document.
Overnight Rate - see subsection 3.10(g).
Parent means Del Monte Foods Company, a Delaware corporation.
Parent Discount Indenture means the indenture governing the
Parent Discount Notes, as amended from time to time in accordance with
Section 8.22.
Parent Discount Notes means the $149,500,000 aggregate face
amount of 12.5% Senior Discount Notes due 2007 of Parent.
Parent Guaranty means the amended and restated guaranty, dated
as of December 17, 1997, made by Parent in favor of the Administrative
Agent for the benefit of the Lender Parties, a copy of which is
attached as Exhibit F-1.
Parent Pledge Agreement means the Parent Pledge Agreement,
dated as of the Closing Date, between the Parent and the Administrative
Agent, a copy of which is attached as Exhibit G-1.
Participant - see subsection 11.8(c).
Patent Security Agreement means a patent security agreement in
the form attached to a Security Agreement.
PBGC means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
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Pension Plan means a pension plan (as defined in Section 3(2)
of ERISA) subject to Title IV of ERISA with respect to which the
Company or any ERISA Affiliate may have any liability other than a
Multiemployer Plan.
Permitted Liens - see Section 8.1.
Permitted Liability Management Swap means one or more Swap
Contracts, in form and substance reasonably satisfactory to the
Administrative Agent, with a term not beyond April 15, 2002, which are
entered into when no Event of Default or Unmatured Event of Default
exists or would result therefrom, whereby (x) the Company enters into
an interest rate protection agreement with respect to not more than
$35,000,000 of Subordinated Notes or Qualified Notes whereby the
effective interest rate on such principal amount of Subordinated Notes
or Qualified Notes is set at a floating rate, rather than a fixed rate
and (y) the Company and the related swap counterparty enter into a
"total return" swap with respect to not more than $35,000,000 of
Subordinated Notes or Qualified Notes (that is, the related swap
counterparty purchases the principal amount of Subordinated Notes or
Qualified Notes subject to such swap transaction, and the Company
agrees to pay such counterparty for losses caused to such counterparty
by any depreciation in the market price of the Subordinated Notes or
Qualified Notes subject to such Swap Contracts during the period from
the time such Swap Contracts were entered into to the time such Swap
Contracts are terminated and such counterparty agrees to pay the
Company the amount of any gain caused by any appreciation in the market
price of the of the Subordinated Notes or Qualified Notes subject to
such Swap Contracts during the period from the time such Swap Contracts
were entered into to the time such Swap Contracts are terminated);
provided that in the event the Company has repurchased or redeemed any
Subordinated Notes or Qualified Notes under subsection 8.16(g), the
maximum Dollar amounts set forth above in this definition shall be
reduced by the amount of Subordinated Notes or Qualified Notes so
repurchased or redeemed.
Permitted Receivables Facility means any receivables financing
facility arrangement entered into by the Company providing for the
discount, sale or other transfer of its Accounts Receivable on a
nonrecourse basis for a transfer price at least equivalent to the
advance rate on such Accounts Receivable hereunder and otherwise on
terms and conditions (including repurchase provisions) satisfactory to
the Required Lenders.
Permitted Security Agreements means the Intellectual Property
Security Agreements and Assignments between the Company and Wafer
Limited and the Company and Del Monte Tropical Fruit Company, North
America, each dated December 5, 1989, the Intellectual Property
Security Agreement and Assignment dated as of January 9, 1990 between
the Company and Kikkoman Corporation, the Intellectual Property
Security Agreement and Assignment dated as of May 9, 1990
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between the Company and Del Monte Foods Limited, the Intellectual
Property Security Agreement and Assignment dated as of May 9, 1990
between the Company and Del Monte International, Inc., and any other
security agreements between the Company and a licensee of Intellectual
Property to secure the damages, if any, of such licensee resulting from
the rejection of the license of such licensee in a bankruptcy,
reorganization or similar proceeding with respect to the Company;
provided that each such Permitted Security Agreement shall be subject
to the Intercreditor Agreement.
Permitted Swap Obligations means all obligations (contingent
or otherwise) of the Company or any Subsidiary existing or arising
under Swap Contracts, provided that each of the following criteria is
satisfied: (a) such obligations are (or were) entered into by such
Person in the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments or assets
held or reasonably anticipated by such Person, or changes in the value
of securities issued by such Person in conjunction with a securities
repurchase program not otherwise prohibited hereunder, and not for
purposes of speculation or taking a "market view" (provided that
obligations in respect of a Permitted Liability Management Swap shall
not be excluded from the definition of "Permitted Swap Obligations" by
virtue of this clause (a)); and (b) such Swap Contracts do not contain
(i) any provision ("walk-away" provision) exonerating the
non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party or (ii) if the
counterparty is not a Lender Party, any provision creating or
permitting the declaration of an event of default, termination event or
similar event upon the occurrence of an Event of Default hereunder
(other than an Event of Default under subsection 9.1(a)).
Person means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
Plan means an employee benefit plan (as defined in Section
3(3) of ERISA) with respect to which the Company may have any
liability.
Pledge Agreement means the Parent Pledge Agreement, the
Company Pledge Agreement and each Subsidiary Pledge Agreement.
Proposed New Lender - see subsection 2.16(b).
Public Offering means an offering of equity securities or
Indebtedness registered under the Securities Act of 1933.
Qualified Indenture means a trust indenture entered into by
the Company with an indenture trustee with terms and provisions no more
restrictive to the Company than the Subordinated Indenture, and with
terms no less advantageous to the Lenders than the terms of the
Subordinated Indenture, as amended from time to time in accordance with
Section 8.22.
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Qualified Notes means subordinated notes of the Company which
shall not require scheduled payments of principal prior to April 15,
2007, which shall not require cash interest payments thereon at a rate
in excess of 12-1/4% per annum, and which are issued pursuant to a
Qualified Indenture, as such notes may be amended from time to time in
accordance with Section 8.22.
Qualified Parent Indenture means a trust indenture entered
into by Parent with an indenture trustee with terms and provisions no
more restrictive to the Parent and no less advantageous to the Lenders
than the Parent Discount Indenture, as amended from time to time in
accordance with Section 8.22.
Qualified Parent Notes means notes of Parent in an aggregate
principal amount not to exceed the amount necessary to pay all
principal, interest and premium, if any, of the Parent Discount Notes
or, if applicable, a prior issuance of Qualified Parent Notes, plus
customary fees and expenses incurred in connection with the issuance of
the refinancing notes, which shall not require scheduled payments of
principal prior to April 15, 2007 and shall not require payments of
interest in cash thereon prior to June 15, 2003, with terms and
provisions not materially more restrictive to the Parent and not
materially less advantageous to the Lenders than the Parent Discount
Notes and which are issued pursuant to a Qualified Parent Indenture, as
amended from time to time in accordance with Section 8.22.
Qualified Parent Refinancing means a refinancing of the Parent
Discount Notes with Qualified Parent Notes or a refinancing of
Qualified Parent Notes with a subsequent issuance of Qualified Parent
Notes.
Qualified Refinancing means a refinancing of the Subordinated
Notes with Qualified Notes; provided, that the aggregate principal
amount of Qualified Notes issued in connection therewith does not
exceed the aggregate principal amount of the Indebtedness so refinanced
unless the excess is applied as set forth in subsection 2.8(a)(vi).
Release means a "release", as such term is defined in CERCLA.
Replacement Lender - see Section 4.7.
Reportable Event means any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC or administrative
pronouncements.
Required Lenders means, at any time, Lenders having an
aggregate Total Percentage of more than 50%.
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Required Revolving Lenders means, at any time, Revolving
Lenders having an aggregate Revolving Percentage of more than 50%.
Required Term A Lenders means, at any time, Term A Lenders
having an aggregate Term A Percentage of more than 50%.
Required Term B Lenders means, at any time, Term B Lenders
having an aggregate Term B Percentage of more than 50%.
Requirement of Law means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an
arbitrator or of a Governmental Authority, in each case applicable to
or binding upon such Person or any of its property or to which such
Person or any of its property is subject.
Resource Conservation and Recovery Act means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 690, et seq.
Responsible Officer means the chief executive officer, chief
operating officer or the president of the Company, or any other officer
having substantially the same authority and responsibility or the chief
financial officer, the treasurer or the chief accounting officer of the
Company, or any other officer having substantially the same authority
and responsibility.
Restatement Date - see Section 5.1.
Revolving Commitment means, as to any Lender, the commitment
of such Lender to make Revolving Loans pursuant to subsection 2.1(c).
The amount of each Revolving Lender's Revolving Commitment on the date
hereof is set forth across from such Lender's name on Schedule 1.1.
Revolving Lender means, at any time, a Lender with a Revolving
Commitment at such time or which then holds any Revolving Loan.
Revolving Loan - see subsection 2.1(c).
Revolving Percentage means, as to any Lender, the percentage
which (a) prior to the termination of the Revolving Commitments, (x)
the amount of such Lender's Revolving Commitment is of (y) the
aggregate amount of all of the Revolving Lenders' Revolving Commitments
and (b) after the termination of the Revolving Commitments, (x) the
amount of such Lender's Revolving Loans is of (y) the aggregate amount
of all Revolving Loans of all Revolving Lenders.
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Revolving Termination Date means the earlier to occur of:
(a) March 31, 2003; and
(b) the date on which the Revolving Commitments
terminate in accordance with the provisions of this
Agreement.
Sale/Leaseback Transaction - see Section 8.18.
SEC means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
Security Agreement means either the Security Agreement
(Company and Parent) or the Subsidiary Security Agreement.
Security Agreement (Company and Parent) means the Security
Agreement, dated as of the Closing Date, among the Company, Parent and
the Administrative Agent in the form of Exhibit E-1 hereto.
Senior Debt Ratio means for each Computation Period the ratio
of
(i) the sum of (A) the outstanding principal amount
of all Total Debt (other than Subordinated Debt and Revolving
Loans) on the last day of such Computation Period plus (B) the
quotient of (1) the sum of the aggregate outstanding principal
amount of all Revolving Loans as of the last day of each of
the twelve fiscal months during such Computation Period
divided by (2) twelve, to
(ii) EBITDA of Parent for such Computation Period.
Standby Letter of Credit means any Letter of Credit that is
not a Commercial Letter of Credit.
Subordinated Debt means the Subordinated Notes and any
Qualified Notes and all other unsecured Indebtedness of the Company for
borrowed money which is subject to, and is only entitled to the
benefits of, terms and provisions (including maturity, amortization,
acceleration, interest rate, sinking fund, covenant, default and
subordination provisions) satisfactory in form and substance to the
Required Lenders, as evidenced by their written approval thereof (which
may be granted or withheld in their sole discretion).
Subordinated Indenture means the indenture governing the
Subordinated Notes, as amended from time to time in accordance with
Section 8.22.
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Subordinated Note Purchase Agreement means the Purchase
Agreement dated as of April 15, 1997 relating to the Subordinated
Notes, as amended from time to time in accordance with Section 8.22.
Subordinated Notes means the 12-1/4% Series B Senior
Subordinated Notes due April 15, 2007 of the Company issued under the
Subordinated Indenture, as amended from time to time in accordance with
Section 8.22.
Subsidiary of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests
or other equity interests is owned or controlled directly or indirectly
by such Person, or one or more of the Subsidiaries of such Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the
Company.
Subsidiary Guaranty means the guaranty, substantially in the
form of Exhibit F-2, which may be executed from time to time by certain
Subsidiaries of the Company.
Subsidiary Pledge Agreement means the Subsidiary Pledge
Agreement, dated as of the Closing Date, between Xxxx Mac and the
Administrative Agent in the form of Exhibit G-3; such pledge agreement
may be joined after the Restatement Date by other Subsidiaries.
Subsidiary Security Agreement means the security agreement,
substantially in the form of Exhibit E-2, which may be executed from
time to time by certain Subsidiaries of the Company.
Surety Instruments means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties, surety
bonds and similar instruments.
Swap Contract means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity
index swap or option, bond, note or xxxx option, interest rate option,
forward foreign exchange transaction, cap, collar or floor transaction,
currency swap, cross-currency rate swap, swaption, currency option or
any other, similar transaction (including any option to enter into any
of the foregoing) or any combination of the foregoing, and, unless the
context otherwise clearly requires, any master agreement relating to or
governing any or all of the foregoing.
Swap Termination Value means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out
and
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termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced
in clause (a) the amount(s) determined as the xxxx-to-market value(s)
for such Swap Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include any
Lender).
Swingline Lender means BofA in its capacity as lender of
Swingline Loans together with any replacement lender of Swingline Loans
arising under Section 10.9.
Swingline Loan has the meaning specified in subsection 2.5(a).
Tax Sharing Agreement means the Tax Sharing Agreement dated as
of January 9, 1990 by and between Parent and the Company, as the same
may be amended from time to time in accordance with Section 8.22.
Taxes means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, charges or withholdings, fees
or similar charges and all liabilities with respect thereto, excluding,
in the case of each Lender and the Administrative Agent, such taxes
(including income taxes, branch profit taxes or franchise taxes) as are
imposed on or measured by such Lender's or the Administrative Agent's,
as the case may be, net income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Lender or the
Administrative Agent, as the case may be, is organized, maintains a
lending office or conducts business (collectively, "Excluded Taxes").
Term A Lender means, at any time, a Lender which then holds
any Term A Loan.
Term A Loan - see subsection 2.1(a).
Term A Percentage means, as to any Lender, the percentage
which (a) the principal amount of such Lender's Term A Loan is of (b)
the aggregate principal amount of all Term A Loans. The Term A
Percentage as in effect on the Restatement Date of each Lender is set
forth across from such Lender's name on Schedule 1.1.
Term B Commitment means, as to any Lender, the commitment of
such Lender to make an Additional Term B Loan pursuant to subsection
2.1(b).
Term B Lender means, at any time, a Lender which then holds
any Term B Loan.
Term B Loan - see subsection 2.1(b).
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Term B Percentage means, as to any Lender, the percentage
which (a) the aggregate amount of such Lender's commitment to make
Additional Term B Loans plus the outstanding principal amount of such
Lender's Term B Loans is of (b) the aggregate amount of the commitments
to make Additional Term B Loans of all Lenders plus the outstanding
principal amount of all Term B Loans. The Term B Percentage of each
Lender as in effect on the Restatement Date is set forth across from
such Lender's name on Schedule 1.1.
Term Loan means a Term A Loan or a Term B Loan.
Total Debt means (i) total Indebtedness of Parent and its
Subsidiaries at the time of determination less (ii) Indebtedness of the
type described in clause (c) of the definition of "Indebtedness" in
respect of Surety Instruments under which Parent or any Subsidiary has
only an unmatured payment obligation determined at such time less (iii)
Indebtedness of the type described in clauses (g) and (h) of the
definition of "Indebtedness" in respect of Indebtedness at such time
described in clause (ii) above less (iv) any amounts outstanding under
any Parent Discount Notes and any Qualified Parent Notes.
Total Debt Ratio means as of June 30 of each year the ratio of
(i) the aggregate outstanding principal amount of all
Total Debt as of such day,
to
(ii) EBITDA of Parent for the fiscal year ended on
such date.
Total Percentage means, as to any Lender, the percentage which
(a) the aggregate amount of such (i) Lender's Revolving Commitment plus
(ii) the outstanding principal amount of such Lender's Term A Loans
plus (iii) the aggregate amount of such Lender's commitment to make
Additional Term B Loans plus the outstanding principal amount of such
Lender's Term B Loans is of (b) the aggregate amount of (i) the
Revolving Commitments of all Lenders plus (ii) the outstanding
principal amount of all Term A Loans plus (iii) the aggregate amount of
the commitments to make Additional Term B Loans of all Term B Lenders
plus the outstanding principal amount of all Term B Loans; provided
that, after the Revolving Commitments and any Term B Commitments have
been terminated, "Total Percentage" shall mean as to any Lender the
percentage which the aggregate principal amount of such Lender's Loans
is of the aggregate principal amount of all Loans. The initial Total
Percentage of each Lender is set forth opposite such Lender's name on
Schedule 1.1.
TPG Acquisition means TPG Shield Acquisition Corporation, a
Maryland corporation.
TPG Acquisition Preferred Stock means the 14% Series A
Redeemable Preferred Stock, original liquidation preference $1,000 per
share, of Parent.
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TPG Agreements means (i) the Management Advisory Agreement,
dated as of April 18, 1997, between the Company and TPG Partners and
(ii) the Transaction Advisory Agreement, dated as of April 18, 1997,
between the Company and TPG Partners, in each case as amended from time
to time in accordance with Section 8.22.
TPG Partners means TPG Partners, L.P., a Delaware limited
partnership.
Trademark Security Agreement means a trademark security
agreement in the form attached to a Security Agreement.
Type has the meaning specified in the definition of "Loan."
United States and U.S. each means the United States of
America.
Unmatured Event of Default means any event or circumstance
which, with the giving of notice, the lapse of time, or both, would (if
not cured or otherwise remedied during such time) constitute an Event
of Default.
Warehouseman's Consent means a document substantially in the
form of Exhibit P, with appropriate insertions, or such other form as
shall be acceptable to the Administrative Agent or Required Revolving
Lenders.
Wholly-Owned Subsidiary means any corporation in which (other
than directors' qualifying shares or due to native ownership
requirements) 100% of the capital stock of each class is owned
beneficially and of record by the Company or by one or more other
Wholly-Owned Subsidiaries.
1.2 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar
words refer to this Agreement as a whole and not to any particular
provision of this Agreement; and Article, subsection, Section, Schedule
and Exhibit references are to this Agreement unless otherwise
specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
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(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from"
means "from and including"; the words "to" and "until" each
mean "to but excluding"; and the word "through" means "to and
including."
(d) Unless otherwise expressly provided herein, (i) references
to agreements (including this Agreement) and other contractual
instruments shall be deemed to include all subsequent amendments and
other modifications thereto, but only to the extent such amendments and
other modifications are not prohibited by the terms of any Loan
Document and (ii) references to any statute or regulation are to be
construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation
of this Agreement.
(f) This Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the
same or similar matters. All such limitations, tests and measurements
are cumulative and shall each be performed in accordance with their
terms. Unless otherwise expressly provided herein, any reference to any
action of the Administrative Agent, the Lenders, the Required Lenders,
the Required Term A Lenders, the Required Term B Lenders or the
Required Revolving Lenders by way of consent, approval or waiver shall
be deemed modified by the phrase "in its/their sole discretion."
(g) This Agreement and the other Loan Documents are the result
of negotiations among and have been reviewed by counsel to the Agents,
the Company and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the
Agents merely because of the Lenders' or the Agents' involvement in
their preparation.
1.3 Accounting Principles.
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and
all financial computations required under this Agreement shall be made,
in accordance with GAAP, consistently applied; provided that if the
Company notifies the Administrative Agent that the Company wishes to
amend any covenant in Article VIII or any corresponding definition to
eliminate the effect of any change in GAAP after the date hereof on the
operation of such covenant (or if the Administrative Agent notifies the
Company that the Required Lenders wish to amend Article VIII or any
corresponding definition for such purpose), then the Company's
compliance with such covenant shall be determined on the basis of GAAP
in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Company and the Required
Lenders.
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(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments. (a) The Term A Credit. Each Term
A Lender has heretofore extended a "Term A Loan" to the Company (each such loan,
a "Term A Loan"). Amounts borrowed as Term A Loans which are repaid or prepaid
by the Company may not be reborrowed.
(b) The Term B Credit. Each Term B Lender has heretofore
extended one or more "Term B Loans" to the Company. Following the effectiveness
of any Commitment Increase which creates obligations to make Term B Loans, each
Term B Lender that has made a Term B Commitment in respect of such Commitment
Increase severally agrees, on the related Increase Date, to make a loan to the
Company (an "Additional Term B Loan") in the amount of such Lender's Term B
Commitment. All such Loans referred to in the two immediately preceding
sentences (including any Additional Term B Loans) are collectively referred to
herein as the "Term B Loans." Amounts borrowed as Term B Loans which are repaid
or prepaid by the Company may not be reborrowed. After the making of Additional
Term B Loans on the Increase Date, the Term B Commitments made with respect to
such Increase Date shall be zero.
(c) The Revolving Credit. Each Revolving Lender severally
agrees, on the terms and conditions set forth herein, to make loans to the
Company (each such loan, a "Revolving Loan"), from time to time on any Business
Day during the period from the Restatement Date to the Revolving Termination
Date, in an aggregate amount not to exceed at any time outstanding such
Revolving Lender's Revolving Percentage of the aggregate amount of the Revolving
Commitments; provided that, after giving effect to any Borrowing of Revolving
Loans, (x) the sum of the Effective Amount of all Revolving Loans plus the
Effective Amount of all Swingline Loans plus the Effective Amount of all L/C
Obligations shall not exceed (y) the lesser of (1) the aggregate amount of the
Revolving Commitments and (2) the Borrowing Base. Within the foregoing limits,
and subject to the other terms and conditions hereof, the Company may borrow
under this subsection 2.1(c), prepay under Section 2.7 and reborrow under this
subsection 2.1(c).
2.2 Loan Accounts. (a) The Loans made by each Lender and the Letters of
Credit Issued by the Issuing Lender shall be evidenced by one or more accounts
or records maintained by such Lender or the Issuing Lender, as the case may be,
in the ordinary course of business. The accounts or records maintained by the
Administrative Agent, the Issuing Lender and each Lender shall be prima facie
evidence as to the amount of the Loans made by the Lenders to the Company and
the Letters of Credit Issued for the account of the Company, and the interest
and payments thereon. Any failure to record
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or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Company hereunder to pay any amount owing with respect to any
Loan or any Letter of Credit.
(b) Upon the request of any Lender made through the
Administrative Agent, the Loans made by such Lender may be evidenced by one or
more Notes in addition to loan accounts. Each such Lender is hereby authorized
to endorse on the schedules annexed to its Note(s) the date, amount and maturity
of each Loan made by it and the amount of each payment of principal made by the
Company with respect thereto. Each such Lender is irrevocably authorized by the
Company to endorse its Note(s) and each Lender's record shall be conclusive
absent manifest error; provided that the failure of a Lender to make, or an
error in making, a notation thereon with respect to any Loan shall not limit or
otherwise affect the obligations of the Company hereunder or under any Note to
such Lender.
2.3 Procedure for Borrowing. (a) Each Borrowing shall be made upon the
Company's irrevocable written notice delivered to the Administrative Agent in
the form of a Notice of Borrowing (which notice must be received by the
Administrative Agent (i) prior to 11:00 a.m. (Chicago time) three Business Days
prior to the requested Borrowing Date, in the case of Offshore Rate Loans and
(ii) prior to 11:00 a.m. (Chicago time) one Business Day prior to the requested
Borrowing Date, in the case of Base Rate Loans), specifying:
(A) the amount of the Borrowing, which shall be in an amount
of $5,000,000 or a higher integral multiple of $100,000;
(B) the requested Borrowing Date, which shall be a Business
Day;
(C) the Type of Loans comprising the Borrowing; and
(D) in the case of Offshore Rate Loans, the duration of the
Interest Period applicable to such Loans included in such notice.
(b) The Administrative Agent will promptly notify each Lender
of its receipt of any Notice of Borrowing and of the amount of such Lender's
share of the related Borrowing based upon such Lender's Revolving Percentage,
Term A Percentage or Term B Percentage, as applicable. Notwithstanding the
immediately preceding sentence, any Borrowing of Additional Term B Loans
pursuant to a Commitment Increase shall be made by the Term B Lenders holding
Term B Commitments in respect of such Commitment Increase in accordance with
their respective Term B Commitments, and any Term B Lender that does not hold a
Term B Commitment in respect of such Commitment Increase shall have no
obligation to make any Additional Term B Loan.
(c) Each Lender will make the amount of its share of each
Borrowing available to the Administrative Agent for the account of the Company
at the Agent's Payment Office by 1:00 p.m.
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(Chicago time) on the Borrowing Date requested by the Company in funds
immediately available to the Administrative Agent. The proceeds of all Loans
will then be made available to the Company by the Administrative Agent at such
office by crediting the account of the Company on the books of BofA with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
(d) After giving effect to any Borrowing, there may not be
more than twelve different Interest Periods in effect.
2.4 Conversion and Continuation Elections. (a) The Company may, upon
irrevocable written notice to the Administrative Agent in accordance with
subsection 2.4(b):
(i) elect to convert, on any Business Day, any Base Rate Loans
(in an aggregate amount of $5,000,000 or a higher integral multiple of
$100,000) into Offshore Rate Loans;
(ii) elect to convert, on the last day of the applicable
Interest Period, any Offshore Rate Loans (or any part thereof in an
aggregate amount of $5,000,000 or a higher integral multiple of
$100,000) into Base Rate Loans; or
(iii) elect to continue, as of the last day of the applicable
Interest Period, any Offshore Rate Loans having Interest Periods
expiring on such day (or any part thereof in an aggregate amount of
$5,000,000 or a higher integral multiple of $100,000);
provided that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing shall have been reduced, by payment, prepayment or
conversion of part thereof, to be less than $5,000,000, such Offshore Rate Loans
shall automatically convert into Base Rate Loans.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent not later
than (i) 11:00 a.m. (Chicago time) at least three Business Days in advance of
the Conversion/Continuation Date, if the Loans are to be converted into or
continued as Offshore Rate Loans and (ii) not later than 11:00 a.m. (Chicago
time) one Business Day prior to the Conversion/Continuation Date, if the Loans
are to be converted into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate principal amount of Loans to be
converted or continued;
(C) the Type of Loans resulting from the proposed
conversion or continuation; and
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(D) in the case of conversions into Offshore Rate
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable
to Offshore Rate Loans, the Company has failed to select timely a new Interest
Period to be applicable to such Offshore Rate Loans, the Company shall be deemed
to have elected to convert such Offshore Rate Loans into Base Rate Loans
effective as of the expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify each Lender
of its receipt of a Notice of Conversion/Continuation or, if no timely notice is
provided by the Company, the Administrative Agent will promptly notify each
Lender of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective outstanding
principal amounts of the Loans held by each Lender with respect to which the
notice was given.
(e) Unless the Required Lenders otherwise agree, during the
existence of an Event of Default or Unmatured Event of Default, the Company may
not elect to have a Loan converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of
Loans, there may not be more than twelve different Interest Periods in effect.
2.5 Swingline Loans.
(a) Subject to the terms and conditions hereof, the Swingline
Lender may, in its sole discretion (subject to subsection 2.5(b)), make a
portion of the Revolving Commitments available to the Company by making
swingline loans (each such loan, a "Swingline Loan") to the Company on any
Business Day during the period from the Restatement Date to the Revolving
Termination Date in accordance with the procedures set forth in this Section 2.5
in an aggregate principal amount at any one time outstanding not to exceed the
lesser of (x) the lesser of (1) the aggregate available amount of the Revolving
Commitments and (2) the Borrowing Base and (y) $25,000,000, notwithstanding the
fact that such Swingline Loans, when aggregated with the Swingline Lender's
outstanding Revolving Loans, may exceed the Swingline Lender's Revolving
Percentage of the aggregate amount of the Revolving Commitments; provided that
at no time shall the sum of the Effective Amount of all Swingline Loans,
Revolving Loans and L/C Obligations exceed the lesser of (1) the aggregate
amount of the Revolving Commitments and (2) the Borrowing Base. Subject to the
other terms and conditions hereof, the Company may borrow under this subsection
2.5(a), prepay pursuant to subsection 2.5(d) and reborrow pursuant to this
subsection 2.5(a) from time to time; provided that the Swingline Lender shall
not be obligated to make any Swingline Loan.
(b) The Company shall provide the Administrative Agent and the
Swingline Lender irrevocable written notice (or notice by a telephone call
confirmed promptly by facsimile) of any
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Swingline Loan requested hereunder (which notice must be received by the
Swingline Lender and the Administrative Agent prior to 12:00 p.m. (Chicago time)
on the requested Borrowing Date) specifying (i) the amount to be borrowed and
(ii) the requested Borrowing Date, which must be a Business Day. Upon receipt of
such notice, the Swingline Lender will promptly confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has received a
copy of such notice from the Company and, if not, the Swingline Lender will
provide the Administrative Agent with a copy thereof. If and only if the
Administrative Agent notifies the Swingline Lender on the proposed Borrowing
Date that it may make available to the Company the amount of the requested
Swingline Loan, then, subject to the terms and conditions hereof, the Swingline
Lender may make the amount of the requested Swingline Loan available to the
Company by crediting the account of the Company on the books of BofA with the
amount of such Swingline Loan. The Administrative Agent will not so notify the
Swingline Lender if the Administrative Agent has knowledge that (A) the
limitations set forth in the proviso set forth in the first sentence of
subsection 2.5(a) are being violated or would be violated by such Swingline Loan
or (B) one or more conditions specified in Article V is not then satisfied. Each
Swingline Loan shall be in an aggregate principal amount equal to $500,000 or a
higher integral multiple of $100,000. The Swingline Lender will promptly notify
the Administrative Agent of the amount of each Swingline Loan.
(c) Principal of and accrued interest on each Swingline Loan
shall be due and payable (i) on demand made by the Swingline Lender at any time
upon one Business Day's prior notice to the Company with a copy to the
Administrative Agent furnished at or before 10:45 a.m. (Chicago time), and (ii)
in any event on the Revolving Termination Date. Interest on Swingline Loans
shall be for the sole account of the Swingline Lender (except to the extent that
the other Lenders have funded the purchase of participations therein pursuant to
subsection 2.5(e)).
(d) The Company may, from time to time on any Business Day,
make a voluntary prepayment, in whole or in part, of the outstanding principal
amount of any Swingline Loan, without incurring any premium or penalty; provided
that
(i) each such voluntary prepayment shall require prior written
notice given to the Administrative Agent and the Swingline Lender no
later than 1:00 p.m. (Chicago time) on the day on which the Company
intends to make a voluntary prepayment, and
(ii) each such voluntary prepayment shall be in an amount
equal to $500,000 or a higher integral multiple of $100,000 (or, if
less, the aggregate outstanding principal amount of all Swingline Loans
then outstanding).
Voluntary prepayments of Swingline Loans shall be made by the Company
to the Swingline Lender at such office as the Swingline Lender may designate by
notice to the Company from time to time. All such payments shall be made in
Dollars and in immediately available funds no later than 4:00 p.m. (Chicago
time) on the date specified by the Company pursuant to clause (i) above (and any
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payment received later than such time shall be deemed to have been received on
the next Business Day). The Swingline Lender will promptly notify the
Administrative Agent of the amount of each prepayment of Swingline Loans.
(e) If (i) any Swingline Loan shall remain outstanding at
11:00 a.m. (Chicago time) on the Business Day immediately prior to a Business
Day on which Swingline Loans are due and payable pursuant to subsection 2.5(c)
and by such time on such Business Day the Administrative Agent shall have
received neither (A) a Notice of Borrowing delivered pursuant to Section 2.3
requesting that Revolving Loans be made pursuant to subsection 2.1(c) on such
following Business Day in an amount at least equal to the aggregate principal
amount of such Swingline Loans, nor (B) any other notice indicating the
Company's intent to repay such Swingline Loans with funds obtained from other
sources, or (ii) any Swingline Loans shall remain outstanding during the
existence of an Unmatured Event of Default or Event of Default and the Swingline
Lender shall in its sole discretion notify the Administrative Agent that the
Swingline Lender desires that such Swingline Loans be converted into Revolving
Loans, then the Administrative Agent shall be deemed to have received a Notice
of Borrowing from the Company pursuant to Section 2.3 requesting that Base Rate
Loans be made pursuant to subsection 2.1(c) on the following Business Day in an
amount equal to the aggregate amount of such Swingline Loans, and the procedures
set forth in subsections 2.3(b) and 2.3(c) shall be followed in making such Base
Rate Loans; provided that such Base Rate Loans shall be made notwithstanding the
Company's failure to comply with Section 5.2; and provided, further, that if a
Borrowing of Revolving Loans becomes legally impracticable and if so required by
the Swingline Lender at the time such Revolving Loans are required to be made by
the Revolving Lenders in accordance with this subsection 2.5(e), each Revolving
Lender agrees that in lieu of making Revolving Loans as described in this
subsection 2.5(e), such Revolving Lender shall purchase a participation from the
Swingline Lender in the applicable Swingline Loans in an amount equal to such
Revolving Lender's Revolving Percentage of such Swingline Loans, and the
procedures set forth in subsections 2.3(b) and 2.3(c) shall be followed in
connection with the purchases of such participations. The proceeds of such Base
Rate Loans (or participations purchased) shall be delivered by the
Administrative Agent to the Swingline Lender to repay such Swingline Loans (or
as payment for such participations). A copy of each notice given by the
Administrative Agent to the Revolving Lenders pursuant to this subsection 2.5(e)
with respect to the making of Loans, or the purchases of participations, shall
be promptly delivered by the Administrative Agent to the Company. Each Revolving
Lender's obligation in accordance with this Agreement to make the Revolving
Loans, or purchase the participations, as contemplated by this subsection
2.5(e), shall be absolute and unconditional and shall not be affected by any
circumstance, including (1) any set-off, counterclaim, recoupment, defense or
other right which such Revolving Lender may have against the Swingline Lender,
the Company or any other Person for any reason whatsoever, (2) the occurrence or
continuance of an Unmatured Event of Default, an Event of Default or a Material
Adverse Effect or (3) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
2.6 Termination or Reduction of Revolving Commitments.
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(a) The Company may, upon not less than three Business Days'
prior written notice to the Administrative Agent, permanently reduce the
Revolving Commitments to an amount which is not less than the sum of the
Effective Amount of all Revolving Loans plus the Effective Amount of all
Swingline Loans plus the Effective Amount of all L/C Obligations. Any such
reduction shall be in an aggregate amount of $10,000,000 or a higher integral
multiple of $5,000,000. The Company may at any time on like notice terminate the
Revolving Commitments upon payment in full of all Revolving Loans and Swingline
Loans and Cash Collateralization in full of all L/C Obligations.
(b) In addition, after (and to the extent not applied to) the
payment in full of all Term Loans pursuant to subsection 2.8(a), upon the
occurrence of any Mandatory Prepayment Event, the Revolving Commitments shall be
reduced by the amount of all Designated Proceeds resulting from such Mandatory
Prepayment Event, with each such reduction effective at the time required in
subsection 2.8(a) for a prepayment of Term Loans resulting from such Mandatory
Prepayment Event; provided, that upon any Mandatory Prepayment Event arising
from the transfer of Accounts Receivable under a Permitted Receivables Facility
under clause (viii) of subsection 2.8(a), (i) the Revolving Loans shall be
repaid in an amount equal to the Designated Proceeds from such transfer, (ii)
the Revolving Commitments shall be reduced by the full amount of all Designated
Proceeds from such transfer until the Revolving Commitments have been reduced to
zero and (iii) no such Designated Proceeds shall be applied to the Term Loans
until the Revolving Commitments have so been reduced to zero.
(c) Once reduced in accordance with this Section, the
Revolving Commitments may not be increased (including pursuant to Section 2.16).
Any reduction of the Revolving Commitments shall be applied to the Revolving
Commitment of each Revolving Lender according to its Revolving Percentage. All
accrued commitment fees to, but not including, the effective date of any
reduction or termination of the Revolving Commitments shall be paid on the
effective date of such reduction or termination.
2.7 Optional Prepayments.
(a) Subject to Section 4.4, (i) the Company may, from time to
time, upon irrevocable written notice to the Administrative Agent (which notice
must be received by 11:00 a.m. (Chicago time) one Business Day prior to the
requested day of prepayment in the case of Base Rate Loans and 11:00 a.m.
(Chicago time) three Business Days prior to the date of prepayment in the case
of Offshore Rate Loans), prepay any Borrowing of Revolving Loans in whole or in
part, without premium or penalty, in an aggregate amount of $5,000,000 or a
higher integral multiple of $100,000 and (ii) the Company may, from time to
time, upon not less than three Business Days' irrevocable notice to the
Administrative Agent, prepay any Borrowing of Term Loans in whole or in part,
without premium or penalty, in an aggregate amount of $5,000,000 or a higher
integral multiple of $100,000.
(b) Each notice of prepayment shall specify the date and
amount of such prepayment and the Loans to be prepaid. The Administrative Agent
will promptly notify each Lender
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of its receipt of any such notice and of such Lender's share of such prepayment
based upon such Lender's Revolving Percentage, in the case of a prepayment of
Revolving Loans, Term A Percentage, in the case of a prepayment of Term A Loans,
or Term B Percentage, in the case of a prepayment of Term B Loans. If any such
notice is given by the Company, the Company shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to such date on the amount
prepaid and any amounts required pursuant to Section 4.4. Each prepayment of
Revolving Loans shall be applied to each Revolving Lender's Revolving Loans
according to such Revolving Lender's Revolving Percentage. Each prepayment of
Term Loans shall be applied pro rata to the Term A Loans and Term B Loans;
provided, that if the Company elects to provide the holders of Term B Loans with
the option to waive their right to accept any such voluntary prepayment, and any
such Lender notifies the Administrative Agent of such Lender's waiver of such
prepayment not later than two Business Days prior to the date of prepayment, 50%
of the portion of any such prepayment which would have been applied to such
Lender's Term B Loans shall be applied pro rata to the remaining installments of
the Term A Loans of all Lenders and the remaining 50% may be retained by the
Company; provided, further, that once the Term A Loans shall have been fully
repaid, such remaining prepayment amounts, if any, shall be applied pro rata to
the Term B Loans. All prepayments of the Term Loans pursuant to this Section 2.7
shall be applied pro rata to the unpaid installments of each of the Term A Loans
and Term B Loans; provided, however, that, at the Company's option, a portion of
any such prepayment may be applied to unpaid installments of the Term A Loans in
forward order of maturity, but the amount so applied in any period of four
consecutive fiscal quarters may not exceed 50% of the amount of the scheduled
installments of the Term A Loans during such period (without giving effect to
any reduction to such scheduled installments as a result of mandatory or
voluntary prepayments).
2.8 Mandatory Prepayments of Loans. (a) The Company (or, in the case of
clause (iii), if the Administrative Agent is holding the proceeds of insurance
or condemnation as additional Collateral pursuant to the terms of a Security
Agreement or any Mortgage, the Administrative Agent) shall make a prepayment of
the Term Loans upon the occurrence of any of the following (each a "Mandatory
Prepayment Event") at the following times and in the following amounts (such
applicable amounts being referred to as "Designated Proceeds"):
(i) Within 180 days after any sale, transfer or other
disposition by the Company or any Subsidiary of any asset (other than
assets described in clause (ii) below), other than sales of Inventory,
Assets Held for Sale and transfers of Accounts Receivable pursuant to a
Permitted Receivables Facility and dispositions of obsolete, unused,
surplus or unnecessary equipment, in each case in the ordinary course
of business, to a Person other than the Company or a Subsidiary, in an
amount equal to 100% of the Net Cash Proceeds of such sale, transfer or
other disposition; provided that the foregoing shall not apply (x) to
sales, transfers or other dispositions of such assets the proceeds (or
an amount equal to anticipated proceeds) of which are used or committed
to be used by the Company for the financing of the replacement or
substitution of such assets being sold prior to or within 180 days
after any such sale, (y) to the
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extent that the Net Cash Proceeds of all such sales, transfers or other
dispositions in any fiscal year is less than $5,000,000 or (z) to
proceeds of Sale/Leaseback Transactions permitted under Section 8.18.
(ii) Within 30 days after any sale, transfer or other
disposition (including by way of merger or consolidation) by the
Company or any Subsidiary of any of the capital stock of any of the
Company's operating Subsidiaries to a Person other than the Company or
a Subsidiary, in an amount equal to 100% of the Net Cash Proceeds of
such sale, transfer or other disposition.
(iii) Within 180 days after the receipt of any insurance or
condemnation proceeds (or other similar recoveries) by Parent, the
Company or any Subsidiary or by the Administrative Agent (to the extent
the Administrative Agent is holding the insurance or condemnation
proceeds as additional Collateral pursuant to Section 6 of a Security
Agreement or any provision of any Mortgage) from any casualty loss
incurred by Parent, the Company or any Subsidiary or condemnation of
property, in an amount equal to 100% of such insurance or condemnation
proceeds (or other similar recoveries) net of any collection expenses;
provided that no such prepayment shall be required (x) to the extent
such proceeds (or an amount equal to anticipated proceeds) are used by
the Company, or will be so used prior to or within 180 days after the
date of receipt of such proceeds for the financing of the replacement,
substitution or restoration of the assets sustaining such casualty loss
or condemnation or (y) to the extent that all such insurance or
condemnation proceeds received in any fiscal year is less than
$1,000,000.
(iv) Promptly, and in any event within 15 days, after the
receipt of any Net Cash Proceeds from any issuance of equity securities
of Parent, the Company or any Subsidiary (including a Public Offering,
but excluding (x) any issuance of shares of capital stock pursuant to
any employee or director stock option program, benefit plan or
compensation program and (y) issuances of equity securities (the Net
Cash Proceeds of which are used within 90 days of receipt thereof to
finance Acquisitions permitted under subsection 8.4(i)), in an amount
equal to 50% of such Net Cash Proceeds.
(v) Promptly, and in any event within 15 days, after the
receipt of any Net Cash Proceeds from the issuance of any Other Debt of
Parent, the Company or any Subsidiary, in an amount equal to 100% of
such Net Cash Proceeds.
(vi) If the amount of net proceeds received on issuance of any
Qualified Notes exceeds the amount of net proceeds received by the
Company upon the issuance of the Subordinated Notes or upon any prior
issuance of Qualified Notes, promptly, and in any event within 15 days,
after the receipt of the proceeds of such notes by the Company in an
amount equal to such excess.
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(vii) Within 95 days after the end of each fiscal year
(commencing with the fiscal year ending June 30, 2000), in an amount
equal to 50% of Excess Cash Flow for such fiscal year (provided that if
the aggregate unpaid principal amount of the Term Loans as of the end
of such fiscal year is less than $150,000,000, then no prepayment shall
be required pursuant to this clause (vii)).
(viii) Subject to the proviso to subsection 2.6(b),
immediately following any transfer by the Company or any Subsidiary of
Accounts Receivable pursuant to a Permitted Receivables Facility, in an
amount equal to the Net Cash Proceeds of such transfer (provided, that
if the Permitted Receivables Facility is a revolving program, the
Designated Proceeds available for application to the Loans and/or
Revolving Commitments from such Permitted Receivables Facility under
this clause (viii) shall not exceed the maximum outstanding amount of
such Permitted Receivables Facility (without giving effect to any
reduction in such amount but giving effect to any increase in such
amount)).
(ix) Concurrently with the receipt of any proceeds from the
issuance of any Indebtedness by Parent (other than Other Debt), in an
amount equal to 100% of the Net Cash Proceeds thereof; provided,
however, that the Parent may retain any portion or all of the Net Cash
Proceeds of any Qualified Parent Notes to the extent such amount is
immediately used to pay in full (including all principal of and
interest and premium, if any, on) and discharge the Parent Discount
Notes or a prior issuance of Qualified Parent Notes, as applicable.
All prepayments of Term Loans pursuant to this subsection 2.8(a) shall be
applied to the prepayment of the Term Loans pro rata among the Term A Loans and
Term B Loans, with application to the remaining installments of each (x) in
inverse order of maturity, in the case of prepayments pursuant to clauses (v),
(vi) and (ix) and (y) pro rata, in the case of prepayments pursuant to clauses
(i), (ii), (iii), (iv), (vii) and (viii); provided, that Designated Proceeds
arising under clause (viii) shall only be applied to the Term Loans after the
Revolving Commitments have been reduced to zero pursuant to subsection 2.6(b);
provided, further, that, if the Company offers to any Lender holding Term B
Loans the right to waive any such prepayment, and any such Lender notifies the
Administrative Agent of such Lender's waiver of such prepayment not later than
two Business Days prior to the date upon which such prepayment is due, 50% of
the portion of any prepayment which would have been applied to such Lender's
Term B Loans shall be applied pro rata to the remaining installments of the Term
A Loans of all Lenders and the remaining 50% may be retained by the Company;
provided, further, that once the Term A Loans shall have been fully prepaid,
such remaining prepayment amounts, if any, shall be applied pro rata to the Term
B Loans.
(b) If on any day the Effective Amount of all Revolving Loans plus the
Effective Amount of all Swingline Loans plus the Effective Amount of all L/C
Obligations exceeds the lesser of (x) the Borrowing Base and (y) the Revolving
Commitments, the Company shall immediately prepay Revolving
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Loans and/or Swingline Loans or Cash Collateralize the outstanding Letters of
Credit, or do a combination of the foregoing, in an amount sufficient to
eliminate such excess.
(c) If on any date the Effective Amount of L/C Obligations exceeds the
amount of the L/C Commitment, the Company shall Cash Collateralize on such date
the outstanding Letters of Credit in an amount equal to the excess of the L/C
Obligations over the amount of the L/C Commitment.
2.9 Repayment. (a) The Term A Credit. The Company shall repay the Term
A Loans in quarterly installments on the last Business Day of each fiscal
quarter commencing on March 24, 2000, in the amount set forth opposite the
period below in which such quarterly date occurs:
Payment Date Payment Amount
------------ --------------
03/24/00 $7,363,100.00
06/30/00 $7,363,100.00
09/29/00 $8,415,000.00
12/29/00 $8,415,000.00
03/30/01 $8,415,000.00
06/30/01 $8,415,000.00
09/28/01 $9,466,800.00
12/28/01 $9,466,800.00
03/29/02 $9,466,800.00
06/28/02 $9,466,800.00
09/27/02 $14,024,966.66
12/27/02 $14,024,966.66
03/28/03 $14,023,290.26
(b) The Term B Credit. The Company shall repay the Term B
Loans in quarterly installments on the last Business Day of each fiscal quarter,
commencing on March 24, 2000, in the amount set forth opposite the period below
in which such quarterly date occurs:
Payment Date Payment Amount
------------ --------------
03/24/00 $483,900.00
06/30/00 $483,900.00
09/29/00 $483,900.00
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12/29/00 $483,900.00
03/30/01 $483,900.00
06/30/01 $483,900.00
09/28/01 $483,900.00
12/28/01 $483,900.00
03/29/02 $483,900.00
06/30/02 $483,900.00
09/27/02 $483,900.00
12/27/02 $483,900.00
03/28/03 $483,900.00
06/30/03 $483,900.00
09/26/03 $483,900.00
12/26/03 $483,900.00
03/26/04 $483,900.00
06/30/04 $45,438,000.00
09/24/04 $45,438,000.00
12/24/04 $45,438,000.00
03/25/05 $45,436,400.89 plus the
amount of any Additional
Term B Loans made hereunder.
(c) The Revolving Credit. The Company shall pay to the
Administrative Agent, for the account of the Lenders, on the Revolving
Termination Date the aggregate principal amount of all Revolving Loans
outstanding on such date.
2.10 Interest. (a) Each Revolving Loan and Term Loan shall bear
interest on the outstanding principal amount thereof from the applicable
Borrowing Date at a rate per annum equal to the Offshore Rate or the Base Rate,
as the case may be (and subject to the Company's right to convert to the other
Type of Loans under Section 2.4), plus the Applicable Offshore Rate Margin or
Applicable Base Rate Margin, as the case may be. Each Swingline Loan shall bear
interest on the outstanding principal amount thereof from the applicable
Borrowing Date at a rate per annum equal to the Base Rate plus 1% per annum.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date therefor. Interest shall also be paid on the date of any
prepayment of Offshore Rate Loans under Section 2.7 or 2.8 for the portion of
the Loans so prepaid and upon payment (including prepayment) in full thereof.
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(c) Notwithstanding subsection 2.10(a), during the existence
of any Event of Default, the Company shall pay interest (after as well as before
entry of judgment thereon to the extent permitted by law) on the principal
amount of all outstanding Loans and, to the extent permitted by applicable law,
on any other amount payable hereunder or under any other Loan Document, at a
rate per annum equal to the rate otherwise applicable thereto pursuant to the
terms hereof or such other Loan Document (or, if no such rate is specified, the
Base Rate plus the Applicable Base Rate Margin then in effect for Revolving
Loans) plus 2%. All such interest shall be payable on demand.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Lender hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder to the extent (but only to the extent) that
contracting for or receiving such payment by such Lender would be contrary to
the provisions of any law applicable to such Lender limiting the highest rate of
interest that may be lawfully contracted for, charged or received by such
Lender, and in such event the Company shall pay such Lender interest at the
highest rate permitted by applicable law.
2.11 Fees. In addition to certain fees described in Section 3.8:
(a) Arranger and Agency Fees. The Company shall pay fees to
the Arranger for its own account and agency fees to the Administrative Agent for
the Administrative Agent's own account, in each case as required by the letter
agreement (the "Fee Letter") among the Company, the Arranger and the
Administrative Agent dated December 3, 1999.
(b) Commitment Fees. The Company shall pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee
calculated at a rate per annum equal to the Commitment Fee Rate on the average
daily unused portion of such Revolving Lender's Revolving Commitment, computed
on a quarterly basis in arrears on the last Business Day of each fiscal quarter
based upon the daily utilization for that quarter as calculated by the
Administrative Agent. For purposes of calculating utilization under this
subsection, the Revolving Commitments shall be deemed used to the extent of the
Effective Amount of all Revolving Loans then outstanding (but Swingline Loans
shall not constitute usage of any Revolving Lender's Revolving Commitment) plus
the Effective Amount of all L/C Obligations then outstanding. Such commitment
fee shall accrue from the Restatement Date to the Revolving Termination Date and
shall be due and payable quarterly in arrears on the last Business Day of each
fiscal quarter, with the final payment to be made on the Revolving Termination
Date. The commitment fees provided in this subsection shall accrue at all times
after the Restatement Date, including at any time during which one or more
conditions in Article V are not met.
2.12 Computation of Fees and Interest. (a) All computations of interest
for Base Rate Loans when the Base Rate is determined by BofA's "reference rate"
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of interest and fees shall be made
on the basis of a 360-day year and actual days elapsed. Interest and fees shall
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accrue during each period during which interest or such fees are computed from
the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the
Administrative Agent shall be prima facie evidence thereof. The Administrative
Agent will, at the request of the Company or any Lender, deliver to the Company
or such Lender, as the case may be, a statement showing the quotations used by
the Administrative Agent in determining any interest rate and the resulting
interest rate.
2.13 Payments by the Company. (a) All payments to be made by the
Company shall be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the Company shall be made
to the Administrative Agent for the account of the Lenders at the Agent's
Payment Office, and shall be made in Dollars and in immediately available funds,
no later than 1:00 p.m. (Chicago time) on the date specified herein. Except as
expressly provided herein, the Administrative Agent will promptly distribute, in
like funds as received, to each Lender its Revolving Percentage of any portion
of such payment related to the Revolving Loans, its Term A Percentage of any
portion of such payment relating to the Term A Loans or its Term B Percentage of
any portion of such payment relating to the Term B Loans. Any payment received
by the Administrative Agent later than 1:00 p.m. (Chicago time) shall be deemed
to have been received on the following Business Day and any applicable interest
or fee shall continue to accrue.
(b) Whenever any payment is due on a day other than a Business
Day, such payment shall be made on the preceding Business Day, and such
shortening of time shall in such case be reflected in the computation of
interest or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the
Company prior to the date on which any payment is due to the Lenders that the
Company will not make such payment in full as and when required, the
Administrative Agent may assume that the Company has made such payment in full
to the Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Company has not made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such Lender, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Lender until the date repaid.
2.14 Payments by the Lenders to the Administrative Agent. (a) Unless
the Administrative Agent receives notice from a Lender at least one Business Day
prior to the date of a Borrowing, that such Lender will not make available as
and when required hereunder to the
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Administrative Agent for the account of the Company the amount of such Lender's
Revolving Percentage, or proportionate commitment to make Additional Term B
Loans, as applicable, of such Borrowing, the Administrative Agent may assume
that each Lender has made such amount available to the Administrative Agent in
immediately available funds on the Borrowing Date and the Administrative Agent
may (but shall not be required to), in reliance upon such assumption, make
available to the Company on such date a corresponding amount. If and to the
extent any Lender shall not have made its full amount available to the
Administrative Agent in immediately available funds and the Administrative Agent
in such circumstances has made available to the Company such amount, such Lender
shall on the Business Day following such Borrowing Date make such amount
available to the Administrative Agent, together with interest at the Federal
Funds Rate for each day during such period. A notice of the Administrative Agent
submitted to any Lender with respect to amounts owing under this subsection (a)
shall be conclusive, absent manifest error. If such amount is so made available,
such payment to the Administrative Agent shall constitute such Lender's Loan on
the date of Borrowing for all purposes of this Agreement. If such amount is not
made available to the Administrative Agent on the Business Day following the
Borrowing Date, the Administrative Agent will notify the Company of such failure
to fund and, upon demand by the Administrative Agent, the Company shall pay such
amount to the Administrative Agent for the Administrative Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at the time
to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any
Borrowing Date shall not relieve any other Lender of any obligation hereunder to
make a Loan on such Borrowing Date, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other Lender on
any Borrowing Date.
2.15 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share of such payment
(determined in accordance with the provisions of this Agreement), such Lender
shall immediately (a) notify the Administrative Agent of such fact and (b)
purchase from the other Lenders such participations in the Loans made by them as
shall be necessary to cause such purchasing Lender to share the excess payment
pro rata with each other Lender; provided that if all or any portion of such
excess payment is thereafter recovered from the purchasing Lender, such purchase
shall to that extent be rescinded and each other Lender shall repay to the
purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender's ratable share (according to the proportion of (i)
the amount of such paying Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Company agrees that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off, but subject to Section 11.10) with
respect to such participation as fully as if such Lender were the direct
creditor of the Company in the amount of such participation. The Administrative
Agent will keep records (which shall be conclusive and binding in the absence of
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manifest error) of participations purchased under this Section and will in each
case notify the Lenders following any such purchases or repayments.
2.16 Optional Increase. (a) The Company may, at any time or times
during the term of this Agreement, by written notice to the Administrative
Agent, make one or more requests that the aggregate amount of the Revolving
Commitments be increased, or that Commitments to make Additional Term B Loans be
committed to, in an aggregate amount (for all such increases) not to exceed
$100,000,000 (each, a "Commitment Increase"), with any such Commitment Increase
to be effective as of a date (the "Increase Date") specified in the related
notice to the Administrative Agent that is at least 30 Business Days after the
date of such notice; provided, however, that (i) no Event of Default or
Unmatured Event of Default shall have occurred and be continuing and (ii) the
Company shall be in compliance with all financial covenants set forth in
Sections 8.11, 8.12, 8.13 and 8.14 on a pro forma basis for the period of four
consecutive fiscal quarters ending on the last day of the last completed fiscal
quarter immediately preceding the date the Commitment Increase is proposed to
become effective (on the assumption that the full amount of Indebtedness
represented by the Commitment Increase was outstanding for the entire such
period).
(b) The Administrative Agent shall promptly notify the Lenders
(as well as any other financial institution specified by the Company and
reasonably acceptable to the Administrative Agent (each such financial
institution that is not a Lender, a "Proposed New Lender")) of the request by
the Company for the Commitment Increase, which notice shall include (A) the
proposed amount of the requested Commitment Increase, (B) the proposed Increase
Date and (C) the date by which Lenders and Proposed New Lenders wishing to
participate in the Commitment Increase must commit to participate in such
Commitment Increase (the "Commitment Date"), which date shall be no later than
five Business Days prior to the Increase Date.
(c) Each Lender and Proposed New Lender that is willing to
participate in such Commitment Increase (each, an "Increasing Lender") shall
give written notice to the Administrative Agent no later than 10:00 a.m. (San
Francisco time) on the Commitment Date of the amount by which it is willing to
participate in such Commitment Increase, which amount shall not exceed the
amount of the requested Commitment Increase. It shall be in each Lender's sole
discretion whether to offer to participate in such Commitment Increase in
connection with the proposed Commitment Increase. If the Lenders and Proposed
New Lenders notify the Administrative Agent that they are willing to increase
the amount of their respective Commitments by an aggregate amount that exceeds
the amount of the requested Commitment Increase, the Commitment Increase shall
be allocated among the Lenders and Proposed New Lenders willing to participate
therein in the manner specified by the Company and the Administrative Agent.
(d) Promptly following (but in no event later than two
Business Days after) the Commitment Date with respect to any Commitment
Increase, the Administrative Agent shall notify the
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Company as to the amount, if any, of the requested Commitment Increase in which
the Lenders and Proposed New Lenders are willing to participate.
(e) On the Increase Date, each Proposed New Lender that
accepts an offer to participate in the requested Commitment Increase as a Lender
shall become a Lender party to this Agreement as of the Increase Date (each a
"New Lender"), with a Revolving Commitment and/or Term B Commitment, and the
Revolving Commitment of each Increasing Lender for the requested Commitment
Increase shall be increased, or, if applicable, each Increasing Lender shall
have a Term B Commitment, in each case as of the Increase Date in the amount set
forth in its notice delivered to the Administrative Agent in accordance with
subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New
Lender pursuant to the last sentence of subsection 2.16(c)); provided, however,
that the Administrative Agent shall have received on or before noon (San
Francisco time) on the Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer of the Company
stating that no Event of Default or Unmatured Event of Default has occurred and
is continuing, or would result from the Commitment Increase, (B) certified
copies of resolutions of the board of directors of the Company approving the
Commitment Increase and the corresponding modifications to this Agreement and
the Notes, (C) opinions of counsel to the Company, in form and substance
reasonably satisfactory to the Administrative Agent, (D) instruments executed by
each Guarantor reaffirming its respective obligations under the Loan Documents
after giving effect to the Commitment Increase, (E) in the event that, after
giving effect to such Commitment Increase, the principal amount of the Term
Loans outstanding plus the aggregate Revolving Commitments would exceed the
maximum principal amount secured by the Mortgages, if the Administrative Agent
requests, amendments to the Mortgages in form and substance satisfactory to the
Administrative Agent, increasing the maximum principal amount secured by the
Mortgages so that such amount is not less than the principal amount of the Term
Loans and Revolving Commitments, after giving effect to such Commitment
Increase, together with such endorsements to the related title insurance
policies held by the Administrative Agent as the Administrative Agent may
request and (F) such other approvals, opinions or documents as any Lender
through the Administrative Agent may reasonably request in connection with the
Commitment Increase;
(ii) a counterpart of this Agreement duly executed by each New
Lender;
and
(iii) confirmation from each Increasing Lender of the increase
in the amount of its Revolving Commitment or, if applicable, its Term B
Commitment, in a writing satisfactory to the Company and the Administrative
Agent.
(f) On the Increase Date, upon fulfillment of the conditions set forth
in subsection 2.16(e), the Administrative Agent shall notify the Lenders and the
Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the
occurrence of the Commitment Increase to be effected on the Increase Date. Each
Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco
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time) on the Increase Date, make available to the Administrative Agent in
immediately available funds, (A) in the case of any New Lender, an amount equal
to (x) in the case of an increase to the Revolving Commitments, such New
Lender's Revolving Percentage (after giving effect to the Commitment Increase)
of all Revolving Loans then outstanding and (y) in the case of the creation of
Term B Commitments, in the amount of such New Lender's Term B Commitment and (B)
in the case of any Increasing Lender, an amount equal to (x) in the case of an
increase to the Revolving Commitments, the excess of (1) such Increasing
Lender's Revolving Percentage (after giving effect to the Commitment Increase)
of all Revolving Loans then outstanding over (2) such Increasing Lender's
Revolving Percentage (immediately prior to giving effect to the Commitment
Increase) of all Revolving Loans then outstanding and (y) in the case of the
creation of Term B Commitments, in the amount of such Increasing Lender's Term B
Commitment. After the Administrative Agent's receipt of such funds from each
Increasing Lender and each New Lender, the Administrative Agent will promptly
thereafter cause to be distributed like funds to the other Lenders holding
Revolving Loans or Term B Loans, as applicable, in an amount to each such Lender
such that the aggregate amount owing to each Lender after giving effect to such
distribution equals such Lender's ratable share of all Loans then outstanding
(calculated after giving effect to the Commitment Increase). If the Increase
Date shall occur on a date that is not the last day of the Interest Period for
all Revolving Loans or Term B Loans bearing interest based on the Offshore Rate
then outstanding (x) the Company shall pay any amounts owing pursuant to Section
4.4 to any Lender whose proportionate share of any outstanding Offshore Rate
Loan is decreased as a result of the distributions to Lenders under this
subsection 2.16(f), and (y) for each outstanding Borrowing of Offshore Rate
Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New
Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the
applicable Offshore Rate for such Borrowing.
ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility. (a) On the terms and conditions
set forth herein: (i) the Issuing Lender agrees, (A) from time to time on any
Business Day during the period from the Restatement Date to the Revolving
Termination Date to issue Letters of Credit for the account of the Company, and
to amend Letters of Credit previously issued by it, in accordance with
subsections 3.2(c) and 3.2(d), and (B) to honor drawings which comply with the
terms of the Letters of Credit Issued by it; and (ii) the Revolving Lenders
severally agree to participate in Letters of Credit Issued for the account of
the Company; provided that the Issuing Lender shall not be obligated to Issue,
and no Revolving Lender shall be obligated to participate in, any Letter of
Credit if as of the date of Issuance of such Letter of Credit (the "Issuance
Date") (1) the sum of the Effective Amount of all L/C Obligations plus the
Effective Amount of all Revolving Loans plus the Effective Amount of all
Swingline Loans exceeds the lesser of (x) the aggregate amount of all Revolving
Commitments and (y) the Borrowing Base, (2) the Effective Amount of all L/C
Obligations exceeds the amount of the L/C
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Commitment or (3) with respect to any particular Revolving Lender, the sum of
the participation of such Revolving Lender in the Effective Amount of all L/C
Obligations plus the outstanding principal amount of the Revolving Loans of such
Revolving Lender shall exceed such Revolving Lender's Revolving Commitment.
Within the foregoing limits, and subject to the other terms and conditions
hereof, the Company's ability to obtain Letters of Credit shall be fully
revolving, and, accordingly, the Company may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit which have expired or
which have been drawn upon and reimbursed.
(b) The Issuing Lender shall not be under any obligation to
Issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the Issuing Lender from Issuing such Letter of Credit, or any
Requirement of Law applicable to the Issuing Lender or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Issuing Lender shall
prohibit, or request that the Issuing Lender refrain from, the Issuance
of letters of credit generally or such Letter of Credit in particular
or shall impose upon the Issuing Lender with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the
Issuing Lender is not otherwise compensated hereunder) not in effect on
the Closing Date, or shall impose upon the Issuing Lender any
unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which the Issuing Lender in good xxxxx xxxxx material
to it;
(ii) the Issuing Lender has received written notice from any
Lender, the Administrative Agent or the Company, on or prior to the
Business Day prior to the requested date of Issuance of such Letter of
Credit, that one or more of the applicable conditions contained in
Article V is not then satisfied;
(iii) the expiry date of such Letter of Credit is after the
Revolving Termination Date, or, in the case of a Commercial Letter of
Credit, the expiry date of such Letter of Credit is less than 15 days
prior to the Revolving Termination Date, unless all of the Revolving
Lenders have approved such expiry date in writing;
(iv) such Letter of Credit does not provide for drafts, or is
not otherwise in form and substance acceptable to the Issuing Lender,
or the Issuance of such Letter of Credit shall violate any applicable
policies of the Issuing Lender; or
(v) such Letter of Credit is denominated in a currency other
than Dollars.
3.2 Issuance, Amendment and Extension of Letters of Credit. (a) Each
Letter of Credit shall be issued upon the irrevocable written request of the
Company received by the Issuing Lender and the
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Administrative Agent at least four Business Days (or such shorter time as the
Issuing Lender and the Administrative Agent may agree in a particular instance
in their sole discretion) prior to the proposed date of issuance. Each such
request for issuance of a Letter of Credit shall be by facsimile, confirmed
immediately in an original writing, in the form of an L/C Application, and shall
specify in form and detail satisfactory to the Issuing Lender: (i) the face
amount of the Letter of Credit; (ii) the expiry date of the Letter of Credit;
(iii) the name and address of the beneficiary thereof; (iv) the documents to be
presented by the beneficiary of the Letter of Credit in case of any drawing
thereunder; (v) the full text of any certificate to be presented by the
beneficiary in case of any drawing thereunder; and (vi) such other matters as
the Issuing Lender may require.
(b) At least two Business Days prior to the Issuance of any
Letter of Credit, the Issuing Lender will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received a copy
of the L/C Application or L/C Amendment Application from the Company and, if
not, the Issuing Lender will provide the Administrative Agent with a copy
thereof. If and only if the Administrative Agent notifies the Issuing Lender on
or before the Business Day immediately preceding the proposed date of Issuance
of a Letter of Credit that the Issuing Lender may Issue such Letter of Credit,
then, subject to the terms and conditions hereof, the Issuing Lender shall, on
the requested date, Issue such Letter of Credit for the account of the Company
in accordance with the Issuing Lender's usual and customary business practices.
The Administrative Agent shall not give such notice if the Administrative Agent
has knowledge that (A) such Issuance is not then permitted under subsection
3.1(a) as a result of the limitations set forth in clause (1) or (2) thereof or
(B) the Issuing Lender has received a notice described in subsection 3.1(b)(ii).
The Administrative Agent will promptly notify the Lenders of any Letter of
Credit Issuance hereunder.
(c) From time to time while a Letter of Credit is outstanding
and prior to the Revolving Termination Date, the Issuing Lender will, upon the
written request of the Company received by the Issuing Lender (with a copy sent
by the Company to the Administrative Agent) at least four Business Days (or such
shorter time as the Issuing Lender and the Administrative Agent may agree in a
particular instance in their sole discretion) prior to the proposed date of
amendment, amend any Letter of Credit issued by it. Each such request for
amendment of a Letter of Credit shall be made by facsimile, confirmed
immediately in an original writing, made in the form of an L/C Amendment
Application and shall specify in form and detail satisfactory to the Issuing
Lender: (i) the Letter of Credit to be amended; (ii) the proposed date of
amendment of such Letter of Credit (which shall be a Business Day); (iii) the
nature of the proposed amendment; and (iv) such other matters as the Issuing
Lender may require. The Issuing Lender shall not have any obligation to amend
any Letter of Credit if the Issuing Lender would have no
obligation at such time to Issue such Letter of Credit in its amended form under
the terms of this Agreement.
(d) The Issuing Lender and the Lenders agree that, while a
Standby Letter of Credit is outstanding and prior to the Revolving Termination
Date, at the option of the Company and upon the written request of the Company
received by the Issuing Lender (with a copy sent by the
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Company to the Administrative Agent) at least four Business Days (or such
shorter time as the Issuing Lender and the Administrative Agent may agree in a
particular instance in their sole discretion) prior to the proposed date of
notification of extension, the Issuing Lender shall be entitled, with the
approval of the Administrative Agent, to authorize the automatic extension of
any Standby Letter of Credit issued by it. Each such request for extension of a
Standby Letter of Credit shall be made by facsimile, confirmed immediately in an
original writing, in the form of an L/C Amendment Application, and shall specify
in form and detail satisfactory to the Issuing Lender: (i) the Letter of Credit
to be extended; (ii) the proposed date of notification of extension of such
Letter of Credit (which shall be a Business Day); (iii) the revised expiry date
of such Letter of Credit (which, unless all Lenders otherwise consent in
writing, shall be prior to the Revolving Termination Date); and (iv) such other
matters as the Issuing Lender may require. The Issuing Lender shall not be under
any obligation to extend any Letter of Credit if: (A) the Issuing Lender would
have no obligation at such time to Issue or amend such Letter of Credit in its
extended form under the terms of this Agreement; or (B) the beneficiary of such
Letter of Credit does not accept the proposed extension of such Letter of
Credit. If any outstanding Letter of Credit shall provide that it shall be
automatically extended unless the beneficiary thereof receives notice from the
Issuing Lender that such Letter of Credit shall not be extended, and if at the
time of extension the Issuing Lender would be entitled to authorize the
automatic extension of such Letter of Credit in accordance with this subsection
3.2(d) upon the request of the Company but the Issuing Lender shall not have
received any L/C Amendment Application from the Company with respect to such
extension or other written direction by the Company with respect thereto, the
Issuing Lender shall nonetheless be permitted to allow such Letter of Credit to
be extended, subject to the approval of the Administrative Agent, and the
Company and the Lenders hereby authorize such extension, and, accordingly, the
Issuing Lender shall be deemed to have received an L/C Amendment Application
from the Company requesting such extension.
(e) The Issuing Lender may, at its election (or as required by
the Administrative Agent at the direction of the Required Lenders), deliver any
notices of termination or other communications to any Letter of Credit
beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry
date of such Letter of Credit to be, in the case of Standby Letters of Credit, a
date not later than the Revolving Termination Date, and in the case of
Commercial Letters of Credit, a date not later than 15 days prior to the
Revolving Termination Date.
(f) This Agreement shall control in the event of any conflict
with any L/C- Related Document (other than, as between the beneficiary and the
Issuing Lender, any Letter of Credit).
(g) The Issuing Lender will deliver to the Administrative
Agent, concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or extension of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or amendment
to or extension of a Letter of Credit.
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(h) The Issuing Lender shall deliver to the Administrative
Agent, on the last day of each calendar month (or, if such day is not a Business
Day, the next succeeding Business Day) and upon the date of each payment by the
Company of the letter of credit fee referred to in subsection 3.8(a), a report
setting forth as of such day the aggregate Effective Amount of all Letters of
Credit outstanding on such date, and the Administrative Agent shall promptly
forward copies of such report to all Revolving Lenders.
3.3 Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of Credit,
each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Lender a participation in
such Letter of Credit and each drawing thereunder in an amount equal to the
product of (i) such Revolving Lender's Revolving Percentage times (ii) the
maximum amount available to be drawn under such Letter of Credit and the amount
of such drawing, respectively.
(b) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or transferee thereof, the Issuing Lender will
promptly notify the Company and the Administrative Agent. The Company shall
reimburse the Issuing Lender on each date that any amount is paid by the Issuing
Lender under any Letter of Credit (each such date, an "Honor Date") in an amount
equal to the amount so paid by the Issuing Lender. If the Company fails to
reimburse the Issuing Lender for the full amount of any drawing under any Letter
of Credit on the Honor Date, the Issuing Lender will promptly notify the
Administrative Agent and the Administrative Agent will promptly notify each
Revolving Lender thereof, and the Company shall be deemed to have requested that
Base Rate Loans be made by the Revolving Lenders to be disbursed on the Honor
Date under such Letter of Credit, subject to the amount of the unutilized
portion of the Revolving Commitments and subject to the conditions set forth in
Section 5.2 other than subsection 5.2(a). Any notice given by the Issuing Lender
or the Administrative Agent pursuant to this subsection 3.3(b) may be oral if
immediately confirmed in writing (including by facsimile); provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(c) Each Revolving Lender shall upon any notice pursuant to
subsection 3.3(b) make available to the Administrative Agent for the account of
the Issuing Lender an amount in Dollars and in immediately available funds equal
to its Revolving Percentage of the amount of the drawing, whereupon the
participating Revolving Lenders shall (subject to subsection 3.3(d)) each be
deemed to have made a Revolving Loan consisting of a Base Rate Loan to the
Company in such amount. If any Revolving Lender so notified fails to make
available to the Administrative Agent for the account of the Issuing Lender the
amount of such Revolving Lender's Revolving Percentage of the amount of such
drawing by no later than 1:00 p.m. (Chicago time) on the Honor Date, then
interest shall accrue on such Revolving Lender's obligation to make such
payment, from the Honor Date to the date such Revolving Lender makes such
payment, at a rate per annum equal to the Federal Funds Rate in effect from time
to time during such period. The Administrative Agent will promptly give notice
of the occurrence of the
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Honor Date, but failure of the Administrative Agent to give any such notice on
the Honor Date or in sufficient time to enable any Revolving Lender to effect
such payment on such date shall not relieve such Revolving Lender from its
obligations under this Section 3.3.
(d) With respect to any unreimbursed drawing that is not
converted into Revolving Loans consisting of Base Rate Loans in whole or in
part, because of the Company's failure to satisfy the conditions set forth in
Section 5.2 (other than subsection 5.2(a), which need not be satisfied) or for
any other reason, the Company shall be deemed to have incurred from the Issuing
Lender an L/C Borrowing in the amount of such drawing, which L/C Borrowing shall
be due and payable on demand (together with interest) and shall bear interest at
a rate per annum equal to the Base Rate plus the Applicable Base Rate Margin
then in effect for Revolving Loans plus 2% per annum, and each Revolving
Lender's payment to the Issuing Lender pursuant to subsection 3.3(c) shall be
deemed payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Revolving Lender in satisfaction of its
participation obligation under this Section 3.3.
(e) Each Revolving Lender's obligation in accordance with this
Agreement to make Revolving Loans or L/C Advances, as contemplated by this
Section 3.3, as a result of a drawing under a Letter of Credit, shall be
absolute and unconditional and without recourse to the Issuing Lender and shall
not be affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Lender may have against
the Issuing Lender, the Company or any other Person for any reason whatsoever,
(ii) the occurrence or continuance of an Event of Default, an Unmatured Event of
Default or a Material Adverse Effect or (iii) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing; provided
that each Revolving Lender's obligation to make Revolving Loans under this
Section 3.3 is subject to the conditions set forth in Section 5.2.
3.4 Repayment of Participations. (a) Upon (and only upon) receipt by
the Administrative Agent for the account of the Issuing Lender of immediately
available funds from the Company (i) in reimbursement of any payment made by the
Issuing Lender under a Letter of Credit with respect to which any Revolving
Lender has paid the Administrative Agent for the account of the Issuing Lender
for such Revolving Lender's participation in such Letter of Credit pursuant to
Section 3.3 or (ii) in payment of interest thereon, the Administrative Agent
will pay to each Revolving Lender, in like funds as those received by the
Administrative Agent for the account of the Issuing Lender, the amount of such
Revolving Lender's Revolving Percentage of such funds, and the Issuing Lender
shall receive the amount of the Revolving Percentage of such funds of any
Revolving Lender that did not so pay the Administrative Agent for the account of
the Issuing Lender.
(b) If the Administrative Agent or the Issuing Lender is
required at any time to return to the Company, or to a trustee, receiver,
liquidator or custodian, or to any official in any Insolvency Proceeding, any
portion of any payment made by the Company to the Administrative Agent for the
account of the Issuing Lender pursuant to subsection 3.4(a) in reimbursement of
a payment
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made under a Letter of Credit or interest or fee thereon, each Revolving Lender
shall, on demand of the Administrative Agent, forthwith return to the
Administrative Agent or the Issuing Lender the amount of its Revolving
Percentage of any amount so returned by the Administrative Agent or the Issuing
Lender plus interest thereon from the date such demand is made to the date such
amount is returned by such Revolving Lender to the Administrative Agent or the
Issuing Lender, at a rate per annum equal to the Federal Funds Rate in effect
from time to time.
3.5 Role of the Issuing Lender. (a) Each Lender and the Company agree
that, in honoring any drawing under a Letter of Credit, the Issuing Lender shall
not have any responsibility to obtain any document (other than any sight draft
and certificate expressly required by such Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.
(b) No Agent-Related Person, Issuing Lender nor any of their
respective correspondents, participants or assignees shall be liable to any
Lender for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders (including the Required Lenders, as
applicable); (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; provided that this assumption is not intended to, and shall not,
preclude the Company's pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under this Agreement or any other
agreement. No Agent-Related Person, Issuing Lender nor any of their respective
correspondents, participants or assignees shall be liable or responsible for any
of the matters described in clauses (i) through (vii) of Section 3.6; provided
that, anything in such clauses to the contrary notwithstanding, the Company may
have a claim against the Issuing Lender, and the Issuing Lender may be liable to
the Company, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Company which the Company
proves were caused by the Issuing Lender's willful misconduct or gross
negligence or the Issuing Lender's willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of such Letter
of Credit. In furtherance and not in limitation of the foregoing: (i) the
Issuing Lender may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) the Issuing Lender shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
3.6 Obligations Absolute. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the Issuing Lender for a
drawing under a Letter of Credit, and to
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repay any L/C Borrowing and any drawing under a Letter of Credit converted into
Revolving Loans, shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement and each such other
L/C-Related Document under all circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement
or any L/C- Related Document;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Company in
respect of any Letter of Credit or any other amendment or waiver of or
any consent to departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any beneficiary or
any transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Issuing Lender
or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C-Related Documents or any
unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit;
(v) any payment by the Issuing Lender under any Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by the Issuing Lender under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
any Letter of Credit, including any arising in connection with any
Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the obligations of the
Company in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the Company or a guarantor.
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3.7 Cash Collateral Pledge. If any Letter of Credit remains outstanding
and partially or wholly undrawn as of the Revolving Termination Date, then the
Company shall immediately Cash Collateralize the L/C Obligations in an amount
equal to the maximum amount then available to be drawn under all Letters of
Credit.
3.8 Letter of Credit Fees. (a) The Company shall pay to the
Administrative Agent for the account of each Revolving Lender a letter of credit
fee with respect to each Letter of Credit equal to the L/C Fee Rate per annum of
the daily maximum amount available to be drawn on such Letter of Credit,
computed for each day such Letter of Credit is outstanding in arrears on the
last Business Day of each fiscal quarter; provided that, during the existence of
any Event of Default, the L/C Fee Rate shall be increased by 2% per annum.
(b) The Company shall pay to the Issuing Lender a letter of
credit fronting fee for each Letter of Credit Issued equal to 0.25% per annum of
the daily maximum amount available to be drawn on such Letter of Credit,
computed for each day such Letter of Credit is outstanding, on the last Business
Day of each fiscal quarter and on the Revolving Termination Date (or such later
date on which such Letter of Credit shall expire or be fully drawn).
(c) The letter of credit fees payable under subsection 3.8(a)
and the fronting fees payable under subsection 3.8(b) shall be due and payable
quarterly in arrears on the last Business Day of each fiscal quarter during
which Letters of Credit are outstanding, commencing on the first such quarterly
date to occur after the Restatement Date, to the Revolving Termination Date (or
such later date upon which all outstanding Letters of Credit shall expire or be
fully drawn), with the final payment to be made on the Revolving Termination
Date (or such later date). For purposes of calculating the fees payable under
subsection 3.8(a) and subsection 3.8(b), any undrawn Commercial Letter of Credit
shall be considered outstanding and available to be drawn upon for 15 days after
its expiry date.
(d) The Company shall pay to the Issuing Lender from time to
time on demand the normal issuance, payment, amendment and other processing
fees, and other standard costs and charges, of the Issuing Lender relating to
letters of credit as from time to time in effect.
3.9 Uniform Customs and Practice. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce most
recently at the time of issuance of any Letter of Credit shall (unless otherwise
expressly provided in such Letter of Credit) apply to each Letter of Credit.
3.10 Non-Dollar Letters of Credit. The Company, the Administrative
Agent, the Issuing Lender and all of the Lenders (i) agree that, upon the
request of the Company, the Issuing Lender may (in its sole discretion) issue
Letters of Credit ("Non-Dollar Letters of Credit") in currencies other than
Dollars and (ii) further agree as follows with respect to such Non-Dollar
Letters of Credit:
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(a) The Company agrees that its reimbursement obligation under
subsection 3.3(b) and any resulting L/C Borrowing, in each case in
respect of a drawing under any Non-Dollar Letter of Credit, (i) shall
be payable in Dollars at the Dollar Equivalent of such obligation in
the currency in which such Non-Dollar Letter of Credit was issued
(determined on the date of payment) and (ii) shall bear interest at a
rate per annum equal to the sum of the Overnight Rate plus the
Applicable Offshore Rate Margin for Revolving Loans plus 3% for each
day from and including the Honor Date to but excluding the date such
obligation is paid in full (it being understood that any payment
received after 10:30 a.m., Chicago time, on any day shall be deemed
received on the following Business Day).
(b) Each Lender agrees that its obligation to make Revolving
Loans under subsection 3.3(b) and to make L/C Advances for any unpaid
reimbursement obligation or L/C Borrowing in respect of a drawing under
any Non-Dollar Letter of Credit shall be payable in Dollars at the
Dollar Equivalent of such obligation in the currency in which such
Non-Dollar Letter of Credit was issued (calculated on the date of
payment) (and any such amount which is not paid when due shall bear
interest at a rate per annum equal to the Overnight Rate plus,
beginning on the third Business Day after such amount was due, the
Applicable Offshore Rate Margin for Revolving Loans).
(c) For purposes of determining whether there is availability
for the Company to request, continue or convert any Loan, or request,
extend or increase the face amount of any Letter of Credit, the Dollar
Equivalent of the Effective Amount of each Non- Dollar Letter of Credit
shall be calculated on the date such Loan is to be made, continued or
converted or such Letter of Credit is to be issued, extended or
increased.
(d) For purposes of determining (i) the amount of the unused
portion of the Revolving Commitments under subsection 2.11(b), (ii) the
letter of credit fee under subsection 3.8(a) and (iii) the letter of
credit fronting fee under subsection 3.8(b), the Dollar Equivalent of
the Effective Amount of any Non-Dollar Letter of Credit shall be
determined on each of (1) the date of an issuance, extension or change
in the stated amount of such Non-Dollar Letter of Credit, (2) the date
of any payment by the Issuing Lender in respect of a drawing under such
Non-Dollar Letter of Credit, (3) the last day of each calendar month
and (4) each day on which the aggregate amount of the Revolving
Commitments and/or L/C Commitment is reduced.
(e) If, on the last day of any calendar month or any day on
which the aggregate amount of the Revolving Commitments and/or L/C
Commitment is reduced, the sum of the Effective Amount of all Revolving
Loans plus the Effective Amount of all Letters of Credit plus the
Effective Amount of all Swingline Loans (valuing the Effective Amount
of, and all reimbursement obligations and L/C Borrowings of the Company
in respect of, any Non-Dollar Letter of Credit at the Dollar Equivalent
thereof as of such day) would exceed the aggregate
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amount of the Revolving Commitments, then the Company will immediately
eliminate such excess by prepaying Revolving Loans and/or Swingline
Loans and/or causing one or more Letters of Credit to be reduced or
terminated.
(f) If, for the purposes of obtaining judgment in any court,
it is necessary to convert a sum due in respect of any Non-Dollar
Letter of Credit in one currency into another currency, the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Issuing Lender could purchase the first currency with
such other currency on the Business Day preceding that on which final
judgment is given. The obligation of the Company in respect of any such
sum due from it to the Administrative Agent, the Issuing Lender or any
Lender hereunder shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated
in accordance with the applicable provisions of the applicable
Non-Dollar Letter of Credit (the "Agreement Currency"), be discharged
only to the extent that on the Business Day following receipt by the
Issuing Lender of any sum adjudged to be so due in the Judgment
Currency, the Issuing Lender may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency.
If the amount of the Agreement Currency so purchased is less than the
sum originally due to the Issuing Lender in the Agreement Currency, the
Company agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent, the Issuing Lender or
the Lender to whom such obligation was owing against such loss. If the
amount of the Agreement Currency so purchased is greater than the sum
originally due to the Issuing Lender in such currency, the Issuing
Lender agrees to return the amount of any excess to the Company (or to
any other Person who may be entitled thereto under applicable law).
(g) For purposes of this Section, "Overnight Rate" means, for
any day, the rate of interest per annum at which overnight deposits in
the applicable currency, in an amount approximately equal to the amount
with respect to which such rate is being determined, would be offered
for such day by the London Branch of BofA to major banks in the London
or other applicable offshore interbank market. The Overnight Rate for
any day which is not a Business Day (or on which dealings are not
carried on in the applicable offshore interbank market) shall be the
Overnight Rate for the immediately preceding Business Day.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes. (a) Any and all payments by the Company to each Lender or
the Administrative Agent under this Agreement and any other Loan Document shall
be made free and clear of, and without deduction or withholding for, any Taxes.
In addition, the Company shall pay all Other Taxes.
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(b) Subject to subsection 4.1(g), the Company agrees to
indemnify and hold harmless each Lender and the Administrative Agent for the
full amount of Taxes, Other Taxes and Further Taxes paid by such Lender in the
amount necessary to preserve the amount such Lender would have received
hereunder if such Taxes, Other Taxes or Further Taxes had not been imposed, and
any liability (including penalties, interest, additions to tax and reasonable
out-of-pocket expenses) arising therefrom or with respect thereto, whether or
not such Taxes, Other Taxes or Further Taxes were correctly or legally asserted;
provided, however, that the Company shall not have to indemnify any Lender or
the Administrative Agent for Taxes, Other Taxes, Further Taxes, penalties,
additions to tax or expenses arising as a result of the gross negligence or
wilful misconduct of such Person. Payment under this subsection 4.1(b) shall be
made within 30 days from the date such Lender or the Administrative Agent makes
written demand therefor and provides reasonable evidence of the payment of such
Taxes, Other Taxes or Further Taxes.
(c) If the Company shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any sum
payable hereunder to any Lender or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section), such Lender or the Administrative Agent, as the case may
be, receives and retains an amount equal to the sum it would have
received and retained had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and withholdings;
and
(iii) the Company shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in
accordance with applicable law.
(d) Within 10 days after the date the Company receives any
receipt for the payment of Taxes, Other Taxes or Further Taxes, the Company
shall furnish to the Administrative Agent the original or a certified copy of
such receipt evidencing payment thereof, or other evidence of payment
satisfactory to the Administrative Agent and the Administrative Agent will
promptly provide a copy thereof to all interested Lenders.
(e) If the Company is required to pay additional amounts to
any Lender or the Administrative Agent pursuant to subsection (b) of this
Section or Section 4.3, then such Lender shall use reasonable efforts
(consistent with legal and regulatory restrictions) to change the jurisdiction
of its Lending Office so as to reduce or eliminate any such additional payment
by the Company which may thereafter accrue, if such change in the sole judgment
of such Lender is not otherwise disadvantageous to such Lender.
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(f) If any Lender or the Administrative Agent receives a
refund in respect of any Taxes, Other Taxes or Further Taxes as to which it has
been indemnified by the Company pursuant to this Section 4.1, it shall repay
such refund (to the extent of amounts that have been paid by the Company under
this Section 4.1 with respect to such refund and not previously reimbursed) to
the Company, net of all out-of-pocket expenses of such Lender or the
Administrative Agent and without any interest.
(g) The Company shall not be required to pay additional
amounts to the Administrative Agent or any Lender pursuant to this Section 4.1
to the extent that the obligation to pay such additional amounts would not have
arisen but for a failure by the Administrative Agent or such Lender to comply
with Section 10.10.
4.2 Illegality. (a) After the date hereof, if any Lender determines
that the introduction of any Requirement of Law, or any change in any
Requirement of Law, or in the interpretation or administration of any
Requirement of Law, has made it unlawful, or that any central bank or other
Governmental Authority has asserted that it is unlawful, for such Lender or its
applicable Lending Office to make Offshore Rate Loans, then, on notice thereof
by the Lender to the Company through the Administrative Agent, any obligation of
such Lender to make Offshore Rate Loans shall be suspended until such Lender
notifies the Administrative Agent and the Company that the circumstances giving
rise to such determination no longer exist.
(b) After the date hereof, if a Lender determines that it is
unlawful to maintain any Offshore Rate Loan, the Company shall, upon its receipt
of notice of such fact and demand from such Lender (with a copy to the
Administrative Agent), prepay in full such Offshore Rate Loan, together with
interest accrued thereon and any amount required under Section 4.4, either on
the last day of the Interest Period thereof, if such Lender may lawfully
continue to maintain such Offshore Rate Loan to such day, or on such earlier
date on which such Lender may no longer lawfully continue to maintain such
Offshore Rate Loan (as determined by such Lender). If the Company is required to
so prepay any Offshore Rate Loan, then concurrently with such prepayment, the
Company shall borrow from the affected Lender, in the amount of such repayment,
a Base Rate Loan.
(c) If the obligation of any Lender to make or maintain
Offshore Rate Loans has been terminated or suspended pursuant to subsection (a)
or (b) above, all Loans which would otherwise be made by such Lender as Offshore
Rate Loans shall be instead Base Rate Loans.
(d) Before giving any notice to the Administrative Agent or
demand upon the Company under this Section, the affected Lender shall designate
a different Lending Office with respect to its Offshore Rate Loans if such
designation will avoid the need for giving such notice or making such demand and
will not, in the sole judgment of such Lender, be illegal or otherwise
disadvantageous to such Lender.
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4.3 Increased Costs and Reduction of Return. (a) After the date hereof,
if any Lender determines that, due to either (i) the introduction of or any
change (other than any change by way of imposition of or increase in reserve
requirements included in the calculation of the Offshore Rate) in or in the
interpretation of any law or regulation or (ii) compliance by such Lender with
any guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost to such Lender of agreeing to make or making, funding or maintaining any
Offshore Rate Loan or participating in Letters of Credit or, in the case of the
Issuing Lender, any increase in the cost to the Issuing Lender of agreeing to
issue, issuing or maintaining any Letter of Credit or of agreeing to make or
making, funding or maintaining any unpaid drawing under any Letter of Credit,
then the Company shall be liable for, and shall from time to time, upon demand
(with a copy of such demand to be sent to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender, additional amounts as are
sufficient to compensate such Lender for such increased costs.
(b) After the date hereof, if any Lender shall have determined
that (i) the introduction of any Capital Adequacy Regulation, (ii) any change in
any Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration thereof
or (iv) compliance by such Lender (or its Lending Office) or any corporation
controlling such Lender with any Capital Adequacy Regulation, affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy
and such Lender's desired return on capital) determines that the amount of such
capital is increased as a consequence of any of its Commitments, Loans, credits
or obligations under this Agreement, then, upon demand of such Lender to the
Company through the Administrative Agent, the Company shall pay to such Lender,
from time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender for such increase.
(c) This Section 4.3 shall not require the Company to
reimburse the Administrative Agent or any Lender for any Taxes which are
otherwise covered by the indemnity set forth in Section 4.1 or any Excluded
Taxes.
4.4 Funding Losses. The Company shall reimburse each Lender and hold
each Lender harmless from any loss or expense which such Lender may sustain or
incur as a consequence of:
(a) the failure of the Company to make on a timely basis any
payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert
a Loan after the Company has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/Continuation;
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(c) the failure of the Company to make any prepayment in
accordance with any notice delivered under Section 2.7;
(d) the prepayment (including pursuant to Section 2.8) or other
payment (including after acceleration thereof) of an Offshore Rate Loan on a day
that is not the last day of the relevant Interest Period; or
(e) the automatic conversion under subsection 2.4(a) of any
Offshore Rate Loan to a Base Rate Loan on a day that is not the last day of the
relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Company to the Lenders under this Section and
under subsection 4.3(a), each Offshore Rate Loan made by a Lender (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the IBOR used in determining the Offshore Rate for
such Offshore Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded.
4.5 Inability to Determine Rates. If the Administrative Agent
determines that for any reason adequate and reasonable means do not exist for
determining the Offshore Rate for any requested Interest Period with respect to
a proposed Offshore Rate Loan, or the Required Lenders determine (and notify the
Administrative Agent) that the Offshore Rate applicable pursuant to subsection
2.10(a) for any requested Interest Period with respect to a proposed Offshore
Rate Loan does not adequately and fairly reflect the cost to such Lenders of
funding such Loan, the Administrative Agent will promptly so notify the Company
and each Lender. Thereafter, the obligation of the Lenders to make or maintain
Offshore Rate Loans hereunder shall be suspended until the Administrative Agent,
with the consent of the Required Lenders, revokes such notice in writing. Upon
receipt of such notice, the Company may revoke any Notice of Borrowing or Notice
of Conversion/Continuation then submitted by it. If the Company does not revoke
such Notice, the Lenders shall make, convert or continue the Loans, as proposed
by the Company, in the amount specified in the applicable notice submitted by
the Company, but such Loans shall be made, converted or continued as Base Rate
Loans instead of Offshore Rate Loans.
4.6 Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Article IV shall deliver to the Company (with a copy to
the Administrative Agent) a certificate setting forth in reasonable detail the
basis for such claim and a calculation of the amount payable to such Lender and
such certificate shall be prima facie evidence thereof.
4.7 Substitution of Lenders. In the event the Company becomes obligated
to pay additional amounts to any Lender pursuant to Section 4.3 or the
circumstances described in Section 4.2 exist with
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respect to any Lender, the Company may designate another Lender (with such other
Lender's consent) which is acceptable to the Administrative Agent, the Issuing
Lender and the Swingline Lender in their sole discretion (such other Lender
being herein called a "Replacement Lender") to purchase the Loans of such Lender
and such Lender's rights hereunder, without recourse to or warranty by, or
expense to, such Lender for a purchase price equal to the outstanding principal
amount of the Loans payable to such Lender plus any accrued but unpaid interest
on such Loans and accrued but unpaid commitment fees in respect of such Lender's
Commitments and any other amounts payable to such Lender under this Agreement,
and to assume all the obligations of such Lender hereunder, and, upon such
purchase, such Lender shall no longer be a party hereto or have any rights
hereunder (other than indemnities and other similar rights applicable to such
Lender prior to the date of such assignment and assumption) and shall be
relieved from all obligations to the Company hereunder, and the Replacement
Lender shall succeed to the rights and obligations of such Lender hereunder;
without limiting the generality of the foregoing, the Replacement Lender or the
Company shall bear the processing fee referred to in subsection 11.8(a) in any
such substitution.
4.8 Survival. The agreements and obligations of the Company in this
Article IV shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Effectiveness. This Agreement shall become effective
on the date (the "Restatement Date") each of the conditions precedent set forth
in this Section 5.1 has been satisfied or waived with the consent of the
Required Lenders (or, with respect to subsection 5.1(f), with the consent of the
Persons entitled to receive payment). The effectiveness of this Agreement is
subject to the conditions that the Administrative Agent shall have received all
of the following, in form and substance satisfactory to each Agent and each
Lender, and (except for the Notes) in sufficient copies for the Administrative
Agent and each Lender:
(a) Credit Agreement. This Agreement executed by the Company and
the Required Revolving Lenders, the Required Term A Lenders and the Required
Term B Lenders.
(b) Incumbency. A certificate of the Secretary or an Assistant
Secretary of the Company, Parent and Xxxx Mac certifying the names and true
signatures of the officers of such Person authorized to execute, deliver and
perform this Agreement and all other Loan Documents to be delivered by it
hereunder.
(c) Organization Documents; Good Standing. Each of the following
documents:
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(i) for the Company, Parent and Xxxx Mac, the articles or
certificate of incorporation and the bylaws of each such Person, as the
case may be, as in effect on the Restatement Date, certified by the
Secretary or Treasurer of such Person, as of the Restatement Date; and
(ii) a good standing certificate for the Company, Parent and
Xxxx Mac from the Secretary of State (or similar applicable
Governmental Authority) of the jurisdiction of its organization.
(d) Legal Opinions.
(i) An opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel
to the Company, Parent and Xxxx Mac, substantially in the form of
Exhibit I-1, and
(ii) An opinion of Xxxxxxx X. Xxxxxxx, General Counsel to the
Company and Parent and counsel to Xxxx Mac, substantially in the form
of Exhibit I-2.
(e) Notes. Notes payable to the order of each of the Lenders who
have requested a Note under subsection 2.2(b) (collectively, the "New Notes").
(f) Payment of Fees. Evidence of payment by the Company of all
accrued and unpaid fees, costs and expenses to the extent then due and payable
on the Restatement Date, together with Attorney Costs of the Administrative
Agent and the Arranger to the extent invoiced at least three Business Days prior
to the Restatement Date, plus such additional amounts of Attorney Costs as shall
constitute the Administrative Agent's reasonable estimate of Attorney Costs
incurred or to be incurred by it or the Arranger through the Restatement Date
(provided that such estimate shall not thereafter preclude final settling of
accounts between the Company and the Administrative Agent), including such
costs, fees and expenses arising under or referenced in Section 11.4.
(g) Confirmation. A confirmation from Parent and Xxxx Mac,
substantially in the form of Exhibit T hereto.
(h) Certificate. A certificate signed by a Responsible Officer,
dated as of the Restatement Date, stating that:
(i) the representations and warranties contained in Article VI
are true and correct in all material respects on and as of such date,
as though made on and as of such date;
(ii) no Event of Default or Unmatured Event of Default exists
or will result from the effectiveness of this Agreement; and
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(iii) no event or circumstance has occurred since June 30,
1999 that has resulted, or would reasonably be expected to result, in a
Material Adverse Effect.
(i) Other Documents. Such other approvals, opinions, documents or
materials as any Agent or any Lender may reasonably request.
5.2 Conditions to All Credit Extensions. The obligation of each Lender
to make any Loan to be made by it and the obligation of the Issuing Lender to
Issue any Letter of Credit is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or Issuance Date:
(a) Notice, Application. In the case of any Loan, the
Administrative Agent shall have received a Notice of Borrowing and, in the case
of any Issuance of any Letter of Credit, the Issuing Lender and the
Administrative Agent shall have received an L/C Application or L/C Amendment
Application, as required under Section 3.2.
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VI shall be true and correct in all
material respects on and as of such Borrowing Date or Issuance Date with the
same effect as if made on and as of such Borrowing Date or Issuance Date (except
to the extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such earlier date).
(c) No Existing Default. No Event of Default or Unmatured Event
of Default shall exist or shall result from such Borrowing or Issuance.
Each Notice of Borrowing and L/C Application or L/C Amendment Application
submitted by the Company hereunder shall constitute a representation and
warranty by the Company hereunder, as of the date of such notice and as of the
applicable Borrowing Date or Issuance Date, that the conditions in this Section
5.2 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each Agent and each Lender that:
6.1 Corporate Existence and Power. Parent, the Company and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
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(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals (i) to own its assets and to carry on its
business and (ii) to execute, deliver and perform its obligations under the Loan
Documents;
(c) is duly qualified as a foreign corporation and is licensed
and in good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification or license; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in clause (b)(i), (c) or (d), to the extent
that the failure to do so would not reasonably be expected to have a Material
Adverse Effect.
6.2 Corporate Authorization; No Contravention. The execution and
delivery by the Company of this Agreement and each other Loan Document to which
it is a party, the Borrowings hereunder, the execution and delivery by Parent
and each Subsidiary of each Loan Document to which it is a party, the
performance by each of the Company, Parent and each Subsidiary of its
obligations under each Loan Document to which it is a party and the incurrence
of the Obligations (i) are within the corporate powers of the Company, Parent
and each Subsidiary, as applicable, (ii) have been duly authorized by all
necessary corporate action on the part of the Company, Parent and each
Subsidiary (including any necessary shareholder action) and (iii) do not and
will not:
(a) contravene the terms of any of the Organization Documents of
the Company, Parent or any Subsidiary;
(b) conflict with or result in a breach or contravention of, or
the creation of any Lien (other than Liens in favor of the Administrative Agent)
under, any document evidencing any Contractual Obligation to which the Company,
Parent or any Subsidiary is a party or any order, injunction, writ or decree of
any Governmental Authority to which the Company, Parent, any Subsidiary or any
of their properties are subject; or
(c) violate any Requirement of Law.
6.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required for the execution, delivery or
performance by, or enforcement against, (i) the Company of this Agreement or any
other Loan Document to which it is a party or (ii) Parent or any Subsidiary with
respect to each Loan Document to which it is a party, except, in each case, for
filings required to perfect Liens in favor of the Administrative Agent granted
under the Loan Documents.
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6.4 Binding Effect. This Agreement and each other Loan Document to
which the Company is a party constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability; and with respect to Parent and
each Subsidiary, each Loan Document to which such Person is a party constitutes
the legal, valid and binding obligation of such Person, enforceable against such
Person in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally and by equitable principles relating to
enforceability.
6.5 Litigation. Except as specifically disclosed in Schedule 6.5, there
are no actions, suits, proceedings, claims or disputes pending or, to the best
knowledge of the Company, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against Parent, the Company or
any Subsidiary or any of their respective properties which: (a) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby or thereby; or (b) would reasonably be expected
to have a Material Adverse Effect. No injunction, writ, temporary restraining
order or other order of any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain the execution, delivery
or performance of this Agreement or any other Loan Document, or directing that
the transactions provided for herein or therein not be consummated as herein or
therein provided.
6.6 No Default. No Event of Default or Unmatured Event of Default
exists or would result from the incurring of any Obligations by the Company. As
of the Restatement Date, neither the Company nor any Subsidiary is in default
under or with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, would reasonably be expected to
have a Material Adverse Effect, or that would, if such default had occurred
after the Restatement Date, create an Event of Default under subsection 9.1(e).
6.7 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law. To the
best knowledge of the Company, nothing has occurred which would cause any Plan
which is intended to qualify under Section 401(a) of the Code to fail to be so
qualified. The Company and each ERISA Affiliate has made all required
contributions to any Plan subject to Section 412 of the Code, and no application
for a funding waiver or an extension of any amortization period pursuant to
Section 412 of the Code has been made within the last five years with respect to
any Plan.
(b) There are no pending or, to the best knowledge of the
Company, threatened claims, actions or lawsuits, or actions by any Governmental
Authority, with respect to any Plan which has resulted or would reasonably be
expected to result in a Material Adverse Effect. There has been
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no prohibited transaction or violation of the fiduciary responsibility rules
with respect to any Plan which has resulted or would reasonably be expected to
result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur that would reasonably be expected to have a Material Adverse Effect; (ii)
no contribution failure has occurred with respect to a Pension Plan sufficient
to give rise to a Lien under Section 302(f) of ERISA; and (iii) except for
liability the Company has incurred under the agreement between the Company and
the PBGC, dated April 7, 1997, as amended, neither the Company nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any material liability
to the PBGC under Title IV of ERISA with respect to any Pension Plan.
6.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans are
to be used solely for the purposes set forth in and permitted by Sections 7.13
and 8.7. Neither the Company nor any Subsidiary is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
6.9 Title to Properties. Each of the Company and each Subsidiary has
good record and marketable title in fee simple to, or a valid leasehold interest
in, all real property necessary or used in the ordinary conduct of its
businesses, except for such defects in title as would not, individually or in
the aggregate, have a Material Adverse Effect. Each of the Company and each
Subsidiary has good title to all their other respective material properties and
assets (except for those assets disposed of not in violation of this Agreement
and the other Loan Documents and except for encumbrances and title defects that
would not be reasonably likely to have a Material Adverse Effect). As of the
Restatement Date, the property of the Company and its Subsidiaries is subject to
no Liens, other than Permitted Liens.
6.10 Taxes. Parent, the Company and its Subsidiaries have filed all
Federal and State income tax returns and all other material tax returns and
reports required to be filed, and have paid all Federal and State income taxes
and all other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in accordance
with GAAP. There is no proposed tax assessment against Parent, the Company or
any Subsidiary that would, if made, have a Material Adverse Effect. The Tax
Sharing Agreement is the only agreement among Parent, the Company and its
Subsidiaries regarding tax sharing, tax reimbursement or tax indemnification.
6.11 Financial Condition. (a) The audited consolidated financial
statements of Parent dated June 30, 1997, June 30, 1998 and June 30, 1999, and
the related consolidated statements of income or operations, shareholders'
equity and cash flows for the fiscal periods ended on such dates:
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(i) were prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, except as otherwise expressly
noted therein;
(ii) present fairly the financial condition of Parent and its
Subsidiaries as of the dates thereof and results of operations for the
periods covered thereby; and
(iii) except as specifically disclosed in Schedule 6.11, show
all material indebtedness and other liabilities, direct or contingent,
of Parent and its Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Contingent Obligations,
to the extent required by GAAP to be shown on such financial
statements.
(b) Since June 30, 1999, there has been no Material Adverse
Effect.
6.12 Regulated Entities. None of Parent, the Company or any Subsidiary
is an "investment company" within the meaning of the Investment Company Act of
1940. None of Parent, the Company or any Subsidiary is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
6.13 No Burdensome Restrictions. None of Parent, the Company nor any
Subsidiary is a party to or bound by any Contractual Obligation or subject to
any restriction in any Organization Document or any Requirement of Law which
would reasonably be expected to have a Material Adverse Effect.
6.14 Copyrights, Patents, Trademarks and Licenses, etc. The Company and
its Subsidiaries own or are licensed or otherwise have the right to use all of
the patents, trademarks, service marks, trade names, copyrights, trade secrets
and other similar rights ("Intellectual Property") that are necessary for the
operation of their respective businesses, without conflict with the rights of
any other Person except for Intellectual Property the failure of which to own or
be licensed or otherwise have the right to use, individually or in the
aggregate, would not be reasonably likely to have a Material Adverse Effect. All
of such Intellectual Property is subsisting, valid and enforceable, except to
the extent that the failure to be subsisting, valid and enforceable would not be
reasonably expected to have a Material Adverse Effect. Except to the extent set
forth on Schedule 6.14, there is no individual item of Intellectual Property the
loss of which would reasonably be expected to have a Material Adverse Effect. To
the best knowledge of the Company, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Company or any Subsidiary infringes upon any
rights held by any other Person except for any infringement which, individually
or in the aggregate, would not reasonably likely to have a Material Adverse
Effect. Except as specifically disclosed on Schedule 6.5, no claim or litigation
regarding any of the foregoing is pending or threatened against the Company or
any Subsidiary, and no patent, invention, device, application, principle or any
statute, law, rule, regulation, standard or code,
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relating in each case to Intellectual Property, is, to the knowledge of the
Company, pending or proposed, which, in either case, would reasonably be
expected to have a Material Adverse Effect.
6.15 Subsidiaries. As of the Restatement Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
6.15 hereto and has no equity investments in any other corporation or entity
other than those specifically disclosed in part (b) of Schedule 6.15. As of the
Restatement Date, the Company has no Material Subsidiaries.
6.16 Insurance. Except as specifically disclosed in Schedule 6.16, the
properties of the Company and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Company, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where the Company or such Subsidiary operates.
6.17 Solvency, etc. On the Restatement Date (or, in the case of any
Person that becomes a party to any Loan Document after the Restatement Date, on
the date such Person becomes such a party), and immediately prior to and after
giving effect to the Issuance of each Letter of Credit and each Borrowing
hereunder and the use of the proceeds thereof, (a) each of the Company, Parent
and each Material Subsidiary will not have an unreasonably small capital, (b)
each of the Company's, Parent's and each Material Subsidiary's assets will
exceed its liabilities, (c) each of the Company, Parent and each Material
Subsidiary will be solvent, will be able to pay its liabilities as they mature
and (d) both the fair value and fair saleable value of the assets of the
Company, Parent and each Material Subsidiary exceeds the liabilities,
respectively, of each of the Company, Parent and each Material Subsidiary.
6.18 Real Property. Set forth on Schedule 6.18 is a complete and
accurate list, as of the Restatement Date, of the address and legal description
of any real property owned by the Company or any Subsidiary.
6.19 Swap Obligations. Neither the Company nor any of its Subsidiaries
has incurred any outstanding obligations under any Swap Contracts, other than
Permitted Swap Obligations. The Company has undertaken its own independent
assessment of its consolidated assets, liabilities and commitments and has
considered appropriate means of mitigating and managing risks associated with
such matters and has not relied on any swap counterparty or any Affiliate of any
swap counterparty in determining whether to enter into any Swap Contract.
6.20 Senior Indebtedness. The Company's obligation to pay the
Obligations, including interest thereon and all fees, costs, expenses and
indemnities related thereto, constitutes "Designated Senior Debt" of the Company
as such term is defined in the Subordinated Indenture. Parent's obligation to
pay its Guaranty Obligations under the Parent Guaranty constitutes "Guarantor
Senior Debt" of Parent as such term is defined in the Subordinated Indenture.
The Company acknowledges that the Lenders and the Administrative Agent have
entered into this Agreement, and have extended Commitments, in
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reliance upon the subordination provisions in the Subordinated Notes and the
Subordinated Indenture. If any Qualified Notes are outstanding, the foregoing
representation and warranty shall be deemed made with respect to Qualified Notes
and the related Qualified Indenture to the same extent made with respect to
Subordinated Notes and the Subordinated Indenture.
6.21 Environmental Warranties. Except as set forth in Schedule 6.21:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Company or any of its Subsidiaries are in
compliance with all Environmental Laws, except for such non-compliance as would
not reasonably be expected to result in a Material Adverse Effect;
(b) there are no pending or, to the best knowledge of the
Company, threatened Environmental Claims, except for such Environmental Claims
that are not reasonably likely, either singly or in the aggregate, to result in
a Material Adverse Effect;
(c) there have been no Releases of Hazardous Materials at, on or
under any property now or, to the best of the Company's knowledge, previously
owned or leased by the Company or any of its Subsidiaries that, singly or in the
aggregate, have, or may reasonably be expected to have, a Material Adverse
Effect;
(d) the Company and its Subsidiaries have been issued and are in
compliance with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters and necessary or desirable for
their businesses, except to the extent that the failure to have or comply with
such permits, certificates, approvals, licenses and other authorizations
relating to environmental matters would not be reasonably likely to have a
Material Adverse Effect;
(e) no property now or, to the best of the Company's knowledge,
previously owned or leased by the Company or any of its Subsidiaries is listed
or proposed for listing (with respect to owned property only) on the National
Priorities List pursuant to CERCLA, or, to the best of the Company's knowledge,
is on the CERCLIS or on any similar state list of sites requiring investigation
or clean-up, except, in each case, for any such listing that, singly or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect;
and
(f) to the best of the Company's knowledge, neither the Company
nor any Subsidiary of the Company has directly transported or directly arranged
for the transportation of any Hazardous Material to any location which is listed
or proposed for listing on the National Priorities List pursuant to CERCLA, or
which is the subject of Federal, state or local enforcement actions or other
investigations which may lead to Environmental Claims against the Company or
such Subsidiary except, in each case, to the extent that the foregoing would not
reasonably be expected to have a Material Adverse Effect.
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6.22 Year 2000. The Company has reviewed the areas within the business
and operations of the Company and each Subsidiary which could be adversely
affected by, and have developed programs to address on a timely basis, the "Year
2000 Problem" (that is, the risk that computer applications, as well as embedded
microchips in non-computing devices, used by the Company or any Subsidiary may
be unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999). Based on such
review and program, the Company reasonably believes that the "Year 2000 Problem"
will not result in a Material Adverse Effect.
6.23 Full Disclosure. None of the representations or warranties made by
Parent, the Company or any Subsidiary in the Loan Documents as of the date such
representations and warranties are made or deemed made and none of the written
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of Parent, the Company or any Subsidiary in connection with the
Loan Documents, considering each of the foregoing and in the context in which it
was made and together with all other representations, warranties and written
statements theretofore furnished by Parent, the Company and its Subsidiaries to
the Administrative Agent and the Lenders in connection with the Loan Documents,
contains any untrue statement of a material fact or omits any material fact
required to be stated therein or necessary to make such representation, warranty
or written statement, in light of the circumstances under which it is made, not
misleading as of the time when made or delivered; provided that the Company's
representation and warranty as to any forecast, projection or other statement
regarding future performance, future financial results or other future
development is limited to the fact that such forecast, projection or statement
was prepared in good faith on the basis of information and assumptions that the
Company believed to be reasonable as of the date such material was prepared (it
being understood that projections are subject to significant uncertainties and
contingencies, many of which are beyond the Company's control, and that no
assurance can be given that the projections will be realized).
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
7.1 Financial Statements. The Company shall deliver to the
Administrative Agent (which shall promptly provide copies to each Lender), in
form and detail satisfactory to the Required Lenders:
(a) as soon as available, but not later than 90 days after the
end of each fiscal year, a copy of the audited consolidated balance sheet of
Parent and its Subsidiaries as at the end of such
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year and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, and accompanied by
(i) the opinion of a nationally-recognized independent public accounting firm
(the "Independent Auditor"), which report (x) shall state that such consolidated
financial statements present fairly the consolidated financial position of
Parent and its Subsidiaries for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years and (y) shall not be qualified or
limited because of a restricted or limited examination by the Independent
Auditor of any material portion of Parent's or any of its Subsidiary's records
and (ii) a comparison with the budget for such fiscal year;
(b) Promptly when available, and in any event within 30 days
after the end of each month that is not the end of a fiscal quarter, and within
45 days after the end of each month that is the end of a fiscal quarter (other
than the last month of each fiscal year), a copy of the unaudited consolidated
balance sheet of Parent and its Subsidiaries as of the end of such month and the
related consolidated statements of income, shareholders' equity and cash flows
for the period commencing on the first day and ending on the last day of such
month, including a comparison with the corresponding month and period of the
previous fiscal year and a comparison with the budget for such month and for
such period of the current fiscal year, together with a certificate of a
Responsible Officer of the Company that each such statement fairly presents the
financial condition and results of operations (subject to normal year-end audit
adjustments) of Parent and its Subsidiaries and has been prepared in accordance
with GAAP consistently applied; and
(c) Not later than 60 days after the end of each fiscal year, a
copy of the projections of Parent of the consolidated operating budget and cash
flow budget of Parent and its Subsidiaries for the succeeding fiscal year
(including an explanation of the assumptions used in preparing such budgets),
such projections to be accompanied by a certificate of a Responsible Officer of
the Company to the effect that (i) such projections were prepared by the Company
in good faith, (ii) the Company has a reasonable basis for the assumptions
contained in such projections and (iii) such projections have been prepared
according to such assumptions.
7.2 Certificates; Other Information. The Company shall furnish to the
Administrative Agent (and the Administrative Agent will promptly distribute
copies of the same to the Lenders):
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the Independent Auditor
stating that in making the examination necessary therefor no knowledge was
obtained of any Event of Default or Unmatured Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a) and each set of quarterly statements referred
to in subsection 7.1(b), a Compliance Certificate executed by a Responsible
Officer;
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(c) promptly, copies of all financial statements and regular,
periodic or special reports (including Forms 10K, 10Q and 8K) that Parent, the
Company or any Subsidiary may make to, or file with, the SEC;
(d) promptly from time to time, any notices (including notices of
default or acceleration thereunder) received from any holder or trustee of,
under or with respect to any Subordinated Debt of the Company;
(e) forthwith upon any Qualified Refinancing or Qualified Parent
Refinancing, a copy of the related Qualified Indenture or Qualified Parent
Indenture, certified as true and correct by the Secretary or an Assistant
Secretary of the Company or Parent, as applicable;
(f) within 30 days of the end of each month, a Borrowing Base
Certificate dated as of the end of such month and executed by a Responsible
Officer (provided that (i) the Company may deliver a Borrowing Base Certificate
more frequently if it chooses and (ii) after an Event of Default shall have
occurred and be continuing, the Required Revolving Lenders may request that the
Company deliver Borrowing Base Certificates more frequently); and
(g) promptly, such additional information regarding the business,
financial or corporate affairs of Parent, the Company or any Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.
7.3 Notices. Promptly upon a Responsible Officer obtaining knowledge
thereof, the Company shall notify the Administrative Agent (and the
Administrative Agent will promptly distribute such notice to the Lenders) of:
(a) the occurrence of any Event of Default or Unmatured Event of
Default;
(b) any matter that has resulted or would reasonably be expected
to result in a Material Adverse Effect, including, if applicable, (i) any breach
or non-performance of, or any default under, a Contractual Obligation of the
Company or any Subsidiary, (ii) any dispute, litigation, investigation,
proceeding or suspension between the Company or any Subsidiary and any
Governmental Authority or (iii) the commencement of, or any material development
in, any litigation or proceeding affecting the Company or any Subsidiary;
(c) the occurrence of any of the following events affecting the
Company or any ERISA Affiliate (but in no event more than ten days after such
event), and deliver to the Administrative Agent (which shall promptly deliver to
each Lender a copy thereof) a copy of any notice with respect to such event that
is filed with a Governmental Authority and any notice delivered by a
Governmental Authority to the Company or any ERISA Affiliate with respect to
such event:
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(i) an ERISA Event; or
(ii) a contribution failure with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA;
(d) any material change in accounting policies or financial
reporting practices by the Company or any of its consolidated Subsidiaries;
(e) any Mandatory Prepayment Event;
(f) other than payments permitted by subsection 8.16(g), any
proposed payment of principal of Subordinated Debt prior to the making thereof;
and
(g) upon the request from time to time of the Administrative
Agent, the Swap Termination Values, together with a description of the method by
which such values were determined, relating to any then-outstanding Swap
Contracts to which the Company or any of its Subsidiaries is party.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto and at what time. Each notice
under subsection 7.3(a) shall describe with particularity any and all clauses or
provisions of this Agreement or any other Loan Document that have been breached
or violated.
7.4 Preservation of Corporate Existence, Etc. The Company shall, and
shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation except a Subsidiary need not be in compliance with the foregoing
to the extent such Subsidiary is sold pursuant to Section 8.2 or merged or
consolidated into another Person pursuant to Section 8.3;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises, in each case which are material and which are necessary or desirable
in the normal conduct of its business except in connection with transactions
permitted by Section 8.3 and dispositions of assets permitted by Section 8.2;
and
(c) preserve or renew all of its registered patents, copyrights,
trademarks, trade names and service marks, the non-preservation of which would
reasonably be expected to have a Material Adverse Effect.
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7.5 Maintenance of Property. The Company shall, and shall cause each
Subsidiary to, maintain and preserve all property material to the normal conduct
of its business in good working order and condition, ordinary wear and tear
excepted, other than obsolete, worn out or surplus equipment.
7.6 Insurance. The Company shall, and shall cause each Subsidiary to,
maintain with financially sound and reputable independent insurers, insurance
with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
7.7 Payment of Obligations. The Company shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable,
unless the same are being contested in good faith by appropriate proceedings and
adequate reserves in accordance with GAAP are being maintained by the Company or
such Subsidiary in respect thereof, all of its obligations and liabilities,
including:
(a) all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets; and
(b) all lawful claims which, if unpaid, would by law become a
Lien upon its property.
7.8 Compliance with Laws. The Company shall, and shall cause each
Subsidiary to, comply in all material respects with all Requirements of Law of
any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist.
7.9 Compliance with ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other Federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.
7.10 Inspection of Property and Books and Records. The Company shall,
and shall cause each Subsidiary to, maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Company and such Subsidiary. The Company shall
permit, and shall cause each Subsidiary to permit, representatives and
independent contractors of the Administrative Agent or any Lender (a) to visit
and inspect any of their respective properties, to examine their respective
corporate, financial and operating records, and to make copies thereof or
abstracts therefrom, and to discuss their respective affairs, finances and
accounts with their respective directors, officers, and independent public
accountants and (b) to inspect any of their Inventory and
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equipment, to perform appraisals of any of their equipment, and to inspect,
audit, check and make copies and/or extracts from the books, records, computer
data and records, computer programs, journals, orders, receipts, correspondence
and other data relating to Inventory, Accounts Receivable, contract rights,
general intangibles, equipment and any other Collateral, or relating to any
other transactions between the parties hereto; at such reasonable times during
normal business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Company; provided, however, that when an Event of Default
exists, the Administrative Agent or any Lender may do any of the foregoing
without advance notice. After the occurrence and during the continuance of an
Event of Default, any such inspection shall be at the Company's expense.
7.11 Interest Rate Protection. The Company shall either (i) maintain in
effect the interest rate protection agreements put in place in connection with
Section 7.11 of the Original Credit Agreement and Section 7.11 of the Existing
Credit Agreement for the remainder of their respective terms or (ii) enter into
and thereafter maintain one or more Permitted Swap Obligations in replacement of
the Swap Obligations referred to in clause (i) for a notional amount at least
equal to the notional amount of the Swap Obligations replaced, on terms no less
favorable to the Company than those pertaining to the Swap Obligations replaced,
for a term at least equal to the remaining terms of the Swap Obligations
replaced, and on an ISDA standard form with one or more Lenders or Affiliates
thereof or with counterparties reasonably acceptable to the Administrative
Agent; provided that nothing in this Section shall require the Company to obtain
or maintain any interest rate protection mechanism beyond the term of the
Permitted Swap Obligations referred to in clause (i) above in effect on the
Restatement Date.
7.12 Environmental Covenant. The Company will, and will cause each of
its Subsidiaries to,
(a) use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance therewith, and
handle all Hazardous Materials in material compliance with all applicable
Environmental Laws;
(b) promptly notify the Administrative Agent and provide copies
of all written material Environmental Claims, and act in a diligent and prudent
fashion to address such Environmental Claims, including Environmental Claims
that allege that the Company or any of its Subsidiaries is not in compliance
with Environmental Laws; and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this Section 7.12.
7.13 Use of Proceeds. The Company shall use the proceeds of the Loans
and the Letters of Credit for working capital and other general corporate
purposes not in contravention of any Requirement of Law or of any Loan Document;
provided that Revolving Loans may be used to finance Acquisitions permitted in
accordance with subsection 8.4(i).
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7.14 Further Assurances. (a) The Company shall, and shall cause each
Subsidiary to, execute, acknowledge, deliver, record, re-record, file, re-file,
register and re-register, any and all such further acts, deeds, conveyances,
security agreement, mortgages, assignments, estoppel certificates, financing
statements and continuations thereof, termination statements, notices of
assignment, transfers, certificates, assurances and other instruments the
Administrative Agent or the Required Lenders, as the case may be, may reasonably
request from time to time in order (1) to ensure that (i) the obligations of the
Company hereunder and under the other Loan Documents are secured by
substantially all assets of the Company (provided, that unless otherwise
reasonably required by the Required Lenders, the pledge of the capital stock of
a Foreign Subsidiary shall be limited to 65% of the outstanding capital stock of
such Subsidiary) and guaranteed, pursuant to the Guaranties, by Parent and all
Domestic Subsidiaries that are Material Subsidiaries (including, promptly upon
the acquisition or creation thereof, any Material Subsidiary created or acquired
after the date hereof) and (ii) the obligations of the Company under the Loan
Documents are secured by substantially all of the assets of Parent and each
Domestic Subsidiary that is a Material Subsidiary (provided, that unless
reasonably required by the Required Lenders, the pledge of the capital stock of
a Foreign Subsidiary shall be limited to 65% of the outstanding capital stock of
such Subsidiary), (2) to perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and the Liens intended to be created
thereby and (3) to better assure, convey, grant, assign, transfer, preserve,
protect and confirm to the Administrative Agent and the Lenders the rights
granted or now or hereafter intended to be granted to the Administrative Agent
and the Lenders under any Loan Documents or under any other document executed in
connection therewith. Contemporaneously with the execution and delivery of any
document referred to above, the Company shall, and shall cause each Subsidiary
to, deliver all resolutions, opinions and corporate documents as the
Administrative Agent or the Required Lenders may reasonably request to confirm
the enforceability of such document and the perfection of the security interest
created thereby, if applicable. The Company shall, and shall cause its
Subsidiaries to, use best efforts to obtain consents of landlords to the
granting of security interests in favor of the Administrative Agent for the
benefit of the Lender Parties in all leasehold interests of the Company or any
Subsidiary of real property that is used for distribution or warehousing and has
aggregate improvements of 100,000 square feet or greater and such other leased
properties as the Administrative Agent may reasonably request; provided,
however, that such best efforts obligation shall not require the Company or any
Subsidiary to make any payment of money or property.
(b) If at any time (x) there are Subsidiaries that are not
parties to the Subsidiary Security Agreement or the Subsidiary Guaranty and (y)
(i) the aggregate assets of such Subsidiaries exceed 5% of the consolidated
assets of the Company and its Subsidiaries, (ii) the aggregate revenues of such
Subsidiaries for any fiscal quarter exceed 5% of the consolidated revenues of
the Company and its Subsidiaries for such period or (iii) the aggregate
investments of the Company and its other Subsidiaries in and advances to such
Subsidiaries exceed 5% of the consolidated assets of the Company and its
Subsidiaries, then the Company shall cause one or more Subsidiaries that are not
then parties to the Subsidiary Security Agreement and/or the Subsidiary Guaranty
to execute and deliver to the Administrative Agent counterparts to such
agreements and become parties thereto such that the
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circumstances described in the foregoing clauses (y)(i), (y)(ii) and (y)(iii) do
not exist, and in connection with such execution and delivery the Company shall
cause to be delivered to the Administrative Agent such opinions of counsel and
other supporting documentation in respect thereof as the Administrative Agent
shall reasonably request.
(c) The Company shall cause each financial institution at which
Parent, the Company or any Domestic Subsidiary maintains any lockbox, deposit
account or other similar account to deliver to the Administrative Agent and the
Company a writing, in form and substance satisfactory to the Administrative
Agent, acknowledging and consenting to the security interest of the
Administrative Agent in such lockbox or account and all cash, checks, drafts and
other instruments or writings for the payment of money from time to time
therein, confirming such financial institution's agreement to follow the
instructions of the Administrative Agent with respect to all such cash, checks,
drafts and other instruments or writings for the payment of money following the
occurrence of any Event of Default or Unmatured Event of Default of the type
specified in subsection 9.1(f) or (g) and waiving all rights of setoff and
banker's lien on all items held in any such lockbox or account. With respect to
each of the accounts held at First State Bank Xxxx Xxxxxxx and listed on
Schedule V of the Security Agreement (Company and Parent), the Company shall not
be obligated to obtain an agreement from such bank covering such account and
satisfying the requirements of the immediately preceding sentence so long as the
amount in such account is less than $5,000; provided, however, that
notwithstanding the foregoing, upon the occurrence of an Event of Default or
Unmatured Event of Default or at the request of Administrative Agent, the
Company shall have 30 days to obtain an agreement covering each of the accounts
referred to in this sentence and satisfying the requirements of the immediately
preceding sentence.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
8.1 Limitation on Liens. The Company shall not, and shall not permit
Parent or any Subsidiary to, directly or indirectly, make, create, incur, assume
or suffer to exist any Lien upon or with respect to any part of its property,
whether now owned or hereafter acquired, other than the following ("Permitted
Liens"):
(a) any Lien existing on property of the Company or any
Subsidiary on the Closing Date and set forth on Schedule 8.1 securing
Indebtedness outstanding on such date;
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(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to the
extent that non-payment thereof is permitted by Section 7.7, provided that no
notice of lien has been filed or recorded under the Code;
(d) growers', carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary course
of business which are not delinquent or which are being contested in good faith
and by appropriate proceedings, which proceedings have the effect of preventing
the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation;
(f) Liens on property of the Company or any Subsidiary securing
(i) the non-delinquent performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, (ii) surety bonds (excluding
appeal bonds and other bonds posted in connection with court proceedings or
judgments) and (iii) other non-delinquent obligations of a like nature, in each
case, incurred in the ordinary course of business, provided that all such Liens
in the aggregate would not (even if enforced) cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment Liens and
Liens securing contingent obligations on appeal bonds and other bonds posted in
connection with court proceedings or judgments, provided that the enforcement of
such Liens is effectively stayed;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the businesses of the Company and its Subsidiaries;
(i) purchase money security interests on any property acquired by
the Company or any Subsidiary in the ordinary course of business, securing
Indebtedness incurred or assumed for the purpose of financing all or any part of
the cost of acquiring such property, provided that (i) any such Lien attaches to
such property concurrently with or within 45 days after the acquisition thereof,
(ii) such Lien attaches solely to the property so acquired in such transaction,
(iii) the principal amount of the Indebtedness secured thereby does not exceed
100% of the cost of such property and (iv) the principal amount of the
Indebtedness secured by all such purchase money security interests shall not at
any time exceed $***;
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(j) Liens securing obligations in respect of capital leases on
assets subject to such leases (and secured by only the assets subject to such
leases) (provided that such capital leases are otherwise permitted hereunder) or
Liens on property sold in a Sale/Leaseback Transaction provided that such Liens
shall cover only the property subject to such Sale/Leaseback Transaction and the
amount of Indebtedness secured thereby shall not exceed the fair market value of
the property sold;
(k) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution, provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations promulgated by
the FRB and (ii) such deposit account is not intended by the Company or any
Subsidiary to provide collateral to the depository institution;
(l) Liens in connection with a Permitted Receivables Facility;
(m) Liens under Permitted Security Agreements;
(n) Liens securing Acquired Indebtedness permitted by subsection
8.5(k), provided that such Liens were in existence prior to the contemplation of
the related Acquisition and do not extend to any assets other than the property
financed with such Acquired Indebtedness;
(o) Liens, defects and other matters specifically disclosed on
the title insurance policies delivered to and accepted by the Administrative
Agent on the Closing Date in connection with properties subjected to a Mortgage
on the Closing Date;
(p) extensions, renewals and replacements of Liens referred to in
clauses (a) through (o) above, provided that any such extension, renewal or
replacement Lien is limited to the property or assets covered by the Lien
extended, renewed or replaced and does not secure any Indebtedness in addition
to that secured immediately prior to such extension, renewal or replacement; and
(q) Liens securing other Indebtedness of the Company and its
Subsidiaries not expressly permitted by clauses (a) through (p) above; provided
that the aggregate amount of the Indebtedness secured by Liens permitted
pursuant to this clause (q) does not exceed $*** in the aggregate outstanding at
any time.
8.2 Disposition of Assets. The Company shall not, and shall not permit
any Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer
or otherwise dispose of (whether in one or a series of transactions) any
property (including accounts and notes receivable, with or without recourse) or
enter into any agreement to do any of the foregoing, except:
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(a) dispositions of Inventory, or worn-out or surplus equipment,
all in the ordinary course of business;
(b) the sale of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied to the
purchase price of such replacement equipment, unless such equipment is not
needed in the Company's or such Subsidiary's business;
(c) transfers of Accounts Receivable under a Permitted
Receivables Facility;
(d) dispositions not otherwise permitted hereunder (including the
disposition of all of the capital stock of any operating Subsidiary by sale of
stock or by merger of such Subsidiary with or into another Person but excluding
any Sale/Leaseback Transaction) which are made for fair market value if the fair
market value of all assets so disposed of by the Company and its Subsidiaries
under this clause (d) since the Closing Date does not exceed $*** in the
aggregate; provided that (i) at the time of any disposition, no Event of Default
or Unmatured Event of Default shall exist or will result from such disposition,
(ii) at least 75% of the consideration received by the Company or such
Subsidiary from such disposition is in cash or Cash Equivalent Investments,
(iii) the proceeds thereof are applied as provided in subsection 2.8(a) and (iv)
the fair market value of the Company's Arlington Plant #113 and Stockton Plant
#33 shall not count towards the foregoing $*** amount;
(e) mergers expressly permitted by clauses (i) and (ii) of
Section 8.3 or transfers by any Wholly-Owned Subsidiary of the Company of its
assets upon its liquidation to the Company or any of its Wholly-Owned
Subsidiaries;
(f) dispositions (including by means of a Sale/Leaseback
Transaction) of Assets Held for Sale which are made for fair market value;
(g) dispositions of assets for not less than fair market value in
Sale/Leaseback Transactions permitted under Section 8.18 (provided that the fair
market value of all property sold pursuant to this clause (g) may not exceed
$***); and
(h) dispositions of assets not exceeding $*** in any fiscal year
for non-cash consideration.
8.3 Consolidations and Mergers. The Company shall not, and shall not
permit any Subsidiary to, merge or consolidate with or into any other Person,
except that (i) any Subsidiary may merge with the Company (provided that the
Company shall be the continuing or surviving corporation) or with any one or
more Wholly-Owned Subsidiaries (provided that a Wholly-Owned Subsidiary shall be
the continuing or surviving corporation), (ii) any Wholly- Owned Subsidiary may
acquire by merger any Person in an Acquisition permitted by subsection 8.4(i)
(provided that such Wholly-Owned Subsidiary
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is the survivor of such merger) and (iii) any Subsidiary may be merged with or
into any other Person in a transaction permitted by subsection 8.2(d).
8.4 Loans and Investments. The Company shall not, and shall not permit
any Subsidiary to, purchase or acquire, or make any commitment to purchase or
acquire, any capital stock, equity interest or other obligations or securities
of, or any interest in, any other Person, or make or commit to make any
Acquisition, or make or commit to make any advance, loan, extension of credit or
capital contribution to or any other investment in, any other Person, except
for:
(a) investments in Cash Equivalent Investments;
(b) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in the
ordinary course of business;
(c) investments by the Company in its Wholly-Owned Subsidiaries
or by any Subsidiary in any Wholly-Owned Subsidiary, in the form of
contributions to capital or loans or advances; provided that, immediately before
and after giving effect to such investment, no Event of Default or Unmatured
Event of Default shall have occurred and be continuing and the aggregate amount
invested in Foreign Subsidiaries after the Closing Date shall not exceed $***;
(d) loans or advances made by any Subsidiary to the Company;
(e) loans and advances to employees in the ordinary course of
business (such as travel advances) in an aggregate amount not at any time
exceeding $***;
(f) investments by the Company and its Subsidiaries in Joint
Ventures in the form of contributions of capital, loans, advances or Contingent
Obligations; provided that, immediately before and after giving effect to such
investment, (x) no Event of Default or Unmatured Event of Default shall have
occurred and be continuing, including pursuant to Section 8.9, and (y) the
aggregate amount of all investments pursuant to this clause (f) shall not exceed
$*** in the aggregate (with all such investments valued at the time of
investment at the cash amount thereof, if in cash, the fair market value thereof
as determined by the board of directors of the Company, if in property, and at
the maximum amount thereof if in Contingent Obligations);
(g) investments constituting Permitted Swap Obligations or
payments or advances under Swap Contracts relating to Permitted Swap
Obligations;
(h) other investments in an aggregate amount not exceeding $***
during the term of this Agreement (with all such investments valued at the time
of investment at the cash amount thereof, if in cash, the fair market value
thereof as determined by the board of directors of the Company, if in property,
and at the maximum amount thereof if in Contingent Obligations);
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(i) Acquisitions, provided that
(i) the Company shall have delivered to the Administrative
Agent evidence in form and substance satisfactory to the
Administrative Agent that the financial conditions referred to in
clause (ii) below with respect to such Acquisition will be
satisfied, together with a statement of a Responsible Officer of
the Company detailing all amounts required to consummate the
prospective Acquisition and a business description and summary of
terms of the prospective Acquisition,
(ii) the Company shall be in compliance with all financial
covenants in Sections 8.11, 8.12, 8.13 and 8.14 on a pro forma
basis for the period of four consecutive fiscal quarters ending
on the last day of the last completed fiscal quarter immediately
preceding the proposed date of consummation of the prospective
Acquisition (on the assumption such Acquisition occurred on the
first day of such four fiscal quarter period and using historical
results of the Company and its Subsidiaries and the related
Acquisition Prospect for such period, without giving effect to
any adjustment for expected cost savings or other synergies),
(iii) such Acquisition shall be consummated in accordance
with all Requirements of Law and the Company and its Subsidiaries
shall have obtained all consents and approvals necessary or
desirable to such consummation and the business operations of
such Acquisition Prospect after such Acquisition, including
governmental and contractual approvals,
(iv) no Event of Default or Unmatured Event of Default shall
exist at the time of consummation thereof or would result
therefrom,
(v) the Person to be acquired (or its Board of Directors or
equivalent governing body) has not (A) announced it will oppose
such Acquisition or (B) commenced any action which alleges that
such Acquisition violates, or will violate, any Requirement of
Law, and
(vi) the total consideration for all such Acquisitions
(including cash and noncash purchase price, liabilities assumed,
deferred or financed purchase price, purchase price characterized
as noncompetition payments and the like), together with the
amount of all investments made pursuant to subsection 8.4(j),
does not exceed in the aggregate during the term of this
Agreement an amount equal to the sum of (x) $*** plus (y) an
amount equal to the aggregate amount received by the Company as
capital contributions from Parent after the Closing Date;
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(j) investments in Subsidiaries acquired in Acquisitions
permitted under subsection 8.4(i) that are not Wholly-Owned Subsidiaries,
provided that the amount of all such investments, together with the aggregate
total consideration paid in connection with all Acquisitions permitted by
subsection 8.4(i) (calculated in the manner set forth in subsection 8.4(i)(vi)),
does not exceed in the aggregate during the term of this Agreement an amount
equal to the sum of (x) $*** plus (y) an amount equal to the aggregate amount
received by the Company as capital contributions from Parent after the Closing
Date; and
(k) Investments in existence on the Restatement Date which are
set forth on Schedule 8.4.
8.5 Limitation on Indebtedness. The Company shall not, and shall not
permit any Subsidiary to, create, incur, assume, suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement, the
Subsidiary Guaranty and the other Loan Documents;
(b) the Subordinated Notes and any Qualified Notes issued in a
Qualified Refinancing and related Guaranty Obligations by Subsidiaries of the
Company;
(c) Indebtedness consisting of Contingent Obligations permitted
pursuant to Section 8.8;
(d) Indebtedness existing on the Closing Date, as set forth in
Schedule 8.5(d), and extensions, renewals or replacements of such Indebtedness
to the extent that the principal amount of such Indebtedness is not increased;
(e) Indebtedness of Subsidiaries to the Company or Wholly-Owned
Subsidiaries; provided, that the aggregate amount of all such Indebtedness of
Foreign Subsidiaries and other investments by the Company and its Subsidiaries
in Foreign Subsidiaries shall not exceed $***;
(f) Indebtedness up to $*** outstanding at any time secured by
Liens permitted by subsection 8.1(i);
(g) Indebtedness incurred in connection with leases permitted
pursuant to Section 8.10;
(h) Indebtedness of the Company or any Subsidiary of the Company
in connection with guaranties resulting from endorsement of negotiable
instruments in the ordinary course of business;
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(i) surety bonds and appeal bonds required in the ordinary course
of business or in connection with the enforcement of rights or claims of the
Company or in connection with judgments that do not result in an Unmatured Event
of Default or an Event of Default;
(j) any Indebtedness arising under a Permitted Receivables
Facility;
(k) up to $*** of Acquired Indebtedness assumed in Acquisitions
permitted under subsection 8.4(i);
(l) Indebtedness incurred in a Sale/Leaseback Transaction
permitted under Section 8.18; and
(m) other Indebtedness in an aggregate amount not at any time
exceeding $***.
It is understood that any Indebtedness borrowed in a foreign currency shall
continue to be permitted under this Section, notwithstanding any fluctuation in
the Dollar Amount of such Indebtedness, as long as the outstanding principal
balance of such Indebtedness (denominated in its original currency) does not
exceed the maximum amount of such Indebtedness (denominated in such currency)
permitted to be outstanding on the date such Indebtedness was incurred.
8.6 Transactions with Affiliates. The Company shall not, and shall not
permit any Subsidiary to, enter into any transaction with any Affiliate of the
Company (other than a Material Subsidiary), except upon fair and reasonable
terms no less favorable to the Company or such Subsidiary than would be
obtainable in a comparable arm's-length transaction with a Person not an
Affiliate of the Company; provided that the TPG Agreements and the Tax Sharing
Agreement shall not violate this Section.
8.7 Use of Proceeds. The Company shall not, and shall not permit any
Subsidiary to, use any portion of the proceeds of any Loan or any Letter of
Credit, directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to
repay or otherwise refinance indebtedness of the Company or others incurred to
purchase or carry Margin Stock, (iii) to extend credit for the purpose of
purchasing or carrying any Margin Stock or (iv) to acquire any security in any
transaction that is subject to Section 13 or 14 of the Exchange Act.
8.8 Contingent Obligations. The Company shall not, and shall not permit
any Subsidiary to, create, incur, assume or suffer to exist any Contingent
Obligation except:
(a) endorsements for collection or deposit in the ordinary course
of business;
(b) Permitted Swap Obligations;
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(c) Contingent Obligations of the Company and its Subsidiaries
existing as of the Closing Date and listed on Schedule 8.8 and Guaranty
Obligations by the Company relating to Indebtedness of Wholly-Owned
Subsidiaries, provided, that all Contingent Obligations permitted by this
subsection 8.8(c) shall not exceed $*** at any one time;
(d) Contingent Obligations arising under the Loan Documents;
(e) Guaranty Obligations with respect to or constituting
obligations of the Company or a Wholly-Owned Subsidiary that are permitted by
the Loan Documents; and
(f) Contingent Obligations with respect to Joint Ventures to the
extent permitted by Section 8.9.
8.9 Joint Ventures. The Company shall not, and shall not permit
any Subsidiary to, enter into any Joint Venture, except that the Company or any
Subsidiary may enter into any Joint Venture so long as the aggregate amount
invested by the Company and its Subsidiaries in all Joint Ventures in any form
(including by capital contribution, incurrence of Indebtedness by any such Joint
Venture to the Company or any Subsidiary or the incurrence of Contingent
Obligations by the Company or any Subsidiary with respect to any such Joint
Venture), during the term of this Agreement does not exceed $***; provided,
however, that for purposes of determining the aggregate amount invested in Joint
Ventures hereunder (x) any return of principal or equity received in cash on any
amount invested hereunder and (y) the fair market value of any other property
received in exchange for any amount invested hereunder shall be deducted.
8.10 Lease Obligations. The Company shall not, and shall not permit any
Subsidiary to, create or suffer to exist any obligations for the payment of rent
for any property under lease or agreement to lease, except for:
(a) leases of the Company and its Subsidiaries in existence on
the Closing Date and any renewal, extension or refinancing thereof;
(b) operating leases entered into by the Company or any
Subsidiary after the Closing Date in the ordinary course of business;
(c) capital leases entered into by the Company or any Subsidiary,
provided that no Event of Default or Unmatured Event of Default has occurred and
is continuing or will result from the incurrence of the obligations contemplated
thereby; and
(d) operating leases entered into by the Company or any
Subsidiary in connection with any Sale/Leaseback Transaction permitted under
Section 8.18, provided that no Event of Default
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or Unmatured Event of Default has occurred and is continuing or will result
from the incurrence of the obligations contemplated thereby.
8.11 Minimum Fixed Charge Coverage. The Company will not permit the
Fixed Charge Coverage Ratio for any Computation Period to be less than the ratio
set forth below opposite the period in which such Computation Period ends:
Period Ratio
------ -----
Restatement Date - 3/26/00 ***:1.00
6/30/00 - 3/31/01 ***:1.00
6/30/01 - 3/31/02 ***:1.00
6/30/02 - 3/31/03 ***:1.00
6/30/03 - 3/31/04 ***:1.00
6/30/04 and thereafter ***:1.00.
8.12 Minimum Adjusted Net Worth. The Company will not permit at
any time (i) Net Worth at such time plus $*** to be less than (ii) (a) $*** plus
(b) ***% of cumulative Consolidated Net Income of Parent for the period
beginning on January 3, 2000 and ending on the date of calculation (provided
that if Consolidated Net Income is less than zero for any fiscal year, or for
the completed portion of the then-current fiscal year, Consolidated Net Income
for such fiscal year or portion shall be deemed to be zero), plus (c) ***% of
the Net Cash Proceeds of any issuance of any equity securities of Parent, the
Company or any Subsidiary after the Restatement Date; provided that no Event of
Default shall arise by reason of clause (i) above being less than clause (ii)
above if, within ten days of the occurrence of any such deficiency, Parent
receives a capital contribution from its shareholders at least equal to the
amount of such deficiency and Parent in turn makes a capital contribution of
such amount to the Company.
8.13 Maximum Senior Debt Ratio. The Company will not permit the Senior
Debt Ratio for any Computation Period to exceed the ratio set forth below
opposite the period in which such Computation Period ends:
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Period Ratio
------ -----
Restatement Date - 3/26/00 ***:1.00
6/30/00 - 3/31/01 ***:1.00
6/30/01 - 3/31/02 ***:1.00
6/30/02 - 3/31/03 ***:1.00
6/30/03 and thereafter ***:1.00.
8.14 Maximum Total Debt Ratio. The Company will not permit the Total
Debt Ratio on the last day of any fiscal year to exceed the ratio set forth
below opposite such fiscal year:
Fiscal Year Ending Ratio
------------------ -----
6/30/00 ***:1.00
6/30/01 ***:1.00
each fiscal year thereafter ***:1.00.
8.15 Maximum Capital Expenditures. The Company will not permit the
aggregate amount of all Capital Expenditures made by the Company and its
Subsidiaries for any fiscal year to exceed the amount set forth below opposite
such fiscal year:
Fiscal Year Ending Amount
------------------ ------
6/30/00 $***
thereafter $***
provided, however, that to the extent Capital Expenditures actually made in any
fiscal year are less than the amount permitted to be made in such fiscal year
(without giving effect to any carryforward), the lesser of (x) the amount of the
difference and (y) ***% of the amount of Capital Expenditures permitted to be
made in such year as set forth in the table above may be carried forward and
used to make Capital Expenditures in the next succeeding fiscal year; provided,
further, however, that in any period the Company and its Subsidiaries may only
use a carryforward to such period if the entire amount set forth in the table
above for such period has been utilized.
8.16 Restricted Payments. The Company shall not, and shall not permit
any Subsidiary to, (1) declare or make any dividend payment or other
distribution of assets, properties, cash, rights,
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obligations or securities on account of any shares of any class of its capital
stock, or purchase, redeem or otherwise acquire for value any shares of its
capital stock or any warrants, rights or options to acquire such shares, now or
hereafter outstanding, or (2) make any redemptions, prepayments, defeasances or
repurchases of any Subordinated Debt except that:
(a) any Subsidiary may declare and pay dividends to the Company
or a Wholly-Owned Subsidiary;
(b) the Company may declare and make dividend payments or other
distributions payable solely in Common Stock;
(c) the Subordinated Notes may be repaid using the Net Cash
Proceeds of a Qualified Refinancing;
(d) the Company or any of its Subsidiaries may purchase (or may
pay a dividend to Parent to enable Parent to purchase) (i) capital stock or
options with respect to capital stock held by employees or management of Parent
or any of its Subsidiaries in connection with the termination of employment of
any such employees or management and (ii) capital stock for the purpose of
holding such capital stock for future issuance under an employee stock plan,
provided that all such payments in the aggregate for clauses (i) and (ii) do not
exceed $*** in any fiscal year or $*** in the aggregate from and after the
Closing Date;
(e) so long as no Event of Default or Unmatured Event of Default
has occurred and is continuing or would result therefrom, the Company may pay a
dividend to Parent not more than 10 days in advance of June 15 and December 15
of each year commencing in 2003, with each such dividend to be in an amount no
greater than the amount Parent is required to pay in respect of the next
scheduled payment of cash interest on the Parent Discount Notes which is to
become due on such June 15 or December 15, provided, that the Company may only
pay any dividend pursuant to this clause (e) if, after giving effect thereto (as
well as to all dividends made under clause (f) below), the Company's pro forma
Senior Debt Ratio for the last four full fiscal quarters immediately preceding
the date of such dividend (determined as if all such dividends had been made on
the first day of such period), would be less than ***:1;
(f) so long as no Event of Default or Unmatured Event of Default
has occurred and is continuing or would result therefrom, the Company may pay
dividends to Parent; provided, that the Company may only pay dividends pursuant
to this clause (f) if, after giving effect thereto (as well as to all dividends
made under clause (e) above), the Company's pro forma Senior Debt Ratio for the
last four fiscal quarters immediately preceding the date of such dividend
(determined as if such all dividends had been made on the first day of such
period), would be less than ***:1;
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(g) ***;
(h) so long as no Event of Default or Unmatured Event of Default
has occurred and is continuing or would result therefrom, the Company may
repurchase or redeem Subordinated Notes or Qualified Notes in an amount not to
exceed the portion of Net Cash Proceeds of an issuance of equity securities of
Parent, the Company or any Subsidiary which is not used to finance Acquisitions
under subsection 8.4(i) or required to be used to repay Term Loans under
subsection 2.8(a)(iv);
(i) the Company may make payments to Parent at the times and in
the amounts provided in the Tax Sharing Agreement;
(j) the Company may make payments to TPG Partners of fees and
expenses at the times and in the amounts provided in the TPG Agreements; and
(k) the Company may make payments to Parent in amounts not to
exceed $*** per fiscal year to reimburse Parent for expenses incurred by Parent
in the ordinary course of business.
8.17 ERISA. The Company shall not, and shall not permit any of its
ERISA Affiliates to: (a) engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted or
would reasonably be expected to result in a Material Adverse Effect; or (b)
engage in a transaction that could reasonably be expected to be subject to
Section 4069 or 4212(c) of ERISA.
8.18 Limitations on Sale and Leaseback Transactions. The Company shall
not, and shall not permit any Subsidiary to, enter into any arrangement with any
Person providing for the leasing by the Company or any Subsidiary of any real or
personal property, which property is or has been sold or transferred by the
Company or any Subsidiary to such Person in contemplation of taking back a lease
thereof (a "Sale/Leaseback Transaction"); provided, however, that the Company or
any Subsidiary may enter into Sale/Leaseback Transactions if, with respect to
each such Sale/Leaseback Transaction (i) the Company or such Subsidiary is
permitted to incur or suffer to exist the Lien resulting therefrom and the
Indebtedness related thereto under subsection 8.1(j), (ii) the Company or such
Subsidiary is permitted to dispose of the property disposed of in such
Sale/Leaseback Transaction under subsection 8.2(f) or (g), and (iii) the Company
or such Subsidiary is permitted to lease the property relating thereto under
Section 8.10.
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8.19 Limitation on Restriction of Subsidiary Dividends and
Distributions. The Company will not, and will not permit any Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to (a)
pay dividends or make other distributions on its capital stock owned by the
Company or any Subsidiary, or pay any Indebtedness owed to the Company or any
Subsidiary, (b) make loans or advances to the Company or (c) transfer any of its
assets or properties to the Company, except for such encumbrances or
restrictions existing by reason of or under (i) applicable law, (ii) this
Agreement and the other Loan Documents, (iii) customary non- assignment
provisions of any contract or lease governing a leasehold or ownership interest
of any Subsidiary, (iv) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person or the properties or assets of the
Person so acquired, (v) customary net worth provisions contained in leases and
other agreements entered into by a Subsidiary in the ordinary course of
business, (vi) customary restrictions with respect to a Subsidiary pursuant to
an agreement that has been entered into for the sale or disposition of all or
substantially all of the capital stock of such Subsidiaries, (vii) customary
provisions in joint venture agreements and other similar agreements relating
solely to the securities, assets and revenues of such joint venture or other
business venture and (viii) an agreement governing Indebtedness incurred to
refinance the Indebtedness issued, assumed or incurred pursuant to an agreement
referred to in clause (iv) above; provided, however, that the provisions
relating to such encumbrance or restriction contained in any such Indebtedness
are not, in the aggregate, materially less favorable to the Company as
determined by the Board of Directors of the Company in its reasonable and good
faith judgment than the provisions relating to such encumbrance or restriction
contained in the agreements referred to in such clause (iv).
8.20 Inconsistent Agreements. The Company will not, and will not permit
any Subsidiary to, enter into any agreement containing any provision which would
be violated or breached by any borrowing by the Company hereunder or by the
performance by the Company or any Subsidiary of their respective obligations
hereunder or under any other Loan Document. The Company will not, and will not
permit any of its Subsidiaries to, enter into any agreement (other than this
Agreement and the other Loan Documents) prohibiting the creation or assumption
of any Lien upon its properties, revenues or assets, whether now owned or
hereafter acquired, or the ability of the Company and its Subsidiaries to amend
or modify this Agreement or any other Loan Document, other than an agreement in
connection with Permitted Liens described in subsections 8.1(i) and (j) if such
prohibition is by its terms effective only against the assets subject to such
Permitted Lien.
8.21 Change in Business. The Company shall not, and shall not permit
any Subsidiary to, engage in any material business other than production,
processing and related distribution of food and beverage products and other
related businesses.
8.22 Amendments to Certain Documents. The Company and Parent shall not
make or agree to any amendment to or modification of, or waive any of its rights
under, any of the terms of (a) the Merger Agreement, (b) the Subordinated Note
Purchase Agreement, (c) the Subordinated Indenture,
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(d) any Qualified Indenture, (e) any other instrument evidencing Subordinated
Debt, (f) the Tax Sharing Agreement, (g) the TPG Agreements, (h) any Qualified
Parent Indenture or the Parent Discount Indenture or (i) any other instrument
evidencing Qualified Parent Notes or Parent Discount Notes unless any such
amendment, modification or waiver is not adverse in any respect to the Lenders.
8.23 Fiscal Year. The Company shall not, and shall not permit the
Parent or any Material Subsidiary to, change the fiscal year of the Parent, the
Company or of any Material Subsidiary; provided, that any Material Subsidiary
acquired in an Acquisition permitted hereunder may change its fiscal year to end
on June 30.
8.24 Limitation on Issuance of Guaranty Obligations. The Company will
not permit any Subsidiary to create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to any
Guaranty Obligation of such Subsidiary relating to any Indebtedness of the
Company unless
(i) such Subsidiary, if it is not already a party to the
Subsidiary Guaranty, simultaneously executes and delivers to the
Administrative Agent a counterpart to the Subsidiary Guaranty, together
with such supporting documentation as the Administrative Agent may
reasonably request, notwithstanding Section 7.14,
(ii) if such Indebtedness is by its terms subordinated to the
Obligations, any such assumption, guaranty or other liability of such
Subsidiary with respect to such Indebtedness shall be subordinated, in
form and substance satisfactory to the Administrative Agent, to such
Subsidiary's Guaranty Obligation with respect to the Obligations to the
same extent as such Indebtedness is subordinated to the Obligations
(provided that such Subsidiary's Guaranty Obligation of such
Indebtedness of the Company shall be subordinated to the full amount of
such Subsidiary's Guaranty Obligation under the Subsidiary Guaranty
without giving effect to any reduction thereto necessary to render the
Guaranty Obligation of such Subsidiary thereunder not voidable under
applicable law relating to fraudulent conveyance or fraudulent
transfer), and
(iii) such Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any right of
reimbursement, indemnity or subrogation or any other rights against the
Company or any other Subsidiary as a result of any payment by such
Subsidiary under such Guaranty Obligation unless and until payment in
full in cash is made of such Indebtedness of the Company.
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ARTICLE IX
EVENTS OF DEFAULT
9.1 Event of Default. Any of the following shall constitute an "Event
of Default":
(a) Non-Payment. The Company fails to pay, when and as required
to be paid herein, any amount of principal of any Loan or of any L/C Obligation,
or, within three days after the same becomes due, any amount of interest or any
fees or other amounts payable hereunder or under any other Loan Document.
(b) Representation or Warranty. Any representation or warranty by
Parent, the Company or any Subsidiary made or deemed made herein or in any other
Loan Document, or which is contained in any certificate, document or financial
or other statement by Parent, the Company, any Subsidiary or any Responsible
Officer furnished at any time under this Agreement or any other Loan Document,
is incorrect in any material respect on or as of the date made or deemed made.
(c) Specific Defaults. The Company fails to perform or observe
any term, covenant or agreement contained in any of Section 7.3 or Article VIII
(other than Section 8.1, 8.5, 8.6, 8.16(1) or 8.18).
(d) Other Defaults. The Company fails to perform or observe any
term or covenant contained in Section 8.1, 8.5, 8.6, 8.16(1) or 8.18 (or the
Parent shall fail to perform its agreement in the Parent Guaranty to comply with
Section 8.1), and such default shall continue unremedied for a period of 10 days
after the earlier of (i) the date upon which a Responsible Officer knew or
reasonably should have known of such failure or (ii) the date upon which written
notice thereof is given to the Company by the Administrative Agent or any
Lender; or the Company, Parent or any Subsidiary fails to perform or observe any
term or covenant contained in this Agreement (other than Section 7.3 or Article
VIII) or any other Loan Document, and such default shall continue unremedied for
a period of 30 days after the earlier of (x) the date upon which a Responsible
Officer knew or reasonably should have known of such failure or (y) the date
upon which written notice thereof is given to the Company by the Administrative
Agent or any Lender.
(e) Cross-Default. (i) The Company, Parent or any Subsidiary (A)
fails to make any payment in respect of any Indebtedness or Contingent
Obligation (other than in respect of Swap Contracts) having an aggregate
principal amount (including undrawn committed or available amounts and including
amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than $10,000,000 when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise but subject to any
applicable grace period) or (B) fails to perform or observe any other condition
or covenant, or any other event shall occur or condition shall exist, under any
agreement or instrument relating to any such Indebtedness or Contingent
Obligation, if the effect of such
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failure, event or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, such Indebtedness to be declared to be due and payable
prior to its stated maturity, or such Contingent Obligation to become payable,
or cash collateral in respect thereof to be demanded or (ii) there occurs under
any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which the
Company or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) as to which the Company
or any Subsidiary is an Affected Party (as so defined), and, in either event,
the Swap Termination Value owed by the Company or such Subsidiary as a result
thereof is greater than $5,000,000.
(f) Insolvency; Voluntary Proceedings. The Company, Parent or any
Material Subsidiary: (i) ceases or fails to be solvent, or generally fails to
pay, or admits in writing its inability to pay, its debts as they become due;
(ii) voluntarily ceases to conduct its business in the ordinary course; (iii)
commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing.
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company, Parent or any Material
Subsidiary, or any writ, judgment, warrant of attachment, warrant of execution
or similar process is issued or levied against a substantial part of the
Company's, Parent's or any Material Subsidiary's properties, and such proceeding
or petition shall not be dismissed, or such writ, judgment, warrant of
attachment, warrant of execution or similar process shall not be released,
vacated or fully bonded within 60 days after commencement, filing or levy; (ii)
the Company, Parent or any Material Subsidiary admits the material allegations
of a petition against it in any Insolvency Proceeding, or an order for relief
(or similar order under non-U.S. law) is ordered in any Insolvency Proceeding;
or (iii) the Company, Parent or any Material Subsidiary acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor) or other similar Person for itself
or a substantial portion of its property or business.
(h) ERISA. (i) One or more ERISA Events shall occur with respect
to a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Company under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
$10,000,000; (ii) a contribution failure shall have occurred with respect to a
Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA; or
(iii) the Company or any ERISA Affiliate shall fail to pay when due, after the
expiration of any applicable grace period, one or more installment payments with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan which results in an aggregate withdrawal liability in excess
of $10,000,000.
(i) Monetary Judgments. One or more judgments, orders, decrees or
arbitration awards is entered against the Company, Parent or any Subsidiary
involving in the aggregate a liability
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(to the extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage), as to any single or related series of
transactions, incidents or conditions, of $10,000,000 or more, and the same
shall remain undischarged, unvacated and unstayed pending appeal for a period of
30 days after the entry thereof, or the Company, Parent or any Subsidiary shall
enter into any agreement to settle or compromise any pending or threatened
litigation, as to any single or related series of claims, involving payment by
the Company, Parent or any Subsidiary of $10,000,000 or more.
(j) Non-Monetary Judgments. Any non-monetary judgment, order or
decree is entered against the Company, Parent or any Subsidiary which has or
would reasonably be expected to have a Material Adverse Effect, and there shall
be any period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect.
(k) Change of Control. Any Change of Control occurs.
(l) Guarantor Defaults. Any Guaranty shall cease to be in full
force and effect with respect to any Guarantor (other than as expressly
permitted hereunder), or any Guarantor (or any Person acting by, through or on
behalf of such Guarantor) shall contest in any manner the validity, binding
nature or enforceability of any Guaranty with respect to such Guarantor.
(m) Collateral Documents, etc. Any Collateral Document shall
cease to be in full force and effect with respect to the Company, Parent or any
Subsidiary (other than pursuant to its terms or as expressly permitted
hereunder), or the Company, Parent or any Subsidiary (or any Person acting by,
through or on behalf of the Company, Parent or any Subsidiary) shall contest in
any manner the validity, binding nature or enforceability of any Collateral
Document.
9.2 Remedies. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders do
any or all of the following:
(a) declare the commitment of each Lender to make Loans and any
obligation of the Issuing Lender to Issue Letters of Credit to be terminated,
whereupon such commitments and obligations shall be terminated (provided, that
if any Event of Default occurs after the making of the Term Loans, the Revolving
Commitments shall, at the request of, or may, with the consent of, the Required
Revolving Lenders (and not the Required Lenders), be terminated);
(b) declare an amount equal to the maximum aggregate amount that
is or at any time thereafter may become available for drawing under any
outstanding Letter of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letter of Credit) to be immediately due
and payable, and declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be
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immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any Event of Default specified in
subsection 9.1(f) or (g), the obligation of each Lender to make Loans and the
obligation of the Issuing Lender to Issue Letters of Credit shall automatically
terminate and the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and
payable without further act of the Administrative Agent, the Issuing Lender or
any other Lender.
9.3 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE X
THE AGENTS
10.1 Appointment and Authorization. (a) Each Lender hereby irrevocably
(subject to Section 10.9) appoints, designates and authorizes the Administrative
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto.
Each Lender hereby appoints BTCo. as Documentation Agent for the Lenders and
General Electric Capital Corporation and Fleet Business Credit Corporation, as
Co-Agents for the Lenders. The Documentation Agent and the Co-Agents, in their
capacities as such, shall have no rights or duties hereunder or under any other
Loan Document. Notwithstanding any provision to the contrary contained elsewhere
in this Agreement or in any other Loan Document, the Administrative Agent shall
not have any duties or responsibilities, except those expressly set forth
herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" in this Agreement and in the other Loan Documents
with reference to the Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligation arising under agency doctrine
of any applicable law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative relationship
between independent contracting parties.
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(b) The Issuing Lender shall act on behalf of the Lenders with
respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for the Issuing Lender with
respect thereto; provided, however, that the Issuing Lender shall have all of
the benefits and immunities (i) provided to the Administrative Agent in this
Article X with respect to any acts taken or omissions suffered by the Issuing
Lender in connection with Letters of Credit Issued by it or proposed to be
Issued by it and the applications and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term "Administrative
Agent", as used in this Article X, included the Issuing Lender with respect to
such acts or omissions and (ii) as additionally provided in this Agreement with
respect to the Issuing Lender.
10.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
10.3 Liability of Administrative Agent. None of the Agent-Related
Persons shall (a) be liable to any Lender for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct) or (b) be responsible in any manner to any of
the Lenders for any recital, statement, representation or warranty made by the
Company or any Subsidiary or Affiliate of the Company, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or the existence, creation, validity, attachment, perfection,
enforceability, value or sufficiency of any collateral security for the
Obligations or for any failure of the Company or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Company or any of the Company's Subsidiaries
or Affiliates.
10.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Company), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other
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Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Lenders.
10.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Event of Default or Unmatured
Event of Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Company referring to this Agreement,
describing such Event of Default or Unmatured Event of Default and stating that
such notice is a "notice of default". The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Event of Default or Unmatured Event of Default
as may be requested by the Required Lenders in accordance with Article IX;
provided, however, that unless and until the Administrative Agent has received
any such request, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such Event
of Default or Unmatured Event of Default as it shall deem advisable or in the
best interest of the Lenders.
10.6 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Administrative Agent hereafter taken, including any review of the
affairs of the Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender confirms to the Administrative Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Company and its Subsidiaries, and
all applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Company hereunder. Each Lender also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Lenders by the Administrative
Agent, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Company which may come into the possession of any of the
Agent-Related Persons.
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10.7 Indemnification of Agents. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand the
Agents and the Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Company and without limiting the obligation of the Company to do
so), pro rata, from and against any and all Indemnified Liabilities incurred by
the Agents or the Agent-Related Persons in their capacities as such; provided,
however, that no Lender shall be liable for the payment to any Agent or
Agent-Related Person of any portion of the Indemnified Liabilities resulting
from such Person's gross negligence or willful misconduct. Without limitation of
the foregoing, to the extent the same are not reimbursed by the Company, each
Lender shall reimburse each Agent upon demand for its ratable share of any costs
or out-of-pocket expenses (including Attorney Costs) incurred by such Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that such Agent is not
reimbursed for such expenses by or on behalf of the Company. The undertaking in
this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of any Agent.
10.8 Administrative Agent in Individual Capacity. BofA and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Company and its Subsidiaries and Affiliates as though BofA were not the
Administrative Agent hereunder and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, BofA or its
Affiliates may receive information regarding the Company or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Company or such Affiliates) and acknowledge that the Administrative
Agent shall be under no obligation to provide such information to them. With
respect to its Loans, BofA and any Affiliate thereof shall have the same rights
and powers under this Agreement as any other Lender and may exercise the same as
though BofA were not the Administrative Agent.
10.9 Successor Administrative Agent. The Administrative Agent may, and
at the request of the Required Lenders shall, resign as Administrative Agent
upon 30 days' notice to the Lenders and the Company. If the Administrative Agent
resigns under this Agreement, the Required Lenders shall have the right, with
the consent of the Company so long as no Event of Default or Unmatured Event of
Default has occurred and is continuing (which consent shall not be unreasonably
withheld or delayed), to appoint from among the Lenders a successor agent for
the Lenders. If no successor agent is appointed prior to the effective date of
the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Company, a successor agent
from among the Lenders. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights, powers
and duties of the retiring Administrative Agent and the term "Administrative
Agent" shall mean such successor agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring
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Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article X and Sections 11.4 and 11.5 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor agent has accepted
appointment as Administrative Agent by the date which is 30 days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. Notwithstanding the foregoing, however, BofA may
not be removed as the Administrative Agent at the request of the Required
Lenders unless BofA and any Affiliate thereof acting as the Issuing Lender or
Swingline Lender hereunder shall also simultaneously be replaced as the Issuing
Lender and Swingline Lender pursuant to documentation in form and substance
reasonably satisfactory to BofA (and, if applicable, such Affiliate).
10.10 Withholding Tax. (a) If any Lender is not a "U.S. person" within
the meaning of the Code, such Lender shall deliver to the Administrative Agent
and the Company either:
(i) properly completed IRS Form 1001 certifying that such
Lender is entitled to benefits under an income tax treaty to which the
United States is a party that reduces the rate of withholding tax on
interest to zero before the payment of any interest in the first
calendar year and before the payment of any interest in each third
succeeding calendar year during which interest may be paid under this
Agreement;
(ii) two properly completed and executed copies of IRS Form
4224 certifying that income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the
United States before the payment of any interest is due in the first
taxable year of such Lender and in each succeeding taxable year of such
Lender during which interest may be paid under this Agreement, and IRS
Form W-9; or
(iii) if such Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form 1001 or 4224, such Lender shall deliver (A) a
certificate substantially in the form of Exhibit L and (B) two
properly completed and signed copies of Internal Revenue Service Form
W-8 certifying that such Lender is entitled to an exemption from United
States withholding tax with respect to payments of interest to be made
under this Agreement and any Note.
Each such Lender further agrees to deliver such other form or forms
from time to time as may be required under the Code or other laws or regulations
of the United States as a condition to exemption from, or reduction of, United
States withholding tax, to the extent legally permitted to do so. Each such
Lender agrees to promptly notify the Administrative Agent and the Company of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction.
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If any Lender is a United States person, it agrees to complete and
deliver to the Administrative Agent and the Company a statement signed by an
authorized signatory of such Lender to the effect that such Lender is a United
States person together with a duly completed and executed copy of Internal
Revenue Service Form W-9 or a successor form establishing that such Lender is
not subject to U.S. backup withholding tax.
(b) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001 and
such Lender sells, assigns, grants a participation in, or otherwise transfers
all or part of the Obligations of the Company to such Lender, such Lender agrees
to notify the Administrative Agent and the Company of the percentage amount in
which it is no longer the beneficial owner of Obligations of the Company to such
Lender. To the extent of such percentage amount, the Administrative Agent and
the Company will treat such Lender's IRS Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Administrative Agent and the
Company grants a participation in all or part of the Obligations of the Company
to such Lender, such Lender agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent or the Company, as the case may be,
may withhold from any interest payment to such Lender an amount equivalent to
the applicable withholding tax after taking into account such reduction. If the
forms or other documentation required by subsection (a) of this Section are not
timely delivered to the Administrative Agent, or the Company, as the case may
be, then the Administrative Agent or the Company, as the case may be, may
withhold from any interest payment to such Lender not providing such forms or
other documentation an amount equivalent to the applicable withholding tax
without reduction.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent or
the Company did not properly withhold tax from amounts paid to or for the
account of any Lender (because the appropriate form was not delivered or was not
properly executed, or because such Lender failed to notify the Administrative
Agent or the Company of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason)
such Lender shall indemnify the Administrative Agent or the Company, as the case
may be, fully for all amounts paid, directly or indirectly, by the
Administrative Agent or the Company, as the case may be, as Tax or otherwise,
including penalties and interest, and including any Taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent or the Company,
as the case may be, under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Lenders under this subsection
shall survive the payment of all Obligations and the resignation or replacement
of the Administrative Agent.
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(f) If any Lender claims exemption from, or reduction of,
withholding tax under the Code by providing IRS Form W-8 and a certificate in
the form of Exhibit L and such Lender sells, assigns, grants a participation in,
or otherwise transfers all or part of the Obligations of the Company to such
Lender, such Lender agrees to notify the Administrative Agent and the Company of
the percentage amount in which it is no longer the beneficial owner of
Obligations of the Company to such Lender. To the extent of such percentage
amount, the Administrative Agent and the Company will treat such Lender's IRS
Form W-8 and certificate in the form of Exhibit L as no longer valid.
10.11 Collateral Matters. (a) The Administrative Agent is authorized on
behalf of all the Lenders, without the necessity of any notice to or further
consent from the Lenders, from time to time to take any action with respect to
any Collateral or the Collateral Documents which may be necessary to perfect and
maintain perfected the security interest in and Liens upon the Collateral
granted pursuant to the Collateral Documents.
(b) The Lenders irrevocably authorize the Administrative Agent,
at its option and in its discretion, to release any Lien granted to or held by
the Administrative Agent upon any Collateral: (i) upon termination of the
Commitments and payment in full of all Loans and all other obligations known to
the Administrative Agent and payable under this Agreement or any other Loan
Document; (ii) constituting property sold or to be sold or disposed of as part
of or in connection with any disposition permitted hereunder; (iii) constituting
property in which the Company or any Subsidiary owned no interest at the time
the Lien was granted or at any time thereafter; (iv) constituting property
leased to the Company or any Subsidiary under a lease which has expired or been
terminated in a transaction permitted under this Agreement or is about to expire
and which has not been, and is not intended by the Company or such Subsidiary to
be, renewed or extended; (v) consisting of an instrument evidencing Indebtedness
or other debt instrument, if the indebtedness thereby has been paid in full; or
(vi) if approved, authorized or ratified in writing by the Required Lenders or,
if required by subsection 11.1(g), all the Lenders. Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent's authority to release particular types or items of
Collateral pursuant to this subsection 10.11(b).
(c) Each Lender agrees with and in favor of each other (which
agreement shall not be for the benefit of the Company or any Subsidiary) that
any security interest in real property collateral received by a Lender in
connection with the extension of any loan or financial commitment between such
Lender and the Company or any of its Affiliates and not related to the
transactions contemplated hereby shall not constitute collateral for the
Company's obligations under this Agreement or any other Loan Document.
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(d) (i) Any and all proceeds of disposition or other realization
on the Collateral or from any realization on any Guaranty received by the
Administrative Agent in connection with any enforcement, sale, collection
(including judicial or non-judicial foreclosure) or similar proceedings with
respect to the Collateral or a demand or other enforcement or collection with
respect to any Guaranty shall be applied by the Administrative Agent, as
follows:
FIRST: To the payment of the reasonable costs and expenses of
such disposition, collection or other realization, including Attorney
Costs, and all reasonable expenses, liabilities and advances made or
incurred by the Administrative Agent in connection therewith;
SECOND: To the ratable payment of the Liabilities then due and
owing to the Lender Parties; provided that with respect to Liabilities
consisting of the undrawn amounts of outstanding Letters of Credit,
payment shall be made to the Administrative Agent, to be retained as
Cash Collateral, for the ratable portion of the Liabilities consisting
of such undrawn amount of outstanding Letters of Credit (provided that
(A) if any such Letter of Credit is drawn upon, the Administrative
Agent shall distribute (ratably in accordance with subsection 3.4(a))
the Cash Collateral therefor which is allocable to the amount drawn
upon such Letter of Credit to the Issuing Lender and, if any Revolving
Lenders have paid the Administrative Agent for the account of the
Issuing Lender for such Revolving Lender's participation in such Letter
of Credit in accordance with Section 3.3, the Revolving Lenders
entitled to receive such distribution and (B) if and to the extent that
any such Letter of Credit shall expire or terminate, the amount of Cash
Collateral therefor shall be applied in accordance with this subsection
10.11(d)(i)), calculated in accordance with the provisions of
subsection 10.11(d)(ii); and
THIRD: After payment in full of all Liabilities, any surplus then
remaining from such proceeds shall be paid to the Company or to
whomsoever may be lawfully entitled to receive the same or paid as a
court of competent jurisdiction may direct.
Until such proceeds are so applied, the Administrative Agent shall hold
such proceeds in its custody in accordance with its regular procedures for
handling deposited funds.
(ii) Payment of proceeds of Collateral or of any realization on any
Guaranty to any Lender Party shall be based upon the proportion which the amount
of such Liabilities of such Lender Party bears to the total amount of all
Liabilities of all such Lender Parties. For purposes of determining the
proportionate amounts of all Liabilities sharing in any such distribution, (A)
the amount of the outstanding Obligations shall be deemed to be the Effective
Amount of the Loans and Letters of Credit and all accrued interest, fees and
costs with respect thereto and (B) the amount under any outstanding Swap
Contract shall be deemed to be the amount of the Permitted Swap Obligations then
due and payable (including early termination payments then due) in connection
therewith and all accrued interest and fees with respect thereto, after giving
effect to any netting of payments to which the Company is
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entitled with respect to such Swap Contract vis-a-vis the Company's counterparty
to such Swap Contract.
(iii) Payments of proceeds of Collateral or of any realization on any
Guaranty by the Administrative Agent in respect of (i) the Obligations shall be
made to the Administrative Agent for distribution to the Lenders pro rata and
(ii) any Swap Contract shall be made as directed by the Lender Party to which
the same is owed.
ARTICLE XI
MISCELLANEOUS
11.1 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company therefrom, shall be effective unless the same shall be
in writing and signed by the Required Lenders and the Company and acknowledged
by the Administrative Agent, and then any such waiver or consent shall be
effective only if in writing and in the specific instance and for the specific
purpose for which given; provided that:
(a) no such waiver, amendment or consent shall increase or extend
any Commitment of any Lender (or reinstate any Commitment terminated pursuant to
Section 9.2) without the written consent of such Lender;
(b) no such waiver, amendment or consent shall postpone or delay
any date fixed by this Agreement or any other Loan Document for any payment of
regularly scheduled principal or interest on any Loan without the written
consent of the Lender holding such Loan (provided, that any date fixed for
repayment of principal of any Term A Loan may be postponed or delayed (but not
beyond March 31, 2003) with the consent of Term A Lenders with an aggregate Term
A Percentage of at least 66-2/3%);
(c) no such waiver, amendment or consent relating to the
definition of "Mandatory Prepayment Event" or to any provision of this Agreement
or any other Loan Document which would result in any increased or decreased
mandatory prepayment of any Loan, or any increased or decreased mandatory
reduction of any Commitment, shall be made without the written consent of the
Required Revolving Lenders, Required Term A Lenders and Required Term B Lenders;
(d) no such waiver, amendment or consent shall reduce the
principal of, or the rate of interest specified herein on, any Loan without the
written consent of the Lender holding such Loan;
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(e) no such waiver, amendment or consent shall (subject to clause
(m) below) reduce any fees payable hereunder or under any other Loan Document,
or postpone or delay any date fixed by this Agreement or any other Loan Document
for the payment of fees or any other amounts due to any Lender hereunder or
under any other Loan Document, without the written consent of the Lender to whom
such fee or other amount is owing;
(f) no such waiver, amendment or consent shall (w) change the
aggregate percentage of the Total Percentage which is required for the Lenders
or any of them to take any action hereunder without the written consent of all
Lenders, (x) amend the definition of "Required Revolving Lenders" without the
written consent of all Revolving Lenders, (y) amend the definition of "Required
Term A Lenders" without the written consent of all Term A Lenders or (z) amend
the definition of "Required Term B Lenders" without the written consent of all
Term B Lenders;
(g) no such waiver, amendment or consent shall release any
Guaranty or Parent or any Subsidiary from its respective obligations under the
Loan Documents to which it is a party or release all or substantially all of the
collateral securing the Obligations without the written consent of all Lenders;
(h) no such waiver, amendment or consent shall amend or waive any
provision of this Section or Section 2.15, or any other provision herein
providing for consent or other action by all Lenders, without the written
consent of all Lenders;
(i) after the making of the Term Loans, Section 2.3, 2.4 (as it
relates to conversions and continuations of Revolving Loans), 2.6, 2.7 (as it
relates to an optional prepayment of Revolving Loans), 2.8(b) or 2.9(c) or
Article III may be amended, or the rights or privileges thereunder waived, with
the written consent of the Required Revolving Lenders (or, in the case of
Section 2.9(c), all of the Revolving Lenders), the Company and the
acknowledgment of the Administrative Agent;
(j) no amendment, waiver or consent shall, unless in writing and
signed by the Issuing Lender in addition to the Required Lenders or all Lenders,
as the case may be, affect the rights or duties of the Issuing Lender under this
Agreement or any L/C-Related Document relating to any Letter of Credit Issued or
to be Issued by it;
(k) no amendment, waiver or consent shall, unless in writing and
signed by the Swingline Lender in addition to the Required Lenders or all
Lenders, as the case may be, affect the rights and duties of the Swingline
Lender under this Agreement;
(l) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Required Lenders or all
Lenders, as the case may be, affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document; and
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(m) the Fee Letter may be amended, or rights or privileges
thereunder waived, in writing executed by the parties thereto.
11.2 Notices. (a) All notices, requests and other communications
hereunder shall be in writing (including, unless the context expressly otherwise
provides, by facsimile transmission, provided that any matter transmitted by the
Company by facsimile (i) shall be immediately followed by a telephone call to
the recipient at the number specified on Schedule 11.2, and (ii) shall be
followed promptly by delivery of a hard copy original thereof) and mailed, faxed
or delivered to the address or facsimile number specified for notices on
Schedule 11.2; or, as directed to the Company or the Administrative Agent, to
such other address as shall be designated by such party in a written notice to
the other parties, and as directed to any other party, at such other address as
shall be designated by such party in a written notice to the Company and the
Administrative Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the U.S. mail, return
receipt requested; except that notices to the Administrative Agent pursuant to
Article II, III or X shall not be effective until actually received by the
Administrative Agent, and notices pursuant to Article III to the Issuing Lender
shall not be effective until actually received by the Issuing Lender at the
address specified for the "Issuing Lender" on Schedule 11.2.
(c) Any agreement of the Administrative Agent and the Lenders
herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Company. The Administrative Agent and the
Lenders shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Company to give such notice and the Administrative
Agent and the Lenders shall not have any liability to the Company or any other
Person on account of any action taken or not taken by the Administrative Agent
or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Company to repay the Loans and L/C Obligations shall not be
affected in any way or to any extent by any failure of the Administrative Agent
and the Lenders to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Administrative Agent and the Lenders of a
confirmation which is at variance with the terms understood by the
Administrative Agent and the Lenders to be contained in the telephonic or
facsimile notice.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
11.4 Costs and Expenses. The Company shall:
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(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse the Administrative Agent, the Documentation Agent
and the Arranger and their Affiliates (including BofA in its capacities as
Swingline Lender and Issuing Lender) within five Business Days after demand
therefor (subject to subsection 5.1(f)) for all reasonable and documented costs
and expenses incurred by such Agents and the Arranger and their Affiliates in
connection with the preparation, delivery, administration and execution of, and
any amendment, supplement, waiver or modification to (in each case, whether or
not consummated), this Agreement, any Loan Document and any other document
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including Attorney Costs incurred
by such Agents and the Arranger with respect thereto; and
(b) pay or reimburse the Administrative Agent and each Lender
within five Business Days after demand therefor (subject to subsection 5.1(f))
for all costs and expenses (including Attorney Costs) incurred by them in
connection with the enforcement, attempted enforcement or preservation of any
right or remedy under this Agreement or any other Loan Document during the
existence of an Event of Default or after acceleration of the Loans (including
in connection with any "workout" or restructuring regarding the Loans and
including in any Insolvency Proceeding or appellate proceeding).
11.5 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify and hold the
Agent-Related Persons, each Agent and each Lender and each of their respective
Affiliates, officers, directors, employees, counsel, agents, investment
advisers, trustees and attorneys-in-fact (each an "Indemnified Person") harmless
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever (excluding costs and
expenses specifically referred to in Section 11.4) which may at any time
(including, at any time following repayment of the Loans, the termination of the
Letters of Credit and the termination, resignation or replacement of the
Administrative Agent or replacement of any Lender) be imposed on, incurred by or
asserted against any such Person in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby or thereby, or any action taken or omitted by
any such Person under or in connection with any of the foregoing, including with
respect to any investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding or any investigation, litigation or
proceeding related to any environmental cleanup, audit, compliance or other
matter relating to the protection of the environment or the Release by the
Company or any of its Subsidiaries of any Hazardous Material) related to or
arising out of this Agreement or the Loans or Letters of Credit or the use of
the proceeds thereof, whether or not any Indemnified Person is a party thereto
(all the foregoing, collectively, the "Indemnified Liabilities"); provided that
the Company shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities resulting solely from the gross negligence or
willful misconduct of such Indemnified Person. The agreements in this Section
shall survive payment of all other Obligations. Each Agent-Related Person and
each Lender agrees that in the event that any
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investigation, litigation or proceeding is asserted or threatened in writing or
instituted against it or any other Indemnified Person, or any remedial, removal
or response action which is requested of it or any other Indemnified Person, for
which any Agent-Related Person or Lender may desire indemnity or defense
hereunder, such Agent-Related Person or such Lender shall notify the Company in
writing of such event; provided that failure to so notify the Company shall not
affect the right of any Agent-Related Person or Lender to seek indemnification
under this Section.
11.6 Payments Set Aside. To the extent that the Company makes a payment
to the Administrative Agent or the Lenders, or the Administrative Agent or the
Lenders exercise their right of set-off, and such payment or the proceeds of
such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee or receiver, or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred and (b) each Lender
severally agrees to pay to the Administrative Agent upon demand its pro rata
share of any amount so recovered from or repaid by the Administrative Agent.
11.7 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Administrative Agent and each Lender.
11.8 Assignments, Participations, etc. (a) Any Lender may, with the
written consent of the Company at all times other than during the existence of
an Event of Default and with the written consents of the Administrative Agent
and, in case of an assignment of a Revolving Commitment or L/C Obligations, the
Issuing Lender and the Swingline Lender, which consents shall not be
unreasonably withheld or delayed, at any time assign and delegate to one or more
Eligible Assignees (provided that no written consent of the Company, the
Administrative Agent, the Issuing Lender or the Swingline Lender shall be
required in connection with any assignment and delegation by a Lender to a
Person described in clause (ii), (iii), (iv) or (v) of the definition of
Eligible Assignee) (each, an "Assignee") all, or any part, of the Loans, the
Revolving Commitment, the L/C Obligations and the other rights and obligations
of such Lender hereunder, in a minimum amount of $5,000,000 (or, if less, all of
such Lender's remaining rights and obligations hereunder or all of such Lender's
rights and obligations with respect to Revolving Commitment and Revolving Loans,
Term A Loans or Term B Loans) or such lesser amount as may be approved by the
Company and the Administrative Agent (provided that such minimum amount shall
not apply to assignments by a Lender to Persons described in clause (ii), (iii),
(iv) or (v) of the definition of Eligible Assignee); provided, however, that (A)
the Company, the Administrative Agent, the Issuing Lender and the Swingline
Lender may continue to deal solely and directly with such Lender in connection
with the interest so assigned to an Assignee until (i) written notice of such
assignment, together with payment instructions, addresses and related
information with
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respect to the Assignee shall have been given to the Company and the
Administrative Agent by such Lender and the Assignee, (ii) such Lender and the
Assignee shall have delivered to the Company and the Administrative Agent an
Assignment and Acceptance in the form of Exhibit K (an "Assignment and
Acceptance") together with any Note or Notes subject to such assignment and
(iii) the assignor Lender or the Assignee has paid to the Administrative Agent a
processing fee in the amount of $3,500 and (B) the Company shall not, as a
result of any assignment, delegation or participation by any Lender, incur any
increased liability for Taxes, Other Taxes or Further Taxes pursuant to Section
4.1. The Company designates the Administrative Agent as its agent for
maintaining a book entry record of ownership identifying the Lenders, their
respective addresses and the amount of the respective Loans and Notes which they
own. The foregoing provisions are intended to comply with the registration
requirements in Treasury Regulation Section 5f.103-1 so that the Loans and Notes
are considered to be in "registered form" pursuant to such regulation.
(b) From and after the date that the Administrative Agent
notifies the assignor Lender that it has provided its consent, and received the
consents of the Swingline Lender, the Issuing Lender and (if applicable) the
Company, with respect to an executed Assignment and Acceptance and payment of
the above-referenced processing fee, (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Lender under the Loan Documents, and (ii) the assignor
Lender shall, to the extent that rights and obligations hereunder and under the
other Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Any Lender may at any time sell to one or more commercial
banks or other Persons not Affiliates of the Company (a "Participant")
participating interests in any Loan, the Revolving Commitment of such Lender and
the other interests of such Lender (the "originating Lender") hereunder and
under the other Loan Documents; provided, however, that (i) the originating
Lender's obligations under this Agreement shall remain unchanged, (ii) the
originating Lender shall remain solely responsible for the performance of such
obligations, (iii) the Company, the Swingline Lender, the Issuing Lender and the
Administrative Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents and (iv) no Lender
shall transfer or grant any participating interest under which the Participant
has rights to approve any amendment to, or any consent or waiver with respect
to, this Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require unanimous consent of the Lenders or
the consent of a particular Lender or the consent of the Required Revolving
Lenders, Required Term A Lenders or Required Term B Lenders, in each case as
described in clauses (a) through (h) of the proviso to Section 11.1. In the case
of any such participation, the Participant shall be entitled to the benefit of
Sections 4.1, 4.3 and 11.5 as though it were also a Lender hereunder (provided,
with respect to Sections 4.1 and 4.3, the Company shall not be required to pay
any amount which it would not have been required to pay if no participating
interest had been sold), and if amounts outstanding under this Agreement are due
and
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unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, the Participant shall be deemed to have
the right of set-off in respect of its participating interest in amounts owing
under this Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement. Each Lender
which sells a participation will maintain a book entry record of ownership
identifying the Participant(s) and the amount of such participation(s) owned by
such Participant(s). Such book entry record of ownership shall be maintained by
the Lender as agent for the Company and the Administrative Agent. This provision
is intended to comply with the registration requirements in Treasury Regulation
Section 5f.103-1 so that the Loans and Notes are considered to be in "registered
form" pursuant to such regulation. Each Lender may furnish any information
concerning the Company and its Subsidiaries in the possession of such Lender
from time to time to participants and prospective participants and may furnish
information in response to credit inquiries consistent with general banking
practice.
(d) Notwithstanding any other provision in this Agreement, (i)
any Lender may at any time assign all or any portion of its rights under and
interest in this Agreement and any Note held by it to any Affiliate of such
Lender that is an "Eligible Assignee" or create a security interest in, or
pledge all or any portion of its rights under and interest in this Agreement and
any Note held by it in favor of any Federal Reserve Bank in accordance with
Regulation A of the FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and
such Federal Reserve Bank may enforce such pledge or security interest in any
manner permitted under applicable law and (ii) any Lender which is a fund may,
pledge all or any portion of its Loans and Notes to its trustee in support of
its obligations to its trustee.
11.9 Confidentiality. Each Lender agrees to take, and to cause its
Affiliates to take, normal and reasonable precautions and exercise due care to
maintain the confidentiality of all non-public information provided to it by the
Company or any Subsidiary, or by the Administrative Agent on the Company's or
any Subsidiary's behalf, under this Agreement or any other Loan Document, and
neither such Lender nor any of its Affiliates shall use any such information
other than in connection with or in enforcement of this Agreement and the other
Loan Documents or in connection with other business now or hereafter existing or
contemplated with the Company or any Subsidiary, except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by such Lender or (ii) was or becomes available on a
non-confidential basis from a source other than the Company (provided that such
source is not bound by a confidentiality agreement with the Company or any
Subsidiary known to such Lender); provided, however, that any Lender may
disclose such information (A) at the request or pursuant to any requirement of
any Governmental Authority to which such Lender is subject or in connection with
an examination of such Lender by any such authority, (B) pursuant to subpoena or
other court process, (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law, (D) to the extent reasonably
required in connection with any litigation or proceeding to which the
Administrative Agent or any Lender or any of their respective Affiliates may be
party, (E) to the extent reasonably required in connection with the exercise of
any remedy hereunder or under any other Loan Document, (F) to such Lender's
independent auditors and other professional advisors, (G) to any Participant or
Assignee, actual or potential, or to
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direct or indirect contractual counterparties to swap agreements or such
contractual counterparties' professional advisors provided that such Person or
contractual counterparty or professional advisor to such contractual
counterparty agrees in writing to keep such information confidential to the same
extent required of the Lenders hereunder, (H) as to any Lender or its Affiliate,
as expressly permitted under the terms of any other document or agreement
regarding confidentiality to which the Company or any Subsidiary is party or is
deemed party with such Lender or such Affiliate, (I) to its Affiliates and (J)
to the National Association of Insurance Commissioners or any similar
organization or, with the consent of the Company (not to be unreasonably
withheld or delayed), any nationally recognized rating agency that requires
access to information about such Lender's investment portfolio in connection
with ratings issued to such Lender.
11.10 Set-off. In addition to any right or remedy of the Lenders
provided by law, if an Event of Default exists, or the Loans have been
accelerated, each Lender is authorized at any time and from time to time,
without prior notice to the Company, any such notice being waived by the Company
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by, and other indebtedness at any time owing by, such Lender or any
Affiliate of such Lender to or for the credit or the account of the Company
against any and all Obligations then due and owing to such Lender, and each
Affiliate of such Lender is hereby irrevocably authorized to permit such set-off
and application. Each Lender agrees promptly to notify the Company and the
Administrative Agent after any such set-off and application made by such Lender;
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
11.11 Automatic Debits of Fees. With respect to any commitment fee,
arrangement fee, agency fee, letter of credit fee or other fee, or any other
cost or expense (including Attorney Costs) due and payable to the Administrative
Agent, the Swingline Lender or the Issuing Lender under the Loan Documents, the
Company hereby irrevocably authorizes BofA to debit any deposit account of the
Company with BofA in an amount such that the aggregate amount debited from all
such deposit accounts does not exceed such fee or other cost or expense. If
there are insufficient funds in such deposit accounts to cover the amount of the
fee or other cost or expense then due, such debits will be reversed (in whole or
in part, in BofA's sole discretion) and such amount not debited shall be deemed
to be unpaid. No such debit under this Section shall be deemed a set-off.
11.12 Notification of Addresses, Lending Offices, Etc. Each Lender
shall notify the Administrative Agent in writing of any change in the address to
which notices to such Lender should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
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11.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of which taken together shall constitute but one and the same
instrument.
11.14 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or such instrument or agreement.
11.15 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Lenders, the
Administrative Agent and the Agent-Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any other Loan Document.
11.16 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND ANY NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE
STATE OF NEW YORK; PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH OF THE COMPANY,
THE ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS EACH WAIVE
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
11.17 Waiver of Jury Trial. THE COMPANY, THE LENDERS AND THE
ADMINISTRATIVE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE
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PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR
ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE
COMPANY, THE LENDERS AND THE ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM
OR CAUSE OF ACTION SHALL BE TRIED BY A COURT WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL
BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENT, RENEWAL,
SUPPLEMENT OR MODIFICATION TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.18 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
the Lenders and the Agents, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
DEL MONTE CORPORATION
By:
------------------------------------------
Title:
---------------------------------------
BANK OF AMERICA, N.A.,
as Administrative Agent, Issuing Lender,
Swingline Lender and Lender
By:
------------------------------------------
Title:
---------------------------------------
S-1
132
BANKERS TRUST COMPANY,
as Documentation Agent and as a Lender
By:
------------------------------------------
Title:
---------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Agent and as a Lender
By:
------------------------------------------
Title:
---------------------------------------
FLEET BUSINESS CREDIT CORPORATION,
as Co-Agent and as a Lender
By:
------------------------------------------
Title:
---------------------------------------
S-2
133
ABN AMRO BANK N.V.,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
ARCHIMEDES FUNDING II, LTD.,
as a Lender
By: ING Capital Advisors LLC, as Collateral
Manager
By:
------------------------------------------
Title:
---------------------------------------
THE BANK OF NEW YORK,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
S-3
000
XXX XXXX XX XXXX XXXXXX,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
BANQUE NATIONALE DE PARIS,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
BHF (USA) CAPITAL CORPORATION,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
By:
------------------------------------------
Title:
---------------------------------------
S-4
135
BLACK DIAMOND CLO 1998-1 LTD,
as a Lender
By: Black Diamond Capital Management,
as Investment Adviser
By:
------------------------------------------
Title:
---------------------------------------
CAPTIVA III FINANCE LTD., as a Lender
By: Pacific Investment Management Co.,
as Investment Adviser
By:
------------------------------------------
Title:
---------------------------------------
THE CHASE MANHATTAN BANK, as a Lender
By:
------------------------------------------
Title:
---------------------------------------
S-5
136
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
THE CIT GROUP,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
CITY NATIONAL BANK, as a Lender
By:
------------------------------------------
Title:
---------------------------------------
X-0
000
XXXXXXXX WEST INCORPORATED,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
CREDIT INDUSTRIEL ET COMMERCIAL,
NEW YORK BRANCH,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
By:
------------------------------------------
Title:
---------------------------------------
X-0
000
XXXXXX STRATEGIC INCOME FUND,
as a Lender
By: Boston Management and Research,
as Investment Adviser
By:
------------------------------------------
Title:
---------------------------------------
SENIOR DEBT PORTFOLIO,
as a Lender
By: Boston Management and Research,
as Investment Adviser
By:
------------------------------------------
Title:
---------------------------------------
XXXXX XXXXX SENIOR INCOME TRUST,
as a Lender
By: Boston Management and Research,
as Investment Adviser
By:
------------------------------------------
Title:
---------------------------------------
S-8
139
FREMONT INVESTMENT & LOAN,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
GALAXY CLO 1999-1 LTD,
as a Lender
By: Sun America, as Investment Adviser
By:
------------------------------------------
Title:
---------------------------------------
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
S-9
140
XXXXXX TRUST AND SAVINGS BANK,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
XXXXXX FINANCIAL, INC.,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
HSBC BANK USA,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
S-10
141
IBJ WHITEHALL BANK & TRUST COMPANY,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
THE ING CAPITAL SENIOR SECURED HIGH
INCOME FUND, L.P. as a Lender
By: ING Capital Advisors LLC,
as Collateral Manager
By:
------------------------------------------
Title:
---------------------------------------
X-00
000
XXX CNC LLC,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
KZH CRESCENT-2 LLC,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
KZH CRESCENT-3 LLC,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
X-00
000
XXX CRESCENT LLC,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
KZH ING-2 LLC,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
KZH SOLEIL LLC,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
S-13
144
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
XXXXXX BANK PLC,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
METROPOLITAN LIFE INSURANCE COMPANY,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
S-14
145
THE MITSUBISHI TRUST AND BANKING CORPORATION,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
NATEXIS BANQUE - BFCE,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
NATIONAL CITY BANK,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
S-15
000
XXX XXXX SECURITIES FUND, L.P.,
as a Lender
By: Oak Hill Securities GenPar, L.P.,
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By:
------------------------------------------
Title:
---------------------------------------
OCTAGON INVESTMENT PARTNERS III, LTD.,
as a Lender
By: Octagon Credit Investors, LLC,
as Portfolio Manager
By:
------------------------------------------
Title:
---------------------------------------
COOPERATIVE CENTRAL RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND" NEW YORK BRANCH,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
S-16
147
ROYALTON COMPANY,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
SEQUILS I, LTD,
as a Lender
By: TCW Advisors, Inc. as its
Collateral Manager
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
S-17
148
SOUTHERN PACIFIC BANK,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
STB DELAWARE FUNDING TRUST I,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
TCW LEVERAGED INCOME TRUST, L.P.,
as a Lender
By: TCW Advisers (Bermuda) Ltd.,
as General Partner
By:
------------------------------------------
Name: Xxxx X. Gold
Title: Managing Director
By: TCW Investment Management Company,
as Investment Adviser
By:
------------------------------------------
Name:
Title:
S-18
149
TRANSAMERICA BUSINESS CREDIT CORPORATION,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By:
------------------------------------------
Title:
---------------------------------------
XXX XXXXXX CLO I, LIMITED,
as a Lender
By: Xxx Xxxxxx Management Inc.,
as Collateral Manager
By:
------------------------------------------
Title:
---------------------------------------
S-19
150
PRICING SCHEDULE
Revolving Loans, Term A Loans, L/C Fee Rate and Commitment Fee Rate
The Applicable Base Rate Margin and Applicable Offshore Rate Margin for
Revolving Loans and Term A Loans, the L/C Fee Rate and Commitment Fee Rate shall
be as follows: ***
151
Term B Loans
The Applicable Base Rate Margin for Term B Loans bearing interest based on the
Base Rate is ***% per annum.
The Applicable Offshore Rate Margin for Term B Loans bearing interest based on
the Offshore Rate is ***% per annum.
