EXHIBIT 10.2
EXECUTION COPY
[SWIFT LOGO] SWIFT & COMPANY
$550,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 26, 2005
AMONG
SWIFT & COMPANY
S&C AUSTRALIA HOLDCO PTY. LTD.
(ACN: 000 000 000)
AUSTRALIA MEAT HOLDINGS PTY. LIMITED
(ACN: 011 062 338)
AS BORROWERS
S&C HOLDCO 3, INC.
AS HOLDINGS
AND
THE LENDERS AND ISSUERS PARTY HERETO
AND
CITICORP USA, INC.
AS ADMINISTRATIVE AGENT, AUSTRALIAN AGENT AND COLLATERAL AGENT
AND
JPMORGAN CHASE BANK, N.A.
AS SYNDICATION AGENT
AND
CITISECURITIES LIMITED
(ACN: 000 000 000)
AS AUSTRALIAN COLLATERAL TRUSTEE
AND
U.S. BANK NATIONAL ASSOCIATION,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL", NEW YORK BRANCH,
XXXXXX TRUST AND SAVINGS BANK,
GMAC COMMERCIAL FINANCE LLC,
FARM CREDIT SERVICE OF AMERICA, PCA
AND
FARM CREDIT SERVICES OF MID-AMERICA, PCA
AS CO-DOCUMENTATION AGENTS
CITIGROUP GLOBAL MARKETS INC.
AND
X.X. XXXXXX SECURITIES INC.
AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
WEIL, GOTSHAL & XXXXXX LLP
000 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000-0000
TABLE OF CONTENTS
Article I Definitions, Interpretation And Accounting Terms.................................... 1
Section 1.1 Defined Terms.............................................................. 1
Section 1.2 Computation of Time Periods................................................ 51
Section 1.3 Accounting Terms and Principles............................................ 51
Section 1.4 Conversion of Foreign Currencies........................................... 52
Section 1.5 Certain Terms.............................................................. 52
Article II The Facility........................................................................ 53
Section 2.1 The Commitments............................................................ 53
Section 2.2 Borrowing Procedures....................................................... 54
Section 2.3 Swing Loans................................................................ 56
Section 2.4 Letters of Credit.......................................................... 58
Section 2.5 Reduction and Termination of the Revolving Credit Commitments.............. 64
Section 2.6 Repayment of Loans......................................................... 64
Section 2.7 Evidence of Debt........................................................... 65
Section 2.8 Optional Prepayments....................................................... 66
Section 2.9 Mandatory Prepayments...................................................... 66
Section 2.10 Interest................................................................... 66
Section 2.11 Conversion and Continuation................................................ 67
Section 2.12 Fees....................................................................... 70
Section 2.13 Payments and Computations.................................................. 71
Section 2.14 Special Provisions Governing External Rate Loans........................... 75
Section 2.15 Capital Adequacy........................................................... 77
Section 2.16 Taxes...................................................................... 77
Section 2.17 Substitution of Lenders.................................................... 81
Article III Conditions To Loans And Letters Of Credit........................................... 83
Section 3.1 Conditions Precedent to the Effectiveness of this Agreement................ 83
Section 3.2 Conditions Precedent to Each Loan and Letter of Credit..................... 85
Section 3.3 Determinations of Initial Borrowing Conditions............................. 86
Article IV Representations and Warranties...................................................... 86
Section 4.1 Corporate Existence; Compliance with Law................................... 86
Section 4.2 Corporate Power; Authorization; Enforceable Obligations.................... 87
Section 4.3 Ownership of Company; Subsidiaries......................................... 87
Section 4.4 Financial Statements....................................................... 88
TABLE OF CONTENTS
(CONTINUED)
Section 4.5 Material Adverse Change.................................................... 89
Section 4.6 Solvency................................................................... 89
Section 4.7 Litigation................................................................. 89
Section 4.8 Taxes...................................................................... 89
Section 4.9 Full Disclosure............................................................ 90
Section 4.10 Margin Regulations......................................................... 90
Section 4.11 No Burdensome Restrictions; No Defaults.................................... 90
Section 4.12 Investment Company Act; Public Utility Holding Company Act................. 91
Section 4.13 Use of Proceeds............................................................ 91
Section 4.14 Ranking.................................................................... 91
Section 4.15 Insurance.................................................................. 92
Section 4.16 Labor Matters.............................................................. 92
Section 4.17 Compensation Plans; ERISA.................................................. 92
Section 4.18 Environmental Matters...................................................... 93
Section 4.19 Intellectual Property...................................................... 94
Section 4.20 Title; Real Property....................................................... 94
Section 4.21 Related Documents.......................................................... 95
Section 4.22 Australian Representations and Warranties.................................. 96
Article V Financial Covenants................................................................. 96
Section 5.1 Minimum Fixed Charge Coverage Ratio........................................ 97
Article VI Reporting Covenants................................................................. 97
Section 6.1 Financial Statements....................................................... 97
Section 6.2 Default Notices............................................................ 99
Section 6.3 Litigation................................................................. 99
Section 6.4 Asset Sales................................................................ 99
Section 6.5 Notices under Related Documents............................................ 99
Section 6.6 SEC Filings; Press Releases................................................ 99
Section 6.7 Labor Relations............................................................ 100
Section 6.8 Tax Returns................................................................ 100
Section 6.9 Insurance.................................................................. 100
Section 6.10 ERISA Matters.............................................................. 100
Section 6.11 Environmental Matters...................................................... 101
Section 6.12 Borrowing Bases Determination.............................................. 102
TABLE OF CONTENTS
(CONTINUED)
Section 6.13 Material Contracts......................................................... 103
Section 6.14 Other Information.......................................................... 103
Article VII Affirmative Covenants............................................................... 104
Section 7.1 Preservation of Corporate Existence, Etc................................... 104
Section 7.2 Compliance with Laws, Etc.................................................. 104
Section 7.3 Conduct of Business........................................................ 104
Section 7.4 Payment of Taxes, Etc...................................................... 104
Section 7.5 Maintenance of Insurance................................................... 104
Section 7.6 Access..................................................................... 105
Section 7.7 Keeping of Books........................................................... 105
Section 7.8 Maintenance of Properties, Etc............................................. 105
Section 7.9 Use of Proceeds; Ranking................................................... 105
Section 7.10 Environmental.............................................................. 106
Section 7.11 Additional Collateral and Guaranties....................................... 106
Section 7.12 Landlord Waivers and Bailee's Letters...................................... 108
Section 7.13 Control Accounts; Approved Deposit Accounts................................ 109
Section 7.14 Real Property.............................................................. 110
Article VIII Negative Covenants.................................................................. 111
Section 8.1 Indebtedness............................................................... 111
Section 8.2 Liens, Etc................................................................. 114
Section 8.3 Investments................................................................ 115
Section 8.4 Sale of Assets............................................................. 116
Section 8.5 Restricted Payments........................................................ 118
Section 8.6 Prepayment and Cancellation of Indebtedness................................ 120
Section 8.7 Restriction on Fundamental Changes; Permitted Acquisitions................. 120
Section 8.8 Change in Nature of Business............................................... 121
Section 8.9 Transactions with Permitted Joint Ventures and Affiliates.................. 121
Section 8.10 Limitations on Restrictions on Subsidiary Distributions; No New Negative
Pledge................................................................... 122
Section 8.11 Modification of Constituent Documents...................................... 122
Section 8.12 Modification of Related Documents.......................................... 122
Section 8.13 Modification of Permitted Unsecured Indebtedness........................... 123
Section 8.14 Accounting Changes; Fiscal Year............................................ 123
TABLE OF CONTENTS
(CONTINUED)
Section 8.15 Margin Regulations......................................................... 123
Section 8.16 Xxxxxxxx-Xxxxx Act......................................................... 123
Section 8.17 Operating Leases; Sale/Leasebacks.......................................... 123
Section 8.18 No Speculative Transactions................................................ 124
Section 8.19 Compliance with ERISA...................................................... 124
Section 8.20 Environmental.............................................................. 124
Article IX Events of Default................................................................... 124
Section 9.1 Events of Default.......................................................... 124
Section 9.2 Remedies................................................................... 127
Section 9.3 Actions in Respect of Letters of Credit.................................... 128
Section 9.4 Rescission................................................................. 128
Article X The Administrative Agent; Other Agents.............................................. 129
Section 10.1 Authorization and Action................................................... 129
Section 10.2 Agent's Reliance, Etc...................................................... 130
Section 10.3 Each Agent Individually.................................................... 131
Section 10.4 Lender Credit Decision..................................................... 131
Section 10.5 Indemnification............................................................ 131
Section 10.6 Successor Administrative Agent, Australian Agent and Australian
Collateral Trustee....................................................... 132
Section 10.7 Concerning the Collateral and the Collateral Documents..................... 133
Section 10.8 Collateral Matters Relating to Related Obligations......................... 135
Article XI Miscellaneous....................................................................... 136
Section 11.1 Amendments, Waivers, Etc................................................... 136
Section 11.2 Assignments and Participations............................................. 138
Section 11.3 Costs and Expenses......................................................... 144
Section 11.4 Indemnities................................................................ 145
Section 11.5 Limitation of Liability.................................................... 146
Section 11.6 Right of Set-off........................................................... 147
Section 11.7 Sharing of Payments, Etc................................................... 147
Section 11.8 Notices, Etc............................................................... 148
Section 11.9 No Waiver; Remedies........................................................ 149
Section 11.10 Amendment and Restatement; Binding Effect.................................. 149
Section 11.11 Waiver of Judicial Bond.................................................... 151
TABLE OF CONTENTS
(CONTINUED)
Section 11.12 Waiver of Immunity......................................................... 151
Section 11.13 Currency of Payment........................................................ 151
Section 11.14 Governing Law.............................................................. 152
Section 11.15 Submission to Jurisdiction; Service of Process............................. 152
Section 11.16 Waiver of Jury Trial....................................................... 153
Section 11.17 Marshaling; Payments Set Aside............................................. 153
Section 11.18 Section Titles............................................................. 154
Section 11.19 Execution in Counterparts.................................................. 154
Section 11.20 Entire Agreement........................................................... 154
Section 11.21 Confidentiality............................................................ 155
Section 11.22 Patriot Act Notice......................................................... 155
TABLE OF CONTENTS
(CONTINUED)
SCHEDULES
Schedule I - Revolving Credit Commitments
Schedule II - Applicable Lending Offices and Addresses for Notices
Schedule 4.2 - Consents
Schedule 4.3 - Ownership of Subsidiaries
Schedule 4.7 - Litigation
Schedule 4.8 - Taxes
Schedule 4.16 - Labor Matters
Schedule 4.17 - List of Plans
Schedule 4.18 - Environmental Matters
Schedule 4.19 - Intellectual Property
Schedule 4.20 - Real Property
Schedule 4.21 - Australian Trusts and Settlements
Schedule 7.15 - Post-Closing Deliveries
Schedule 8.1 - Existing Indebtedness
Schedule 8.2 - Existing Liens
Schedule 8.3 - Existing Investments
EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of Dollar Revolving Credit Note
Exhibit B-2 - Form of Australian Dollar Revolving Credit Note
Exhibit C-1 - Form of Notice of Borrowing in Dollars
Exhibit C-2 - Form of Notice of Australian Dollar Borrowing
Exhibit D - Form of Swing Loan Request
Exhibit E - Form of Letter of Credit Request
Exhibit F - Form of Notice of Conversion or Continuation
Exhibit G-1 - Form of Opinion of U.S. Counsel for the Loan Parties
Exhibit G-2 - Form of Opinion of Australian Counsel for the Loan Parties
Exhibit H-1 - Form of Domestic Guaranty
Exhibit H-2 - Form of Non-U.S. Guaranty
Exhibit I - Form of Pledge and Security Agreement
Exhibit J - Form of Borrowing Base Certificate
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 26, 2005,
among SWIFT & COMPANY, a Delaware corporation (the "Company"), S&C AUSTRALIA
HOLDCO PTY. LTD., a New South Wales, Australia company ("Australian Holdings"),
AUSTRALIA MEAT HOLDINGS PTY. LIMITED (the "Australian Company" and, together
with "Australian Holdings", the "Australian Borrowers"), S&C HOLDCO 3, INC., a
Delaware corporation ("Holdings"), the Lenders (as defined below), the Issuers
(as defined below), CITICORP USA, INC. ("Citicorp"), as administrative and
collateral agent for the Lenders and the Issuers (in such capacity, the
"Administrative Agent") and as Australian agent for the Lenders and Issuers,
JPMORGAN CHASE BANK, N.A. ("JPMorgan"), as syndication agent for the Lenders and
the Issuers (in such capacity, the "Syndication Agent"), CITISECURITIES LIMITED
("Citisecurities"), as Australian Collateral Trustee for the Lenders and Issuers
(in such capacity, the "Australian Collateral Trustee") and U.S. BANK NATIONAL
ASSOCIATION, COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH, XXXXXX TRUST AND SAVINGS BANK, GMAC COMMERCIAL
FINANCE LLC, FARM CREDIT SERVICE OF AMERICA, PCA and FARM CREDIT SERVICES OF
MID-AMERICA, PCA (each a "Listed Agent"), each as co-documentation agent for the
Lenders and Issuers (each, in such capacity, a "Documentation Agent") amends and
restates in its entirety the Existing Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Borrowers, Holdings, the lenders and issuers from time to
time party thereto, the Administrative Agent, the Syndication Agent, the
Australian Collateral Trustee and certain documentation agents are parties to
the Credit Agreement, dated as of September 19, 2002 (as amended, modified, or
supplemented prior to the date hereof, the "Existing Credit Agreement");
WHEREAS, the Borrowers, the Lenders and the other parties hereto have
agreed to amend and restate the Existing Credit Agreement on the terms set forth
herein; and
WHEREAS, it is the intent of the parties hereto that (x) this
Agreement not constitute a novation of the obligations and liabilities existing
under the Existing Credit Agreement or evidence payment of all or any of such
obligations and liabilities, (y) this Agreement amend and restate in its
entirety the Existing Credit Agreement and (z) from and after the Effective Date
(as defined below), the Existing Credit Agreement be of no further force or
effect except as to evidence the existence of the "Obligations" under and as
defined thereunder, the representations and warranties made, and the actions or
omissions performed or required to be performed thereunder, in each case prior
to the Effective Date;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto hereby agree as follows:
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
SECTION 1.1 DEFINED TERMS
As used in this Agreement, the following terms have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Account" (a) in respect of any "Account" of any Australian
Subsidiary, means any "Receivables", as defined in any Australian Collateral
Document and (b) in respect of all other assets, has the meaning specified in
the Pledge and Security Agreement.
"Account Debtor" (a) in respect of Accounts of the Australian
Subsidiaries, the Person obligated under such Accounts and (b) otherwise, has
the meaning specified in the Pledge and Security Agreement.
"Acquisition Document" means any document executed in connection
with the acquisition consummated on the Purchase Date and delivered to the
Administrative Agent pursuant to the Existing Credit Agreement.
"Additional Australian Collateral Documents" means the intellectual
property notations of security interest by any of Australian Holdings and its
Subsidiaries, as applicable, for the benefit of the Australian Collateral
Trustee.
"Additional Unsecured Indebtedness" means unsecured Indebtedness of
Holdings or the Company that (a) is junior or pari passu with the Senior Notes
if such Indebtedness is incurred by the Company, or junior or pari passu with
the Holdings Notes if such Indebtedness is incurred by Holdings, (b) bears
interest and provides for the payment of fees on terms and conditions not
significantly less favorable to any Loan Party from those offered to borrowers
in the marketplace for similar facilities, (c) with respect to Indebtedness
incurred by the Company, has a maturity not earlier and an average life to
maturity not less than that of the Senior Notes or, if such Indebtedness is
junior to the Senior Notes, the Subordinated Notes (calculated at the time of
incurrence of such Indebtedness), (d) with respect to Indebtedness incurred by
Holdings, has a maturity not earlier and an average life to maturity not less
than the Holdings Notes (calculated at the time of incurrence of such
Indebtedness), (e) allows for the mandatory prepayments provided hereunder, (f)
is otherwise on terms and conditions that, taken as a whole, are not less
favorable to the Loan Parties and the interests of any Agent, Lender, Issuer or
Secured Party under the Loan Documents than (i) if such Indebtedness is pari
passu with the Senior Notes, those of the Senior Notes and the Senior Note
Indenture, (ii) if such Indebtedness is pari passu with the Holdings Notes,
those of the Holdings Notes and the Holdings Notes Indenture and (iii)
otherwise, those of the Subordinated Notes and the Subordinated Note Indenture
and (g) if such Indebtedness is incurred by Holdings, it shall not be guaranteed
by the Company or any other Subsidiary of Holdings.
"Administrative Agent" has the meaning specified in the preamble to
this Agreement.
2
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Affected Lender" has the meaning specified in Section 2.17
(Substitution of Lenders).
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling or that is controlled by or is under common
control with such Person, each officer, director, general partner or
joint-venturer of such Person, and each Person that is the beneficial owner of
20% or more (or, if such Person is an Agent, Issuer or Lender (or an Affiliate
or Approved Fund of any of them), 5% or more) of any class of Voting Stock of
such Person. For the purposes of this definition, "control" means the possession
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract or
otherwise.
"Affirmation of Obligations" means the Affirmation of Obligations,
dated as of the Effective Date, and executed by each Subsidiary Guarantor, the
Administrative Agent, the Australian Agent and the Australian Collateral
Trustee.
"Agent" means each of the Administrative Agent, the Syndication
Agent, the Australian Agent, the Australian Collateral Trustee and each
Documentation Agent.
"Agreement" means the Existing Credit Agreement, as amended and
restated by this Amended and Restated Credit Agreement.
"Aggregate Available Credit" means, at any time, the amount, if any,
by which (a) the Aggregate Maximum Credit at such time exceeds (b) the aggregate
Revolving Credit Outstandings of the Borrowers at such time.
"Aggregate Borrowing Base" means, at any time, the sum of the
Borrowing Bases of the Borrowers at such time.
"Aggregate Maximum Credit" means, at any time, the amount, if any,
by which (a) the lesser of (i) the Aggregate Revolving Credit Commitments at
such time and (ii) the Aggregate Borrowing Base at such time exceeds (b) the
Dollar Equivalent of the aggregate amount of any Availability Reserve in effect
at such time.
"Aggregate Revolving Credit Commitments" means, at any time, the sum
of all Revolving Credit Lender's Revolving Credit Commitments in effect at such
time.
"Aircraft Security Documents" means, in respect to any aircraft
owned by any Loan Party, (a) if such aircraft is registered with the FAA, (i) an
aircraft mortgage and security agreement, duly executed by such Loan Party in
favor of the Administrative Agent, as security agent and mortgagee, (ii) a
satisfactory title search of the FAA registry, (iii) a title memorandum from
counsel to the Administrative Agent certifying that such Loan Party has clean
title to such aircraft, (iv) a xxxx of sale and aircraft registration
application duly filled out and executed by such Loan Party in respect of such
aircraft and (v) applicable FAA application pink forms for such aircraft, and
(b) otherwise, similar documents in the jurisdiction of registration of such
aircraft as may be requested by the Administrative Agent in its reasonable
discretion.
"Alternative Currency" means any lawful currency other than Dollars
that is freely transferable into Dollars.
3
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Applicable Lending Office" means, with respect to each Lender or
Issuer (a) in respect of the Dollar Revolving Credit Facility or any Letter of
Credit requested to be issued from such offices of an Issuer, its Domestic
Lending Office in the case of a Base Rate Loan, and its Eurodollar Lending
Office in the case of a Eurodollar Rate Loan and (b) in respect of the
Australian Dollar Facility or any Letter of Credit requested to be issued from
such office of an Issuer, its Australian Lending Office.
"Applicable Margin" means (a) during the period commencing on the
Effective Date and ending six months thereafter, with respect to (i) Revolving
Loans or Swing Loans maintained as Base Rate Loans, a rate equal to 0.75% per
annum, (ii) Revolving Loans maintained as Australian Dollar Loans, a rate equal
to 1.375% per annum and (iii) Revolving Loans maintained as Eurodollar Rate
Loans, a rate equal to 1.75% per annum and (b) thereafter, as of any date of
determination, a per annum rate equal to the rate set forth below opposite the
then applicable Aggregate Available Credit set forth below:
AUSTRALIAN EURODOLLAR
AGGREGATE AVAILABLE CREDIT BASE RATE LOANS DOLLAR LOANS RATE LOANS
------------------------------------- --------------- ------------ ----------
Greater than or equal to $400,000,000 0.50% 1.125% 1.50%
Less than $400,000,000 and equal to
or greater than $200,000,000 0.75% 1.375% 1.75%
Less than $200,000,000 1.00% 1.625% 2.00%
"Applicable Unused Commitment Fee Rate" means 0.375% per annum.
"Appraisal" has the meaning specified in Section 6.12 (Borrowing
Bases Determination).
"Approved Deposit Account" means a Deposit Account that is the
subject of an effective Deposit Account Control Agreement and that is maintained
by any Loan Party with a Deposit Account Bank. "Approved Deposit Account"
includes all monies on deposit in a Deposit Account and all certificates and
instruments, if any, representing or evidencing such Deposit Account.
"Approved Fund" means any Fund that is advised or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or Affiliate of an entity
that administers or manages a Lender.
"Approved Securities Intermediary" means (a) with respect to any
Australian Marketable Securities located in Australia or held by any Person
located in Australia, each "participant" as defined in the SCH Business Rules
and (b) otherwise, each "securities intermediary" or "commodity intermediary" as
defined in the UCC, in each case selected or approved by the Administrative
Agent and with respect to which a Loan Party has delivered to the Administrative
Agent a duly executed Control Account Agreement for the applicable jurisdiction.
"Arrangers" means each of Citigroup Global Markets Inc. and X.X.
Xxxxxx Securities Inc., in each case in their capacity as joint lead arrangers
and joint book managers.
"Asset Sale" has the meaning specified in Section 8.4 (Sale of
Assets).
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit A (Form of Assignment
and Acceptance).
"Associate" means, with respect to any Person, an "associate" of
such Person under and as defined in Section 128F(9) of the Australian Tax Act.
"Australia" means the Commonwealth of Australia, together with
(other than in the expressions "Australian Commonwealth" or "Commonwealth of
Australia") any State, territory and any political subdivision of any of them.
"Australian Agent" means Citicorp, in its capacity as Australian
agent for the Lenders and Issuers, together with any of its Affiliates it may
appoint to serve in such capacity.
"Australian Asset Sale" has the meaning specified in Section 8.4(i)
(Sale of Assets).
"Australian Bank" means a bank authorized to carry out the business
of banking in Australia.
"Australian Xxxx Rate" means, for any Interest Period, a fluctuating
rate per annum as shall be in effect from time to time, which rate per annum
shall be equal at all times to the following:
(a) the bid rate (expressed as a percentage yield per annum to
maturity being the arithmetic average, rounded up to the nearest four
decimal places) published at or about 10:10 a.m. (Local Time) on the first
Business Day of such Interest Period on the Reference Screen under the
heading "BBSY" for Bills having a tenor approximating as closely as
possible the length of such Interest Period;
(b) if the rate described under clause (a) above is not published at
the relevant time or the Australian Agent cannot otherwise determine the
rate set forth under clause (a) above, the rate (expressed as a percentage
yield per annum to maturity) determined by Citibank Australia to be the
average of the buying rates quoted to Citibank Australia by the Australian
Reference Banks at or about such time on the date of determination for
Bills with a tenor approximating as closely as possible the length of such
Interest Period; or
(c) if the Australian Agent is unable to determine a rate under
clause (b) above, the rate (expressed as a percentage yield to maturity)
offered or intended to be offered by Citibank Australia, at or about 10:10
a.m. (Local Time) on the first Business Day of such Interest Period, for
the purchase of Bills (accepted by an Australian Bank) with a tenor most
closely approximating the length of such Interest Period.
"Australian Xxxx Rate Loan" means any Australian Dollar Loan during
any Interest Period during which it bears interest based on the Australian Xxxx
Rate.
"Australian Borrower" has the meaning specified in the preamble to
this Agreement.
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Australian Cash Management Documents" means each blocked account
agreement among a Deposit Account Bank, the Australian Collateral Trustee, the
Administrative Agent and each Australian Subsidiary.
"Australian Charge" means each charge (whether fixed or floating) by
Australian Holdings or any of its Subsidiaries in favor of the Australian
Collateral Trustee (together with any similar document as may be delivered by a
Person organized and existing under the laws of Australia pursuant to Section
7.11 (Additional Collateral and Guaranties)).
"Australian Collateral Documents" means, collectively, the
Australian Charges, the Australian Security Trust Deed, the Australian Mortgages
and all Australian Mortgage Supporting Documents relating thereto, the
Australian Share Mortgages and the Additional Australian Collateral Documents,
together with any similar document as may be delivered by a Person organized and
existing under the laws of Australia pursuant to Section 7.11 (Additional
Collateral and Guaranties) and any other certificate, agreement or document
executed by any Loan Party and granting a Lien to any Agent or Secured Party in
Australia.
"Australian Collateral Limit" means, with respect to any Borrower
and any Collateral of any Australian Collateral Type at any time, (a) if such
Collateral is not at such time subject to any Lien granted pursuant to any
Australian Collateral Document having a Stated Limit, there shall be no
"Australian Collateral Limit" for such Collateral, (b) if such Collateral is at
such time subject to any Lien granted pursuant to any Australian Collateral
Document having a Stated Limit, and such Australian Collateral Document does not
purport to grant, and does not grant, a Lien on any Australian Collateral Type
other than that of such Collateral, such Stated Limit and (c) otherwise, if such
Collateral is at such time subject to any Lien granted pursuant to any
Australian Collateral Document having a Stated Limit,
(i) if the Australian Collateral Type of such Collateral is
Accounts, such Stated Limit;
(ii) if the Australian Collateral Type of such Collateral is
Inventory, the amount, if any, by which (A) such Stated Limit exceeds (B)
the face amount of all Eligible Receivables of such Borrower at such time
subject to such Australian Collateral Document at such time (calculated
net of all finance charges, late fees and other fees that are unearned,
sales, excise or similar taxes, and credit or allowances granted at such
time); and
(iii) if the Australian Collateral Type of such Collateral is
Equipment, the amount, if any, by which (A) such Stated Limit exceeds (B)
the sum of (1) the value of all Eligible Inventory of such Borrower at
such time subject to such Australian Collateral Document (valued at the
lowest of (x) the cost of such Eligible Inventory (on a first-in,
first-out basis), (y) the market value of such Eligible Inventory (on a
first-in, first-out basis) and (z) the orderly liquidation value of such
Eligible Inventory (as determined by reference to the calculations in the
most recent Appraisal)) and (2) the face amount of all Eligible
Receivables of such Borrower at such time subject to such Australian
Collateral Document at such time (calculated net of all finance charges,
late fees and other fees that are unearned, sales, excise or similar
taxes, and credit or allowances granted at such time);
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
provided, however, that, if any Collateral would otherwise have more than one
"Australian Collateral Limit", the "Australian Collateral Limit" therefor shall
be the lowest such limit.
"Australian Collateral Type" means either Inventory, Equipment or
Accounts.
"Australian Collateral Trustee" has the meaning specified in the
preamble to this Agreement.
"Australian Company" has the meaning specified in the preamble to
this Agreement.
"Australian Corporations Act" means the Corporations Xxx 0000
(Commonwealth of Australia).
"Australian Debenture" means each debenture issued hereunder in
accordance with the provisions hereof (including without any original issue
discount and for 100% of its face amount), each of which shall have a face
amount of (a) in the case of debentures issued in connection with Obligations
denominated in Dollars, $0.01 (b) in the case of debentures issued in connection
with Obligations denominated in Australian Dollars, A$0.01 and (c) in the case
of debentures issued in connection with any other Obligation, the lowest
monetary denomination of the currency in which such Obligations are denominated.
"Australian Dollar" and the symbol "A$" each mean the lawful money
of Australia.
"Australian Dollar Borrowing" means Australian Dollar Loans made on
the same day by the Australian Dollar Lenders ratably according to their
respective Australian Dollar Sublimits then in effect.
"Australian Dollar Lender" means each Revolving Credit Lender or
Affiliate thereof identified on Schedule I (Revolving Credit Commitments) on the
date hereof as an "Australian Dollar Lender" with the Australian Dollar Sublimit
set forth therein and any other Revolving Credit Lender that (a) agrees, with
the approval of the Administrative Agent, the Australian Agent and the Company,
which approval shall not be unreasonably withheld (provided, however, that after
the occurrence and during the continuance of any Event of Default, such approval
by the Company shall not be required), to act, or cause one of its Affiliates to
act, as an Australian Dollar Lender with an Australian Dollar Sublimit agreed to
by the Administrative Agent, the Australian Agent and the Company (provided,
however, that no Revolving Credit Lender or Affiliate thereof shall become an
Australian Dollar Lender to the extent, after giving effect to such Revolving
Credit Lender or Affiliate thereof becoming an Australian Dollar Lender with the
proposed Australian Dollar Sublimit, the aggregate Australian Dollar Sublimits
would exceed the Maximum Australian Dollar Sublimit) and (b) whether directly or
through an Affiliate thereof, at the time of such agreement by such Australian
Dollar Lender, can, on its own, make Australian Dollar Loans to either
Australian Borrower the interest payments with respect to which can be made free
of Australian Withholding Taxes.
"Australian Dollar Loan" has the meaning specified in Section 2.1
(The Commitments).
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Australian Dollar Outstandings" means, at any time, the Dollar
Equivalent of the aggregate principal amount of all Australian Short-Term Loans
and Australian Xxxx Rate Loans outstanding at such time.
"Australian Dollar Ratable Portion" means, with respect to any
Australian Dollar Lender (a) at any time prior to the reduction of the
Australian Dollar Sublimits to zero, the percentage obtained by dividing (i) the
Australian Dollar Sublimit of such Lender in effect at such time by (ii) the
aggregate Australian Dollar Sublimits of all Australian Dollar Lenders in effect
at such time and (b) at any time thereafter, the percentage obtained by dividing
(i) the aggregate outstanding principal amount of all Australian Dollar Loans
outstanding at such time and owing to such Australian Dollar Lender by (ii) the
aggregate outstanding principal amount of all Australian Dollar Loans
outstanding at such time.
"Australian Dollar Revolving Credit Note" means each note of either
Australian Borrower payable in Australian Dollars in a principal amount equal to
the amount of such Australian Dollar Lender's Australian Dollar Sublimit in
relation to which Australian Debentures may be issued as a result of the
Australian Dollar Loans made to such Australian Borrower by such Australian
Dollar Lender.
"Australian Dollar Subfacility" means the provisions herein related
to the Australian Dollar Loans.
"Australian Dollar Sublimit" means, with respect to each Australian
Dollar Lender, the amount set forth opposite such Australian Dollar Lender's
name on Schedule I (Revolving Credit Commitments) under the caption "Australian
Dollar Sublimit," as amended to reflect each Assignment and Acceptance executed
by such Australian Dollar Lender and as such amount may be reduced pursuant to
this Agreement. The aggregate Australian Dollar Sublimits on the Effective Date
shall be the Maximum Australian Dollar Sublimit.
"Australian Event of Default" means the occurrence of any of the
following: (a) Australian Holdings or any of its Subsidiaries shall become
insolvent or declare that it is insolvent or pass a resolution referred to in
Section 254(N)(1) of the Australian Corporations Act or (b) a Person is
appointed under Australian Requirements of Law to manage any part of the affairs
of Australian Holdings or any Subsidiary thereof.
"Australian GAAP" means generally accepted accounting principles in
Australia, consistently applied.
"Australian Holdings" has the meaning specified in the preamble to
this Agreement.
"Australian Intercompany Collateral Documents" means the Australian
Collateral Documents, insofar as they secure the obligations owing to the
Company under the Australian Intercompany Credit Agreement or the Australian
Intercompany Guaranty.
"Australian Intercompany Credit Agreement" means the credit
agreement, between Australian Holdings, as intercompany borrower and the
Company, evidencing all advances made to Australian Holdings by the Company from
time to time, in form and substance reasonably satisfactory to the
Administrative Agent.
8
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Australian Intercompany Guaranty" means the guaranty issued by each
of the subsidiaries of Australian Holdings made pursuant to the Non-U.S.
Guaranty of the obligations of Australian Holdings to the Company under the
Australian Intercompany Credit Agreement, each in form and substance
satisfactory to the Administrative Agent, together with any supplements thereto.
"Australian Lending Office" means, with respect to any Lender or
Issuer, the Australian office of such Lender or Issuer (if any) specified as its
"Australian Lending Office" opposite its name on Schedule II (Applicable Lending
Offices and Addresses for Notices) or, in the case of a Lender, on the
Assignment and Acceptance by which it became a Lender or such other office of
such Lender or Issuer as such Lender or Issuer may from time to time specify to
the Company, the Australian Agent and the Administrative Agent.
"Australian Lien" means any notice under Section 218 or 255 of the
Australian Income Tax Assessment Xxx 0000 (Commonwealth of Australia) or any
similar provision of a law of a Governmental Authority, garnishee order, writ of
execution and assignment of income.
"Australian Loan Party" means each Australian Borrower and each
other Australian Subsidiary that is a Loan Party.
"Australian Marketable Securities" means any "marketable security"
as defined in the Australian Corporations Act.
"Australian Mortgage" means real property mortgages by each
Australian Subsidiary in favor of the Australian Collateral Trustee on all Real
Property of such Australian Company (unless otherwise agreed by the
Administrative Agent), each in form and substance reasonably satisfactory to the
Administrative Agent (together with any similar document as may be delivered by
Persons organized and existing under the laws of Australia pursuant to Section
7.11 (Additional Collateral and Guaranties)).
"Australian Mortgage Supporting Documents" means, in respect of each
Australian Mortgage, (a) a certificate of title in form and substance acceptable
to the Administrative Agent in respect of each parcel of Real Property (except,
to the extent the state of Queensland, Australia, does not issue certificates of
title, certificates of title for certain Real Properties located in Queensland,
Australia that have not been issued, a list of which has been provided to the
Administrative Agent prior to the Purchase Date) subject to such Australian
Mortgage and (b) an opinion of counsel in each jurisdiction relevant thereto in
form and substance and from counsel reasonably satisfactory to the
Administrative Agent.
"Australian Reference Banks" means three Australian Banks selected
by the Australian Agent.
"Australian Register" means that portion of the Register including
information regarding Australian Debentures.
"Australian Security Trust Deed" means the security trust deed,
among the Australian Collateral Trustee, the Company, Australian Holdings and
each of its Subsidiaries.
"Australian Share Mortgage" means each mortgage of all shares in
Australian Holdings or any of its Subsidiaries in favor of the Australian
Collateral Trustee by the Company
9
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
(together with any similar document as may be delivered with respect to shares
in a Person organized and existing under the laws of Australia pursuant to
Section 7.11 (Additional Collateral and Guaranties)).
"Australian Short-Term Loan" means any Australian Dollar Loan during
any period during which it bears interest based on the Australian Short-Term
Rate.
"Australian Short-Term Rate" means, with respect to any period:
(a) the Reserve Bank of Australia Official Cash Rate (expressed as a
percentage yield per annum rounded up to the nearest two decimal places)
published at our about 10:10 a.m. (Local Time) on the Reference Screen
under the heading "RBA"; and
(b) if the rate under clause (a) is not published at the relevant
time, the rate (expressed as a percentage yield per annum) determined to
be the average of the buying rate for Australian Dollar overnight cash
deposits quoted to Citibank Australia from the Australian Reference Banks
at or about that time.
"Australian Subsidiaries" means, collectively, Australian Holdings
and each of its Subsidiaries organized and existing under the laws of Australia.
"Australian Tax Act" means the Australian Income Tax Assessment Xxx
0000 (Commonwealth of Australia) and the Australian Income Tax Assessment Xxx
0000 (Commonwealth of Australia), as applicable.
"Australian Withholding Tax" means any Australian Taxes required to
be withheld or deducted from any interest payment made under any Loan Document
under Division 11A of Part III of the Australian Tax Act.
"Availability Reserve" means, at any time, the sum of such amounts
as the Administrative Agent may from time to time, upon two Business Days'
advance notice in writing to the Company, establish against the Facility, in the
Administrative Agent's sole discretion exercised commercially reasonably and in
accordance with customary business practices for comparable asset based
transactions, in order to preserve (a) the value of the Collateral, (b) the
ability of the Secured Parties to realize such value, (c) the Liens of the
Secured Parties therein or (d) the priority of the Obligations relative to any
other liability of Holdings, the Company or any of their respective
Subsidiaries.
"Available Borrowing Base" means, with respect to any Borrower at
any time, the amount, if any, by which (a) the Maximum Available Borrowing Base
of such Borrower at such time exceeds (b) the aggregate Revolving Credit
Outstandings owing by such Borrower and its Borrowing Base Contributors at such
time.
"Bailee's Letter" means a letter in form and substance acceptable to
the Administrative Agent and executed by any Person (other than the Borrowers
and their respective Borrowing Base Contributors) that is in possession of
Inventory on behalf of any Borrower or any Borrowing Base Contributor thereof
pursuant to which such Person acknowledges, among other things, if applicable in
the relevant jurisdiction, the Administrative Agent's or the Australian
Collateral Trustee's Lien with respect thereto.
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Bankruptcy Code" means title 00, Xxxxxx Xxxxxx Code.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall be
equal at all times to the highest of the following:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 0.25% or, if there is no
nearest 0.25%, to the next higher 0.25%) of (i) 0.5% per annum, (ii) the
rate per annum obtained by dividing (A) the latest three-week moving
average of secondary market morning offering rates in the United States
for three-month certificates of deposit of major United States money
market banks, such three-week moving average being determined weekly on
each Monday (or, if any such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the previous
Friday by Citibank on the basis of such rates reported by certificate of
deposit dealers to and published by the Federal Reserve Bank of New York
or, if such publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected by
Citibank, by (B) a percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by the Federal Reserve
Board for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for
Citibank in respect of liabilities consisting of or including (among other
liabilities) three-month U.S. dollar nonpersonal time deposits in the
United States and (iii) the average during such three-week period of the
maximum annual assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring Dollar deposits in
the United States; and
(c) 0.5% per annum plus the Federal Funds Rate.
"Base Rate Loan" means any Swing Loan or any other Loan during any
period in which it bears interest based on the Base Rate.
"Xxxx" means a "xxxx of exchange" (other than a "cheque" (check))
under and as defined in the Australian Bills of Exchange Xxx 0000 (Commonwealth
of Australia). Each reference herein to "drawing", "accepting", "indorsing", or
any other dealing with, a "Xxxx" shall have the meaning ascribed thereto by such
Bills of Exchange Act.
"Borrower" means each of the Company and each Australian Borrower.
"Borrowing" means a Revolving Credit Dollar Borrowing or an
Australian Dollar Borrowing.
"Borrowing Base" means, with respect to any Borrower at any time,
(a) the sum of (i) the Dollar Equivalent of cash collateral provided for
Government Bank Guarantees of such Borrower in the amounts required and
otherwise in accordance with Section 9.3 (Actions in Respect of Letters of
Credit), (ii) the Receivables Borrowing Base of such Borrower at such time,
(iii) the Inventory Borrowing Base of such Borrower at such time, (iv) the Fixed
Asset Borrowing
11
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
Base of such Borrower at such time and (v) without duplication of the amounts
included pursuant to clause (i) above, the Cash Borrowing Base of such Borrower
at such time minus (b) the Dollar Equivalent of the aggregate amount of any
Eligibility Reserve applicable to such Borrower and its Borrowing Base
Contributors then in effect.
"Borrowing Base Certificate" means a certificate of the Borrowers
substantially in the form of Exhibit J (Form of Borrowing Base Certificate),
together with supporting documents showing in reasonable details the
calculations used to derive the amounts set forth in such certificate.
"Borrowing Base Contributor" means (a) in the case of the Company,
(i) Swift Beef Company, a Delaware corporation, Swift Pork Company, a Delaware
corporation, Swift Brands Company, a Delaware corporation, Xxxxxx Brothers
Company, Inc., a Utah corporation, Xxxxxxx Food Distribution Company, a Colorado
corporation, Swift & Company International Sales Corporation, a Colorado
corporation, Xxxxxxx, Inc., a Delaware corporation, and S&C Resale Company, a
Delaware corporation, as long as such companies are Wholly-Owned Subsidiaries of
the Company and Domestic Subsidiary Guarantors and (ii) any other Wholly-Owned
Subsidiary of the Company that is a Domestic Subsidiary Guarantor and whose
designation as a "Borrowing Base Contributor" of the Company has been approved
by the Administrative Agent in its sole discretion exercised commercially
reasonably and (b) in the case of either Australian Borrower, (i) the Company
and its Borrowing Base Contributors, (ii) the other Australian Borrower and
(iii) any other Wholly-Owned Subsidiary of Australian Holdings that is a
Guarantor and whose designation as a "Borrowing Base Contributor" of such
Australian Borrower has been approved by the Administrative Agent in its sole
discretion exercised commercially reasonably.
"Burcher" means Burcher Pty. Limited, an Australian incorporated
company.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and (a) if the applicable
Business Day relates to notices, determinations, fundings and payments in
connection with the Eurodollar Rate or any Eurodollar Rate Loans, a day on which
dealings in Dollar deposits are also carried on in the London interbank market
and (b) if the applicable Business Day relates to notices, determinations,
fundings and payments in Australian Dollars or by or to any Australian Borrower,
a day on which banks are also not required or authorized to close in Sydney,
Australia.
"Canadian Mortgage" means real property mortgages (or equivalents)
by Subsidiaries of Holdings in favor of the Administrative Agent on all Real
Property of such Subsidiary (unless otherwise agreed by the Administrative
Agent), each in form and substance reasonably satisfactory to the Administrative
Agent.
"Canadian Mortgage Supporting Documents" means, in respect of each
Canadian Mortgage, all certificates of titles, opinions and all other
certificates, documents and agreements in each jurisdiction relevant thereto in
form and substance and from counsel reasonably satisfactory to the
Administrative Agent that the Administrative Agent may reasonably request as
necessary or appropriate in order to obtain a first-priority, perfected Lien on
the parcel of Real Property subject to such Canadian Mortgage.
"Capital Expenditures" means, for any Person for any period, the
aggregate of amounts that would be reflected as additions to property, plant or
equipment on a Consolidated
12
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
balance sheet of such Person and its Subsidiaries and which should be
capitalized under GAAP (or, for any of such Person and its Subsidiaries that is
an Australian Subsidiary, if applicable, Australian GAAP), excluding interest
capitalized during construction.
"Capital Lease" means, with respect to any Person, any lease of, or
other arrangement conveying the right to use, property by such Person as lessee
that would be accounted for as a capital lease on a balance sheet of such Person
prepared in conformity with GAAP (or, if such Person is an Australian
Subsidiary, if applicable, Australian GAAP).
"Capital Lease Obligations" means, with respect to any Person, the
capitalized amount of all Consolidated obligations of such Person or any of its
Subsidiaries under Capital Leases.
"Cash Borrowing Base" means, with respect to any Borrower at any
time, up to 100% of the Dollar Equivalent of all cash or Cash Equivalents of
such Borrower at such time deposited in Approved Deposit Accounts or, as the
case may be, Control Accounts.
"Cash Collateral Account" means any Deposit Account or Securities
Account established by the Administrative Agent or the Australian Agent in which
cash and Cash Equivalents may from time to time be on deposit or held therein in
accordance with the provisions of this Agreement, the Pledge and Security
Agreement and the Australian Collateral Documents.
"Cash Equivalents" means (a) securities issued or fully guaranteed
or insured by the United States federal government or any agency thereof or the
government of the Commonwealth of Australia or any government of any state or
territory of Australia, (b) certificates of deposit, eurodollar time deposits,
overnight bank deposits and bankers' acceptances of any commercial bank
organized under the laws of the United States, any state thereof, the District
of Columbia, any foreign bank, or its branches or agencies (fully protected
against currency fluctuations) that, at the time of acquisition, are rated at
least "A-1" by S&P or "P-1" by Moody's, (c) commercial paper of an issuer rated
at least "A-1" by S&P or "P-1" by Moody's and (d) shares of any money market
fund that (i) has at least 95% of its assets invested continuously in the types
of investments referred to in clauses (a), (b) and (c) above, (ii) has net
assets the Dollar Equivalent of which is not less than $500,000,000 and (iii) is
rated at least "A-1" by S&P or "P-1" by Moody's; provided, however, that the
maturities of all obligations of the type specified in clauses (a), (b) and (c)
above shall not exceed 360 days.
"Cash Interest Expense" means, with respect to any Person for any
period, the Interest Expense of such Person for such period less the Non-Cash
Interest Expense of such Person for such period.
"Cash Management Document" means any certificate, agreement or other
document executed by any Loan Party in respect of the Cash Management
Obligations of any Loan Party.
"Cash Management Obligation" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person in respect
of cash management services (including treasury, depository, overdraft, credit
or debit card, electronic funds transfer and other cash management arrangements)
provided by any Agent or Lender or any Affiliate of any of them in connection
with this Agreement or any Loan Document (other than Cash Management
13
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
Documents), including obligations for the payment of fees, interest, charges,
expenses, attorneys' fees and disbursements in connection therewith.
"Change of Control" means the occurrence of any event, transaction
or occurrence as a result of which (a) the Permitted Investors shall cease to
have the power, directly or indirectly, to vote or direct the voting of
securities having a majority of the ordinary voting power for the election of
directors of Holdings; provided, however, that the occurrence of any such event
shall not be deemed an Event of Default as long as (i) prior to the consummation
of an initial public offering which generates Net Cash Proceeds to SFC or its
Subsidiaries the Dollar Equivalent of which is at least $75,000,000, (A) the
Permitted Investors have the right, directly or indirectly, to designate, and so
designate, a majority of the board of directors of Holdings or (B) the Permitted
Investors own of record and beneficially, directly or indirectly, more than 50%
of the percentage ownership of the common stock of Holdings (on a fully-diluted
basis and adjusted on an equitable basis for stock splits, stock dividends and
similar events) that is owned, directly or indirectly, by the Permitted
Investors of record and beneficially as of the Purchase Date and such ownership
by the Permitted Investors represents the largest single block of voting
securities of Holdings directly or indirectly held by any "person" or "group"
for purposes of Section 13(d) of the United States Securities Exchange Act of
1934 and (ii) thereafter, (A) no "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the United States Securities Exchange Act of 1934)
other than the Permitted Investors shall become the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under the United States Securities Exchange
Act of 1934), directly or indirectly, of more than the greater of (x) 20% of the
then outstanding Voting Stock of Holdings and (y) the percentage of the then
outstanding Voting Stock of Holdings owned, directly or indirectly, by the
Permitted Investors and (B) the board of directors of Holdings shall consist of
a majority of Continuing Directors of Holdings or (b) Holdings shall cease to
own and control all of the economic and voting rights associated with all of the
outstanding Stock of the Company.
"Change of Law" has the meaning specified in Section 2.14(c)
(Increased Costs).
"Citibank" means Citibank, N.A., a national banking association.
"Citibank Australia" means Citibank, N.A. (Sydney Branch).
"Citicorp" has the meaning specified in the preamble to this
Agreement.
"Citisecurities" has the meaning specified in the preamble to this
Agreement.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by any Loan Party in or upon
which a Lien is granted under any Collateral Document.
"Collateral Documents" means the Pledge and Security Agreement, the
Australian Collateral Documents (including the Australian Intercompany
Collateral Documents), any Aircraft Security Document, the U.S. Mortgages, the
Mexican Stock Pledge, each Japanese Stock Pledge, the Deposit Account Control
Agreements, the Control Account Agreements, the Affirmation of Obligations and
any other document executed and delivered by a Loan Party granting a Lien on any
of its property to secure payment of the Secured Obligations.
14
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Commodity Account" means a "commodity account" under and as defined
in the UCC.
"Company" has the meaning specified in the preamble to this
Agreement.
"Company's Accountants" means any independent nationally-recognized
public accountants acceptable to the Administrative Agent.
"Compensation Plan" means any program, plan or similar arrangement
(other than employment contracts for a single individual) relating generally to
compensation, pension, employment or similar arrangements to which the Company,
any of its Subsidiaries or any Affiliate or ERISA Affiliate of any of them has
any obligation or liability, contingent or otherwise, under any Requirement of
Law other than those of the United States.
"Compliance Certificate" has the meaning specified in Section 6.1(c)
(Financial Statements).
"ConAgra" means ConAgra Foods, Inc., a Delaware corporation.
"ConAgra Note" means a promissory note issued on the Purchase Date
by S&C 1 in Dollars to ConAgra and assumed by S&C 2, in an aggregate principal
amount not to exceed $150,000,000, together with any additional principal amount
added after such Purchase Date in lieu of payment of interest on such note as
permitted in, and in accordance with the terms of, such promissory note.
"Consolidated" means, with respect to any Person, the consolidation
of accounts of such Person and its Subsidiaries in accordance with GAAP.
"Consolidated Net Income" means, for any Person for any period, the
Consolidated net income (or loss) of such Person and its Subsidiaries for such
period plus, without duplication, nonrecurring extraordinary or unusual items
and plus the net income (or loss) of any other Person in which such Person or
one of its Subsidiaries has a joint interest with a third party, but only to the
extent of such interest; provided, however, that (a) nonrecurring extraordinary
or unusual gains and losses and any one-time increase or decrease to net income
that is required to be recorded because of the adoption of new accounting
policies, practices or standards required by GAAP shall be excluded, (b) any
costs relating to the issuance, maintenance and repayment of the Senior Notes
and the Subordinated Notes (or other transactions contemplated under the Related
Documents and this Agreement) that are required to be expensed under GAAP shall,
in each case, be excluded and (c) "Consolidated Net Income" of the Company
shall, to the extent such payments have not already been included therein as an
expense, be reduced by the amount of any payments made during such period by any
Loan Party pursuant to the Management Agreement or the Financial Advisory
Agreement.
"Constituent Documents" means, with respect to any Person, (a) the
articles of incorporation, certificate of incorporation, constitution or
certificate of formation (or the equivalent organizational documents) of such
Person, (b) the by-laws, operating agreement (or the equivalent governing
documents) of such Person and (c) any document setting forth the manner of
election and duties of the directors or managing members of such Person (if any)
and the designation, amount or relative rights, limitations and preferences of
any class or series of such Person's Stock.
15
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Contaminant" means any material, substance or waste that is
classified, regulated or otherwise characterized under any Environmental Law as
hazardous, toxic, a contaminant or a pollutant or by other words of similar
meaning or regulatory effect, including any petroleum or petroleum-derived
substance or waste, asbestos and polychlorinated biphenyls.
"Continuing Directors" means, with respect to any Person, (a) at any
time during the first two years after the Effective Date, individuals who are
directors of such Person on the Effective Date or whose election by the board of
directors of such Person or whose nomination for election by the stockholders of
such Person was approved by a vote of at least a majority of individuals who
were Continuing Directors as of the time of such election and (b) at any time
thereafter, individuals who, two years prior to such time, were directors of
such Person or whose election by the Board of Directors of such Person or whose
nomination for election by the stockholders of such Person was approved by a
vote of at least a majority of individuals who were Continuing Directors as of
the time of such election.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision of any Security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument (excluding a Loan Document) to which such
Person is a party or by which it or any of its property is bound or to which any
of its property is subject.
"Control Account" means each Securities Account or Commodity Account
that is the subject of an effective Control Account Agreement for the
jurisdiction of such Securities Account or Commodity Account and that is
maintained by any Loan Party with an Approved Securities Intermediary. "Control
Account" includes, without limitation, all "financial assets" (under and as
defined in the UCC) held in a Securities Account or a Commodity Account and all
certificates and instruments, if any, representing or evidencing the "financial
assets" contained therein.
"Control Account Agreement" means (a) in respect of a Control
Account located in Australia, a mortgage of marketable securities and (b) in
respect of all other Control Accounts, a letter agreement, in each case in form
and substance satisfactory to the Administrative Agent executed by the relevant
Loan Party, the Administrative Agent and the relevant Approved Securities
Intermediary.
"Convertible Notes" means the 10.25% Convertible Senior Subordinated
Notes due 2010, issued by SFC under the Indenture, dated March 11, 2005, among
SFC, The Bank of New York Trust Company, N.A., as trustee, and Holdings, as
guarantor.
"Corporate Chart" means a corporate organizational chart or other
similar document in each case in form reasonably acceptable to the
Administrative Agent.
"Cost Indemnification Letter" means the letter, dated as of
September 3, 2002, among ConAgra, Rawhide and the Company regarding
indemnification of certain costs of the businesses acquired on the Purchase
Date.
"Currency of Payment" has the meaning specified in Section 11.13
(Currency of Payment).
16
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Currency Thresholds" means (a) in the case of Obligations
denominated in Dollars, $2,000,000 and each integral multiple of $1,000,000 in
excess thereof and (b) in the case of Obligations denominated in Australian
Dollars, each integral multiple of A$500,000.
"Customary Permitted Liens" means, with respect to any Person, any
of the following Liens:
(a) Liens with respect to the payment of taxes, assessments or
governmental charges in each case that are not yet due or that are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves or other appropriate provisions are being
maintained to the extent required by GAAP;
(b) Liens of landlords arising by statute and liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other liens,
pledges and deposits imposed by law created in the ordinary course of
business for amounts not yet overdue by 60 days or more or that are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves or other appropriate provisions are being
maintained to the extent required by GAAP;
(c) deposits made in the ordinary course of business in connection
with workers' compensation, unemployment insurance or other types of
social security benefits or to secure the performance of bids, tenders,
sales, contracts (other than for the repayment of borrowed money) and
surety, appeal, customs or performance bonds;
(d) encumbrances arising by reason of zoning restrictions, deed
restrictions or reservations, easements, licenses, reservations,
covenants, rights-of-way, utility easements, building restrictions and
other similar encumbrances or Permits on the use of real property not
materially detracting from the value of such real property or not
materially interfering with the ordinary conduct of the business conducted
and proposed to be conducted at such real property;
(e) encumbrances arising under leases or subleases of real property
that are contractually subordinate to the Liens created by the Loan
Documents in form and substance satisfactory to the Administrative Agent
or do not, in the aggregate, materially detract from the value of such
real property or interfere with the ordinary conduct of the business
conducted and proposed to be conducted at such real property;
(f) financing statements with respect to a lessor's rights in and to
personal property leased to such Person through a true lease in the
ordinary course of such Person's business;
(g) the title and interest of a lessor or sublessor in property
subject to a sale and leaseback transaction otherwise permitted hereunder
attaching to the property subject to such sale and leaseback transaction;
and
(h) any attachment or judgment Lien with respect to one or more
judgments or orders (or other similar process) involving, in the case of
money judgments, an aggregate amount (excluding any part thereof covered
by insurance) whose Dollar Equivalent (individually or in the aggregate)
does not exceed $5,000,000, unless (i) enforcement proceedings shall have
been commenced by any creditor upon any such
17
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
order or judgment or (ii) there shall be any period of 30 consecutive days
during which a stay of enforcement of any such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect.
"Default" means any event that, with the passing of time or the
giving of notice or both, would become an Event of Default.
"Deposit Account" means (a) each "Deposit Account" as defined in the
Pledge and Security Agreement and (b) each bank account and each other "account"
under and as defined in the Australian Financial Transaction Reports Act of 1988
(Commonwealth of Australia).
"Deposit Account Bank" means a financial institution selected or
approved by the Administrative Agent and with respect to which a Loan Party has
duly executed and delivered to the Administrative Agent a legal, valid, binding
and enforceable Deposit Account Control Agreement.
"Deposit Account Control Agreement" means (a) a "Deposit Account
Control Agreement" under and as defined in the Pledge and Security Agreement and
(b) the equivalent Australian Cash Management Document.
"Disbursement Agent" means (a) in the case of Australian Dollar
Borrowings, repayment by any Loan Party of Australian Dollar Loans, the Issuance
of Letters of Credit from the Australian Lending Office of any Issuer, repayment
of Obligations owing to the Australian Agent or any Australian Dollar Lender or
owing by any Loan Party (but not any Lender or Issuer) to the Australian Lending
Office of any Issuer (and maintaining accounts, computation of interest
(including the rates thereof) and fees, determinations under Section 3.3
(Determinations of Initial Borrowing Conditions) and claims under Section 2.14
(Special Provisions Governing External Rate Loans) or Section 2.16 (Taxes) in
respect of such Borrowings, Loans, Obligations and Letters of Credit), and
Notices of Conversion or Continuation of Australian Xxxx Rate Loans, the
Australian Agent and (b) otherwise, the Administrative Agent.
"Disclosure Documents" means, collectively, (a) the confidential
information memoranda and related materials prepared in connection with
syndication of the Facility and (b) on or after the issuance of any Permitted
Unsecured Indebtedness (other than the Senior Notes and the Subordinated Notes),
any offering memorandum (if any) in respect thereof.
"Disqualified Stock" means any Stock or Stock Equivalent that, by
its terms or by the terms of any Security into which it is convertible or for
which it is exchangeable, or upon the happening of any event, (a) matures (other
than as a result of an optional redemption by the issuer of such Stock), (b) is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise or
(c) is redeemable at the sole option of its holder, in whole or in part, prior
to the Scheduled Termination Date, the final maturity date of the Senior Notes
or the Subordinated Notes; provided, however, that only the portion of such
Stock that so matures or is so redeemable will be deemed to be Disqualified
Stock.
"Documentary Letter of Credit" means any Letter of Credit under
which payments may be made by the Issuer to the beneficiary upon presentation of
documents evidencing the sale or shipment of goods purchased by the Company or
any of its Subsidiaries in the ordinary course of its business.
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Documentation Agent" has the meaning specified in the preamble to
this Agreement.
"Dollar" and the sign "$" (but not the sign "A$") each mean the
lawful money of the United States.
"Dollar Equivalent" of any amount means, at the time of
determination thereof, (a) if such amount is expressed in Dollars, such amount,
(b) if such amount is expressed in an Alternative Currency, the equivalent of
such amount in Dollars determined using the rate of exchange quoted by Citibank
in New York, New York at 11:00 a.m. (Local Time) on the date of determination
(or, if such date is not a Business Day, the last Business Day prior thereto) to
prime banks in New York for the spot purchase in the New York foreign exchange
market of such amount of Dollars with such Alternative Currency and (c) if such
amount is denominated in any other currency, the equivalent of such amount in
Dollars as determined by the Administrative Agent using any method of
determination it deems appropriate.
"Dollar Revolving Credit Note" means (a) each promissory note of the
Company payable in Dollars to the order of any Revolving Credit Lender in a
principal amount equal to the amount of such Revolving Credit Lender's Revolving
Credit Commitment and evidencing the aggregate Indebtedness of the Company to
such Revolving Credit Lender resulting from the Revolving Dollar Loans owing to
such Revolving Credit Lender and (b) each note of either Australian Borrower
payable in Dollars in a principal amount equal to the amount of such Revolving
Credit Lender's Revolving Credit Commitment in relation to which Australian
Debentures may be issued as a result of the Revolving Dollar Loans made to such
Australian Borrower by such Revolving Credit Lender.
"Dollar Revolving Credit Facility" means the Revolving Credit
Commitments and the provisions herein related to the Revolving Dollar Loans,
Letters of Credit and Swing Loans.
"Domestic Guaranty" means the Guaranty, dated as of September 19,
2002, by and among the Company, each Subsidiary of the Company that is a
Domestic Subsidiary and the Administrative Agent.
"Domestic Lending Office" means, with respect to any Lender or
Issuer, the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule II (Applicable Lending Offices and Addresses for
Notices) or, in the case of a Lender, on the Assignment and Acceptance by which
it became a Lender or such other office of such Lender or Issuer as such Lender
or Issuer may from time to time specify to the Company and the Administrative
Agent.
"Domestic Person" means any "United States person" under and as
defined in Section 7701(a)(30) of the Code.
"Domestic Subsidiary" means any Subsidiary of the Company organized
under the laws of any state of the United States or the District of Columbia.
"Domestic Subsidiary Guarantor" means any Subsidiary Guarantor that
is a Domestic Person party to the Domestic Guaranty.
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"EBITDA" means, with respect to any Person for any period, (a)
Consolidated Net Income of such Person for such period plus (b) the sum of, in
each case without duplication and to the extent included in the calculation of
such Consolidated Net Income, (i) any provision for income taxes, (ii) Interest
Expense, (iii) loss from nonrecurring extraordinary or unusual items, (iv)
depreciation, depletion and amortization expenses, (v) any aggregate net loss
from the sale, exchange or other disposition of capital assets by such Person,
(vi) any net decrease in Consolidated Net Income resulting solely from the
marking-to-market of open positions on contracts relating to lines of business
of the Loan Parties permitted hereunder, to the extent such net decrease is
required by the application of Statement of Financial Accounting Standards No.
133 (Accounting for Derivative Instruments and Hedging Activities) of the
Financial Accounting Standards Board (and any replacement or successor
statement)and (vii) all other non-cash charges and non-cash losses or
nonrecurring extraordinary or unusual items reducing Consolidated Net Income for
such period, including the amount of any compensation deduction as the result of
any grant prior to, on or after the Effective Date of Stock or Stock Equivalents
to employees, officers, directors or consultants and related expenses minus (c)
the sum of, in each case to the extent included in the calculation of such
Consolidated Net Income but without duplication, (i) any credit for income tax,
(ii) interest income, (iii) gains from nonrecurring extraordinary or unusual
items for such period, (iv) any aggregate net gain from the sale, exchange or
other disposition of capital assets by such Person, (v) any net increase in
Consolidated Net Income resulting solely from the marking-to-market of open
positions on contracts relating to lines of business of the Loan Parties
permitted hereunder to the extent such net increase is required by the
application of Statement of Financial Accounting Standards No. 133 (Accounting
for Derivative Instruments and Hedging Activities) of the Financial Accounting
Standards Board (and any replacement or successor statement) and (vi) any other
non-cash gains or other items which have been added in determining Consolidated
Net Income, including any reversal of a change referred to in clause (b)(vii)
above by reason of a decrease in the value of any Stock or Stock Equivalent.
"Effective Date" has the meaning set forth in Section 3.1
(Conditions Precedent to the Effectiveness of this Agreement).
"Eligibility Reserves" means, with respect to any Borrower, the sum,
without duplication, of (a) a reserve to account for potential claims of
livestock suppliers under the Packers and Stockyards Act of 1921 (taking into
account arrangements acceptable to the Administrative Agent to transfer the risk
of repayment of any surety bond issued for the benefit of such suppliers), (b) a
dilution reserve equal to a percentage of such Eligible Receivables, which shall
initially be 1%, and (c) effective as of two Business Days after the date of
written notice of any determination thereof to the Company by the Administrative
Agent, such amounts as the Administrative Agent, in its sole discretion
exercised reasonably and in accordance with customary business practices for
comparable asset-based transactions, may from time to time establish against the
gross amounts of Eligible Receivables, Eligible Parts and Supplies, other
Eligible Inventory, Eligible Equipment and Eligible Real Property of such
Borrower to reflect risks or contingencies that may affect any one or more class
of such items and that have not already been taken into account in the
calculation of the Borrowing Base of such Borrower (including risks or
contingencies that may affect the value of such items, the ability of the
Secured Parties to realize such value or the security interest of the Secured
Parties therein.
"Eligible Assignee" means (a) any Lender and any Affiliate or
Approved Fund of any Lender, (b) a commercial bank having total assets the
Dollar Equivalent of which is in excess of $5,000,000,000, (c) a finance
company, insurance company or any other financial institution or
20
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
Fund, in each case reasonably acceptable to the Administrative Agent and
regularly engaged in making, purchasing or investing in loans and having a net
worth, determined in accordance with GAAP, the Dollar Equivalent of which is in
excess of $250,000,000 (or, to the extent net worth is less than such amount, a
finance company, insurance company, other financial institution or Fund,
reasonably acceptable to the Administrative Agent and the Company) or (d) a
savings and loan association or savings bank organized under the laws of the
United States or any State thereof having a net worth, determined in accordance
with GAAP, the Dollar Equivalent of which is in excess of $250,000,000;
provided, however, that "Eligible Assignee" shall not include any Loan Party,
any Affiliate thereof or any Associate of any of them.
"Eligible Equipment" means, with respect to any Borrower, all
Equipment of such Borrower and each of its Borrowing Base Contributors located
in the United States (if such Borrower is the Company), Australia (if such
Borrower is an Australian Borrower) or Canada (in any case) (a) that is owned
solely by such Borrower or one of its Borrowing Base Contributors, (b) with
respect to which the Administrative Agent or the Australian Collateral Trustee
has a valid, perfected and enforceable first-priority Lien, (c) with respect to
which no representation or warranty contained in any Loan Document has been
breached, (d) that is not, in the Administrative Agent's sole discretion
exercised commercially reasonably, obsolete or unmerchantable and (e) that the
Administrative Agent deems to be Eligible Equipment, based on such credit and
collateral considerations as the Administrative Agent may, in its sole
discretion exercised commercially reasonably, deem appropriate.
"Eligible Inventory" means, with respect to any Borrower, all
Inventory of such Borrower and each of its Borrowing Base Contributors located
in the United States (if such Borrower is the Company), Australia (if such
Borrower is an Australian Borrower) or Canada (in any case) or is in a shipment
from one such country to the other (for any Borrower) (in each case, other than
any Inventory that has been consigned by such Borrower or one of its Borrowing
Base Contributors) including raw materials, work-in-process, finished goods,
parts and supplies (a) that is owned solely by such Borrower or one of its
Borrowing Base Contributors, (b) with respect to which the Administrative Agent
or the Australian Collateral Trustee, has a valid, perfected and enforceable
first-priority Lien, (c) with respect to which no representation or warranty
contained in any Loan Document has been breached, (d) which is not, in the
Administrative Agent's sole discretion exercised commercially reasonably,
obsolete or unmerchantable, (e) with respect to which (in respect of any
Inventory labeled with a brand name or trademark and sold by such Borrower or
one of its Borrowing Base Contributors pursuant to a trademark owned by such
Borrower or one of its Borrowing Base Contributors or a license granted to such
Borrower or one of its Borrowing Base Contributors) the Administrative Agent
would have rights under such trademark or license pursuant to the Collateral
Documents to sell such Inventory in connection with a liquidation thereof and
(f) that the Administrative Agent deems to be Eligible Inventory based on such
credit and collateral considerations as the Administrative Agent may, in its
sole discretion exercised commercially reasonably, deem appropriate. No
Inventory of such Borrower or any of its Borrowing Base Contributors shall be
Eligible Inventory if such Inventory consists of (i) goods returned or rejected
by customers other than goods that are undamaged or are resaleable in the normal
course of business, (ii) goods to be returned to suppliers, (iii) by-products,
(iv) aged products, (v) ingredients, (vi) fuel, (vii) chemicals, (viii)
inventory at closed facilities or (ix) goods located, stored, used or held at
the premises of a third party unless, in the case of this clause (ix), (A)(1)
the Administrative Agent or the Australian Collateral Trustee shall have
received a Landlord Waiver or Bailee's Letter or (2) in the case of Inventory
located at a leased premises, an Eligibility Reserve satisfactory to the
Administrative Agent shall have been
21
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
established with respect thereto and (B) if applicable, an appropriate UCC-1
financing statement (or other required perfection document) shall have been
executed and properly filed in respect thereto.
"Eligible Parts and Supplies" means Eligible Inventory of the
Company consisting of packaging, spare parts or supplies located in the United
States and classified as such on the Company's (or any of its Borrowing Base
Contributor's) accounting system; provided, however, that "Eligible Parts and
Supplies" shall not include any perishable good or "food products" under and as
defined in the UCC.
"Eligible Real Property" means, with respect to any Borrower at any
time, any parcel of Real Property owned by such Borrower or any of its Borrowing
Base Contributors, located in the United States (if such Borrower is the
Company), Australia (if such Borrower is an Australian Borrower) or Canada (in
any case) and as to which each of the following conditions is satisfied at such
time:
(a) (i) a valid and enforceable first-priority Lien on such parcel
of Real Property (subject to Customary Permitted Liens and other Liens
approved by the Administrative Agent) shall have been granted by such
Borrower or one of its Borrowing Base Contributors in favor of the
Administrative Agent pursuant to a Mortgage in form and substance
satisfactory to the Administrative Agent and (ii) such Lien shall be in
full force and effect in favor of the Administrative Agent;
(b) if such parcel of Real Property is located in the United States,
the Administrative Agent (and, where applicable, the relevant title
insurance company) shall have received in form reasonably satisfactory to
it all U.S. Mortgage Supporting Documents in respect of such parcel of
Real Property;
(c) if such parcel of Real Property is located in Australia, the
Administrative Agent and the Australian Collateral Trustee shall have
received in form reasonably satisfactory to each of them all Australian
Mortgage Supporting Documents in respect of such parcel of Real Property;
(d) if such parcel of Real Property is located in Canada, the
Administrative Agent (and, where applicable, the relevant title insurance
company) shall have received in form reasonably satisfactory to it all
Canadian Mortgage Supporting Documents in respect of such parcel of Real
Property;
(e) the Administrative Agent shall have received an Appraisal with
respect to such parcel of Real Property;
(f) no casualty shall have occurred materially affecting the use,
operation or value of such parcel of Real Property if such casualty has
not been restored or repaired by the mortgagor under the Mortgage
encumbering such parcel of Real Property;
(g) no material condemnation or taking by eminent domain shall have
occurred nor shall any notice of any pending or threatened condemnation or
other proceeding against such parcel of Real Property been delivered to
the owner or lessee of such parcel of Real Property that would materially
affect the use, operation or value of such; and
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
(h) the mortgagor under the relevant Mortgage encumbering such
parcel of Real Property shall comply in all material respects with the
terms of such Mortgage.
"Eligible Receivable" means, with respect to any Borrower, the gross
outstanding balance of each Account of such Borrower and each of its Borrowing
Base Contributors arising out of the sale of merchandise, goods or services in
the ordinary course of business, that is made by such Borrower or one of its
Borrowing Base Contributors that constitutes Collateral in which the
Administrative Agent or the Australian Collateral Trustee has a valid, perfected
and enforceable first-priority Lien; provided, however, that an Account shall
not be an "Eligible Receivable" if any of the following shall be true:
(a) (i) such Account is more than 30 days past due according to the
original terms of sale or (ii) 90 days past the original invoice date
thereof; or
(b) any warranty contained in this Agreement or any other Loan
Document with respect to such specific Account is not true and correct
with respect to such Account; or
(c) the Account Debtor on such Account has disputed liability or
made any claim with respect to any other Account due from such Account
Debtor to such Borrower, such Borrowing Base Contributor or any Subsidiary
of any of them but only to the extent of such dispute or claim; or
(d) the Account Debtor on such Account has (i) filed a petition for
bankruptcy, liquidation, winding-up or any other relief under the
Bankruptcy Code or the Australian Corporations Act or any other law
relating to bankruptcy, insolvency, reorganization or relief of debtors,
(ii) made an assignment for the benefit of creditors, (iii) had filed
against it any petition or other application for relief under the
Bankruptcy Code or the Australian Corporations Act or any such other law,
(iv) has failed, suspended business operations, become insolvent, called a
meeting of its creditors for the purpose of obtaining any financial
concession or accommodation or (v) had or suffered a receiver or a trustee
to be appointed for all or a significant portion of its assets or affairs;
or
(e) the Account Debtor on such Account or any of its Affiliates is
also a supplier to or creditor of such Borrower, such Borrowing Base
Contributor or any Subsidiary of any of them, unless such supplier or
creditor has executed a no-offset letter satisfactory to the
Administrative Agent, in its sole discretion exercised commercially
reasonably;
(f) the Account Debtor on such Account is a Person that is an
Affiliate of such Borrower or such Borrowing Base Contributor; or
(g) the sale represented by such Account is to an Account Debtor
located outside the United States, Australia and Canada, unless the sale
is on letter of credit or acceptance terms acceptable to the
Administrative Agent, in its sole discretion exercised commercially
reasonably; or
(h) the sale to such Account Debtor on such Account is on a
xxxx-on-hold, guaranteed sale, sale-and-return, cash - on - delivery sale,
sale-on-approval or consignment
23
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
basis or on other terms by reason of which the payment by the Account
Debtor may be conditional; or
(i) such Account is subject to a Lien in favor of any Person other
than the Administrative Agent for the benefit of the Secured Parties or
the Australian Collateral Trustee; or
(j) such Account is subject to any deduction, offset, counterclaim,
return privilege or other conditions other than volume sales discounts
given in the ordinary course of such Borrower's or such Borrowing Base
Contributor's business, to the extent such volume sales discounts have
been applied to such Account in all Borrowing Base Certificates delivered
hereunder and including such Account; provided, however, that such Account
shall be ineligible pursuant to this clause (j) only to the extent of such
deduction, offset, counterclaim, return privilege or other condition; or
(k) the goods sold or services rendered with respect to such Account
were sold or rendered to such Account Debtor in a State of the United
States requiring the owner of such Account, as a precondition to
commencing or maintaining any action in the courts of such State either to
(i) receive a certificate of authorization to do business in such State or
be in good standing in such State or (ii) file a Notice of Business
Activities Report with the appropriate office or agency of such State, in
each case unless the holder of such Account has received such a
certificate of authority to do business, is in good standing or, as the
case may be, has duly filed such a notice in such State; or
(l) the Account Debtor on such Account is a United States
Governmental Authority, unless such Borrower or such Borrowing Base
Contributor has assigned its rights to payment of such Account to the
Administrative Agent pursuant to the Assignment of Claims Act of 1940, as
amended, in the case of a federal Governmental Authority, and pursuant to
applicable law, if any, in the case of any other Governmental Authority,
and such assignment has been accepted and acknowledged by the appropriate
government officers; or
(m) 50% or more of the outstanding Accounts of the Account Debtor
have become, or have been determined by the Administrative Agent, in
accordance with the provisions hereof, to be, ineligible; or
(n) the sale represented by such Account is denominated in a
currency other than (i) Canadian dollars, (ii) Dollars or (iii) in the
case of any Australian Borrower and its Borrowing Base Contributors,
Australian Dollars; or
(o) such Account is not evidenced by an invoice or other writing in
form acceptable to the Administrative Agent, in its sole discretion
exercised commercially reasonably; or
(p) such Borrower or such Borrowing Base Contributor, in order to be
entitled to collect such Account, is required to perform any additional
service for, or perform or incur any additional obligation to, the Person
to whom or to which it was made; or
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
(q) (i) the total Accounts of such Account Debtor to such Borrower
and its Borrowing Base Contributors (excluding, in the case of the
Australian Borrowers, the Company and its Borrowing Base Contributors)
represent more than 20% of the Eligible Receivables of such Borrower and
its Borrowing Base Contributors at such time, but only to the extent of
such excess or (ii) the total Accounts of such Account Debtor to the
Borrowers and their Borrowing Base Contributors represent more than 20% of
the Eligible Receivables of the Borrowers and their Borrowing Base
Contributors but only to the extent of such excess;
(r) the Borrower's or Borrowing Base Contributor's right to receive
payment of such Account is not absolute or is contingent;
(s) the Borrower or the Borrowing Base Contributor cannot bring suit
or otherwise enforce its remedies against the Account Debtor through
judicial process; or
(t) the Administrative Agent, in accordance with its customary
criteria, determines, in its sole discretion exercised commercially
reasonably, that such Account might not be paid or is otherwise
ineligible.
"Environmental Laws" means all applicable Requirements of Law now or
hereafter in effect and as amended or supplemented from time to time, relating
to (a) the carrying out of uses, works or development or the subdivision of
land, (b) the emission of substances into the environment, pollution or
contamination, (c) production, use, handling, storage, transportation or
disposal of waste, hazardous substances and dangerous goods, (d) conservation,
heritage or natural resources, (e) threatened or endangered flora and fauna or
(f) the regulation and protection of human or animal health, safety, the
environment or natural resources, including the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section
9601 et seq.); the Hazardous Material Transportation Act, as amended (49 U.S.C.
Section 1801 et seq.); the Federal Insecticide, Fungicide, and Rodenticide Act,
as amended (7 U.S.C. Section 136 et seq.); the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Section 6901 et seq.); the Toxic Substance
Control Act, as amended (42 U.S.C. Section 7401 et seq.); the Clean Air Act, as
amended (42 U.S.C. Section 740 et seq.); the Federal Water Pollution Control
Act, as amended (33 U.S.C. Section 1251 et seq.); the Occupational Safety and
Health Act, as amended (29 U.S.C. Section 651 et seq.); the Safe Drinking Water
Act, as amended (42 U.S.C. Section 300f et seq.); and each of their state and
local counterparts or equivalents and any transfer of ownership notification or
approval statute, including the Industrial Site Recovery Act (N.J. Stat. Xxx.
Section 13:1K-6 et seq.).
"Environmental Liabilities and Costs" means, with respect to any
Person, all liabilities, obligations, responsibilities, Remedial Actions,
losses, damages, punitive damages, consequential damages, treble damages, costs
and expenses (including all fees, disbursements and expenses of counsel, experts
and consultants and costs of investigation and feasibility studies), fines,
penalties, sanctions and interest incurred as a result of any claim or demand by
any other Person, whether based in contract, tort, implied or express warranty,
strict liability, criminal or civil statute and whether arising under any
Environmental Law, Permit, order or agreement with any Governmental Authority or
other Person, in each case relating to any environmental, health or safety
condition or to any Release or threatened Release and resulting from the past,
present or future operations of, or ownership of property by, such Person or any
of its Subsidiaries.
"Environmental Lien" means any Lien in favor of any Governmental
Authority for Environmental Liabilities and Costs.
25
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Environmental Reports" means the reports identified on Schedule
4.18 (Environmental Matters).
"Equipment" (a) in respect of "Equipment" of any Australian
Subsidiary, equipment, plant and machinery of such Australian Subsidiary and (b)
otherwise, has the meaning specified in the Pledge and Security Agreement.
"Equity Offering" means the issue or sale of Stock or Stock
Equivalents of the Company (or, to the extent the proceeds thereof are
contributed to the Company, of SFC or any Subsidiary of SFC that is a direct or
indirect parent of the Company) not constituting Disqualified Stock, excluding
public offerings with respect to common stock registered on Form S-8 or any
successor form thereunder under the Securities Act of 1933.
"ERISA" means the United States Employee Retirement Income Security
Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control or treated as a single employer with the
Company or any of its Subsidiaries within the meaning of Section 414(b), (c),
(m) or (o) of the Code.
"ERISA Event" means (a) a reportable event described in Section
4043(b) or 4043(c)(1), (2), (3), (5), (6), (8) or (9) of ERISA with respect to a
Title IV Plan or a Multiemployer Plan, (b) the withdrawal of the Company, any of
its Subsidiaries or any ERISA Affiliate from a Title IV 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, (c) the complete or partial withdrawal
of the Company, any of its Subsidiaries or any ERISA Affiliate from any
Multiemployer Plan, (d) notice of reorganization or insolvency of a
Multiemployer Plan, (e) the filing of a notice of intent to terminate a Title IV
Plan or the treatment of a plan amendment as a termination under Section 4041 of
ERISA, (f) the institution of proceedings to terminate a Title IV Plan or
Multiemployer Plan by the PBGC, (g) the failure to make any required
contribution to a Title IV Plan or Multiemployer Plan, (h) the imposition of a
lien under Section 412 of the Code or Section 302 of ERISA on the Company or any
of its Subsidiaries or any ERISA Affiliate or (i) any other event or condition
that 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
Title IV Plan or Multiemployer Plan or the imposition of any liability under
Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board.
"Eurodollar Base Rate" means, with respect to any Interest Period
for any Eurodollar Rate Loan, the rate determined by the Administrative Agent to
be the offered rate for deposits in Dollars for the applicable Interest Period
appearing on the Reference Screen as of 11:00 a.m., Local Time, on the second
full Business Day next preceding the first day of each Interest Period. In the
event that no Reference Screen shall be available, the Eurodollar Base Rate
shall be the rate of interest determined by the Administrative Agent to be the
rate per annum at which deposits in Dollars are offered by the principal office
of Citibank in London to major banks in the London interbank market at 11:00
a.m. (Local Time) two Business Days before the first day of such Interest Period
in an amount substantially equal to such Eurodollar Rate Loan for a period equal
to such Interest Period.
26
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Eurodollar Lending Office" means, with respect to any Lender or
Issuer, the office of such Lender or Issuer specified as its "Eurodollar Lending
Office" opposite its name on Schedule II (Applicable Lending Offices and
Addresses for Notices) or, in the case of a Lender, on the Assignment and
Acceptance by which it became a Lender (or, if no such office is specified, its
Domestic Lending Office) or such other office of such Lender or Issuer as such
Lender or Issuer may from time to time specify to the Company and the
Administrative Agent.
"Eurodollar Rate" means, with respect to any Interest Period for any
Eurodollar Rate Loan, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the Eurodollar Base Rate by (b)(i) a percentage equal
to 100% minus (ii) the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from time to time
by the Federal Reserve Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
for a member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities (or
with respect to any other category of liabilities that includes deposits by
reference to which the Eurodollar Rate is determined) having a term equal to
such Interest Period.
"Eurodollar Rate Loan" means any Loan that, for an Interest Period,
bears interest based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 9.1 (Events
of Default).
"Existing Credit Agreement" has the meaning ascribed to such term in
the preamble to this Agreement.
"Existing Lenders" means the "Lenders" under and as defined in the
Existing Credit Agreement on the date hereof.
"Existing Loans" means the "Loans" under and as defined in the
Existing Credit Agreement on the date hereof.
"Existing Obligations" means the "Obligations" under and as defined
in the Existing Credit Agreement on the date hereof.
"Existing Secured Party" means the "Secured Parties" under and as
defined in the Existing Credit Agreement on the date hereof.
"External Rate" means each of the Fixed Rates and the Australian
Short-Term Rate.
"External Rate Loan" means any Australian Short-Term Loan and any
Fixed Rate Loan.
"FAA" means the U.S. Federal Aviation Administration.
"Facility" means the Revolving Credit Facility and, as applicable,
the Australian Dollar Subfacility.
27
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Fair Market Value" means (a) with respect to any asset or group of
assets (other than a marketable Security) at any date, the value of the
consideration obtainable in a sale of such asset at such date assuming a sale by
a willing seller to a willing purchaser dealing at arm's length and arranged in
an orderly manner over a reasonable period of time having regard to the nature
and characteristics of such asset (which, for any such value reasonably expected
to be in excess of $5,000,000, shall be as reasonably determined by the Board of
Directors of the Company or Holdings or, pursuant to an authorization by such
Board of Directors, a designated senior executive officer or committee of the
Company or Holdings) or, if such asset shall have been the subject of a
relatively contemporaneous appraisal by an independent third party appraiser,
the basic assumptions underlying which have not materially changed since its
date, the value set forth in such appraisal and (b) with respect to any
marketable Security at any date, the closing sale price of such Security on the
Business Day next preceding such date, as appearing in any published list of any
national securities exchange or the NASDAQ Stock Market or, if there is no such
closing sale price of such Security, the final price for the purchase of such
Security at face value quoted on such business day by a financial institution of
recognized standing regularly dealing in securities of such type and selected by
the Administrative Agent.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the United
States Federal Reserve System, or any successor thereto.
"Fee Letter" means, collectively, the fee letter, dated May 19,
2005, addressed to the Company from Citicorp North America, Inc., Citigroup
Global Markets Inc., JPMorgan Chase Bank, N.A. and X.X. Xxxxxx Securities Inc.
and the fee letter, dated May 19, 2005, addressed to the Company from Citicorp
North America and Inc., Citigroup Global Markets Inc.
"Financial Accounting Standards Board" means the United States
Financial Accounting Standards Board, and any successor or replacement entity.
"Financial Advisory Agreement" means the financial advisory
agreement, dated as of the Purchase Date, among the Company, its Subsidiaries,
Holdings, S&C 1, S&C 2 and Xxxxx, Muse & Co. Partners, as amended through the
date hereof (to the extent amendments thereof after the Purchase Date are
delivered to the Administrative Agent prior to the date hereof).
"Financial Covenant Debt" of any Person means Indebtedness of the
type specified in clauses (a), (b), (d), (e), (f) and (h) of the definition of
"Indebtedness" and non-contingent obligations of the type specified in clause
(c) of such definition.
"Financial Statements" means the financial statements of the Company
and its Subsidiaries delivered in accordance with Sections 4.4 (Financial
Statements) and 6.1 (Financial Statements).
28
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Fiscal Month" or "fiscal month" means each of the following
periods: (a) the first two four-week periods at the beginning of each Fiscal
Quarter and (b) the last five weeks of each Fiscal Quarter. For purposes of this
definition, a "week" is the seven-day period ending on a Sunday.
"Fiscal Quarter" means each of the three month periods ending on the
Sunday immediately preceding May 31, August 31, November 30 and February 28.
"Fiscal Year" means the twelve month periods ending on the Sunday
immediately preceding May 31.
"Fixed Asset Borrowing Base" means, for any Borrower at any time,
the lesser of (a) the Fixed Asset Sublimit of such Borrower at such time and (b)
the Fixed Asset Value of such Borrower at such time. Notwithstanding the
foregoing, on or before the receipt after the Effective Date by the
Administrative Agent of updated Appraisals for all Eligible Equipment and
Eligible Real Estate together with, if and to the extent required by the
Administrative Agent, amendments to the Australian Collateral Documents or new
Australian Collateral Documents to ensure the Loan Values reflect the result of
such appraisals, the "Fixed Asset Borrowing Base" shall be determined as set
forth in the Existing Credit Agreement on the date hereof.
"Fixed Asset Sublimit" means, at any time with respect to any
Borrower, 25% of the Borrowing Base of such Borrower (calculated without giving
effect to any Eligibility Reserve and without taking into account the Fixed
Asset Sublimit then in effect).
"Fixed Asset Value" means, for any Borrower at any time, the sum of
(A) up to 75% of the Loan Value of Eligible Equipment of such Borrower and its
Borrowing Base Contributors as determined by reference to the most recent
Appraisal and (B) up to 50% of the Loan Value of Eligible Real Estate of such
Borrower and its Borrowing Base Contributors as determined by reference to the
most recent Appraisal.
"Fixed Charges" means, with respect to any Person for any period,
the sum, determined on a Consolidated basis, of (a) the Cash Interest Expense of
such Person and its Subsidiaries for such period, (b) the principal amount of
Consolidated Financial Covenant Debt of such Person and its Subsidiaries having
a scheduled due date during such period and (c) the aggregate cash payments of
interest (or Restricted Payments made for purposes of funding directly or
indirectly cash payments of interest) made during such period on the ConAgra
Note or the Convertible Notes by such Person and its Subsidiaries in each case
required pursuant to the provisions thereof as in effect on the Purchase Date
(or, in the case of the Convertible Notes, on the date hereof) after an initial
public offering of SFC or any Intermediary Holding Company.
"Fixed Charge Coverage Ratio" means, with respect to any Person for
any period, the ratio of (a) Consolidated EBITDA of such Person for such period
minus Capital Expenditures of such Person for such period minus the total
federal income tax liability actually payable by such Person in respect of such
period to (b) the Fixed Charges of such Person for such period.
"Fixed Rate" means (a) with respect to Eurodollar Rate Loans, the
Eurodollar Rate and (b) with respect to Australian Xxxx Rate Loans, the
Australian Xxxx Rate.
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Fixed Rate Loan" means each Eurodollar Rate Loan and Australian
Xxxx Rate Loan.
"Fund" means any Person (other than a natural Person) that is or
will be engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
"GAAP" means generally accepted accounting principles in the United
States as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by such other
entity as may be in general use by significant segments of the accounting
profession, that are applicable to the circumstances as of the date of
determination.
"General Intangible" has the meaning specified in the Pledge and
Security Agreement.
"Governmental Authority" means any nation, sovereign or government,
any state or other political subdivision thereof and any entity or authority
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including any central bank or stock
exchange.
"Government Bank Guarantee" means any bank guarantee that (a) is a
Letter of Credit issued from the Australian Lending Office of any Issuer for the
account of any Australian Borrower, (b) is issued for the benefit of any
Australian Governmental Authority acceptable to the Australian Agent, (c) may be
terminated by the Issuer thereof at any time by such Issuer making full or
partial payment to the beneficiary thereunder (and which contains language
reasonably acceptable to the Issuer to such effect) and (d) is on terms and
conditions reasonably satisfactory to the Issuer thereof and the Australian
Agent.
"GST" has the meaning given to such term in Australia's A New Tax
System (Goods and Services Tax) Xxx 0000 (Commonwealth of Australia).
"Guarantor" means each of Holdings and each Subsidiary Guarantor.
"Guaranty" means each of the Domestic Guaranty and the Non-U.S.
Guaranty.
"Guaranty Obligation" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with respect to any
Indebtedness of another Person, if the purpose or intent of such Person in
incurring the Guaranty Obligation is to provide assurance to the obligee of such
Indebtedness that such Indebtedness will be paid or discharged, that any
agreement relating thereto will be complied with, or that any holder of such
Indebtedness will be protected (in whole or in part) against loss in respect
thereof, including (a) the direct or indirect guaranty, endorsement (other than
for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of Indebtedness
of another Person and (b) any liability of such Person for Indebtedness of
another Person through any agreement (contingent or otherwise) (i) to purchase,
repurchase or otherwise acquire such Indebtedness or any security therefor or to
provide funds for the payment or discharge of such Indebtedness (whether in the
form of a loan, advance, stock purchase, capital contribution or otherwise),
(ii) to maintain the solvency or any balance sheet item, level of
30
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
income or financial condition of another Person, (iii) to make take-or-pay or
similar payments, if required, regardless of non-performance by any other party
or parties to an agreement, (iv) to purchase, sell or lease (as lessor or
lessee) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Indebtedness or to assure the holder
of such Indebtedness against loss or (v) to supply funds to, or in any other
manner invest in, such other Person (including to pay for property or services
irrespective of whether such property is received or such services are
rendered), if in the case of any agreement described under clause (b)(i), (ii),
(iii), (iv) or (v) above the primary purpose or intent thereof is to provide
assurance that Indebtedness of another Person will be paid or discharged, that
any agreement relating thereto will be complied with or that any holder of such
Indebtedness will be protected (in whole or in part) against loss in respect
thereof. The amount of any Guaranty Obligation shall be equal to the amount of
the Indebtedness so guaranteed or otherwise supported.
"Headquarters Lease" means the lease, dated as of October 12, 2000,
by and between Swift Beef Company (f/k/a ConAgra Beef Company) and CBC Partners,
LLC, with respect to the headquarters of the Company and its Subsidiaries
located at 0000 Xxxxxxxxxx Xxxxxx (f/k/a Xxx XxxXxxx Xxxxx), Xxxxxxx, XX 00000,
together with any amendments, restatements, refinancing, replacement and other
modification thereto.
"Hedging Contracts" means all Interest Rate Contracts, foreign
exchange contracts, currency swap or option agreements, forward contracts,
commodity swap, purchase or option agreements, other commodity price hedging
arrangements and all other similar agreements or arrangements designed to alter
the risks of any Person arising from fluctuations in interest rates, currency
values or commodity prices.
"Xxxxx, Muse" means Hicks, Muse, Xxxx & Xxxxx, Incorporated, a Texas
corporation.
"Xxxxx, Muse & Co. Partners" means Xxxxx, Muse & Co. Partners, L.P.,
a Texas limited partnership.
"Holdings" has the meaning specified in the preamble to this
Agreement.
"Holdings Indebtedness" means (a) Indebtedness (excluding Guaranty
Obligations) owing by Holdings evidenced by the $105,000,000 aggregate principal
amount of the 11.00% Senior Notes due 2010, issued by Holdings under the
Holdings Notes Indenture and (i) having a stated rate of interest not to exceed
the greater of (A) the Eurodollar Rate (or a substantially identical rate) plus
10.0% and (B) 12.5%, (ii) providing for an option for the payment in kind of
interest on terms and conditions satisfactory to the Administrative Agent, (iii)
having a stated maturity no earlier than the fifth anniversary of the issuance
thereof, (iv) that is not guaranteed by, or secured by a Lien on any asset or
property of, the Company or any Subsidiary of the Company and (v) that is not
secured by a Lien on any asset or property of Holdings and (b) Guaranty
Obligations incurred by Holdings evidenced by the guaranty of $75,000,000
aggregate principal amount of the Convertible Notes, which Notes shall have
substantially the terms described in clause (a) above; provided, however, that
the aggregate principal amount of the Indebtedness described in clause (a) and
Indebtedness supported by a Guaranty Obligation described in clause (b) above
shall together not exceed $180,000,000 (in addition to any increase to such
principal amount resulting from the payment in kind of interest under such
Indebtedness).
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Holdings Notes" means the Indebtedness described in clause (a) of
the definition of Holdings Indebtedness.
"Holdings Notes Indenture" means the Indenture, dated March 11,
2005, among Holdings, The Bank of New York Trust Company, N.A., as trustee, and
SFC, as guarantor, with respect to the issuance of the Holdings Notes.
"Hyrum Lease" means the lease agreement, by and between ConAgra and
Swift Beef Company, a Delaware corporation and a Subsidiary of the Company,
dated on or about the Purchase Date, in respect of Real Property in Hyrum, Utah.
"Indebtedness" of any Person means without duplication (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments, (c) all
reimbursement and all obligations with respect to letters of credit, bankers'
acceptances, surety bonds and performance bonds, whether or not matured, (d) all
indebtedness for the deferred purchase price of property or services, other than
trade payables incurred and accrued expenses arising in the ordinary course of
business that are not overdue, (e) all indebtedness of such Person created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (f) all Capital Lease Obligations of
such Person and the present value of future rental payments under all synthetic
leases, (g) all Guaranty Obligations of such Person, (h) all obligations of such
Person to purchase, redeem, retire, defease or otherwise acquire for value any
Stock or Stock Equivalents of such Person, valued, in the case of redeemable
preferred stock, at the greater of its voluntary liquidation preference and its
involuntary liquidation preference plus accrued and unpaid dividends, (i) all
payments that such Person would have to make in the event of an early
termination on the date Indebtedness of such Person is being determined in
respect of Hedging Contracts of such Person and (j) all Indebtedness of the type
referred to 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 and General Intangibles) owned by such Person,
even though such Person has not assumed or become liable for the payment of such
Indebtedness.
"Indemnified Matter" has the meaning specified in Section 11.4
(Indemnities).
"Indemnitee" has the meaning specified in Section 11.4
(Indemnities).
"Interbank Rate" means, for any period, (a) in respect of amounts
payable in Australian Dollars, the Australian Short-Term Rate and (b) in respect
of all other amounts, the Federal Funds Rate for such period.
"Interest Expense" means, for any Person for any period, (a)
Consolidated total interest expense of such Person and its Subsidiaries for such
period and including, in any event, interest capitalized during such period and
net costs under Interest Rate Contracts for such period (but in any event not
including non-cash interest expense on the ConAgra Note) minus (b) Consolidated
net gains of such Person and its Subsidiaries under Interest Rate Contracts for
such period and minus (c) any Consolidated interest income of such Person and
its Subsidiaries for such period.
32
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Interest Period" means, in the case of any Fixed Rate Loan, (a)
initially, the period commencing on the date such Fixed Rate Loan is made or on
the date of conversion of a Loan to such Fixed Rate Loan and ending (i) in the
case of a Eurodollar Rate Loan, fifteen days or one, two, three or six months
thereafter (or, if deposits of such duration are available to all Lenders (as
determined, with respect to each Lender, by such Lender in its sole discretion),
ending nine or twelve months thereafter) and (ii) in the case of an Australian
Xxxx Rate Loan, one, two, three, four, five or six months thereafter, as
selected by a Borrower in its Notice of Borrowing or Notice of Conversion or
Continuation given to the Administrative Agent or the Australian Agent pursuant
to Section 2.2 (Borrowing Procedures) or 2.11 (Conversion and Continuation) and
(b) thereafter, if such Fixed Rate Loan is continued, in whole or in part, as a
Fixed Rate Loan in the same currency pursuant to Section 2.11 (Conversion and
Continuation), a period commencing on the last day of the immediately preceding
Interest Period therefor and ending (i) in the case of a Eurodollar Rate Loan,
fifteen days or one, two, three or six months thereafter (or, if deposits of
such duration are available to all Lenders (as determined, with respect to each
Lender, by such Lender in its sole discretion), ending nine or twelve months
thereafter) and (ii) in the case of an Australian Xxxx Rate Loan, one, two,
three, four, five or six months thereafter, as selected by the Borrower therefor
in its Notice of Conversion or Continuation given to the Administrative Agent or
the Australian Agent pursuant to Section 2.11 (Conversion and Continuation);
provided, however, that all of the foregoing provisions relating to Interest
Periods in respect of Fixed Rate Loans are subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day in the same calendar month or, if no such Business
Day exists, on the immediately 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 a calendar month;
(iii) no Borrower may select any Interest Period that ends
after the date of a scheduled principal payment on the Loans as set forth
in Article II (The Facility) unless, after giving effect to such
selection, the aggregate unpaid principal amount of the Loans for which
Interest Periods end after such scheduled principal payment shall be equal
to or less than the principal amount to which the Loans are required to be
reduced after such scheduled principal payment is made;
(iv) no Borrower may select any Interest Period in respect of
Loans having an aggregate principal amount that is not equal to a Currency
Threshold for the currency in which such Loans are denominated;
(v) there shall be outstanding at any one time no more than
eight Interest Periods in the aggregate in respect of Eurodollar Rate
Loans and eight Interest Periods in the aggregate in respect of Australian
Xxxx Rate Loans; and
(vi) there shall be outstanding at any one time no more than
three Interest Periods in the aggregate having a length of 15 days.
33
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Interest Rate Contracts" means all interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements and interest rate
insurance.
"Intermediary Holding Company" means Rawhide, S&C 1, S&C 2 and any
Subsidiary of SFC that is not a Subsidiary of Holdings and that holds, directly
or indirectly, capital stock of Holdings.
"Inventory" means (a) in respect of "Inventory" of any Australian
Subsidiary, any "Inventory", as defined under any Australian Collateral Document
and (b) otherwise, has the meaning specified in the Pledge and Security
Agreement.
"Inventory Borrowing Base" means, for any Borrower at any time, the
sum of (a) up to 15% of the Dollar Equivalent of the value of the Eligible Parts
and Supplies of such Borrower at such time (valued, in each case, at the lower
of (i) its orderly liquidation value the calculation of which shall be as
determined by reference to the calculations set forth in the most recent
Appraisal made thereof and (ii) the lower of cost and market on a first-in,
first-out basis) and (b) the lesser of (i) up to 70% of the Dollar Equivalent of
the Loan Value of Eligible Inventory (other than Eligible Parts and Supplies and
other packaging, spare parts and supplies) of such Borrower at such time and
(ii) up to 85% of the Dollar Equivalent of the Liquidation Value of Eligible
Inventory (other than Eligible Parts and Supplies and other packaging, spare
parts and supplies) of such Borrower at such time.
"Investment" means, with respect to any Person, (a) any purchase or
other acquisition by such Person of (i) any Security issued by, (ii) a
beneficial interest in any Security issued by, or (iii) any other equity
ownership interest in, any other Person, (b) any purchase by such Person of all
or a significant part of the assets of a business conducted by any other Person,
or all or substantially all of the assets constituting the business of a
division, branch or other unit operation of any other Person, (c) any loan,
advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable and similar items
made or incurred in the ordinary course of business as presently conducted) or
capital contribution by such Person to any other Person, including all
Indebtedness of any other Person to such Person arising from a sale of property
by such Person other than in the ordinary course of its business and (d) any
Guaranty Obligation incurred by such Person in respect of Indebtedness of any
other Person.
"IRS" means the Internal Revenue Service of the United States or any
successor thereto.
"Issue" means, with respect to any Letter of Credit, to issue
(including any issuance deemed pursuant to the Existing Credit Agreement),
extend the expiry of, renew or increase the maximum face amount (including by
deleting or reducing any scheduled decrease in such maximum face amount) of,
such Letter of Credit. The terms "Issued" and "Issuance" shall have a
corresponding meaning.
"Issuer" means each Lender or Affiliate of a Lender that (a) is
listed on the signature pages hereof as an "Issuer" or (b) hereafter becomes an
Issuer with the approval of the Administrative Agent and the Company by agreeing
pursuant to an agreement with, and in form and substance satisfactory to, the
Administrative Agent and the Company to be bound by the terms hereof applicable
to Issuers.
34
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Japanese Stock Pledge" means each Pledge Agreement made by the
Company for the benefit of the Administrative Agent in respect of the Stock of
the Japanese Subsidiaries.
"Japanese Subsidiary" means each Subsidiary of the Company organized
and existing under the laws of Japan.
"Joint Venture" means any Person (a) that is not a Subsidiary of the
Company, (b) in which the Company, any of its Subsidiaries or any other Joint
Venture owns Stock or Stock Equivalents and (c) for which the Company, in the
aggregate together with its Subsidiaries, is, directly or indirectly, the
beneficial owner of 5% or more of any class of Stock or Stock Equivalents of
such Person.
"JPMorgan" has the meaning specified in the preamble to this
Agreement.
"Land" means, in respect of any Person, all of those plots, pieces
or parcels of land now owned, leased or hereafter acquired or leased or
purported to be owned, leased or hereafter acquired or leased (including, in
respect of the Loan Parties, as reflected in the most recent Financial
Statements) by such Person.
"Landlord Waiver" means a letter in form and substance reasonably
acceptable to the Administrative Agent and executed by a landlord in respect of
Inventory of any Borrower or any of its Borrowing Base Contributors located at
the relevant leased premises of such Borrower or any such Borrowing Base
Contributor pursuant to which such landlord, among other things, if applicable
in the relevant jurisdiction, waives or subordinates on terms and conditions
reasonably acceptable to the Administrative Agent any Lien such landlord may
have in respect of such Inventory.
"Leases" means, with respect to any Person, all of those leasehold
estates in real property of such Person, as lessee, as such may be amended,
supplemented or otherwise modified from time to time.
"Lender" means the Swing Loan Lender and each other financial
institution or other entity that (a) is listed on the signature pages hereof as
a "Lender" or (b) from time to time becomes a party hereto by execution of an
Assignment and Acceptance.
"Letter of Credit" means any letter of credit (or, if requested by
an Australian Borrower, bank guarantee) Issued pursuant to Section 2.4 (Letters
of Credit) or, prior to the Effective Date, pursuant to the Existing Credit
Agreement.
"Letter of Credit Obligations" means, with respect to any Borrower
at any time, the Dollar Equivalent of the aggregate of all liabilities at such
time of such Borrower to all Issuers with respect to Letters of Credit, whether
or not any such liability is contingent, including, without duplication, the sum
of (a) the Reimbursement Obligations of such Borrower at such time and (b) the
Letter of Credit Undrawn Amounts of such Borrower at such time.
"Letter of Credit Reimbursement Agreement" has the meaning specified
in Section 2.4(a)(iv) (Letters of Credit).
"Letter of Credit Request" has the meaning specified in Section
2.4(c) (Letters of Credit).
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Letter of Credit Undrawn Amounts" means, with respect to any
Borrower at any time, the aggregate undrawn face amount of all Letters of Credit
outstanding at such time for the account of such Borrower.
"Letter of Credit Sublimit" means $125,000,000.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge, deposit arrangement, encumbrance, lien (statutory or other),
Australian Lien, security interest or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever intended
to assure payment of any Indebtedness or the performance of any other
obligation, including any conditional sale or other title retention agreement,
the interest of a lessor under a Capital Lease and any financing lease having
substantially the same economic effect as any of the foregoing.
"Liquidation Value" means, with respect to any Eligible Inventory of
any Borrower at any time and any Appraisal with respect thereto, the orderly
liquidation value of such Eligible Inventory at such time, the calculation of
which shall be determined by reference to the calculations in the most recent
Appraisal with respect thereto (or, if an Australian Collateral Limit shall
exist for such Eligible Inventory and such Australian Collateral Limit shall be
lower than such orderly liquidation value, the Australian Collateral Limit for
such Eligible Inventory at such time).
"Liquidity Event Period" means any period (a) beginning on the first
date on which the Aggregate Available Credit is less than $75,000,000 and (b)
ending on the first date on which the Aggregate Available Credit is greater than
or equal to $75,000,000 for more than 5 consecutive Business Days or earlier
upon delivery of notice by the Administrative Agent.
"Listed Agent" has the meaning specified in the preamble to this
Agreement.
"Loan" means any Revolving Dollar Loan, Australian Dollar Loan or
Swing Loan (including any such Loan made prior to the Effective Date pursuant to
the Existing Credit Agreement).
"Loan Documents" means, collectively, this Agreement, the
Affirmation of Obligations, the Notes (if any), the Australian Debentures and
any other certificate (if any) issued in respect of the Australian Debentures,
the Guaranties, the Fee Letter, the Collateral Documents, the Australian
Intercompany Credit Agreement, the Australian Intercompany Guaranty, each Letter
of Credit Reimbursement Agreement (and, if a Borrower or Guarantor is party
thereto, each Letter of Credit), each Interest Rate Contract or foreign exchange
contract or currency swap agreement between any Loan Party and any Person that
was a Lender or an Affiliate of a Lender at the time it entered into such
Interest Rate Contract or foreign exchange contract or currency swap agreement,
each Cash Management Document, the Collateral Documents and each certificate,
power of attorney, agreement or document executed by a Loan Party and delivered
to the Administrative Agent or any Lender in connection with or pursuant to any
of the foregoing.
"Loan Party" means each Borrower, each Guarantor and each other
Subsidiary of Holdings that executes and delivers a Loan Document.
"Loan Value" means, at any time:
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
(a) with respect to any parcel of Eligible Real Property of any
Borrower and any Appraisal with respect thereto, the Mortgage Value of
such Eligible Real Property at such time determined by reference to such
Appraisal;
(b) with respect to all Eligible Equipment of any Borrower and any
Appraisal with respect thereto, the orderly liquidation value of such
Eligible Equipment at such time determined by reference to such Appraisal
(or for Eligible Equipment subject at such time to an Australian
Collateral Limit lower than such orderly liquidation value, such
Australian Collateral Limit);
(c) with respect to any Eligible Inventory of any Borrower, the
value of such Eligible Inventory at such time (valued, in each case, at
the lower of cost and market on a first-in, first-out basis) or, for
Eligible Inventory subject to an Australian Collateral Limit at such time
lower than such value, such Australian Collateral Limit; and
(d) with respect to any Eligible Receivables of any Borrower, the
face amount of all Eligible Receivables of such Borrower at such time
(calculated net of finance charges, late fees and other fees that are
unearned, sales, excise or similar taxes, and credit or allowances granted
at such time) or, for Eligible Receivables subject at such time to an
Australian Collateral Limit lower than such face amount, such Australian
Collateral Limit.
"Local Time" means, (a) local time in Sydney, Australia with respect
to the times for the determination of "Australian Xxxx Rate" and "Australian
Short-Term Rate", for the receipt of Notices of Australian Dollar Borrowing, for
the receipt by the Australian Agent of any Letter of Credit Request for Letters
of Credit to be Issued by the Australian Lending Office of any Issuer, for the
receipt or sending of notices by, and disbursement by, the Australian Agent, any
Australian Dollar Lender or the Australian Dollar Office of any Issuer and for
payment by the Loan Parties under the Australian Dollar Subfacility, (b) New
York time, with respect to the times for the determination of "Dollar
Equivalent", for the receipt of Notices of Dollar Borrowing, Swing Loan Requests
and Letter of Credit Requests (other than those Letter of Credit Requests
described in clause (a) above), for receipt and sending of notices by and
disbursement by the Administrative Agent, any Lender (other than the Australian
Dollar Lenders in their capacity as such) and the Domestic Lending Office or
Eurodollar Lending Office of any Issuer and for payment by the Loan Parties
under any Facility other than the Australian Dollar Subfacility, (c) London
time, with respect to the times for the determination of "Eurodollar Base Rate",
(d) otherwise, if a place for any determination is specified herein, the local
time at such place of determination and (e) otherwise, New York time.
"Management Agreement" means that certain Monitoring and Oversight
Agreement entered into among S&C 1 and its Subsidiaries and Xxxxx Muse & Co.
Partners, dated as of the Purchase Date, as amended through the date hereof (to
the extent such amendments are delivered to the Administrative Agent prior to
the date hereof).
"Material Adverse Change" means a material adverse change in any of
(a) the condition (financial or otherwise), business, assets, contingent
liabilities, prospects, operations, properties or material Contractual
Obligations of Holdings, the Company and its Subsidiaries taken as a whole, (b)
the perfection or priority of the Liens granted pursuant to the Collateral
Documents, (c) the ability of any Borrower to repay the Obligations or of the
other Loan Parties to perform their respective obligations under the Loan
Documents or (d) the rights and remedies
37
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
of the Administrative Agent, the Australian Agent, the Australian Collateral
Trustee, the Lenders or the Issuers under the Loan Documents.
"Material Adverse Effect" means an effect that results in or causes,
or could reasonably be expected to result in or cause, a Material Adverse
Change.
"Maximum Australian Dollar Sublimit" means the lesser of (a)
$65,000,000, as such amount may be reduced from time to time pursuant hereto and
(b) the aggregate Revolving Credit Commitments hereunder.
"Maximum Available Borrowing Base" means, with respect to any
Borrower at any time, (a) the Borrowing Base of such Borrower at such time minus
(b) the Dollar Equivalent of the aggregate amount of any Availability Reserve in
effect at such time applicable to such Borrower and its Borrowing Base
Contributors.
"Mexican Stock Pledge" means the Stock Pledge Agreement, among the
Company, Swift Beef Company, a Delaware corporation, each Mexican Subsidiary and
Administrative Agent in respect of the Stock of all Mexican Subsidiaries.
"Mexican Subsidiary" means each Subsidiary of the Company organized
and existing under the laws of Mexico.
"Mexico" means the United Mexican States.
"Moody's" means Xxxxx'x Investor Services, Inc.
"Mortgage" means any United States Mortgage, any Australian Mortgage
or Canadian Mortgage.
"Mortgage Value" means, with respect to any parcel of Eligible Real
Property of any Borrower or any of its Borrowing Base Contributors the lowest of
the maximum stated amounts secured by the Lien on such parcel of Eligible Real
Property granted in favor of the Administrative Agent or the Australian
Collateral Trustee pursuant to the relevant Mortgage.
"Mortgagee's Title Insurance Policy" has the meaning specified in
the definition of U.S. Mortgage Supporting Documents.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company, any of its Subsidiaries or
any ERISA Affiliate has any obligation or liability, contingent or otherwise.
"Net Cash Proceeds" means proceeds in cash or Cash Equivalents from
any Asset Sale or Equity Offering, in each case net of, (a) the reasonable cash
costs of such Asset Sale or Equity Offering, (b) taxes paid or reasonably
estimated to be payable as a result thereof, (c) in the case of an Asset Sale,
any amount required to be paid or prepaid on Indebtedness (other than the
Obligations) secured by the assets subject to such Asset Sale and (d) in the
case of an Equity Offering, net of broker's and advisors' fees incurred in
connection with such Equity Offering; provided, however, that, in each case,
evidence thereof is provided to the Administrative Agent in form and substance
satisfactory to it.
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Net Investment Amount" means, with respect to any Investment in any
Person at any time, the amount, if any, by which (a) the sum of all Investments
(valued as of the date such Investment is made) in such Person (and any
Subsidiary or Joint Venture thereof) made by any Loan Party (including any
capital contribution to such Person, all Indebtedness owing by such Person to
any Loan Party, all Guaranty Obligations of any Loan Party of Indebtedness owing
by such Person to any Loan Party and the Fair Market Value, as of the date of
transfer, of all property transferred to such Person and any Subsidiary thereof
or Joint Venture thereof by any Loan Party) exceeds (b) any return on capital
(in the form of cash or Cash Equivalents) with respect to, or net cash proceeds
of the sale or other disposition of, such Investment received by any Loan Party
from such Person (or any Subsidiary or Joint Venture thereof) or any net cash
proceeds received by any Loan Party from any transfers of property described in
clause (a) above.
"Non-Cash Interest Expense" means, with respect to any Person for
any period, the sum of the following amounts to the extent included in the
definition of Interest Expense: (a) the amount of debt discount and debt
issuance costs amortized, (b) charges relating to write-ups or write-downs in
the book or carrying value of existing Financial Covenant Debt, (c) interest
payable in evidences of Indebtedness or by addition to the principal of the
related Indebtedness (including such non-cash interest payable on the ConAgra
Note, the Holdings Notes and the Indebtedness guaranteed by the Guaranty
Obligations described in clause (b) of the definition of Holdings Indebtedness)
and (d) other non-cash interest.
"Non-Consenting Lender" has the meaning specified in Section 11.1(c)
(Amendments, Waivers, Etc.).
"Non-Funding Lender" has the meaning specified in Section 2.2(e)
(Borrowing Procedures).
"Non-Recourse Indebtedness" means Indebtedness of a Subsidiary of
the Company, for which each of the following applies: (a) such Subsidiary was
acquired through a Permitted Acquisition, (b) such Indebtedness is not, in whole
or in part, Indebtedness of any Borrower or any other Pre-Acquisition Loan Party
in respect of such Permitted Acquisition (and for which no Borrower and no other
Pre-Acquisition Loan Party in respect of such Permitted Acquisition has created,
maintained or assumed any Guaranty Obligation or other obligation) and no holder
of such Indebtedness has or could have upon the occurrence of any contingency,
any recourse against any Borrower, any other Pre-Acquisition Loan Party in
respect of such Permitted Acquisition or the assets of any of them and (c) such
Indebtedness is owing to an unaffiliated third-party (other than a Loan Party or
any Subsidiary or Affiliate thereof).
"Non-U.S. Guarantor" means any Subsidiary Guarantor that is not a
Domestic Subsidiary Guarantor.
"Non-U.S. Guaranty" means the Guaranty, dated as of September 19,
2002, by and among the Australian Borrowers, each Subsidiary of the Company that
is not a Domestic Subsidiary and the Administrative Agent.
"Non-U.S. Lender" means each Lender (or the Administrative Agent,
but not the Australian Dollar Lenders, the Australian Agent or the Australian
Agent, in each case in their capacity as such) that is not a United States
person as defined in Section 7701(a)(30) of the Code.
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Non-U.S. Person" means any Person that is not a Domestic Person.
"Note" means any Revolving Credit Note.
"Notice of Australian Dollar Borrowing" has the meaning specified in
Section 2.2(Borrowing Procedures).
"Notice of Borrowing" has the meaning specified in Section
2.2(Borrowing Procedures).
"Notice of Conversion or Continuation" has the meaning specified in
Section 2.11 (Conversion and Continuation).
"Notice of Dollar Borrowing" has the meaning specified in Section
2.2(Borrowing Procedures).
"Obligations" means the Loans, the aggregate Letter of Credit
Obligations and all other amounts, obligations, covenants and duties owing by
any Borrower to any Agent, any Lender, any Issuer, any Affiliate of any of them
or any Indemnitee, of every type and description (whether by reason of an
extension of credit, opening or amendment of a letter of credit or bank
guarantee or payment of any draft drawn or other payment thereunder, loan,
guaranty, indemnification, foreign exchange or currency swap transaction,
interest rate hedging transaction or otherwise), present or future, arising
under this Agreement, any other Loan Document (including Cash Management
Documents and Hedging Contracts that are Loan Documents but excluding the
Australian Intercompany Credit Agreement), whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired and whether or not evidenced
by any note, guaranty, Australian Debenture or other instrument or for the
payment of money, including all letter of credit, bank guarantee, cash
management and other fees, interest, charges, expenses, attorneys' fees and
disbursements, Cash Management Obligations and other sums chargeable to any
Borrower under this Agreement, any other Loan Document (including Cash
Management Documents and Hedging Contracts that are Loan Documents but excluding
the Australian Intercompany Credit Agreement) and all obligations of any
Borrower under any Loan Document to provide cash collateral for any Letter of
Credit Obligation.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Permit" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Permitted Acquisition" means any Proposed Acquisition subject to
the satisfaction of each of the following conditions:
(a) the Administrative Agent shall receive at least 10 Business
Days' prior written notice of such Proposed Acquisition, which notice
shall include, without limitation, a reasonably detailed description of
such Proposed Acquisition;
(b) such Proposed Acquisition shall have been approved by the
Proposed Acquisition Target's board of directors (or equivalent);
40
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
(c) no additional Indebtedness or other liabilities shall be
incurred, assumed or otherwise be reflected on a Consolidated balance
sheet of the Company and Proposed Acquisition Target after giving effect
to such Proposed Acquisition, except (i) Loans made hereunder, (ii)
ordinary course trade payables, accrued expenses and (iii) Indebtedness
permitted under Section 8.1 (Indebtedness);
(d) the Aggregate Available Credit (after giving effect to such
Proposed Acquisition) shall not be less than $75,000,000;
(e) at or prior to the closing of such Proposed Acquisition, the
Company (or the Subsidiary making such Proposed Acquisition) and the
Proposed Acquisition Target shall have executed such documents and taken
such actions as may be required under Sections 7.11 (Additional Collateral
and Guaranties) and 7.12 (Landlord Waivers and Bailee's Letters);
(f) unless the Company reasonably expects the aggregate
consideration for such Proposed Acquisition not to exceed $5,000,000, the
Company shall have delivered to the Administrative Agent, in form and
substance reasonably satisfactory to the Administrative Agent and the
Requisite Lenders and sufficiently in advance of such Permitted
Acquisition, such other financial information, financial analysis,
documentation or other information relating to such Proposed Acquisition
as the Administrative Agent or any Lender shall reasonably request;
(g) on or prior to the date of such Proposed Acquisition, the
Administrative Agent shall have received, copies of the acquisition
agreement authorizing assignment of the rights and obligations thereunder
of any of Holdings or any of its Subsidiaries to the Administrative Agent
as security for the Obligations, related Contractual Obligations and
instruments and, in form and substance reasonably satisfactory to the
Administrative Agent, all opinions, certificates, lien search results and
other documents reasonably requested by the Administrative Agent; and
(h) at the time of such Proposed Acquisition and after giving effect
thereto, (A) no Default or Event of Default shall have occurred and be
continuing and (B) all representations and warranties contained in Article
IV (Representations and Warranties) and in the other Loan Documents shall
be true and correct in all material respects.
"Permitted Investors" means Hicks, Muse, its Affiliates and each of
their principals, employees, partners, officers, stockholders, members and
directors.
"Permitted Joint Venture" means any Joint Venture (a) in which the
other investors, participants and holders of Stock and Stock Equivalents therein
participate on terms no more favorable than those applicable to the Company or
such Subsidiary (other than due to their percentage ownership of Stock or Stock
Equivalents therein (and rights incidental thereto)), (b) that is not a Loan
Party, that does not own Stock or Stock Equivalents in any Loan Party and no
direct or indirect Subsidiary or Joint Venture of which is a Loan Party and (c)
in which no Loan Party shall be under any Contractual Obligation to make
Investments or incur Guaranty Obligations that would be in violation of this
Agreement.
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
"Permitted Unsecured Indebtedness" means Indebtedness of any Loan
Party under the Senior Notes, the Subordinated Notes or Additional Unsecured
Indebtedness, in each case to the extent permitted to be incurred by such Loan
Party hereunder.
"Permitted Unsecured Debt Document" means each of (a) the Senior
Notes and the Senior Notes Indenture, (b) the Subordinated Notes and the
Subordinated Notes Indenture and (c) on and after the issuance of any Additional
Unsecured Indebtedness, each note and indenture evidencing or governing such
Additional Unsecured Indebtedness, together with, in the case of clause (a), (b)
or (c) above, any other agreement, certificate, power of attorney, or document
executed in connection with or pursuant to any of the foregoing.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, estate, trust, limited liability company,
unincorporated association, joint venture or other entity or a Governmental
Authority.
"Pledge and Security Agreement" means the Pledge and Security
Agreement, dated as of September 19, 2002, by and among each Borrower and each
Guarantor, as grantors, and the Administrative Agent.
"Pledged Certificates" has the meaning specified in the Pledge and
Security Agreement.
"Pledged Instruments" has the meaning specified in the Pledge and
Security Agreement.
"Pre-Acquisition Loan Party" means, in respect of any Permitted
Acquisition, each Loan Party other than each Loan Party that (a) was not a Loan
Party immediately prior to such Permitted Acquisition and (b) was (x) acquired
by the Company or any of its Subsidiaries as part of such Permitted Acquisition
or (y) created for the sole purpose of effecting such Permitted Acquisition and
owns exclusively Stock, Stock Equivalents or assets acquired as part of such
Permitted Acquisition.
"Process Agent" has the meaning specified in Section 11.15(b)
(Submission to Jurisdiction; Service of Process).
"Pro Forma Basis" means, with respect to any determination for any
period, that such determination shall be made giving pro forma effect to each
acquisition consummated during such period, together with all transactions
relating thereto consummated during such period (including any incurrence,
assumption, refinancing or repayment of Indebtedness, provided, however, that
any such incurrence shall be treated as a refinancing of prior Indebtedness at
the time of such repayment or reduction to the extent (a) the principal amount
of such prior Indebtedness of the Company or its Subsidiaries has been
permanently repaid or reduced during such period (including a corresponding
reduction in the commitments, if any, for such prior Indebtedness) either (i)
using the cash proceeds of a contribution to the capital of the Company from the
proceeds of the issuance of Stock or Stock Equivalents by Holdings or from the
proceeds of a contribution to the capital of Holdings or (ii) as a result of a
permitted exchange of such Indebtedness for Stock or Stock Equivalents of
Holdings and (b) such permanent repayment or reduction of such prior
Indebtedness has not otherwise been used pursuant to this proviso to treat any
other incurrence of Indebtedness as a refinancing of such prior Indebtedness),
as if such acquisition and related transactions had been consummated on the
first day of such
42
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
period, in each case based on historical results accounted for in accordance
with GAAP and, to the extent applicable, reasonable assumptions that are
specified in details in the relevant Compliance Certificate, Financial Statement
or other document provided to the Administrative Agent or any Lender in
connection herewith in accordance with Regulation S-X of the Securities Act of
1933.
"Projections" means the last financial projections covering the
Fiscal Years ending on or about May 31, 2005 through May 31, 2010 inclusive, as
provided by the Company in the confidential information memorandum prepared in
connection with the syndication of the Facility and delivered to the Lenders by
the Company prior to the date hereof.
"Proposed Acquisition" means the proposed acquisition by the Company
or any of its Subsidiaries of all or a significant part of the assets or Stock
of any Proposed Acquisition Target, or all or a significant part of the assets
of a division, business, branch or unit of any Proposed Acquisition Target, or
the proposed merger of any Proposed Acquisition Target with or into the Company
or any Subsidiary of the Company (and, in the case of a merger with any
Borrower, with such Borrower being the surviving corporation).
"Proposed Acquisition Target" means any Person or any operating
division thereof subject to a Proposed Acquisition.
"Proposed Change" has the meaning specified in Section 11.1(c)
(Amendments, Waivers, Etc.).
"Protective Advances" means all expenses, disbursements and advances
incurred by the Administrative Agent, the Australian Agent or the Australian
Collateral Trustee pursuant to the Loan Documents after the occurrence and
during the continuance of an Event of Default that the Administrative Agent, in
its sole discretion exercised reasonably, deems necessary or desirable to
preserve or protect the Collateral or any portion thereof or to enhance the
likelihood, or maximize the amount, of repayment of the Obligations; provided,
however, that, such expenses, disbursement and advances shall constitute
"Protective Advances" hereunder only to the extent, at the time of such
incurrence and after giving effect thereto, the sum of the aggregate principal
amount of all such Protective Advances and the aggregate Revolving Credit
Outstandings of the Borrowers at such time shall be less than or equal to the
Aggregate Revolving Credit Commitments at such time. The Administrative Agent
may, in its sole discretion exercised reasonably, allocate Protective Advances
to any Borrower taking into account, among other things, the ownership of the
Collateral and the recipient of such Protective Advances.
"Purchase Date" means September 19, 2002.
"Purchasing Lender" has the meaning specified in Section 11.7
(Sharing of Payments, Etc.).
"Ratable Portion" or (other than in the expression "equally and
ratably") "ratably" means, with respect to any Lender at any time of
determination, the percentage obtained by dividing (a) the Revolving Credit
Commitment of such Lender at such time by (b) the Aggregate Revolving Credit
Commitments at such time (or, if such time is after the Revolving Credit
Termination Date, the percentage obtained by dividing the aggregate outstanding
principal balance of the aggregate Revolving Credit Outstandings of the
Borrowers owing to such Lender
43
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
at such time by the aggregate principal balance of the aggregate Revolving
Credit Outstandings of the Borrowers owing to all Lenders at such time).
"Rawhide" means HMTF Rawhide, L.P., a Delaware limited partnership,
together with its successors.
"Real Property" means, in respect of any Person, the Land of such
Person, together with the right, title and interest of such Person, if any, in
and to the streets, the Land lying in the bed of any streets, roads or avenues,
opened or proposed, in front of, the air space and development rights pertaining
to the Land and the right to use such air space and development rights, all
rights of way, privileges, liberties, tenements, hereditaments and appurtenances
belonging or in any way appertaining thereto, all fixtures, all easements now or
hereafter benefiting the Land and all royalties and rights appertaining to the
use and enjoyment of the Land, including all alley, vault, drainage, mineral,
water, oil and gas rights, together with all of the buildings and other
improvements now or hereafter erected on the Land and any fixtures appurtenant
thereto.
"Receivables Borrowing Base" means, with respect to any Borrower at
any time, up to 90% of the Dollar Equivalent of the Loan Value of all Eligible
Receivables of such Borrower at such time.
"Reference Screen" means (a) with respect to any Eurodollar Rate
Borrowing, the Dow Xxxxx Markets Telerate Page 3750 and (b) with respect to any
Australian Dollar Borrowing, the Reuters Screen (and, with respect to any
Australian Short-Term Borrowing, page 27 thereof), or, in the event the
applicable rate does not appear on either such screen or otherwise on the Dow
Xxxxx Market (in the case of clause (a) above) or Reuters (in the case of clause
(b) above) screen, such other comparable publicly available service as may be
selected by the Administrative Agent.
"Register" has the meaning specified in Section 11.2(c) (Assignments
and Participations).
"Reimbursement Date" has the meaning specified in Section 2.4(g)
(Letters of Credit).
"Reimbursement Obligations" means, with respect to any Borrower, any
matured obligation of such Borrower to repay, on the date of such draw and in
the currency drawn, all amounts drawn under all Letters of Credit Issued for the
account of such Borrower, and all other matured reimbursement or repayment
obligations of such Borrower to any Issuer with respect to amounts drawn under
Letters of Credit.
"Related Documents" means the Australian Intercompany Credit
Agreement, the Australian Intercompany Guaranty, each Australian Intercompany
Collateral Document, each Permitted Unsecured Debt Document, the ConAgra Note,
the Management Agreement, the Financial Advisory Agreement, the Cost
Indemnification Letter, the Hyrum Lease and the Tax Sharing Agreement, and any
amendments thereto delivered to the Administrative Agent prior to the date
hereof.
"Release" means, with respect to any Person, any release, spill,
emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration, in each
44
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
case, of any Contaminant into the indoor or outdoor environment or into or out
of any property owned by such Person, including the movement of Contaminants
through or in the air, soil, surface water, ground water or property.
"Remedial Action" means all actions required to (a) clean up,
remove, treat or in any other way address any Contaminant in the indoor or
outdoor environment, (b) prevent the Release or threat of Release or minimize
the further Release so that a Contaminant does not migrate or endanger or
threaten to endanger public health or welfare or the indoor or outdoor
environment or (c) perform pre-remedial studies and investigations and
post-remedial monitoring and care.
"Requirement of Law" means, with respect to any Person, the common
law and all federal, state, local and foreign (including Australia) laws,
treaties, rules and regulations, orders, judgments, decrees and other
determinations of, concessions, grants, franchises, licenses and other
Contractual Obligations with, any Governmental Authority or arbitrator,
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Requisite Australian Dollar Lenders" means, (a) at any time on or
before the Revolving Credit Termination Date, Australian Dollar Lenders having
(i) if there are no more than two Australian Dollar Lenders, at least 66-2/3%
and (ii) otherwise, more than 50% of the aggregate Australian Dollar Sublimits
in effect at such time and (b) at any time after the Revolving Credit
Termination Date, Australian Dollar Lenders having (i) if there are no more than
two Australian Dollar Lenders, at least 66-2/3% and (ii) otherwise, more than
50% of the aggregate principal amount of any Australian Dollar Loans outstanding
at such time. A Non-Funding Lender shall not be included in the calculation of
"Requisite Australian Dollar Lenders."
"Requisite Lenders" means (a) at any time on or before the Revolving
Credit Termination Date, Revolving Credit Lenders having more than 50% of the
aggregate amount of the Revolving Credit Commitments in effect at such time and
(b) at any time after the Revolving Credit Termination Date, Revolving Credit
Lenders having more than 50% of the aggregate Revolving Credit Outstandings of
the Borrowers at such time. A Non-Funding Lender shall not be included in the
calculation of "Requisite Lenders."
"Responsible Officer" means, with respect to any Person, any of the
principal executive officers, managing members or general partners of such
Person but, in any event, with respect to financial matters, the chief financial
officer, treasurer or controller of such Person.
"Restricted Payment" means (a) any dividend, distribution or any
other payment whether direct or indirect, on account of any Stock or Stock
Equivalents of the Company or any of its Subsidiaries now or hereafter
outstanding and (b) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any Stock or
Stock Equivalents of the Company or any of its Subsidiaries now or hereafter
outstanding.
"Revolving Credit Borrowing" means any Revolving Credit Dollar
Borrowing or Australian Dollar Borrowing.
"Revolving Credit Commitment" means, with respect to each Revolving
Credit Lender, the commitment of such Revolving Credit Lender to make Revolving
Loans and acquire interests in other Revolving Credit Outstandings in the
aggregate principal amount outstanding
45
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
not to exceed the amount set forth opposite such Revolving Credit Lender's name
on Schedule I (Revolving Credit Commitments) under the caption "Revolving Credit
Commitment," as amended to reflect each Assignment and Acceptance executed by
such Revolving Credit Lender and as such amount may be reduced pursuant to this
Agreement. The aggregate Revolving Credit Commitments on the Effective Date
shall be $550,000,000.
"Revolving Credit Dollar Borrowing" means Revolving Dollar Loans
made on the same day by the Revolving Credit Lenders ratably according to their
respective Revolving Credit Commitments.
"Revolving Credit Dollar Outstandings" means, at any time with
respect to any Borrower, the sum of (a) the principal amount of the Revolving
Dollar Loans owing by such Borrower and outstanding at such time, (b) the Letter
of Credit Obligations of such Borrower outstanding at such time and (c) the
principal amount of the Swing Loans owing by such Borrower and outstanding at
such time.
"Revolving Credit Facility" means the Revolving Credit Commitments
and the provisions herein related to the Revolving Loans, Letters of Credit and
Swing Loans.
"Revolving Credit Lender" means each Lender having a Revolving
Credit Commitment or obligations (whether or not contingent) in respect of
Revolving Credit Outstandings.
"Revolving Credit Note" means any Australian Dollar Revolving Credit
Note and any Dollar Revolving Credit Note.
"Revolving Credit Outstandings" means, with respect to any Borrower
at any time, the sum of (a) the Dollar Equivalent of the principal amount of the
Revolving Loans owing by such Borrower and outstanding at such time, (b) the
Letter of Credit Obligations of such Borrower outstanding at such time and (c)
the principal amount of the Swing Loans owing by such Borrower and outstanding
at such time.
"Revolving Credit Termination Date" shall mean the earliest of (a)
the Scheduled Termination Date, (b) the date of termination of all of the
Revolving Credit Commitments pursuant to Section 2.5 (Reduction and Termination
of the Revolving Credit Commitments) and (c) the date on which the Obligations
become due and payable pursuant to Section 9.2 (Remedies).
"Revolving Dollar Loan" has the meaning specified in Section 2.1
(The Commitments).
"Revolving Loan" means any Revolving Dollar Loan or Australian
Dollar Loan.
"S&C 1" means SFC Subsidiary Holdings, Inc., a Delaware corporation
( formerly known as Rawhide Subsidiary 3 Inc. and successor in interest to Swift
Foods Company, formerly known as Swift & Company and S&C Holdco, Inc.) together
with its successors in interest.
"S&C 2" means S&C Holdco 2, Inc., a Delaware corporation, together
with its successors.
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AMENDED AND RESTATED CREDIT AGREEMENT
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"S&P" means Standard & Poor's Rating Services.
"Xxxxxxxx-Xxxxx Act" means the United States Xxxxxxxx-Xxxxx Act of
2002.
"SCH Business Rules" means the operating rules of the Australian ASX
Settlement and Transfer Corporation Pty. Limited (ACN 008 504 532).
"Scheduled Termination Date" the fifth anniversary of the Effective
Date.
"Secured Obligations" means, in the case of any Borrower, the
Obligations of such Borrower and, in the case of any other Loan Party, the
obligations of such Loan Party under the Guaranties and the other Loan Documents
to which it is a party (other than the Australian Intercompany Credit Agreement,
the Australian Intercompany Guaranty and the Australian Intercompany Collateral
Documents).
"Secured Parties" means the Lenders, the Issuers, the Agents and any
other holder of any Secured Obligation.
"Securities Account" means (a) any "Securities Account", as defined
in the UCC, and (b) any "holding" as defined in the SCH Business Rules and any
other account pursuant to which a Person is or may be granted or may hold or
exercise rights in respect of the Australian Marketable Securities of another
Person.
"Security" means any Stock, Stock Equivalent, voting trust
certificate, bond, debenture, note or other evidence of Indebtedness (other than
Hedging Contracts, to the extent not evidenced by any note or other instrument),
whether secured, unsecured, convertible or subordinated, or any certificate of
interest, share or participation in, any temporary or interim certificate for
the purchase or acquisition of, or any right to subscribe to, purchase or
acquire, any of the foregoing, but shall not include any evidence of the
Obligations.
"Selling Lender" has the meaning specified in Section 11.7 (Sharing
of Payments, Etc.).
"Senior Notes" means the 10-1/8% Senior Notes due 2009 issued by the
Company in Dollars and governed by the terms of the Senior Notes Indenture.
"Senior Notes Indenture" means the Indenture, dated as of the
Purchase Date, between the Company and The Bank of New York Trust Company of
Florida, N.A., as Trustee, in respect of the issuance of senior notes.
"SFC" means Swift Foods Company (formerly known as Rawhide
Subsidiary 1 Inc.), a Delaware corporation formed on July 23, 2004, together
with its successors in interest.
"Solvent" means, with respect to any Person as of any date, that (a)
the value of the assets of such Person (both at fair value and present fair
saleable value) is, on the date of determination, greater than the total amount
of liabilities (including contingent and unliquidated liabilities) of such
Person as of such date, (b) as of such date, such Person is able to pay all
liabilities of such Person as such liabilities mature, (c) as of such date, such
Person does not have unreasonably small capital given the nature of its business
and (d) as of such date, if such Person is an Australian Subsidiary, such Person
is not insolvent, under, and as defined in, the Australian
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AMENDED AND RESTATED CREDIT AGREEMENT
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Corporations Act. In computing the amount of contingent or unliquidated
liabilities at any time, such liabilities shall be computed at the amount that,
in light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
"Special Purpose Vehicle" means any special purpose funding vehicle
identified as such in writing by any Lender to the Administrative Agent.
"Sponsors" means Xxxxx, Muse and Booth Creek Management Corporation.
"Standby Letter of Credit" means any Letter of Credit that is not a
Documentary Letter of Credit.
"Stated Limit" means, in respect of any Australian Collateral
Document, the lowest of the maximum amounts stated to be recoverable pursuant to
such Australian Collateral Document.
"Stock" means shares of capital stock (whether denominated as common
stock or preferred stock), beneficial, partnership or membership interests,
participations or other equivalents (regardless of how designated) of or in a
corporation, partnership, limited liability company or equivalent entity,
whether voting or non-voting.
"Stock Equivalents" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not presently convertible, exchangeable or
exercisable.
"Subordinated Notes" means the 12-1/2% Senior Subordinated Notes due
2010 issued by the Company in Dollars and governed by the terms of the
Subordinated Notes Indenture.
"Subordinated Notes Indenture" means the Indenture, dated as of the
Purchase Date, between the Company and The Bank of New York Trust Company of
Florida, N.A., as Trustee, in respect of senior subordinated notes.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company or other business entity of which an
aggregate of more than 50% of the outstanding Voting Stock is, at the time,
directly or indirectly, owned or controlled by such Person or one or more
Subsidiaries of such Person.
"Subsidiary Guarantor" means each Subsidiary of the Company party to
or that becomes party to the Guaranties.
"Substitute Institution" has the meaning specified in Section 2.17
(Substitution of Lenders).
"Substitution Notice" has the meaning specified in Section 2.17
(Substitution of Lenders).
"Swing Loan" has the meaning specified in Section 2.3 (Swing Loans).
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AMENDED AND RESTATED CREDIT AGREEMENT
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"Swing Loan Lender" means Citicorp or any other Lender that becomes
the Administrative Agent or agrees, with the approval of the Administrative
Agent and the Company, to act as Swing Loan Lender hereunder, in each case in
its capacity as the Swing Loan Lender hereunder.
"Swing Loan Request" has the meaning specified in Section 2.3(b)
(Swing Loans).
"Swing Loan Sublimit" means $35,000,000.
"Syndication Agent" has the meaning specified in the preamble to
this Agreement.
"Tax Affiliate" means, with respect to any Person, (a) any
Subsidiary of such Person and (b) any Affiliate of such Person with which such
Person files or is eligible to file consolidated, combined or unitary tax
returns.
"Taxes" has the meaning specified in Section 2.16(a) (Taxes).
"Tax Return" has the meaning specified in Section 4.8(a) (Taxes).
"Tax Sharing Agreement" means a Tax Sharing Agreement, dated as of
the Purchase Date, among Holdings, S&C 1, S&C 2, the Company and the other
Persons from time to time party thereto, as amended through the date hereof (to
the extent such amendments are delivered to the Administrative Agent prior to
the date hereof).
"Title IV Plan" means a pension plan, other than a Multiemployer
Plan, covered by Title IV of ERISA and to which the Company, any of its
Subsidiaries or any ERISA Affiliate has any obligation or liability, contingent
or otherwise.
"UCC" has the meaning specified in the Pledge and Security
Agreement.
"Unintended Recipients" has the meaning specified in Section 11.4
(Indemnities).
"United States" means the United States of America and any state
thereof or political subdivision of any of them.
"Unused Commitment Fee" has the meaning specified in Section 2.12(a)
(Fees).
"U.S. Mortgage" means any mortgage, deed of trust or other real
estate security document made or required herein to be made by the Company or
any of its Borrowing Base Contributors, each in form and substance reasonably
satisfactory to the Administrative Agent.
"U.S. Mortgage Supporting Documents" means, with respect to a
Mortgage for a parcel of Real Property, each the following:
(a) (i) evidence in form and substance reasonably satisfactory to
the Administrative Agent that the recording of counterparts of such U.S.
Mortgage in the recording offices specified in such U.S. Mortgage will
create a valid and enforceable first priority lien on property described
therein in favor of the Administrative Agent for the
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AMENDED AND RESTATED CREDIT AGREEMENT
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benefit of the Secured Parties (or in favor of such other trustee as may
be required or desired under local law) subject only to (A) Liens
permitted under Section 8.2 (Liens, Etc.) and (B) such other Liens as the
Administrative Agent may reasonably approve and (ii) an opinion of counsel
in each state in which any such U.S. Mortgage is to be recorded in form
and substance and from counsel reasonably satisfactory to the
Administrative Agent;
(b) (i) a mortgagee's title policy (or policies) or marked-up
unconditional binder (or binders) for such insurance (or other evidence
reasonably acceptable to the Administrative Agent proving ownership
thereof) ("Mortgagee's Title Insurance Policy"), dated a date reasonably
satisfactory to the Administrative Agent, and shall (A) be in an amount
not less than the appraised value (determined by reference to the initial
Appraisals) of such parcel of Real Property, (B) be issued at ordinary
rates, (C) insure that the Lien granted pursuant to the Mortgage insured
thereby creates a valid first Lien on such parcel of Real Property free
and clear of all defects and encumbrances, except such as may be approved
by the Administrative Agent and Customary Permitted Liens, (D) name the
Administrative Agent for the benefit of the Secured Parties as the insured
thereunder, (E) be in the form of ALTA Loan Policy - 1992 (or such local
equivalent thereof as is reasonably satisfactory to the Administrative
Agent), (F) contain, where available, a comprehensive lender's endorsement
(including, but not limited to, a revolving credit endorsement and a
floating rate endorsement), (G) be issued by Chicago Title Insurance
Company, First American Title Insurance Company, Lawyers Title Insurance
Corporation or any other title company reasonably satisfactory to the
Administrative Agent (including any such title companies acting as
co-insurers or reinsurers) and (H) be otherwise in form and substance
reasonably satisfactory to the Administrative Agent and (ii) a copy of all
documents referred to, or listed as exceptions to title, in such title
policy (or policies) in each case in form and substance reasonably
satisfactory to the Administrative Agent;
(c) maps or plats of a current as-built survey of such parcel of
Real Property certified to and received by (in a manner reasonably
satisfactory to each of them) the Administrative Agent and the title
insurance company issuing the Mortgagee's Title Insurance Policy for such
Mortgage, dated a date reasonably satisfactory to the Administrative Agent
and such title insurance company, by an independent professional licensed
land surveyor reasonably satisfactory to the Administrative Agent and such
title insurance company, which maps or plats and the surveys on which they
are based shall be made in form and substance reasonably satisfactory to
the Administrative Agent;
(d) evidence in form and substance reasonably satisfactory to the
Administrative Agent that all premiums in respect of each Mortgagee's
Title Insurance Policy, all recording fees and stamp, documentary,
intangible or mortgage taxes, if any, in connection with the Mortgage have
been paid;
(e) a Phase I environmental report with respect to such parcel of
Real Property, dated a date not more than one year prior to the Purchase
Date, showing no material condition of environmental concern and otherwise
in form and substance reasonably satisfactory to the Administrative Agent;
and
(f) such other agreements, documents and instruments in form and
substance reasonably satisfactory to the Administrative Agent as the
Administrative Agent deems
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AMENDED AND RESTATED CREDIT AGREEMENT
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necessary or appropriate to create, register or otherwise perfect,
maintain, evidence the existence, substance, form or validity of, or
enforce a valid and enforceable first priority lien on such parcel of Real
Property in favor of the Administrative Agent for the benefit of the
Secured Parties (or in favor of such other trustee as may be required or
desired under local law) subject only to (A) Liens permitted under Section
8.2 (Liens, Etc.) and (B) such other Liens as the Administrative Agent may
reasonably approve.
"Variable Rate" means (a) with respect to Base Rate Loans, the Base
Rate and (b) with respect to Australian Short-Term Loans, the Australian
Short-Term Rate.
"Variable Rate Loan" means each Base Rate Loan and each Australian
Short-Term Loan.
"Voting Stock" means Stock of any Person having ordinary power to
vote in the election of members of the board of directors, managers, trustees or
other controlling Persons, of such Person (irrespective of whether, at the time,
Stock of any other class or classes of such entity shall have or might have
voting power by reason of the happening of any contingency).
"Wholly-Owned Subsidiary" means, in respect of any Person, any
Subsidiary of such Person, all of the Stock of which (other than director's
qualifying shares, as may be required by law) is owned by such Person, either
directly or indirectly through one or more Wholly-Owned Subsidiaries of such
Person.
"Withdrawal Liability" means the aggregate liability incurred
(whether or not assessed) with respect to all Multiemployer Plans pursuant to
Section 4201 of ERISA or for increases in contributions required to be made
pursuant to Section 4243 of ERISA.
SECTION 1.2 COMPUTATION OF TIME PERIODS
In this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding" and the
word "through" means "to and including."
SECTION 1.3 ACCOUNTING TERMS AND PRINCIPLES
(a) Except as set forth below, all accounting terms not specifically
defined herein shall be construed in conformity with GAAP and all
accounting determinations required to be made pursuant hereto (including
for purpose of measuring compliance with Article V (Financial Covenants))
shall, unless expressly otherwise provided herein, be made in conformity
with GAAP.
(b) If any change in the accounting principles used in the
preparation of the most recent Financial Statements referred to in Section
6.1 (Financial Statements) is hereafter required or permitted by the
rules, regulations, pronouncements and opinions of the Financial
Accounting Standards Board or the American Institute of Certified Public
Accountants (or any successors thereto) and such change is adopted by the
Company with the agreement of the Company's Accountants and results in a
change in any of the calculations required by Article V (Financial
Covenants) or VIII (Negative Covenants) had such accounting change not
occurred, the parties hereto agree to enter into negotiations in order to
amend such provisions so as to equitably reflect such change with
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AMENDED AND RESTATED CREDIT AGREEMENT
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the desired result that the criteria for evaluating compliance with such
covenants by the Company shall be the same after such change as if such
change had not been made; provided, however, that no change in GAAP that
would affect a calculation that measures compliance with any covenant
contained in Article V (Financial Covenants) or VIII (Negative Covenants)
shall be given effect until such provisions are amended to reflect such
changes in GAAP.
(c) For purposes of making all financial calculations to determine
compliance with Article V (Financial Covenants), all components of such
calculations shall be adjusted to include or exclude, as the case may be,
without duplication, such components of such calculations attributable to
any business or assets that have been acquired by the Company or any of
its Subsidiaries (including through Permitted Acquisitions) after the
first day of the applicable period of determination and prior to the end
of such period, as determined in good faith by the Company on a Pro Forma
Basis.
SECTION 1.4 CONVERSION OF FOREIGN CURRENCIES
(a) Financial Covenant Debt. Financial Covenant Debt denominated in
any currency other than Dollars shall be calculated using the Dollar
Equivalent thereof as of the date of the Financial Statements on which
such Financial Covenant Debt is reflected.
(b) Dollar Equivalents. The Administrative Agent shall determine the
Dollar Equivalent of any amount as required hereby, and a determination
thereof by the Administrative Agent shall be conclusive absent manifest
error. The Administrative Agent may, but shall not be obligated to, rely
on any determination by any Loan Party, the Australian Agent or the
Australian Collateral Trustee. The Administrative Agent may determine or
redetermine the Dollar Equivalent of any amount on any date either in its
own discretion or upon the request of any Lender or Issuer.
(c) Rounding-Off. The Administrative Agent may set up appropriate
rounding off mechanisms or otherwise round-off amounts hereunder to the
nearest higher or lower amount in whole Dollar, Australian Dollar or cent
to ensure amounts owing by any party hereunder or that otherwise need to
be calculated or converted hereunder are expressed in whole Dollars, whole
Australian Dollars or in whole cents, as may be necessary or appropriate.
SECTION 1.5 CERTAIN TERMS
(a) The terms "herein," "hereof" and "hereunder" and similar terms
refer to this Agreement as a whole (including, unless the context
otherwise provides, the Existing Credit Agreement) and not to any
particular Article, Section, subsection or clause in, this Agreement.
(b) Unless otherwise expressly indicated herein, (i) references in
this Agreement to an Exhibit, Schedule, Article, Section, clause or
sub-clause refer to the appropriate Exhibit or Schedule to, or Article,
Section, clause or sub-clause in this Agreement (including, unless the
context otherwise provides, the Existing Credit Agreement) and (ii) the
words "above" and "below", when following a reference to a clause or a
sub-clause of any Loan Document, refer to a clause or sub-clause within,
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
respectively, the same Section or clause (including, unless the context
otherwise provides, the Existing Credit Agreement).
(c) Each agreement defined in this Article I shall include all
appendices, exhibits and schedules thereto. Unless the prior written
consent of the Requisite Lenders is required hereunder for an amendment,
restatement, supplement or other modification to any such agreement and
such consent is not obtained, references in this Agreement to such
agreement shall be to such agreement as so amended, restated, supplemented
or modified.
(d) References in this Agreement to any statute shall be to such
statute as amended or modified from time to time and to any successor
legislation thereto, in each case as in effect at the time any such
reference is operative.
(e) The term "including" when used in any Loan Document means
"including without limitation" except when used in the computation of time
periods. "or", when used in any Loan Document, shall not be exclusive.
(f) The terms "Administrative Agent", "Australian Agent",
"Australian Collateral Trustee", "Australian Dollar Lender",
"Documentation Agent", "Issuer", "Lender," "Revolving Credit Lender",
"Swing Loan Lender" and "Syndication Agent" include, without limitation,
their respective successors.
(g) (i) Upon the appointment of any successor Administrative Agent
pursuant to Section 10.6 (Successor Administrative Agent, Australian Agent
and Australian Collateral Trustee), references to Citicorp in Section 10.3
(Each Agent Individually) and to Citibank in the definitions of Base Rate,
Dollar Equivalent and Eurodollar Rate shall be deemed to refer to the
financial institution then acting as the Administrative Agent or one of
its Affiliates if such financial institution so designates, (ii) upon the
appointment of any successor Australian Agent pursuant to Section 10.6
(Successor Administrative Agent, Australian Agent and Australian
Collateral Trustee), references to Citibank Australia in Section 10.3
(Each Agent Individually) and in the definitions of Australian Xxxx Rate
and Australian Short-Term Rate shall be deemed to refer to the financial
institution then acting as the Australian Agent or one of its Affiliates
if such financial institution so designates and (iii) upon the appointment
of any successor Australian Agent pursuant to Section 10.6 (Successor
Administrative Agent, Australian Agent and Australian Collateral Trustee),
references to Citisecurities in Section 10.3 (Each Agent Individually)
shall be deemed to refer to the financial institution then acting as the
Australian Collateral Trustee or one of its Affiliates if such financial
institution so designates.
ARTICLE II
THE FACILITY
SECTION 2.1 THE COMMITMENTS
(a) Revolving Dollar Loans. On the terms and subject to the
conditions contained in this Agreement, each Revolving Credit Lender
severally agrees to make
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AMENDED AND RESTATED CREDIT AGREEMENT
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loans in Dollars (each, together with each "Revolving Dollar Loan" as
defined in and made under the Existing Credit Agreement, a "Revolving
Dollar Loan") to the Borrowers from time to time on any Business Day
during the period from the date hereof until the Revolving Credit
Termination Date in an aggregate principal amount at any time outstanding
for all such loans by such Revolving Credit Lender not to exceed such
Revolving Credit Lender's Revolving Credit Commitment; provided, however,
that at no time shall any Lender be obligated to make a Revolving Dollar
Loan to any Borrower in excess of such Lender's Ratable Portion of (i) the
Aggregate Available Credit at such time or (ii) the Available Borrowing
Base of such Borrower at such time. Within the limits set forth in this
clause (a), amounts of Revolving Loans repaid may be reborrowed under this
Section 2.1.
(b) Australian Dollar Loans. On the terms and subject to the
conditions contained in this Agreement, each Australian Dollar Lender
severally agrees to make loans in Australian Dollars (each, together with
each "Australian Dollar Loan" as defined in and made under the Existing
Credit Agreement, an "Australian Dollar Loan")) to the Australian
Borrowers from time to time on any Business Day during the period from the
date hereof until the Revolving Credit Termination Date in an aggregate
principal amount at any time outstanding for all such Australian Dollar
Loans by such Australian Dollar Lender the Dollar Equivalent of which
shall not exceed such Australian Dollar Lender's Australian Dollar
Sublimit in effect at such time; provided, however, that at no time shall
any Australian Dollar Lender be obligated to make an Australian Dollar
Loan in excess of such Australian Dollar Lender's Australian Dollar
Ratable Portion of (i) the Aggregate Available Credit at such time or (ii)
the Available Borrowing Base of such Australian Borrower at such time.
Within the limits set forth in this clause (b), amounts of Australian
Dollar Loans repaid may be reborrowed under this Section 2.1.
(c) Australian Borrowers. Anything else in this Agreement to the
contrary notwithstanding, upon the occurrence (if any) of the Australian
Asset Sale, the Australian Borrowers shall cease to be Borrowers hereunder
(and shall no longer be able to make any Borrowings or Swing Loans
hereunder); provided, however, that the foregoing shall not operate to
discharge any Obligation either may have to any Secured Party hereunder or
under any other Loan Document.
SECTION 2.2 BORROWING PROCEDURES
(a) Each Revolving Credit Borrowing shall be made on notice given to
the appropriate Disbursement Agent by the Borrower requesting such
Revolving Credit Borrowing and not later than 11:00 a.m. (Local Time) (or,
in the case of Australian Short-Term Loans, 10:30 a.m. (Local Time)) (i)
on the Business Day of, in the case of a Revolving Credit Borrowing of
Variable Rate Loans and (ii) two Business Days prior to, in the case of a
Revolving Credit Borrowing of Fixed Rate Loans, the date of the proposed
Revolving Credit Borrowing. Each such notice shall be in substantially the
form of Exhibit C-1 (Form of Notice of Borrowing in Dollars) (a "Notice of
Dollar Borrowing") or, in the case of an Australian Dollar Borrowing,
Exhibit C-2 (Form of Notice of Australian Dollar Borrowing) (a "Notice of
Australian Dollar Borrowing" and, together with a Notice of Dollar
Borrowing, a "Notice of Borrowing"), executed by the Borrower requesting
such Revolving Credit Borrowing and specifying (A) the date of such
proposed Revolving Credit Borrowing, (B) the aggregate amount of such
proposed Revolving Credit Borrowing, (C) what portions (if any) of the
proposed Revolving Credit
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AMENDED AND RESTATED CREDIT AGREEMENT
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Borrowing will be of Variable Rate Loans or Fixed Rate Loans, (D) the
initial Interest Periods for any such Fixed Rate Loans and (E) the
Available Borrowing Base of such Borrower and the Aggregate Available
Credit (in each case after giving effect to the proposed Revolving Credit
Borrowing).
(b) Revolving Dollar Loans shall be made in Dollars as Base Rate
Loans unless, subject to Section 2.14 (Special Provisions Governing
External Rate Loans), the Notice of Borrowing specifies that all or a
portion thereof shall be Eurodollar Rate Loans. Notwithstanding anything
to the contrary contained in Section 2.3(a) (Swing Loans), if any Notice
of Dollar Borrowing requests a Revolving Credit Dollar Borrowing of Base
Rate Loans, the Swing Loan Lender may make a Swing Loan available to the
Borrower that requested such Revolving Credit Dollar Borrowing in an
aggregate amount not to exceed such proposed Revolving Credit Dollar
Borrowing, and the aggregate amount of the corresponding proposed
Revolving Credit Dollar Borrowing shall be reduced accordingly by the
principal amount of such Swing Loan. Australian Dollar Loans shall be made
as Australian Xxxx Rate Loans with an Interest Period of one month unless,
subject to Section 2.14 (Special Provisions Governing External Rate
Loans), the Notice of Borrowing specifies that all or a portion thereof
shall be made as Australian Short-Term Loans or Australian Xxxx Rate Loans
with different Interest Periods. Each Revolving Credit Borrowing in any
currency shall be in an aggregate amount equal to one of the Currency
Thresholds in such currency.
(c) The appropriate Disbursement Agent shall give to each Lender in
the applicable Facility prompt notice of the Disbursement Agent's receipt
of a Notice of Borrowing for such Facility and, if Fixed Rate Loans are
properly requested in such Notice of Borrowing, the applicable interest
rate determined pursuant to Section 2.14(a) (Determination of External
Rate). Each such Lender shall, before 2:00 p.m. (Local Time) (or, in the
case of Australian Dollar Loans, 11:00 a.m. (Local Time)) on the date of
the proposed Borrowing for such Facility, make available to the
Disbursement Agent at its address referred to in Section 11.8 (Notices,
Etc.), in immediately available funds, such Lender's Ratable Portion or,
as the case may be, Australian Dollar Ratable Portion of such proposed
Borrowing; provided, however, that, in the case of Australian Dollar
Loans, the Australian Agent may, at its option, request that the
Australian Dollar Lenders make such funds available to the applicable
Australian Borrower directly pursuant to the following sentence. Upon
fulfillment (or due waiver in accordance with Section 11.1 (Amendments,
Waivers, Etc.)) (i) on the Effective Date, of the applicable conditions
set forth in Section 3.1 (Conditions Precedent to the Effectiveness of
this Agreement) and (ii) at any time (including the Effective Date), of
the applicable conditions set forth in Section 3.2 (Conditions Precedent
to Each Loan and Letter of Credit), and after such Disbursement Agent's
receipt of such funds, such Disbursement Agent (or, in the case of
Australian Dollar Loans, if the Australian Agent has exercised its option
granted in the proviso of the previous sentence, each Australian Dollar
Lender) shall make such funds available to the Borrower that requested
such Borrowing (x) in the case of Loans denominated in Dollars, at an
account located in the United States (except as otherwise may be agreed by
such Disbursement Agent) and (y) in the case of Loans denominated in
Australian Dollars, at an account of an Australian Borrower in Australia
(except as otherwise may be agreed by such Disbursement Agent) that shall
not, in any case, be located at the branch of an Australian Bank in New
South Wales or Victoria, Australia.
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AMENDED AND RESTATED CREDIT AGREEMENT
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(d) Unless the applicable Disbursement Agent shall have received
notice from a Lender in the applicable Facility prior to the date (and, in
the case of Borrowings whose notice was received on the same Business Day,
prior to the time set forth in clause (c) above) of any proposed Borrowing
that such Lender will not make available to such Disbursement Agent such
Lender's Ratable Portion or, as the case may be, Australian Dollar Ratable
Portion of such Borrowing (or any portion thereof), such Disbursement
Agent may assume that such Lender has made such Ratable Portion or
Australian Dollar Ratable Portion available to such Disbursement Agent on
the date of such Borrowing in accordance with this Section 2.2 and such
Disbursement Agent may, in reliance upon such assumption, make available a
corresponding amount on such date to the Borrower that requested such
Borrowing. If and to the extent that such Lender is required to make
available, and shall not have so made available, such Ratable Portion or
Australian Dollar Ratable Portion to such Disbursement Agent, such Lender
agrees to repay to such Disbursement Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to such Borrower until the date such
amount is repaid to such Disbursement Agent, at the Interbank Rate for the
first Business Day and, thereafter, at the interest rate applicable at the
time to the Loans comprising such Borrowing. Such Borrower agrees to
repay, on demand (and together with interest thereon for each day from the
date such amount is made available to such Borrower until the date such
amount is repaid to such Disbursement Agent at the rate of interest
applicable at the time to the Loans comprising such Borrowing) to such
Disbursement Agent such corresponding amount if such Lender has not repaid
such corresponding amount to such Disbursement Agent within three Business
Days after the date such Disbursement Agent made such corresponding amount
available to such Borrower. If such Lender shall repay to such
Disbursement Agent such corresponding amount, such corresponding amount so
repaid shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement. If such Borrower shall repay to such
Disbursement Agent such corresponding amount, such payment shall not
relieve such Lender of any obligation it may have hereunder to such
Borrower.
(e) The failure of any Lender to make on the date specified any Loan
or any payment required by it (such Lender being a "Non-Funding Lender"),
including any payment in respect of its participation in Swing Loans and
Letter of Credit Obligations, shall not relieve any other Lender of its
obligations to make such Loan or payment on such date but no such other
Lender shall be responsible for the failure of any Non-Funding Lender to
make a Loan or payment required under this Agreement.
SECTION 2.3 SWING LOANS
(a) On the terms and subject to the conditions contained in this
Agreement, the Swing Loan Lender may, in its sole discretion, make, in
Dollars, loans (each, together with each "Swing Loan" as defined in and
made under the Existing Credit Agreement, a "Swing Loan") otherwise
available to the Borrowers under the Dollar Revolving Credit Facility from
time to time on any Business Day during the period from the date hereof
until the Revolving Credit Termination Date in an aggregate principal
amount at any time outstanding (together with the aggregate outstanding
principal amount of any other Loan made by the Swing Loan Lender hereunder
in its capacity as the Swing Loan Lender) not to exceed the Swing Loan
Sublimit; provided, however, that at no time shall the Swing
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AMENDED AND RESTATED CREDIT AGREEMENT
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Loan Lender make any Swing Loan to any Borrower in excess of (i) the
Aggregate Available Credit at such time or (ii) the Available Borrowing
Base of such Borrower at such time. Each Swing Loan shall be a Base Rate
Loan and must be repaid in full upon any Revolving Credit Borrowing
hereunder and shall in any event mature no later than the Revolving Credit
Termination Date. Within the limits set forth in the first sentence of
this clause (a), amounts of Swing Loans repaid may be reborrowed under
this clause (a).
(b) In order to request a Swing Loan, a Borrower shall telecopy (or
forward by electronic mail or similar means) to the Administrative Agent a
duly completed request in substantially the form of Exhibit D (Form of
Swing Loan Request), setting forth the requested amount and date of such
Swing Loan (a "Swing Loan Request"), to be received by the Administrative
Agent not later than 2:00 p.m. (Local Time) on the day of the proposed
borrowing. The Administrative Agent shall promptly notify the Swing Loan
Lender of the details of the requested Swing Loan. Subject to the terms of
this Agreement, the Swing Loan Lender may make a Swing Loan available to
the Administrative Agent and, in turn, the Administrative Agent shall make
such amounts available on the date of the relevant Swing Loan Request to
such Borrower at an account located in the United States. The Swing Loan
Lender shall not make any Swing Loan in the period commencing on the first
Business Day after it receives written notice from the Administrative
Agent or any Revolving Credit Lender that one or more of the conditions
precedent contained in Section 3.2 (Conditions Precedent to Each Loan and
Letter of Credit) shall not on such date be satisfied, and ending when
such conditions are satisfied. The Swing Loan Lender shall not otherwise
be required to determine that, or take notice whether, the conditions
precedent set forth in Section 3.2 (Conditions Precedent to Each Loan and
Letter of Credit) have been satisfied in connection with the making of any
Swing Loan.
(c) The Swing Loan Lender shall notify the Administrative Agent in
writing (which writing may be a telecopy or electronic mail) weekly, by no
later than 10:00 a.m. (Local Time) on the first Business Day of each week,
of the aggregate principal amount of its Swing Loans then outstanding.
(d) The Swing Loan Lender may demand at any time that each Revolving
Credit Lender pay to the Administrative Agent, for the account of the
Swing Loan Lender, in the manner provided in clause (e) below, such
Revolving Credit Lender's Ratable Portion of all or a portion of the
outstanding Swing Loans, which demand shall be made through the
Administrative Agent, shall be in writing and shall specify the
outstanding principal amount of Swing Loans demanded to be paid.
(e) The Administrative Agent shall forward each notice referred to
in clause (c) above and each demand referred to in clause (d) above to
each Revolving Credit Lender on the day such notice or such demand is
received by the Administrative Agent (except that any such notice or
demand received by the Administrative Agent after 2:00 p.m. (Local Time)
on any Business Day or any such demand received on a day that is not a
Business Day shall not be required to be forwarded to the Revolving Credit
Lenders by the Administrative Agent until the next succeeding Business Day
(Local Time)), together with a statement prepared by the Administrative
Agent specifying the amount of each Revolving Credit Lender's Ratable
Portion of the aggregate principal amount of the Swing Loans stated to be
outstanding in such notice or demanded to be paid pursuant to such demand,
and, notwithstanding whether or not the conditions
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
precedent set forth in Sections 3.2 (Conditions Precedent to Each Loan and
Letter of Credit) and 2.1(a) (The Commitments) shall have been satisfied
(which conditions precedent the Revolving Credit Lenders hereby
irrevocably waive), each Revolving Credit Lender shall, before 11:00 a.m.
(Local Time) on the Business Day next succeeding the date of such
Revolving Credit Lender's receipt of such notice or demand, make available
to the Administrative Agent, in immediately available funds, for the
account of the Swing Loan Lender, the amount specified in such statement.
Upon such payment by a Revolving Credit Lender, such Revolving Credit
Lender shall, except as provided in clause (f) below, be deemed to have
made a Revolving Loan to the Borrower owing such Swing Loans. The
Administrative Agent shall use such funds to repay the Swing Loans to the
Swing Loan Lender. To the extent that any Revolving Credit Lender fails to
make such payment available to the Administrative Agent for the account of
the Swing Loan Lender, the Borrower owing such Swing Loans shall repay
such Swing Loans on demand.
(f) Upon the occurrence of a Default under Section 9.1(f) (Events of
Default), each Revolving Credit Lender shall acquire, without recourse or
warranty, an undivided participation in each Swing Loan otherwise required
to be repaid by such Revolving Credit Lender pursuant to clause (e) above,
which participation shall be in a principal amount equal to such Revolving
Credit Lender's Ratable Portion of such Swing Loan, by paying to the Swing
Loan Lender on the date on which such Revolving Credit Lender would
otherwise have been required to make a payment in respect of such Swing
Loan pursuant to clause (e) above, in immediately available funds, an
amount equal to such Revolving Credit Lender's Ratable Portion of such
Swing Loan. If all or part of such amount is not in fact made available by
such Revolving Credit Lender to the Swing Loan Lender on such date, the
Swing Loan Lender shall be entitled to recover any such unpaid amount on
demand from such Revolving Credit Lender together with interest accrued
from such date at the Interbank Rate for the first Business Day after such
payment was due and thereafter at the rate of interest then applicable to
Base Rate Loans.
(g) From and after the date on which any Revolving Credit Lender (i)
is deemed to have made a Revolving Loan pursuant to clause (e) above with
respect to any Swing Loan or (ii) purchases an undivided participation
interest in a Swing Loan pursuant to clause (f) above, the Swing Loan
Lender shall promptly distribute to such Revolving Credit Lender such
Revolving Credit Lender's Ratable Portion of all payments of principal of
and interest received by the Swing Loan Lender on account of such Swing
Loan other than those received from a Revolving Credit Lender pursuant to
clause (e) or (f) above.
SECTION 2.4 LETTERS OF CREDIT
(a) On the terms and subject to the conditions contained in this
Agreement, each Issuer agrees to Issue at the request of any Borrower and
for the account of such Borrower one or more letters of credit or bank
guarantees from time to time on any Business Day during the period
commencing on the Effective Date and ending on the earlier of the
Revolving Credit Termination Date and 30 days prior to the Scheduled
Termination Date; provided, however, that no Issuer shall be under any
obligation to Issue (and, upon the occurrence of any of the events
described in clauses (ii), (iii), (iv)(A), (v) and (vi) below, shall not
Issue) any Letter of Credit upon the occurrence of any of the following:
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AMENDED AND RESTATED CREDIT AGREEMENT
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(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall purport by its terms to enjoin or restrain
such Issuer from Issuing such Letter of Credit or any Requirement of Law
applicable to such Issuer or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction
over such Issuer shall prohibit, or request that such Issuer refrain from,
the Issuance of letters of credit or bank guarantees generally or such
Letter of Credit in particular or shall impose upon such Issuer with
respect to such Letter of Credit any restriction or reserve or capital
requirement (for which such Issuer is not otherwise compensated) not in
effect on the date of this Agreement or result in any unreimbursed loss,
cost or expense that was not applicable, in effect or known to such Issuer
as of the date of this Agreement and that such Issuer in good xxxxx xxxxx
material to it;
(ii) after giving effect to the Issuance of such Letter of
Credit, (A) the aggregate Revolving Credit Outstandings of the Borrowers
would exceed the Aggregate Maximum Credit at such time or (B) the
Revolving Credit Outstandings of the Borrower requesting such Letter of
Credit would exceed the Maximum Available Borrowing Base of such Borrower
at such time;
(iii) after giving effect to the Issuance of such Letter of
Credit, the Letter of Credit Obligations at such time exceeds the Letter
of Credit Sublimit;
(iv) (A) any fees due in connection with a requested Issuance
have not been paid, (B) such Letter of Credit is requested to be Issued in
a form that is not acceptable to such Issuer or (C) the Issuer for such
Letter of Credit shall not have received, in form and substance reasonably
acceptable to it and, if applicable, duly executed by such Borrower,
standard (but in any event commercially reasonable) documentation
(collectively, a "Letter of Credit Reimbursement Agreement") such Issuer
requires in the ordinary course of business (which may include, if
requested by such Issuer, a letter of credit reimbursement agreement) to
be completed or delivered by Letter of Credit applicants prior to issuing
a Letter of Credit;
(v) such Letter of Credit is requested to be denominated in
any Alternative Currency and the Applicable Lending Office of the Issuer
receives written notice from the applicable Disbursement Agent at or
before 11:00 a.m. (Local Time) on the date of the proposed Issuance of
such Letter of Credit from such Applicable Lending Office that,
immediately after giving effect to the Issuance of such Letter of Credit,
all Letter of Credit Obligations at such time in respect of Letters of
Credit denominated in any Alternative Currency would exceed $60,000,000;
(vi) such Letter of Credit is requested to be denominated in
any currency other than Dollars or an Alternative Currency;
(vii) such Letter of Credit is a bank guarantee and (A) does
not have a maximum face amount, (B) is requested by the Company, (C) is
requested to be Issued by an Issuer that does not have an Australian
Lending Office or is not requested to be issued from the Australian
Lending Office of an Issuer or (D) is requested to be Issued by any Issuer
that does not have the capacity to issue bank guarantees or has otherwise
notified any Borrower on or prior to becoming an Issuer that it will not
be able to Issue bank guarantees; or
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AMENDED AND RESTATED CREDIT AGREEMENT
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(viii) such Letter of Credit is a Government Bank Guarantee
and the Issuer receives written notice from the Administrative Agent or
the Australian Agent at or before 11:00 a.m. (Sydney Time) on the date of
the proposed Issuance of such Government Bank Guarantee that, immediately
after giving effect to the Issuance of such Government Bank Guarantee, all
Letter of Credit Obligations at such time in respect of Government Bank
Guarantees would exceed A$60,000,000.
None of the Lenders (other than the Issuers in their capacity as such) shall
have any obligation to Issue any Letter of Credit.
(b) In no event shall the expiration date of any Letter of Credit
(other than a Government Bank Guarantee) (i) be more than one year after
the date of issuance thereof or (ii) be less than 30 days prior to the
Scheduled Termination Date; provided, however, that (x) any Letter of
Credit with a term less than or equal to one year may provide for the
renewal thereof for additional periods less than or equal to one year, as
long as, on or before the expiration of such term and each such period,
the Issuer of such Letter of Credit shall have the option to prevent such
renewal and (y) no such term or period or renewal of either of them shall
extend beyond the expiry date referred to in clause (ii) above.
(c) In connection with the Issuance of each Letter of Credit, the
Borrower requesting such Letter of Credit shall give the relevant
Disbursement Agent and the Applicable Lending Office of the relevant
Issuer at least two Business Days' (Local Time) prior written notice, in
substantially the form of Exhibit E (Form of Letter of Credit Request) (or
in such other written or electronic form as is acceptable to the Issuer),
of the requested Issuance of such Letter of Credit (a "Letter of Credit
Request"). Such notice shall be irrevocable and shall specify (i) the
Issuer of such Letter of Credit, (ii) the currency of issuance and face
amount of the Letter of Credit requested (the Dollar Equivalent of which
shall not be less than $50,000 (unless otherwise agreed to by the
Issuer)), (iii) whether such Letter of Credit is a bank guarantee or a
letter of credit and, if a letter of credit denominated in Australian
Dollars, whether such Letter of Credit is requested to be issued from the
Domestic Lending Office, Eurodollar Lending Office or Australian Lending
Office (if any) of such Issuer, (iv) the requested date of Issuance for
such Letter of Credit, (v) the date on which such Letter of Credit is to
expire (which date shall be a Business Day) and (vi) in the case of an
issuance, the Persons for whose benefit the requested Letter of Credit is
to be issued. Such Letter of Credit Request, to be effective, must be
received by the relevant Issuer and Disbursement Agent not later than
11:00 a.m. (Local Time) on the second Business Day prior to the requested
Issuance of such Letter of Credit.
(d) Subject to the satisfaction of the conditions set forth in this
Section 2.4, the relevant Issuer shall, on the requested date, Issue a
Letter of Credit on behalf of the Borrower requesting such Letter of
Credit in accordance with such Issuer's usual and customary business
practices. In the case of an issuance of a Letter of Credit, if such
Letter of Credit is requested by any Australian Borrower to be issued in
Australian Dollars from an Australian Lending Office of such Issuer, such
Letter of Credit shall be issued from such Australian Lending Office (if
such Issuer has an Australian Lending Office) to the extent such Issuer is
permitted to issue and maintain such Letter of Credit under applicable
Requirements of Law. No Issuer shall Issue any Letter of Credit in the
period commencing on the first Business Day after it receives written
notice from any
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AMENDED AND RESTATED CREDIT AGREEMENT
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Revolving Credit Lender that one or more of the conditions precedent
contained in Section 3.2 (Conditions Precedent to Each Loan and Letter of
Credit) or clause (a) above (other than those conditions set forth in
clauses (a)(i), (a)(iv) (provided, however, that clause (A) thereof shall
be included in this exclusion only to the extent such clause relates to
fees owing to the Issuer for such Letter of Credit and Affiliates thereof)
and (a)(vii) (other than clause (A) thereof)) shall not on such date be
satisfied or duly waived and ending when such conditions are satisfied or
duly waived. No Issuer shall otherwise be required to determine that, or
take notice whether, the conditions precedent set forth in Section 3.2
(Conditions Precedent to Each Loan and Letter of Credit) have been
satisfied in connection with the Issuance of any Letter of Credit.
(e) Each Issuer shall comply with the following:
(i) give the Administrative Agent written notice (or
telephonic notice confirmed promptly thereafter in writing), which writing
may be a telecopy or electronic mail, of the Issuance or renewal of any
Letter of Credit issued by it, of all drawings under any Letter of Credit
issued by it and of the payment (or the failure to pay when due) by any
Borrower of any Reimbursement Obligation of such Borrower when due (which
notice the Administrative Agent shall promptly transmit by telecopy,
electronic mail or similar transmission to each Revolving Credit Lender);
(ii) upon the request of any Revolving Credit Lender, furnish
to such Revolving Credit Lender copies of any Letter of Credit
Reimbursement Agreement to which such Issuer is a party and such other
documentation as may reasonably be requested by such Revolving Credit
Lender; and
(iii) no later than 10 Business Days following the last day of
each calendar month, provide to the Administrative Agent (and the
Administrative Agent shall provide a copy to each Revolving Credit Lender
requesting the same) and the Company separate schedules for Documentary
Letters of Credit and Standby Letters of Credit issued by it, in form and
substance reasonably satisfactory to the Administrative Agent, setting
forth the aggregate Letter of Credit Obligations of each Borrower, in each
case outstanding at the end of each month, and any information reasonably
requested by the Company or the Administrative Agent relating thereto.
(f) Immediately upon the issuance by an Issuer of a Letter of Credit
in accordance with the terms and conditions of this Agreement, such Issuer
shall be deemed to have sold and transferred to each Revolving Credit
Lender, and each Revolving Credit Lender shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuer, without
recourse or warranty, an undivided interest and participation, to the
extent of such Revolving Credit Lender's Ratable Portion in such Letter of
Credit and the obligations with respect thereto of the Borrower for whose
account such Letter of Credit was Issued (including all Letter of Credit
Obligations with respect thereto) and any security therefor and guaranty
pertaining thereto.
(g) The Borrower at whose request any such Letter of Credit has been
issued agrees to pay in immediately available funds in the currency
applicable to such Reimbursement Obligation to the Issuer of such Letter
of Credit the amount of all Reimbursement Obligations of such Borrower
owing to such Issuer under such Letter of Credit no later than the date
that is the next succeeding Business Day after the Company
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
receives written notice from such Issuer that payment has been made under
such Letter of Credit (the "Reimbursement Date"), irrespective of any
claim, set-off, defense or other right that any Borrower may have at any
time against such Issuer or any other Person. In the event that any Issuer
makes any payment under any Letter of Credit and the Borrower for whose
account such Letter of Credit was issued shall not have repaid such amount
to such Issuer pursuant to this clause (g) or any such payment by such
Borrower is rescinded or set aside for any reason, each such Reimbursement
Obligation shall be payable on demand with interest thereon computed (i)
from the date on which such Reimbursement Obligation arose to the
Reimbursement Date, at the rate of interest applicable during such period
to Revolving Loans that are Base Rate Loans and (ii) from the
Reimbursement Date until the date of repayment in full, at the rate of
interest applicable during such period to past due Revolving Loans that
are Base Rate Loans, and such Issuer shall promptly notify the
Administrative Agent in the manner specified by Section 11.8 (Notices,
Etc.), which shall promptly notify each Revolving Credit Lender of such
failure, and each such Revolving Credit Lender shall promptly and
unconditionally pay to the Administrative Agent for the account of such
Issuer the amount of such Revolving Credit Lender's Ratable Portion of
such payment (or the Dollar Equivalent thereof if such payment was made in
any currency other than Dollars) in immediately available Dollars. If the
Administrative Agent so notifies any such Revolving Credit Lender prior to
11:00 a.m. (New York time) on any Business Day, such Revolving Credit
Lender shall make available to the Administrative Agent for the account of
such Issuer its Ratable Portion of the amount of such payment on such
Business Day in immediately available funds. Upon such payment by any such
Revolving Credit Lender, such Revolving Credit Lender shall, except during
the continuance of a Default or Event of Default under Section 9.1(f)
(Events of Default) and notwithstanding whether or not the conditions set
forth in Sections 3.2 (Conditions Precedent to Each Loan and Letter of
Credit) and 2.1(a) (The Commitments) shall have been satisfied (which
conditions precedent the Revolving Credit Lenders hereby irrevocably
waive), be deemed to have made a Revolving Loan to the Borrower for whose
account such Letter of Credit was issued in the principal amount of such
payment. Whenever any Issuer receives from any Borrower a payment of a
Reimbursement Obligation as to which the Administrative Agent has received
for the account of such Issuer any payment from any Revolving Credit
Lender pursuant to this clause (g), such Issuer shall pay over to the
Administrative Agent any amount received in excess of such Reimbursement
Obligation and the Administrative Agent shall promptly pay over to each
such Revolving Credit Lender, in immediately available funds, such
Revolving Credit Lender's Ratable Portion of any amount received by the
Administrative Agent to the extent such amount would be, if received by
such Issuer, in excess of such Reimbursement Obligation, such amount to be
adjusted, if necessary, to reflect the respective amounts the Revolving
Credit Lenders have paid in respect of such Reimbursement Obligation.
(h) Each payment of the Issuer under any Letter of Credit issued at
the request of any Australian Borrower shall constitute a subscription by
the Issuer for Australian Debentures issued by such Australian Borrower
for an aggregate face amount thereof equal to such payment on the date of
such payment (with no original issue discount), and in the same currency
and otherwise with the same interest rate, repayment and other terms as
those applicable to such Australian Borrower's Reimbursement Obligations
in respect of such Letter of Credit. Each such Australian Debenture shall
be issued by such Australian Borrower on the date the payment is made by
the Issuer under
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
such Letter of Credit by entry in the Register, and no certificate will be
issued in respect of such Australian Debentures, except as may otherwise
be required by any Requirement of Law. If any Australian Debentures shall
be issued with respect to any such Reimbursement Obligation, such
Reimbursement Obligation and Indebtedness shall be one and the same
Indebtedness and shall not constitute separate obligations thereof.
(i) If and to the extent such Revolving Credit Lender shall not have
so made its Ratable Portion of the amount of the payment required by
clause (g) above available to the Administrative Agent for the account of
such Issuer, such Revolving Credit Lender agrees to pay to the
Administrative Agent for the account of such Issuer forthwith on demand
any such unpaid amount together with interest thereon, for the first
Business Day after payment was first due at the Interbank Rate and,
thereafter, on each day until such amount is repaid to the Administrative
Agent for the account of such Issuer, at a rate per annum equal to the
rate applicable to Base Rate Loans under the Revolving Credit Facility.
(j) Each Borrower's obligation to pay its Reimbursement Obligations
and the obligations of the Revolving Credit Lenders to make payments to
the Administrative Agent for the account of the Issuers with respect to
Letters of Credit shall be absolute, unconditional and irrevocable and
shall be performed strictly in accordance with the terms of this
Agreement, under any and all circumstances whatsoever, including the
occurrence of any Default or Event of Default, and irrespective of any of
the following:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, set off, defense or other
right that any Borrower, any other party guaranteeing, or otherwise
obligated with, any Borrower, any Subsidiary or other Affiliate thereof or
any other Person may at any time have against the beneficiary under any
Letter of Credit, any Issuer, any Agent, Lender or any other Person,
whether in connection with this Agreement, any other Loan Document or any
other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by the Issuer under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; provided, however, that this provision
shall not affect any rights the Borrower may otherwise have against the
Issuer of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
any Issuer, Lender, Agent or any other Person or any other event or
circumstance whatsoever, whether or not similar to any of the foregoing,
that might, but for the provisions of this Section 2.4, constitute a legal
or equitable discharge of any Borrower's obligations hereunder.
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AMENDED AND RESTATED CREDIT AGREEMENT
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Any action taken or omitted to be taken by the relevant Issuer under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not put such Issuer under any
resulting liability to any Borrower or any Lender. In determining whether drafts
and other documents presented under a Letter of Credit comply with the terms
thereof, the Issuer 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, in making any payment under any
Letter of Credit, the Issuer may rely exclusively on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be insufficient in any respect, if such document on
its face appears to be in order, and whether or not any other statement or any
other document presented pursuant to such Letter of Credit proves to be forged
or invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever, and any noncompliance in any immaterial respect of the
documents presented under such Letter of Credit with the terms thereof shall, in
each case, be deemed not to constitute willful misconduct or gross negligence of
the Issuer. In the event of any conflict between the terms of any Letter of
Credit Reimbursement Agreement and this Agreement, the terms of this Agreement
shall govern.
SECTION 2.5 REDUCTION AND TERMINATION OF THE REVOLVING CREDIT
COMMITMENTS
(a) The Company may, upon at least three Business Days' prior notice
to the Administrative Agent, terminate in whole or reduce in part ratably
the unused portions of the Revolving Credit Commitments of the Revolving
Credit Lenders, and the Revolving Credit Commitment of each Revolving
Credit Lender shall be reduced by its Ratable Portion of such amount;
provided, however, that each partial reduction of such Revolving Credit
Commitments shall be in an aggregate amount equal to one of the Currency
Thresholds for the currency in which such Revolving Credit Commitments
shall be denominated; and provided, further, that, to the extent, after
giving effect to such termination of reduction, the aggregate Revolving
Credit Commitments shall be lower than the aggregate of all Australian
Dollar Sublimits in effect at such time, (i) the Maximum Australian Dollar
Sublimit shall be reduced to equal the aggregate then effective Revolving
Credit Commitments and (ii) the unused portions of the Australian Dollar
Sublimits of the Australian Dollar Lenders shall also be reduced to the
extent of such reduction in the Maximum Australian Dollar Sublimit in
accordance with each such Lender's Australian Dollar Ratable Portion.
(b) Each Australian Dollar Sublimit shall be reduced to zero on the
date of the Australian Asset Sale.
SECTION 2.6 REPAYMENT OF LOANS
(a) Each Borrower promises to repay in the currency such Loans are
denominated the entire unpaid principal amount of the Revolving Loans and
the Swing Loans owing by it on the Scheduled Termination Date or earlier,
if otherwise required by the terms hereof.
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(b) Notwithstanding anything herein to the contrary, on the date of
the consummation of the Australian Asset Sale, all Loans and other
Obligations owing by the Australian Borrowers shall become due and payable
and shall be paid in accordance with Section 8.4(i) (Sale of Assets).
(c) Any repayment of a Loan owing by an Australian Borrower shall
constitute a repayment of the Australian Debentures corresponding thereto
and any repayment of an Australian Debenture shall constitute a repayment
of the Loans corresponding thereto.
SECTION 2.7 EVIDENCE OF DEBT
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing Indebtedness of each Borrower to such
Lender resulting from each Loan of such Lender from time to time,
including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(b) The applicable Disbursement Agent shall maintain accounts in
accordance with its usual practice in which it shall record (i) the amount
of each Loan made and, if a Fixed Rate Loan, the Interest Period and
currency applicable thereto, (ii) the amount of any principal or interest
due and payable by each Borrower to each Lender hereunder and (iii) the
amount of any sum received by such Disbursement Agent hereunder from any
Borrower, whether such sum constitutes principal amount or interest (and
the type of Loan to which it applies), fees, expenses or other amounts due
under the Loan Documents and each Lender's share thereof, if applicable.
(c) The entries made in the accounts maintained pursuant to clauses
(a) and (b) above shall, to the extent permitted by applicable law, be
prima facie evidence of the existence and amounts of the obligations
recorded therein; provided, however, that the failure of any Lender or
Disbursement Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of any Borrower to repay the
Loans in accordance with their terms.
(d) Notwithstanding any other provision of the Agreement, in the
event that any Lender requests that any Borrower execute and deliver a
promissory note or notes payable to such Lender in order to evidence the
Indebtedness owing to such Lender by such Borrower hereunder, such
Borrower shall promptly execute, deliver a Revolving Credit Note or
Revolving Credit Notes to such Lender evidencing any Revolving Dollar
Loans and Australian Dollar Loans, as the case may be, owing by such
Borrower to such Lender, substantially in the forms of Exhibit B-1 (Form
of Dollar Revolving Credit Note) or Exhibit B-2 (Form of Australian Dollar
Revolving Credit Note) respectively.
(e) Each Borrowing or borrowing of a Swing Loan made by any
Australian Borrower hereunder shall constitute a subscription by each
Lender in the applicable Facility of a number of Australian Debentures
equal to the principal amount of such Swing Loans or Loans comprising such
Borrowing by such Australian Borrower (so that such Australian Debentures
shall be issued with no original issue discount), and with the same
interest rate, repayment and other terms as those applicable herein to
such Swing Loans or other Loans. Each such Australian Debenture shall be
issued by such Australian Borrower hereunder on the date the corresponding
Revolving Loan or Swing
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AMENDED AND RESTATED CREDIT AGREEMENT
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Loan shall be made to such Australian Borrower hereunder by issue of a
Revolving Credit Note (if requested, and as otherwise provided for herein)
and by entry in the Register, and no certificate (other than the Revolving
Credit Notes, if any) will be issued in respect of such Australian
Debentures, except as may otherwise be required by any Requirement of Law.
If any Australian Debenture shall be issued with respect to any Loan, such
Loan and Indebtedness owing pursuant to such Australian Debenture shall be
one and the same Indebtedness of the Borrowers hereunder and shall not
constitute separate obligations thereof.
SECTION 2.8 OPTIONAL PREPAYMENTS
(a) Revolving Loans. Any Borrower may prepay the outstanding
principal amount of the Revolving Loans and Swing Loans in whole or in
part at any time; provided, however, that if any prepayment of any Fixed
Rate Loan is made by such Borrower other than on the last day of an
Interest Period for such Loan, such Borrower shall also pay any amount
owing pursuant to Section 2.14(e) (Breakage Costs); and, provided,
further, that each partial prepayment shall be in an aggregate principal
amount equal to one of the Currency Thresholds for the currency in which
the amounts prepaid are denominated. Such prepayments need not be ratable
between the Dollar Revolving Credit Facility and the Australian Dollar
Subfacility.
(b) No Borrower shall have the right to prepay the principal amount
of any Revolving Loan other than as provided in this Section 2.8, in
Section 2.9 (Mandatory Prepayments) or Section 7.13 (Control Accounts;
Approved Deposit Accounts).
SECTION 2.9 MANDATORY PREPAYMENTS
(a) Unless otherwise required pursuant to any other provision of
this Agreement or any other Loan Document, no mandatory prepayment shall
be required solely from the receipt of proceeds of insurance from any loss
or damage to property or the receipt of proceeds from any taking of
property or any Asset Sale.
(b) If at any time, (i) the sum of the Revolving Credit Outstandings
at such time exceeds the Aggregate Maximum Credit at such time, (ii) the
Revolving Credit Outstandings of any Borrower exceeds the Maximum
Available Borrowing Base of such Borrower at such time or (iii) the
aggregate Australian Dollar Outstandings at such time exceed the aggregate
Australian Dollar Sublimits at such time, then the Borrowers (or, in the
case of clause (ii) above, such Borrower and, in the case of clause (iii)
above, the Australian Borrowers) shall forthwith prepay first the Swing
Loans, then the Revolving Loans then outstanding (and, in the case of
clause (ii) above, owing by such Borrower and, in the case of clause (iii)
above, owing by the Australian Borrowers) in an amount equal to such
excess and in the currency such Loans were made. If any such excess
remains after such repayment, the Borrowers (or, in the case of clause
(ii) above, such Borrower and, in the case of clause (iii) above, the
Australian Borrowers) shall provide cash collateral for the Letter of
Credit Obligations of the Borrowers (or, in the case of clause (ii) above,
such Borrower and, in the case of clause (iii) above, the Australian
Borrowers) in the manner set forth in Section 9.3 (Actions in Respect of
Letters of Credit) in an amount equal to 102% of such excess.
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AMENDED AND RESTATED CREDIT AGREEMENT
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SECTION 2.10 INTEREST
(a) Rate of Interest. All Loans and the outstanding amount of all
other Obligations (other than pursuant to Hedging Contracts that are Loan
Documents, to the extent such Hedging Contracts provide for the accrual of
interest on unpaid obligations) shall bear interest, in the case of such
Loans (including, without duplication, the Australian Debentures and the
Revolving Credit Notes evidencing such Loans), on the unpaid principal
amount thereof from the date such Loans are made and, in the case of such
other Obligations, from the date such other Obligations are due and
payable until, in all cases, paid in full, except as otherwise provided in
clause (c) below, as follows:
(i) if a Variable Rate Loan or such other Obligation, at a
rate per annum equal to the sum of (A) the Variable Rate as in effect from
time to time and (B) the Applicable Margin in effect from time to time
during the period such Variable Rate Loan shall remain outstanding; and
(ii) if a Fixed Rate Loan, at a rate per annum equal to the
sum of (A) the Fixed Rate determined for the applicable Interest Period
and (B) the Applicable Margin in effect from time to time during such
Interest Period.
(b) Interest Payments
(i) interest accrued on each Variable Rate Loan (other than
Swing Loans) shall be payable in arrears (A) in the case of Base Rate
Loans only, on the first Business Day of each calendar month, commencing
on the first such day following the making of such Base Rate Loan and (B)
in any case, if not previously paid in full, at maturity (whether by
acceleration or otherwise) of such Variable Rate Loan;
(ii) interest accrued on Swing Loans shall be payable in
arrears on the first Business Day of the immediately succeeding calendar
month;
(iii) interest accrued on each Fixed Rate Loan shall be
payable in arrears (A) on the last day of each Interest Period applicable
to such Loan and, if such Interest Period has a duration of more than
three months, on each day during such Interest Period occurring every
three months from the first day of such Interest Period, (B) upon the
payment or prepayment thereof in full or in part and (C) if not previously
paid in full, at maturity (whether by acceleration or otherwise) of such
Fixed Rate Loan; and
(iv) interest accrued on the amount of all other Obligations
shall be payable on demand from and after the time such Obligation becomes
due and payable (whether by acceleration or otherwise).
(c) Default Interest. Notwithstanding the rates of interest
specified in clause (a) above or elsewhere herein, effective immediately
upon the occurrence of an Event of Default and for as long thereafter as
such Event of Default shall be continuing, the principal balance of all
Loans and the amount of all other Obligations then due and payable shall
bear interest at a rate that is two percent per annum in excess of the
rate of interest applicable to such Loans or other Obligations from time
to time and that is payable on the dates set forth above for the payment
of interest and applicable to such Obligation.
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AMENDED AND RESTATED CREDIT AGREEMENT
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SECTION 2.11 CONVERSION AND CONTINUATION
(a) Any Borrower may elect (i) at any time on any Business Day, to
convert Variable Rate Loans (other than Swing Loans) owing by it or any
portion thereof to Fixed Rate Loans in the same currency and (ii) at the
end of any applicable Interest Period, to convert Eurodollar Rate Loans
owing by it or any portion thereof into Base Rate Loans or to continue any
Fixed Rate Loans in any currency or any portion thereof as Fixed Rate
Loans of the same currency for an additional Interest Period; provided,
however, that the aggregate amount of each Fixed Rate Loan for any
Interest Period in any currency must be in the amount equal to one of the
Currency Thresholds for such currency. Each conversion or continuation of
(x) Revolving Dollar Loans shall be allocated among the Revolving Dollar
Loans of each Revolving Credit Lender in accordance with such Revolving
Credit Lenders' Ratable Portions of such Revolving Dollar Loans and (y)
Australian Dollar Loans shall be allocated among the Australian Dollar
Lenders in accordance with such Australian Dollar Lenders' Australian
Dollar Ratable Portions of such Australian Dollar Loans. Each such
election shall be in substantially the form of Exhibit F (Form of Notice
of Conversion or Continuation) (a "Notice of Conversion or Continuation")
and shall be made by giving the applicable Disbursement Agent at least
three Business Days' prior written notice specifying (A) the amount and
type of Loan being converted or continued, (B) in the case of a conversion
to or a continuation of, Fixed Rate Loans, the applicable Interest Period
and (C) in the case of a conversion, the date of such conversion. Each
Notice of Conversion or Continuation shall be irrevocable.
(b) The applicable Disbursement Agent shall promptly notify each
Lender in the applicable Facility of its receipt of a Notice of Conversion
or Continuation and of the options selected therein. Notwithstanding the
foregoing, no conversion in whole or in part of Variable Rate Loans to
Fixed Rate Loans and no continuation in whole or in part of Fixed Rate
Loans upon the expiration of any applicable Interest Period shall be
permitted at any time at which (A) a Default or an Event of Default shall
have occurred and be continuing or (B) the continuation of, or conversion
into, a Fixed Rate Loan would violate any provision of Section 2.14
(Special Provisions Governing External Rate Loans).
(c) If, within the time period required under the terms of this
Section 2.11, the applicable Disbursement Agent does not receive a Notice
of Conversion or Continuation from any Borrower containing a permitted
election to continue any Fixed Rate Loan owing by it for an additional
Interest Period or, to the extent permitted herein, to convert any such
Fixed Rate Loans or if such notice cannot be delivered in compliance with
clause (b) above, then, upon the expiration of the applicable Interest
Period, (i) in the case of Eurodollar Rate Loans, such Eurodollar Rate
Loans shall be automatically converted to Base Rate Loans with an
aggregate principal amount equal to the aggregate principal amount of such
Eurodollar Rate Loan on the date of such conversion and (ii) in the case
of Australian Xxxx Rate Loans, such Australian Xxxx Rate Loans shall be
automatically continued as an Australian Xxxx Rate Loan with (A) if such
notice cannot be delivered in compliance with clause (b) above, an
Interest Period of one month and (B) otherwise, the same Interest Period.
(d) At any time (i) after the occurrence and during the continuance
of any Event of Default, the Administrative Agent may (and, upon the
request of the Requisite
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AMENDED AND RESTATED CREDIT AGREEMENT
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Australian Dollar Lenders or upon the acceleration of the Australian
Dollar Loans pursuant to Section 9.2 (Remedies), shall) and (ii) upon the
replacement of any Australian Dollar Loan by a Base Rate Loan or a Loan
made in Dollars pursuant to this Agreement the Administrative Agent shall
demand that each Revolving Credit Lender pay to the Administrative Agent,
for the account of the Australian Dollar Lenders, in the manner provided
in clause (e) below, such Revolving Credit Lender's Ratable Portion of the
Australian Dollar Outstandings at such time (or, in the case of a
replacement of only some of the Australian Dollar Loans, the Australian
Dollar Outstandings at such time relating to such Australian Dollar
Loans), which demand shall be made through the Administrative Agent, shall
be in writing and shall specify the outstanding principal amount and
interest of Australian Dollar Loans demanded to be paid.
(e) Each demand referred to in clause (d) above shall be delivered
to each Revolving Credit Lender (or, in cases where clause (d) above does
not require a demand from the Borrower, a similar notice prepared by the
Administrative Agent), together with a statement prepared by the
Administrative Agent setting forth in reasonable detail the Australian
Dollar Outstandings subject to such demand, and, whether or not the
conditions set forth in Sections 3.2 (Conditions Precedent to Each Loan
and Letter of Credit) and 2.1(a) (The Commitments) shall be satisfied
(which conditions the Revolving Credit Lenders hereby irrevocably waive),
each Revolving Credit Lender shall, before 11:00 a.m. (New York time) on
the Business Day next succeeding the date of such Revolving Credit
Lender's receipt of such demand, make available to the Administrative
Agent, in immediately available Dollars for the account of the Australian
Dollar Lenders, its Ratable Portion of the Australian Dollar Outstandings
subject to such demand. Upon such payment by a Revolving Credit Lender,
such Revolving Credit Lender shall, except as provided in clause (f)
below, be deemed to have made a Revolving Dollar Loan to the Borrower
owing such Australian Dollar Loans in the principal amount of such
payment. The Administrative Agent shall forward such payments by the
Revolving Credit Lenders (or cause such payments to be forwarded) to the
Australian Dollar Lenders to repay the Australian Dollar Loans subject to
such demand. To the extent that any Revolving Credit Lender fails to make
such Ratable Portion available to the Administrative Agent for the account
of the Australian Dollar Lender, the Borrower agrees to pay such Ratable
Portion on demand in immediately available Dollars for the benefit of the
Australian Dollar Lenders (as payment for the Australian Dollar Loans
subject to such demand). As of the date of any such demand, the Australian
Dollar Loans (together with any interest then accrued thereon) shall,
immediately and without further action, become due and payable and, to the
extent not otherwise repaid hereunder, the Borrowers agree, as a separate
and independent obligation, to pay to the Australian Agent, for the
account of any Australian Dollar Lender entitled thereto, any amounts to
which any Australian Dollar Lender may be entitled to pursuant to Section
2.14(e) (Breakage Costs) or Section 11.13 (Currency of Payment) and which
shall not otherwise have been repaid by the Revolving Credit Lenders
pursuant to this Section 2.11 (Conversion and Continuation).
(f) Upon the occurrence of an Event of Default under Section 9.1(f)
(Events of Default), the Australian Dollar Outstandings shall (other than
for purpose of Section 2.14(e) (Breakage Costs) and Section 11.13
(Currency of Payment)) automatically, immediately, and without notice of
any kind, convert to Loans and other obligations made in Dollars and
bearing interest at the rate applicable to Revolving Loans bearing
interest based on the Base Rate, whereupon each Revolving Credit Lender
shall
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AMENDED AND RESTATED CREDIT AGREEMENT
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acquire, without recourse or warranty, an undivided participation in each
Australian Dollar Loan otherwise required to be repaid by such Revolving
Credit Lender pursuant to clause (e) above, which participation shall be
in a principal amount equal to such Revolving Credit Lender's Ratable
Portion of the Australian Dollar Outstandings corresponding to such
Australian Dollar Loan, by paying to the Administrative Agent for the
benefit of the Australian Dollar Lenders on the date on which such
Revolving Credit Lender would otherwise have been required to make a
payment in respect of such Australian Dollar Loan pursuant to clause (e)
above, in immediately available funds, an amount equal to such Revolving
Credit Lender's Ratable Portion of the Australian Dollar Outstandings in
respect of such Australian Dollar Loan. If all or part of such amount is
not in fact made available by such Revolving Credit Lender to the
Administrative Agent on such date, each Australian Dollar Revolving Lender
shall be entitled to recover any such unpaid amount on demand from such
Revolving Credit Lender together with interest accrued from such date at
the Australian Short-Term Rate. As of the date of any such Event of
Default under Section 9.1(f) (Events of Default), all Australian Dollar
Loans and other Australian Dollar Outstandings shall, immediately and
without further action, become due and payable and, to the extent not
otherwise repaid hereunder, the Borrowers agree, as a separate and
independent obligation, to pay to the Australian Agent, for the account of
any Australian Dollar Lender entitled thereto, any amounts to which any
Australian Dollar Lender may be entitled to pursuant to Section 2.14(e)
(Breakage Costs) or Section 11.13 (Currency of Payment) and which shall
not have otherwise been paid by the Revolving Credit Lenders pursuant to
this Section 2.11 (Conversion and Continuation).
(g) From and after the date on which any Revolving Credit Lender (i)
is deemed to have made a Revolving Loan pursuant to clause (e) above with
respect to any Australian Dollar Loan or (ii) purchases an undivided
participation interest in an Australian Dollar Loan pursuant to clause (f)
above, the Administrative Agent, the Australian Agent and each Australian
Dollar Lender shall promptly distribute to such Revolving Credit Lender
such Revolving Credit Lender's Ratable Portion of all payments of
principal amount and interest received by the Administrative Agent, the
Australian Agent or such Australian Dollar Lender on account of such
Australian Dollar Loan in excess of those received pursuant to clause (e)
or (f) above.
SECTION 2.12 FEES
(a) Unused Commitment Fees. The Borrowers, jointly and severally,
agree to pay in Dollars in immediately available funds to each Revolving
Credit Lender a commitment fee on the actual daily amount, if any, by
which the Revolving Credit Commitment of such Revolving Credit Lender
exceeds its Ratable Portion of the sum of (i) the aggregate outstanding
principal amount of the Revolving Dollar Loans and (ii) the outstanding
amount of the aggregate Letter of Credit Obligations of the Borrowers (the
"Unused Commitment Fee") from the date hereof through the Revolving Credit
Termination Date at the Applicable Unused Commitment Fee Rate, payable in
arrears (x) on the first Business Day of each calendar quarter, commencing
on the first such Business Day following the Effective Date and (y) on the
Revolving Credit Termination Date.
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AMENDED AND RESTATED CREDIT AGREEMENT
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(b) Letter of Credit Fees. Each Borrower agrees to pay the following
amounts with respect to Letters of Credit issued by any Issuer for the
account of such Borrower:
(i) to the Administrative Agent for the account of each Issuer
of any Letter of Credit, with respect to each such Letter of Credit issued
by such Issuer, an issuance fee (A) with respect to Letters of Credit
denominated in Australian Dollars, equal to 1/8 of 1% per annum of the
daily maximum undrawn face amount of such Letter of Credit and payable in
Australian Dollars in arrears and (B) otherwise, equal to 1/8 of 1% per
annum of the Dollar Equivalent of the daily maximum undrawn face amount of
such Letter of Credit and payable in Dollars in arrears, in each case (A)
on the first Business Day of each calendar quarter, commencing on the
first such Business Day following the issuance of such Letter of Credit
and (B) on the Revolving Credit Termination Date;
(ii) to the Administrative Agent for the benefit of the
Revolving Credit Lenders in accordance with their Ratable Portions
thereof, with respect to each Letter of Credit, a fee accruing in Dollars
at a rate per annum equal to the Applicable Margin for Revolving Loans
that are Eurodollar Rate Loans on the Dollar Equivalent of the daily
maximum undrawn face amount of such Letter of Credit, payable in arrears
(A) on the first Business Day of each calendar quarter, commencing on the
first such Business Day following the issuance of such Letter of Credit
and (B) on the Revolving Credit Termination Date; provided, however, that
during the continuance of an Event of Default, such fee shall be increased
by two percent per annum (instead of, and not in addition to, any increase
that could have occurred pursuant to Section 2.10(c) (Interest)) and shall
be payable on demand; and
(iii) to the Issuer of any Letter of Credit, with respect to
the issuance, amendment or transfer of each Letter of Credit and each
drawing made thereunder, documentary and processing charges in accordance
with such Issuer's standard schedule for such charges in effect at the
time of issuance, amendment, transfer or drawing, as the case may be.
(c) Additional Fees. The Company has agreed to pay to the
Administrative Agent, the Syndication Agent and the Arrangers additional
fees, the amount and dates of payment of which are embodied in the Fee
Letter.
SECTION 2.13 PAYMENTS AND COMPUTATIONS
(a) Each Borrower shall make each payment hereunder (including fees
and expenses) not later than 11:00 a.m. (Local Time) on the day when due,
in the currency specified herein or, if no such currency is specified, in
Dollars, to the applicable Disbursement Agent at its address referred to
in Section 11.8 (Notices, Etc.) in immediately available funds without
set-off or counterclaim. Such Disbursement Agent shall promptly thereafter
cause to be distributed immediately available funds relating to the
payment of principal, interest or fees to the Lenders entitled thereto, in
accordance with the application of payments set forth in clause (f) or (g)
below, as applicable, for the account of their respective Applicable
Lending Offices; provided, however, that amounts payable pursuant to
Section 2.15 (Capital Adequacy), Section 2.16 (Taxes) or Section 2.14(c)
or (d) (Special Provisions Governing External Rate Loans) shall be paid
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AMENDED AND RESTATED CREDIT AGREEMENT
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only to the affected Lender or Lenders and amounts payable with respect to
Swing Loans shall be paid only to the Swing Loan Lender. Payments received
by the Disbursement Agent after 11:00 a.m. (Local Time) shall be deemed to
be received on the next Business Day.
(b) All computations of interest and fees shall be made by the
applicable Disbursement Agent on the basis of a year of 360 days (or, in
the case of Base Rate Loans and Australian Dollar Loans, 365/6 days), in
each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest
and fees are payable. Each determination by the applicable Disbursement
Agent of a rate of interest hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(c) Each payment by a Borrower in respect of any Loan, Reimbursement
Obligation (including interest or fees in respect thereof) or
reimbursement of various costs and expenses shall be made in the currency
in which such Loan was made, such Letter of Credit issued or such cost or
expense was incurred.
(d) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest
or fees, as the case may be; provided, however, that if such extension
would cause payment of interest on or principal of any Fixed Rate Loan to
be made in the next calendar month, such payment shall be made on the
immediately preceding Business Day. All repayments of any Revolving Loans
shall be applied as follows: first, to repay such Loans outstanding as
Variable Rate Loans and then, to repay such Loans outstanding as Fixed
Rate Loans, with those Fixed Rate Loans having earlier expiring Interest
Periods being repaid prior to those having later expiring Interest
Periods.
(e) Unless the applicable Disbursement Agent shall have received
notice from the Company to the applicable Lenders prior to the date on
which any payment is due by any Borrower hereunder that such Borrower will
not make such payment in full, such Disbursement Agent may assume that
such Borrower has made such payment in full to such Disbursement Agent on
such date and such Disbursement Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an
amount equal to the amount then due such Lender. If and to the extent that
such Borrower shall not have made such payment in full to such
Disbursement Agent, each Lender in the applicable Facility shall repay to
the Disbursement Agent forthwith on demand such amount distributed to such
Lender together with interest thereon (at the Interbank Rate for the first
Business Day and thereafter, in respect of the Australian Dollar Loans, on
each day at the maximum rate that could be applicable hereunder to
Australian Dollar Loans on such day and, in respect of all other amounts,
at the rate applicable to Base Rate Loans) for each day from the date such
amount is distributed to such Lender until the date such Lender repays
such amount to the applicable Disbursement Agent.
(f) Except for payments and other amounts received by the applicable
Disbursement Agent and applied in accordance with the provisions of clause
(g) below (or required to be applied in accordance with Section 2.9
(Mandatory Prepayments) or Section 7.13 (Control Accounts; Approved
Deposit Accounts)), all payments and any other amounts received by the
Disbursement Agents from or for the benefit of any
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AMENDED AND RESTATED CREDIT AGREEMENT
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Borrower shall be applied as follows: first, to pay principal of, and
interest on, any portion of the Loans any Disbursement Agent may have
advanced to such Borrower (or, if such Borrower is an Australian Borrower,
to any Australian Borrower) pursuant to the express provisions of this
Agreement on behalf of any Lender, for which such Disbursement Agent has
not then been reimbursed by such Lender or any Borrower, second, to pay
all other Obligations then due and payable by such Borrower (or, if such
Borrower is an Australian Borrower, by any Australian Borrower) and third,
as such Borrower so designates. Payments in respect of Swing Loans
received by the Administrative Agent shall be distributed to the Swing
Loan Lender, payments in respect of Australian Dollar Loans received by
the Australian Agent shall be distributed to each Australian Dollar Lender
in accordance with such Australian Dollar Lender's Australian Dollar
Ratable Portion and payments in respect of Revolving Dollar Loans received
by the Administrative Agent shall be distributed to each Revolving Credit
Lender in accordance with such Revolving Credit Lender's Ratable Portion
of the Revolving Dollar Loans and, subject to clause (h) below for such
payments allocated to the Lenders in any or all of the Facility, in
proportion to their respective applicable Ratable Portions in such
Facility or, as the case may be, in proportion to their respective
applicable Australian Dollar Ratable Portions.
(g) Each Borrower hereby irrevocably waives the right to direct the
application of any and all payments in respect of the Secured Obligations
and any proceeds of Collateral after the occurrence and during the
continuance of an Event of Default and agrees that, notwithstanding the
provisions of Section 2.9 (Mandatory Prepayments), Section 7.13 (Control
Accounts; Approved Deposit Accounts) and clause (f) above, each
Disbursement Agent and the Australian Collateral Trustee may, and, upon
either (A) the written direction of the Requisite Lenders or (B) the
acceleration of the Obligations pursuant to Section 9.2 (Remedies), shall,
apply all payments in respect of any Secured Obligation and all funds on
deposit in any Cash Collateral Account and all other proceeds of
Collateral of such Borrower in the following order:
First , to pay Secured Obligations in respect of any expense
reimbursements or indemnities (other than with respect to Cash Management
Obligations or Hedging Contracts) then due by such Borrower (or, if such
Borrower is an Australian Borrower, by any Australian Borrower) to any
Disbursement Agent or the Australian Collateral Trustee;
Second , to pay Secured Obligations in respect of any expense
reimbursements or indemnities (other than with respect to Cash Management
Obligations or Hedging Contracts) then due by such Borrower (or, if such
Borrower is an Australian Borrower, by any Australian Borrower) to the
Lenders and the Issuers;
Third , to pay Secured Obligations in respect of any fees then
due by such Borrower (or, if such Borrower is an Australian Borrower, by
any Australian Borrower) to any Disbursement Agent, the Australian
Collateral Trustee the Lenders and the Issuers;
Fourth , to pay interest then due and payable in respect of
the Loans owing by such Borrower (or, if such Borrower is an Australian
Borrower, by any Australian Borrower) and in respect of Reimbursement
Obligations of such Borrower (or, if such Borrower is an Australian
Borrower, of any Australian Borrower);
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AMENDED AND RESTATED CREDIT AGREEMENT
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Fifth , to pay or prepay principal amounts on the Loans owing
by such Borrower (or, if such Borrower is an Australian Borrower, by any
Australian Borrower) and Reimbursement Obligations of such Borrower (or,
if such Borrower is an Australian Borrower, of any Australian Borrower)
and to provide cash collateral for Letter of Credit Undrawn Amounts of
such Borrower (or, if such Borrower is an Australian Borrower, of any
Australian Borrower) in the manner described in Section 9.3 (Actions in
Respect of Letters of Credit), ratably to the aggregate principal amount
of such Loans, Reimbursement Obligations and Letter of Credit Undrawn
Amounts; and
Sixth , to the ratable payment of all other Secured
Obligations owing by such Borrower (or, if such Borrower is an Australian
Borrower, by any Australian Borrower);
provided, however, that if sufficient funds are not available to fund all
payments to be made in respect of any Secured Obligation described in any
of clauses first, second, third, fourth, fifth and sixth above, the
available funds being applied with respect to any such Secured Obligation
(unless otherwise specified in such clause) shall be allocated to the
payment of such Secured Obligations pro rata, based on the proportion of
the Administrative Agent's, the Australian Agent's, the Australian
Collateral Trustee's and each Lender's, Issuer's or other Secured Party's
interest in the aggregate outstanding Secured Obligations described in
such clauses; provided, however, that payments that would otherwise be
allocated to the Revolving Credit Lenders shall be allocated first to pay
Protective Advances and Swing Loans pro rata and then to Revolving Loans
outstanding. The order of priority set forth in the last proviso of the
preceding sentence may at any time and from time to time be changed by the
agreement of the Requisite Lenders, the Swing Loan Lender and the
Administrative Agent, without necessity of notice or consent or approval
by any Borrower, any other Secured Party or Person. The order of priority
set forth in clauses first, second, third, fourth, fifth and sixth above
may at any time and from time to time be changed by the agreement of the
Requisite Lenders without necessity of notice to or consent of or approval
by any Borrower, any Secured Party that is not a Lender or Issuer or by
any other Person that is not a Lender or Issuer. The order of priority set
forth in clauses first, second and third above may be changed only with
the prior written consent of the Administrative Agent, the Australian
Collateral Trustee and the Australian Agent in addition to that of the
Requisite Lenders.
(h) The Administrative Agent reserves the right to apply against the
repayment of any Obligations under the Revolving Credit Facility owing in
any currency, any repayment and other amounts that may be applied in
accordance with other provisions of this Agreement to repay such
Obligations, regardless of the currency in which such repayments and
amounts were received or are held.
(i) At the option of the Administrative Agent, principal on the
Swing Loans owing by any Borrower, Reimbursement Obligations of any
Borrower, interest, fees, expenses and other sums due and payable in
respect of the Loans of any Borrower and Protective Advances allocated to
any Borrower may be paid from the proceeds of Swing Loans or Revolving
Loans made to such Borrower. Each Borrower hereby authorizes the Swing
Loan Lender to make such Swing Loans pursuant to Section 2.3(a) (Swing
Loans) and the Revolving Credit Lenders to make such Revolving Loans
pursuant to Section 2.2(a) (Borrowing Procedures) in the amounts of any
and all principal payable by such Borrower with respect to the Swing
Loans, Reimbursement Obligations, interest,
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fees, expenses and other sums payable by such Borrower in respect of the
Loans and Protective Advances allocated to such Borrower, and further
authorizes the Administrative Agent to prepare and give to the Revolving
Credit Lenders Swing Loan Requests and Notices of Borrowing with respect
to such Swing Loans and Revolving Loans and to distribute the proceeds of
such Swing Loans and Revolving Loans to pay such amounts. Each Borrower
agrees that all such Swing Loans and Revolving Loans so made shall be
deemed to have been requested by it (irrespective of the satisfaction of
the conditions set forth in Section 3.2 (Conditions Precedent to Each Loan
and Letter of Credit), which conditions the Lenders irrevocably waive) and
directs that all proceeds thereof shall be used to pay such amounts.
SECTION 2.14 SPECIAL PROVISIONS GOVERNING EXTERNAL RATE LOANS
(a) Determination of External Rate
Each External Rate for each applicable period of determination shall
be determined by the applicable Disbursement Agent pursuant to the procedures
set forth in the definition of "Eurodollar Rate", "Australian Xxxx Rate" and
"Australian Short-Term Rate", as the case may be, and the definition of
"Reference Screen". The Disbursement Agent shall notify the Company of such
determination, and such Disbursement Agent's determination shall be presumed to
be correct absent manifest error and shall be binding on each Borrower.
(b) External Rate Unascertainable, Inadequate or Unfair
In the event that (i) the applicable Disbursement Agent determines
that adequate and fair means do not exist for ascertaining the applicable
interest rates by reference to which the External Rate then being determined is
to be fixed or (ii) the Requisite Lenders or Requisite Australian Dollar
Lenders, as the case may be, notify the Disbursement Agent for the applicable
Facility that the External Rate for any applicable determination period in such
Facility will not adequately reflect the cost to the Lenders in such Facility of
making or maintaining such Loans in the applicable currency for such Interest
Period or Borrowing, such Disbursement Agent shall forthwith so notify the
Company and such Lenders, whereupon each such External Rate Loan shall
automatically, on the date of such determination (or, in the case of a Fixed
Rate Loan, on the last day of the current Interest Period therefor) convert into
(or, in the case of an Australian Dollar Loan, be replaced by, in accordance
with Section 2.11(d) (Conversion and Continuation)) a Base Rate Loan denominated
in Dollars with an aggregate principal amount equal to the aggregate principal
amount of such Loan and the obligations of such Lenders to make such External
Rate Loans or, if applicable, to convert the applicable Variable Rate Loans into
such External Rate Loans shall be suspended until such Disbursement Agent shall
notify the Company that the Requisite Lenders have determined that the
circumstances causing such suspension no longer exist.
(c) Increased Costs
If at any time any Lender determines that the introduction of, or
any change in or in the interpretation of, any law, treaty or governmental rule,
regulation or order (other than any change by way of imposition or increase of
reserve requirements included in determining an External Rate) or the compliance
by such Lender with any guideline, request or directive from any central bank or
other Governmental Authority (whether or not having the force of law) (each a
"Change of Law"), shall have the effect of increasing the cost to such Lender of
agreeing to
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make or making, funding or maintaining any External Rate Loan to any Borrower,
then such Borrower shall from time to time upon demand by such Lender (with a
copy of such demand to the applicable Disbursement Agent), pay to such
Disbursement Agent for the account of such Lender additional amounts sufficient
to compensate such Lender for such increased cost. A certificate as to the
amount of such increased cost, submitted to such Borrower and the applicable
Disbursement Agent by such Lender and showing in reasonable detail the
calculation thereof, shall be conclusive and binding for all purposes, absent
manifest error; provided, however, that (i) notwithstanding the foregoing, no
Borrower shall be required to compensate any Lender or Issuer for any increased
cost incurred more than 180 days prior to the delivery of such certificate (such
period to be extended in the case of increased costs caused by a Change of Law
with retroactive effect to include the period of retroactive effect of such
Change of Law) and (ii) failure or delay on the part of any Lender or Issuer to
deliver such certificate shall not constitute a waiver of such Lender or
Issuer's right to demand compensation pursuant to this clause (c).
(d) Illegality
Notwithstanding any other provision of this Agreement, if any Lender
determines that the introduction of, or any change in or in the interpretation
of, any law, treaty or governmental rule, regulation or order after the date of
this Agreement shall make it unlawful, or any central bank or other Governmental
Authority shall assert that it is unlawful, for any Lender or its Applicable
Lending Office to make External Rate Loans in any currency or to continue to
fund or maintain External Rate Loans in any currency to any Borrower, then, on
notice thereof and demand therefor by such Lender to such Borrower through the
applicable Disbursement Agent, (i) the obligation of such Lender to make or, if
applicable, to continue such External Rate Loans in such currency to such
Borrower and, if applicable, to convert Variable Rate Loans of such Borrower
into such External Rate Loans in such currency shall be suspended, and each such
Lender shall make a Base Rate Loan in Dollars as part of any requested Borrowing
of such External Rate Loans in such currency by such Borrower and (ii) if such
External Rate Loans in such currency are then outstanding, such Borrower shall
(A) in the case of Eurodollar Rate Loans, immediately convert each such affected
Eurodollar Rate Loan into a Base Rate Loan in an aggregate principal amount
equal to the aggregate principal amount of such Eurodollar Rate Loan on the date
of such conversion and (B) in the case of an Australian Dollar Loan, immediately
pay such Australian Dollar Loan, together with interest accrued thereon. If, at
any time after a Lender gives notice under this Section 2.14(d) in respect of
External Rate Loans in any currency, such Lender determines that it may lawfully
make to such Borrower such External Rate Loans in such currency, such Lender
shall promptly give notice of that determination to such Borrower and the
applicable Disbursement Agent, and such Disbursement Agent shall promptly
transmit the notice to each other Lender. Such Borrower's right to request, and
such Lender's obligation, if any, to make to such Borrower such External Rate
Loans in such currency shall thereupon be restored.
(e) Breakage Costs
In addition to all amounts required to be paid by the Borrowers
pursuant to Section 2.10 (Interest), each Borrower shall compensate each Lender,
upon demand, for all losses, expenses and liabilities (including any loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund or maintain such Lender's Fixed Rate
Loans to such Borrower (whether or not due to any variation in the applicable
Fixed Rate) but excluding any loss of the Applicable Margin on the relevant
Loans) that such Lender may sustain (i) if for any reason (other than
principally by reason of such Lender being a Non-Funding Lender) a proposed
Borrowing by such Borrower of, conversion
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into or continuation of, such Fixed Rate Loans by such Borrower does not occur
on a date specified therefor in a Notice of Borrowing or a Notice of Conversion
or Continuation given by such Borrower or in a telephonic request by it for
borrowing or conversion or continuation or a successive Interest Period does not
commence after notice therefor is given pursuant to Section 2.11 (Conversion and
Continuation), (ii) if for any reason any Fixed Rate Loan of such Borrower is
prepaid (including mandatorily pursuant to Section 2.9 (Mandatory Prepayments)
or Section 7.13 (Control Accounts; Approved Deposit Accounts)) on a date that is
not the last day of the applicable Interest Period, (iii) as a consequence of a
required conversion to, or replacement by, a Base Rate Loan in Dollars of a
Fixed Rate Loan of such Borrower as a result of any of the events indicated in
clause (d) above or (iv) as a consequence of any failure by such Borrower to
repay Fixed Rate Loans when required by the terms hereof. The Lender making
demand for such compensation shall deliver to such Borrower concurrently with
such demand a written certificate as to such losses, expenses and liabilities,
showing in reasonable details the calculation thereof, and this statement shall
be conclusive as to the amount of compensation due to such Lender, absent
manifest error.
SECTION 2.15 CAPITAL ADEQUACY
If at any time any Lender determines that (a) the adoption of, or
any change in or in the interpretation of, any law, treaty or governmental rule,
regulation or order after the date of this Agreement regarding capital adequacy,
(b) compliance with any such law, treaty, rule, regulation or order or (c)
compliance with any guideline or request or directive from any central bank or
other Governmental Authority (whether or not having the force of law) shall have
the effect of reducing the rate of return on such Lender's (or any corporation
controlling such Lender's) capital as a consequence of its obligations hereunder
or under or in respect of any Letter of Credit to a level below that which such
Lender or such corporation could have achieved but for such adoption, change,
compliance or interpretation, then, upon demand from time to time by such Lender
(with a copy of such demand to the applicable Disbursement Agent), each Borrower
agrees to pay to the applicable Disbursement Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
reduction. A certificate as to such amounts submitted to the Company and the
Administrative Agent by such Lender shall be conclusive and binding for all
purposes absent manifest error.
SECTION 2.16 TAXES
(a) Any and all payments by any Loan Party under each Loan Document
shall be made free and clear of and without deduction for any and all
present or future taxes (including GST), levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender, Issuer and each Agent, (i) taxes
measured by its net income, and franchise taxes imposed on it, by (A) the
jurisdiction (or any political subdivision thereof) under the laws of
which such Lender, Issuer or Disbursement Agent (as the case may be) is
organized or (B) Australia by virtue of its having a permanent
establishment in Australia to which income under this Agreement is
attributable or by virtue of its Applicable Lending Office being located
in Australia, (ii) any United States withholding taxes payable with
respect to payments under the Loan Documents under laws (including any
statute, treaty or regulation) in effect on the Effective Date (or, in the
case of an Eligible Assignee, the date of the Assignment and Acceptance)
and applicable to such Lender, Issuer or Disbursement Agent, as the case
may be, but not excluding any United States withholding taxes payable as a
result of any change in such laws occurring after the Effective Date (or
the date of
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such Assignment and Acceptance), (iii) taxes measured by such Lender's,
Issuer's or Agent's net income and franchise taxes imposed on it as a
result of a present or former connection between such Lender, Issuer or
Agent and the jurisdiction of the Governmental Authority imposing such tax
or any taxing authority thereof or therein (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If any Taxes shall be required by law
to be deducted from or in respect of any sum payable under any Loan
Document to any Lender, Issuer or Agent (w) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 2.16) such Lender, Issuer or Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions
been made, provided, however, that no such increase shall be made pursuant
to this clause (w) to any sum payable to any Lender that (1) is an
Associate of any Australian Borrower to the extent the corresponding
required deduction is due to Australian Withholding Tax and occurs as a
result of such Lender being an Associate of any Australian Borrower or (2)
has failed to comply with the provisions of clause (f), (g) or (i) of this
Section 2.16 and such deduction would not have occurred but for such
failure to comply, (x) the relevant Loan Party shall make such deductions,
(y) the relevant Loan Party shall pay the full amount deducted to the
relevant taxing authority or other authority in accordance with applicable
law and (z) the relevant Loan Party shall deliver to the applicable
Disbursement Agent evidence of such payment.
(b) In addition, each Loan Party agrees to pay any present or future
stamp or documentary taxes (including Australian stamp duty) or any other
excise or property taxes, charges or similar levies of the United States
or any political subdivision thereof or any applicable foreign
jurisdiction, and all liabilities with respect thereto, in each case
arising from any payment made under any Loan Document or from the
execution, delivery or registration of, or otherwise with respect to, any
Loan Document (collectively, "Other Taxes"). Each Loan Party authorizes
the Administrative Agent, Australian Agent and Australian Collateral
Trustee to pay such Other Taxes in the name of such Loan Party and, for
such purpose, to submit a Notice of Borrowing for Revolving Credit Loans
in the currency such Other Taxes are owed (or, if not available, in
Dollars) (i) after the occurrence of any Event of Default and in respect
of any event occurring on the Effective Date and (ii) otherwise, with the
consent of such Loan Party, in the name of the Loan Party owing such Other
Taxes and in an aggregate principal amount not to exceed all amounts owing
in respect of such Other Taxes. If such a Notice of Borrowing is prepared
by any such Agent, the Revolving Credit Borrowing corresponding thereto
shall be made without regard to the conditions precedent set forth in
Section 3.2 (Conditions Precedent to Each Loan and Letter of Credit) and
the proceeds thereof shall be disbursed to the Disbursement Agent
requesting such Borrowing in the name of the Borrower and shall be used by
such Agent solely to pay such Other Taxes (any excess thereof to be used
to repay such Borrowing). The Administrative Agent may also make Swing
Loans and Protective Advances to pay such Other Taxes in the name of such
Loan Party, and each of the Administrative Agent, the Australian Agent and
the Australian Collateral Trustee may also pay such Other Taxes and seek
separate reimbursement of such Other Taxes hereunder as a Secured
Obligation.
(c) Each Loan Party shall, jointly and severally, indemnify each
Lender, Issuer and Agent for the full amount of Taxes and Other Taxes
(including any Taxes and
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Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.16) paid by such Lender, Issuer or Disbursement Agent (as the
case may be) and any liability (including for penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date such Lender,
Issuer or Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes by any Loan Party, the Company shall furnish to the applicable
Disbursement Agent, at its address referred to in Section 11.8 (Notices,
Etc.), the original or a certified copy of a receipt evidencing payment
thereof.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under the Guaranties, the agreements and
obligations of such Loan Party contained in this Section 2.16 shall
survive the payment in full of the Obligations.
(f) Prior to the Effective Date in the case of each Non-U.S. Lender
that is a signatory hereto, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of each other
Non-U.S. Lender and from time to time thereafter if requested by the
Company or the Administrative Agent, each Non-U.S. Lender that is entitled
at such time to an exemption from United States withholding tax, or that
is subject to such tax at a reduced rate under an applicable tax treaty,
shall provide the Administrative Agent and the Company with two completed
originals of each of the following: (i) Form W-8ECI (claiming exemption
from withholding because the income is effectively connected with a U.S.
trade or business) or any successor form, (ii) Form W-8BEN (claiming
exemption from, or a reduction of, withholding tax under an income tax
treaty) or any successor form, (iii) in the case of a Non-U.S. Lender
claiming exemption under Sections 871(h) or 881(c) of the Code, a Form
W-8BEN (claiming exemption from withholding under the portfolio interest
exemption) or any successor form or (iv) any other applicable form,
certificate or document prescribed by the IRS certifying as to such
Non-U.S. Lender's entitlement to such exemption from United States
withholding tax or reduced rate with respect to all payments to be made to
such Non-U.S. Lender under the Loan Documents. Unless the Company and the
Administrative Agent have received forms or other documents satisfactory
to them indicating that payments under any Loan Document to or for a
Non-U.S. Lender are not subject to United States withholding tax or are
subject to such tax at a rate reduced by an applicable tax treaty, the
Loan Parties and the Administrative Agent shall withhold amounts required
to be withheld by applicable Requirements of Law from such payments at the
applicable statutory rate.
(g) Prior to the Effective Date in the case of each Lender that is a
signatory hereto, and on the date of the Assignment and Acceptance
pursuant to which it becomes a Lender in the case of each other Lender and
from time to time thereafter if requested by the Company or any
Disbursement Agent, each Lender (other than an Australian Bank) shall, to
the extent such Lender is lawfully able to so, deliver to the Company duly
completed and executed forms and other documents, a blank copy of which
shall have been furnished to such Lender by the Company, and which are
required in Australia, under applicable Requirements of Law, to be
completed in order to obtain an exemption from, or reduced rate of,
deduction, payment or withholding of Taxes to which such Lender is
entitled under applicable Requirements of Law.
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(h) No Loan Party shall be required to indemnify any Lender or
Disbursement Agent under this Section 2.16 for any additional Taxes to the
extent that such Taxes or portion thereof would not have been withheld but
for the fact that the representation and warranty in clause (l)(i) below
is incorrect with respect to such Lender on the date it was made or the
failure of such Lender or Disbursement Agent, as the case may be, to
comply with the provisions of clause (f), (g) or (i) of this Section 2.16.
(i) Any Lender claiming any additional amounts payable pursuant to
this Section 2.16 shall use its reasonable best efforts (consistent with
its internal policy and any Requirement of Law) to change the jurisdiction
of its Applicable Lending Office if the making of such a change would
avoid the need for, or reduce the amount of, any such additional amounts
that would be payable or may thereafter accrue and would not, in the sole
determination of such Lender, be otherwise disadvantageous to such Lender.
(j) Each Lender, Issuer and Agent agrees that, in the absence of any
Event of Default, to the extent no Obligations are then due and payable by
any Borrower and subject to the provisions of Section 11.7 (Sharing of
Payments, Etc.), if and to the extent that any Borrower pays any amount
under this Section 2.16 in excess of its Obligations due and payable at
such time (including any gross-up therefor for any Taxes the Borrowers
have agreed to pay hereunder) and such Lender, Issuer or Agent receives
and retains the benefit of a refund of, or tax credit attributable to, all
or portion of such excess amount, such Lender, Issuer or Agent shall pay
to such Borrower an amount equal to such refund or credit so as to leave
such Lender, Issuer or Agent and the other Secured Parties hereunder,
after such payment, in no better or worse position that each would have
been in if payment of the relevant additional amount had not been made.
(k) Each of the Syndication Agent and the Administrative Agent
represents and warrants on the Effective Date, for the sole benefit of the
Australian Borrowers, severally and not jointly as follows:
(i) it, together with certain of its Affiliates, has conducted
a syndication of the Facility as described fully in the Commitment Letter,
dated May 19, 2005, between the Company, Citigroup Global Markets Inc.,
JPMorgan Chase Bank, N.A. and X.X. Xxxxxx Securities Inc.;
(ii) it has made offers for the sale of Australian Debentures
to at least 10 Persons which, to its knowledge, were not Associates of
each other, the Syndication Agent, the Australian Agent, the
Administrative Agent or the Australian Collateral Trustee, each of whom,
to its knowledge, carries on the business of providing finance or
investing or dealing in securities in the course or operating in financial
markets for the purposes of Section 128F(3)(a)(i) of the Australian Tax
Act; provided, however, that any of the Syndication Agent, Administrative
Agent, Australian Agent and Australian Collateral Trustee may have
received offers made in accordance herewith; and
(iii) it has obtained representations and warranties from each
Lender pursuant to clause (l) below that such Lender is not, on the date
of such representation and warranty, an Associate of any Loan Party.
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(l) Each Lender and Issuer represents and warrants on the Effective
Date (or on the date it becomes a Lender or Issuer pursuant to Section
11.2 (Assignments and Participations), for the benefit of the Borrowers,
the Administrative Agent and the Syndication Agent, that (i) it is not an
Associate of any Loan Party for purposes of Section 128F(9) of the
Australian Tax Act and (ii) an offer was made to it by the Administrative
Agent or the Syndication Agent to participate in the Facility and that
such Lender is carrying on the business of providing finance, or investing
or dealing in securities, in the course of operating in financial markets.
(m) Each of the Syndication Agent, the Administrative Agent, each
Lender and Issuer acknowledges and agrees, for the sole benefit of the
Australian Borrowers, and jointly but not severally undertakes, that it
shall use commercially reasonable efforts to assist the Australian
Borrower, at such Australian Borrower's sole cost and expense, to obtain
information necessary (and not reasonably feasible for such Australian
Borrower to obtain independently) to demonstrate that the "public offer"
test under and as defined in Section 128F of the Australian Tax Act has
been satisfied in relation to the Australian Debentures or that interest
payable under the Australian Debentures is otherwise exempt from
Australian Withholding Tax; provided, however, that any failure on the
part of any Lender to provide such information pursuant to this clause (m)
shall not result in any liability on the part of such Lender.
SECTION 2.17 SUBSTITUTION OF LENDERS
(a) In the event that (i)(A) any Lender makes a claim under Section
2.14(c) (Increased Costs) or 2.15 (Capital Adequacy), (B) it becomes
illegal for any Lender to continue to fund or make any External Rate Loan
and such Lender notifies the Company pursuant to Section 2.14(d)
(Illegality), (C) any Loan Party is required to make any payment pursuant
to Section 2.16 (Taxes) that is attributable to a particular Lender or (D)
any Lender becomes a Non-Funding Lender, (ii) in the case of clause (i)(A)
above, as a consequence of increased costs in respect of which such claim
is made, the effective rate of interest payable to such Lender under this
Agreement with respect to its Loans materially exceeds the effective
average annual rate of interest payable to the Requisite Lenders under
this Agreement and (iii) in the case of clauses (i)(A), (B) and (C) above,
Lenders holding at least 75% of the Revolving Credit Commitments (or,
after the termination of the Revolving Credit Commitments, the Revolving
Credit Outstandings) are not subject to such increased costs or
illegality, payment or proceedings (any such Lender, an "Affected
Lender"), the Company may substitute a Lender and, if reasonably
acceptable to the Administrative Agent, any other Eligible Assignee (a
"Substitute Institution") for such Affected Lender hereunder, after
delivery of a written notice (a "Substitution Notice") by the Company to
the Administrative Agent and the Affected Lender within a reasonable time
(in any case not to exceed 90 days) following the occurrence of any of the
events described in clause (i) above that the Company intends to make such
substitution; provided, however, that, if more than one Lender claims
increased costs, illegality or right to payment arising from the same act
or condition and such claims are received by the Company within 30 days of
each other, then the Company may substitute all, but not (except to the
extent the Company has already substituted one of such Affected Lenders
before the Company's receipt of the other Affected Lenders' claim) less
than all, Lenders making such claims.
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(b) If the Substitution Notice was properly issued under this
Section 2.17, (x) the Affected Lender shall sell, and the Substitute
Institution shall purchase, all rights and claims of such Affected Lender
under the Loan Documents (other than, except as provided below, the
Australian Dollar Sublimit of such Affected Lender then in effect) and the
Substitute Institution shall assume, and the Affected Lender shall be
relieved of, the Affected Lender's Revolving Credit Commitments, and all
other prior unperformed obligations of the Affected Lender under the Loan
Documents (other than in respect of any damages (other than exemplary or
punitive damages, to the extent permitted by applicable law) in respect of
any such unperformed obligations and other than, except as provided below,
in respect of the Australian Dollar Sublimit (if any) of the Affected
Lender) and (y) the Affected Lender shall be relieved of the Affected
Lender's Australian Dollar Sublimit and all other prior unperformed
obligations of the Affected Lender relating thereto under the Loan
Documents (other than in respect of any damages (other than exemplary or
punitive damages, to the extent permitted by applicable law) in respect of
any such unperformed obligations). Such purchase and sale (and the
corresponding assignment of all rights and claims hereunder) shall be
effective on (and not earlier than) the later of (i) the receipt by the
Affected Lender of the payment in full in cash of any Obligation owing to
it (including its Ratable Portion of the Revolving Credit Outstandings),
(ii) the receipt by the Administrative Agent of an agreement in form and
substance satisfactory to it and the Company whereby the Substitute
Institution shall agree to be bound by the terms hereof and (iii) the
payment in full to the Affected Lender in cash of all fees, unreimbursed
costs and expenses and indemnities accrued and unpaid through such
effective date. Upon the effectiveness of such sale, purchase and
assumption, the Substitute Institution shall become a "Lender" hereunder
for all purposes of this Agreement and, if applicable, having a Revolving
Credit Commitment in the amount of such Affected Lender's Revolving Credit
Commitment assumed by it (and, to the extent expressly assumed by such
Substitute Institution and to the extent such Substitute Institution shall
be (after becoming a Revolving Credit Lender) an Australian Dollar Lender
hereunder, an Australian Dollar Sublimit in the amount of such Affected
Lender's Australian Dollar Sublimit then in effect) and such Revolving
Credit Commitment and the Australian Dollar Sublimit of the Affected
Lender shall be terminated; provided, however, that all indemnities under
the Loan Documents shall continue in favor of such Affected Lender. If
such Affected Lender was an Australian Dollar Lender and the Substitute
Institution does not assume the Australian Dollar Sublimit of the Affected
Lender, the Affected Lender's Australian Dollar Ratable Portion of the
Australian Dollar Outstandings shall be replaced by, in accordance with
Section 2.11(d) (Conversion and Continuation), Base Rate Loans made in
Dollars as provided in Section 2.11 (Conversion and Continuation) and the
proceeds of the Revolving Dollar Loans made to effect such conversion
shall be given in their entirety to the Affected Lender and not, as may be
otherwise provided hereunder, to the Australian Dollar Lenders according
to their Australian Dollar Ratable Portions.
(c) Each Lender agrees that, if it becomes an Affected Lender and
its rights and claims are assigned hereunder to a Substitute Institution
pursuant to this Section 2.17, it shall execute and deliver to the
Administrative Agent an Assignment and Acceptance to evidence such
assignment, together with any Revolving Credit Note (if such Loans are
evidenced by a Revolving Credit Note) evidencing the Loans subject to such
Assignment and Acceptance; provided, however, that the failure of any
Affected Lender to execute an Assignment and Acceptance shall not render
such assignment invalid.
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ARTICLE III
CONDITIONS TO LOANS AND LETTERS OF CREDIT
SECTION 3.1 CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AGREEMENT
This Agreement, including the obligation of each Lender to make the
Loans requested to be made by it and the obligation of each Issuer to Issue
Letters of Credit hereunder, shall not become effective until the date (the
"Effective Date") on which each of the following conditions precedent is
satisfied or duly waived in accordance with Section 11.1 (Amendments, Waivers,
Etc.):
(a) Certain Documents. The Administrative Agent shall have received
on or prior to the Effective Date (and, to the extent any Borrowing of any
Fixed Rate Loans is requested to be made on the Effective Date, in respect
of the Notice of Borrowing for such Fixed Rate Loans, at least two
Business Days prior to the Effective Date) each of the following, each
dated the Effective Date unless otherwise indicated or agreed to by the
Administrative Agent, in form and substance satisfactory to the
Administrative Agent and in sufficient copies for each Lender:
(i) this Agreement, duly executed and delivered by each
Borrower and, for the account of each Lender requesting the same, a
Revolving Credit Note or Revolving Credit Notes of each applicable
Borrower conforming to the requirements set forth herein;
(ii) an Affirmation of Obligations, duly executed by the
Borrowers and each Guarantor;
(iii) (A) amendments or modifications to the Mortgages on
terms and conditions satisfactory to the Administrative Agent to the
extent necessary to assure the Lenders that all applicable Secured
Obligations are secured by the Mortgages and (B) appropriate title
endorsements obtained from the relevant title company to the existing
title policies to the extent necessary or desirable to assure the Lenders
that the existing title policies are in full force and effect after giving
effect to the amendments to the Existing Credit Agreement contained in
this Agreement and to the amendments or modifications to the Mortgages;
(iv) amendments or modifications to the Australian Collateral
Documents or other Australian Collateral Documents as may be requested by
the Administrative Agent;
(v) a favorable opinion of (A) Xxxxxx & Xxxxxx L.L.P., counsel
to the Loan Parties, in substantially the form of Exhibit G-1 (Form of
Opinion of U.S. Counsel for the Loan Parties), (B) Allens Xxxxxx Xxxxxxxx,
counsel to the Loan Parties in Australia, in substantially the form of
Exhibit G-2 (Form of Opinion of Australian Counsel for the Loan Parties),
(C) counsel to the Loan Parties in Delaware, Colorado and Utah, in each
case addressed to the Administrative Agent and the Lenders and addressing
such other matters as any Lender through the Administrative Agent may
reasonably request and (D) counsel to the Administrative Agent as to the
enforceability of this
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Agreement and the other Loan Documents (including any Loan Document to be
executed on the Effective Date) on the Effective Date after giving effect
to this Agreement;
(vi) a copy of each Related Document entered into after the
Purchase Date;
(vii) a certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying (A) the names and true signatures of each
officer of such Loan Party that has been authorized to execute and deliver
any Loan Document or other document required hereunder to be executed and
delivered by or on behalf of such Loan Party, (B) the by-laws (or
equivalent Constituent Document) of such Loan Party as in effect on the
date of such certification, (C) the resolutions of such Loan Party's Board
of Directors (or equivalent governing body) approving and authorizing the
execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party and acknowledging that such Loan
Documents will benefit such Loan Party and (D) that attached thereto are
complete and correct copies of the certificate of incorporation (or
equivalent Constituent Document) of such Loan Party certified by the
appropriate Governmental Authority, together with related good standing
certificates in the jurisdiction of organization of such Loan Party dated
as of a recent date;
(viii) a certificate of a Responsible Officer of each Borrower
to the effect that (A) the condition set forth in Section 3.2(b)
(Conditions Precedent to Each Loan and Letter of Credit) has been
satisfied and (B) no litigation not listed on Schedule 4.7 (Litigation)
shall have been commenced against any Loan Party or any of its
Subsidiaries that would have a Material Adverse Effect;
(ix) evidence satisfactory to the Administrative Agent that
the insurance policies required by Section 7.5 (Maintenance of Insurance)
and any Collateral Document are in full force and effect, together with,
unless otherwise agreed by the Administrative Agent, endorsements naming
the Administrative Agent, on behalf of the Secured Parties, as an
additional insured or loss payee under all insurance policies to be
maintained with respect to the properties of Holdings, the Company and its
Subsidiaries; and
(x) such other certificates, documents, agreements and
information respecting any Loan Party as any Lender through the
Administrative Agent may reasonably request.
(b) Landlord Waivers and Bailee's Letters. The Administrative Agent
shall have received such Landlord Waivers and Bailee's Letters as the
Company shall have obtained on or before the Effective Date through its
commercially reasonable efforts.
(c) Payment of Existing Obligations. The Term Loans and other
non-contingent Obligations outstanding under the Existing Credit Agreement
shall have been paid in full as and to the extent set forth in Section
11.10 (Amendment and Restatement; Binding Effect).
(d) Fee and Expenses Paid. There shall have been paid to the
Administrative Agent, for the account of the Administrative Agent, the
Australian Agent, the Australian Collateral Trustee and the Lenders and
Issuers, as applicable, all fees and
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expenses (including reasonable fees and expenses of counsel) due and
payable on or before the Effective Date (including all such fees described
in the Fee Letter) and submitted in writing to the Company prior to such
date.
(e) The Effective Date shall occur on or before June 15, 2005.
SECTION 3.2 CONDITIONS PRECEDENT TO EACH LOAN AND LETTER OF CREDIT
The obligation of each Lender on any date (including the Effective
Date) to make any Loan and of each Issuer on any date (including the Effective
Date) to Issue any Letter of Credit is subject to the satisfaction of each of
the following conditions precedent:
(a) Request for Borrowing or Issuance of Letter of Credit. With
respect to any Loan, the Administrative Agent shall have received a duly
executed Notice of Borrowing (or, in the case of Swing Loans, a duly
executed Swing Loan Request), and, with respect to any Letter of Credit,
the Administrative Agent and the Issuer thereof shall have received a duly
executed Letter of Credit Request.
(b) Representations and Warranties; No Defaults. The following
statements shall be true on the date of such Loan or Issuance, both before
and after giving effect thereto and, in the case of any Loan, to the
application of the proceeds therefrom:
(i) the representations and warranties set forth in Article IV
(Representations and Warranties) and in the other Loan Documents shall be
true and correct in all material respects on and as of any such date with
the same effect as though made on and as of such date, except to the
extent such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties shall have been
true and correct in all material respects as of such earlier date; and
(ii) no Default or Event of Default shall have occurred and be
continuing.
(c) Borrowing Base. The Borrowers shall have delivered the Borrowing
Base Certificate required to be delivered by Section 6.12(a) (Borrowing
Bases Determination). After giving effect to the Loans or Letters of
Credit requested to be made or Issued on any such date and the use of
proceeds thereof, (i) the Revolving Credit Outstandings at such time shall
not exceed the Aggregate Maximum Credit at such time and (ii) for each
Borrower, the Revolving Credit Outstandings of such Borrower shall not
exceed the Maximum Available Borrowing Base of such Borrower.
(d) No Legal Impediments. The making of the Loans or the Issuance of
such Letter of Credit on such date does not violate any Requirement of Law
on the date of or immediately following such Loan or Issuance of such
Letter of Credit and is not enjoined, temporarily, preliminarily or
permanently.
Each submission by any Borrower to any Disbursement Agent of a Notice of
Borrowing or a Swing Loan Request and the acceptance by such Borrower of the
proceeds of each Loan requested therein, and each submission by any Borrower to
any Issuer of a Letter of Credit Request, and the Issuance of each Letter of
Credit requested therein, shall be deemed to constitute
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a representation and warranty by such Borrower as to the matters specified in
clause (b) above on the date of the making of such Loan or the Issuance of such
Letter of Credit.
SECTION 3.3 DETERMINATIONS OF INITIAL BORROWING CONDITIONS
For purposes of determining compliance with the conditions specified
in Section 3.1 (Conditions Precedent to the Effectiveness of this Agreement),
each Lender shall be deemed to have consented to, approved, accepted or be
satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
prior to the initial Borrowing, borrowing of Swing Loans or Issuance hereunder
specifying its objection thereto and such Lender shall not have made available
to the applicable Disbursement Agent such Lender's Ratable Portion (or, as the
case may be, Australian Dollar Ratable Portion) of such Borrowing or Swing
Loans.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the Issuers and the Agents to enter into this
Agreement, each of Holdings and the Company (and, insofar as the following
relates to Australian Holdings or any of its Subsidiaries, each Australian
Borrower) represents and warrants each of the following to the Lenders, the
Issuers and the Agents on and as of the Effective Date and after giving effect
to the making of the Loans and the other financial accommodations on the
Effective Date and on and as of each date as required by Section 3.2(b)(i)
(Conditions Precedent to Each Loan and Letter of Credit):
SECTION 4.1 CORPORATE EXISTENCE; COMPLIANCE WITH LAW
Each of Holdings, the Company and the Company's Subsidiaries (a) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) is duly qualified to do business and in
good standing under the laws of each jurisdiction where such qualification is
necessary (including, with respect to the Australian Subsidiaries, under the
laws of the jurisdiction of its principal place of business), except where the
failure to be so qualified or in good standing would not, in the aggregate, have
a Material Adverse Effect, (c) has all requisite power and authority and the
legal right to own, pledge, mortgage and operate its properties, to lease the
property it operates under lease and to conduct its business as now or currently
proposed to be conducted, (d) is in compliance with its Constituent Documents,
(e) is in compliance with all applicable Requirements of Law except where the
failure to be in compliance would not, in the aggregate, have a Material Adverse
Effect and (f) has all necessary Permits from or by, has made all necessary
filings with, and has given all necessary notices to, each Governmental
Authority having jurisdiction, to the extent required for such ownership,
operation and conduct, except for Permits or filings that can be obtained or
made by the taking of ministerial action to secure the grant or transfer thereof
or the failure to obtain or make would not, in the aggregate, have a Material
Adverse Effect.
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SECTION 4.2 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS
(a) The execution, delivery and performance by each Loan Party of
the Loan Documents to which it is a party and the consummation of the
transactions contemplated thereby:
(i) are within such Loan Party's corporate, limited liability
company, partnership or other powers;
(ii) have been or, at the time of delivery thereof pursuant to
Article III (Conditions To Loans And Letters Of Credit) will have been
duly authorized by all necessary action, including the consent of
shareholders, partners and members where required;
(iii) do not and will not (A) contravene such Loan Party's or
any of its Subsidiaries' respective Constituent Documents, (B) violate in
any material respect any other Requirement of Law applicable to such Loan
Party (including, as applicable, Regulations T, U and X of the Federal
Reserve Board), or any order or decree of any Governmental Authority or
arbitrator applicable to such Loan Party, (C) in any material respect,
result in the breach of, or constitute a default under, or result in or
permit the termination or acceleration of, any Related Document or any
other material Contractual Obligation of such Loan Party or any of its
Subsidiaries or (D) result in the creation or imposition of any Lien upon
any property of such Loan Party or any of its Subsidiaries, other than
pursuant to the Collateral Documents; and
(iv) do not require the consent of, authorization by, approval
of, notice to, or filing or registration with, any Governmental Authority
or any other Person, other than those listed on Schedule 4.2 (Consents)
and that have been or will be, prior to the Effective Date, obtained or
made, copies of which have been or will be delivered to the Administrative
Agent pursuant to Section 3.1 (Conditions Precedent to the Effectiveness
of this Agreement), and each of which on the Effective Date will be in
full force and effect and, with respect to the Collateral, filings
required to perfect the Liens created by the Collateral Documents.
(b) This Agreement has been, and each of the other Loan Documents
will have been upon delivery thereof pursuant to the terms of this
Agreement, duly executed and delivered by each Loan Party party thereto.
This Agreement is, and the other Loan Documents will be, when delivered
hereunder, the legal, valid and binding obligation of each Loan Party
party thereto, enforceable against such Loan Party in accordance with its
terms, except that such enforceability may be limited by general equitable
principles (whether enforcement is sought by proceedings in equity or at
law) and by applicable bankruptcy, insolvency, moratorium and similar laws
affecting the enforcement of creditors' rights generally.
SECTION 4.3 OWNERSHIP OF COMPANY; SUBSIDIARIES
(a) As of the Effective Date, the authorized capital stock of the
Company consists of 2,200 shares of common stock, $0.01 par value per
share, of which 1,192 shares are issued and outstanding. All of the
outstanding capital stock of the Company has been validly issued, is fully
paid and non-assessable and is owned beneficially and of
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AMENDED AND RESTATED CREDIT AGREEMENT
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record by Holdings, free and clear of all Liens other than the Lien in
favor of the Secured Parties created by the Pledge and Security Agreement.
No Stock of the Company is subject to any option, warrant, right of
conversion or purchase or any similar right. There are no agreements or
understandings to which the Company is a party with respect to the voting,
sale or transfer of any shares of Stock of the Company or any agreement
restricting the transfer or hypothecation of any such shares.
(b) Set forth on Schedule 4.3 (Ownership of Subsidiaries) is a
complete and accurate list showing, as of the Effective Date, all
Subsidiaries of the Company and, as to each such Subsidiary, the
jurisdiction of its organization, the number of shares of each class of
Stock authorized (if applicable), the number outstanding on the Effective
Date and the number and percentage of the outstanding shares of each such
class owned (directly or indirectly) by the Company. No Stock of any
Subsidiary of the Company is subject to any outstanding option, warrant,
right of conversion or purchase of any similar right. All of the
outstanding Stock of each Subsidiary of the Company owned (directly or
indirectly) by the Company has been validly issued, is fully paid and
non-assessable (to the extent applicable) and is owned by the Company or a
Subsidiary of the Company, free and clear of all Liens (other than the
Lien in favor of the Secured Parties created pursuant to the Collateral
Documents), options, warrants, rights of conversion or purchase or any
similar rights. Neither the Company nor any such Subsidiary is a party to,
or has knowledge of, any agreement restricting the transfer or
hypothecation of any Stock of any such Subsidiary, other than the Loan
Documents. Neither Holdings nor the Company owns or holds, directly or
indirectly, any Stock of any Person other than such Subsidiaries and
Investments permitted by Section 8.3 (Investments) and, in the case of
Holdings, the Stock of the Company.
SECTION 4.4 FINANCIAL STATEMENTS
(a) The Consolidated balance sheet of the Company as at May 30,
2004, and the related Consolidated statements of earnings, changes in
stockholders' equity and cash flows of the Company for the Fiscal Year
then ended, certified by the Company's Accountants, and the Consolidated
balance sheet of the Company as at March 27, 2005 and the related
Consolidated statements of earnings, changes in stockholders' equity and
cash flows of the Company for the ten months then ended, copies of which
have been furnished to each Lender, fairly present (subject, in the case
of such balance sheet as at March 27, 2005, and such statements of
earnings, changes in stockholders' equity and cash flows for the ten
months then ended, to the absence of footnote disclosure and normal
recurring year-end audit adjustments) the Consolidated financial condition
of the Company as at such dates and the Consolidated results of the
operations of the Company for the period ended on such dates, all in
conformity with GAAP.
(b) Neither the Company nor any of its Subsidiaries has any material
obligation, contingent liability or liability for taxes, long-term leases
or unusual forward or long-term commitment that is not reflected in the
Financial Statements referred to in clause (a) above or in the notes
thereto and not otherwise permitted by this Agreement.
(c) The Projections have been prepared by the Company in light of
the past operations of the business of the Company, and reflect
projections for a six-year period on a quarterly basis for the first year
and on a year by year basis thereafter. The Projections are based upon
estimates and assumptions stated therein, all of which the
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Company believes to be reasonable in light of current conditions and
current facts known to the Company and, as of the Effective Date, reflect
the Company's good faith and reasonable estimates of the future financial
performance of the Company and its Subsidiaries and of the other
information projected therein for the periods set forth therein (it being
understood that such Projections are subject to significant uncertainties
and contingencies, many of which are beyond the control of the Company and
its Subsidiaries and that no assurance can be given that such projections
will be met).
SECTION 4.5 MATERIAL ADVERSE CHANGE
Since May 30, 2004, there has been no Material Adverse Change and
there have been no events or developments that, in the aggregate, have had a
Material Adverse Effect.
SECTION 4.6 SOLVENCY
After giving effect to (a) the Loans, Letter of Credit Obligations
and advances under the Australian Intercompany Credit Agreement to be made or
extended on the Effective Date or such other date as Loans and Letter of Credit
Obligations requested hereunder are made or extended, (b) the disbursement of
the proceeds of such Loans pursuant to the instructions of the Borrowers, (c)
the repayment in full of the "Terms Loans" and "Revolving Loans" outstanding
under and as defined in the Existing Credit Agreement as and to the extent set
forth in Section 11.10 (Amendment and Restatement; Binding Effect) and (d) the
payment and accrual of all transaction costs in connection with the foregoing,
each Loan Party is Solvent.
SECTION 4.7 LITIGATION
Except as set forth on Schedule 4.7 (Litigation), there are no
pending or, to the knowledge of any Borrower, threatened actions, investigations
or proceedings affecting Holdings, the Company or any of the Company's
Subsidiaries before any court, Governmental Authority or arbitrator other than
those that, in the aggregate, would not have a Material Adverse Effect. The
performance of any action by any Loan Party required or contemplated by any Loan
Document or any Related Document is not restrained or enjoined (either
temporarily, preliminarily or permanently).
SECTION 4.8 TAXES
(a) Except as set forth on Schedule 4.8 (Taxes), all federal, state,
local and foreign income and franchise and other material tax returns,
reports and statements (collectively, the "Tax Returns") required to be
filed by the Company or any of its Tax Affiliates have been filed with the
appropriate Governmental Authorities in all jurisdictions in which such
Tax Returns are required to be filed, all such Tax Returns are true and
correct in all material respects, and all taxes, charges and other
impositions reflected therein or otherwise due and payable have been paid
prior to the date on which any fine, penalty, interest, late charge or
loss may be added thereto for non-payment thereof except where contested
in good faith and by appropriate proceedings if adequate reserves therefor
have been established on the books of the Company or such Tax Affiliate in
conformity with GAAP. Except as set forth on Schedule 4.8 (Taxes), as of
the Effective Date, no Tax Return is under audit or examination by any
Governmental Authority and no notice of such an audit or examination or
any assertion of any claim for Taxes has been given or made by any
Governmental Authority. Proper and accurate
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amounts have been withheld by the Company and each of its Tax Affiliates
from their respective employees for all periods in full and complete
compliance with the tax, social security and unemployment withholding
provisions of applicable Requirements of Law and such withholdings have
been timely paid to the respective Governmental Authorities.
(b) Except as set forth on Schedule 4.8 (Taxes), none of the Company
or any of its Tax Affiliates has (i) as of the Effective Date, executed or
filed with the IRS or any other Governmental Authority any agreement or
other document extending, or having the effect of extending, the period
for the filing of any Tax Return or the assessment or collection of any
charges, (ii) incurred any obligation under any tax sharing agreement or
arrangement other than those of which the Administrative Agent has
received a copy prior to the Purchase Date or (iii) been a member of an
affiliated, combined or unitary group other than the group of which the
Company (or its Tax Affiliate) is the common parent.
SECTION 4.9 FULL DISCLOSURE
(a) The information prepared or furnished by or on behalf of the
Company in connection with this Agreement or the Related Documents or the
consummation of the transactions contemplated hereunder and thereunder
taken as a whole, including the information contained in the Disclosure
Documents, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements contained
therein or herein not misleading in light of the circumstances under which
such statements were or are made (it being understood that all projected
financial information contained therein is subject to significant
uncertainties and contingencies, many of which are beyond the control of
the Company and its Subsidiaries and that no assurance can be given that
such projected financial information will be met). As of the Effective
Date, all facts known to any Borrower and material to an understanding of
the financial condition, business, properties or prospects of the Company
and its Subsidiaries taken as one enterprise have been disclosed to the
Lenders.
(b) The Company has delivered to each Lender a true, complete and
correct copy of each Disclosure Document. Each Disclosure Document
complies as to form in all material respects with all applicable
requirements of all applicable state and Federal securities laws.
SECTION 4.10 MARGIN REGULATIONS
No part of the proceeds of any Borrowings or borrowings of Swing
Loans will be used, whether directly or indirectly, for any purpose that entails
a violation of Regulations T, U, X of the Federal Reserve Board.
SECTION 4.11 NO BURDENSOME RESTRICTIONS; NO DEFAULTS
(a) None of Holdings or any of its Subsidiaries (i) is a party to
any Contractual Obligation the compliance with one or more of which would
have, in the aggregate, a Material Adverse Effect or the performance of
which by any thereof, either unconditionally or upon the happening of an
event, would result in the creation of a Lien (other than a Lien permitted
under Section 8.2 (Liens, Etc.)) on the assets of any thereof
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or (ii) is subject to one or more charter or corporate restrictions that
would, in the aggregate, have a Material Adverse Effect.
(b) None of Holdings or any of its Subsidiaries is in default under
or with respect to any Contractual Obligation owed by it and, to the
knowledge of each Borrower, no other party is in default under or with
respect to any Contractual Obligation owed to any Loan Party or to any
Subsidiary of any Loan Party, in each case other than those defaults that,
in the aggregate, would not have a Material Adverse Effect.
(c) No Default or Event of Default has occurred and is continuing.
(d) To the knowledge of each Borrower, there are no Requirements of
Law applicable to any Loan Party or any Subsidiary of any Loan Party the
compliance with which by such Loan Party or such Subsidiary, as the case
may be, would, in the aggregate, have a Material Adverse Effect.
SECTION 4.12 INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT
None of the Company or any of its Subsidiaries is (a) an "investment
company" or a company "controlled by" an "investment company," within the
meaning of the Investment Company Act of 1940, as amended or (b) a "holding
company," or an "affiliate" or a "holding company" or a "subsidiary company" of
a "holding company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
SECTION 4.13 USE OF PROCEEDS
The proceeds of the Loans, advances under the Australian
Intercompany Credit Agreement and the Letters of Credit are being used by each
Borrower solely (a) to repay in full the "Term Loans" and "Revolving Loans"
outstanding under and as defined in the Existing Credit Agreement as and to the
extent set forth in Section 11.10 (Amendment and Restatement; Binding Effect),
(b) for the payment of transaction costs, fees and expenses incurred in
connection with this Agreement and the transactions contemplated hereby and (c)
for working capital and general corporate purposes (including to make Permitted
Acquisitions).
SECTION 4.14 RANKING
(a) The Loans and other Obligations payable hereunder and under the
Revolving Credit Notes (if any) and the other Loan Documents are direct,
unconditional and unsubordinated general obligations of the Borrowers, are
entitled to the benefit and security of the Collateral as provided herein,
and rank, and will at all times rank, at least pari passu in right of
payment with all other present and future outstanding unsecured and
unsubordinated Indebtedness of the Loan Parties, other than statutorily
preferred obligations; provided, however, that nothing contained in this
Section 4.14 (but subject to other provisions hereof) shall obligate the
Lenders to share Collateral with any other creditor of any Borrower or
obligate any other creditor of any Borrower to share its collateral with
the Lenders and unsubordinated creditors of such Borrower.
(b) The Secured Obligations constitute "Senior Debt" as defined in
the Subordinated Notes Indenture and under any term of similar application
defined in any Permitted Unsecured Debt Document with respect to any
Additional Unsecured
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Indebtedness that is junior to the Senior Notes. No Indebtedness (other
than the Secured Obligations and the Senior Notes) has been designated as
"Designated Senior Debt" under the Subordinated Notes Indenture.
SECTION 4.15 INSURANCE
All policies of insurance (including all self insurance
arrangements) of any kind or nature of the Company or any of its Subsidiaries,
including policies of life, fire, theft, product liability, public liability,
property damage, other casualty, employee fidelity, workers' compensation and
employee health and welfare insurance, are in full force and effect and are of a
nature and provide such coverage as is sufficient and as is customarily carried
by businesses of the size and character of such Person.
SECTION 4.16 LABOR MATTERS
(a) There are no strikes, work stoppages, slowdowns or lockouts
pending or threatened against or involving the Company or any of its
Subsidiaries, other than those that, in the aggregate, would not have a
Material Adverse Effect.
(b) There are no unfair labor practices, labor grievances, labor
complaints or labor arbitrations pending, or, to each Borrower's
knowledge, threatened, against or involving the Company or any of its
Subsidiaries, other than those that, in the aggregate, would not have a
Material Adverse Effect.
(c) Except as set forth on Schedule 4.16 (Labor Matters), as of the
Effective Date, there is no collective bargaining agreement covering any
employee of the Company or its Subsidiaries.
(d) Schedule 4.16 (Labor Matters) sets forth, as of the date hereof,
all material consulting agreements, executive employment agreements,
executive compensation plans, deferred compensation agreements, employee
stock purchase and stock option plans and severance plans of the Company
and any of its Subsidiaries.
SECTION 4.17 COMPENSATION PLANS; ERISA
(a) Schedule 4.17 (List of Plans) separately identifies as of the
date hereof all Multiemployer Plans, all Compensation Plans and all of the
employee pension benefit plans within the meaning of Section 3(2) of ERISA
to which Holdings, the Company or any of the Company's Subsidiaries has
any obligation or liability, contingent or otherwise. On the Effective
Date, none of the Company, any of its Subsidiaries or any ERISA Affiliate
has any obligation or liability, contingent or otherwise, with respect to
any Title IV Plan.
(b) Each employee benefit plan of Holdings or any of its
Subsidiaries intended to qualify under Section 401 of the Code does so
qualify, and any trust created thereunder is exempt from tax under the
provisions of Section 501 of the Code, except where such failures, in the
aggregate, would not have a Material Adverse Effect.
(c) Each Compensation Plan and each employee benefit plan of
Holdings or any of its Subsidiaries is in compliance in all material
respects with applicable provisions
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of ERISA, the Code and other Requirements of Law except for
non-compliances that, in the aggregate, would not have a Material Adverse
Effect.
(d) There has been no, nor is there reasonably expected to occur,
any ERISA Event other than those that, in the aggregate, would not have a
Material Adverse Effect.
(e) None of Holdings, any of its Subsidiaries or any ERISA Affiliate
would have any Withdrawal Liability, either individually or in the
aggregate, as a result of a complete withdrawal as of the date hereof from
any Multiemployer Plan in excess of $10,000,000.
(f) None of Holdings, the Borrowers and their respective
Subsidiaries have taken any action (including any steps to terminate any
Compensation Plan), nor made any omission (including any failure to make
any required contributions to any Compensation Plan), with respect to any
Compensation Plan, in either case that could reasonably be expected to (i)
result in liabilities for Holdings, the Company or any of the Company's
Subsidiaries the Dollar Equivalent of which shall be in excess of
$10,000,000 in the aggregate, (ii) give rise to a Lien over any of the
properties, assets or revenues of Holdings, the Company or any of the
Company's Subsidiaries or (iii) result in a Material Adverse Effect.
SECTION 4.18 ENVIRONMENTAL MATTERS
Except as disclosed in the Environmental Reports or on Schedule 4.18
(Environmental Matters):
(a) the operations of the Company and each of its Subsidiaries have
been and, as of the date hereof, are in compliance with all Environmental
Laws, including obtaining and complying with all required environmental,
health and safety Permits, other than non-compliances that, in the
aggregate, would not have a Material Adverse Effect;
(b) none of the Company or any of its Subsidiaries or any Real
Property currently or, to the knowledge of each Borrower, previously
owned, operated or leased by or for the Company or any of its Subsidiaries
is subject to any pending or, to the knowledge of each Borrower,
threatened, claim, order, agreement, notice of violation, notice of
potential liability or is the subject of any pending or threatened
proceeding or governmental investigation under or pursuant to
Environmental Laws other than those that, in the aggregate, would not have
a Material Adverse Effect;
(c) none of the Real Property owned or operated by the Company or
any of its Subsidiaries is a treatment, storage or disposal facility
requiring a Permit under the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901 et seq., the regulations thereunder or any state
analog, in each case to the extent applicable;
(d) as of the date hereof, there are no facts, circumstances or
conditions arising out of or relating to the operations or ownership of
the Company or any of its Subsidiaries or of Real Property owned, operated
or leased by the Company or any of its Subsidiaries that are not
specifically included in the financial information furnished to the
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Lenders other than those that, in the aggregate, would not have a Material
Adverse Effect;
(e) as of the date hereof, no Environmental Lien has attached to any
property of the Company or any of its Subsidiaries and, to the knowledge
of each Borrower, no facts, circumstances or conditions exist that could
reasonably be expected to result in any such Lien attaching to any such
property; and
(f) as of the Effective Date, the Company and each of its
Subsidiaries have provided the Lenders with copies of all material
environmental audits, studies, assessments, inspections, investigations or
other environmental reports relating to the operations of the Company or
any of its Subsidiaries or any Real Property of any of them that are in
the possession, custody or control of the Company or any of its
Subsidiaries.
SECTION 4.19 INTELLECTUAL PROPERTY
Except as set forth on Schedule 4.19 (Intellectual Property), the
Company and its Subsidiaries own or license or otherwise have the right to use
all licenses, permits, patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, copyright applications,
Internet domain names, franchises, authorizations and other intellectual
property rights (including all Intellectual Property as defined in the Pledge
and Security Agreement) that are necessary for the operations of their
respective businesses, including all trade names associated with any private
label brands of the Company or any of its Subsidiaries. Except as set forth on
Schedule 4.19 (Intellectual Property), to each Borrower's knowledge, no license,
permit, patents, patent application, trademark, trademark application, service
xxxx, trade name, copyright, copyright application, Internet domain names,
franchise, authorization, other intellectual property rights (including all
material Intellectual Property as defined in the Pledge and Security Agreement),
slogan or other advertising device, product, process, method, substance, part or
component, or other material now employed, by the Company or any of its
Subsidiaries materially infringes upon or conflicts with any rights owned by any
other Person, and no claim or litigation regarding any of the foregoing is
pending or threatened.
SECTION 4.20 TITLE; REAL PROPERTY
(a) Each of the Company and its Subsidiaries has good and marketable
or indefeasible title to, or valid leasehold interests in, all Real
Property set forth on Schedule 4.20 (Real Property) and good title to all
personal property, in each case that is purported to be owned or leased by
it, including those reflected on the most recent Financial Statements
delivered by the Company, and none of such properties and assets is
subject to any Lien, except Liens permitted under Section 8.2 (Liens,
Etc.). The Company and its Subsidiaries have received all deeds,
assignments, waivers, consents, non-disturbance and recognition or similar
agreements, bills of sale and other documents and have duly effected all
recordings, filings and other actions necessary to establish, protect and
perfect the Company's and its Subsidiaries' right, title and interest in
and to all such property.
(b) Set forth on Schedule 4.20 (Real Property) is a complete and
accurate list of all material Real Property leased or owned by each Loan
Party and its Subsidiaries and showing, as of the Effective Date, the
current street address (including, where applicable, county, state and
other relevant jurisdictions) and record owner (or, if applicable, lessee)
thereof.
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(c) No Loan Party nor any of its Subsidiaries owns or holds, or is
obligated under or a party to, any lease, option, right of first refusal
or other contractual right to purchase, acquire, sell, assign, dispose of
or lease any material Real Property of such Loan Party or any of its
Subsidiaries, except for such leases and with respect to such purchases,
acquisitions, sales and leases permitted to be incurred hereunder.
(d) No portion of any Real Property of any Loan Party or any of its
Subsidiaries subject to a Mortgage is located in a special flood hazard
area as designated by any federal Governmental Authority.
(e) All Permits required to have been issued or appropriate to
enable all Real Property of the Company or any of its Subsidiaries to be
lawfully occupied and used for all of the purposes for which they are
currently occupied and used have been lawfully issued and are in full
force and effect, other than those that, in the aggregate, would not have
a Material Adverse Effect.
(f) None of the Company or any of its Subsidiaries has received any
written notice of any pending, threatened or contemplated condemnation
proceeding affecting any Real Property of the Company or any of its
Subsidiaries or any part thereof, except those that, in the aggregate,
would not have a Material Adverse Effect.
SECTION 4.21 RELATED DOCUMENTS
(a) The execution, delivery and performance by each Loan Party of
the Related Documents to which it is a party and the consummation of the
transactions contemplated thereby by such Loan Party:
(i) are within such Loan Party's respective corporate, limited
liability company, partnership or other powers;
(ii) have been duly authorized by all necessary corporate or
other action, including the consent of stockholders where required;
(iii) do not and will not (A) contravene or violate any Loan
Party's or any of its Subsidiaries' respective Constituent Documents, (B)
in any material respect, violate any other Requirement of Law applicable
to any Loan Party or any order or decree of any Governmental Authority or
arbitrator, (C) result in the breach of, constitute a default under, or
result in or permit the termination or acceleration of, any Contractual
Obligation of any Loan Party or any of its Subsidiaries, except for those
that, in the aggregate, would not have a Material Adverse Effect or (D)
result in the creation or imposition of any Lien upon any property of any
Loan Party or any of its Subsidiaries other than as may be permitted under
Section 8.2 (Liens, Etc.); and
(iv) do not require the consent of, authorization by, approval
of, notice to, or filing or registration with, any Governmental Authority
or any other Person, other than those that (A) were obtained at the
Purchase Date and (B) in the aggregate, if not obtained, would not have a
Material Adverse Effect.
(b) Each of the Related Documents duly executed at the Purchase Date
and delivered by each Loan Party party thereto at the Effective Date will
be the legal, valid
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and binding obligation of each Loan Party party thereto, enforceable
against such Loan Party in accordance with its terms, except that such
enforceability may be limited by general equitable principles (whether
enforcement is sought by proceedings in equity or at law) and by
applicable bankruptcy, insolvency, moratorium and similar laws affecting
the enforcement of creditors' rights generally.
(c) None of the Related Documents has been amended or modified in
any respect and no provision therein has been waived, except in each case
to the extent permitted by Section 8.12 (Modification of Related
Documents), and, as of the date of execution thereof, each of the
representations and warranties therein are true and correct in all
material respects and no default or event that, with the giving of notice
or lapse of time or both, would be a default has occurred thereunder.
SECTION 4.22 AUSTRALIAN REPRESENTATIONS AND WARRANTIES
(a) Each Australian Subsidiary receives, directly or indirectly, a
corporate benefit from the Loan Documents and the transactions
contemplated thereby.
(b) Each Australian Subsidiary acts as trustee of each of the trusts
or settlements set forth on Schedule 4.21 (Australian Trusts and
Settlements) (considered together with any updates to such schedule sent
to the Administrative Agent prior to the date this representation and
warranty is made), constitute all of the trusts and settlements for which
such Australian Subsidiary acts as trustee as of the date hereof, and, in
respect of each such trust and settlement (i) such Australian Subsidiary
holds the trust property in trust under the deeds and documents related
thereto, all of which are set forth on such Schedule 4.21, and complies
with all related trust documents and all resolutions and directions
relating to such trust, (ii) no beneficiary is presently entitled to any
of the assets subject to such trust other than as set forth on such
Schedule 4.21.
(c) No Person has contravened Section 208 of the Australian
Corporations Act by executing and delivering the Loan Documents and
Related Documents or participating in any transaction in connection with
any Loan Document or Related Document.
(d) None of the Lenders signatories hereto on the date hereof are
known or suspected by any Australian Subsidiary to be an Associate of any
Loan Party. Each Borrower agrees to immediately advise the Administrative
Agent it knows or suspects that any Lender is an Associate of any Loan
Party.
ARTICLE V
FINANCIAL COVENANTS
Each Borrower agrees with the Lenders, the Issuers and the Agents to
each of the following as long as any Obligation or any Revolving Credit
Commitment remains outstanding and, in each case, unless the Requisite Lenders
otherwise consent in writing:
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SECTION 5.1 MINIMUM FIXED CHARGE COVERAGE RATIO
The Company shall maintain, on each day when Aggregate Available
Credit has been less than $75,000,000 for the last three consecutive Business
Days prior to such day, a Fixed Charge Coverage Ratio (determined as of the last
day of the preceding Fiscal Quarter for the last four Fiscal Quarters ending on
such last day) of at least 1.15 to 1.00.
ARTICLE VI
REPORTING COVENANTS
Each of Holdings and each Borrower agrees with the Lenders, the
Issuers and the Agents to each of the following, as long as any Obligation or
any Revolving Credit Commitment remains outstanding and, in each case, unless
the Requisite Lenders otherwise consent in writing:
SECTION 6.1 FINANCIAL STATEMENTS
The Company shall furnish to the Administrative Agent (with
sufficient copies for each of the Lenders) each of the following:
(a) Quarterly Reports. Within 45 days after the end of each Fiscal
Quarter (other than any Fiscal Quarter for which, within 90 days after the
end thereof, Financial Statements are required to be provided pursuant to
clause (b) below), financial information regarding the Company and its
Subsidiaries consisting of Consolidated and consolidating unaudited
balance sheets as of the close of such quarter and the related statements
of earnings and cash flow for such quarter and that portion of the Fiscal
Year ending as of the close of such quarter, setting forth in comparative
form the figures for the corresponding period in the prior year, in each
case certified by a Responsible Officer of the Company as fairly
presenting the Consolidated and consolidating financial position of the
Company and its Subsidiaries as at the dates indicated (and giving a true
and fair view of the financial position and performance of each of
Australian Holdings and each of its Subsidiaries as at such dates) and the
results of their operations and cash flow for the periods indicated in
accordance with GAAP (subject to the absence of footnote disclosure and
normal year-end audit adjustments).
(b) Annual Reports. Within 90 days after the end of each Fiscal
Year, financial information regarding the Company and its Subsidiaries
consisting of Consolidated and consolidating balance sheets of the Company
and its Subsidiaries as of the end of such year and related statements of
earnings and cash flows of the Company and its Subsidiaries for such
Fiscal Year, all prepared in conformity with GAAP and certified, in the
case of such Consolidated Financial Statements, without qualification as
to the scope of the audit or as to the Company being a going concern by
the Company's Accountants, together with the report of such accounting
firm stating that (i) such Financial Statements fairly present the
Consolidated financial position of the Company and its Subsidiaries as at
the dates indicated (and give a true and fair view of the financial
position and performance of each of Australian Holdings and each of its
Subsidiaries as at such dates) and the results of their operations and
cash flow for the periods indicated in conformity with GAAP applied on a
basis consistent with prior years (except for changes with which the
Company's Accountants shall concur and that shall have been disclosed
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in the notes to the Financial Statements) and (ii) the examination by the
Company's Accountants in connection with such Consolidated Financial
Statements has been made in accordance with generally accepted auditing
standards, and accompanied by a certificate stating that in the course of
the regular audit of the business of the Company and its Subsidiaries such
accounting firm has obtained no knowledge that a Default or Event of
Default in respect of the financial covenants contained in Article V
(Financial Covenants), if applicable, has occurred and is continuing, or,
if in the opinion of such accounting firm, a Default or Event of Default
has occurred and is continuing in respect of such financial covenants, a
statement as to the nature thereof.
(c) Compliance Certificate. Together with each delivery of any
financial statement pursuant to clause (a) or (b) above, a certificate of
a Responsible Officer of the Company (each, a "Compliance Certificate")
(i) demonstrating compliance with each of the financial covenants
contained in Article V (Financial Covenants) that is tested on a quarterly
basis, if applicable, and (ii) stating that no Default or Event of Default
has occurred and is continuing or, if a Default or an Event of Default has
occurred and is continuing, stating the nature thereof and the action that
the Company or any of its Subsidiaries proposes to take with respect
thereto.
(d) Corporate Chart and Other Collateral Updates. On or before each
date on or before which Financial Statements are required to be delivered
pursuant to clause (b) above, (i) a certificate of a Responsible Officer
of the Company certifying that the Corporate Chart attached thereto (or
the last Corporate Chart delivered pursuant to this clause (d)), is true,
correct, complete and current as of the date of receipt of such
certificate by the Administrative Agent and, if later, such date for the
delivery of Financial Statements and (ii) a certificate of a Responsible
Officer of each Borrower in form and substance satisfactory to the
Administrative Agent that, to the best of the knowledge of such Borrower,
all certificates, statements, updates and other documents (including
updated schedules) required to be delivered pursuant to the Pledge and
Security Agreement by any Loan Party in the preceding Fiscal Year have
been delivered thereunder. The reporting requirements set forth in this
clause (d) are in addition to, and are not intended to and shall not
replace, relax or otherwise modify, any obligation of any Loan Party under
any Loan Document (including other notice or reporting requirements).
Compliance with the reporting obligations in this clause (d) shall not, by
itself, operate to update any Schedule hereto or any schedule to any other
Loan Document and shall not cure, or otherwise modify in any way, any
failure to comply with any covenant, or any breach of any representation
or warranty, contained in any Loan Document or any other Default or Event
of Default.
(e) Business Plan. Within 30 days after the end of each Fiscal Year,
the annual business plan of the Company and its Subsidiaries for the next
succeeding Fiscal Year determined in accordance with the Company's normal
business cycle, approved by the Board of Directors of the Company or a
duly appointed committee thereof and containing substantially the types of
financial information contained in the Projections.
(f) Management Letters, Etc. Within 10 Business Days after receipt
thereof by any Loan Party, copies of each management letter, exception
report or similar letter or report received by such Loan Party from its
independent certified public accountants (including the Company's
Accountants) that indicates, in the reasonable good faith
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judgment of the Company's board of directors, a potential material
weakness in the Company's or its Subsidiaries' internal controls or
procedures.
(g) Intercompany Loan Balances. Within 30 days after the end of each
fiscal month in each Fiscal Year, a summary of the outstanding balance of
all intercompany Indebtedness (including pursuant to the Australian
Intercompany Credit Agreement) as of the last Sunday of such fiscal month
certified by a Responsible Officer of the Company.
SECTION 6.2 DEFAULT NOTICES
As soon as practicable, and in any event within 7 Business Days
after a Responsible Officer of any Loan Party has actual knowledge of the
existence of any Default, Event of Default or other event having had a Material
Adverse Effect or that could reasonably be expected to cause a Material Adverse
Change, the Company shall give the Administrative Agent notice specifying the
nature of such Default or Event of Default or other event, including the
anticipated effect thereof, which notice, if given by telephone, shall be
promptly confirmed in writing on the next Business Day.
SECTION 6.3 LITIGATION
Promptly after the commencement thereof, the Company shall give the
Administrative Agent written notice of the commencement of all actions, suits
and proceedings before any domestic or foreign Governmental Authority or
arbitrator affecting the Company or any of its Subsidiaries or Permitted Joint
Venture that (i) seeks injunctive or similar relief and that would have a
Material Adverse Effect or (ii) in the reasonable judgment of the Company, such
Subsidiary or such Permitted Joint Venture, exposes the Company, such Subsidiary
or such Permitted Joint Venture to liability in an amount the Dollar Equivalent
of which aggregates $15,000,000 or more or that would have a Material Adverse
Effect.
SECTION 6.4 ASSET SALES
Prior to any Asset Sale whose Net Cash Proceeds are
anticipated to have a Dollar Equivalent in excess of $10,000,000, the Company
shall send the Administrative Agent a notice (a) describing such Asset Sale or
the nature and material terms and conditions of such transaction and (b) stating
the estimated Net Cash Proceeds anticipated to be received by Holdings or any of
its Subsidiaries.
SECTION 6.5 NOTICES UNDER RELATED DOCUMENTS
Promptly after the sending or filing thereof, the Company shall send
the Administrative Agent copies of all material notices, certificates or reports
delivered pursuant to, or in connection with, any Related Document.
SECTION 6.6 SEC FILINGS; PRESS RELEASES
Promptly after the sending or filing thereof, the Company shall send
the Administrative Agent copies of (a) all reports that Holdings or any of its
Subsidiaries sends to its security holders generally, (b) all reports and
registration statements that Holdings or any of its Subsidiaries files with the
Securities and Exchange Commission or any national or foreign
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securities exchange (including the Australian Securities and Investment
Commission) or the National Association of Securities Dealers, Inc., (c) all
press releases and (d) all other statements concerning material changes or
developments in the business of Holdings or any of its Subsidiaries or any
Permitted Joint Venture of any of them made available by Holdings or any of its
Subsidiaries (or, to the extent Holdings or any of its Subsidiaries has
knowledge thereof, any Permitted Joint Venture of any of them) to the public or
any other creditor.
SECTION 6.7 LABOR RELATIONS
Promptly after any Borrower becoming aware of the same, the Company
shall give the Administrative Agent written notice of (a) any material labor
dispute to which the Company or any of its Subsidiaries is or may become a
party, including any strikes, lockouts or other disputes relating to any of such
Person's plants and other facilities, and (b) any Worker Adjustment and
Retraining Notification Act or related liability incurred with respect to the
closing of any plant or other facility of any such Person.
SECTION 6.8 TAX RETURNS
Upon the request of any Lender, through the Administrative Agent,
the Company shall provide to the Administrative Agent a copy of all federal,
state, local and foreign tax returns and reports filed by the Company or any of
its Subsidiaries in respect of taxes measured by income (excluding sales, use
and like taxes).
SECTION 6.9 INSURANCE
As soon as is practicable and in any event within 90 days after the
end of each Fiscal Year, the Company shall furnish the Administrative Agent with
(a) a report in form and substance satisfactory to the Administrative Agent and
the Lenders outlining all material insurance coverage maintained as of the date
of such report by the Company and its Subsidiaries and the duration of such
coverage and (b) unless otherwise agreed by the Administrative Agent,
certificates of insurance confirming that the Administrative Agent has been
named as loss payee or additional insured, as applicable.
SECTION 6.10 ERISA MATTERS
The Company shall furnish the Administrative Agent (with sufficient
copies for each of the Lenders) each of the following:
(a) promptly and in any event within 30 days after the Company, any
of its Subsidiaries or any ERISA Affiliate knows or has reason to know
that any ERISA Event has occurred, written notice describing such event;
(b) promptly and in any event within 10 days after Holdings, any of
its Subsidiaries or any ERISA Affiliate knows or has reason to know that a
request for a minimum funding waiver under Section 412 of the Code has
been filed with respect to any Title IV Plan or Multiemployer Plan, a
written statement of a Responsible Officer of the Company describing such
waiver request and the action, if any, the Company, its Subsidiaries and
ERISA Affiliates propose to take with respect thereto and a copy of any
notice filed with the PBGC or the IRS pertaining thereto;
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(c) simultaneously with the date that Holdings, any of its
Subsidiaries or any ERISA Affiliate takes, or approves the decision to
take, any action to establish any Title IV Plan or contribute to any
Multiemployer Plan other than such plans listed on Schedule 4.17 (List of
Plans); and
(d) simultaneously with the date that Holdings, the Company, any of
the Company's Subsidiaries takes or approves the decision to take any
action (including any steps to terminate any Compensation Plan) or any
omission (including any failure to make any required contributions to any
Compensation Plan), with respect to any Compensation Plan, in either case
that could reasonably be expected to (i) result in a liabilities for
Holdings, the Company or any of the Company's Subsidiaries the Dollar
Equivalent of which shall be in excess of $10,000,000 in the aggregate,
(ii) give rise to a Lien over any of the properties, assets or revenues of
Holdings, the Company or any of the Company's Subsidiaries or (iii) result
in a Material Adverse Effect, a notice of the foregoing action or
omission.
SECTION 6.11 ENVIRONMENTAL MATTERS
The Company shall provide the Administrative Agent promptly and in
any event within 10 days after the Company or any of its Subsidiaries learning
of any of the following, written notice of each of the following:
(a) that any Loan Party is or may be liable to any Person as a
result of a Release or threatened Release that could reasonably be
expected to subject such Loan Party to Environmental Liabilities and Costs
the Dollar Equivalent of which shall equal or exceed $15,000,000;
(b) the receipt by any Loan Party of notification that any real or
personal property of such Loan Party is or is reasonably likely to be
subject to any Environmental Lien;
(c) the receipt by any Loan Party of any notice of violation of or
potential liability under, or knowledge by such Loan Party that there
exists a condition that could reasonably be expected to result in a
violation of or liability under, any Environmental Law, except for such
violations and liabilities the consequence of which, in the aggregate,
would not be reasonably likely to subject the Loan Parties collectively to
Environmental Liabilities and Costs the Dollar Equivalent of which shall
equal or exceed $15,000,000;
(d) the commencement of any judicial or administrative proceeding or
investigation alleging a violation of or liability under any Environmental
Law, that, in the aggregate, if adversely determined, would have a
reasonable likelihood of subjecting the Loan Parties collectively to
Environmental Liabilities and Costs the Dollar Equivalent of which shall
equal or exceed $15,000,000;
(e) any proposed acquisition of stock, assets or real estate, any
proposed leasing of property or any other action by any Loan Party or any
of its Subsidiaries other than those the consequences of which, in the
aggregate, have reasonable likelihood of subjecting the Loan Parties
collectively to Environmental Liabilities and Costs the Dollar Equivalent
of which shall equal or exceed $15,000,000;
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(f) any proposed action by any Loan Party or any of its Subsidiaries
or any proposed change in Environmental Laws that, in the aggregate, have
a reasonable likelihood of requiring the Loan Parties to obtain additional
environmental, health or safety Permits or make additional capital
improvements to obtain compliance with Environmental Laws whose cost, in
the aggregate, shall have a Dollar Equivalent equaling or exceeding
$15,000,000 or which shall subject the Loan Parties to additional
Environmental Liabilities and Costs the Dollar Equivalent of which shall
equal or exceed $15,000,000; and
(g) upon written request by any Lender through the Administrative
Agent, a report providing an update of the status of any environmental,
health or safety compliance, hazard or liability issue identified in any
notice or report delivered pursuant to this Agreement.
SECTION 6.12 BORROWING BASES DETERMINATION
(a) (i) With respect to and as of each Sunday in each calendar week
for which the Aggregate Available Credit is less than $125,000,000 on such
Sunday, the Borrowers shall jointly deliver, as soon as available and in
any event not later than the fourth Business Day after such Sunday, a
Borrowing Base Certificate as of such Sunday executed by a Responsible
Officer of each such Borrower; and
(ii) With respect to and as of the last Sunday of each fiscal
month (unless a Borrowing Base Certificate is required to be delivered as
of such Sunday pursuant to clause (i) above), the Borrowers shall jointly
deliver, as soon as available and in any event not later than the fourth
Business Day after such Sunday, a Borrowing Base Certificate as of such
Sunday executed by a Responsible Officer of each such Borrower.
(b) Each Borrower shall conduct, or shall cause to be conducted, at
its expense and upon request of the Administrative Agent, and present to
the Administrative Agent for approval, such appraisals, investigations and
reviews as the Administrative Agent shall request for the purpose of
determining the Borrowing Base of such Borrower all upon notice and at
such times during normal business hours and as often as may be reasonably
requested (those of such appraisals that are in form and substance to the
Administrative Agent and performed by an appraiser that is satisfactory to
the Administrative Agent, together with any "Appraisals" under and as
defined in the Existing Credit Agreement, the "Appraisals"); provided,
however, that, (i) as long as no Event of Default shall have occurred and
be continuing, the Borrowers shall be required to conduct or cause to be
conducted appraisals no more than once in each calendar year and other
investigation and reviews no more than once in any three-month period and
(ii) during the occurrence and continuance of any Event of Default, the
Borrowers shall conduct or cause to be conducted appraisals,
investigations and reviews in each such calendar year or, as the case may
be, three month period, the number of which, if greater than one, shall be
reasonable. The Administrative Agent is hereby authorized to obtain any
Appraisal directly from any third-party appraiser acceptable to it at the
Company's expense subject to the proviso in the preceding sentence. The
Administrative Agent shall provide to the Syndication Agent (and, upon
request by any Lender, to such Lender) a copy of each such appraisal,
investigation and review received from any Borrower. Each Borrower shall
furnish to the Administrative Agent and the Syndication Agent (and, upon
request by any Lender, to such Lender) any information that the
Administrative Agent or,
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as the case may be, the Syndication Agent may reasonably request regarding
the determination and calculation of the Borrowing Bases including correct
and complete copies of any invoices, underlying agreements, instruments or
other documents and the identity of all Account Debtors in respect of
Accounts referred to therein.
(c) Each Borrower shall promptly notify the Administrative Agent and
the Syndication Agent in writing in the event that at any time such
Borrower receives or otherwise gains knowledge that (i) the Borrowing Base
of such Borrower is less than 90% of the Borrowing Base of such Borrower
reflected in the most recent Borrowing Base Certificate delivered pursuant
to clause (a) above (which, for purposes of this calculation, shall not,
in the case of the Australian Borrowers, include the Borrowing Base of the
Company), (ii) the Aggregate Borrowing Base is less than 90% of the
Aggregate Borrowing Base reflected in the most recent Borrowing Base
Certificate delivered pursuant to clause (a) above, (iii) the aggregate
Revolving Credit Outstandings of the Borrowers exceeds the Aggregate
Maximum Credit as a result of a decrease in the Aggregate Borrowing Base,
(iv) the Revolving Credit Outstandings of such Borrower exceeds the
Maximum Available Borrowing Base of such Borrower at such time as a result
of a decrease in the Borrowing Base of such Borrower or (v) a Liquidity
Event Period has begun; provided, however, that, in case of clauses (iii)
and (iv) above, such notice shall also include the amount of such excess.
(d) The Administrative Agent may, at such Borrowers' sole cost and
expense, make test verifications of the Accounts of any Borrower and
physical verifications of the Inventory of any Borrower in any manner and
through any medium that the Administrative Agent considers advisable, and
each Borrower shall furnish all such assistance and information as the
Administrative Agent may require in connection therewith. The Syndication
Agent may, also at such Borrowers' sole cost and expense, join the
Administrative Agent in making such verifications, at such times and in
the manner determined by the Administrative Agent.
SECTION 6.13 MATERIAL CONTRACTS
Promptly after any Borrower becoming aware of the same, the Company
shall give the Administrative Agent written notice of any cancellation,
termination or loss of any material Contractual Obligation or other material
customer arrangement.
SECTION 6.14 OTHER INFORMATION
Each Borrower shall provide the Administrative Agent or any Lender
with such other information respecting the business, properties, condition,
financial or otherwise, or operations of Holdings, the Company, any of
Subsidiary of the Company or any Permitted Joint Venture as the Administrative
Agent or such Lender through the Administrative Agent may from time to time
reasonably request.
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ARTICLE VII
AFFIRMATIVE COVENANTS
Each of Holdings and each Borrower agrees with the Lenders, the
Issuers, the Administrative Agent, the Australian Agent and the Australian
Collateral Trustee to each of the following, as long as any Obligation or any
Revolving Credit Commitment remains outstanding and, in each case, unless the
Requisite Lenders otherwise consent in writing:
SECTION 7.1 PRESERVATION OF CORPORATE EXISTENCE, ETC.
Each of Holdings and each Borrower shall, and each Borrower shall
cause each of its Subsidiaries to, preserve and maintain its legal existence,
rights (charter and statutory) and franchises, except as permitted by Sections
8.3 (Investments), 8.4 (Sale of Assets) and 8.7 (Restriction on Fundamental
Changes; Permitted Acquisitions).
SECTION 7.2 COMPLIANCE WITH LAWS, ETC.
Each of Holdings and each Borrower shall, and each Borrower shall
cause each of its Subsidiaries to, comply with all applicable Requirements of
Law, Contractual Obligations and Permits, except where the failure so to comply
would not, in the aggregate, have a Material Adverse Effect.
SECTION 7.3 CONDUCT OF BUSINESS
Each Borrower shall, and shall cause each of its Subsidiaries to,
(a) conduct its business in the ordinary course consistent with past practice
and (b) use its reasonable efforts, in the ordinary course and consistent with
past practice, to preserve its business and the goodwill and business of the
customers, advertisers, suppliers and others having business relations with the
Company or any of its Subsidiaries, except in each case where the failure to
comply with the covenants in each of clauses (a) and (b) above would not, in the
aggregate, have a Material Adverse Effect.
SECTION 7.4 PAYMENT OF TAXES, ETC.
Each of Holdings and each Borrower shall, and each Borrower shall
cause each of its Subsidiaries to, pay and discharge before the same shall
become delinquent, all lawful governmental claims, taxes, assessments, charges
and levies, except where contested in good faith, by proper proceedings and
adequate reserves therefor have been established on the books of Holdings, such
Borrower or the appropriate Subsidiary in conformity with GAAP (or, in the case
of the Australian Subsidiaries, if applicable, Australian GAAP).
SECTION 7.5 MAINTENANCE OF INSURANCE
Each Borrower shall (a) maintain for itself, and cause to be
maintained for each of its Subsidiaries, insurance with responsible and
reputable insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which such Borrower or
such Subsidiary operates, and such other insurance as may be reasonably
requested by the Requisite Lenders, and, in any event, all insurance required by
any Collateral Document, (b)
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cause all in-transit Inventory to be adequately insured and (c) unless otherwise
agreed by the Administrative Agent, cause all such insurance to name the
Administrative Agent on behalf of the Secured Parties or, for Collateral located
in Australia, the Australian Collateral Trustee as additional insured or loss
payee, as appropriate, and to provide that no cancellation, material change in
amount or material change in coverage shall be effective until after 30 days'
written notice thereof to the Administrative Agent.
SECTION 7.6 ACCESS
Each of Holdings and each Borrower shall, and each Borrower shall
cause each of its Subsidiaries to, from time to time permit the Administrative
Agent, the Australian Agent and the Lenders, or any agents or representatives
thereof, within two Business Days after written notification of the same (except
that during the continuance of an Event of Default, no such notice shall be
required) to (a) examine and make copies of and abstracts from the records and
books of account of the Company and each of its Subsidiaries, (b) visit the
properties of the Company and each of its Subsidiaries, (c) discuss the affairs,
finances and accounts of the Company and each of its Subsidiaries with any of
their respective officers or directors and (d) communicate directly with any of
its certified public accountants (including the Company's Accountants) with the
participation of, if requested by the Company, a Responsible Officer of the
Company. Each Borrower shall authorize its and its Subsidiaries' certified
public accountants (including the Company's Accountants) to disclose to the
Administrative Agent, the Australian Agent or any Lender any and all financial
statements and other information of any kind, as the Administrative Agent, the
Australian Agent or any Lender reasonably requests and that such accountants may
have with respect to the business, financial condition, results of operations or
other affairs of the Company or any of its Subsidiaries.
SECTION 7.7 KEEPING OF BOOKS
Each of Holdings and each Borrower shall, and each Borrower shall
cause each of its Subsidiaries to keep, proper books of record and account, in
which full and correct entries shall be made in conformity with GAAP (and, in
the case of the Australian Subsidiaries, if applicable, Australian GAAP) of all
financial transactions and the assets and business of Holdings, each such
Borrower and each such Subsidiary.
SECTION 7.8 MAINTENANCE OF PROPERTIES, ETC.
Each of Holdings and each Borrower shall, and each Borrower shall
cause each of its Subsidiaries to, maintain and preserve (a) in good working
order and condition all of its properties necessary in the conduct of its
business, (b) all rights, permits, licenses, approvals and privileges (including
all Permits) used or useful or necessary in the conduct of its business and (c)
all registered patents, trademarks, trade names, copyrights and service marks
with respect to its business, except where failure to so maintain and preserve
the items set forth in clauses (a), (b) and (c) above would not, in the
aggregate, have a Material Adverse Effect and, with respect to clause (c) above,
except where such Person reasonably determines that such intellectual property
is no longer useful in its business.
SECTION 7.9 USE OF PROCEEDS; RANKING
Each of Holdings and each Borrower shall, and each Borrower shall
cause each of its Subsidiaries to, (a) use the entire amount of the proceeds of
the Loans as provided in
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Section 4.13 (Use of Proceeds) and (b) ensure that the payment obligations of
the Borrower under this Agreement and the Revolving Credit Notes will at all
times have a ranking not less than that specified in Section 4.14 (Ranking) and
that the Secured Obligations at all times constitute "Senior Debt" as defined in
the Subordinated Notes Indenture and under any term of similar application
defined in any Permitted Unsecured Debt Document with respect to any Additional
Unsecured Indebtedness that is junior to the Senior Notes. No Loan Party shall
designate any Indebtedness (other than the Secured Obligations) as "Designated
Senior Debt" under the Subordinated Notes Indenture.
SECTION 7.10 ENVIRONMENTAL
Each of Holdings and each Borrower shall, and each Borrower shall
cause all of its Subsidiaries to, comply in all material respects with
Environmental Laws and, without limiting the foregoing, each Borrower shall, at
the Borrowers' sole cost and expense (for which they shall be jointly and
severally liable), upon receipt of any notification or otherwise obtaining
knowledge of any Release or other event that, in the aggregate together with all
Environmental Liabilities and Costs reasonably expected to be incurred as a
result thereof, would have a Material Adverse Effect, (a) conduct or pay for
consultants to conduct, tests or assessments of environmental conditions at such
operations or properties, including the investigation and testing of subsurface
conditions as is appropriate and consistent with good business practice or is
required by or necessary to achieve compliance with any Environmental Law and
(b) take such Remedial Action and undertake such investigation or other action
as required by Environmental Laws or as any Governmental Authority requires or
as is appropriate and consistent with good business practice to address the
Release or event and otherwise ensure compliance with Environmental Laws.
Nothing in this Section 7.10 shall prevent any Borrower from challenging any
order or directive of any Governmental Authority or other Person, or otherwise
exercising its rights and privileges pursuant to any Environmental Law.
SECTION 7.11 ADDITIONAL COLLATERAL AND GUARANTIES
To the extent not delivered to the Administrative Agent on or before
the Effective Date (including in respect of after-acquired property and Persons
having become Subsidiaries after the Effective Date), Holdings and each Borrower
agrees promptly (and, for newly-created Subsidiaries, in any event within 10
Business Days after the creation of such Subsidiaries) to do each of the
following:
(a) execute and deliver, and cause their respective Subsidiaries to
execute and deliver, to the Administrative Agent such supplements,
amendments and joinders to the Collateral Documents (or, in the case of
any such Subsidiary of the Borrower that is not a Domestic Subsidiary or
holding shares in any Person that is not a Domestic Subsidiary, foreign
charges, pledges and security agreements), in each case in form and
substance reasonably satisfactory to the Administrative Agent and as the
Administrative Agent deems necessary or advisable in order to grant to the
Administrative Agent or, for assets located in Australia, the Australian
Collateral Trustee, for the benefit of the Secured Parties, a perfected
first priority security interest in the Stock and Stock Equivalents and
other debt Securities owned by any Loan Party or Subsidiary thereof that
are requested to be pledged by the Administrative Agent; provided,
however, that, unless the Company and the Administrative Agent otherwise
agree or such pledge shall not have any material adverse tax consequences
for the Company and its Subsidiaries, in no event shall any Loan Party or
any Subsidiary thereof be required to pledge, in order to secure
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the Secured Obligations of the Company or any Subsidiary thereof that is a
Domestic Person (other than the Guaranty Obligations thereof in respect of
the Secured Obligations of any Subsidiary of the Company that is a
Non-U.S. Person), (i) in excess of 65% of the outstanding Voting Stock of
any Non-U.S. Person that is a direct Subsidiary of the Company or of any
Subsidiary of the Company that is a Domestic Person or (ii) unless such
Stock is otherwise held by the Company or any Subsidiary of the Company
that is a Domestic Person, any of the Stock of any Subsidiary of such
direct Subsidiary;
(b) cause their respective Subsidiaries to execute and deliver, to
the Administrative Agent (i) such guaranties or supplements, amendments
and joinders to the Domestic Guaranty, in the case of Domestic
Subsidiaries, and (ii) otherwise to the Non-U.S. Guaranty, and such
supplements, amendments and joinders to the Collateral Documents, in each
case in form and substance reasonably satisfactory to the Administrative
Agent and as the Administrative Agent deems necessary or advisable in
order to ensure that (x) all Subsidiaries of the Company (other than
Permitted Joint Ventures) guaranty, as primary obligor and not as surety,
the full and punctual payment when due of the Obligations and (y) each
such guaranty is secured by a valid, perfected and enforceable
first-priority security interest granted to the Administrative Agent or,
for assets located in Australia, the Australian Collateral Trustee, for
the benefit of the Secured Parties over all of the assets (other than such
assets as the Administrative Agent, in its sole discretion exercised
reasonably, deems immaterial) of such Subsidiary (including the Collateral
described in the Collateral Documents); provided, however, that, (A)
unless the Company and the Administrative Agent otherwise agree or such
guaranty shall not have any material tax consequences for the Company and
its Subsidiaries, in no event shall any Non-U.S. Person be required to
guaranty the payment of the Obligations owing by the Company or any
Subsidiary thereof that is a Domestic Person (other than the Guaranty
Obligations thereof in respect of the Secured Obligations of any
Subsidiary of the Company that is a Non-U.S. Person), (B) unless the
Borrower and the Administrative Agent otherwise agree or such pledge shall
not have any material tax consequences for the Company and its
Subsidiaries, in no event shall any Subsidiary of any Loan Party that is
not a Domestic Person be required to grant a security interest on any of
its assets to secure the Secured Obligations of the Company or any
Subsidiary thereof that is a Domestic Person (other than the Guaranty
Obligations thereof in respect of the Secured Obligations of any
Subsidiary of the Company that is a Non-U.S. Person) and (iii) no
Australian Borrower shall be required to guaranty its own Obligations;
(c) deliver to the Administrative Agent (or, for Australian Holdings
and any of its Subsidiaries, the Australian Collateral Trustee) the
certificates (if any) representing such Stock and Stock Equivalents and
other debt Securities, together with (i) in the case of such certificated
Stock and Stock Equivalents, undated stock powers endorsed in blank and
(ii) in the case of such certificated debt Securities, endorsed in blank,
in each case executed and delivered by a Responsible Officer of such Loan
Party or such Subsidiary thereof, as the case may be;
(d) in the case of any Wholly-Owned Subsidiary of any Loan Party
that is a Domestic Subsidiary, cause such Wholly-Owned Subsidiary (i) to
execute a supplement, amendment or joinder or otherwise become a party to
the Domestic Guaranty and the applicable Collateral Documents and (ii) to
take such actions necessary or advisable to grant to the Administrative
Agent (or, for Collateral located in Australia, the Australian
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AMENDED AND RESTATED CREDIT AGREEMENT
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Collateral Trustee) for the benefit of the Secured Parties a perfected
security interest in the Collateral described in the Collateral Documents
with respect to such Wholly-Owned Subsidiary, including the filing of UCC
financing statements in such jurisdictions as may be required by the
Collateral Documents or by law or as may be reasonably requested by the
Administrative Agent;
(e) (i) in respect of any Subsidiary of any Loan Party entering into
Guaranty Obligations of the Indebtedness of any Loan Party that is a
Domestic Person, to the extent not otherwise provided hereunder, provide
to the Administrative Agent executed and delivered by such Person
supplements to the Domestic Guaranty and joinder to the Pledge and
Security Agreement and other amendments, supplements and joinders to the
Collateral Documents executed by the appropriate parties to ensure that
such Person guaranties the Secured Obligations and that the Administrative
Agent (or, for assets located in Australia, the Australian Collateral
Trustee) obtains, for the benefit of the Secured Parties, a security
interest in all of the assets of such Person (unless, for assets not
located in the United States and Australia, the Administrative Agent
otherwise consents) and in all Stock and Stock Equivalents of such Person
and (ii) in respect of any Subsidiary of any Loan Party entering into
Guaranty Obligations of the Indebtedness of any Loan Party that is not a
Domestic Person, to the extent not otherwise provided hereunder, provide
to the Administrative Agent executed and delivered by such Subsidiary
supplements to the Non-U.S. Guaranty and other amendments, supplements and
joinders to the applicable Collateral Documents or new Collateral
Documents executed by the appropriate parties to ensure that such
Subsidiary guaranties the Secured Obligations of each Loan Party that is a
Non-U.S. Person and that the Administrative Agent (or, for assets located
in Australia, the Australian Collateral Trustee) obtains, for the benefit
of the Secured Parties, a security interest in all of the assets of such
Subsidiary (unless, for assets not located in the United States, Australia
and Canada, the Administrative Agent otherwise consents) and in all Stock
and Stock Equivalents of such Subsidiary;
(f) unless the acquisition thereof is financed with Indebtedness
other than the Secured Obligations, within 30 days of the acquisition of
any aircraft by any Loan Party, deliver to the Administrative Agent (or,
if consented to by the Administrative Agent, the Australian Collateral
Trustee) Aircraft Security Documents in form and substance satisfactory to
the Administrative Agent for such aircraft; and
(g) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
SECTION 7.12 LANDLORD WAIVERS AND BAILEE'S LETTERS
Each Borrower shall, and shall cause each of its Borrowing Base
Contributors to, use its commercially reasonable efforts to deliver Landlord
Waivers and Bailee's Letters to the extent requested by the Administrative
Agent.
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SECTION 7.13 CONTROL ACCOUNTS; APPROVED DEPOSIT ACCOUNTS
At any time that is in a Liquidity Event Period or during which an
Event of Default shall be continuing, the Administrative Agent and the
Australian Agent may (and, upon the written direction of the Requisite Lenders,
shall) notify the Company to comply and cause its Subsidiaries to comply with
the following and, within 5 Business Days' of such notice, Holdings and each of
the Borrowers shall, and shall cause each of their Subsidiaries that are
Borrowing Base Contributors to comply with the following (in each case unless
otherwise agreed by the Administrative Agent or, as the case may be, the
Requisite Lenders):
(a) all cash received shall be deposited in Approved Deposit
Accounts and all Securities Accounts and Commodities Accounts shall be
Control Accounts; provided, however, that the Loan Parties may maintain
(A) payroll, withholding tax and other fiduciary accounts and (B) other
Deposit Accounts as long as the Dollar Equivalent of the aggregate balance
in all such other Deposit Accounts does not exceed $25,000,000;
(b) (i) all funds in Approved Deposit Accounts of Australian
Holdings or any of its Subsidiaries shall be transferred daily to the Cash
Collateral Accounts of the Australian Borrowers and (ii) all funds in
Approved Deposit Accounts of any other Subsidiary Guarantor, Holdings or
the Company shall be transferred daily to the Cash Collateral Accounts of
the Company; provided, however, that the Administrative Agent may agree
with any Borrower on procedures designed to manage the exposure of any
Loan Party or any Subsidiary of any Loan Party to foreign exchange
fluctuations pursuant to which funds in Approved Deposit Accounts may be
transferred from time to time to designated Lenders or Agents;
(c) Cash Collateral Account.
(i) Each of the Administrative Agent and the Australian Agent
shall apply all funds on deposit in a Cash Collateral Account (i) for each
such Cash Collateral Account of Australian Holdings or any of its
Subsidiaries, not later than 1:00 p.m. (Sydney time) and (ii) for each
other Cash Collateral Account, not later than 1:00 p.m. (New York time),
as follows (or, to the extent applicable, as provided in Section 2.13(g)
(Payments and Computations)): first, to repay the outstanding principal
amount of the Swing Loans (or, if such Borrower is an Australian Borrower,
the Swing Loans of either Australian Borrower) until such Swing Loans have
been repaid in full; second, to repay the outstanding principal balance of
the Revolving Loans (or, if such Borrower is an Australian Borrower, the
Revolving Loans of either Australian Borrower) until such Revolving Loans
shall have been repaid in full; and third, to any other Secured Obligation
(or, if such Borrower is an Australian Borrower, any other Secured
Obligations of Australian Holdings or any of its Subsidiaries) then due
and payable; provided, however, that, the Administrative Agent may agree
with each Borrower on procedures (that may involve change in the
allocation above) solely for the purpose of allocating, as long as there
shall be no Default or Event of Default, payments in one currency to the
repayment of Obligations in such currency or in certain other currencies.
The Administrative Agent and the Australian Agent agrees so to apply such
funds and each Borrower consents to such application.
(ii) To the extent, following such application, there are no
Revolving Loans (or, if such Borrower is an Australian Borrower, no
Revolving Loans of either
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
Australian Borrower) outstanding, no other Secured Obligation (or, if such
Borrower is an Australian Borrower, no other Secured Obligation of
Australian Holdings or any of its Subsidiaries) is then due and payable
and (if such Borrower is an Australian Borrower) there are no obligations
outstanding under the Australian Intercompany Credit Agreement (and,
during the continuance of an Event of Default, cash collateral remains in
the Cash Collateral Account in an amount equal to 102% of all outstanding
aggregate Letter of Credit Obligations (or, if such Borrower is an
Australian Borrower, the Revolving Loans of either Australian Borrower) in
the manner set forth in Section 9.3 (Actions in Respect of Letters of
Credit)), then the Administrative Agent and the Australian Agent shall
cause any remaining funds in such Borrower's Cash Collateral Account to be
paid at the written direction of such Borrower.
(d) Holdings and each Borrower shall, and shall cause each of its
Subsidiaries that are its Borrowing Base Contributors to, instruct each
Account Debtor or other Person obligated to make a payment to such Loan
Party under an Account or General Intangible to make payment, or to
continue to make payment, as the case may be, to an Approved Deposit
Account and shall deposit in an Approved Deposit Account all Proceeds of
such Accounts and General Intangibles received by such Grantor from any
other Person immediately upon receipt; provided, however, that, Account
Debtors may make payments in Australia to Deposit Accounts that are not
Approved Deposit Accounts in an amount not to exceed in the aggregate for
each calendar week $750,000.
(e) In the event (i) any Loan Party or any Approved Securities
Intermediary or Deposit Account Bank shall terminate an agreement with
respect to the maintenance of a Control Account or Approved Deposit
Account for any reason, (ii) the Administrative Agent shall demand such
termination as a result of the failure of an Approved Securities
Intermediary or Deposit Account Bank to comply with the terms of the
applicable Control Account Agreement or Deposit Account Control Agreement
or (iii) the Administrative Agent determines in its sole discretion that
the financial condition of an Approved Securities Intermediary or Deposit
Account Bank, as the case may be, has materially deteriorated, Holdings
and each Borrower agree to notify all of obligors of any Loan Party that
were making payments to such terminated Control Account or Approved
Deposit Account, as the case may be, to make all future payments to
another Control Account or Approved Deposit Account, as the case may be.
(f) Funds on deposit in any Cash Collateral Account may be invested
in Cash Equivalents at the direction of the Administrative Agent or the
Australian Agent and each of the Administrative Agent and the Australian
Agent agrees that, other than during the continuance of any Default or
Event of Default, it shall issue directions, certificates and orders
(including entitlement orders) as may be requested by the Company for such
investments in Cash Equivalents; provided, however, that neither the
Administrative Agent nor the Australian Agent shall have any
responsibility for, or bear any risk of loss of, any such investment or
income thereon.
SECTION 7.14 REAL PROPERTY
(a) At least 15 Business Days prior to acquiring any material owned
Real Property, each Borrower shall, and shall cause each Subsidiary Guarantor
to, provide the Administrative Agent written notice thereof and, upon written
request of the Administrative Agent, each Borrower shall, and shall cause each
Subsidiary Guarantor to,
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provide Phase I environmental reports on such Real Property or, as the
case may be, the Real Property subject to such Lease showing no condition
that could give rise to material Environmental Costs and Liabilities.
(b) To the extent not previously delivered to the Administrative
Agent, upon written request of the Administrative Agent, each Borrower
shall, and shall cause each Subsidiary Guarantor to, execute and deliver
to the Administrative Agent, for the benefit of the Secured Parties,
promptly and in any event not later than 45 days after receipt of such
notice (or, if such notice is given by the Administrative Agent at least
45 days prior to the acquisition of such Real Property or Lease,
immediately upon such acquisition), a U.S. Mortgage on any material Real
Property or material Lease of such Borrower or such Subsidiary Guarantor
located in the United States, together with all U.S. Mortgage Supporting
Documents relating thereto.
(c) To the extent not previously delivered to the Administrative
Agent, upon written request of the Administrative Agent, each Borrower
shall, and shall cause each Subsidiary Guarantor to, execute and deliver
to the Administrative Agent, for the benefit of the Secured Parties,
promptly and in any event not later than 45 days after receipt of such
notice (or, if such notice is given by the Administrative Agent at least
45 days prior to the acquisition of such Real Property or Lease,
immediately upon such acquisition), an Australian Mortgage on any material
Real Property or Lease of such Borrower or such Subsidiary Guarantor
located in Australia, together with all Australian Mortgage Supporting
Documents relating thereto.
(d) To the extent not previously delivered to the Administrative
Agent, upon written request of the Administrative Agent, each Borrower
shall, and shall cause each Subsidiary Guarantor to, execute and deliver
to the Administrative Agent, for the benefit of the Secured Parties,
promptly and in any event not later than 45 days after receipt of such
notice (or, if such notice is given by the Administrative Agent at least
45 days prior to the acquisition of such Real Property or Lease,
immediately upon such acquisition), a Canadian Mortgage on any material
Real Property located in Canada or material Lease of such Borrower or such
Subsidiary Guarantor on Real Property located in Canada, together with all
Canadian Mortgage Supporting Documents relating thereto.
SECTION 7.15 Post-Closing Deliveries
Each of Holdings and each Borrower shall, and each Borrower shall
cause each of its Subsidiaries to, (a) deliver to the Administrative Agent each
item set forth in Schedule 7.15 (Post-Closing Deliveries), in form and substance
reasonably satisfactory to the Administrative Agent and together with each
certificate or other document ancillary thereto and reasonably requested by the
Administrative Agent and (b) perform each action set forth in Schedule 7.15
(Post-Closing Deliveries) in a manner reasonably satisfactory to the
Administrative Agent and together with each ancillary action reasonably
requested by the Administrative Agent to be performed by any Loan Party in
connection therewith, in each case (x) within the periods set forth opposite
each such item or action on such Schedule or such later period as may be agreed
to by the Administrative Agent and (y) unless otherwise agreed by the
Administrative Agent in respect of any such item or action.
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ARTICLE VIII
NEGATIVE COVENANTS
Each of Holdings and the Borrowers agrees with the Lenders, the
Issuers, the Administrative Agent, the Australian Agent and the Australian
Collateral Trustee to each of the following, as long as any Obligation or any
Revolving Credit Commitment remains outstanding and, in each case, unless the
Requisite Lenders otherwise consent in writing:
SECTION 8.1 INDEBTEDNESS
None of Holdings or any Borrower shall, nor shall they permit any of
their respective Subsidiaries to, directly or indirectly create, incur, assume
or otherwise become or remain directly or indirectly liable with respect to any
Indebtedness except for the following:
(a) the Secured Obligations (other than in respect of Hedging
Contracts not permitted pursuant to clause (h) below);
(b) Indebtedness existing on the date of this Agreement and
disclosed on Schedule 8.1 (Existing Indebtedness);
(c) Guaranty Obligations incurred by Holdings, any Borrower or any
Subsidiary Guarantor in respect of Indebtedness of any Borrower or any
Subsidiary Guarantor that is permitted by this Section 8.1 (other than
pursuant to clause (j), (k) or (o) below) and for which, if required,
appropriate Guaranty Obligations have been provided pursuant to Section
7.11 (Additional Collateral and Guaranties); provided, however, that, in
respect of Guaranty Obligations of Indebtedness permitted pursuant to
clause (l) below, such Guaranty Obligation shall be permitted only if it
is not reflected on the balance sheet and other Financial Statements of
the Company or any of its Subsidiaries other than as a contingent
obligation referred to in a footnote to such Financial Statements;
(d) (i) Capital Lease Obligations incurred by the Company or any of
its Subsidiaries with respect to fixed assets; provided, however, that,
subject to the last sentence of this Section 8.1, the Dollar Equivalent of
the aggregate outstanding principal amount of all such Capital Lease
Obligations (without duplication, together with any refinancing thereof in
clause (e) below) made during any period when the Aggregate Available
Credit is less than $75,000,000 shall not exceed $50,000,000 at any time
and (ii) purchase money Indebtedness incurred by the Company or any of its
Subsidiaries (without duplication, together with any refinancing thereof
in clause (e) below but other than Indebtedness constituting Capital Lease
Obligations or incurred as part of a sale and leaseback transaction) with
respect to fixed assets; provided, however, that the Dollar Equivalent of
the aggregate outstanding principal amount of all such purchase money
Indebtedness shall not exceed $50,000,000 at any time;
(e) Renewals, extensions, refinancings and refundings of
Indebtedness permitted by clause [(B)] or (d) above or this clause (e) or
clause (i) or (o) below; provided, however, that any such renewal,
extension, refinancing or refunding is (x) in an aggregate principal
amount not greater than the principal amount of the Indebtedness being
renewed, extended, refinanced or refunded, (y) on terms no less favorable
to the
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Company or any of its Subsidiaries with respect to weighted average
maturity and final maturity than such Indebtedness and (z) if such
Indebtedness is subordinated to any Secured Obligations (whether
structurally or otherwise), is subordinated on terms (taken as a whole) at
least as favorable to the Secured Parties;
(f) Indebtedness arising from intercompany loans (i) from the
Company to any Domestic Subsidiary Guarantor or from any Domestic
Subsidiary Guarantor to the Company or any other Domestic Subsidiary
Guarantor, (ii) from any Australian Loan Party to any other Australian
Loan Party, (iii) from the Company to Australian Holdings, to the extent
made under the Australian Intercompany Credit Agreement or from any
Australian Loan Party to the Company or any Domestic Subsidiary Guarantor
or (iv) from any Borrower or any Subsidiary Guarantor to any Subsidiary of
any Borrower that is not a Subsidiary Guarantor; provided, however, that,
in the case of this clause (iv), the Investment in such intercompany loan
to such Subsidiary is permitted under Section 8.3 (Investments);
(g) Indebtedness arising under any performance, surety or appeal
bond entered into in the ordinary course of business or, in respect of
Australian Subsidiaries, reimbursement or similar obligations regarding
workers' compensation claims;
(h) Obligations under Hedging Contracts permitted under Section 8.18
(No Speculative Transactions);
(i) Indebtedness in respect of the Senior Notes in an aggregate
principal amount not to exceed $268,000,000 and Indebtedness in respect of
the Subordinated Notes in an aggregate principal amount not to exceed
$150,000,000;
(j) Indebtedness of any Loan Party (i) constituting Indebtedness of
such Loan Party solely under clause (j) of the definition of Indebtedness
and solely because of a Lien on the Stock or Stock Equivalents of a
Permitted Joint Venture owned by such Loan Party to secure Indebtedness of
such Permitted Joint Venture and its Subsidiaries and (ii) whose holder's
sole recourse to any Loan Party is through such Lien on such Stock;
(k) Non-Recourse Indebtedness of a Subsidiary of any Borrower
assumed by such Subsidiary in connection with any Permitted Acquisition
(or, if such Subsidiary is acquired as part of such Permitted Acquisition,
existing prior thereto); provided, however, that (i) such Indebtedness
exists at the time of such Permitted Acquisition at least in the amounts
assumed in connection therewith and is not drawn down, created or
increased in contemplation of or in connection with such Permitted
Acquisition and (ii) such Indebtedness is not assumed (in whole or in part
and whether directly or pursuant to Guaranty Obligations) by any Person
that was a Loan Party or a Subsidiary thereof before giving effect to such
Permitted Acquisition;
(l) Indebtedness (other than Guaranty Obligations) arising from
Contractual Obligations incurred by the seller in connection with an Asset
Sale permitted pursuant to Section 8.4 (Sale of Assets) (other than the
Australian Asset Sale) and providing for indemnification, adjustments of
purchase price or similar obligations; provided, however, that such
Indebtedness shall be permitted solely if it is not reflected on the
balance sheet
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and other Financial Statements of the Company or any of its Subsidiaries
other than as a contingent obligation referred to in a footnote to such
Financial Statements;
(m) (i) Additional Unsecured Indebtedness in an aggregate principal
amount the Dollar Equivalent of which shall not exceed $200,000,000 and
(ii) unsecured (except to the extent secured by Liens permitted by Section
8.2(i) (Liens, Etc.)), Indebtedness not otherwise permitted under this
Section 8.1; provided, however, that the Dollar Equivalent of the
principal amount of all such Indebtedness permitted pursuant to this
clause (ii) shall not exceed $50,000,000 at any time;
(n) Capital Lease Obligations of the Company and its Subsidiaries in
respect of the Headquarters Lease; and
(o) Holdings Indebtedness.
For the avoidance of doubt, it is understood that no Capital Lease Obligations
initially made while the Aggregate Available Credit equals or exceeds
$75,000,000 shall constitute a Default or Event of Default under this Section
8.1 merely because the Aggregate Available Credit shall thereafter be less than
$75,000,000.
SECTION 8.2 LIENS, ETC.
None of Holdings or any Borrower shall, nor shall they permit any of
their respective Subsidiaries to, create or suffer to exist, any Lien upon or
with respect to any of their respective properties or assets, whether now owned
or hereafter acquired, or assign, or permit any of its Subsidiaries to assign,
any right to receive income, except for the following:
(a) Liens created pursuant to the Loan Documents;
(b) Liens existing on the date of this Agreement and disclosed on
Schedule 8.2 (Existing Liens);
(c) Customary Permitted Liens on the assets of Holdings, the Company
and the Company's Subsidiaries;
(d) purchase money Liens granted by the Company or any of its
Subsidiaries (including the interest of a lessor under a Capital Lease and
purchase money Liens to which any property is subject at the time, on or
after the date hereof, of the Company's or such Subsidiary's acquisition
thereof) securing Indebtedness permitted under clauses(d) and (n) of
Section 8.1 (Indebtedness) and limited in each case to the property
purchased with the proceeds of such purchase money Indebtedness or subject
to such Capital Lease;
(e) any Lien securing the renewal, extension, refinancing or
refunding of any Indebtedness secured by any Lien permitted by clause (b)
or clause (d) above or this clause (e) without any change in the assets
subject to such Lien and to the extent such renewal, extension,
refinancing or refunding is permitted by Section 8.1(e) (Indebtedness);
(f) any Lien securing Non-Recourse Indebtedness permitted pursuant
to Section 8.1(k) (Indebtedness); provided, however, that (i) such Lien
exists at the time of
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the Permitted Acquisition relating to such Non-Recourse Indebtedness and
is not created in contemplation of or in connection with such Permitted
Acquisition, (ii) such Lien secures solely fixed assets acquired (or fixed
assets of Persons acquired) as part of such Permitted Acquisition and no
assets constituting Collateral immediately prior to such Permitted
Acquisition are subject to such Lien and (iii) each of the aggregate fair
market value of all assets subject to any such Lien and the aggregate
Non-Recourse Indebtedness secured by all such Liens shall not exceed
$25,000,000 at any time;
(g) Liens in favor of lessors securing operating leases permitted
hereunder;
(h) Liens on the Stock and Stock Equivalents of Permitted Joint
Ventures to secure Indebtedness permitted pursuant to Section 8.1(j)
(Indebtedness) if no holder of such Indebtedness has or could have upon
the occurrence of any contingency any recourse against any Loan Party or
any assets of any Loan Party (other than such Stock and Stock
Equivalents); and
(i) Liens not otherwise permitted by the foregoing clauses of this
Section 8.2 securing obligations or other liabilities of any Loan Party;
provided, however, that the Dollar Equivalent of the aggregate outstanding
amount of all such obligations and liabilities shall not exceed $5,000,000
at any time.
SECTION 8.3 INVESTMENTS
None of Holdings or any Borrower shall, nor shall they permit any of
their respective Subsidiaries to, directly or indirectly make or maintain any
Investment except for the following:
(a) Investments existing on the date of this Agreement and disclosed
on Schedule 8.3 (Existing Investments);
(b) Investments in Capital Expenditures of the Company or any of its
Subsidiaries, to the extent such Capital Expenditures are otherwise
permitted hereunder;
(c) Investments in cash and Cash Equivalents;
(d) Investments in Hedging Contracts permitted under Section 8.18
(No Speculative Transactions);
(e) Investments in promissory notes and other similar non-cash
consideration received by any Loan Party in connection with Asset Sales
permitted under Section 8.4(i) or (j) (Sale of Assets) in which the
Administrative Agent or in respect of any such Collateral located in
Australia, the Australian Collateral Trustee (on behalf of the Secured
Parties) shall have a valid, enforceable and perfected security interest
pursuant to the Collateral Documents;
(f) Investments in accounts, payment intangibles and chattel paper
(each as defined in the UCC), notes receivable and similar items arising
or acquired in the ordinary course of business consistent with the past
practice of the Company and its Subsidiaries;
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(g) Investments in pledges, deposits and payment or performance
bonds made or given in the ordinary course of business, required to be
made pursuant to applicable Requirements of Law, in connection with or to
secure obligations under Requirements of Law, including under health,
safety or environmental Requirements of Law;
(h) Investments received in connection with the bankruptcy or
reorganization of suppliers or customers or in settlement of amounts due
(including in settlement or delinquent obligations of, and other disputes
with, suppliers and customers) to the Company or any of its Subsidiaries
effected in the ordinary course of business;
(i) Investments constituting Guaranty Obligations permitted by
Section 8.1 (Indebtedness);
(j) Investments by (i) Holdings in the Company, (ii) the Company in
any Domestic Subsidiary Guarantor or by any Subsidiary of Holdings or any
Borrower in the Company or any Domestic Subsidiary Guarantor, (iii) any
Non-U.S. Guarantor in any other Non-U.S. Guarantor, (iv) any Subsidiary of
the Company that is not a Subsidiary Guarantor in the Company or any other
Subsidiary of the Company, (v) the Company and Australian Holdings in
Australian Holdings and the Company, respectively, (vi) a Borrower or any
Subsidiary Guarantor in connection with a Permitted Acquisition or (vii) a
Borrower or any Subsidiary Guarantor in any Permitted Joint Venture and in
Stock and Stock Equivalents of other Persons that are neither Joint
Ventures nor Loan Parties; provided, however, that, subject to the last
sentence of this Section 8.3, the Dollar Equivalent of the aggregate Net
Investment Amount at any time of all Investments in Permitted Joint
Ventures, Stock and Stock Equivalents permitted pursuant to this clause
(vii), and made during any period when the Aggregate Available Credit is
less than $75,000,000 shall not exceed $75,000,000; and provided, further,
that, subject to the last sentence of this Section 8.3, on or after the
Effective Date, the Company shall not make any further Investments in
Australian Holdings or any Subsidiary of Australian Holdings other than,
as long as no Default or Event of Default has occurred and is continuing,
(x) to the extent such Investments in the aggregate do not cause the
capitalization of Australian Holdings to exceed by more than 5% the
minimum appropriate to comply at all times with applicable Requirements of
Law relating to minimum capitalization (including additional
capitalization that may be required because of additional Investments made
pursuant to the Australian Intercompany Credit Agreement) and (y) pursuant
to, and as evidenced by, the Australian Intercompany Credit Agreement;
(k) loans or advances to employees or individual independent
contractors of the Company or any of its Subsidiaries in the ordinary
course of business as presently conducted other than any loans or advances
to any director or executive officer (or equivalent thereof) that would be
in violation of Section 402 of the Xxxxxxxx-Xxxxx Act; provided, however,
that the Dollar Equivalent of the aggregate principal amount of all such
loans and advances shall not exceed $1,000,000 at any time; and
(l) Investments not otherwise permitted by this Section 8.3, so long
as, both immediately before and after giving effect to such Investment,
the Aggregate Available Credit is not less than $75,000,000; provided,
however, that no such Investment shall be permitted if either (i) an Event
of Default or Default shall have occurred or would result
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therefrom or (ii) such Investment is prohibited under the terms of any
Indebtedness (other than the Obligations) of Holdings, the Company or any
of its Subsidiaries.
For the avoidance of doubt, it is understood that no Investment initially made
while the Aggregate Available Credit equals or exceeds $75,000,000 shall
constitute a Default or Event of Default under this Section 8.3 merely because
the Aggregate Available Credit shall thereafter be less than $75,000,000.
SECTION 8.4 SALE OF ASSETS
None of Holdings or any Borrower shall, nor shall they permit any of
their respective Subsidiaries to, sell, convey, transfer, lease or otherwise
dispose of, any of their respective assets or any interest therein (including
the sale or factoring at maturity or collection of any accounts) to any Person,
or permit or suffer any other Person to acquire any interest in any of their
respective assets or, in the case of any Subsidiary, issue or sell any shares of
such Subsidiary's Stock or Stock Equivalent (any such disposition being an
"Asset Sale"), except for the following:
(a) the sale or disposition of Cash Equivalents or Inventory in the
ordinary course of business;
(b) the sale or disposition of Equipment or Real Property in the
ordinary course of business that has become obsolete or is replaced or is
no longer necessary in or useful to the business of the Company and its
Subsidiaries;
(c) (i) a true lease or sublease of Real Property not constituting
Indebtedness and not constituting a sale and leaseback and (ii) a sale of
assets pursuant to a sale and leaseback permitted under Section 8.17(b)
(Operating Leases; Sale/Leasebacks);
(d) assignments and licenses of intellectual property of the Company
and its Subsidiaries in the ordinary course of business;
(e) any Asset Sale (i) by the Company or any Domestic Subsidiary
Guarantor to the Company or any Domestic Subsidiary Guarantor, (ii) by any
Australian Loan Party to any other Australian Loan Party or (iii) by any
Subsidiary of the Company that is not a Loan Party to any Loan Party;
(f) licenses and sublicenses by the Company and its Subsidiaries of
software, trademarks and other intellectual property in the ordinary
course of business and which licenses and sublicenses do not materially
interfere with the business of the Company and its Subsidiaries;
(g) transfers resulting from any casualty or condemnation of assets;
(h) pro rata dispositions of property to joint venturers in
connection with the dissolution or termination of a Permitted Joint
Venture to the extent required pursuant to Contractual Obligations
relating to such Permitted Joint Venture and to the extent such
dissolution or termination is otherwise permitted hereunder;
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(i) as long as no Default or Event of Default is continuing or would
result therefrom, an Asset Sale (the "Australian Asset Sale") for at least
Fair Market Value in an arm's length transaction of all or substantially
all of the assets of Australian Holdings and its Subsidiaries or all of
the shares of Australian Holdings or Australian Company, at least 75% of
which shall be payable solely in cash, Cash Equivalents or assumption of
the liabilities of the seller, in each case upon the consummation of such
sale; provided, however, that with respect to any such Asset Sale pursuant
to this clause (i), all Obligations of any Australian Borrower hereunder,
all Secured Obligations of Australian Holdings and its Subsidiaries and
all obligations of Australian Holdings and its Subsidiaries under the
Australian Intercompany Credit Agreement and the Australian Intercompany
Guaranty shall have been irrevocably paid in full in cash and each Letter
of Credit Issued for the account of any Australian Borrower shall have
been terminated (or, in respect of each such Letter of Credit which shall
not have been terminated, all Reimbursement Obligations and other Secured
Obligations in respect of such Letter of Credit shall have been assumed by
the Company or cash collateral shall have been provided to the
Administrative Agent in an amount equal to 102% of the Letter of Credit
Obligations for such Letter of Credit); and provided, further, that, (A)
on or prior to the consummation of such Australian Asset Sale, the
Borrower shall deliver to the Administrative Agent a Borrowing Base
Certificate as of the date of such consummation and after giving effect
thereto and (B) all payments expected to be required as a result of such
Australian Asset Sale pursuant to Section 2.9 (Mandatory Prepayments)
after giving effect to such Australian Asset Sale shall have been
irrevocably made in cash;
(j) as long as no Default or Event of Default is continuing or would
result therefrom, any other Asset Sale for Fair Market Value, at least 75%
of the consideration for which shall be payable in cash, Cash Equivalents
or assumption of the liabilities of the seller, in each case upon the
consummation of such sale; provided, however, that with respect to any
such Asset Sale pursuant to this clause (j), the Dollar Equivalent of the
aggregate consideration received during any Fiscal Year for all such Asset
Sales shall not exceed $95,000,000; and provided, further, that (i) to the
extent that, in any Fiscal Year, the Dollar Equivalent of the aggregate
consideration received during the previous Fiscal Year for all such Asset
Sales shall be less than $95,000,000 (without giving effect to the
carryover permitted by this proviso), the excess of $95,000,000 over such
aggregate consideration shall be added for such Fiscal Year to the
$95,000,000 limit set forth in the preceding proviso and (ii) on or prior
to the consummation of any such Asset Sale, (A) the Borrower shall deliver
to the Administrative Agent a Borrowing Base Certificate as of the date of
such consummation and after giving effect thereto and (B) all payments
expected to be required as a result of such Asset Sale pursuant to Section
2.9 (Mandatory Prepayments) after giving effect to such Asset Sale shall
have been irrevocably made in cash; and
(k) any issuance of Stock or Stock Equivalents by any Subsidiary of
the Company to an existing holder of Stock of such Subsidiary, so long as
the proportion of such Stock and of each class of such Stock or Stock
Equivalents (both on an outstanding and a fully-diluted basis) held by
each holder of such Stock or Stock Equivalents does not change as a result
of such issuance.
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SECTION 8.5 RESTRICTED PAYMENTS
No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, directly or indirectly, pay, make or set apart any sum for any
Restricted Payment except for the following:
(a) Restricted Payments (i) by any Domestic Subsidiary Guarantor to
the Company or any other Domestic Subsidiary Guarantor, (ii) by any other
Subsidiary of the Company to the Company or any Subsidiary Guarantor (for
the avoidance of doubt, Australian Holdings may make Restricted Payments
to the Company in lieu of making a payment under the Australian
Intercompany Credit Agreement) or (iii) by any Subsidiary of the Company
that is not a Subsidiary Guarantor to any Subsidiary of the Company that
is not a Subsidiary Guarantor;
(b) dividends and distributions declared and paid on the common
Stock of the Company and payable only in common Stock of the Company;
(c) cash dividends on the Stock of the Company to Holdings paid and
declared in any Fiscal Year solely for the purpose of funding, directly or
indirectly, the following:
(i) administrative, legal, financial, accounting or similar
ordinary operating expenses and corporate overhead expenses relating to
Holdings, SFC and any Intermediary Holding Company's direct and indirect
ownership of the Company not in excess of $5,000,000 in any Fiscal Year in
the aggregate, to be paid by the Company as and when needed by Holdings,
SFC or such Intermediary Holding Company;
(ii) payments required to be made under the Tax Sharing
Agreement in an amount not greater than the amount of taxes that would be
payable by the Company, on a consolidated basis, if the Company were the
taxpayer; provided, however, that any refunds received by Holdings, SFC or
any Intermediary Holding Company attributable to the Company and its
Subsidiaries shall promptly be returned by Holdings, SFC and such
Intermediary Holding Company to the Company;
(iii) payments by SFC or any of its Subsidiaries (other than
Swift Cattle Holdco, Inc., a Delaware corporation) in respect of the
Management Agreement or the Financial Advisory Agreement, to the extent
such payments are permitted pursuant to clause (e)(v) of Section 8.9
(Transactions with Permitted Joint Ventures and Affiliates);
(iv) cash payments by Holdings, SFC or any Intermediary
Holding Company to be made in lieu of the issuance of fractional shares in
connection with the exercise of any Stock Equivalents of Holdings, SFC or
such Intermediary Holding Company;
(v) the repurchase, redemption or other acquisition or
retirement for value of any of the Stock or Stock Equivalents of Holdings,
SFC or any Intermediary Holding Company held by any then existing or
former director, officer, employee, individual that is an independent
contractor or consultant of SFC, Holdings, such Intermediary Holding
Company, the Company or any of the Company's Subsidiaries; or their
respective assigns, estates or heirs; provided, however, that, subject to
the last
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sentence of this Section 8.5, the aggregate amount of Restricted Payments
made to fund payments made pursuant to this clause (v) (other than as a
result of the death or disability of any such director, officer, employee
or individual) and made during any period when the Aggregate Available
Credit is less than $75,000,000 shall not exceed $5,000,000 in the
aggregate; and
(vi) cash payment of interest on the ConAgra Note or the
Convertible Notes, in each case required pursuant to the provisions
thereof as in effect on the Purchase Date (or, in the case of the
Convertible Notes, on the date hereof) after an initial public offering of
SFC or any Intermediary Holding Company; and
(d) any other Restricted Payment; provided, however, that, at the
time such dividend is paid and both immediately before and after giving
effect to such dividend, the Aggregate Available Credit shall equal or
exceed $75,000,000;
provided, however, that the Restricted Payments described in clauses (c) and (d)
above (other than those described in clause (c)(ii) thereof) shall not be
permitted if either (A) an Event of Default or Default shall have occurred and
be continuing at the date of payment thereof or would result therefrom or (B)
such Restricted Payment is prohibited under the terms of any Indebtedness (other
than the Obligations) of Holdings, the Company or any of its Subsidiaries.
For the avoidance of doubt, it is understood that no Restricted Payment
initially made while the Aggregate Available Credit equals or exceeds
$75,000,000 shall constitute a Default or Event of Default under this Section
8.5 merely because the Aggregate Available Credit shall thereafter be less than
$75,000,000.
SECTION 8.6 PREPAYMENT AND CANCELLATION OF INDEBTEDNESS
(a) None of Holdings or any Borrower shall, nor shall they permit
any of their respective Subsidiaries to, cancel any claim or Indebtedness
owed to any of them except in the ordinary course of business.
(b) None of Holdings or any Borrower shall, nor shall they permit
any of their Subsidiaries to, prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner,
or make any payment in violation of any subordination terms of, any
Indebtedness; provided, however, that this Section 8.6 (Prepayment and
Cancellation of Indebtedness) shall not prohibit, as long as all terms of
such transaction are otherwise in accordance with this Agreement, Holdings
and its Subsidiaries from (i) prepaying the Obligations in accordance with
the terms of this Agreement and, other than after the occurrence and
during the continuance of any Event of Default, prepaying or repaying any
obligation under the Australian Intercompany Credit Agreement in
accordance with the terms thereof, (ii) making, to the extent permitted by
the terms thereof, regularly scheduled or otherwise required repayments or
redemptions of Indebtedness, (iii) prepaying any Indebtedness payable to
any Loan Party, (iv) prepaying, renewing, extending, refinancing and
refunding Indebtedness, as long as such renewal, extension, refinancing
and refunding is permitted under Section 8.1(e) (Indebtedness) or is the
repayment of the Existing Loans described in Section 11.10 (Amendment and
Restatement; Binding Effect), (v) exchanging any Indebtedness permitted
hereunder (other than the Secured Obligations) for Stock or Stock
Equivalents of Holdings or for Indebtedness permitted to be incurred
hereunder, provided, however,
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that (A) in the case of any Stock or Stock Equivalents, no Loan Party is
under any obligation as a result of such exchange to declare dividends on
or redeem, purchase, retire, defease or otherwise acquire for value such
Stock or Stock Equivalents (other than at the option of a Loan Party or
after the latest maturity of any Permitted Unsecured Indebtedness but
including solely at the option of other Persons and pursuant to a sinking
fund obligation or otherwise), (B) in the case of such Indebtedness, such
Indebtedness is junior to, or pari passu with, such exchanged Indebtedness
and the Obligations and (C) such Stock, Stock Equivalents or Indebtedness
is otherwise on terms no less favorable to the Loan Parties that those of
such exchanged Indebtedness, (vi) repaying or prepaying Indebtedness
incurred pursuant to clause (d), (h), (m)(ii) or, in the case of Holdings,
(o) of Section 8.1 (Indebtedness) in accordance with the terms thereof and
(vii) at any time and from time to time prior to October 1, 2005, the
Company may redeem up to 35% of the aggregate principal amount of the
Senior Notes and the Subordinated Notes then outstanding with the net cash
proceeds of Equity Offerings received by the Company on the terms provided
in the Senior Notes Indenture or the Subordinated Notes Indenture, as
applicable.
SECTION 8.7 RESTRICTION ON FUNDAMENTAL CHANGES; PERMITTED
ACQUISITIONS
Except, other than in respect of clause (e) below, in connection
with a Permitted Acquisition, none of Holdings or any Borrower shall, nor shall
they permit any of their respective Subsidiaries to, (a) merge with any Person,
(b) consolidate with any Person, (c) acquire all or substantially all of the
Stock or Stock Equivalents of any Person, (d) acquire all or substantially all
of the assets of any Person or all or substantially all of the assets
constituting the business of a division, branch or other unit operation of any
Person, (e) enter into any Joint Venture (other than a Permitted Joint Venture)
or own any Stock or Stock Equivalents in respect of any such Joint Venture or
(f) create any Subsidiary unless, after giving effect to such creation, such
Subsidiary is a Wholly-Owned Subsidiary of any Borrower, each Borrower is in
compliance with Section 7.11 (Additional Collateral and Guaranties) within 10
Business Days after the creation thereof and the Investment in such Subsidiary
is permitted under Section 8.3 (Investments); provided, however, that (x) any
Domestic Subsidiary of the Company may be merged or consolidated with or into
the Company or any Domestic Subsidiary Guarantor, as long as the Company or such
Domestic Subsidiary Guarantor is the surviving corporation, (y) any Subsidiary
of Australian Holdings may be merged or consolidated with or into any Australian
Borrower or (if such Subsidiary is not an Australian Borrower) any Subsidiary
Guarantor that is a Subsidiary of the Australian Holdings organized and existing
under the laws of Australia, as long as such Australian Borrower or, as the case
may be, such Subsidiary Guarantor is the surviving corporation.
SECTION 8.8 CHANGE IN NATURE OF BUSINESS
(a) No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, make any material change in the nature or conduct of its
business as carried on at the date hereof, whether in connection with a
Permitted Acquisition or otherwise.
(b) Holdings shall not engage in any business or activity and shall
not own any significant assets or have any material liabilities other than
(i) shares in the Stock of the Company, (ii) obligations under this
Agreement, the other Loan Documents and the Related Documents or
Acquisition Documents and Indebtedness permitted to be incurred by
Holdings under Section 8.1 (Indebtedness) and (iii) activities that are
incidental to (x) the maintenance of its corporate existence in compliance
with applicable Requirements of
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Law and (y) legal, tax and accounting matters in connection with any
activity otherwise permitted hereunder.
SECTION 8.9 TRANSACTIONS WITH PERMITTED JOINT VENTURES AND
AFFILIATES
No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, except as otherwise expressly permitted herein (including under
the Related Documents and the Acquisition Documents), do any of the following:
(a) make any Investment in an Affiliate of the Company that is not a Subsidiary
of the Company or a Permitted Joint Venture, (b) transfer, sell, lease, assign
or otherwise dispose of any asset to any Affiliate of any Borrower that is not a
Subsidiary of the Company or a Permitted Joint Venture (other than Restricted
Payments permitted under Section 8.5 (Restricted Payments)), (c) merge into or
consolidate with or purchase or acquire assets from any Affiliate of any
Borrower that is not a Subsidiary of the Company, (d) repay any Indebtedness to
any Affiliate of any Borrower that is not a Subsidiary of any Borrower or a
Permitted Joint Venture or (e) enter into any other transaction directly or
indirectly with or for the benefit of any Permitted Joint Venture or any
Affiliate of any Borrower that is not a Guarantor (including guaranties and
assumptions of obligations of any such Affiliate), except, in the case of
clauses (a) through (e) above, for (i) transactions not otherwise prohibited
hereunder and on a basis no less favorable (in the aggregate) to Holdings, the
Loan Parties and their Subsidiaries as would be obtained in a comparable arm's
length transaction with a Person not an Affiliate thereof and not a Permitted
Joint Venture, (ii) salaries and other director or employee compensation to
officers or directors of SFC, any Intermediary Holding Company, Holdings, the
Company or any Subsidiary of the Company in the ordinary course of business or
paid in the commercially reasonable judgment of the Company, (iii) Restricted
Payments permitted under Section 8.5 (Restricted Payments), (iv) payments
pursuant to the Tax Sharing Agreement described in Section 8.5(c)(ii)
(Restricted Payments) and payments pursuant to any Loan Document or any Related
Document and (v) payments contemplated in the Management Agreement or the
Financial Advisory Agreement, each in the form presented to the Administrative
Agent on the date hereof in the amounts contemplated therein on the date hereof;
provided, however, that, notwithstanding anything else to the contrary in this
Agreement, no such payments shall be made under the Management Agreement or the
Financial Advisory Agreement as long as any Default or Event of Default has
occurred and is continuing.
SECTION 8.10 LIMITATIONS ON RESTRICTIONS ON SUBSIDIARY
DISTRIBUTIONS; NO NEW NEGATIVE PLEDGE
Except pursuant to the Loan Documents, any Permitted Unsecured Debt
Document and any agreements governing purchase money Indebtedness or Capital
Lease Obligations permitted by Section 8.1(b), (d) or (e) (Indebtedness) (in
which latter case, any prohibition or limitation shall only be effective against
the assets financed thereby), no Borrower shall, nor shall any Borrower permit
any of its Subsidiaries (other than Permitted Joint Ventures) to, (a) agree to
enter into or suffer to exist or become effective any Contractual Obligation
expressly restricting, or other consensual encumbrance or express restriction of
any kind on, the ability of such Subsidiary to pay dividends or make any other
distribution or transfer of funds or assets or make loans or advances to or
other Investments in, or pay any Indebtedness owed to, any Borrower or any
Subsidiary of any Borrower or (b) enter into or suffer to exist or become
effective any Contractual Obligation prohibiting or limiting the ability of any
Borrower or any Subsidiary of any Borrower to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, to secure the Obligations,
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including any agreement requiring any other Indebtedness or Contractual
Obligation to be equally and ratably secured with the Obligations.
SECTION 8.11 MODIFICATION OF CONSTITUENT DOCUMENTS
None of Holdings or any Borrower shall, nor shall they permit any of
their respective Subsidiaries to, amend its Constituent Documents, except for
changes and amendments that are permitted by this Agreement or do not materially
adversely affect the rights and privileges of Holdings, any Borrower or any of
their respective Subsidiaries and do not materially adversely affect the
interests of the Administrative Agent, the Australian Agent, the Australian
Collateral Trustee, the Lenders, the Issuers or the other Secured Parties under
the Loan Documents or in the Collateral.
SECTION 8.12 MODIFICATION OF RELATED DOCUMENTS
Neither Holdings nor any Borrower shall, nor shall they permit any
of their respective Subsidiaries to, (a) alter, rescind, terminate, amend,
supplement, waive or otherwise modify any provision of any Related Document
(except for modifications to the terms of any Permitted Unsecured Debt Document
permitted under Section 8.13 (Modification of Permitted Unsecured Indebtedness)
and modifications that do not materially adversely affect the rights and
privileges of Holdings, any Borrower or any of their respective Subsidiaries
under such Related Document and that do not materially adversely affect the
interests of the Secured Parties under the Loan Documents or in the Collateral)
or (b) permit any breach or default to exist under any Related Document or take
or fail to take any action thereunder, except for those that would not result in
any breach or default thereunder, if to do so could reasonably be expected to
have a Material Adverse Effect.
SECTION 8.13 MODIFICATION OF PERMITTED UNSECURED INDEBTEDNESS
Neither Holdings nor any Borrower shall, nor shall they permit any
of their respective Subsidiaries to, change or amend the terms of any Permitted
Unsecured Debt Document if the effect of such amendment is to (a) increase the
interest rate (or decrease the portion of such interest rate that is not
required to be paid in cash) on any Permitted Unsecured Indebtedness, (b) change
the dates upon which payments of principal or interest are due on any Permitted
Unsecured Indebtedness other than, in each case, to extend such dates, (c)
change any default or event of default other than to delete or make less
restrictive any default provision therein, or add any covenant with respect to
any Permitted Unsecured Indebtedness, (d) change the redemption or prepayment
provisions of any Permitted Unsecured Indebtedness other than to extend the
dates therefor or to reduce the premiums payable in connection therewith, (e)
change any subordination provision of any Permitted Unsecured Indebtedness or
(f) change or amend any other term if such change or amendment would materially
increase the obligations of the obligor or confer additional material rights to
the holder of any Permitted Unsecured Indebtedness in a manner adverse to
Holdings, any Borrower, any of their respective Subsidiaries, the Administrative
Agent, the Australian Agent, the Australian Collateral Trustee or any Lender,
Issuer or other Secured Party.
SECTION 8.14 ACCOUNTING CHANGES; FISCAL YEAR
Neither Holdings nor any Borrower shall, nor shall they permit any
of their respective Subsidiaries to, change its (a) accounting treatment and
reporting practices or tax
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reporting treatment, except (i) as required by GAAP or any Requirement of Law or
(ii) as permitted by GAAP and each applicable Requirement of Law and, in each
case to the extent material, disclosed to the Lenders and the Administrative
Agent or (b) Fiscal Year.
SECTION 8.15 MARGIN REGULATIONS
No part of the proceeds of any Borrowings or borrowing of any Swing
Loans shall be used, whether directly or indirectly, for any purpose that
entails a violation of Regulation T, U or X of the Federal Reserve Board.
SECTION 8.16 XXXXXXXX-XXXXX ACT
Neither Holdings nor any Borrower shall, nor shall they permit any
of their Subsidiaries to, make any loans to any directors or executive officers
(or equivalent thereof) in violation of Section 402 of the Xxxxxxxx-Xxxxx Act
(Section 13 of the Exchange Act) or fail to comply in any material respect with
any other provision of the Xxxxxxxx-Xxxxx Act.
SECTION 8.17 OPERATING LEASES; SALE/LEASEBACKS
(a) Except for transactions permitted by clause (b) below, no
Borrower shall, nor shall any Borrower permit any of its Subsidiaries to,
become or remain liable as lessee or guarantor or other surety with
respect to any operating lease, unless the Dollar Equivalent of the
aggregate amount of all rents paid or accrued under all such operating
leases shall not exceed $22,500,000 in any Fiscal Year.
(b) No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, enter into any sale and leaseback transaction if, after
giving effect to such sale and leaseback transaction, (i) the Aggregate
Available Credit would be less than $75,000,000 and (ii) the Dollar
Equivalent of the aggregate Fair Market Value of all properties covered by
sale and leaseback transactions entered into during any period when the
Aggregate Available Credit is less than $75,000,000 would exceed
$50,000,000. For the avoidance of doubt, it is understood that no sale and
leaseback transaction initially entered into while the Aggregate Available
Credit equals or exceeds $75,000,000 shall constitute a Default or Event
of Default under this Section 8.17 merely because the Aggregate Available
Credit shall thereafter be less than $75,000,000.
SECTION 8.18 NO SPECULATIVE TRANSACTIONS
No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, engage in any speculative transaction or in any transaction
involving Hedging Contracts except as for the sole purpose of hedging in the
normal course of business and consistent with industry practices.
SECTION 8.19 COMPLIANCE WITH ERISA
None of Holdings or any Borrower shall cause or permit to occur, nor
shall any Borrower permit any of its Subsidiaries or ERISA Affiliates to cause
or permit to occur, (a) an event that could result in the imposition of a Lien
under Section 412 of the Code or Section 302 or 4068 of ERISA or (b) any ERISA
Event that, individually or in the aggregate, would have a Material Adverse
Effect or (c) without the prior approval of the Administrative Agent (which
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approval shall not be unreasonably withheld), establishment of a Title IV Plan
or contribution to a Multiemployer Plan other than such Plans listed on Schedule
4.17 (List of Plans). None of Holdings, the Company or any of the Company's
Subsidiaries shall take any action (including any steps to terminate any
Compensation Plan), or make any omission (including any failure to make any
required contributions to any Compensation Plan), with respect to any
Compensation Plan, in either case that could reasonably be expected to (i)
result in liabilities to Holdings, the Company or any of the Company's
Subsidiaries the Dollar Equivalent of which shall be in excess of $10,000,000 in
the aggregate, (ii) give rise to a Lien over any of the properties, assets or
revenues of Holdings, the Company or any of the Company's Subsidiaries or (iii)
result in a Material Adverse Effect.
SECTION 8.20 ENVIRONMENTAL
No Borrower shall, nor shall any Borrower permit any of its
Subsidiaries to, allow a Release of any Contaminant in violation of any
Environmental Law, except for those Releases that would not, individually or in
the aggregate and together with all Environmental Liabilities and Costs incurred
or reasonably expected to be incurred as a consequence thereof, have a Material
Adverse Effect.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1 EVENTS OF DEFAULT
Each of the following events shall be an Event of Default:
(a) any Borrower shall fail to pay any principal of any Loan or any
Reimbursement Obligation when the same becomes due and payable; or
(b) any Borrower shall fail to pay any interest on any Loan, any fee
under any of the Loan Documents or any other Obligation (other than one
referred to in clause (a) above) and such non-payment continues for a
period of five Business Days after the due date therefor; or
(c) any representation or warranty made or deemed made by any Loan
Party in any Loan Document or by any Loan Party (or any of its officers)
in connection with any Loan Document shall prove to have been incorrect in
any material respect when made or deemed made; or
(d) any Loan Party shall fail to perform or observe (i) any term,
covenant or agreement contained in Article V (Financial Covenants),
Section 6.2 (Default Notices), 7.1 (Preservation of Corporate Existence,
Etc.), 7.6 (Access), 7.9 (Use of Proceeds; Ranking), 7.11 (Additional
Collateral and Guaranties), 7.14 (Real Property), 7.15 (Post-Closing
Deliveries) or Article VIII (Negative Covenants), (ii) any term, covenant
or agreement contained in Section 6.1 (Financial Statements), if such
failure shall remain unremedied for 5 days, or (iii) any other term,
covenant or agreement contained in this Agreement or in any other Loan
Document if such failure under this clause (iii) shall remain unremedied
for 30 days after the earlier of (A) the date on which a Responsible
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Officer of any Borrower becomes aware of such failure and (B) the date on
which written notice thereof shall have been given to the Company by any
Agent, Lender, Issuer or other Secured Party; or
(e) (i) Holdings, any Borrower or any Subsidiary of any Borrower
shall fail to make any payment on any Indebtedness of Holdings, any such
Borrower or any such Subsidiary (other than the Obligations) or any
Guaranty Obligation in respect of Indebtedness of any other Person, (ii)
any other event shall occur or condition shall exist under any agreement
or instrument relating to any such Indebtedness, if the effect of such
event or condition is to accelerate, or to permit the acceleration of, the
maturity of such Indebtedness or (iii) any such Indebtedness shall become
or be declared to be due and payable, or required to be prepaid or
repurchased (other than by a regularly scheduled required prepayment),
prior to the stated maturity thereof, and, for each of clause (i), (ii)
and (iii) above, such failure relates to Indebtedness having a principal
amount whose Dollar Equivalent equals or exceeds $25,000,000, when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise); or
(f) (i) Holdings, any Borrower or any Subsidiary of any Borrower
shall (A) generally not pay its debts as such debts become due, shall
admit in writing its inability to pay its debts generally or shall make a
general assignment for the benefit of creditors or (B) in the case of any
Australian Subsidiary, have a controller or be insolvent, under
administration or insolvency, in receivership, in receivership and
management, in liquidation, in provisional liquidation, under
administration, wound up, subject to any arrangement, deed of arrangement,
assignment or composition, protected from creditors under any statute or
dissolved (other than to carry out a reconstruction while solvent), in
each case under and as defined Australian Requirements of Law (including
the Australian Corporations Act), (ii) any proceeding shall be instituted
by or against Holdings, any Borrower or any Subsidiary of any Borrower
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts, under any Requirement of Law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a custodian,
receiver, trustee or other similar official for it or for any substantial
part of its property; provided, however, that, in the case of any such
proceedings instituted against Holdings, any Borrower or any Subsidiary of
any Borrower (but not instituted by Holdings, any Borrower or any
Subsidiary of any Borrower), either such proceedings shall remain
undismissed or unstayed for a period of 60 days or more or any action
sought in such proceedings shall occur or (iii) Holdings, any Borrower or
any Subsidiary of any Borrower shall take any corporate action to
authorize any action set forth in clauses (i) and (ii) above; or
(g) one or more judgments or orders (or other similar process)
involving, in the case of money judgments, an aggregate amount whose
Dollar Equivalent exceeds $15,000,000, to the extent not covered by
insurance, shall be rendered against one or more of any Loan Party and its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) 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; or
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(h) an ERISA Event shall occur and the amount of all liabilities and
deficiencies resulting therefrom, whether or not assessed, exceeds
$10,000,000 in the aggregate; or
(i) Holdings, the Company or any of its Subsidiaries shall take any
action (including any steps to terminate any Compensation Plan), or make
any omission (including any failure to make any required contributions to
any Compensation Plan), with respect to any Compensation Plan, in either
case that could reasonably be expected to (i) result in liabilities for
Holdings, the Company or any of the Company's Subsidiaries the Dollar
Equivalent of which shall be in excess of $10,000,000 in the aggregate,
(ii) give rise to a Lien over any of the properties, assets or revenues of
Holdings, the Company or any of the Company's Subsidiaries or (iii) result
in a Material Adverse Effect; or
(j) any provision of any Loan Document after delivery thereof shall
for any reason fail or cease to be valid and binding on, or enforceable
against, any Loan Party party thereto, or any Loan Party shall so state in
writing (and, if such invalidity (together with all other invalidities
existing at the time of determination thereof) relates solely to
Collateral whose aggregate value has a Dollar Equivalent of $1,000,000 or
less and such invalidity is such so as to be amenable to cure without
material disadvantage to the position of the Administrative Agent, the
Australian Agent, the Australian Collateral Trustee and the other Secured
Parties under any Loan Document, such invalidity shall not be cured within
30 days of the earlier of such Loan Party so stating in writing or
delivery of notice thereof by the Administrative Agent to the Company (or
such shorter period as shall be specified by the Administrative Agent and
is reasonable under the circumstances)); or
(k) any Collateral Document shall for any reason fail or cease to
create a valid and enforceable Lien on any Collateral purported to be
covered thereby or, except as permitted by the Loan Documents, such Lien
shall fail or cease to be a perfected and first-priority Lien, or the
Sponsors, SFC, any Intermediary Holding Company or any Loan Party shall so
state in writing (and, if such invalidity relates solely to Collateral
whose aggregate value has a Dollar Equivalent of $1,000,000 or less and
such invalidity is such so as to be amenable to cure without material
disadvantage to the position of the Administrative Agent, the Australian
Agent, the Australian Collateral Trustee and the other Secured Parties
under any Loan Document, such invalidity shall not be cured within 30 days
of the earlier of any Loan Party having so stated in writing or the
delivery of notice thereof by the Administrative Agent to the Company (or
such shorter period as shall be specified by the Administrative Agent and
is reasonable under the circumstances)); or
(l) there shall occur any Change of Control or any "Change of
Control" under and as defined in any Permitted Unsecured Debt Document or
any similar event requiring any Loan Party to offer to purchase any
Indebtedness referred to in Section 8.1(m) (Indebtedness); or
(m) there shall occur any Australian Event of Default; or
(n) at any time (other than, to the extent such Australian Asset
Sale is permitted pursuant to Section 8.4(i) (Sale of Assets), on and
after the date of the
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consummation of the Australian Asset Sale), the Company shall cease to own
100% of the Stock of Australian Holdings or Australian Holdings shall
cease to own 100% of the Stock of the Australian Company; or
(o) except as would not, individually or in the aggregate, have a
Material Adverse Effect, one or more of Holdings, any Borrower and any
Subsidiary of any Borrower shall have entered into one or more consent or
settlement decrees or agreements or similar arrangements with a
Governmental Authority or one or more judgments, orders, decrees or
similar actions shall have been entered against one or more of Holdings,
any Borrower and any Subsidiary of any Borrower based on or arising from
the violation of or pursuant to any Environmental Law, or the generation,
storage, transportation, treatment, disposal or Release of any
Contaminant.
SECTION 9.2 REMEDIES
During the continuance of any Event of Default, the Administrative
Agent (a) may, and, at the request of the Requisite Lenders, shall, by notice to
the Company declare that all or any portion of the Revolving Credit Commitments
be terminated, whereupon the obligation of each Lender to make any Loan and each
Issuer to Issue any Letter of Credit shall immediately terminate and the
Australian Dollar Sublimits of each Australian Dollar Lender shall be reduced to
zero and (b) may, and, at the request of the Requisite Lenders, shall, by notice
to the Company, declare the Loans, all interest thereon and all other amounts
and Obligations payable under this Agreement to be forthwith due and payable,
whereupon the Loans, all such interest and all such amounts and Obligations
shall become and be forthwith due and payable and the Australian Dollar Sublimit
of each Lender shall be reduced to zero, in each case without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by each Borrower; provided, however, that upon the occurrence of the
Events of Default specified in Section 9.1(f) (Events of Default), (x) the
Revolving Credit Commitments of each Lender to make Loans and the commitments of
each Lender and Issuer to Issue or participate in Letters of Credit shall each
automatically be terminated and (y) the Loans, all such interest and all such
amounts and Obligations shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by each Borrower. In addition to the remedies set forth
above, the Administrative Agent, the Australian Agent and the Collateral Trustee
may exercise any remedies provided for by the Collateral Documents in accordance
with the terms thereof or any other remedies provided by applicable law.
SECTION 9.3 ACTIONS IN RESPECT OF LETTERS OF CREDIT
At any time (i) on the Revolving Credit Termination Date, (ii) after
the Revolving Credit Termination Date when the aggregate funds in all Cash
Collateral Accounts of any Borrower shall be less than 102% of the outstanding
Letter of Credit Obligations of such Borrower, (iii) to the extent required by
Section 2.9 (Mandatory Prepayments) or Section 7.13 (Control Accounts; Approved
Deposit Accounts) and (iv) to the extent required by any Issuer of Governmental
Bank Guarantees or by the Australian Agent in respect of Government Bank
Guarantees, such Borrower shall pay to the Administrative Agent in immediately
available Dollars at the Administrative Agent's office referred to in Section
11.8 (Notices, Etc.), for deposit in such Borrower's Cash Collateral Accounts,
the amounts required in Dollars so that the aggregate funds in Dollars in the
Cash Collateral Accounts of such Borrower shall equal or exceed (x) in the case
of clauses (i), (ii) and (iv) above, 102% of the sum of all outstanding Letter
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of Credit Obligations of such Borrower, (y) in the case of clause (iii) above,
the amount required by such Section 2.9 (Mandatory Prepayments) or Section 7.13
(Control Accounts; Approved Deposit Accounts) to be maintained in such account
to cash collateralize Letter of Credit Obligations. The Administrative Agent and
the Australian Agent may, from time to time after funds are deposited in any
Cash Collateral Account, apply funds then held in such Cash Collateral Account
to the payment of any amounts, in accordance with Section 2.13(g) (Payments and
Computations), as shall have become or shall become due and payable by any
Borrower to the Issuers or Lenders in respect of the aggregate Letter of Credit
Obligations of the Borrowers. Each of the Administrative Agent and the
Australian Agent shall promptly give written notice of any such application;
provided, however, that the failure to give such written notice shall not
invalidate any such application. When permitted under Section 2.9 (Mandatory
Prepayments), Section 7.13 (Control Accounts; Approved Deposit Accounts) and
Section 2.13 (Payments and Computations), after all Letters of Credit shall have
expired or be fully drawn and all Letter of Credit Obligations and other
Obligations shall have been paid in full, the balance (if any) in such Cash
Collateral Accounts shall be returned to the Borrower or other Person lawfully
entitled thereto.
SECTION 9.4 RESCISSION
If at any time after termination of the Revolving Credit Commitments
or acceleration of the maturity of the Loans, each Borrower shall pay all
arrears of interest and all payments on account of principal of the Loans owing
by it and Reimbursement Obligations of such Borrower that shall have become due
otherwise than by acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified herein) and all
Events of Default and Defaults (other than non-payment of principal of and
accrued interest on the Loans due and payable solely by virtue of acceleration)
shall be remedied or waived pursuant to Section 11.1 (Amendments, Waivers,
Etc.), then upon the written consent of the Requisite Lenders and written notice
to the Company, the termination of the Revolving Credit Commitments or the
acceleration and their consequences may be rescinded and annulled; provided,
however, that such action shall not affect any subsequent Event of Default or
Default or impair any right or remedy consequent thereon. The provisions of the
preceding sentence are intended merely to bind the Lenders and the Issuers to a
decision that may be made at the election of the Requisite Lenders, and such
provisions are not intended to benefit any Borrower and do not give any Borrower
the right to require the Lenders to rescind or annul any acceleration hereunder,
even if the conditions set forth herein are met.
ARTICLE X
THE ADMINISTRATIVE AGENT; OTHER AGENTS
SECTION 10.1 AUTHORIZATION AND ACTION
(a) Each Lender and each Issuer hereby appoints Citicorp as the
Administrative Agent and the Australian Agent and Citisecurities as the
Australian Collateral Trustee hereunder and each Lender and each Issuer
authorizes each of the Administrative Agent, Australian Agent and
Australian Collateral Trustee to take such action as agent on its behalf
and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent, the Australian
Agent and the Australian Collateral Trustee under such agreements and to
exercise such
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powers as are reasonably incidental thereto. Without limiting the
foregoing, each Lender and each Issuer hereby authorizes the
Administrative Agent, the Australian Agent and the Australian Collateral
Trustee to (i) execute and deliver, and to perform its obligations under,
each of the Loan Documents to which the Administrative Agent, the
Australian Agent or the Australian Collateral Trustee is a party, to (ii)
exercise all rights, powers and remedies that the Administrative Agent,
the Australian Agent or the Australian Collateral Trustee may have under
such Loan Documents, (iii) in the case of the Collateral Documents, to act
as agent for the Lenders, Issuers and the other Secured Parties under such
Collateral Documents and (iv) solely for the purposes of limiting the
amount of parties to a Japanese enforcement proceeding and in the
expectation or preparation of such a Japanese enforcement proceeding, and
solely, in the Administrative Agent's judgment at the time of such
relinquishment and after giving effect thereto, if the Administrative
Agent is satisfied that (A) the Obligations owing to the Lenders and
Issuers remaining beneficiaries of the Japanese Stock Pledges at such time
would seem to suffice to appropriately enforce the Lenders' and Issuers'
Japanese Stock Pledges and (B) such remaining Lenders and Issuers have
agreed to comply with Section 11.7 (Sharing of Payments, Etc.), to act in
the name of such Lender or Issuer, and to execute all appropriate
documents and perform appropriate actions in respect thereto, to
relinquish such Lender's or Issuer's rights under either Japanese Stock
Pledge. Each Lender and each Issuer hereby appoints JPMorgan as
Syndication Agent and each Listed Agent as Documentation Agent and hereby
authorizes each of them to act in such capacity on behalf of each such
Lender and each such Issuer in accordance with the terms of this Agreement
and the other Loan Documents.
(b) As to any matters not expressly provided for by this Agreement
and the other Loan Documents (including enforcement or collection), none
of the Administrative Agent, the Australian Agent or the Australian
Collateral Trustee shall be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Requisite Lenders (or, where expressly required by any
Loan Document, a greater proportion of the Lenders), and such instructions
shall be binding upon all Lenders and each Issuer; provided, however, that
none of the Administrative Agent, the Australian Agent or the Australian
Collateral Trustee shall be required to take any action that (i) such
Agent in good faith believes exposes such Agent to personal liability
unless such Agent receives an indemnification satisfactory to it from the
Lenders and the Issuers with respect to such action or (ii) is contrary to
this Agreement or applicable law; and provided, further, that each of the
Administrative Agent and the Australian Agent may forward instructions to
the Australian Collateral Trustee to perform, pursuant to any Australian
Collateral Document, any action permitted hereunder and the Australian
Collateral Trustee shall, when not prohibited to do so under the
applicable Australian Collateral Document, follow such instructions. Each
of the Administrative Agent, the Australian Agent and the Australian
Collateral Trustee agrees to give to each Lender and each Issuer prompt
notice of each notice given to it by any Loan Party pursuant to the terms
of this Agreement or the other Loan Documents.
(c) In performing its functions and duties hereunder and under the
other Loan Documents, each of the Administrative Agent and the Australian
Agent is acting solely on behalf of the Lenders and the Issuers and each
of the duties of the Administrative Agent, the Australian Agent and the
Australian Collateral Trustee are
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entirely administrative in nature. None the Administrative Agent, the
Australian Agent or the Australian Collateral Trustee assumes, and none
shall be deemed to have assumed, any obligation other than as expressly
set forth herein and in the other Loan Documents or any other relationship
as the agent, fiduciary or trustee of or for any Lender, Issuer or holder
of any other Obligation. Each of the Administrative Agent, the Australian
Agent and the Australian Collateral Trustee may perform any of its duties
under any Loan Document by or through its agents, employees or Affiliates
and may delegate its duties to its Affiliates. Each Lender and Issuer
hereby acknowledges and agrees that Citicorp may perform its duties as
Australian Agent through Citibank Australia.
(d) Duties of Other Agents. Notwithstanding anything to the contrary
contained in this Agreement, each of JPMorgan and each Listed Agent is a
Lender designated as "Syndication Agent" or "Documentation Agent" for
title purposes only and, in such capacity, shall have no obligations or
duties whatsoever under this Agreement or any other Loan Document to any
Loan Party, any Lender or any Issuer and shall have no rights separate
from its rights as a Lender except as expressly provided in this
Agreement.
SECTION 10.2 AGENT'S RELIANCE, ETC.
No Agent, no Affiliate of any Agent and no director, officer, agent
or employee of any of them shall be liable for any action taken or omitted to be
taken by it, him, her or them under or in connection with this Agreement or the
other Loan Documents, except for its, his, her or their own gross negligence or
willful misconduct. Without limiting the foregoing, each of the Administrative
Agent, the Australian Agent and the Australian Collateral Trustee (a) may treat
the payee of any Revolving Credit Note or Australian Debenture as its holder
until such Revolving Credit Note or Australian Debenture has been assigned in
accordance with Section 11.2 (Assignments and Participations), (b) may rely on
the Register to the extent set forth in Section 11.2(c) (Assignments and
Participations), (c) may consult with legal counsel (including counsel to any
Borrower or any other Loan Party), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts, (d) makes no warranty or representation to any Lender or
Issuer and shall not be responsible to any Lender or Issuer for any statements,
warranties or representations made by or on behalf of any Borrower or any of its
Subsidiaries in or in connection with this Agreement or any other Loan Document,
(e) shall not have any duty to ascertain or to inquire either as to the
performance or observance of any term, covenant or condition of this Agreement
or any other Loan Document, as to the financial condition of any Loan Party or
as to the existence or possible existence of any Default or Event of Default,
(f) shall not be responsible to any Lender or Issuer for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
attachment, perfection or priority of any Lien created or purported to be
created under or in connection with, this Agreement, any other Loan Document or
any other instrument or document furnished pursuant hereto or thereto and (g)
shall incur no liability under or in respect of this Agreement or any other Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which writing may be a telecopy or electronic mail) or any telephone
message believed by it to be genuine and signed or sent by the proper party or
parties.
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SECTION 10.3 EACH AGENT INDIVIDUALLY
With respect to their Ratable Portions and Australian Dollar Ratable
Portions, to the extent any of them is a Lender hereunder, each of Citicorp,
JPMorgan, Citibank Australia, Citisecurities and each Listed Agent shall have
and may exercise the same rights and powers hereunder and is subject to the same
obligations and liabilities as and to the extent set forth herein for any other
Lender. The terms "Australian Dollar Lenders", "Lenders", "Revolving Credit
Lenders", "Requisite Lenders", "Requisite Australian Dollar Lenders" and any
similar terms shall, unless the context clearly otherwise indicates, include,
without limitation, each of Citicorp, JPMorgan, Citibank Australia,
Citisecurities and each Listed Agent in its individual capacity as an Australian
Dollar Lender, Lender, Revolving Credit Lender or as one of the Requisite
Lenders, Requisite Australian Dollar Lenders. Each of Citicorp, JPMorgan,
Citibank Australia, Citisecurities and each Listed Agent and each of their
respective Affiliates may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with, any Loan Party as
if Citicorp was not acting as Administrative Agent and the Australian Agent,
JPMorgan was not acting as Syndication Agent, Citibank Australia was not acting
as the Australian Agent, Citisecurities was not acting as the Australian
Collateral Trustee and no Listed Agent was acting as Documentation Agent.
SECTION 10.4 LENDER CREDIT DECISION
Each Lender and each Issuer acknowledges that it shall,
independently and without reliance upon any Agent or any other Lender conduct
its own independent investigation of the financial condition and affairs of each
Borrower and each other Loan Party in connection with the making and continuance
of the Loans and with the issuance of the Letters of Credit. Each Lender and
each Issuer also acknowledges that it shall, independently and without reliance
upon any Agent or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement and other Loan
Documents.
SECTION 10.5 INDEMNIFICATION
Each Lender agrees to indemnify each Agent, each of their respective
Affiliates, and each director, officer, employee, agent and advisor of any of
them (to the extent not reimbursed by any Borrower), from and against such
Lender's aggregate Ratable Portion in the Facility of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements (including reasonable fees, expenses and
disbursements of financial and legal advisors) of any kind or nature whatsoever
that may be imposed on, incurred by, or asserted against, any Agent (in its
capacity as such) or any of Affiliate, director, officer, employee, agent and
advisor of any Agent (in its capacity as such) in any way relating to or arising
out of this Agreement or the other Loan Documents or any action taken or omitted
by any Agent (in its capacity as such) under this Agreement or the other Loan
Documents; provided, however, that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's or such
Affiliate's gross negligence or willful misconduct. Without limiting the
foregoing, each Lender agrees to reimburse each Agent promptly upon demand for
its Ratable Portion in the Facility of any out-of-pocket expenses (including
reasonable fees, expenses and disbursements of financial and legal advisors)
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
its
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rights or responsibilities under, this Agreement or the other Loan Documents, to
the extent that such Agent is not reimbursed for such expenses by any Borrower
or any other Loan Party.
SECTION 10.6 SUCCESSOR ADMINISTRATIVE AGENT, AUSTRALIAN AGENT AND
AUSTRALIAN COLLATERAL TRUSTEE
(a) The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Company. Upon any such
resignation, the Requisite Lenders shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall
have been so appointed by the Requisite Lenders, and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent's
giving of notice of resignation, then the retiring Administrative Agent
may, on behalf of the Lenders, appoint a successor Administrative Agent,
selected from among the Lenders. In either case, such appointment shall be
subject to the prior written approval of the Company (which approval may
not be unreasonably withheld and shall not be required upon the occurrence
and during the continuance of an Event of Default). Upon the acceptance of
any appointment as Administrative Agent by a successor Administrative
Agent, such successor Administrative Agent shall succeed to, and become
vested with, all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement and the
other Loan Documents. Prior to any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the retiring Administrative
Agent shall take such action as may be reasonably necessary to assign to
the successor Administrative Agent its rights as Administrative Agent
under the Loan Documents. After such resignation, the retiring
Administrative Agent shall continue to have the benefit of this Article X
as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
(b) The Australian Agent may resign at any time by giving written
notice thereof to the Lenders and the Company. Upon any such resignation,
the Requisite Lenders shall have the right to appoint a successor
Australian Agent. If no successor Australian Agent shall have been so
appointed by the Requisite Lenders, and shall have accepted such
appointment, within 30 days after the retiring Australian Agent's giving
of notice of resignation, then the retiring Australian Agent may, on
behalf of the Lenders, appoint a successor Australian Agent, selected from
among the Lenders. In either case, such appointment shall be subject to
the prior written approval of the Company (which approval may not be
unreasonably withheld and shall not be required upon the occurrence and
during the continuance of an Event of Default). Upon the acceptance of any
appointment as Australian Agent by a successor Australian Agent, such
successor Australian Agent shall succeed to, and become vested with, all
the rights, powers, privileges and duties of the retiring Australian
Agent, and the retiring Australian Agent shall be discharged from its
duties and obligations under this Agreement and the other Loan Documents.
Prior to any retiring Australian Agent's resignation hereunder as
Australian Agent, the retiring Australian Agent shall take such action as
may be reasonably necessary to assign to the successor Australian Agent
its rights as Australian Agent under the Loan Documents. After such
resignation, the retiring Australian Agent shall continue to have the
benefit of this Article X as to any actions taken or omitted to be taken
by it while it was Australian Agent under this Agreement and the other
Loan Documents.
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(c) The Australian Collateral Trustee may resign, and a successor
Australian Collateral Trustee may, with the consent of the Administrative
Agent, be appointed on the terms set forth in the Australian Collateral
Documents. Upon the acceptance of any appointment as Australian Collateral
Agent by a successor Australian Collateral Agent, such successor
Australian Collateral Agent shall succeed to, and become vested with, all
the rights, powers, privileges and duties of the retiring Australian
Collateral Agent, and the retiring Australian Collateral Agent shall be
discharged from its duties and obligations under this Agreement and the
other Loan Documents. Prior to any retiring Australian Collateral Agent's
resignation hereunder as Australian Collateral Agent, the retiring
Australian Collateral Agent shall take such action as may be reasonably
necessary to assign to the successor Australian Collateral Agent its
rights as Australian Collateral Agent under the Loan Documents. After such
resignation, the retiring Australian Collateral Agent shall continue to
have the benefit of this Article X as to any actions taken or omitted to
be taken by it while it was Australian Collateral Agent under this
Agreement and the other Loan Documents.
SECTION 10.7 CONCERNING THE COLLATERAL AND THE COLLATERAL DOCUMENTS
(a) Each Lender and each Issuer agrees that any action taken by the
Administrative Agent, the Australian Agent, the Australian Collateral
Trustee or the Requisite Lenders (or, where required by the express terms
of this Agreement, a greater proportion of the Lenders) in accordance with
the provisions of this Agreement or of the other Loan Documents, and the
exercise by the Administrative Agent, the Australian Agent, the Australian
Collateral Trustee or the Requisite Lenders (or, where so required, such
greater proportion of the Lenders) of the powers set forth herein or
therein, together with such other powers as are reasonably incidental
thereto, shall be authorized and binding upon all of the Lenders, Issuers
and other Secured Parties. Without limiting the generality of the
foregoing, each of the Administrative Agent, the Australian Agent and the
Australian Collateral Trustee shall have the sole and exclusive right and
authority to (i) act as the disbursing and collecting agent for the
Lenders and the Issuers with respect to all payments and collections
arising in connection herewith and with the Collateral Documents, (ii)
execute and deliver each Collateral Document and accept delivery of each
such agreement delivered by any Borrower or any Subsidiary of any
Borrower, (iii) act as collateral agent for the Lenders, the Issuers and
the other Secured Parties for purposes of the perfection of all security
interests and Liens created by such agreements and all other purposes
stated therein, provided, however, that each of the Administrative Agent,
the Australian Agent and the Australian Collateral Trustee hereby
appoints, authorizes and directs each other Agent and each Lender and
Issuer to act as collateral sub-agent for the Administrative Agent, the
Australian Agent, the Australian Collateral Trustee, the Lenders and the
Issuers for purposes of the perfection of all security interests and Liens
with respect to the Borrowers' and their Subsidiaries' respective Deposit
Accounts maintained with, and cash and Cash Equivalents held by, such
Lender or such Issuer, (iv) manage, supervise and otherwise deal with the
Collateral, (v) take such action as is necessary or desirable to maintain
the perfection and priority of the security interests and Liens created or
purported to be created by the Collateral Documents and (vi) except as may
be otherwise specifically restricted by the terms hereof or of any other
Loan Document, exercise all remedies given to the Administrative Agent,
the Australian Agent, the Australian Collateral Trustee, the Lenders, the
Issuers and the other Secured
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Parties with respect to the Collateral under the Loan Documents relating
thereto, applicable law or otherwise.
(b) Each of the Lenders and the Issuers hereby directs, in
accordance with the terms hereof, the Administrative Agent and the
Australian Collateral Trustee to release (or, in the case of clause (ii)
below, release or subordinate) any Lien or Guaranty held by the
Administrative Agent or the Australian Collateral Trustee for the benefit
of the Lenders and the Issuers against any of the following:
(i) all of the Collateral and all Loan Parties, upon
termination of the Revolving Credit Commitments and payment and
satisfaction in full of all Loans, all Reimbursement Obligations and all
other Obligations that the Administrative Agent has been notified in
writing are then due and payable (and, in respect of contingent Letter of
Credit Obligations of any Borrower, with respect to which cash collateral
has been deposited or a back-up letter of credit or bank guarantee has
been issued, in either case in the appropriate currency and on terms
satisfactory to the Administrative Agent and the applicable Issuers);
(ii) any assets that are subject to a Lien permitted by
Section 8.2 or (e) (Liens, Etc.);
(iii) any Stock and Stock Equivalents of a Permitted Joint
Venture, solely to the extent necessary to permit the creation and
maintenance of a Lien permitted under Section 8.2(h) (Liens, Etc.); and
(iv) any Loan Party (other than the Company) if such Loan
Party is sold or disposed of in a sale or disposition permitted by this
Agreement (or permitted pursuant to a waiver or consent given in
accordance with the terms of this Agreement with respect to a transaction
otherwise prohibited by this Agreement) or any part of the Collateral sold
or disposed of by a Loan Party, if such sale or disposition is permitted
by this Agreement (or permitted pursuant to a waiver or consent given in
accordance with the terms of this Agreement with respect to a transaction
otherwise prohibited by this Agreement).
Each of the Lenders and the Issuers hereby directs the Administrative Agent and
the Australian Collateral Trustee to execute and deliver or file such
termination and partial release statements and do such other things as are
necessary to release Liens to be released pursuant to this Section 10.7 promptly
upon the effectiveness of any such release.
SECTION 10.8 COLLATERAL MATTERS RELATING TO RELATED OBLIGATIONS
The benefit of the Loan Documents and of the provisions of this
Agreement relating to the Collateral shall extend to and be available in respect
of any Secured Obligation arising under any Hedging Contract or Cash Management
Obligation or that is otherwise owed to Persons other than the Agents, the
Lenders and the Issuers (collectively, "Related Obligations") solely on the
condition and understanding, as among the Administrative Agent, the Australian
Agent and the Australian Collateral Trustee, on the one hand, and all Secured
Parties, on the other hand, that (a) the Related Obligations shall be entitled
to the benefit of the Loan Documents and the Collateral to the extent expressly
set forth in this Agreement and the other Loan Documents and to such extent the
Administrative Agent, the Australian Agent or the Australian Collateral
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Trustee shall hold, and have the right and power to act with respect to, the
Guaranties and the Collateral on behalf of and as agent for the holders of the
Related Obligations, but each of the Administrative Agent, the Australian Agent
and the Australian Collateral Trustee is otherwise acting solely as agent for
the Lenders and the Issuers and shall have no fiduciary duty, duty of loyalty,
duty of care, duty of disclosure or other obligation whatsoever to any holder of
Related Obligations, (b) all matters, acts and omissions relating in any manner
to the Guaranties, the Collateral, or the omission, creation, perfection,
priority, abandonment or release of any Lien, shall be governed solely by the
provisions of this Agreement and the other Loan Documents and no separate Lien,
right, power or remedy shall arise or exist in favor of any Secured Party under
any separate instrument or agreement or in respect of any Related Obligation,
(c) each Secured Party shall be bound by all actions taken or omitted, in
accordance with the provisions of this Agreement and the other Loan Documents,
by the Administrative Agent, the Australian Agent, the Australian Collateral
Trustee and the Requisite Lenders, each of whom shall be entitled to act at its
sole discretion and exclusively in its own interest given its own Revolving
Credit Commitments, Australian Dollar Sublimits and its own interest in the
Loans, Letter of Credit Obligations and other Obligations to it arising under
this Agreement or the other Loan Documents, without any duty or liability to any
other Secured Party or as to any Related Obligation and without regard to
whether any Related Obligation remains outstanding or is deprived of the benefit
of the Collateral or becomes unsecured or is otherwise affected or put in
jeopardy thereby, (d) no holder of Related Obligations and no other Secured
Party (except the Agents, the Lenders and the Issuers, to the extent set forth
in this Agreement) shall have any right to be notified of, or to direct, require
or be heard with respect to, any action taken or omitted in respect of the
Collateral or under this Agreement or the Loan Documents and (e) no holder of
any Related Obligation shall exercise any right of setoff, banker's lien or
similar right except to the extent such holder was granted such right in Section
11.6 (Right of Set-off).
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 AMENDMENTS, WAIVERS, ETC.
(a) No amendment or waiver of any provision of this Agreement or
any other Loan Document nor consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be in
writing and signed by the Requisite Lenders (or by the Administrative
Agent with the consent of the Requisite Lenders) and, in the case of any
amendment, by each Borrower, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by each Lender directly affected
thereby, in addition to the Requisite Lenders (or the Administrative Agent
with the consent thereof), do any of the following:
(i) waive any condition specified in Section 3.1 (Conditions
Precedent to the Effectiveness of this Agreement) or 3.2(b) (Conditions
Precedent to Each Loan and Letter of Credit), except with respect to a
condition based upon another provision hereof, the waiver of which
requires only the concurrence of the Requisite Lenders and, in the case of
the conditions specified in Section 3.1 (Conditions Precedent to the
Effectiveness of this Agreement), subject to the provisions of Section 3.3
(Determinations of Initial Borrowing Conditions);
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AMENDED AND RESTATED CREDIT AGREEMENT
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(ii) increase the Revolving Credit Commitment or Australian
Dollar Sublimit of such Lender or subject such Lender to any additional
obligation; provided, however, that any such increase with respect to the
Australian Dollar Sublimits shall require the consent of the Requisite
Australian Dollar Lenders;
(iii) extend the scheduled final maturity of any Loan or
Reimbursement Obligation owing to such Lender (including by extending the
Scheduled Termination Date), or postpone any scheduled date fixed for any
payment of principal or interest of any such Loan or Reimbursement
Obligation or fees owing to such Lender (it being understood that Section
2.9 (Mandatory Prepayments) and Section 7.13 (Control Accounts; Approved
Deposit Accounts) do not provide for scheduled dates fixed for payment) or
for the reduction of such Lender's Revolving Credit Commitment or
Australian Dollar Sublimit;
(iv) reduce or forgive the principal amount of any Loan or
Reimbursement Obligation, any interest (or the rate of interest) thereon
or any fees owing to such Lender (other than by the payment or prepayment
thereof) or waive any payment owing to such Lender of any of the
foregoing;
(v) subordinate any of the Secured Obligations or any Liens
securing the Secured Obligations;
(vi) change the aggregate Ratable Portions or Australian
Dollar Ratable Portions of Lenders required for any or all Lenders to take
any action hereunder;
(vii) release all or substantially all of the Collateral
except as provided in Section 10.7(b) (Concerning the Collateral and the
Collateral Documents) or release any Borrower from its payment obligation
to such Lender under this Agreement, the Australian Debentures or the
Revolving Credit Notes (if any) owing to such Lender or release any
Guarantor from its obligations under the Guaranties except in connection
with the sale or other disposition of a Subsidiary Guarantor (or all or
substantially all of the assets thereof) permitted by this Agreement (or
permitted pursuant to a waiver or consent of a transaction otherwise
prohibited by this Agreement);
(viii) increase any of the percentages set forth in the
definitions of "Fixed Asset Value", "Fixed Asset Sublimit", "Inventory
Borrowing Base" and "Receivables Borrowing Base" above the maximum
percentages stated in such definitions on the date hereof; or
(ix) amend Section 10.7(b) (Concerning the Collateral and the
Collateral Documents), Section 11.7 (Sharing of Payments, Etc.), this
Section 11.1 or either definition of the terms "Requisite Lenders",
"Ratable Portion" or "Australian Dollar Ratable Portion";
and provided, further, that (x) no amendment, waiver or consent shall, unless in
writing and signed by any Special Purpose Vehicle that has been granted an
option pursuant to Section 11.2(g) (Assignments and Participations) affect the
grant or nature of such option or the right or duties of such Special Purpose
Vehicle hereunder and (y)(1) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under
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this Agreement or the other Loan Documents or change Section 11.7 (Sharing of
Payments, Etc.), (2) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Loan Lender in addition to the Lenders required above to
take such action, affect the rights or duties of the Swing Loan Lender under
this Agreement or the other Loan Documents, (3) no amendment, waiver or consent
shall, unless in writing and signed by the Australian Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Australian Agent under this Agreement or the other Loan Documents, (4) no
amendment, waiver or consent shall, unless in writing and signed by the
Australian Collateral Trustee in addition to the Lenders required above to take
such action, affect the rights or duties of the Australian Collateral Trustee
under this Agreement or the other Loan Documents and (5) no amendment, waiver or
consent shall, unless in writing and signed by the Requisite Australian Dollar
Lenders in addition to the Lenders required above to take such action, affect
the rights or duties of the Australian Dollar Lenders under this Agreement or
the other Loan Documents or modify the term "Requisite Australian Dollar
Lenders".
(b) The Administrative Agent may, but shall have no obligation to,
with the written concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of such Lender. Any waiver or
consent shall be effective only in the specific instance and for the
specific purpose for which it was given. No notice to or demand on any
Borrower in any case shall entitle any Borrower to any other or further
notice or demand in similar or other circumstances.
(c) If, in connection with any proposed amendment, modification,
waiver or termination (a "Proposed Change") requiring the consent of all
affected Lenders, the consent of Requisite Lenders is obtained but the
consent of other Lenders whose consent is required is not obtained (any
such Lender whose consent is not obtained as described in this Section
11.1 being referred to as a "Non-Consenting Lender"), then, as long as the
Lender acting as the Administrative Agent is not a Non-Consenting Lender,
at the Company's request, an Eligible Assignee acceptable to the
Administrative Agent shall have the right with the Administrative Agent's
consent and in the Administrative Agent's sole discretion (but shall have
no obligation) to purchase from such Non-Consenting Lender, and such
Non-Consenting Lender agrees that it shall, upon the Administrative
Agent's request, sell and assign to such Eligible Assignee, all of the
Revolving Credit Commitments, Australian Dollar Sublimit and aggregate
Revolving Credit Outstandings (and the Australian Debentures corresponding
to any of them) of such Non-Consenting Lender for an amount equal to the
principal balance of all Loans held by the Non-Consenting Lender (other
than, if such Eligible Assignee shall not be an Australian Dollar Lender,
the Australian Dollar Loans owing to such Non-Consenting Lender) and all
accrued and unpaid interest and fees with respect thereto through the date
of sale; provided, however, that such purchase and sale shall not be
effective until the Administrative Agent shall have received from such
Eligible Assignee an agreement in form and substance satisfactory to the
Administrative Agent and the Company whereby such Eligible Assignee shall
agree to be bound by the terms hereof and such Non-Consenting Lender shall
have received payments of all Loans held by it and all accrued and unpaid
interest and fees with respect thereto through the date of the sale; and
provided, further, that, if such Non-Consenting Lender is an Australian
Dollar Lender and such Eligible Assignee is not an Australian Dollar
Lender, (i) such Eligible Assignee shall not be an assignee of the
Australian Dollar Sublimit of such Non-Consenting Lender and may purchase
the rights and obligations of such Non-Consenting Lender
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AMENDED AND RESTATED CREDIT AGREEMENT
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hereunder (other than in respect of the Australian Dollar Sublimit) as
provided above, (ii) on the date of such purchase, the Australian Dollar
Sublimit of such Non-Consenting Lender shall be terminated and such
Non-Consenting Lender's Australian Dollar Ratable Portion of the
Australian Dollar Outstandings shall be replaced by, in accordance with
Section 2.11(d) (Conversion and Continuation), Base Rate Loans made in
Dollars and, notwithstanding any other provision hereof, the proceeds of
the Revolving Dollar Loans shall be given in their entirety to the
Non-Consenting Lender and not, as may be otherwise provided hereunder, to
each Australian Dollar Lender according to its Australian Dollar Ratable
Portion. Each Lender agrees that, if it becomes a Non-Consenting Lender,
it shall execute and deliver to the Administrative Agent an Assignment and
Acceptance to evidence such sale and purchase and shall deliver to the
Administrative Agent any Revolving Credit Note (if the assigning Lender's
Loans are evidenced by any Revolving Credit Note) subject to such
Assignment and Acceptance; provided, however, that the failure of any
Non-Consenting Lender to execute an Assignment and Acceptance shall not
render such sale and purchase (and the corresponding assignment) invalid.
SECTION 11.2 ASSIGNMENTS AND PARTICIPATIONS
(a) Each Lender may sell, transfer, negotiate or assign to one or
more Eligible Assignees all or a portion of its rights and obligations
hereunder (including all of its rights and obligations with respect to the
Revolving Dollar Loans, the Australian Dollar Loans, the Swing Loans and
the Letters of Credit) to any Eligible Assignee (that is, (x) in case of
any assignment by any Swing Loan Lender, a Swing Loan Lender and, (y) in
case of any assignment by any Australian Dollar Lender of its Australian
Dollar Outstandings or its Australian Dollar Sublimit, an Australian
Dollar Lender); provided, however, that, if such Lender knows that such
Eligible Assignee shall be resident in the State of Victoria, Australia,
such Lender agrees to request that such Eligible Assignee consult with the
Company regarding ways to minimize stamp duty in such state as a result of
such assignment; and provided, further, that:
(i) (A) if any such assignment shall be of the assigning
Lender's aggregate Revolving Credit Dollar Outstandings or Revolving
Credit Commitments, such assignment shall cover the same percentage of
such Lender's aggregate Revolving Credit Dollar Outstandings and Revolving
Credit Commitments and (B) if any such assignment shall be of the
assigning Lender's aggregate Australian Dollar Outstandings or Australian
Dollar Sublimit, such assignment shall cover the same percentage of such
assigning Lender's Australian Dollar Loans and Australian Dollar Sublimit;
(ii) the aggregate amount being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event (if less than the
Assignor's entire interest) be (x) in the case of an assignment of any
Revolving Credit Outstandings in Dollars or any Revolving Credit
Commitment, other than one of the Currency Thresholds applicable to
Dollars and (y) in the case of an assignment of any Revolving Credit
Outstandings in Australian Dollars or Australian Dollar Sublimit by any
Australian Dollar Lender, other than A$2,000,000 or any multiple of
A$1,000,000 in excess thereof;
(iii) the Australian Debentures (and the Loans corresponding
thereto) may only be assigned in whole and may not be assigned except
through, and to the extent
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of, an assignment of the Loans in accordance with this Agreement
corresponding to such Australian Debentures, and then only to the assignee
of such Loans; and
(iv) if such Eligible Assignee is not, prior to the date of
such assignment, a Lender or an Affiliate or Approved Fund of a Lender,
such assignment shall be subject to the prior consent of the
Administrative Agent and the Company (which consent shall not be
unreasonably withheld or delayed);
and provided, further, that, notwithstanding any other provision of this Section
11.2, the consent of the Company shall not be required for any assignment
occurring when any Event of Default shall have occurred and be continuing. Any
such assignment need not be ratable as among the Dollar Revolving Credit
Facility and the Australian Dollar Subfacility.
(b) The parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording, an
Assignment and Acceptance, together with any Revolving Credit Note (if the
assigning Lender's Loans are evidenced by a Revolving Credit Note) subject
to such assignment. Upon the execution, delivery, acceptance and recording
of any Assignment and Acceptance and, other than in respect of assignments
made pursuant to Section 2.17 (Substitution of Lenders) and Section
11.1(c) (Amendments, Waivers, Etc.) and other than assignments to which
the Administrative Agent is a party, the receipt by the Administrative
Agent from the assignee (unless such assignee is an Affiliate or an
Approved Fund of the assignor) of an assignment fee in the amount of
$3,500 from and after the effective date specified in such Assignment and
Acceptance, (i) the assignee thereunder shall become a party hereto and,
to the extent that rights and obligations under the Loan Documents have
been assigned to such assignee pursuant to such Assignment and Acceptance,
have the rights and obligations of a Lender and, if such Lender were an
Issuer, of such Issuer hereunder and thereunder, (ii) the Revolving Credit
Notes (if any) and the Australian Debentures corresponding to the Loans
assigned thereby shall be transferred to such assignee by notification in
the Register and (iii) the assignor thereunder shall, to the extent that
rights and obligations under this Agreement have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights (except
for those surviving the payment in full of the Obligations) and be
released from its obligations under the Loan Documents, other than those
relating to events or circumstances occurring prior to such assignment
(and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under
the Loan Documents, such Lender shall cease to be a party hereto).
(c) The Administrative Agent (or, if requested by the
Administrative Agent, the Australian Agent), acting on behalf of the
Borrowers (solely for purposes of maintaining such Register), shall
maintain at its address referred to in Section 11.8 (Notices, Etc.) a copy
of each Assignment and Acceptance delivered to and accepted by it and a
register for the recording of the names and addresses of the Lenders and
the Revolving Credit Commitments of and principal amount of the Loans and
Letter of Credit Obligations owing to each Lender from time to time (the
"Register"); provided, however, that, in respect to Australian Debentures,
the Register shall contain (i) the number of such Australian Debentures
held by any Lender (which shall equal the principal amount of the Loans
owing to the corresponding Lender by each Australian Borrower), (ii) the
issue date of each such Australian Debenture (which shall be the date the
corresponding Loan shall have been made hereunder), (iii) the name and
address of
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each Lender that is an initial holder of each Australian Debenture and of
each Lender to whom each Australian Debenture is subsequently transferred
(which shall be the name of each holder and transferee of the
corresponding Loans), (iv) the maturity date and currency of each such
Australian Debenture, (v) details of all transfers, assignments or
substitutions (including date, amount and parties), (vi) each Lenders'
Australian tax file number or exemption details (to the extent provided)
and (vii) any other information that the Administrative Agent considers
necessary or that is otherwise required pursuant to Australian
Requirements of Law to be included therein; and provided, further, that no
notice of any trust or other interest in any Revolving Credit Note or
Australian Debenture needs to be entered in the Register and none of the
Administrative Agent or any Loan Party shall be required to take notice of
any other interest in, or claim to, any Revolving Credit Note or
Australian Debenture, except as necessary pursuant to any Requirement of
Law. Neither the Administrative Agent or the Australian Agent shall have
any liability under this clause (c) for failure to maintain, improperly
maintaining or updating or otherwise in respect of such Register.
(d) Each Revolving Credit Note and Australian Debenture shall be
issued on the terms and conditions set forth herein upon its entrance in
the Register. The entries in the Register shall be conclusive and binding
for all purposes, absent fraud or manifest error. Each such entry shall
constitute an acknowledgment by each Loan Party of the Obligations
thereunder, an undertaking by the Loan Parties to make all payments in
respect of the Australian Debentures and the Revolving Credit Notes in
accordance with the terms thereof and hereof and an entitlement to the
other benefits given to the Lenders hereunder in respect of the Australian
Debentures. The Loan Parties, the Administrative Agent, the Australian
Agent and the Lenders may treat each Person whose name is recorded in the
Register as a Lender (and, in the case of an Australian Debenture, the
owner and holder thereof) for all purposes of this Agreement. The Register
shall be available for inspection by the Company, the Administrative
Agent, the Australian Agent or any Lender at any reasonable time and from
time to time upon reasonable prior notice and, upon request of any Lender,
the Administrative Agent (or, to the extent the Register is maintained by
it, the Australian Agent) shall provide to such Lender a certified extract
of the information entered therein in relation to that Lender and the
Australian Debentures held by it. The Administrative Agent (and, to the
extent the Register is maintained by it, the Australian Agent) agrees to
update the Register when provided with any updated information by any
Lender and to correct the information therein if it becomes aware that the
Register is incorrect or incomplete.
(e) Notwithstanding anything to the contrary contained in clause
(b) above, the Loans (including the Australian Debentures corresponding to
such Loan and the Revolving Credit Notes evidencing such Loan) are
registered obligations, and the right, title, and interest of the Lenders
and their assignees in and to such Loans shall be transferable only upon
notation of such transfer in the Register. No assignment pursuant to this
Section 11.2 shall be effective until such assignment is recorded in the
Register. A Revolving Credit Note and an Australian Debenture shall only
evidence the Lender's or an assignee's right, title and interest in and to
the related Loan, and in no event is any such Revolving Credit Note or
Australian Debenture to be considered a bearer instrument or obligation.
This Section 11.2 shall be construed so that (i) the Loans are at all
times maintained in "registered form" within the meaning of Sections
163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any
related regulations (or any successor
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provisions of the Internal Revenue Code or such regulations) and (ii) the
requirements of Section 128F of the Australian Tax Act shall be satisfied
with respect to the Loans made to the Australian Borrowers. Solely for
purposes of this Section 11.2 and for tax purposes only, the
Administrative Agent (and, to the extent the Register is maintained by it,
the Australian Agent) shall act as the agent of each Borrower for purposes
of maintaining such notations of transfer in the Register (and each
Borrower hereby irrevocably appoints the Administrative Agent and the
Australian Agent for such purpose). Except as may be requested by the
Administrative Agent, no Person other than the Administrative Agent and
the Australian Agent shall be appointed by any Loan Party to create or
maintain the Register, and no register shall be maintained in respect of
the Loans, the Revolving Credit Notes or the Australian Debentures by or
on behalf of the Loan Parties other than the Register.
(f) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, the Administrative Agent shall, if such
Assignment and Acceptance has been completed, (i) accept such Assignment
and Acceptance, (ii) record or cause to be recorded the information
contained therein in the Register and (iii) give prompt notice thereof to
the Company. Within five Business Days after its receipt of such notice,
each Borrower, at its own expense, shall, if requested by such assignee,
execute and deliver to the Administrative Agent, new Revolving Credit
Notes to the order of such assignee in an amount equal to the Revolving
Credit Commitments and Australian Dollar Sublimits assumed by it pursuant
to such Assignment and Acceptance and, if the assigning Lender has
surrendered any Revolving Credit Note for exchange in connection with the
assignment and has retained Revolving Credit Commitments or Australian
Dollar Sublimits hereunder, new Revolving Credit Notes to the order of the
assigning Lender in an amount equal to the Revolving Credit Commitments or
Australian Dollar Sublimits retained by it hereunder. Such new Revolving
Credit Notes shall be dated the same date as the surrendered Revolving
Credit Notes and be in substantially the form of Exhibit B-1 (Form of
Dollar Revolving Credit Note) or Exhibit B-2 (Form of Australian Dollar
Revolving Credit Note), as applicable.
(g) In addition to the other assignment rights provided in this
Section 11.2, each Lender may do each of the following:
(i) grant to a Special Purpose Vehicle the option to make all
or any part of any Loan that such Lender would otherwise be required to
make hereunder and the exercise of such option by any such Special Purpose
Vehicle and the making of Loans pursuant thereto shall satisfy (once and
to the extent that such Loans are made) the obligation of such Lender to
make such Loans thereunder; provided, however, that (x) nothing herein
shall constitute a commitment or an offer to commit by such a Special
Purpose Vehicle to make Loans hereunder and no such Special Purpose
Vehicle shall be liable for any indemnity or other Obligation (other than
the making of Loans for which such Special Purpose Vehicle shall have
exercised an option, and then only in accordance with the relevant option
agreement), (y) such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain responsible to the other
parties for the performance of its obligations under the terms of this
Agreement and shall remain the holder of the Obligations for all purposes
hereunder and (z) such Special Purpose Vehicle shall be able to comply
with Section 2.15 (Capital Adequacy); and
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(ii) assign, as collateral or otherwise, any of its rights
under this Agreement, whether now owned or hereafter acquired (including
rights to payments of principal or interest on the Loans), to (A) any
Federal Reserve Bank (pursuant to Regulation A of the Federal Reserve
Board) or the Farm Credit Corporation or any Farm Credit Bank (in each
case under, as defined in and pursuant to the Farm Credit Act of 1971, as
amended, together with any successor or replacement legislation), in each
case without notice to or consent of the Company or the Administrative
Agent, (B) any holder of, or trustee for the benefit of, the holders of
such Lender's Securities without consent of the Administrative Agent or
the Company and (C) to any Special Purpose Vehicle to which such Lender
has granted an option pursuant to clause (i) above without consent of the
Administrative Agent or the Company;
provided, however, that no such assignment or grant shall release such
Lender from any of its obligations hereunder except as expressly provided
in clause (i) above and except, in the case of a subsequent foreclosure
pursuant to an assignment as collateral, if such foreclosure is made in
compliance with the other provisions of this Section 11.2 (Assignments and
Participations) other than this clause (g) or clause (h) below. Each party
hereto acknowledges and agrees that, prior to the date that is one year
and one day after the payment in full of all outstanding commercial paper
or other senior debt of any such Special Purpose Vehicle, such party shall
not institute against, or join any other Person in instituting against,
any Special Purpose Vehicle that has been granted an option pursuant to
this clause (g) any bankruptcy, reorganization, insolvency or liquidation
proceeding (such agreement shall survive the payment in full of the
Obligations). The terms of the designation of, or assignment to, such
Special Purpose Vehicle shall not restrict such Lender's ability to, or
grant such Special Purpose Vehicle the right to, consent to any amendment
or waiver to this Agreement or any other Loan Document or consent to the
departure by the Borrower from any provision of this Agreement or any
other Loan Document without the consent of such Special Purpose Vehicle
except to the extent any such consent would reduce the principal amount
of, or the rate of interest on, any Obligations, amend this clause (g) or
postpone any scheduled date of payment thereof; provided, however, that
the Administrative Agent, the Australian Agent, the Australian Collateral
Trustee and the other Lenders, Issuers and Secured Parties shall continue
to, and shall be entitled to continue to, deal solely and directly with
such Lender in connection with such Lender's obligations under this
Agreement. Each Special Purpose Vehicle shall be entitled to the benefits
of Sections 2.15 (Capital Adequacy) and 2.16 (Taxes) and of Section
2.14(d) (Illegality) as if it were such Lender; provided, however, that
anything herein to the contrary notwithstanding, no Borrower shall, at any
time, be obligated to make under Section 2.15 (Capital Adequacy), 2.16
(Taxes) or 2.14(d) (Illegality) to any such Special Purpose Vehicle and
any such Lender any payment in excess of the amount such Borrower would
have been obligated to pay to such Lender in respect of such interest if
such Special Purpose Vehicle had not been assigned the rights of such
Lender hereunder.
(h) Each Lender may, without the consent of the Administrative
Agent or the Company, sell participations to one or more Persons in or to
all or a portion of its rights and obligations under the Loan Documents
(including all its rights and obligations with respect to the Revolving
Loans and Letters of Credit). The terms of such participation shall not,
in any event, require the participant's consent to any amendments, waivers
or other modifications of any provision of any Loan Documents, the consent
to any
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departure by any Loan Party therefrom, or to the exercising or refraining
from exercising any powers or rights such Lender may have under or in
respect of the Loan Documents (including the right to enforce the
obligations of the Loan Parties), except if any such amendment, waiver or
other modification or consent would (i) reduce the amount, or postpone any
date fixed for, any amount (whether of principal, interest or fees)
payable to such participant under the Loan Documents, to which such
participant would otherwise be entitled under such participation or (ii)
result in the release of all or substantially all of the Collateral other
than in accordance with Section 10.7(b) (Concerning the Collateral and the
Collateral Documents). In the event of the sale of any participation by
any Lender, (w) such Lender's obligations under the Loan Documents shall
remain unchanged, (x) such Lender shall remain solely responsible to the
other parties for the performance of such obligations, (y) such Lender
shall remain the holder of such Obligations for all purposes of this
Agreement and (z) the Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement.
Each participant shall be entitled to the benefits of Sections 2.15
(Capital Adequacy) and 2.16 (Taxes) and of Section 2.14(d) (Illegality) as
if it were a Lender; provided, however, that anything herein to the
contrary notwithstanding, no Borrower shall, at any time, be obligated to
make under Section 2.15 (Capital Adequacy), 2.16 (Taxes) or 2.14(d)
(Illegality) to the participants in the rights and obligations of any
Lender (together with such Lender) any payment in excess of the amount
such Borrower would have been obligated to pay to such Lender in respect
of such interest had such participation not been sold.
(i) Any Issuer may at any time assign its rights and obligations
hereunder to any other Lender by an instrument in form and substance
satisfactory to the Company, the Administrative Agent, such Issuer and
such Lender. If any Issuer ceases to be a Lender hereunder by virtue of
any assignment made pursuant to this Section 11.2, then, as of the
effective date of such cessation, such Issuer's obligations to Issue
Letters of Credit pursuant to Section 2.4 (Letters of Credit) shall
terminate and such Issuer shall be an Issuer hereunder only with respect
to outstanding Letters of Credit issued prior to such date.
SECTION 11.3 COSTS AND EXPENSES
(a) The Borrowers jointly and severally agree to pay, or reimburse
the Administrative Agent, the Australian Agent and the Australian
Collateral Trustee upon demand for, all of the Administrative Agent's, the
Australian Agent's and the Australian Collateral Trustee's reasonable
internal and external audit, legal, appraisal, valuation, filing, document
duplication and reproduction and investigation expenses and for all other
reasonable out-of-pocket costs and expenses of every type and nature
(including, without limitation, the reasonable fees, expenses and
disbursements of the Administrative Agent's counsel, Weil, Gotshal &
Xxxxxx LLP, local legal counsel, auditors, accountants, appraisers,
printers, insurance and environmental advisors, and other consultants and
agents) incurred by the Administrative Agent, the Australian Collateral
Trustee or the Australian Agent in connection with any of the following:
(i) the Administrative Agent's or Australian Agent's audit and
investigation of the Company and its Subsidiaries in connection with the
preparation, negotiation or execution of any Loan Document or the
Administrative Agent's or Australian Agent's periodic audits of
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the Company or any of its Subsidiaries, as the case may be, (ii) the
preparation, negotiation, execution or interpretation of this Agreement
(including, without limitation, the satisfaction or attempted satisfaction
of any condition set forth in Article III (Conditions To Loans And Letters
Of Credit)), any Loan Document or any proposal letter or commitment letter
issued in connection therewith, or the making of the Loans hereunder,
(iii) the creation, perfection or protection of the Liens under any Loan
Document (including any reasonable fees, disbursements and expenses for
local counsel in various jurisdictions), (iv) the ongoing administration
of this Agreement and the Loans, including consultation with attorneys in
connection therewith and with respect to the Administrative Agent's,
Australian Collateral Trustee's or Australian Agent's rights and
responsibilities hereunder and under the other Loan Documents, (v) the
protection, collection or enforcement of any Obligation or the enforcement
of any Loan Document, (vi) the commencement, defense or intervention in
any court proceeding relating in any way to the Obligations, any Loan
Party, any of the Company's Subsidiaries, the Related Documents, this
Agreement or any other Loan Document, (vii) the response to, and
preparation for, any subpoena or request for document production with
which the Administrative Agent, the Australian Collateral Trustee or the
Australian Agent is served or deposition or other proceeding in which the
Administrative Agent, the Australian Collateral Trustee or the Australian
Agent is called to testify, in each case, relating in any way to the
Obligations, any Loan Party, any of the Company's Subsidiaries, the
Related Documents, this Agreement or any other Loan Document or (viii) any
amendment, consent, waiver, assignment, restatement, or supplement to any
Loan Document or the preparation, negotiation, and execution of the same.
(b) The Borrowers further jointly and severally agree to pay or
reimburse each Agent and each of the Lenders and Issuers upon demand for
all out-of-pocket costs and expenses, including, without limitation,
reasonable attorneys' fees (including allocated costs of internal counsel
and costs of settlement), incurred by such Agent, Lenders or Issuers in
connection with any of the following: (i) in enforcing any Loan Document
or Obligation or any security therefor or exercising or enforcing any
other right or remedy available by reason of an Event of Default, (ii) in
connection with any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a "work-out" or in any
insolvency or bankruptcy proceeding, (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer,
motion or other pleadings in any legal proceeding relating to the
Obligations, any Loan Party, any of the Company's Subsidiaries and related
to or arising out of the transactions contemplated hereby or by any other
Loan Document or Related Document or (iv) in taking any other action in or
with respect to any suit or proceeding (bankruptcy or otherwise) described
in clause (i), (ii) or (iii) above.
SECTION 11.4 INDEMNITIES
(a) The Borrowers jointly and severally agree to indemnify and hold
harmless each Agent, each Arranger, each Lender and each Issuer and each
of their respective Affiliates, and each of the directors, officers,
employees, agents, trustees, representatives, attorneys, consultants and
advisors of or to any of the foregoing (including those retained in
connection with the satisfaction or attempted satisfaction of any
condition set forth in Article III (Conditions To Loans And Letters Of
Credit)) (each such Person being an "Indemnitee") from and against any and
all claims, damages,
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liabilities, obligations, losses, penalties, actions, judgments, suits,
costs, disbursements and expenses of any kind or nature (including fees,
disbursements and expenses of financial and legal advisors to any such
Indemnitee) that may be imposed on, incurred by or asserted against any
such Indemnitee in connection with or arising out of any investigation,
litigation or proceeding, whether or not any such Indemnitee is a party
thereto, whether direct, indirect, or consequential and whether based on
any federal, state or local law or other statutory regulation, securities
or commercial law or regulation, or under common law or in equity, or on
contract, tort or otherwise, in any manner relating to or arising out of
this Agreement, any other Loan Document, any Obligation, any Letter of
Credit, any Disclosure Document, any Related Document, or any act, event
or transaction related or attendant to any thereof, or the use or intended
use of the proceeds of the Loans or Letters of Credit or in connection
with any investigation of any potential matter covered hereby
(collectively, the "Indemnified Matters"); provided, however, that the
Borrowers shall not have any obligation under this Section 11.4 to an
Indemnitee with respect to any Indemnified Matter (x) caused by or
resulting from the gross negligence or willful misconduct of that
Indemnitee, as determined by a court of competent jurisdiction in a final
non-appealable judgment or order and (y) arising out of, or in connection
with, the use by Persons not Indemnitees or parties to the transactions
contemplated hereby ("Unintended Recipients") of information or other
materials obtained by such Unintended Recipients through electronic
communications. Without limiting the foregoing, "Indemnified Matters"
include (i) all Environmental Liabilities and Costs arising from or
connected with the past, present or future operations of the Company or
any of its Subsidiaries involving any property subject to a Collateral
Document, or damage to real or personal property or natural resources or
harm or injury alleged to have resulted from any Release of Contaminants
on, upon or into such property or any contiguous real estate, (ii) any
costs or liabilities incurred in connection with any Remedial Action
concerning any Borrower or any of its Subsidiaries, (iii) any costs or
liabilities incurred in connection with any Environmental Lien and (iv)
any costs or liabilities incurred in connection with any other matter
under any Environmental Law, including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (49 U.S.C. Section 9601
et seq.) and applicable state property transfer laws, whether, with
respect to any such matter, such Indemnitee is a mortgagee pursuant to any
leasehold mortgage, a mortgagee in possession, the successor in interest
to the Company or any of its Subsidiaries, or the owner, lessee or
operator of any property of the Company or any of its Subsidiaries by
virtue of foreclosure, except, with respect to those matters referred to
in clauses (i), (ii), (iii) and (iv) above, to the extent (x) incurred
following foreclosure by the Administrative Agent, the Australian Agent,
the Australian Collateral Trustee, any Lender or any Issuer, or the
Administrative Agent, the Australian Collateral Trustee, the Australian
Agent, any Lender or any Issuer having become the successor in interest to
the Company or any of its Subsidiaries and (y) attributable solely to acts
of the Administrative Agent, the Australian Collateral Trustee, the
Australian Agent, such Lender or such Issuer or any agent on behalf of the
Administrative Agent, the Australian Collateral Trustee, the Australian
Agent, such Lender or such Issuer.
(b) The Borrowers shall jointly and severally indemnify the
Administrative Agent, the Australian Collateral Trustee, the Australian
Agent, the Lenders and each Issuer for, and hold the Administrative Agent,
the Australian Collateral Trustee, the Australian Agent, the Lenders and
each Issuer harmless from and against, any and all claims for brokerage
commissions, fees and other compensation made against the
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Administrative Agent, the Australian Collateral Trustee, the Australian
Agent, the Lenders and the Issuers for any broker, finder or consultant
with respect to any agreement, arrangement or understanding made by or on
behalf of any Loan Party or any of its Subsidiaries in connection with the
transactions contemplated by this Agreement.
(c) Each Borrower, at the request of any Indemnitee, shall have the
obligation to defend against such investigation, litigation or proceeding
or requested Remedial Action and the Borrower, in any event, may
participate in the defense thereof with legal counsel of the Borrower's
choice. In the event that such Indemnitee requests any Borrower to defend
against such investigation, litigation or proceeding or requested Remedial
Action, such Borrower shall promptly do so and such Indemnitee shall have
the right to have legal counsel of its choice participate in such defense.
No action taken by legal counsel chosen by such Indemnitee in defending
against any such investigation, litigation or proceeding or requested
Remedial Action, shall vitiate or in any way impair the Borrowers'
obligation and duty hereunder to indemnify and hold harmless such
Indemnitee.
(d) Each Borrower agrees that any indemnification or other
protection provided to any Indemnitee pursuant to this Agreement
(including pursuant to this Section 11.4) or any other Loan Document shall
(i) survive payment in full of the Obligations and (ii) inure to the
benefit of any Person that was at any time an Indemnitee under this
Agreement or any other Loan Document.
SECTION 11.5 LIMITATION OF LIABILITY
Each Borrower agrees that no Indemnitee shall have any liability
(whether in contract, tort or otherwise) to any Loan Party or any of their
respective Subsidiaries or any of their respective equity holders or creditors
for or in connection with the transactions contemplated hereby and in the other
Loan Documents and Related Documents, except for direct damages (as opposed to
special, indirect, consequential or punitive damages (including, without
limitation, any loss of profits, business or anticipated savings)) determined in
a final non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnitee's gross negligence or willful misconduct. Each of
Holdings and each Borrower hereby waives, releases and agrees (each for itself
and on behalf of its Subsidiaries) not to xxx upon any such claim for any
special, indirect, consequential or punitive damages, whether or not accrued and
whether or not known or suspected to exist in its favor.
SECTION 11.6 RIGHT OF SET-OFF
Upon the occurrence and during the continuance of any Event of
Default each Lender and each Affiliate of a Lender is hereby authorized at any
time and from time to time, 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 and other indebtedness at any time owing by such
Lender or its Affiliates to or for the credit or the account of any Borrower
against any and all of the Obligations now or hereafter existing whether or not
such Lender shall have made any demand under this Agreement or any other Loan
Document and even though such Obligations may be unmatured. Each Lender agrees
promptly to notify the Company after any such set-off and application made by
such Lender or its Affiliates; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application. Each
Lender agrees that it shall not, without the express consent of the Requisite
Lenders (and that, it shall, to the extent
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lawfully entitled to do so, upon the request of the Requisite Lenders) exercise
its set-off rights under this Section 11.6 against any deposit accounts of the
Loan Parties and their Subsidiaries maintained with such Lender or any Affiliate
thereof. The rights of each Lender under this Section 11.6 are in addition to
the other rights and remedies (including other rights of set-off) that such
Lender may have.
SECTION 11.7 SHARING OF PAYMENTS, ETC.
(a) If any Lender (directly or through an Affiliate thereof) obtains
any payment (whether voluntary, involuntary, through the exercise of any
right of set-off (including pursuant to Section 11.6 (Right of Set-off))
or otherwise) of the Loans owing to it, any interest thereon, fees in
respect thereof or amounts due pursuant to Section 11.3 (Costs and
Expenses), 11.4 (Indemnities) (other than payments pursuant to Sections
2.14 (Special Provisions Governing External Rate Loans), 2.15 (Capital
Adequacy) or 2.16 (Taxes)) or otherwise receives any Collateral in respect
thereof (in each case, whether voluntary, involuntary, through the
exercise of any right of set-off or otherwise (including pursuant to
Section 11.6 (Right of Set-off))) in excess of its Ratable Portion (or, in
the case of payments of Obligations owing under the Australian Dollar
Subfacility, its Australian Dollar Ratable Portion) of all payments of
such Obligations obtained by all the Lenders, such Lender (a "Purchasing
Lender") shall forthwith purchase from the other Lenders (each, a "Selling
Lender") such participations in their Loans or other Obligations as shall
be necessary to cause such Purchasing Lender to share the excess payment
ratably (or, in the case of payments of Obligations owing under the
Australian Dollar Subfacility, in accordance with their Australian Dollar
Ratable Portions) with each of them.
(b) If all or any portion of any payment received by a Purchasing
Lender is thereafter recovered from such Purchasing Lender, such purchase
from each Selling Lender shall be rescinded and such Selling Lender shall
repay to the Purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Selling Lender's ratable
share (according to the proportion of (i) the amount of such Selling
Lender's required repayment in relation 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.
(c) Each Borrower agrees that any Purchasing Lender so purchasing a
participation from a Selling Lender pursuant to this Section 11.7 may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as
fully as if such Lender were the direct creditor of such Borrower in the
amount of such participation.
SECTION 11.8 NOTICES, ETC.
All notices, demands, requests and other communications provided for
in this Agreement shall be given in writing, or by any telecommunication device
capable of creating a written record (including electronic mail), and addressed
to the party to be notified as follows:
(a) if to the Company or any Borrower:
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
SWIFT & COMPANY
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx,
Chief Financial Officer
Telecopy no: (000) 000-0000
E-Mail Address: xxxxx.xxxxxx@xxxxxxxxxxx.xxx
(b) if to any Lender, any Documentation Agent or the Syndication
Agent, at its Domestic Lending Office;
(c) if to any Australian Dollar Lender, at its Australian Lending
Office;
(d) if to any Issuer, at its Applicable Lending Office; and
(e) if to the Australian Agent:
CITIBANK, N.A. (SYDNEY BRANCH)
Xxxxx 00
0 Xxxx Xxxxxx
Xxxxxx XXX 0000
Attention: Xxxxxxx Xxxx
Telecopy no: 011-612-8225-5111
E-Mail Address: xxxxxxx.xxxx@xxxx.xxx.xx
with a copy to the Administrative Agent (at the address
below);
(f) if to the Australian Collateral Trustee:
CITISECURITIES LIMITED
Xxxxx 00
0 Xxxx Xxxxxx
Xxxxxx, XXX 0000
Attention: Xxxxx Xxxxx
Telecopy no: 011-612-8225-5111
E-Mail Address: xxxxx.xxxxx@xxxxxxxx.xxx
(g) if to the Administrative Agent or the Swing Loan Lender:
CITICORP USA, INC.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy no: (000) 000-0000
E-Mail Address: xxxxxx.xxxxxx@xxxxxxxxx.xxx
149
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
with a copy to:
WEIL, GOTSHAL & XXXXXX LLP
000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Telecopy no: (000) 000-0000
E-Mail Address: xxxxxx.xxxxx@xxxx.xxx
or at such other address in the United States as shall be notified in writing
(x) in the case of the Borrowers, the Administrative Agent, the Australian Agent
and the Australian Collateral Trustee and the Swing Loan Lender, to the other
parties and (y) in the case of all other parties, to the Company and the
Administrative Agent. All such notices and communications shall be effective
upon personal delivery (if delivered by hand, including any overnight courier
service), when deposited in the mails (if sent by mail), or when properly
transmitted (if sent by a telecommunications device or through the Internet);
provided, however, that notices and communications to the Administrative Agent
or the Australian Agent pursuant to Article II (The Facility) or X (The
Administrative Agent; Other Agents) shall not be effective until received by the
Administrative Agent or the Australian Agent. Each Borrower agrees that notice
to the Company shall be sufficient notice to each Borrower.
SECTION 11.9 NO WAIVER; REMEDIES
No failure on the part of any Lender, Issuer or Agent to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 11.10 AMENDMENT AND RESTATEMENT; BINDING EFFECT
(a) This Agreement shall become effective when it shall have been
executed by each Borrower, the Administrative Agent, the Australian Agent
and the Australian Collateral Trustee and when the Administrative Agent
shall have been notified by each other Agent and each Lender and Issuer
that such Agent, Lender or Issuer has executed this Agreement and
thereafter shall be binding upon and inure to the benefit of each
Borrower, Agent, Lender and Issuer and, in each case, their respective
successors and assigns; provided, however, that no Borrower shall have the
right to assign its rights or obligations hereunder or any interest herein
without the prior written consent of the Lenders.
(b) On the Effective Date, the Company shall pay, with respect to
the Existing Credit Agreement, (i) all accrued and then outstanding
interest, fees, expenses and other Secured Obligations owing to any
Existing Secured Parties, including any expenses of counsel to the Agents,
(ii) all accrued and then outstanding fees to the Issuers with respect to
the Letters of Credit under the Existing Credit Agreement and (iii) all
"Revolving Loans" and "Term Loans" under and as defined in the Existing
Credit Agreement then outstanding. Furthermore, on the Effective Date, (x)
the Revolving Credit Commitment under the Existing Credit Agreement of any
Existing Lender that is not a Lender under this Agreement shall be
terminated (and any notice with respect
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
thereto is hereby waived) and the remaining Revolving Credit Commitments
of the Lenders shall be increased ratably to the amounts set forth on
Schedule I (Revolving Credit Commitments), (y) the Revolving Credit
Commitment of Citicorp North America, Inc. shall be further increased by
an amount equal to the aggregate Revolving Credit Commitments of the
prospective Lenders set forth on Schedule I (Revolving Credit Commitments)
that are not Existing Lenders and such Revolving Credit Commitments shall
immediately be transferred and assigned to such Lenders upon execution of
this Agreement in the amounts set forth on such schedule, upon which such
prospective Lenders shall become Lenders hereunder.
(c) On the Effective Date, the Existing Credit Agreement shall be
amended and restated in its entirety by this Agreement, and the Existing
Credit Agreement shall thereafter be of no further force and effect,
except to evidence (i) the incurrence by the Borrowers of the
"Obligations" under and as defined in the Existing Credit Agreement
(whether or not such "Obligations" are contingent as of the Effective
Date), (ii) the representations and warranties made by the Borrowers prior
to the Effective Date and (iii) any action or omission performed or
required to be performed pursuant to such Existing Credit Agreement prior
to the Effective Date (including any failure, prior to the Effective Date,
to comply with the covenants contained in such Existing Credit Agreement).
The amendments and restatements set forth herein shall not cure any breach
thereof or any "Default" or "Event of Default" under and as defined in the
Existing Credit Agreement existing prior to the Effective Date. This
Agreement is not in any way intended to constitute a novation of the
obligations and liabilities existing under the Existing Credit Agreement
or evidence payment of all or any portion of such obligations and
liabilities.
(d) The terms and conditions of this Agreement and the Agent's, the
Lenders' and the Issuers' rights and remedies under this Agreement and the
other Loan Documents shall apply to all of the Obligations incurred under
the Existing Credit Agreement and the Revolving Credit Notes issued
thereunder.
(e) On and after the Effective Date, (i) all references to the
Existing Credit Agreement (or to any amendment or any amendment and
restatement thereof) in the Loan Documents (other than this Agreement)
shall be deemed to refer to the Existing Credit Agreement, as amended and
restated hereby, (ii) all references to any section (or subsection) of the
Existing Credit Agreement or in any Loan Document (but not herein) shall
be amended to become, mutatis mutandis, references to the corresponding
provisions of this Agreement and (iii) except as the context otherwise
provides, on or after the Effective Date, all references to this Agreement
herein (including for purposes of indemnification and reimbursement of
fees) shall be deemed to be references to the Existing Credit Agreement,
as amended and restated hereby. Each of the Australian Collateral Trustee
(in its capacity as security trustee under the Australian Security Trust
Deed), the Administrative Agent and the Australian Company, and each other
party hereto, acknowledges and agrees that this agreement shall constitute
a "Finance Document"for all purposes of the Security Trust Deed.
(f) This amendment and restatement is limited as written and is not
a consent to any other amendment, restatement or waiver, whether or not
similar and, except as expressly provided herein or in any other Loan
Document, all terms and conditions of the Loan Documents remain in full
force and effect unless otherwise specifically amended hereby or any other
Loan Document.
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
SECTION 11.11 WAIVER OF XXXXXXXX BOND
To the fullest extent permitted by applicable law, each Borrower
waives the requirement to post any bond that otherwise may be required of any
Secured Party in connection with any judicial proceeding to enforce such Secured
Party's rights to payment hereunder, security interest in or other rights to the
Collateral or in connection with any other legal or equitable action or
proceeding arising out of, in connection with, or related to this Agreement, the
Revolving Credit Notes (if any), the Australian Intercompany Credit Agreement
and the other Loan Documents to which it is a party.
SECTION 11.12 WAIVER OF IMMUNITY
To the extent that any Australian Borrower has, or hereafter may be
entitled to claim or may acquire, for itself, any Collateral or other assets of
the Loan Parties, any immunity (whether sovereign or otherwise) from suit,
jurisdiction of any court or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution or
otherwise) with respect to itself, any Collateral or any other assets of the
Loan Parties, such Borrower hereby waives such immunity in respect of its
obligations hereunder and under the Revolving Credit Notes (if any), the
Australian Intercompany Credit Agreement and any other Loan Document to the
fullest extent permitted by applicable Requirements of Law and, without limiting
the generality of the foregoing, agrees that the waivers set forth in this
Section 11.12 (Waiver of Immunity) shall be effective to the fullest extent now
or hereafter permitted under the Foreign Sovereign Immunities Act of 1976 (as
amended, and together with any successor legislation) and are, and are intended
to be, irrevocable for purposes thereof.
SECTION 11.13 CURRENCY OF PAYMENT
(a) Each payment owing by any Borrower hereunder shall be made in
the relevant currency specified herein or, if not specified herein,
specified in any other Loan Document executed by the Administrative Agent
or the Australian Agent (the "Currency of Payment") at the place specified
herein (such requirement are of the essence of this Agreement). If, for
the purpose of obtaining judgment in any court, it is necessary to convert
a sum due hereunder in a Currency of Payment into another currency, the
parties hereto agree that the rate of exchange used shall be that at which
in accordance with normal banking procedures the Administrative Agent
could purchase such Currency of Payment with such other currency at the
spot rate of exchange quoted by the Administrative Agent at 11:00 a.m.
(New York time) on the Business Day preceding that on which final judgment
is given, for delivery two Business Days thereafter. The obligations in
respect of any sum due hereunder to any Secured Party shall,
notwithstanding any adjudication expressed in a currency other than the
Currency of Payment, be discharged only to the extent that, on the
Business Day following receipt by such Secured Party of any sum adjudged
to be so due in such other currency, such Secured Party may, in accordance
with normal banking procedures, purchase the Currency of Payment with such
other currency. Each Borrower agrees that (a) if the amount of the
Currency of Payment so purchased is less than the sum originally due to
such Secured Party in the Currency of Payment, as a separate obligation
and notwithstanding the result of any such adjudication, such Borrower
shall immediately pay the shortfall (in the Currency of Payment) to such
Secured Party and (b) if the amount of the Currency of Payment so
purchased exceeds the sum originally due to such Secured
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
Party, such Secured Party shall promptly pay the excess over to such
Borrower in the currency and to the extent actually received.
(b) The Obligations owing to any Secured Party hereunder shall,
notwithstanding any payment in a currency other than the Currency of
Payment and notwithstanding any deemed conversion or replacement
hereunder, be discharged only to the extent that, on the Business Day
following receipt by such Secured Party of any amount in such other
currency (including, in the case of any amounts held in a Cash Collateral
Account, following the date of application of such amounts to repay the
Obligations), such Secured Party may, in accordance with normal banking
procedures, purchase the Currency of Payment with such other currency.
Each Borrower agrees that (i) if the amount of the Currency of Payment so
purchased is less than the sum originally due to such Secured Party in the
Currency of Payment, as a separate obligation and notwithstanding the
result of any such adjudication, such Borrower shall immediately pay the
shortfall (in the Currency of Payment) to such Secured Party and (ii) if
the amount of the Currency of Payment so purchased exceeds the sum
originally due to such Secured Party, such Secured Party shall promptly
pay the excess over to such Borrower in the currency and to the extent
actually received.
SECTION 11.14 GOVERNING LAW
This Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.
SECTION 11.15 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS
(a) 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 Borrower hereby accepts
for itself and in respect of its property, generally and unconditionally,
the jurisdiction of the aforesaid courts. The parties hereto hereby
irrevocably waive any objection, including any objection to the laying of
venue or based on the grounds of forum non conveniens, that any of them
may now or hereafter have to the bringing of any such action or proceeding
in such respective jurisdictions.
(b) Each Australian Borrower hereby irrevocably designates, appoints
and empowers CT Corporation System (telephone number: 000-000-0000)
(telecopy number: 212-894-8690) (address: 000 Xxxxxx Xxxxxx, Xxx Xxxx,
X.X. 10011) (the "Process Agent"), in the case of any suit, action or
proceeding brought in the United States as its designee, appointee and
agent to receive, accept and acknowledge for and on its behalf, and in
respect of its property, service of any and all legal process, summons,
notices and documents that may be served in any action or proceeding
arising out of or in connection with this Agreement or any Loan Document.
Such service may be made by mailing (by registered or certified mail,
postage prepaid) or delivering a copy of such process to such Australian
Borrower in care of the Process Agent at the Process Agent's above
address, and such Australian Borrower hereby irrevocably authorizes and
directs the Process Agent to accept such service on its behalf. As an
alternative method of service, each Australian Borrower irrevocably
consents to the service of any and all process in any such action or
proceeding by the mailing (by registered or certified mail, postage
prepaid) of copies of such process to the Process Agent or such Australian
Borrower at its address
153
AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
specified in Section 11.8 (Notices, Etc.). Each Australian Borrower agrees
that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law.
(c) The Company hereby irrevocably consents to the service of any
and all legal process, summons, notices and documents in any suit, action
or proceeding brought in the United States arising out of or in connection
with this Agreement or any other Loan Document by the mailing (by
registered or certified mail, postage prepaid) or delivering of a copy of
such process to the Company at its address specified in Section 11.8
(Notices, Etc.). The Company agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.
(d) Nothing contained in this Section 11.15 shall affect the right
of any Agent, Lender, Issuer or other Secured Party to serve process in
any other manner permitted by law or commence legal proceedings or
otherwise proceed against any Borrower or any other Loan Party in any
other jurisdiction.
SECTION 11.16 WAIVER OF JURY TRIAL
EACH AGENT, LENDER, ISSUER AND BORROWER IRREVOCABLY WAIVES TRIAL BY
JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT.
SECTION 11.17 MARSHALING; PAYMENTS SET ASIDE
None of the Administrative Agent, Australian Agent, Australian
Collateral Trustee, any Lender or any Issuer shall be under any obligation to
marshal any assets in favor of any Borrower or any other party or against or in
payment of any or all of the Obligations. To the extent that any Borrower makes
a payment or payments to any Agent, Lender or Issuer or any such Person receives
payment from the proceeds of the Collateral or exercise their rights of setoff,
and such payment or payments or the proceeds of such enforcement or setoff or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or any
other party, then to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, right and remedies therefor,
shall be revived and continued in full force and effect as if such payment had
not been made or such enforcement or setoff had not occurred.
SECTION 11.18 SECTION TITLES
The section titles contained in this Agreement are and shall be
without substantive meaning or content of any kind whatsoever and are not a part
of the agreement between the parties hereto, except when used to reference a
section. Any reference to the number of a clause, sub-clause or subsection
hereof immediately followed by a reference in parenthesis to the title of the
Section containing such clause, sub-clause or subsection is a reference to such
clause, sub-clause or subsection and not to the entire Section; provided,
however, that, in case of direct conflict between the reference to the title and
the reference to the number of such Section, the reference to the title shall
govern absent manifest error. If any reference to the number of a Section (but
not to any clause, sub-clause or subsection thereof) is followed immediately by
a
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
reference in parenthesis to the title of a Section, the title reference shall
govern in case of direct conflict absent manifest error.
SECTION 11.19 EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are attached to the same document. Delivery of an executed signature page of
this Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all parties shall be lodged with the Company and the Administrative
Agent.
SECTION 11.20 ENTIRE AGREEMENT
This Agreement, together with all of the other Loan Documents and
all certificates and documents delivered hereunder or thereunder, embodies the
entire agreement of the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof. In the event of any
conflict between the terms of this Agreement and any other Loan Document, the
terms of this Agreement shall govern.
SECTION 11.21 CONFIDENTIALITY
Each Lender and each Agent agree to keep information obtained by it
pursuant hereto and the other Loan Documents confidential in accordance with
such Lender's or such Agent's, as the case may be, customary practices and
agrees that it shall only use such information in connection with the
transactions contemplated by this Agreement and not disclose any such
information other than (a) to such Lender's or such Agent's, as the case may be,
employees, representatives and agents that are or are expected to be involved in
the evaluation of such information in connection with the transactions
contemplated by this Agreement and are advised of the confidential nature of
such information, (b) to the extent such information presently is or hereafter
becomes available to such Lender or such Agent, as the case may be, on a
non-confidential basis from a source other than the Company, (c) to the extent
disclosure is required by law, regulation or judicial order or requested or
required by bank regulators or auditors or (d) to current or prospective
assignees, participants, Special Purpose Vehicles grantees of any option
described in Section 11.2(g) (Assignments and Participations) and contractual
counterparties in any Hedging Contract permitted hereunder and to legal advisors
of any of them advising them in the transaction described in this clause (d), in
each case and to the extent such assignees, participants, grantees and
counterparties agree to be bound by the provisions of this Section 11.21.
SECTION 11.22 PATRIOT ACT NOTICE
Each Lender and each Agent subject to the USA Patriot Act of 2001
(31 U.S.C. 5318 et seq.) hereby notifies each Borrower that, pursuant to Section
326 thereof, it is required to obtain, verify and record information that
identifies each Borrower, including the name and address of each Borrower and
other information allowing such Lender or such Agent to identify such Borrower
in accordance with such act.
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AMENDED AND RESTATED CREDIT AGREEMENT
SWIFT & COMPANY
[SIGNATURE PAGES FOLLOW]
156
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
SWIFT & COMPANY,
as Borrower
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President, Treasurer
S&C AUSTRALIA HOLDCO PTY. LTD.,
as Borrower
By: /s/ Xxxx Xxxxxx Xxxx
--------------------
Name: Xxxx Xxxxxx Xxxx
Title: Joint CEO
AUSTRALIA MEAT HOLDINGS PTY. LIMITED,
as Borrower
By: /s/ Xxxx Xxxxxx Xxxx
--------------------
Name: Xxxx Xxxxxx Xxxx
Title: Joint CEO
S&C HOLDCO 3, INC.,
as Holdings
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President, Treasurer
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
CITICORP USA, INC.,
as Administrative Agent, Collateral Agent and
Australian Agent
By: /s/ Sebastien Delasnerie
------------------------
Name: Sebastien Delasnerie
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
CITICORP NORTH AMERICA, INC.,
as Swing Loan Lender and Lender
By: /s/ Sebastien Delasnerie
------------------------
Name: Sebastien Delasnerie
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
CITIBANK, N.A.,
as Issuer
By: /s/ Sebastien Delasnerie
------------------------
Name: Sebastien Delasnerie
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
CITISECURITIES LIMITED,
as Australian Collateral Trustee
By: /s/ Nicola Stramandindi
--------------------------
Name: Nicola Stramandindi
Title: Company Secretary
By: /s/ Xxxxxx Xxxxx
------------------
Name: Xxxxxx Xxxxx
Title: Director
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
CITIBANK, N.A. (SYDNEY BRANCH),
as Australian Dollar Lender and Issuer
By: /s/ Xxxxxxx Xxxxxxx
-------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxx X. Xxxx
-----------------
Name: Xxxxx X. Xxxx
Title: Director
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent and Lender
By: /s/ Xxxx Xxxxxxxxx
------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
Other Agents:
FARM CREDIT SERVICES OF AMERICA, PCA
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
FARM CREDIT SERVICES OF MID-AMERICA, PCA
By: /s/ Xxx X. Xxxxxxx
------------------
Name: Xxx X. Xxxxxxx
Title: Senior Credit Officer
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
GMAC COMMERCIAL FINANCE LLC
By: /s/ Xxxxxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL", NEW YORK
BRANCH
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Executive Director
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Director
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
XXXXXXX XXXXX CAPITAL, A
DIVISION OF XXXXXXX XXXXX
BUSINESS FINANCIAL SERVICES INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
Other Lenders:
AGFIRST FARM CREDIT BANK
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
By: /s/ Xxxxx X. XxXxxxxx
------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Director
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
COBANK, ACB
By: /s/ Xxx Stutaman
------------------------------------
Name: Xxx Stutaman
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. XxXxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Managing Director
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
LASALLE NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Cable
------------------------------------
Name: Xxxxx X. Cable
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
XXXXX FARGO FOOTHILL, LLC
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
FARM CREDIT BANK OF TEXAS
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
FARM CREDIT SERVICES OF MINNESOTA VALLEY, PCA
DBA: FCS COMMERCIAL FINANCE GROUP
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
NATIONAL CITY BUSINESS CREDIT
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
PEE DEE FARM CREDIT, ACA
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
AGSTAR FINANCIAL SERVICES, PCA
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
AMERICAN AGCREDIT, PCA
By: /s/ Xxxx Van Schuyver
------------------------------------
Name: Xxxx Van Schuyver
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
COMMONWEALTH BANK OF AUSTRALIA,
GRAND CAYMAN BRANCH
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Risk Manager
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
1ST FARM CREDIT SERVICES, PCA
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: VP-Capital Markets
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
NORTH FORK BUSINESS CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
SOUTHWEST GEORGIA FARM CREDIT, ACA FOR
ITSELF AND AS AGENT/NOMINEE FOR SOUTHWEST
GEORGIA FARM CREDIT, FLCA
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Relationship Manager
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
UBS LOAN FINANCE LLC
By: /s/ Xxxxxxx X. Saint
------------------------------------
Name: Xxxxxxx X. Saint
Title: Director
Banking Products Services, US
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Associate Director
Banking Products Services, US
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
GREENSTONE FARM CREDIT SERVICES, ACA
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: VP/Sr. Lending Officer
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
N M ROTHSCHILD AND SONS
LIMITED
By: /s/ Xxxxxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxx Xxxx
Title: Assistant Director
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
FARM CREDIT WEST, PCA
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
FARM CREDIT SERVICES OF THE MOUNTAIN
PLAINS, PCA
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President-Credit
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
UPS CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director of Portfolio Management
[SIGNATURE PAGE TO SWIFT & COMPANY AMENDED AND XXXXXXXX CREDIT AGREEMENT]
