Exhibit 10.1
CREDIT AGREEMENT
dated as of February 27, 1998,
by and among
RICHFOOD HOLDINGS, INC.,
as Borrower,
the Lenders referred to herein,
FIRST UNION NATIONAL BANK,
as Administrative Agent,
CRESTAR BANK,
as Syndication Agent,
and
SUNTRUST BANK, ATLANTA,
as Documentation Agent
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS...................................................................................1
Section 1.1 Definitions...................................................................................1
Section 1.2 General......................................................................................12
Section 1.3 Other Definitions and Provisions.............................................................12
ARTICLE 2 REVOLVING CREDIT FACILITY....................................................................12
Section 2.1 Revolving Credit Loans.......................................................................12
Section 2.2 Procedure for Advances of Revolving Credit Loans.............................................12
Section 2.3 Repayment of Revolving Credit Loans..........................................................13
Section 2.4 Revolving Credit Notes.......................................................................14
Section 2.5 Reduction of the Aggregate Revolving Credit Commitment.......................................14
Section 2.6 Termination of Revolving Credit Facility.....................................................14
Section 2.7 Use of Proceeds..............................................................................14
ARTICLE 3 GENERAL LOAN PROVISIONS......................................................................15
Section 3.1 Interest.....................................................................................15
Section 3.2 Notice and Manner of Conversion or Continuation of Loans.....................................17
Section 3.3 Fees.........................................................................................18
Section 3.4 Manner of Payment............................................................................19
Section 3.5 Crediting of Payments and Proceeds...........................................................19
Section 3.6 Adjustments..................................................................................19
Section 3.7 Nature of Obligations of Lenders Regarding Extensions of Credit;
Assumption by the Administrative Agent.......................................................20
Section 3.8 Changed Circumstances........................................................................20
Section 3.9 Indemnity....................................................................................22
Section 3.10 Capital Requirements.........................................................................22
Section 3.11 Taxes........................................................................................23
Section 3.12 Mitigation...................................................................................24
Section 3.13 Replacement of Demanding Lender..............................................................25
ARTICLE 4 CLOSING; CONDITIONS OF CLOSING AND BORROWING.................................................25
Section 4.1 Closing......................................................................................25
Section 4.2 Conditions to Closing and Initial Extensions of Credit.......................................25
Section 4.3 Conditions to All Loans and Letters of Credit................................................28
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE BORROWER...............................................28
Section 5.1 Representations and Warranties...............................................................28
Section 5.2 Survival of Representations and Warranties, Etc..............................................35
ARTICLE 6 FINANCIAL INFORMATION AND NOTICES............................................................35
Section 6.1 Financial Statements and Projections.........................................................35
Section 6.2 Officer's Compliance Certificate.............................................................36
Section 6.3 Other Reports................................................................................36
Section 6.4 Notice of Subsidiaries, Litigation and Other Matters. .......................................37
Section 6.5 Accuracy of Information......................................................................38
ARTICLE 7 AFFIRMATIVE COVENANTS........................................................................38
Section 7.1 Preservation of Corporate Existence and Related Matters......................................38
Section 7.2 Maintenance of Property......................................................................38
Section 7.3 Insurance....................................................................................38
Section 7.4 Accounting Methods and Financial Records.....................................................39
Section 7.5 Payment and Performance of Obligations.......................................................39
Section 7.6 Compliance With Laws and Approvals...........................................................39
Section 7.7 Environmental Laws...........................................................................39
Section 7.8 Compliance with ERISA........................................................................40
Section 7.9 Compliance With Agreements...................................................................40
Section 7.10 Conduct of Business..........................................................................40
Section 7.11 Visits and Inspections.......................................................................40
Section 7.12 Year 2000 Compatibility......................................................................40
Section 7.13 Further Assurances...........................................................................41
ARTICLE 8 FINANCIAL COVENANTS..........................................................................41
Section 8.1 Leverage Ratio...............................................................................41
Section 8.2 Fixed Charge Coverage Ratio..................................................................41
ARTICLE 9 NEGATIVE COVENANTS...........................................................................41
Section 9.1 Limitations on Debt..........................................................................41
Section 9.2 Intentionally Omitted........................................................................42
Section 9.3 Limitations on Liens.........................................................................42
Section 9.4 Limitations on Mergers and Liquidation.......................................................43
Section 9.5 Limitations on Sale of Assets................................................................44
Section 9.6 Prohibition against Limitations on Dividends and Distributions...............................44
Section 9.7 Intentionally Omitted........................................................................44
Section 9.8 Transactions with Affiliates.................................................................44
Section 9.9 Certain Accounting Changes...................................................................45
Section 9.10 Amendments; Payments and Prepayments of Subordinated Debt....................................45
ARTICLE 10 DEFAULT AND REMEDIES.........................................................................45
Section 10.1 Events of Default............................................................................45
Section 10.2 Remedies.....................................................................................47
Section 10.3 Rights and Remedies Cumulative; Non-Waiver; etc..............................................48
ARTICLE 11 THE ADMINISTRATIVE AGENT.....................................................................48
Section 11.1 Appointment..................................................................................48
Section 11.2 Delegation of Duties.........................................................................48
Section 11.3 Exculpatory Provisions.......................................................................49
Section 11.4 Reliance by the Administrative Agent.........................................................49
Section 11.5 Notice of Default............................................................................49
Section 11.6 Non-Reliance on the Administrative Agent and Other Lenders...................................50
Section 11.7 Indemnification..............................................................................50
Section 11.8 The Administrative Agent in Its Individual Capacity..........................................51
Section 11.9 Resignation of the Administrative Agent; Successor Administrative Agent......................51
Section 11.10 Syndication Agent and Documentation Agent....................................................51
ARTICLE 12 MISCELLANEOUS................................................................................51
Section 12.1 Notices......................................................................................51
Section 12.2 Expenses; Indemnity..........................................................................53
Section 12.3 Set-off......................................................................................53
Section 12.4 Governing Law................................................................................53
Section 12.5 Consent to Jurisdiction......................................................................54
Section 12.6 Binding Arbitration; Waiver of Jury Trial....................................................54
Section 12.7 Reversal of Payments.........................................................................55
Section 12.8 Injunctive Relief; Punitive Damages..........................................................55
Section 12.9 Accounting Matters...........................................................................55
Section 12.10 Successors and Assigns; Participations.......................................................55
Section 12.11 Amendments, Waivers and Consents.............................................................58
Section 12.12 Performance of Duties........................................................................59
Section 12.13 All Powers Coupled with Interest.............................................................59
Section 12.14 Survival of Indemnities......................................................................59
Section 12.15 Titles and Captions..........................................................................59
Section 12.16 Severability of Provisions...................................................................59
Section 12.17 Counterparts.................................................................................59
Section 12.18 Term of Agreement............................................................................59
EXHIBITS
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Notice of Revolving Credit Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Compliance Certificate
Exhibit G - Form of Assignment and Acceptance
SCHEDULES
Schedule 1 - Lenders and Commitments
Schedule 5.1(a) - Jurisdictions of Organization and Qualification
Schedule 5.1(b) - Subsidiaries and Capitalization
Schedule 5.1(i) - Employee Benefit Plans
Schedule 5.1(l) - Material Contracts
Schedule 5.1(m) - Labor and Collective Bargaining Agreements
Schedule 5.1(t) - Debt and Guaranty Obligations
Schedule 9.3 - Existing Liens
Schedule 9.6 - Existing Restrictions on Dividends
CREDIT AGREEMENT, dated as of the 27th day of February, 1998, by and
among RICHFOOD HOLDINGS, INC., a Virginia corporation (the "Borrower"), the
Lenders who are or may become a party to this Agreement (the "Lenders"), FIRST
UNION NATIONAL BANK, a national banking association (the "Administrative
Agent"), as Administrative Agent for the Lenders, CRESTAR BANK, as Syndication
Agent, and SUNTRUST BANK, ATLANTA, as Documentation Agent.
STATEMENT OF PURPOSE
The Borrower has requested that the Lenders extend, and the Lenders
have agreed to extend, a certain credit facility to the Borrower on the terms
and conditions contained in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"Administrative Agent" means First Union in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 11.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
12.1.
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary of such first Person) which directly or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, such first Person or any of its Subsidiaries. The term "control"
means (a) the power to vote five percent (5%) or more of the securities or other
equity interests of a Person having ordinary voting power, or (b) the
possession, directly or indirectly, of any other power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"Agents" means the Administrative Agent, Crestar Bank as Syndication
Agent and/or SunTrust Bank, Atlanta as Documentation Agent as the context may
require.
"Aggregate Revolving Credit Commitment" means the aggregate amount of
the Lenders' Revolving Credit Commitments hereunder, as such amount may be
increased, reduced or modified at any time or from time to time pursuant to the
terms hereof. On the Closing Date, the Aggregate Revolving Credit Commitment
shall be One Hundred Million Dollars ($100,000,000.00).
"Agreement" means this Credit Agreement, as amended, restated or
otherwise modified.
"Applicable Law" means all applicable provisions of constitutions,
laws, statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities and
all orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in Section
3.1(c).
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 12.10.
"Base Rate" means, at any time, the higher of (a) the Prime Rate or (b)
the Federal Funds Rate plus 1/2 of 1%; each change in the Base Rate shall take
effect simultaneously with the corresponding change or changes in the Prime Rate
or the Federal Funds Rate.
"Base Rate Loan" means any Revolving Credit Loan bearing interest at a
rate based upon the Base Rate as provided in Section 3.1(a).
"Borrower" means Richfood Holdings, Inc. in its capacity as borrower
hereunder.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina and New York, New York, are open for
the conduct of their commercial banking business, and (b) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan, any day that is a Business Day described in
clause (a) and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"Capital Asset" means, with respect to the Borrower and its
Subsidiaries, any asset that should, in accordance with GAAP, be classified and
accounted for as a capital asset on a Consolidated balance sheet of the Borrower
and its Subsidiaries.
"Capital Lease" means, with respect to the Borrower and its
Subsidiaries, any lease of any property that should, in accordance with GAAP, be
classified and accounted for as a capital lease on a Consolidated balance sheet
of the Borrower and its Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in Section
10.1(i).
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Article 4 shall be satisfied or
waived in all respects in a manner acceptable to the Administrative Agent, in
its sole discretion.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended, supplemented or otherwise modified.
"Consolidated" means, when used with reference to financial statements
or financial statement items of the Borrower and its Subsidiaries, such
statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.
"Consolidated EBITDA" means, for any period and without duplication,
the Consolidated net income of the Borrower and its Subsidiaries for such period
plus the aggregate amount deducted in determining such Consolidated net income
for such period with respect to interest, taxes, depreciation and amortization;
provided that, in calculating Consolidated EBITDA for any period, (i) any
Subsidiary acquired during such period shall be treated as if it were a
Subsidiary for the entire period and (ii) any non-cash gains or losses resulting
from the sale, conversion or other disposition of assets, any gains or losses
resulting from the write-up or write-down of assets, any equity in the
unremitted earnings of any company which is not a Wholly-Owned Subsidiary and
any other non-cash extraordinary items shall be disregarded.
"Consolidated EBITDAR" means, for any period and without duplication,
the Consolidated net income of the Borrower and its Subsidiaries for such period
plus the aggregate amount deducted in determining such Consolidated net income
for such period with respect to interest, taxes, depreciation, amortization and
net rent (including, without limitation, rent under synthetic and other
structured leases); provided that, in calculating Consolidated EBITDAR for any
period, (i) any Subsidiary acquired during such period shall be treated as if it
were a Subsidiary for the entire period, and (ii) any non-cash gains or losses
resulting from the sale, conversion or other disposition of assets, any gains or
losses resulting from the write-up or write-down of assets, any equity in the
unremitted earnings of any company which is not a Wholly-Owned Subsidiary and
any other non-cash extraordinary items shall be disregarded.
"Consolidated Fixed Charges" means, for any period and without
duplication, the sum of the Consolidated interest expense (including, without
limitation, the portion of any obligation under Capital Leases allocable to
Consolidated interest expense in accordance with GAAP) of the Borrower and its
Subsidiaries for such period, the Consolidated net rent expense (including,
without limitation, rent expense under synthetic and other structured leases) of
the Borrower and its Subsidiaries for such period, the Consolidated current
maturities of long-term debt of the Borrower and its Subsidiaries as of the end
of such period, and the Consolidated obligations of the Borrower and its
Subsidiaries with respect to the principal components of payments under Capital
Leases which were payable during such period.
"Consolidated Funded Debt" means, at any date and without duplication,
the sum of (i) the Consolidated Debt of the Borrower and its Subsidiaries of the
types described in clauses (a), (b), (c) and (d) of the definition of Debt at
such date (including current maturities of such Debt), and (ii) the aggregate
implied principal amount of synthetic and other structured leases of the
Borrower and its Subsidiaries at such date calculated in accordance with
applicable Federal income tax laws and regulations.
"Consolidated Net Tangible Assets" means, at any date and without
duplication, the aggregate amount of assets of the Borrower and its Subsidiaries
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities, and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent balance sheet of the Borrower
and its Subsidiaries and computed in accordance with GAAP.
"Debt" means, with respect to the Borrower and its Subsidiaries at any
date and without duplication, the sum of the following calculated in accordance
with GAAP: (a) all liabilities, obligations and indebtedness for borrowed money
including but not limited to obligations evidenced by bonds, debentures, notes
or other similar instruments of any such Person, (b) all obligations to pay the
deferred purchase price of property or services of any such Person, except trade
payables arising in the ordinary course of business, (c) all obligations of any
such Person as lessee with respect to the principal components of Capital
Leases, (d) all Debt of any other Person secured by a Lien on any asset of any
such Person, (e) all Guaranty Obligations of any such Person, (f) all
obligations, contingent or otherwise, of any such Person relative to the face
amount of letters of credit, whether or not drawn, and banker's acceptances
issued for the account of any such Person and (g) all obligations incurred by
any such Person pursuant to Hedging Agreements.
"Default" means any of the events specified in Section 10.1 which with
the passage of time, the giving of notice or any other condition would
constitute an Event of Default.
"Demanding Lender" shall have the meaning assigned thereto in Section
3.13.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Eligible Assignee" means, with respect to any assignment of the
rights, interests and obligations of a Lender hereunder, a Person that is at the
time of such assignment (a) a commercial bank organized under the laws of the
United States or any state thereof or under the laws of a country which is a
member of the Organization for Economic Cooperation and Development, having
combined capital and surplus in excess of $500,000,000, (b) a finance company,
insurance company or other financial institution which in the ordinary course of
business extends credit of the type extended hereunder and that has total assets
in excess of $1,000,000,000, (c) already a Lender hereunder (whether as an
original party to this Agreement or as the assignee of another Lender), (d) the
successor (whether by transfer of assets, merger or otherwise) to all or
substantially all of the commercial lending business of the assigning Lender, or
(e) any other Person that has been approved in writing as an Eligible Assignee
by the Borrower and the Administrative Agent.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of the
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
years been maintained for the employees of the Borrower or any current or former
ERISA Affiliate.
"Environmental Laws" means any and all federal, state and local laws,
statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to
the protection of human health or the environment, including, but not limited
to, requirements pertaining to the manufacture, processing, distribution, use,
treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended, supplemented or otherwise
modified.
"ERISA Affiliate" means any Person who together with the Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of Eurocurrency liabilities or any similar category of liabilities for a
member bank of the Federal Reserve System in New York City.
"Event of Default" means any of the events specified in Section 10.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Existing Credit Facilities" means the following credit facilities of
the Borrower and its Subsidiaries which will be refinanced with the proceeds of
Loans made hereunder: (i) the credit facility described in the letter agreement
dated February 20, 1996, as amended, between Market Funding, Inc. and Crestar
Bank, and (ii) the credit facility evidenced by the Revolving Loan Promissory
Note, dated December 4, 1995, made by Market Funding, Inc. to NationsBank, N.A.
"Facility Fee Percentage" shall have the meaning assigned thereto in
Section 3.3(b).
"FDIC" means the Federal Deposit Insurance Corporation or any successor
thereto.
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
the same as the rate for the most immediate preceding Business Day.
"First Union" means First Union National Bank, a national banking
association, and its successors.
"Fiscal Year" means the fiscal year of the Borrower and its
Subsidiaries ending on the Saturday nearest April 30.
"GAAP" means generally accepted accounting principles, as recognized
from time to time by the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board, consistently applied and maintained on
a consistent basis for the Borrower and its Subsidiaries throughout the period
indicated and consistent with the prior financial practice of the Borrower and
its Subsidiaries.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" means, with respect to the Borrower and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt or other similar obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided that the term Guaranty
Obligation shall not include endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Materials" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants or toxic substances under any Applicable Law, (b) which are toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise harmful to human health or the environment and are or
become regulated by any Governmental Authority, (c) the presence of which
require investigation or remediation under any Applicable Law, (d) the discharge
or emission or release of which requires a permit or license under any
Applicable Law or other Governmental Approval, (e) which are found by a court of
competent jurisdiction or by any Governmental Authority to constitute a
nuisance, a trespass or pose a health or safety hazard to persons or neighboring
properties, (f) which consist of underground or aboveground storage tanks,
whether empty, filled or partially filled with any substance of the type listed
in any other part of this definition, or (g) which contain asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an interest
rate swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection with
hedging the interest rate exposure of the Borrower, and any confirming letter
executed pursuant to such hedging agreement, all as amended, restated or
otherwise modified.
"Interest Period" shall have the meaning assigned thereto in Section
3.1(b).
"Lender" means each Person executing this Agreement as a Lender set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 12.10(b).
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Revolving Credit Loans.
"LIBOR" means the rate of interest per annum determined on the basis of
the rate for deposits in Dollars in minimum amounts of at least $5,000,000 for a
period equal to the applicable Interest Period which appears on the Telerate
Page 3750 at approximately 11:00 a.m. (London time) two (2) Business Days prior
to the first day of the applicable Interest Period (rounded upward, if
necessary, to the nearest one-sixteenth of one percent (1/16%)). If, for any
reason, such rate does not appear on Telerate Page 3750, then "LIBOR" shall be
determined by the Administrative Agent to be the arithmetic average (rounded
upward, if necessary, to the nearest one-sixteenth of one percent (1/16%)) of
the rate per annum at which deposits in Dollars would be offered by first class
banks in the London interbank market to the Administrative Agent at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of the applicable Interest Period for a period equal to such Interest Period
and in an amount substantially equal to the amount of the applicable Loan.
"LIBOR Rate" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Administrative Agent pursuant
to the following formula:
LIBOR Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Revolving Credit Loan bearing interest at a
rate based upon the LIBOR Rate as provided in Section 3.1(a).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind with respect to such asset.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capital Lease or other
title retention agreement relating to such asset.
"Loan Documents" means, collectively, this Agreement, the Revolving
Credit Notes and each other document, instrument and agreement executed and
delivered by the Borrower, its Subsidiaries or their counsel in connection with
this Agreement or otherwise referred to herein or contemplated hereby, all as
may be amended, restated or otherwise modified.
"Material Adverse Change" means a material adverse change in the
condition (financial or otherwise), operations, business, properties or
financial prospects of the Borrower or the Borrower and its Subsidiaries taken
as a whole.
"Material Adverse Effect" means a material adverse effect upon (a) the
condition (financial or otherwise), operations, business, properties or
financial prospects of the Borrower or the Borrower and its Subsidiaries taken
as a whole, (b) the ability of the Borrower to perform its obligations under
this Agreement or any of the other Loan Documents, or (c) the legality, validity
or enforceability of this Agreement or any of the other Loan Documents.
"Material Contract" means (a) any multi-year supply agreement with a
customer producing revenue in excess of $50,000,000 per year or any other
contract or other agreement, written or oral, of the Borrower or any of its
Subsidiaries involving monetary liability of or to any such Person in an amount
in excess of $10,000,000 per year, or (b) any other contract or agreement,
written or oral, of the Borrower or any of its Subsidiaries the failure to
comply with which could reasonably be expected to have a Material Adverse
Effect.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making or is
accruing an obligation to make contributions or has made or has accrued an
obligation to make contributions within the preceding six years.
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 2.2(b).
"Notice of Revolving Credit Borrowing" shall have the meaning assigned
thereto in Section 2.2(a).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 3.2.
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.3(c).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Revolving
Credit Loans and (b) all other fees and commissions (including attorneys' fees),
charges, indebtedness, loans, liabilities, financial accommodations,
obligations, covenants and duties owing by the Borrower to the Lenders or the
Administrative Agent, of every kind, nature and description, direct or indirect,
absolute or contingent, due or to become due, contractual or tortious,
liquidated or unliquidated, and whether or not evidenced by any note, and
whether or not for the payment of money, under or with respect to this
Agreement, any Revolving Credit Note or any of the other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 6.2.
"Other Taxes" shall have the meaning assigned thereto in Section
3.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for employees of the
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
years been maintained for the employees of the Borrower or any of their current
or former ERISA Affiliates.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"Prime Rate" means, at any time, the rate of interest per annum
publicly announced from time to time by First Union as its prime rate. Each
change in the Prime Rate shall be effective as of the opening of business on the
day such change in the Prime Rate occurs. The parties hereto acknowledge that
the rate announced publicly by First Union as its Prime Rate is an index or base
rate and shall not necessarily be its lowest or best rate charged to its
customers or other banks.
"Register" shall have the meaning assigned thereto in Section 12.10(d).
"Required Lenders" means, at any date, any combination of holders of
51% or more of the aggregate unpaid principal amount of the Revolving Credit
Notes, or if no amounts are outstanding under the Revolving Credit Notes, any
combination of Lenders whose Revolving Credit Commitment Percentages aggregate
51% or more.
"Responsible Officer" means any of the following: the chief executive
officer, chief financial officer or treasurer of the Borrower or any other
officer of the Borrower reasonably acceptable to the Administrative Agent.
"Revolving Credit Commitment" means, as to any Lender, the obligation
of such Lender to make Revolving Credit Loans to the Borrower hereunder in an
aggregate principal amount at any time outstanding not to exceed the amount set
forth opposite such Lender's name under Revolving Credit Commitment on Schedule
1 hereto, as the same may be reduced or modified at any time or from time to
time pursuant to the terms hereof.
"Revolving Credit Commitment Percentage" means, as to any Lender at any
time, the ratio of (a) the amount of the Revolving Credit Commitment of such
Lender to (b) the Aggregate Revolving Credit Commitment of all of the Lenders.
"Revolving Credit Extensions of Credit" means, as to any Lender at any
time, an amount equal to the aggregate principal amount of all Revolving Credit
Loans made by such Lender then outstanding.
"Revolving Credit Facility" means the revolving credit facility
established pursuant to Article 2.
"Revolving Credit Loans" means any revolving loan made to the Borrower
pursuant to Section 2.1, and all such revolving loans collectively as the
context requires.
"Revolving Credit Notes" means the collective reference to the
Revolving Credit Notes made by the Borrower payable to the order of the Lenders,
each substantially in the form of Exhibit A hereto, evidencing the Revolving
Credit Loans of the Lenders, and any amendments and modifications thereto, any
substitutes therefor, and any replacements, restatements, renewals and
extensions thereof, in whole or in part; "Revolving Credit Note" means any of
such Revolving Credit Notes.
"Revolving Credit Termination Date" means the earliest of the dates
referred to in Section 2.6.
"SEC" means the Securities and Exchange Commission or any successor
agency.
"Senior Debt Rating" means the senior debt rating assigned to the
Borrower from time to time by S&P or, if no senior debt rating is so assigned,
the corporate debt rating assigned to the Borrower from time to time by S&P.
"Separate Revolving Credit Facility" means the revolving credit
facility established pursuant to the separate Credit Agreement dated February
27, 1998, by and among the Borrower, the Lenders parties thereto, First Union as
Administrative Agent, Crestar Bank as Syndication Agent and SunTrust Bank,
Atlanta as Documentation Agent.
"Significant Subsidiary" means (i) Richfood, Inc., Rotelle, Inc.,
SuperRite Corporation, SuperRite Foods, Inc. and Foodarama Incorporated, and
(ii) each other Subsidiary, whether now existing or hereafter formed or
acquired, which now or at any time hereafter owns three percent (3%) or more of
Consolidated Net Tangible Assets.
"Solvent" means, as to the Borrower and its Subsidiaries on a
particular date, that any such Person (a) has capital sufficient to carry on its
business and transactions and all business and transactions in which it is about
to engage and is able to pay its debts as they mature, (b) owns property having
a value, both at fair valuation and at present fair saleable value, greater than
the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx
Companies, Inc., or any successor rating agency thereto.
"Subordinated Debt" means the Debt described on Schedule 5.1(t)
designated as Subordinated Debt and any other Debt of the Borrower or any
Subsidiary the payment of which is subordinated to the payment to the
Obligations.
"Subsidiary" means as to any Person, any corporation, partnership,
limited liability company or other entity of which more than fifty percent (50%)
of the outstanding capital stock or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other managers of
such corporation, partnership, limited liability company or other entity is at
the time, directly or indirectly, owned by such Person (irrespective of whether,
at the time, capital stock or other ownership interests of any other class or
classes of such corporation, partnership, limited liability company or other
entity shall have or might have voting power by reason of the happening of any
contingency). Unless otherwise qualified, references to "Subsidiary" or
"Subsidiaries" herein shall refer to those of the Borrower. Notwithstanding the
foregoing, the term "Subsidiary" shall not include any "Equity Store" or Person
participating in the Business Development Program. For purposes of this
definition, (a) "Equity Store" means a Person in which the Borrower or any of
its Subsidiaries has invested capital or to which it has made loans in
accordance with the business practice of the Borrower and its Subsidiaries of
making equity investments in Persons, and making or guaranteeing loans to such
Persons, for the purpose of assisting such Persons in acquiring, remodeling,
refurbishing, expanding or operating one or more retail grocery stores and
pursuant to which such Persons are permitted or required to reduce the
Borrower's or the Subsidiary's equity interest to a minority position over time,
and (b) "Business Development Program" means the business practice of the
Borrower and its Subsidiaries of making or guaranteeing loans to, or making
equity investments in, third parties engaged in the retail grocery business in
exchange for long-term supply agreements with the Borrower or any Subsidiary.
"Taxes" shall have the meaning assigned thereto in Section 3.11(a).
"Termination Event" means any of the following events which results or
is reasonably likely to result, either in any given instance or in the aggregate
with one or more other such events, in a Material Adverse Effect or in liability
of the Borrower or any Subsidiary in excess of $25,000,000: (a) a "Reportable
Event" described in Section 4043 of ERISA, or (b) the withdrawal of the Borrower
or any ERISA Affiliate from a Pension Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, or (c) the
termination of a Pension Plan, the filing of a notice of intent to terminate a
Pension Plan or the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA, or (d) the institution of proceedings to terminate, or
the appointment of a trustee with respect to, any Pension Plan by the PBGC, or
(e) any other event or condition which would constitute grounds under Section
4042(a) of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan, or (f) the partial or complete withdrawal of the
Borrower or any ERISA Affiliate from a Multiemployer Plan, or (g) the imposition
of a Lien pursuant to Section 412 of the Code or Section 302 of ERISA, or (h)
any event or condition which results in the reorganization or insolvency of a
Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (i) any event or
condition which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by the PBGC of proceedings to terminate a
Multiemployer Plan under Section 4042 of ERISA.
"UCC" means the Uniform Commercial Code as in effect in the
Commonwealth of Virginia.
"United States" means the United States of America.
"Wholly-Owned" means, with respect to a Subsidiary, that all of the
shares of capital stock or other ownership interests of such Subsidiary (other
than qualifying shares held by directors) are, directly or indirectly, owned or
controlled by the Borrower and/or one or more of its Wholly-Owned Subsidiaries.
Section 1.2 General. Unless otherwise specified, a reference in this
Agreement to a particular section, subsection, Schedule or Exhibit is a
reference to that section, subsection, Schedule or Exhibit of this Agreement.
Wherever from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and plural, and pronouns stated in
the masculine, feminine or neuter gender shall include the masculine, the
feminine and the neuter. Any reference herein to "Charlotte time" shall refer to
the applicable time of day in Charlotte, North Carolina.
Section 1.3 Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Revolving Credit Notes and the other Loan Documents
or any certificate, report or other document made or delivered pursuant to this
Agreement.
(b) Miscellaneous. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE 2
REVOLVING CREDIT FACILITY
Section 2.1 Revolving Credit Loans. Subject to the terms and conditions
of this Agreement, each Lender severally agrees to make Revolving Credit Loans
to the Borrower from time to time from the Closing Date to but excluding the
Revolving Credit Termination Date as requested by the Borrower in accordance
with the terms of Section 2.2; provided that (a) the aggregate principal amount
of all outstanding Revolving Credit Loans (after giving effect to any amount
requested) shall not exceed the Aggregate Revolving Credit Commitment and (b)
the principal amount of outstanding Revolving Credit Loans from any Lender to
the Borrower (after giving effect to any amount requested) shall not at any time
exceed such Lender's Revolving Credit Commitment. Each Revolving Credit Loan by
a Lender shall be in a principal amount equal to such Lender's Revolving Credit
Commitment Percentage of the aggregate principal amount of Revolving Credit
Loans requested on such occasion. Subject to the terms and conditions hereof,
the Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder
until the Revolving Credit Termination Date.
Section 2.2 Procedure for Advances of Revolving Credit Loans.
(a) Requests for Borrowing. The Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached hereto as Exhibit B
(a "Notice of Revolving Credit Borrowing") not later than 11:00 a.m. (Charlotte
time) (i) at least one (1) Business Day before each Revolving Credit Loan which
is initially to be a Base Rate Loan is to be made and (ii) at least three (3)
Business Days before each Revolving Credit Loan which is initially to be a LIBOR
Rate Loan is to be made, of its intention to borrow, specifying (A) the date of
such borrowing, which shall be a Business Day, (B) the amount of such borrowing,
which shall be in an amount equal to the amount of the Aggregate Revolving
Credit Commitment then available to the Borrower, or if less, (x) with respect
to Base Rate Loans in an aggregate principal amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof and (y) with respect to LIBOR Rate Loans
in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000
in excess thereof, (C) whether such Revolving Credit Loans are initially to be
LIBOR Rate Loans or Base Rate Loans, and (D) in the case of a LIBOR Rate Loan,
the duration of the initial Interest Period applicable thereto. Notices received
after 11:00 a.m. (Charlotte time) shall be deemed received on the next Business
Day. The Administrative Agent shall promptly notify the Lenders of each Notice
of Revolving Credit Borrowing received by the Administrative Agent.
(b) Disbursement of Revolving Credit Loans. Not later than 2:00 p.m.
(Charlotte time) on the proposed borrowing date, each Lender will make available
to the Administrative Agent, for the account of the Borrower, at the
Administrative Agent's Office in funds immediately available to the
Administrative Agent, such Lender's Revolving Credit Commitment Percentage of
the Revolving Credit Loans to be made on such borrowing date. The Borrower
hereby irrevocably authorizes the Administrative Agent to disburse the proceeds
of each borrowing requested pursuant to this Section 2.2 in immediately
available funds by crediting or wiring such proceeds to the deposit account of
the Borrower identified in the most recent notice substantially in the form of
Exhibit C hereto (a "Notice of Account Designation") delivered by the Borrower
to the Administrative Agent or as may be otherwise agreed upon by the Borrower
and the Administrative Agent from time to time. Subject to Section 3.7, the
Administrative Agent shall not be obligated to disburse the portion of the
proceeds of any Revolving Credit Loan requested pursuant to this Section 2.2 to
the extent that any Lender has not made available to the Administrative Agent
its Revolving Credit Commitment Percentage of such Revolving Credit Loan.
Section 2.3 Repayment of Revolving Credit Loans.
(a) Repayment Provisions. The Borrower shall repay the outstanding
principal amount of all Revolving Credit Loans in full on the Revolving Credit
Termination Date, together with all accrued but unpaid interest thereon.
(b) Mandatory Repayment of Excess Loans. If at any time the outstanding
principal amount of all Revolving Credit Loans exceeds the Aggregate Revolving
Credit Commitment, the Borrower shall repay immediately upon notice from the
Administrative Agent, by payment to the Administrative Agent for the account of
the Lenders, Revolving Credit Loans in an amount equal to such excess. Each such
repayment shall be accompanied by any amount required to be paid pursuant to
Section 3.9.
(c) Optional Repayments. The Borrower may at any time and from time to
time repay the Revolving Credit Loans, in whole or in part, upon at least three
(3) Business Days' irrevocable notice to the Administrative Agent with respect
to LIBOR Rate Loans and one (1) Business Day irrevocable notice with respect to
Base Rate Loans, in the form attached hereto as Exhibit D (a "Notice of
Prepayment") specifying the date and amount of repayment and whether the
repayment is of LIBOR Rate Loans, Base Rate Loans or a combination thereof, and,
if of a combination thereof, the amount allocable to each. Upon receipt of such
notice, the Administrative Agent shall promptly notify each Lender. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date set forth in such notice. Partial repayments shall be in an aggregate
amount of $1,000,000 or a whole multiple of $500,000 in excess thereof with
respect to Base Rate Loans and $5,000,000 or a whole multiple of $1,000,000 in
excess thereof with respect to LIBOR Rate Loans. Each such repayment shall be
accompanied by any amount required to be paid pursuant to Section 3.9.
(d) Limitation on Repayment of LIBOR Rate Loans. The Borrower may not
repay any LIBOR Rate Loan on any day other than on the last day of the Interest
Period applicable thereto unless such repayment is accompanied by any amount
required to be paid pursuant to Section 3.9.
Section 2.4 Revolving Credit Notes. Each Lender's Revolving Credit
Loans and the obligation of the Borrower to repay such Revolving Credit Loans
shall be evidenced by a separate Revolving Credit Note executed by the Borrower
payable to the order of such Lender representing the Borrower's obligation to
pay such Lender's Revolving Credit Commitment or, if less, the aggregate unpaid
principal amount of all Revolving Credit Loans made and to be made by such
Lender to the Borrower hereunder, plus interest and all other fees, charges and
other amounts due thereon. Each Revolving Credit Note shall be dated the date
hereof and shall bear interest on the unpaid principal amount thereof at the
applicable interest rate per annum specified in Section 3.1.
Section 2.5 Reduction of the Aggregate Revolving Credit Commitment.
(a) The Borrower shall have the right at any time and from time to
time, upon at least five (5) Business Days prior written notice to the
Administrative Agent, to permanently reduce, without premium or penalty, (i) the
entire Aggregate Revolving Credit Commitment at any time or (ii) portions of the
Aggregate Revolving Credit Commitment, from time to time, in an aggregate
principal amount of $10,000,000 or any whole multiple of $5,000,000 in excess
thereof.
(b) Each permanent reduction permitted pursuant to this Section 2.5
shall be accompanied by a payment of principal sufficient to reduce the
aggregate outstanding Revolving Credit Loans after such reduction to the
Aggregate Revolving Credit Commitment as so reduced. Any reduction of the
Aggregate Revolving Credit Commitment to zero shall result in the termination of
the Revolving Credit Facility. If the reduction of the Aggregate Revolving
Credit Commitment requires the repayment of any LIBOR Rate Loan, such repayment
shall be accompanied by any amount required to be paid pursuant to Section 3.9.
Section 2.6 Termination of Revolving Credit Facility. The Revolving
Credit Facility shall terminate on the earliest of (a) February 26, 1999 (it
being understood and agreed that such date may be extended for one or more
successive periods of 364 days upon the request of the Borrower and with the
written consent of each of the Lenders), (b) the date of termination by the
Borrower pursuant to Section 2.5, and (c) the date of termination by the
Administrative Agent on behalf of the Lenders pursuant to Section 10.2(a).
Section 2.7 Use of Proceeds. The Borrower shall use the proceeds of the
Revolving Credit Extensions of Credit (a) either directly by the Borrower or
indirectly by intercompany advance to one or more of its Subsidiaries to finance
the acquisition of substantially all of the assets of Farm Fresh, Inc., (b) to
refinance certain existing indebtedness, (c) to finance the acquisition of
Capital Assets and other permitted acquisitions, and (d) for working capital and
general corporate requirements of the Borrower and its Subsidiaries, including
the payment of certain fees and expenses incurred in connection with the
transactions described herein.
ARTICLE 3
GENERAL LOAN PROVISIONS
Section 3.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this Section
3.1, at the election of the Borrower, the aggregate principal balance of the
Revolving Credit Notes or any portion thereof shall bear interest at the Base
Rate or the LIBOR Rate plus, in each case, the Applicable Margin as set forth
below; provided that the LIBOR Rate shall not be available until three (3)
Business Days after the Closing Date. The Borrower shall select the rate of
interest and Interest Period, if any, applicable to any Revolving Credit Loan at
the time a Notice of Revolving Credit Borrowing is given pursuant to Section 2.2
and at the time a Notice of Conversion/Continuation is given pursuant to Section
3.2. Each Revolving Credit Loan or portion thereof bearing interest based on the
Base Rate shall be a "Base Rate Loan", and each Revolving Credit Loan or portion
thereof bearing interest based on the LIBOR Rate shall be a "LIBOR Rate Loan."
Any Revolving Credit Loan or any portion thereof as to which the Borrower has
not duly specified an interest rate as provided herein shall be deemed a Base
Rate Loan.
(b) Interest Periods. In connection with each LIBOR Rate Loan, the
Borrower, by giving notice at the times described in Section 3.1(a), shall elect
an interest period (each, an "Interest Period") to be applicable to such LIBOR
Rate Loan, which Interest Period shall be a period of one (1), two (2), three
(3), or six (6) months; provided that:
(i) the Interest Period shall commence on the date of advance
of or conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall commence on
the date on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, that if any Interest Period with respect to a
LIBOR Rate Loan would otherwise expire on a day that is not a Business Day but
is a day of the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(iii) any Interest Period with respect to a LIBOR Rate Loan
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the relevant
calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Revolving
Credit Termination Date; and
(v) there shall be no more than five (5) Interest Periods
outstanding at any time with respect to LIBOR Rate Loans.
(c) Applicable Margin. The Applicable Margin provided for in Section
3.1(a) with respect to the Revolving Credit Loans (the "Applicable Margin")
shall (i) on the Closing Date equal the percentages set forth in the certificate
delivered pursuant to Section 4.2(e)(ii) and (ii) thereafter be determined by
reference to the Senior Debt Rating of the Borrower in accordance with the
following table:
Senior Debt Applicable Margin for Revolving
Rating Credit Loans
----------- -------------------------------
Base Rate + LIBOR Rate +
----------- ------------
Higher than A- 0% 0.155%
Equal to or higher 0% 0.17%
than BBB+ but not
higher than A-
Equal to or higher 0% 0.21%
than BBB but lower
than BBB+
Equal to or higher 0% 0.25%
than BBB- but lower than BBB
Lower than BBB- 0% 0.34%
The Applicable Margin shall be automatically adjusted by the Administrative
Agent on the fifth Business Day after the effective date of any change in the
Senior Debt Rating of the Borrower which would cause a change in the Applicable
Margin in accordance with the preceding table.
(d) Default Rate. Subject to Section 10.3, at the discretion of the
Administrative Agent and Required Lenders, upon the occurrence and during the
continuance of an Event of Default, (i) the Borrower shall no longer have the
option to request LIBOR Rate Loans, (ii) all outstanding LIBOR Rate Loans shall
bear interest at a rate per annum two percent (2%) in excess of the rate then
applicable to LIBOR Rate Loans, as applicable, until the end of the applicable
Interest Period and thereafter at a rate two percent (2%) in excess of the rate
then applicable to Base Rate Loans, and (iii) all outstanding Base Rate Loans
shall bear interest at a rate per annum two percent (2%) in excess of the rate
then applicable to Base Rate Loans. Interest shall continue to accrue on the
Revolving Credit Notes after the filing by or against the Borrower of any
petition seeking any relief in bankruptcy or under any act or law pertaining to
insolvency or debtor relief, whether state, federal or foreign.
(e) Interest Payment and Computation. Interest on each Base Rate Loan
shall be payable in arrears on the last Business Day of each calendar quarter
commencing March 31, 1998; and interest on each LIBOR Rate Loan shall be payable
on the last day of each Interest Period applicable thereto, and if such Interest
Period extends over three (3) months, at the end of each three (3) month
interval during such Interest Period. All interest rates, fees and commissions
provided hereunder shall be computed on the basis of a 360-day year and assessed
for the actual number of days elapsed.
(f) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Revolving
Credit Notes charged or collected pursuant to the terms of this Agreement or
pursuant to any of the Revolving Credit Notes exceed the highest rate
permissible under any Applicable Law which a court of competent jurisdiction
shall, in a final determination, deem applicable hereto. In the event that such
a court determines that the Lenders have charged or received interest hereunder
in excess of the highest applicable rate, the rate in effect hereunder shall
automatically be reduced to the maximum rate permitted by Applicable Law and the
Lenders shall at the Administrative Agent's option (i) promptly refund to the
Borrower any interest received by Lenders in excess of the maximum lawful rate
or (ii) apply such excess to the principal balance of the Obligations. It is the
intent hereof that the Borrower not pay or contract to pay, and that neither the
Administrative Agent nor any Lender receive or contract to receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may be
paid by the Borrower under Applicable Law.
Section 3.2 Notice and Manner of Conversion or Continuation of Loans.
Provided that no Event of Default has occurred and is then continuing, the
Borrower shall have the option to (a) convert at any time all or any portion of
the outstanding Revolving Credit Loans constituting Base Rate Loans in a
principal amount equal to $5,000,000 or any whole multiple of $1,000,000 in
excess thereof into one or more LIBOR Rate Loans and (b) upon the expiration of
any Interest Period, (i) convert all or any part of the outstanding Revolving
Credit Loans constituting LIBOR Rate Loans in a principal amount equal to
$1,000,000 or a whole multiple of $500,000 in excess thereof into Base Rate
Loans or (ii) continue any LIBOR Rate Loans as LIBOR Rate Loans. Whenever the
Borrower desires to convert or continue Revolving Credit Loans as provided
above, the Borrower shall give the Administrative Agent irrevocable prior
written notice in the form attached as Exhibit E (a "Notice of
Conversion/Continuation") not later than 11:00 a.m. (Charlotte time) three (3)
Business Days before the day on which a proposed conversion or continuation of
such Revolving Credit Loan is to be effective specifying (A) the Revolving
Credit Loans to be converted or continued, and, in the case of any LIBOR Rate
Loan to be converted or continued, the last day of the Interest Period therefor,
(B) the effective date of such conversion or continuation (which shall be a
Business Day), (C) the principal amount of such Revolving Credit Loans to be
converted or continued, and (D) the Interest Period to be applicable to such
converted or continued LIBOR Rate Loan. The Administrative Agent shall promptly
notify the Lenders of such Notice of Conversion/Continuation.
Section 3.3 Fees.
(a) Revolving Credit Facility Fee. The Borrower shall pay to the
Administrative Agent, for the account of the Lenders, a non-refundable facility
fee relating to the Revolving Credit Facility at a rate per annum equal to the
applicable Facility Fee Percentage as set forth below times the average daily
Aggregate Revolving Credit Commitment. This facility fee shall be payable
quarterly in arrears on the last Business Day of each calendar quarter occurring
prior to the Revolving Credit Termination Date commencing March 31, 1998, and on
the Revolving Credit Termination Date. Each installment of this facility fee
shall be equal to the product of (i) the average daily Aggregate Revolving
Credit Commitment during the applicable period, times (ii) the applicable
Facility Fee Percentage on the day such installment is due, times (iii) a
fraction the numerator of which is the number of days that elapse during the
applicable period and the denominator of which is 360.
(b) Facility Fee Percentages. The Facility Fee Percentages provided for
in Section 3.3(a) (the "Facility Fee Percentage") shall (i) on the Closing Date
equal the percentages set forth in the certificate delivered pursuant to Section
4.2(e)(ii) and (ii) thereafter be determined by reference to the Senior Debt
Rating of the Borrower in accordance with the following table:
Facility Fee
Senior Debt Percentage
Rating for Revolving Credit Facility
------------ -----------------------------
Higher than A- 0.07%
Equal to or higher 0.08%
than BBB+ but not
higher than A-
Equal to or higher 0.09%
than BBB but lower
than BBB+
Equal to or higher 0.10%
than BBB- but lower
than BBB
Lower than BBB- 0.16%
The Facility Fee Percentage shall be automatically adjusted on the fifth
Business Day after the effective day of any change in the Senior Debt Rating of
the Borrower which would cause a change in the Facility Fee Percentage in
accordance with the preceding table.
(c) Administrative Agent's and Other Fees. In order to compensate the
Administrative Agent for structuring and syndicating the Revolving Credit Loans
and for its obligations hereunder, the Borrower agrees to pay to the
Administrative Agent, for its account, the fees set forth in the separate fee
letter agreement executed by the Borrower and the Administrative Agent dated
December 22, 1997.
Section 3.4 Manner of Payment. Each payment by the Borrower on account
of the principal of or interest on the Revolving Credit Loans or of any fee,
commission or other amounts payable to the Lenders under this Agreement or any
Revolving Credit Note shall be made not later than 1:00 p.m. (Charlotte time) on
the date specified for payment under this Agreement to the Administrative Agent
at the Administrative Agent's Office for the account of the Lenders (other than
as set forth below) pro rata in accordance with their respective Revolving
Credit Commitment Percentages (except as specified below), in Dollars, in
immediately available funds and shall be made without any set-off, counterclaim
or deduction whatsoever. Any payment received after such time but before 2:00
p.m. (Charlotte time) on such day shall be deemed a payment on such date for the
purposes of Section 10.1, but for all other purposes shall be deemed to have
been made on the next succeeding Business Day. Any payment received after 2:00
p.m. (Charlotte time) shall be deemed to have been made on the next succeeding
Business Day for all purposes. Upon receipt by the Administrative Agent of each
such payment, the Administrative Agent shall distribute to each Lender at its
address for notices set forth herein its pro rata share of such payment in
accordance with such Lender's Revolving Credit Commitment Percentage (except as
specified below) and shall wire advice of the amount of such credit to each
Lender. Each payment to the Administrative Agent of Administrative Agent's fees
or expenses shall be made for the account of the Administrative Agent and any
amount payable to any Lender under Sections 3.8, 3.9, 3.10, 3.11 or 12.2 shall
be paid to the Administrative Agent for the account of the applicable Lender.
Section 3.5 Crediting of Payments and Proceeds. In the event that the
Borrower shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 10.2, all payments received by the
Lenders upon the Revolving Credit Notes and the other Obligations and all net
proceeds from the enforcement of the Obligations shall be applied first to all
expenses then due and payable by the Borrower hereunder, then to all indemnity
obligations then due and payable by the Borrower hereunder, then to all
Administrative Agent's fees then due and payable, then to all facility and other
fees and commissions then due and payable, then to accrued and unpaid interest
on the Revolving Credit Notes (pro rata in accordance with all such amounts due)
and then to the principal amount of the Revolving Credit Notes.
Section 3.6 Adjustments. If any Lender (a "Benefitted Lender") shall at
any time receive any payment of all or part of its Revolving Credit Extensions
of Credit, or interest thereon, or if any Lender shall at any time receive any
collateral in respect to its Revolving Credit Extensions of Credit (whether
voluntarily or involuntarily, by set-off or otherwise) in a greater proportion
than any such payment to and collateral received by any other Lender, if any,
with respect to such other Lender's Revolving Credit Extensions of Credit, or
interest thereon, such Benefitted Lender shall purchase for cash from the other
Lenders such portion of each such other Lender's Revolving Credit Extensions of
Credit, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefitted
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned to the extent of such recovery, but without interest. The Borrower
agrees that each Lender so purchasing a portion of another Lender's Revolving
Credit Extensions of Credit may exercise all rights of payment (including,
without limitation, rights of set-off) with respect to such portion as fully as
if such Lender were the direct holder of such portion.
Section 3.7 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent. The obligations of the Lenders
under this Agreement to make the Revolving Credit Loans are several and are not
joint or joint and several. Unless the Administrative Agent shall have received
notice from a Lender prior to a proposed borrowing date that such Lender will
not make available to the Administrative Agent such Lender's ratable portion of
the amount to be borrowed on such date (which notice shall not release such
Lender of its obligations hereunder), the Administrative Agent may assume that
such Lender has made such portion available to the Administrative Agent on the
proposed borrowing date in accordance with Section 2.2(b), and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If such amount is made
available to the Administrative Agent on a date after such borrowing date, such
Lender shall pay to the Administrative Agent on demand an amount, until paid,
equal to the product of (a) the amount of such Lender's ratable portion of such
borrowing, times (b) the daily average Federal Funds Rate during such period as
determined by the Administrative Agent, times (c) a fraction the numerator of
which is the number of days that elapse from and including such borrowing date
to the date on which such Lender's ratable portion of such borrowing shall have
become immediately available to the Administrative Agent and the denominator of
which is 360. A certificate of the Administrative Agent with respect to any
amounts owing under this Section 3.7 shall be conclusive, absent manifest error.
If such Lender's ratable portion of such borrowing is not made available to the
Administrative Agent by such Lender within three (3) Business Days of such
borrowing date, the Administrative Agent shall be entitled to recover such
amount not made available to the Administrative Agent with interest thereon at
the rate per annum applicable to Base Rate Loans hereunder, on demand, from the
Borrower. The failure of any Lender to make its ratable portion of any Revolving
Credit Loan available shall not relieve it or any other Lender of its
obligation, if any, hereunder to make its ratable portion of such Revolving
Credit Loan available on such borrowing date, but no Lender shall be responsible
for the failure of any other Lender to make its ratable portion of such
Revolving Credit Loan available on the borrowing date.
Section 3.8 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. If with respect to
any Interest Period applicable to a LIBOR Rate Loan the Administrative Agent or
any Lender (after consultation with the Administrative Agent) shall determine
that, by reason of circumstances affecting the foreign exchange and interbank
markets generally, deposits in eurodollars, in the applicable amounts are not
being quoted via Telerate Page 3750 or offered to the Administrative Agent or
such Lender for such Interest Period, then the Administrative Agent shall
forthwith give notice thereof to the Borrower. Thereafter, until the
Administrative Agent notifies the Borrower that such circumstances no longer
exist, the obligation of the Lenders to make LIBOR Rate Loans and the right of
the Borrower to convert any Revolving Credit Loan to or continue any Revolving
Credit Loan as a LIBOR Rate Loan shall be suspended, and the Borrower shall
repay in full (or cause to be repaid in full) the then outstanding principal
amount of each such LIBOR Rate Loans together with accrued interest thereon on
the last day of the then current Interest Period applicable to such LIBOR Rate
Loan or convert the then outstanding principal amount of each such LIBOR Rate
Loan to a Base Rate Loan as of the last day of such Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date hereof,
the introduction of, or any change in, any Applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any of their respective Lending
Offices) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank or comparable agency, shall
make it unlawful or impossible for any of the Lenders (or any of their
respective Lending Offices) to honor its obligations hereunder to make or
maintain any LIBOR Rate Loan, such Lender shall promptly give notice thereof to
the Administrative Agent and the Administrative Agent shall promptly give notice
to the Borrower and the other Lenders. Thereafter, until the Administrative
Agent notifies the Borrower that such circumstances no longer exist, (i) the
obligations of the Lenders to make LIBOR Rate Loans and the right of the
Borrower to convert any Revolving Credit Loan or continue any Revolving Credit
Loan as a LIBOR Rate Loan shall be suspended and thereafter the Borrower may
select only Base Rate Loans hereunder, and (ii) if any of the Lenders may not
lawfully continue to maintain a LIBOR Rate Loan to the end of the then current
Interest Period applicable thereto as a LIBOR Rate Loan, the applicable LIBOR
Rate Loan shall immediately be converted to a Base Rate Loan for the remainder
of such Interest Period.
(c) Increased Costs. If, after the date hereof, the introduction of, or
any change in, any Applicable Law, or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Governmental
Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any of their
respective Lending Offices) to any tax, duty or other charge with respect to any
Revolving Credit Note or shall change the basis of taxation of payments to any
of the Lenders (or any of their respective Lending Offices) of the principal of
or interest on any Revolving Credit Note or any other amounts due under this
Agreement with respect thereto (except for changes in the rate of tax on the
overall net income of any of the Lenders or any of their respective Lending
Offices imposed by the jurisdiction in which such Lender is organized or is or
should be qualified to do business or such Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System, but excluding any reserve requirement included in the
calculation of the LIBOR Rate), special deposit, insurance or capital or similar
requirement against assets of, deposits with or for the account of, or credit
extended by any of the Lenders (or any of their respective Lending Offices) or
shall impose on any of the Lenders (or any of their respective Lending Offices)
or the foreign exchange and interbank markets any other condition affecting any
Revolving Credit Note;
and the result of any of the foregoing is to increase the costs to any of the
Lenders of maintaining any LIBOR Rate Loan or to reduce the yield or amount of
any sum received or receivable by any of the Lenders under this Agreement or
under any of the Revolving Credit Notes in respect of a LIBOR Rate Loan, then
such Lender shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify the Borrower of such fact and demand
compensation therefor and, within fifteen (15) days after such notice by the
Administrative Agent, the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or Lenders for such increased
cost or reduction, provided that such Lender is generally imposing similar
charges on its other similarly situated borrowers. The Administrative Agent will
promptly notify the Borrower of any event of which it has knowledge which will
entitle such Lender to compensation pursuant to this Section 3.8(c); provided
that the Administrative Agent shall incur no liability whatsoever to the Lenders
or the Borrower in the event it fails to do so. The amount of such compensation
shall be determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Revolving Credit Commitment Percentage of
the LIBOR Rate Loans in the London interbank market and using any reasonable
attribution or averaging methods which such Lender deems appropriate and
practical. A certificate of such Lender setting forth the basis for determining
such amount or amounts necessary to compensate such Lender shall be forwarded to
the Borrower through the Administrative Agent and shall be conclusively presumed
to be correct in the absence of manifest error.
Section 3.9 Indemnity. The Borrower hereby indemnifies each of the
Lenders against any loss or expense which may arise or be attributable to such
Lender's obtaining, liquidating or employing deposits or other funds acquired to
effect, fund or maintain any Revolving Credit Loan (a) as a consequence of any
failure by the Borrower to make any payment when due of any amount due hereunder
in connection with a LIBOR Rate Loan, (b) due to any failure of the Borrower to
borrow on a date specified therefor in a Notice of Revolving Credit Borrowing or
Notice of Continuation/Conversion or (c) due to any payment, prepayment or
conversion of any LIBOR Rate Loan on a date other than the last day of the
Interest Period therefor. The amount of such loss or expense shall be
determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Revolving Credit Commitment Percentage of
the LIBOR Rate Loans in the London interbank market and using any reasonable
attribution or averaging methods which such Lender deems appropriate and
practical. A certificate of such Lender setting forth the basis for determining
such amount or amounts necessary to compensate such Lender shall be forwarded to
the Borrower through the Administrative Agent and shall be conclusively presumed
to be correct in the absence of manifest error.
Section 3.10 Capital Requirements. If either (a) the introduction of,
or any change in, or in the interpretation of, any Applicable Law or (b)
compliance with any guideline or request from any central bank or comparable
agency or other Governmental Authority (whether or not having the force of law),
has or would have the effect of reducing the rate of return on the capital of,
or has affected or would affect the amount of capital required to be maintained
by, any Lender or any corporation controlling such Lender as a consequence of,
or with reference to the Revolving Credit Commitments and other commitments of
this type, below the rate which the Lender or such other corporation could have
achieved but for such introduction, change or compliance, then within five (5)
Business Days after written demand by any such Lender, the Borrower shall pay to
such Lender from time to time as specified by such Lender additional amounts
sufficient to compensate such Lender or other corporation for such reduction,
provided that such Lender is generally imposing similar charges on its other
similarly situated borrowers. A certificate as to such amounts submitted to the
Borrower and the Administrative Agent by such Lender, shall, in the absence of
manifest error, be presumed to be correct and binding for all purposes.
Section 3.11 Taxes.
(a) Payments Free and Clear. Any and all payments by the Borrower
hereunder or under the Revolving Credit Notes shall be made free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholding, and all liabilities with respect thereto
excluding, (i) in the case of each Lender and the Administrative Agent, income
and franchise taxes imposed by the jurisdiction under the laws of which such
Lender or the Administrative Agent, as the case may be, is organized or is or
should be qualified to do business or any political subdivision thereof, (ii) in
the case of each Lender, income and franchise taxes imposed by the jurisdiction
of such Lender's Lending Office or any political subdivision thereof, and (iii)
in the case of each Lender, income and franchise taxes payable solely as a
result of such Lender's failure to comply with Section 3.11(e) (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Revolving Credit Note to any Lender or the Administrative
Agent, (A) 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 3.11) such Lender or the Administrative Agent,
as the case may be, receives an amount equal to the amount such party would have
received had no such deductions been made, (B) the Borrower shall make such
deductions, (C) the Borrower shall pay the full amount deducted to the relevant
taxing authority or other authority in accordance with applicable law, and (D)
the Borrower shall deliver to the Administrative Agent evidence of such payment
to the relevant taxing authority or other authority in the manner provided in
Section 3.11(d).
(b) Stamp and Other Taxes. In addition, the Borrower shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Revolving Credit Loans, the other Loan Documents, or the perfection of any
rights or security interest in respect thereto (hereinafter referred to as
"Other Taxes").
(c) Indemnity. The Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 3.11) paid by such Lender or the
Administrative Agent, as the case may be, and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be made within thirty (30) days from the date such
Lender or the Administrative Agent, as the case may be, makes written demand
therefor. In the event that the Borrower has indemnified a Lender or the
Administrative Agent for the full amount of any Taxes or Other Taxes as required
hereby, the Borrower shall have the right, at its sole cost and expense, to
contest the validity of such Taxes or Other Taxes by appropriate proceedings, to
seek a refund with respect thereto and to receive and retain any such refund
obtained for its own account.
(d) Evidence of Payment. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 12.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) Delivery of Tax Forms. Each Lender organized under the laws of a
jurisdiction other than the United States or any state thereof shall deliver to
the Borrower, with a copy to the Administrative Agent, on the Closing Date or
concurrently with the delivery of the relevant Assignment and Acceptance, as
applicable, (i) two United States Internal Revenue Service Forms 4224 or Forms
1001, as applicable (or successor forms) properly completed and certifying in
each case that such Lender is entitled to a complete exemption from withholding
or deduction for or on account of any United States federal income taxes, and
(ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable form,
as the case may be, to establish an exemption from United States backup
withholding taxes. Each such Lender further agrees to deliver to the Borrower,
with a copy to the Administrative Agent, a Form 1001 or 4224 and Form W-8 or
W-9, or successor applicable forms or manner of certification, as the case may
be, on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower, certifying in the case of a Form
1001 or 4224 that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes (unless in any such case an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders such forms inapplicable or
the exemption to which such forms relate unavailable and such Lender notifies
the Borrower and the Administrative Agent that it is not entitled to receive
payments without deduction or withholding of United States federal income taxes)
and, in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax.
(f) Survival. Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 3.11 shall survive the payment in full of the
Obligations and the termination of the Revolving Credit Commitments.
Section 3.12 Mitigation. If the Borrower is required to pay additional
amounts to or for the account of any Lender pursuant to Sections 3.8(c), 3.10 or
3.11, then such Lender shall change the jurisdiction of its Lending Office if,
in the judgment of such Lender, such change (i) will eliminate or, if it is not
possible to eliminate, will reduce to the greatest extent possible any such
additional amounts which may thereafter accrue, and (ii) is not otherwise
disadvantageous to such Lender. In addition, any Lender claiming any indemnity
payment or additional amounts pursuant to Sections 3.8(c), 3.10 or 3.11 shall
use reasonable efforts (consistent with legal and regulatory restrictions) to
file any certificate or document reasonably requested in writing by the Borrower
if the making of such a filing would avoid the need for or reduce the amount of
any such indemnity payment or additional amounts that may thereafter accrue and
would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender.
Section 3.13 Replacement of Demanding Lender. As long as no Default or
Event of Default has occurred and is continuing, the Borrower may replace any
Demanding Lender with one or more Eligible Assignees acceptable to the
Administrative Agent (each, a "Replacement Lender"), in any case by giving
written notice to the Demanding Lender and the Administrative Agent not more
than thirty (30) days after the occurrence of the event which causes the
applicable Demanding Lender to be a Demanding Lender. The replacement of the
Demanding Lender shall be effective ten (10) Business Days following the date
written notice of such replacement is given to the Demanding Lender and the
Administrative Agent, subject to the satisfaction of the following conditions:
(A) the Demanding Lender and the Replacement Lender(s) shall have satisfied the
conditions to assignment and assumption set forth in Section 12.10(b) (with all
fees payable pursuant to Section 12.10(b) to be paid by the Borrower), and, in
connection therewith, the Replacement Lender(s) shall have paid to the Demanding
Lender an amount equal to the principal of and all accrued but unpaid interest
on all outstanding Revolving Credit Loans of the Demanding Lender and all
accrued but unpaid fees owing to the Demanding Lender pursuant to Section 3.3,
and (B) the Borrower shall have paid to the Administrative Agent for the account
of the Demanding Lender an amount equal to all other Obligations owing to the
Demanding Lender. For purposes of this Agreement, a "Demanding Lender" is any
Lender which has requested any indemnity payment or additional amounts pursuant
to Sections 3.8(c), 3.10 or 3.11.
ARTICLE 4
CLOSING; CONDITIONS OF CLOSING AND BORROWING
Section 4.1 Closing. The closing shall take place at the offices of
Xxxx & Valentine, L.L.P. at 10:00 a.m. on February 27, 1998, or on such other
date as the parties hereto shall mutually agree.
Section 4.2 Conditions to Closing and Initial Extensions of Credit. The
obligation of the Lenders to enter into this Agreement and to make the initial
Revolving Credit Loan is subject to the satisfaction of each of the following
conditions:
(a) Executed Loan Documents. This Agreement and the Revolving Credit
Notes shall have been duly authorized, executed and delivered to the
Administrative Agent by the parties thereto, shall be in full force and effect
and no default shall exist thereunder, and the Borrower shall have delivered
original counterparts thereof to the Administrative Agent.
(b) Closing Certificates; etc.
(i) Officers' Certificate of the Borrower. The Administrative
Agent shall have received a certificate from a Responsible Officer, in form and
substance reasonably satisfactory to the Administrative Agent, to the effect
that all representations and warranties of the Borrower contained in this
Agreement and the other Loan Documents are true, correct and complete in all
material respects; that the Borrower is not in violation of any of the covenants
contained in this Agreement and the other Loan Documents; that, after giving
effect to the transactions contemplated by this Agreement, no Default or Event
of Default has occurred and is continuing; and that the Borrower has satisfied
each of the closing conditions.
(ii) Certificate of Secretary of the Borrower. The
Administrative Agent shall have received a certificate of the secretary or
assistant secretary of the Borrower certifying as to the incumbency and
genuineness of the signature of each officer of the Borrower executing Loan
Documents to which it is a party and certifying that attached thereto is (A) a
true and complete copy of the articles of incorporation of the Borrower and all
amendments thereto, certified as of a recent date by the State Corporation
Commission of Virginia; (B) a true and complete copy of the bylaws of the
Borrower as in effect on the date of such certification; (C) a true and complete
copy of resolutions duly adopted by the Board of Directors of the Borrower
authorizing the extensions of credit contemplated hereunder and the execution,
delivery and performance of this Agreement and the other Loan Documents to which
it is a party; and (D) a true and complete copy of each certificate required to
be delivered pursuant to Section 4.2(b)(iii).
(iii) Certificates of Good Standing. To the extent requested
by the Administrative Agent, the Administrative Agent shall have received a
certificate of good standing of the Borrower and each of its Significant
Subsidiaries as of a recent date from the appropriate Governmental Authority in
its jurisdiction of incorporation and in each other jurisdiction where the
Borrower is qualified to do business and a certificate of the relevant taxing
authorities of such jurisdictions certifying that the Borrower and each of its
Significant Subsidiaries has filed required tax returns and owes no delinquent
taxes.
(iv) Opinion of Counsel. The Administrative Agent shall have
received a favorable opinion of Hunton & Xxxxxxxx, counsel to the Borrower,
addressed to the Administrative Agent and the Lenders and in form and substance
reasonably satisfactory to the Administrative Agent with respect to the
Borrower, the Loan Documents and such other matters as the Lenders shall
request.
(v) Tax Forms. The Administrative Agent shall have received
copies of the United States Internal Revenue Service forms required by Section
3.11(e).
(c) Consents; Defaults.
(i) Governmental and Third Party Approvals. The Borrower shall
have obtained all approvals, authorizations and consents of any Governmental
Authority, court or other Person required with respect to the transactions
contemplated by this Agreement and the other Loan Documents.
(ii) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages with respect to, or which is related to or arises out of,
this Agreement or any of the other Loan Documents or the consummation of the
transactions contemplated hereby or thereby, or which, in the Administrative
Agent's sole discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement and such other Loan Documents.
(iii) No Event of Default. No Default or Event of Default
shall have occurred and be continuing.
(d) Existing Credit Facilities. The Borrower shall have delivered to
the Administrative Agent evidence reasonably satisfactory to the Administrative
Agent that the Existing Credit Facilities (other than the letters of credit
issued by Crestar Bank which are reflected on Schedule 5.1(t) hereto and which
will remain outstanding after the Closing Date) have been repaid in full and
terminated or will be repaid in full and terminated upon the making of the
initial Loans.
(e) Financial Matters.
(i) Financial Statements. The Administrative Agent shall have
received the most recent audited Consolidated financial statements of the
Borrower and its Subsidiaries, all in form and substance reasonably satisfactory
to the Administrative Agent.
(ii) Initial Calculations Certificate. The Borrower shall have
delivered to the Administrative Agent a certificate, in form and substance
reasonably satisfactory to the Administrative Agent, and certified as accurate
by a Responsible Officer, that attached thereto is a calculation of the
Applicable Margin and the Facility Fee Percentage as of the Closing Date.
(iii) Payment at Closing; Fee Letter. The Borrower shall have
paid the fees set forth or referenced in Section 3.3 which are due and payable
on or before the Closing Date and any other accrued and unpaid fees or
commissions due hereunder (including, without limitation, legal fees and
expenses) to the Administrative Agent and Lenders, and to any other Person such
amount as may be due thereto in connection with the transactions contemplated
hereby, including all taxes, fees and other charges in connection with the
execution, delivery, recording, filing and registration of any of the Loan
Documents. The Administrative Agent shall have received duly authorized and
executed copies of the fee letter agreement referred to in Section 3.3(c).
(f) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have
received from the Borrower a Notice of Revolving Credit Borrowing in accordance
with Section 2.2(a) and a Notice of Account Designation specifying the account
or accounts to which the proceeds of any Revolving Credit Loans made after the
Closing Date are to be disbursed.
(ii) Proceedings and Documents. All opinions, certificates and
other instruments and all proceedings in connection with the transactions
contemplated by this Agreement shall be reasonably satisfactory in form and
substance to the Lenders. The Lenders shall have received copies of all other
instruments and other evidence as the Lenders may reasonably request, in form
and substance reasonably satisfactory to the Lenders, with respect to the
transactions contemplated by this Agreement and the taking of all actions in
connection therewith.
(iii) Due Diligence and Other Documents. The Borrower shall
have delivered to the Administrative Agent such other documents, certificates
and opinions as the Administrative Agent reasonably requests, certified by a
Responsible Officer as a true and correct copy thereof.
Section 4.3 Conditions to All Loans and Letters of Credit. The
obligations of the Lenders to make any Revolving Credit Loan is subject to the
satisfaction of the following conditions precedent on the relevant borrowing
date:
(a) Continuation of Representations and Warranties. The representations
and warranties contained in Article 5 shall be true and correct in all material
respects on and as of such borrowing date with the same effect as if made on and
as of such date; except for any representation and warranty made as of an
earlier date, which representation and warranty shall remain true and correct as
of such earlier date.
(b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing hereunder on the borrowing date with respect to such
Revolving Credit Loan or after giving effect to the Revolving Credit Loans to be
made on such date.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
Section 5.1 Representations and Warranties. To induce the
Administrative Agent and the Lenders to enter into this Agreement and to induce
the Lenders to make the Revolving Credit Loans, the Borrower hereby represents
and warrants to the Administrative Agent and the Lenders that:
(a) Organization; Power; Qualification. Each of the Borrower and its
Significant Subsidiaries is duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation,
has the power and authority to own its properties and to carry on its business
as now being and as hereafter proposed to be conducted and is duly qualified and
authorized to do business in each other jurisdiction in which the character of
its properties or the nature of its business requires such qualification and
authorization, except in cases in which a failure to be so qualified and
authorized in another jurisdiction would not in any given instance or in the
aggregate have a Material Adverse Effect. The jurisdictions in which the
Borrower and its Subsidiaries are incorporated and qualified to do business as
of the Closing Date are described on Schedule 5.1(a).
(b) Ownership. Each Subsidiary of the Borrower as of the Closing Date
is listed on Schedule 5.1(b). As of the Closing Date, each Subsidiary is a
Wholly-Owned Subsidiary. All outstanding shares have been duly authorized and
validly issued and are fully paid and nonassessable. As of the Closing Date,
there are no outstanding stock purchase warrants, subscriptions, options,
securities, instruments or other rights of any type or nature whatsoever, which
are convertible into, exchangeable for or otherwise provide for or permit the
issuance of capital stock of the Borrower or its Subsidiaries, except as
described on Schedule 5.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing. The
Borrower has the corporate right, power and authority and has taken all
necessary corporate and other action to authorize the execution, delivery and
performance of this Agreement and each of the other Loan Documents to which it
is a party in accordance with their respective terms. This Agreement and each of
the other Loan Documents have been duly executed and delivered by a duly
authorized officer of the Borrower, and each such document constitutes the
legal, valid and binding obligation of the Borrower, enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar state or federal debtor relief
laws from time to time in effect affecting creditors' rights generally or by
general equitable principles.
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws,
Etc. The execution, delivery and performance by the Borrower of the Loan
Documents in accordance with their respective terms, the borrowings hereunder
and the transactions contemplated hereby do not and will not, with the passage
of time, the giving of notice or otherwise, (i) require any Governmental
Approval or violate any Applicable Law relating to the Borrower or any of its
Subsidiaries, (ii) conflict with, result in a breach of or constitute a default
under the articles of incorporation, bylaws or other organizational documents of
the Borrower or any of its Subsidiaries or any indenture, agreement or other
instrument to which the Borrower or any of its Subsidiaries is a party or by
which any of their respective properties may be bound or any Governmental
Approval relating to the Borrower or any of its Subsidiaries, or (iii) result in
or require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by the Borrower or any of its
Subsidiaries other than Liens arising under the Loan Documents.
(e) Compliance with Law; Governmental Approvals. Each of the Borrower
and its Subsidiaries (i) has all Governmental Approvals required by any
Applicable Law for it to conduct its business, each of which is in full force
and effect, is final and not subject to review on appeal and is not the subject
of any pending or, to the best of its knowledge, threatened attack by direct or
collateral proceeding, and (ii) is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable Laws relating to it
or any of its respective properties, except in cases in which a failure to have
such Governmental Approvals or to be in compliance therewith or with any other
Applicable Laws would not in any given instance or in the aggregate have a
Material Adverse Effect.
(f) Tax Returns and Payments. Each of the Borrower and its Subsidiaries
has duly filed or caused to be filed all federal, state, local and other tax
returns required by Applicable Law to be filed, and has paid, or made adequate
provision for the payment of, all federal, state, local and other taxes,
assessments and governmental charges or levies upon it and its property, income,
profits and assets which are due and payable, other than those which are not yet
delinquent, those which are being contested by the Borrower or such Subsidiary
in good faith and by appropriate proceedings and for which the Borrower or such
Subsidiary has established reserves as required by GAAP and those which, either
in any given instance or in the aggregate, do not involve a potential tax
liability in excess of $1,000,000. No Governmental Authority has asserted any
Lien or other claim against the Borrower or any of its Subsidiaries with respect
to unpaid taxes which has not been discharged or resolved, other than statutory
liens for taxes not yet due and payable. The charges, accruals and reserves on
the books of the Borrower and each of its Subsidiaries with respect to any
unpaid federal, state, local and other taxes for all Fiscal Years and portions
thereof since the organization of the Borrower and each of its Subsidiaries are
in the judgment of the Borrower adequate in accordance with GAAP. The Borrower
does not anticipate any additional taxes or assessments in the aggregate for all
such years which would be reasonably likely to cause or result in a Material
Adverse Effect.
(g) Intellectual Property Matters. Each of the Borrower and its
Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, trade names, trade name rights,
copyrights and rights with respect to the foregoing which are required to
conduct its business, except in cases in which a failure to own or possess any
such rights would not, in any instance or in the aggregate, have a Material
Adverse Effect. No event has occurred which permits, or after notice or lapse of
time or both would permit, the revocation or termination of any such rights, and
neither the Borrower nor any of its Subsidiaries is liable to any Person for
infringement under Applicable Law with respect to any such rights as a result of
its business operations, except in cases in which any such revocation,
termination or liability would not, in any instance or in the aggregate, have a
Material Adverse Effect.
(h) Environmental Matters.
(i) To the best of the Borrower's knowledge, the properties of
the Borrower and its Subsidiaries do not contain, and have not previously
contained, any Hazardous Materials in amounts or concentrations which (A)
constitute or constituted a violation of applicable Environmental Laws or (B)
could give rise to liability under applicable Environmental Laws, except in
cases in which any such violation or liability is not reasonably likely to
result, in any given instance or in the aggregate, in liability of the Borrower
or any Subsidiary in excess of $25,000,000;
(ii) To the best of the Borrower's knowledge, such properties
and all operations conducted in connection therewith are in compliance, and have
been in compliance, with all applicable Environmental Laws, except in cases in
which any failure to be in compliance is not reasonably likely to result, in any
given instance or in the aggregate, in liability of the Borrower or any
Subsidiary in excess of $25,000,000, and there is no contamination at, under or
about such properties or such operations which could materially interfere with
the continued operation of such properties or materially impair the fair
saleable value thereof;
(iii) Neither the Borrower nor any Subsidiary has received any
notice of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of its properties or the operations conducted in connection
therewith, nor does the Borrower or any Subsidiary have knowledge or reason to
believe that any such notice will be received or is being threatened, except in
cases in which the liability of the Borrower or any Subsidiary, in any given
instance or in the aggregate, is not reasonably likely to exceed $25,000,000;
(iv) Hazardous Materials have not been transported or disposed
of from the properties of the Borrower and its Subsidiaries in violation of, or
in a manner or to a location which could give rise to liability under,
Environmental Laws, nor have any Hazardous Materials been generated, treated,
stored or disposed of at, on or under any of such properties in violation of, or
in a manner that could give rise to liability under, any applicable
Environmental Laws, except in cases in which the liability of the Borrower or
any Subsidiary, in any given instance or in the aggregate, is not reasonably
likely to exceed $25,000,000;
(v) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be named as
a party with respect to such properties or operations conducted in connection
therewith, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to such
properties or such operations, except in cases in which the liability of the
Borrower or any Subsidiary, in any given instance or in the aggregate, is not
reasonably likely to exceed $25,000,000; and
(vi) There has been no release, or to the best of the
Borrower's knowledge, the threat of release, of Hazardous Materials at or from
such properties, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws, except in cases in which the
liability of the Borrower or any Subsidiary, in any given instance or in the
aggregate, is not reasonably likely to exceed $25,000,000.
(i) ERISA.
(i) As of the Closing Date, neither the Borrower nor any ERISA
Affiliate maintains or contributes to, or has any obligation under, any Pension
Plan or Multiemployer Plan other than those identified on Schedule 5.1(i);
(ii) Each of the Borrower and its ERISA Affiliates is in
compliance in all material respects with all applicable provisions of ERISA and
the regulations and published interpretations thereunder with respect to all
Employee Benefit Plans except for any required amendments for which the remedial
amendment period as defined in Section 401(b) of the Code has not yet expired,
and except in cases in which a failure to be in compliance is not reasonably
likely to result, in any given instance or in the aggregate, in liability of the
Borrower or any ERISA Affiliate in excess of $25,000,000. Each Employee Benefit
Plan that is intended to be qualified under Section 401(a) of the Code has been
determined by the Internal Revenue Service to be so qualified, and each trust
related to such plan has been determined to be exempt under Section 501(a) of
the Code. No liability has been incurred by the Borrower or any ERISA Affiliate
which remains unsatisfied for any taxes or penalties with respect to any
Employee Benefit Plan or any Multiemployer Plan, except in cases in which such
liability is not reasonably likely to result, in any given instance or in the
aggregate, in liability of the Borrower or any ERISA Affiliate in excess of
$25,000,000;
(iii) To the best of the Borrower's knowledge, no Pension Plan
has been terminated, nor has any accumulated funding deficiency (as defined in
Section 412 of the Code) been incurred (without regard to any waiver granted
under Section 412 of the Code), nor has any funding waiver from the Internal
Revenue Service been received or requested with respect to any Pension Plan, nor
has the Borrower or any ERISA Affiliate failed to make any contributions or to
pay any amounts due and owing as required by Section 412 of the Code, Section
302 of ERISA or the terms of any Pension Plan prior to the due dates of such
contributions under Section 412 of the Code or Section 302 of ERISA, nor has
there been any event requiring any disclosure under Section 4041(c)(3)(C) or
4063(a) of ERISA with respect to any Pension Plan, except in cases in which the
liability of the Borrower or any ERISA Affiliate, in any given instance or in
the aggregate, is not reasonably likely to exceed $25,000,000;
(iv) Neither the Borrower nor any ERISA Affiliate has: (A)
engaged in a nonexempt prohibited transaction described in Section 406 of the
ERISA or Section 4975 of the Code, (B) incurred any liability to the PBGC which
remains outstanding other than the payment of premiums and there are no premium
payments which are due and unpaid, (C) failed to make a required contribution or
payment to a Multiemployer Plan, or (D) failed to make a required installment or
other required payment under Section 412 of the Code, except in cases in which
the liability of the Borrower or any ERISA Affiliate, in any given instance or
in the aggregate, is not reasonably likely to exceed $25,000,000;
(v) No Termination Event has occurred or, to the best of the
Borrower's knowledge, is reasonably expected to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation is
existing or, to the best knowledge of the Borrower after due inquiry, threatened
concerning or involving any (A) employee welfare benefit plan (as defined in
Section 3(1) of ERISA) currently maintained or contributed to by the Borrower or
any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan (other than
routine claims for benefits), except in cases in which the liability of the
Borrower or any ERISA Affiliate, in any given instance or in the aggregate, is
not reasonably likely to exceed $25,000,000.
(j) Margin Stock. Neither the Borrower nor any Subsidiary is engaged
principally or as one of its activities in the business of extending credit for
the purpose of "purchasing" or "carrying" any "margin stock" (as each such term
is defined or used in Regulations G and U of the Board of Governors of the
Federal Reserve System). No part of the proceeds of any of the Revolving Credit
Loans will be used for purchasing or carrying margin stock or for any purpose
which violates, or which would be inconsistent with, the provisions of
Regulation G, T, U or X of such Board of Governors.
(k) Government Regulation. Neither the Borrower nor any Subsidiary is
an "investment company" or a company "controlled" by an "investment company" (as
each such term is defined or used in the Investment Company Act of 1940, as
amended) and neither the Borrower nor any Subsidiary is, or after giving effect
to any Revolving Credit Extension of Credit will be, subject to regulation under
the Public Utility Holding Company Act of 1935 or the Interstate Commerce Act,
each as amended, or any other Applicable Law which limits its ability to incur
or consummate the transactions contemplated hereby.
(l) Material Contracts. Schedule 5.1(l) sets forth a complete and
accurate list of all Material Contracts of the Borrower and its Subsidiaries in
effect as of the Closing Date not listed on any other Schedule hereto. Other
than as set forth on Schedule 5.1(l), each such Material Contract is, and after
giving effect to the consummation of the transactions contemplated by the Loan
Documents will be, in full force and effect in accordance with the terms thereof
as of the Closing Date. The Borrower and its Subsidiaries have made available to
the Administrative Agent a true and complete copy of each Material Contract
required to be listed on Schedule 5.1(l) or any other Schedule hereto as of the
Closing Date.
(m) Employee Relations. As of the Closing Date, each of the Borrower
and its Subsidiaries is not party to any collective bargaining agreement nor has
any labor union been recognized as the representative of its employees except as
set forth on Schedule 5.1(m). The Borrower knows of no pending, threatened or
contemplated strikes, work stoppage or other collective labor disputes involving
its employees or those of any of its Subsidiaries, except as disclosed on page 9
of the Borrower's Form 10-Q dated February 24, 1998, with respect to the Xxxx
Xxxxx, Xxxxxxxxxxxx Distribution Center and except for those which are not
reasonably likely to have a Material Adverse Effect.
(n) Burdensome Provisions. Neither the Borrower nor any Subsidiary is a
party to any indenture, agreement, lease or other instrument, or subject to any
corporate or partnership restriction, Governmental Approval or Applicable Law
which is so unusual or burdensome as in the foreseeable future could be
reasonably expected to have a Material Adverse Effect. The Borrower and its
Subsidiaries do not presently anticipate that future expenditures needed to meet
the provisions of any statutes, orders, rules or regulations of a Governmental
Authority will be so burdensome as to have a Material Adverse Effect.
(o) Financial Statements. The (i) Consolidated balance sheets of the
Borrower and its Subsidiaries as of May 3, 1997, and the related statements of
earnings, shareholders' equity and cash flows for the Fiscal Year then ended and
(ii) unaudited Consolidated balance sheets of the Borrower and its Subsidiaries
as of October 18, 1997, and related unaudited interim statements of earnings,
shareholders' equity and cash flows for the period then ended, copies of which
have been furnished to the Administrative Agent and each Lender, are complete
and correct in all material respects and fairly present in all material respects
the assets, liabilities and financial position of the Borrower and its
Subsidiaries as at such dates, and the results of the operations and changes of
financial position for the periods then ended. All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP. The Borrower and its Subsidiaries have no Debt, obligation
or other unusual forward or long-term commitment which is not fairly reflected
in the foregoing financial statements or in the notes thereto in accordance with
GAAP, except for those relating to the Borrower's agreement to acquire
substantially all of the assets of Farm Fresh, Inc.
(p) No Material Adverse Change. Since May 3, 1997, there has been no
Material Adverse Change, and no event has occurred or condition arisen that
could reasonably be expected to have a Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to each
Revolving Credit Extension of Credit made hereunder, the Borrower and each of
its Subsidiaries will be Solvent.
(r) Titles to Properties. Each of the Borrower and its Significant
Subsidiaries has such title to the real property owned by it as is necessary or
desirable to the conduct of its business and valid and legal title to all of its
material personal property and assets, including, but not limited to, those
reflected on the Consolidated balance sheets of the Borrower and its
Subsidiaries described in Section 5.1(o), except those which have been disposed
of by the Borrower or its Subsidiaries subsequent to May 3, 1997, which
dispositions have been in the ordinary course of business or as otherwise
expressly permitted hereunder.
(s) Liens. None of the properties and assets of the Borrower or any
Subsidiary is subject to any Lien, except Liens permitted by Section 9.3. No
financing statement under the Uniform Commercial Code of any state which names
the Borrower or any Subsidiary thereof or any of their respective trade names or
divisions as debtor, and which has not been terminated, has been filed in any
state or other jurisdiction and neither the Borrower nor any Subsidiary has
signed any such financing statement or any security agreement authorizing any
secured party thereunder to file any such financing statement, except financing
statements filed to perfect those Liens permitted by Section 9.3 and financing
statements filed with respect to operating leases or with respect to Debt which
is no longer outstanding.
(t) Debt and Guaranty Obligations. Schedule 5.1(t) is a complete and
correct listing of all Debt and Guaranty Obligations of the Borrower and its
Subsidiaries as of the Closing Date in excess of $10,000,000. The Borrower and
its Subsidiaries have performed and are in compliance in all material respects
with all of the terms of (i) all Debt and Guaranty Obligations of the Borrower
and its Subsidiaries in excess of $10,000,000 and all instruments and agreements
relating thereto, and (ii) all synthetic and other structural leases the
aggregate implied principal amount of which (calculated in accordance with
applicable Federal income tax laws and regulations) is in excess of $10,000,000
and all instruments and agreements relating thereto, and no default or event of
default, or event or condition which with notice or lapse of time or both would
constitute such a default or event of default on the part of the Borrower or its
Subsidiaries exists with respect to any such Debt or Guaranty Obligation or any
such synthetic or other structured lease.
(u) Litigation. There are no actions, suits or proceedings pending nor,
to the knowledge of the Borrower, threatened against or in any other way
relating adversely to or affecting the Borrower or any Subsidiary or any of
their respective properties in any court or before any arbitrator of any kind or
before or by any Governmental Authority in which there is a reasonable
possibility of an adverse decision and which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect.
(v) Absence of Defaults. No event has occurred and is continuing which
constitutes a Default or an Event of Default. As of the Closing Date, no event
has occurred and is continuing which constitutes, or which with the passage of
time or giving of notice or both would constitute, a default or event of default
by the Borrower or any Subsidiary under any Material Contract or judgment,
decree or order to which the Borrower or one or more its Subsidiaries is a party
or by which the Borrower or one or more of its Subsidiaries or any of their
respective properties may be bound or which would require the Borrower or one or
more of its Subsidiaries to make any payment thereunder prior to the scheduled
maturity date therefor, except in cases in which any such default or event of
default would not, in any instance or in the aggregate, have a Material Adverse
Effect.
(w) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of the Borrower or
any Subsidiary and furnished to the Lenders were, at the time the same were so
furnished, complete and correct in all material respects to the extent necessary
to give the recipient a true and accurate knowledge of the subject matter. No
document furnished or written statement made to the Administrative Agent or the
Lenders by the Borrower or any Subsidiary in connection with the negotiation,
preparation or execution of this Agreement or any of the Loan Documents contains
or will contain any untrue statement of a fact material to the creditworthiness
of the Borrower or its Subsidiaries or omits or will omit to state a fact
necessary in order to make the statements contained therein not misleading. The
Borrower is not aware of any facts which it has not disclosed in writing to the
Administrative Agent having a Material Adverse Effect, or insofar as the
Borrower can now foresee, could reasonably be expected to have a Material
Adverse Effect.
Section 5.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article 5 and all
representations and warranties contained in any certificate or any of the other
Loan Documents (including but not limited to any such representation or warranty
made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made or deemed to be made at
and as of the Closing Date, shall survive the Closing Date and shall not be
waived by the execution and delivery of this Agreement, any investigation made
by or on behalf of the Lenders or any extension of credit hereunder.
ARTICLE 6
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and all
of the Revolving Credit Commitments terminated, unless consent has been obtained
in the manner set forth in Section 12.11, the Borrower will furnish or cause to
be furnished to the Administrative Agent and to each of the Lenders at its
address as set forth on Schedule 1, or at such other office as may be designated
by the Administrative Agent or any Lender from time to time:
Section 6.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any
event within forty-five (45) days after the end of each of the first three (3)
fiscal quarters of the Borrower in each Fiscal Year, unaudited Consolidated
balance sheets of the Borrower and its Subsidiaries as of the close of such
fiscal quarter and unaudited Consolidated statements of earnings, shareholders'
equity and cash flows for the fiscal quarter then ended and that portion of the
Fiscal Year then ended, including the notes thereto, all in reasonable detail
setting forth in comparative form the corresponding figures for the preceding
Fiscal Year and prepared by the Borrower in accordance with GAAP and, if
applicable, containing disclosure of the effect on the financial position or
results of operations of any change in the application of accounting principles
and practices during the period, and certified by the chief financial officer of
the Borrower to present fairly in all material respects the financial condition
of the Borrower and its Subsidiaries as of their respective dates and the
results of operations of the Borrower and its Subsidiaries for the respective
periods then ended, subject to normal year end adjustments; provided that the
Borrower may deliver, in lieu of the foregoing, the quarterly report of the
Borrower for such fiscal quarter on Form 10-Q filed with the SEC, but only as
long as the financial statements contained in such quarterly report are
substantially the same in content as the financial statements referred to above
in this Section 6.1(a).
(b) Annual Financial Statements. As soon as practicable and in any
event within ninety (90) days after the end of each Fiscal Year, audited
Consolidated balance sheets of the Borrower and its Subsidiaries as of the close
of such Fiscal Year and audited Consolidated statements of earnings,
shareholders' equity and cash flows for the Fiscal Year then ended, including
the notes thereto, all in reasonable detail setting forth in comparative form
the corresponding figures for the preceding Fiscal Year and prepared by an
independent certified public accounting firm of national standing in accordance
with GAAP and, if applicable, containing disclosure of the effect on the
financial position or results of operation of any change in the application of
accounting principles and practices during the year, and accompanied by a report
thereon by such certified public accountants that is not qualified with respect
to scope limitations imposed by the Borrower or any of its Subsidiaries or with
respect to accounting principles followed by the Borrower or any of its
Subsidiaries not in accordance with GAAP; provided that the Borrower may
deliver, in lieu of the foregoing, the annual report of the Borrower for such
Fiscal Year on Form 10-K filed with the SEC, but only as long as the financial
statements contained in such annual report are substantially the same in content
as the financial statements referred to above in this Section 6.1(b).
Section 6.2 Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 6.1 (a) or (b), a certificate of
the chief financial officer or the treasurer of the Borrower in the form of
Exhibit F hereto (an "Officer's Compliance Certificate"), with the blanks
therein appropriately completed.
Section 6.3 Other Reports.
(a) Promptly after the same become publicly available, copies of all
periodic and other reports on Forms 10-K, 10-Q and 8-K and all definitive proxy
statements filed by the Borrower or any Subsidiary with the SEC or any other
documents distributed by the Borrower to its shareholders generally which
contain information equivalent to that contained in such forms or proxy
statements;
(b) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower or its Board of Directors by its independent certified
public accounting firm in connection with their auditing function, including,
without limitation, any management report and any management responses thereto;
and
(c) Such other information regarding the operations, business affairs
and financial condition of the Borrower or any of its Subsidiaries as the
Administrative Agent or any Lender may reasonably request.
Section 6.4 Notice of Subsidiaries, Litigation and Other Matters.
Prompt (but in no event later than ten (10) days after an executive officer of
the Borrower obtains knowledge thereof) telephonic and written notice of:
(a) the formation or acquisition of any Subsidiary which is, or on a
pro forma basis is expected to be, a Significant Subsidiary;
(b) the commencement of all proceedings and investigations by or before
any Governmental Authority and all actions and proceedings in any court or
before any arbitrator against or involving the Borrower or any Subsidiary or any
of their respective properties, assets or businesses in which there is a
reasonable possibility of an adverse decision and which if adversely determined,
could reasonably be expected to have a Material Adverse Effect;
(c) any notice of any violation received by the Borrower or any
Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws which in any such case
could reasonably be expected to have a Material Adverse Effect;
(d) any labor controversy that has resulted in, or is reasonably likely
to result in, a strike or other work action against the Borrower or any
Significant Subsidiary which is reasonably likely to have a material adverse
effect on the operations of the Borrower or any Significant Subsidiary;
(e) any attachment, judgment, nonconsensual lien, levy or order
exceeding $10,000,000 that may be assessed against the Borrower or any
Subsidiary;
(f) any Default or Event of Default, or any event which constitutes or
which with the passage of time or giving of notice or both would constitute a
material default or event of default by the Borrower or any Subsidiary under any
Debt or Guaranty Obligation in excess of $10,000,000 or any Material Contract;
(g) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof), (ii) all notices received by the
Borrower or any ERISA Affiliate of the PBGC's intent to terminate any Pension
Plan or to have a trustee appointed to administer any Pension Plan, (iii) all
notices received by the Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal liability
pursuant to Section 4202 of ERISA and (iv) the Borrower obtaining knowledge or
reason to know that the Borrower or any ERISA Affiliate has filed or intends to
file a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA; and
(h) any event which makes any of the representations set forth in
Section 5.1 inaccurate in any material respect.
Section 6.5 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of the Borrower
to the Administrative Agent or any Lender (other than financial forecasts)
whether pursuant to this Article 6 or any other provision of this Agreement
shall be, at the time the same is so furnished, complete and correct in all
material respects based on the Borrower's knowledge thereof.
ARTICLE 7
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
all of the Revolving Credit Commitments terminated, unless consent has been
obtained in the manner provided for in Section 12.11:
Section 7.1 Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 9.4, the Borrower will preserve and maintain, and
cause each of its Significant Subsidiaries to preserve and maintain, its
separate corporate existence and all rights, franchises, licenses and privileges
necessary to the conduct of its business, and the Borrower will qualify and
remain qualified as a foreign corporation and authorized to do business in, and
cause each of its Significant Subsidiaries to qualify and remain qualified as a
foreign corporation and authorized to do business in, each jurisdiction in which
the character of its properties or the nature of its business requires such
qualification and authorization, except in cases in which a failure to be so
qualified and authorized in another jurisdiction would not in any given instance
or in the aggregate have a Material Adverse Effect.
Section 7.2 Maintenance of Property. The Borrower will protect and
preserve, and cause each of its Significant Subsidiaries to protect and
preserve, all properties useful in and material to its business, including
copyrights, patents, trade names and trademarks; maintain, and cause each of its
Significant Subsidiaries to maintain, in good working order and condition all
buildings, equipment and other tangible real and personal property useful in and
material to its business; and from time to time make or cause to be made, and
cause each of its Significant Subsidiaries to make or cause to be made, all
renewals, replacements and additions to such property necessary for the conduct
of its business, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
Section 7.3 Insurance. The Borrower will maintain, and cause each of
its Significant Subsidiaries to maintain, insurance with financially sound and
reputable insurance companies against such risks and in such amounts as is
consistent with past practices of the Borrower and its Significant Subsidiaries
and as may be required by Applicable Law, and on the Closing Date and from time
to time thereafter the Borrower will deliver to the Administrative Agent upon
its request a detailed list of the insurance then in effect, stating the names
of the insurance companies, the amounts and rates of the insurance, the dates of
the expiration thereof and the properties and risks covered thereby.
Section 7.4 Accounting Methods and Financial Records. The Borrower will
maintain, and cause each of its Subsidiaries to maintain, a system of
accounting, and keep, and cause each of its Subsidiaries to keep, such books,
records and accounts (which shall be true and complete in all material respects)
as may be required or as may be necessary to permit the preparation of financial
statements in accordance with GAAP and in compliance with the regulations of any
Governmental Authority having jurisdiction over it or any of its properties.
Section 7.5 Payment and Performance of Obligations. The Borrower will
pay and perform, and cause each of its Subsidiaries to perform, all Obligations,
as applicable to them, under this Agreement and the other Loan Documents, and
pay or perform, and cause each of its Subsidiaries to pay and perform, (a) all
taxes, assessments and other governmental charges that may be levied or assessed
upon it or any of its property, and (b) all other indebtedness, obligations and
liabilities in excess of $10,000,000 in accordance with customary trade
practices; provided that the Borrower or such Subsidiary may contest any item
described in clauses (a) or (b) of this Section 7.5 in good faith and by
appropriate proceedings so long as adequate reserves are maintained with respect
thereto in accordance with GAAP.
Section 7.6 Compliance With Laws and Approvals. The Borrower will
observe and remain in compliance with, and cause each of its Subsidiaries to
observe and remain in compliance with, all Applicable Laws and maintain, and
cause each of its Subsidiaries to maintain, in full force and effect all
Governmental Approvals, in each case applicable to the conduct of its business,
except in cases in which a failure to observe and comply with Applicable Laws or
a failure to maintain Governmental Approvals would not, in any given instance or
in the aggregate, have a Material Adverse Effect.
Section 7.7 Environmental Laws. In addition to and without limiting the
generality of Section 7.6, the Borrower will (a) comply with and ensure such
compliance by all tenants and subtenants, with, all applicable Environmental
Laws and obtain and comply with and maintain, and ensure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, except in cases in which any failure to do so is not reasonably likely to
result, in any given instance or in the aggregate, in liability of the Borrower
or any Subsidiary in excess of $25,000,000, (b) conduct and complete all
investigations, studies, sampling and testing, and all remedial, removal and
other actions required under Environmental Laws, and promptly comply with all
lawful orders and directives of any Governmental Authority regarding
Environmental Laws, and (c) defend, indemnify and hold harmless the
Administrative Agent and the Lenders, and their respective parents,
Subsidiaries, Affiliates, employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the violation
of, noncompliance with or liability under any Environmental Laws applicable to
the operations of the Borrower or any Subsidiary, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, reasonable attorneys' and consultants' fees, investigation and
laboratory fees, response costs, court costs and litigation expenses, except to
the extent that any of the foregoing directly result from the gross negligence
or willful misconduct of the party seeking indemnification therefor, and the
Borrower will cause each of its Subsidiaries to do and comply with all of the
foregoing.
Section 7.8 Compliance with ERISA. In addition to and without limiting
the generality of Section 7.6, the Borrower will (a) comply with all applicable
provisions of ERISA and the regulations and published interpretations thereunder
with respect to all Employee Benefit Plans, except in cases in which any failure
to do so is not reasonably likely to result, in any given instance or in the
aggregate, in liability of the Borrower or any Subsidiary in excess of
$25,000,000, (b) not take any action or fail to take action the result of which
could be a liability to the PBGC in excess of $25,000,000 or to a Multiemployer
Plan in excess of $25,000,000, (c) not participate in any prohibited transaction
that could result in any civil penalty in excess of $25,000,000 under ERISA or
tax under the Code, (d) operate each Employee Benefit Plan in such a manner that
will not incur any tax liability in excess of $25,000,000 under Section 4980B of
the Code or any liability to any qualified beneficiary as defined in Section
4980B of the Code and (e) furnish to the Administrative Agent upon the
Administrative Agent's request such additional information about any Employee
Benefit Plan as may be reasonably requested by the Administrative Agent, and the
Borrower will cause each of its Subsidiaries to do and comply with all of the
foregoing.
Section 7.9 Compliance With Agreements. The Borrower will comply in all
respects with, and cause each of its Subsidiaries to comply in all respects
with, each term, condition and provision of all leases, agreements and other
instruments entered into in the conduct of its business including, without
limitation, any Material Contract, except in cases in which a failure so to
comply would not, in any given instance or in the aggregate, have a Material
Adverse Effect;
Section 7.10 Conduct of Business. The Borrower and its Subsidiaries,
considered as a whole, will continue to engage primarily in the wholesale and
retail food distribution and logistics business and businesses reasonably
related thereto.
Section 7.11 Visits and Inspections. The Borrower will permit, and
cause each of its Subsidiaries to permit, representatives of the Administrative
Agent or any Lender, from time to time, to visit and inspect its properties;
inspect, audit and make extracts from its books, records and files, including,
but not limited to, management letters prepared by independent certified public
accountants; and discuss with its principal officers, and its independent
accountants, its business, assets, liabilities, financial condition, results of
operations and business prospects.
Section 7.12 Year 2000 Compatibility. The Borrower will take all
actions, and cause each of its Subsidiaries to take all actions, reasonably
necessary to assure that the material computer based systems of the Borrower and
its Subsidiaries are able to operate and effectively process data which includes
dates on and after January 1, 2000. At the request of the Administrative Agent,
the Borrower shall provide reasonable assurances satisfactory to the
Administrative Agent of the Year 2000 compatibility of the material computer
based systems of the Borrower and its Subsidiaries..
Section 7.13 Further Assurances. The Borrower will make, execute and
deliver, and cause each of its Subsidiaries to make, execute and deliver, all
such additional and further acts, things, deeds and instruments as the
Administrative Agent or any Lender may reasonably require to document and
consummate the transactions contemplated hereby and to vest completely in and
insure the Administrative Agent and the Lenders their respective rights under
this Agreement, the Revolving Credit Notes and the other Loan Documents.
ARTICLE 8
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full and
all of the Revolving Credit Commitments terminated, unless consent has been
obtained in the manner set forth in Section 12.11:
Section 8.1 Leverage Ratio. The Borrower will maintain a ratio,
measured as of the end of each of the first three fiscal quarters during each
Fiscal Year and as of the end of each Fiscal Year, of Consolidated Funded Debt
as of the date of measurement, to Consolidated EBITDA for the four-quarter
period ending on the date of measurement, which is not greater than 3.0 to 1 at
any time.
Section 8.2 Fixed Charge Coverage Ratio. The Borrower will maintain a
ratio, measured as of the end of each of the first three fiscal quarters during
each Fiscal Year and as of the end of each Fiscal Year, of Consolidated EBITDAR
for the four-quarter period ending on the date of measurement, to Consolidated
Fixed Charges for such four-quarter period, which is not less than 1.5 to 1 at
any time.
ARTICLE 9
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
all of the Revolving Credit Commitments terminated, unless consent has been
obtained in the manner set forth in Section 12.11:
Section 9.1 Limitations on Debt. The Borrower will not create, incur,
assume or suffer to exist any Debt which is senior in right of payment to the
Obligations, or any other Debt if at the time of, or immediately upon giving
effect to, the creation, incurrence, assumption or existence of such Debt a
Default or an Event of Default exists or would exist (it being understood and
agreed that the fact that Debt is secured by a Lien permitted by Section 9.3
shall not cause such Debt to be considered senior for purposes of this Section
9.1), and the Borrower will not permit any of its Subsidiaries to create, incur,
assume or suffer to exist any Debt except:
(a) Debt of any Subsidiary existing on the Closing Date and described
on Schedule 5.1(t);
(b) Debt of any Subsidiary owing to the Borrower or any other
Subsidiary;
(c) Debt of any Subsidiary outstanding at the time such Subsidiary
becomes a Subsidiary of the Borrower and not incurred in contemplation thereof,
as long as the Debt remains the sole obligation of such Subsidiary and as long
as the outstanding principal amount of such Debt is not voluntarily increased by
such Subsidiary after the date such Subsidiary becomes a Subsidiary of the
Borrower;
(d) Debt of any Subsidiary secured by a Lien permitted by Section 9.3,
provided that such Debt does not exceed the value of the assets or property
subject to such permitted Lien;
(e) Debt constituting the renewal or refinancing of any Debt permitted
by subsections (a), (b) or (c) above as long as the aggregate principal amount
thereof is not increased; and
(f) Debt of any Subsidiary not otherwise permitted by this Section 9.1
as long as the aggregate of all such Debt for all Subsidiaries at any time
outstanding does not exceed ten percent (10%) of Consolidated Net Tangible
Assets.
Section 9.2 Intentionally Omitted.
Section 9.3 Limitations on Liens. The Borrower will not create, incur,
assume or suffer to exist, or permit any of its Subsidiaries to create, incur,
assume or suffer to exist, any Lien on or with respect to any of its assets or
properties (including without limitation shares of capital stock or other
ownership interests), real or personal, whether now owned or hereafter acquired,
except:
(a) Liens existing on the Closing Date and described on Schedule 9.3;
(b) Liens for taxes, assessments and other governmental charges or
levies not yet due or as to which the period of grace, if any, related thereto
has not expired or which are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by GAAP;
(c) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
(d) Liens consisting of deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation or
obligations under customer service contracts;
(e) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, detract from the value of any material parcel of real property or
impair the use thereof in the ordinary conduct of business;
(f) Liens in favor of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders;
(g) Liens on the property or assets of any Subsidiary existing at the
time such Subsidiary becomes a Subsidiary of the Borrower and not incurred in
contemplation thereof, as long as the outstanding principal amount of the Debt
secured thereby is not voluntarily increased by such Subsidiary after the date
such Subsidiary becomes a Subsidiary of the Borrower;
(h) Liens on the property or assets of the Borrower or any Subsidiary
securng Debt which is permitted under Section 9.1 and which is incurred to
finance the acquisition of such property or assets; provided that (i) each such
Lien shall be created substantially simultaneously with the acquisition of the
related property or assets, (ii) each such Lien does not at any time encumber
any property other than the related property or assets financed by such Debt,
(iii) the principal amount of Debt secured by each such Lien is not increased
and (iv) the principal amount of Debt secured by each such Lien shall at no time
exceed 100% of the original purchase price of such related property or assets at
the time acquired; and
(i) Liens not otherwise permitted by this Section 9.3 as long as all of
such Liens do not encumber property and assets which constitute more than five
percent (5%) of Consolidated Net Tangible Assets; and
(j) Any lien not otherwise permitted by this Section 9.3 as long as,
prior to or contemporaneously with the creation, incurrence, assumption or
existence of such Lien, the Borrower shall have taken all steps necessary to
cause the Obligations to be secured by such Lien, equally and ratably based on
amount of indebtedness with the other Debt and obligations secured thereby, to
the satisfaction of the Administrative Agent and each of the Lenders.
Section 9.4 Limitations on Mergers and Liquidation. The Borrower will
not merge, consolidate or enter into any similar combination with any other
Person or liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or permit any of its Significant Subsidiaries to merge,
consolidate or enter into any similar combination with any other Person or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), except:
(a) the Borrower or a Significant Subsidiary may merge with another
Person if (i) such Person is organized under the laws of the United States or
one of its states, (ii) the Borrower or the Significant Subsidiary, as the case
may be, is the corporation surviving such merger, and (iii) immediately prior to
and after giving effect to such merger no Default or Event of Default exists or
would exist;
(b) any Wholly-Owned Significant Subsidiary of the Borrower may merge
into the Borrower or any other Wholly-Owned Subsidiary of the Borrower; and
(c) any Wholly-Owned Significant Subsidiary of the Borrower may
liquidate, wind-up or dissolve itself into the Borrower or any other
Wholly-Owned Subsidiary of the Borrower.
Section 9.5 Limitations on Sale of Assets. The Borrower will not
convey, sell, lease, assign, transfer or otherwise dispose of, or permit any of
its Subsidiaries to convey, sell, lease, assign, transfer or otherwise dispose
of:
(a) all or substantially all of the property, business or assets of the
Borrower and its Subsidiaries on a Consolidated basis;
(b) any of its property, business or assets if such transaction would
reasonably be expected to have a Material Adverse Effect; or
(c) any of its property, business or assets if immediately prior to or
after giving effect to such transaction a Default or an Event of Default exists
or would exist.
Section 9.6 Prohibition against Limitations on Dividends and
Distributions. The Borrower will not permit any Subsidiary to agree to, incur,
assume or suffer to exist any restriction, limitation or other encumbrance (by
covenant or otherwise) on the ability of such Subsidiary to make any payment to
the Borrower or any of its Subsidiaries (in the form of dividends, intercompany
advances or otherwise) except:
(a) Restrictions and limitations existing on the Closing Date and
described on Schedule 9.6;
(b) Restrictions and limitations applicable to a Subsidiary existing at
the time such Subsidiary becomes a Subsidiary of the Borrower and not incurred
in contemplation thereof, as long as no such restriction or limitation is made
more restrictive after the date such Subsidiary becomes a Subsidiary of the
Borrower; and
(c) Other restrictions and limitations which are not material either
individually or in the aggregate.
Section 9.7 Intentionally Omitted.
Section 9.8 Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly (a) make any
loan or advance to, or purchase or assume any note or other obligation to or
from, any of its officers, directors, shareholders or Affiliates, or to or from
any member of the immediate family of any of its officers, directors,
shareholders or Affiliates, other than (i) loans or advances to customers of the
Borrower and its Subsidiaries in the ordinary course of business which are arm's
length, and (ii) any other loan or advance or assumption that would not cause
the aggregate amount of all such loans and advances and assumed notes and
advances to exceed $5,000,000, or (b) enter into, or be a party to, any
subcontract of any operations or other transaction with any of its Affiliates,
except pursuant to the reasonable requirements of its business and upon fair and
reasonable terms that are no less favorable to it than it would obtain in a
comparable arm's length transaction with a Person not its Affiliate and except
for transactions which are not material either individually or in the aggregate.
Nothing contained in this Section 9.8 shall prohibit the Borrower or any
Subsidiary which has obtained an ownership interest in a customer in connection
with a loan or credit workout to provide non-standard payment or other terms to
such customer or otherwise to do business with such customer in the ordinary
course of business.
Section 9.9 Certain Accounting Changes. The Borrower will not change
its Fiscal Year end in order to avoid a Default or an Event of Default or if a
Material Adverse Effect would result therefrom, and the Borrower will not make
any change in its accounting treatment and reporting practices except as
required by GAAP.
Section 9.10 Amendments; Payments and Prepayments of Subordinated Debt.
At any time after the occurrence of a Default or an Event of Default and during
the continuance thereof, the Borrower will not, and will not permit any of its
Subsidiaries to, amend or modify (or permit the modification or amendment of)
any of the terms or provisions of any Subordinated Debt, or cancel or forgive,
make any voluntary or optional payment or prepayment on, or redeem or acquire
for value (including without limitation by way of depositing with any trustee
with respect thereto money or securities before due for the purpose of paying
when due) any Subordinated Debt.
ARTICLE 10
DEFAULT AND REMEDIES
Section 10.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans. The Borrower shall
default in any payment of principal of any Revolving Credit Loan or Revolving
Credit Note when and as due (whether at maturity, by reason of acceleration or
otherwise).
(b) Other Payment Default. The Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Revolving Credit Loan or Revolving Credit Note or the payment of
any other Obligation, and such default shall continue unremedied for three (3)
Business Days.
(c) Misrepresentation. Any representation or warranty made or deemed to
be made by the Borrower or any of its Subsidiaries under this Agreement, any
Loan Document or any amendment hereto or thereto, shall at any time prove to
have been incorrect or misleading in any material respect when made or deemed
made.
(d) Default in Performance of Certain Covenants. The Borrower shall
default in the performance or observance of any covenant or agreement contained
in Articles 8 or 9 of this Agreement.
(e) Default in Performance of Other Covenants and Conditions. The
Borrower or any Subsidiary shall default in the performance or observance of any
term, covenant, condition or agreement contained in this Agreement (other than
as specifically provided for otherwise in this Section 10.1) or any other Loan
Document and such default shall continue for a period of thirty (30) days after
written notice thereof has been given to the Borrower by the Administrative
Agent.
(f) Hedging Agreement. Any termination payment shall be due by the
Borrower under any Hedging Agreement to which any Lender is a party and such
amount is not paid within thirty (30) Business Days of the due date thereof.
(g) Debt Cross-Default. The Borrower or any of its Subsidiaries shall
(i) default in the payment of any Debt (other than the Revolving Credit Notes)
the aggregate outstanding amount of which Debt is in excess of $10,000,000
(including, without limitation, Debt under the Separate Revolving Credit
Facility) beyond the period of grace, if any, provided in the instrument or
agreement under which such Debt was created, (ii) default in the payment of any
amount due under a synthetic or other structured lease the aggregate implied
principal amount of which lease calculated in accordance with applicable Federal
income tax laws and regulations is in excess of $10,000,000 beyond the period of
grace, if any, provided in the instrument or agreement under which such lease
was created, or (iii) default in the observance or performance of any other
agreement or condition relating to any such Debt or any such lease or contained
in any instrument or agreement evidencing, securing or relating thereto or any
other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such Debt
or such lease (or a trustee or agent on behalf of such holder or holders) to
cause, with the giving of notice if required, any such Debt or any such lease to
become due prior to its stated maturity (any such notice having been given and
any applicable grace period having expired).
(h) Intentionally Omitted.
(i) Change in Control. Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended)
shall obtain ownership or control in one or more series of transactions of
thirty percent (30%) or more of the common stock or thirty percent (30%) or more
of the voting power of the Borrower entitled to vote in the election of members
of the board of directors of the Borrower or there shall have occurred under any
indenture or other instrument evidencing any Debt in excess of $10,000,000 any
"change in control" (as defined in such indenture or other evidence of Debt)
obligating the Borrower to repurchase, redeem or repay all or any part of the
Debt provided for therein (any such event, a "Change in Control").
(j) Voluntary Bankruptcy Proceeding. The Borrower or any Subsidiary
shall (i) commence a voluntary case under the federal bankruptcy laws (as now or
hereafter in effect), (ii) file a petition seeking to take advantage of any
other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts, (iii) consent
to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign, (v) admit in writing its inability to pay its debts as they
become due, (vi) make a general assignment for the benefit of creditors, or
(vii) take any corporate action for the purpose of authorizing any of the
foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against the Borrower or any Subsidiary in any court of competent
jurisdiction seeking (i) relief under the federal bankruptcy laws (as now or
hereafter in effect) or under any other laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding up or adjustment of debts, or
(ii) the appointment of a trustee, receiver, custodian, liquidator or the like
for the Borrower or any Subsidiary or for all or any substantial part of their
respective assets, domestic or foreign, and such case or proceeding shall
continue undismissed or unstayed for a period of sixty (60) consecutive days, or
an order granting the relief requested in such case or proceeding (including,
but not limited to, an order for relief under such federal bankruptcy laws)
shall be entered.
(l) Failure of Agreements. Any material provision of this Agreement or
of any other Loan Document shall for any reason cease to be valid and binding on
the Borrower or the Borrower shall so state in writing.
(m) Termination Event. The occurrence of any of the following events:
(i) the Borrower or any ERISA Affiliate fails to make full payment when due of
all amounts which, under the provisions of any Pension Plan or Section 412 of
the Code, the Borrower or any ERISA Affiliate is required to pay as
contributions thereto, except in cases in which a failure to make such payment
is not reasonably likely to result, in any given instance or in the aggregate,
in liability of the Borrower or any ERISA Affiliate in excess of $25,000,000,
(ii) an accumulated funding deficiency in excess of $25,000,000 occurs or
exists, whether or not waived, with respect to any Pension Plan, (iii) a
Termination Event or (iv) the Borrower or any ERISA Affiliate as employers under
one or more Multiemployer Plan makes a complete or partial withdrawal from any
such Multiemployer Plan and the plan sponsor of such Multiemployer Plans
notifies such withdrawing employer that such employer has incurred a withdrawal
liability requiring payments in an amount exceeding $25,000,000.
(n) Judgment. A judgment or order for the payment of money which causes
the aggregate amount of all such judgments to exceed $10,000,000 in any Fiscal
Year shall be entered against the Borrower or any of its Subsidiaries by any
court and such judgment or order shall continue undischarged or unstayed for a
period of thirty (30) days.
Section 10.2 Remedies. Upon the occurrence of an Event of Default, with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower:
(a) Acceleration; Termination of Facilities. Declare the principal of
and interest on the Revolving Credit Loans and the Revolving Credit Notes at the
time outstanding, and all other amounts owed to the Lenders and to the
Administrative Agent under this Agreement or any of the other Loan Documents and
all other Obligations, to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment, demand, protest or other
notice of any kind, all of which are expressly waived, anything in this
Agreement or the other Loan Documents to the contrary notwithstanding, and
terminate the Revolving Credit Facility and each of the Revolving Credit
Commitments and any right of the Borrower to request borrowings thereunder;
provided that upon the occurrence of an Event of Default specified in Section
10.1(j) or Section 10.1(k), the Revolving Credit Facility shall be automatically
terminated and all Obligations shall automatically become due and payable.
(b) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Obligations.
Section 10.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the Administrative Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between the Borrower, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
ARTICLE 11
THE ADMINISTRATIVE AGENT
Section 11.1 Appointment. Each of the Lenders hereby irrevocably
designates and appoints First Union as Administrative Agent of such Lender under
this Agreement and the other Loan Documents for the term hereof, and each such
Lender irrevocably authorizes First Union as Administrative Agent for such
Lender to take such action on its behalf under the provisions of this Agreement
and the other Loan Documents and to exercise such powers and perform such duties
as are expressly delegated to the Administrative Agent by the terms of this
Agreement and such other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement or such other Loan Documents, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein and therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or the other Loan Documents or
otherwise exist against the Administrative Agent.
Section 11.2 Delegation of Duties. The Administrative Agent may execute
any of its respective duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by the Administrative Agent with reasonable care.
Section 11.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or the other Loan Documents (except for actions occasioned solely by
its or such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any of its Subsidiaries or
any officer thereof contained in this Agreement or the other Loan Documents or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with this
Agreement or the other Loan Documents or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or the other Loan
Documents or for any failure of the Borrower or any of its Subsidiaries to
perform its obligations hereunder or thereunder. The Administrative Agent shall
not be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of the
Borrower or any of its Subsidiaries.
Section 11.4 Reliance by the Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Revolving Credit Note as the owner thereof for all purposes unless such
Revolving Credit Note shall have been transferred in accordance with Section
12.10. The Administrative Agent shall be fully justified in failing or refusing
to take any action under this Agreement and the other Loan Documents unless it
shall first receive such advice or concurrence of the Required Lenders (or, when
expressly required hereby or by the relevant other Loan Document, all the
Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action
except for its own gross negligence or willful misconduct. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the Revolving Credit Notes in accordance with a
request of the Required Lenders (or, when expressly required hereby, all the
Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Revolving Credit Notes.
Section 11.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless it has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default." In the event that the
Administrative Agent receives such a notice, it shall promptly give notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders; provided that unless and until the Administrative Agent
shall have received such direction, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
Section 11.6 Non-Reliance on the Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates has made any representations or warranties to it and
that no act by the Administrative Agent hereinafter taken, including any review
of the affairs of the Borrower or any of its Subsidiaries, shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and its Subsidiaries and made its own decision to make its Revolving
Credit Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower and its
Subsidiaries. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder or by the
other Loan Documents, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrower or any of its Subsidiaries which may come into
the possession of the Administrative Agent or any of its respective officers,
directors, employees, agents, attorneys-in-fact, Subsidiaries or Affiliates.
Section 11.7 Indemnification. The Lenders agree to indemnify each of
the Agents in its capacity as such (to the extent not reimbursed by the Borrower
and without limiting the obligation of the Borrower to do so), ratably according
to the respective amounts of their Revolving Credit Commitment Percentages, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Revolving Credit Notes) be imposed on, incurred by
or asserted against such Agent in any way relating to or arising out of this
Agreement or the other Loan Documents, or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by such Agent under or in connection with any of
the foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
applicable Agent's bad faith, gross negligence or willful misconduct. The
agreements in this Section 11.7 shall survive the payment of the Revolving
Credit Notes and all other amounts payable hereunder and the termination of this
Agreement.
Section 11.8 The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its respective Subsidiaries and Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrower as though the Administrative Agent were not an Administrative Agent
hereunder. With respect to any Revolving Credit Loans made or renewed by it and
any Revolving Credit Note issued to it, the Administrative Agent shall have the
same rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not an Administrative Agent,
and the terms "Lender" and "Lenders" shall include the Administrative Agent in
its individual capacity.
Section 11.9 Resignation of the Administrative Agent; Successor
Administrative Agent. Subject to the appointment and acceptance of a successor
as provided below, the Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders, with the approval of the Borrower so long as no Default or
Event of Default has occurred and is continuing, shall have the right to appoint
a successor Administrative Agent, which successor shall have minimum capital and
surplus of at least $500,000,000. If no successor Administrative Agent shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within thirty (30) days after the Administrative Agent's giving of
notice of resignation, then the Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which successor shall have
minimum capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Section 11 shall continue in effect for its benefit with respect to any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
Section 11.10. Syndication Agent and Documentation Agent.
Notwithstanding anything to the contrary contained in this Agreement, neither
Crestar Bank in its capacity as Syndication Agent nor SunTrust Bank, Atlanta in
its capacity as Documentation Agent shall have any duties or responsibilities
whatsoever.
ARTICLE 12
MISCELLANEOUS
Section 12.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing:
If to the Borrower: Richfood Holdings, Inc.
0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With copies to: Xxxx X. Xxxxxxxx, Esquire
Hunton & Xxxxxxxx
000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to First Union as First Union National Bank
Administrative Agent: Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With copies to: Xxxxxxx X. Xxxx, Esquire
Xxxx & Valentine, L.L.P.
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to any Lender: To the address for such Lender set forth on Schedule
1 hereto
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrower and Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Revolving Credit Loans will be
disbursed.
Section 12.2 Expenses; Indemnity. The Borrower will (a) pay all
out-of-pocket expenses of the Administrative Agent in connection with (i) the
preparation, execution and delivery of this Agreement and each other Loan
Document, whenever the same shall be executed and delivered, including without
limitation all out-of-pocket syndication and due diligence expenses and
reasonable fees and disbursements of counsel for the Administrative Agent and
(ii) the preparation, execution and delivery of any waiver, amendment or consent
by the Administrative Agent or the Lenders relating to this Agreement or any
other Loan Document, including without limitation reasonable fees and
disbursements of counsel for the Administrative Agent, (b) pay all reasonable
out-of-pocket expenses of the Administrative Agent and each Lender actually
incurred in connection with the administration and enforcement of any rights and
remedies of the Administrative Agent and Lenders under the Revolving Credit
Facility, including consulting with appraisers, accountants, engineers,
attorneys and other Persons concerning the nature, scope or value of any right
or remedy of the Administrative Agent or any Lender hereunder or under any other
Loan Document or any factual matters in connection therewith, which expenses
shall include without limitation the reasonable fees and disbursements of such
Persons, and (c) defend, indemnify and hold harmless each of the Agents and the
Lenders, and their respective parents, Subsidiaries, Affiliates, employees,
agents, officers and directors, from and against any losses, penalties, fines,
liabilities, settlements, damages, costs and expenses, suffered by any such
Person in connection with any claim, investigation, litigation or other
proceeding (whether or not the applicable Agent or Lender is a party thereto)
and the prosecution and defense thereof, arising out of or in any way connected
with this Agreement, any other Loan Document or the Revolving Credit Loans,
including without limitation reasonable attorney's and consultant's fees, except
to the extent that any of the foregoing directly result from the gross
negligence or willful misconduct of the party seeking indemnification therefor.
Section 12.3 Set-off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the continuance
thereof, the Lenders and any assignee or participant of a Lender in accordance
with Section 12.10 are hereby authorized by the Borrower at any time or from
time to time, without notice to the Borrower or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, time or demand, including, but not
limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured) and any other indebtedness at any time held or owing by the
Lenders, or any such assignee or participant to or for the credit or the account
of the Borrower against and on account of the Obligations irrespective of
whether or not (a) the Lenders shall have made any demand under this Agreement
or any of the other Loan Documents or (b) the Administrative Agent shall have
declared any or all of the Obligations to be due and payable as permitted by
Section 10.2 and although such Obligations shall be contingent or unmatured.
Section 12.4 Governing Law. This Agreement, the Revolving Credit Notes
and the other Loan Documents, unless otherwise expressly set forth therein,
shall be governed by and construed and enforced in accordance with the laws of
the Commonwealth of Virginia, without reference to the conflicts or choice of
law principles thereof.
Section 12.5 Consent to Jurisdiction. The Borrower hereby irrevocably
consents to the personal jurisdiction of the state and federal courts located in
the City of Richmond, Virginia and the County of Henrico, Virginia in any
action, claim or other proceeding arising out of any dispute in connection with
this Agreement, the Revolving Credit Notes and the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such rights
and obligations. The Borrower hereby irrevocably consents to the service of a
summons and complaint and other process in any action, claim or proceeding
brought by the Administrative Agent or any Lender in connection with this
Agreement, the Revolving Credit Notes or the other Loan Documents, any rights or
obligations hereunder or thereunder, or the performance of such rights and
obligations, on behalf of itself or its property, in the manner specified in
Section 12.1. Nothing in this Section 12.5 shall affect the right of the
Administrative Agent or any Lender to serve legal process in any other manner
permitted by Applicable Law or affect the right of the Administrative Agent or
any Lender to bring any action or proceeding against the Borrower or its
properties in the courts of any other jurisdictions.
Section 12.6 Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party, whether made before
or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, in connection with or relating to the Revolving
Credit Notes or any other Loan Document ("Disputes"), between or among parties
to the Revolving Credit Notes or any other Loan Document shall be resolved by
binding arbitration as provided herein. Institution of a judicial proceeding by
a party does not waive the right of that party to demand arbitration hereunder.
Disputes may include, without limitation, tort claims, counterclaims, claims
brought as class actions, claims arising from Loan Documents executed in the
future, or claims concerning any aspect of the past, present or future
relationships arising out of or in connection with the Loan Documents.
Arbitration shall be conducted under and governed by the Commercial Financial
Disputes Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association and Title 9 of the U.S. Code. All arbitration hearings shall be
conducted in Richmond, Virginia. The expedited procedures set forth in Rule 51,
et seq. of the Arbitration Rules shall be applicable to claims of less than
$1,000,000. All applicable statutes of limitation shall apply to any Dispute. A
judgment upon the award may be entered in any court having jurisdiction. The
panel from which all arbitrators are selected shall be comprised of licensed
attorneys. The single arbitrator selected for expedited procedure shall be a
retired judge from the highest court of general jurisdiction, state or federal,
of the state where the hearing will be conducted.
(b) Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY LAW, THE
ADMINISTRATIVE AGENT, EACH LENDER AND THE BORROWER HEREBY IRREVOCABLY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR
OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT,
THE REVOLVING CREDIT NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS.
Section 12.7 Reversal of Payments. To the extent the Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
Section 12.8 Injunctive Relief; Punitive Damages.
(a) The Borrower recognizes that, in the event the Borrower fails to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrower agrees that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and the Borrower (on behalf
of itself and its Subsidiaries) hereby agree that no such Person shall have a
remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any dispute.
Section 12.9 Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by the
Borrower or any Subsidiary thereof to determine compliance with any covenant
contained herein, shall, except as otherwise expressly contemplated hereby or
unless there is an express written direction by the Administrative Agent to the
contrary agreed to by the Borrower, be performed in accordance with GAAP as in
effect on the Closing Date. In the event that changes in GAAP shall be mandated
by the Financial Accounting Standards Board, or any similar accounting body of
comparable standing, or shall be recommended by the Borrower's certified public
accountants, to the extent that such changes would modify such accounting terms
or the interpretation or computation thereof, such changes shall be followed in
defining such accounting terms only from and after the date the Borrower and the
Lenders shall have amended this Agreement to the extent necessary to reflect any
such changes in the financial covenants and other terms and conditions of this
Agreement.
Section 12.10 Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent and the Lenders,
all future holders of the Revolving Credit Notes, and their respective
successors and assigns, except that the Borrower shall not assign or transfer
any of its rights or obligations under this Agreement without the prior written
consent of each Lender.
(b) Assignment by Lenders. Each Lender may, with the consent of the
Administrative Agent and, so long as no Default or Event of Default has occurred
and is continuing, the Borrower, which consents shall not be unreasonably
withheld, assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Agreement (including, without
limitation, all or a portion of the Revolving Credit Extensions of Credit at the
time owing to it and the Revolving Credit Notes held by it); provided that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and obligations under
this Agreement;
(ii) if less than all of the assigning Lender's Revolving
Credit Commitment is to be assigned, the Revolving Credit Commitment so assigned
shall not be less than $5,000,000;
(iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance in the form of Exhibit G attached hereto
(an "Assignment and Acceptance"), together with any Revolving Credit Note or
Notes subject to such assignment;
(iv) such assignment shall not, without the consent of the
Borrower, require the Borrower to file a registration statement with the SEC or
apply to or qualify the Revolving Credit Loans or the Revolving Credit Notes
under the blue sky laws of any state; and
(v) the assigning Lender shall pay to the Administrative Agent
an assignment fee of $3,500 upon the execution by such Lender of the Assignment
and Acceptance; provided that no such fee shall be payable upon any assignment
by a Lender to an Affiliate thereof.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
set forth in such Assignment and Acceptance.
(d) Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Revolving Credit
Extensions of Credit with respect to each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders may
treat each person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Issuance of New Notes. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee together
with any Revolving Credit Note or Notes subject to such assignment and the
written consent to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is substantially in the form of
Exhibit F:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the
Register;
(iii) give prompt notice thereof to the Lenders and the
Borrower; and
(iv) promptly deliver a copy of such Assignment and Acceptance
to the Borrower.
Within five (5) Business Days after receipt of notice, the Borrower shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Revolving Credit Note or Notes, a new Revolving Credit Note or Notes to the
order of such Eligible Assignee in amounts equal to the Revolving Credit
Commitment assumed by it pursuant to such Assignment and Acceptance and a new
Revolving Credit Note or Notes to the order of the assigning Lender in an amount
equal to the Revolving Credit Commitment retained by it hereunder. Such new
Revolving Credit Note or Notes shall be in an aggregate principal amount equal
to the aggregate principal amount of such surrendered Revolving Credit Note or
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of the assigned Revolving Credit
Notes delivered to the assigning Lender. Each surrendered Revolving Credit Note
or Notes shall be canceled and returned to the Borrower.
(f) Participations. Each Lender may sell participations to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Revolving
Credit Extensions of Credit and the Revolving Credit Notes held by it); provided
that:
(i) each such participation shall be in an amount not less
than $5,000,000;
(ii) such Lender's obligations under this Agreement
(including, without limitation, its Revolving Credit Commitment) shall remain
unchanged;
(iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the Revolving
Credit Notes held by it for all purposes of this Agreement;
(v) the Borrower, 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;
(vi) such Lender shall not permit such participant the right
to approve any waivers, amendments or other modifications to this Agreement or
any other Loan Document other than waivers, amendments or modifications which
would reduce the principal of or the interest rate on any Revolving Credit Loan,
extend the term or increase the amount of the Revolving Credit Commitment,
reduce the amount of any fees to which such participant is entitled or extend
any scheduled payment date for principal of any Revolving Credit Loan;
(vii) any such disposition shall not, without the consent of
the Borrower, require the Borrower to file a registration statement with the SEC
or apply to or qualify the Revolving Credit Loans or the Revolving Credit Notes
under the blue sky laws of any state; and
(viii) any such disposition shall not require the Borrower to
indemnify or make any additional payment to the participant pursuant to Sections
3.8(c), 3.10 or 3.11 unless such Lender would have been entitled to such
indemnity or additional payment.
(g) Disclosure of Information; Confidentiality. The Administrative
Agent and the Lenders shall hold all non-public information with respect to the
Borrower obtained pursuant to the Loan Documents in accordance with their
customary procedures for handling confidential information; provided that the
Administrative Agent may disclose information relating to this Agreement to Gold
Sheets and other similar bank trade publications, such information to consist of
deal terms and other information customarily found in such publications. Any
Lender may, in connection with any assignment, proposed assignment,
participation or proposed participation pursuant to this Section 12.10, disclose
to the assignee, participant, proposed assignee or proposed participant any
information relating to the Borrower furnished to such Lender by or on behalf of
the Borrower; provided that prior to any such disclosure, each such assignee,
proposed assignee, participant or proposed participant shall agree with the
Borrower or such Lender to preserve the confidentiality of any confidential
information relating to the Borrower received from such Lender.
(h) Certain Pledges or Assignments. Nothing herein shall prohibit any
Lender from pledging or assigning any Revolving Credit Note to any Federal
Reserve Bank in accordance with Applicable Law.
Section 12.11 Amendments, Waivers and Consents. Except as set forth
below, any term, covenant, agreement or condition of this Agreement or any of
the other Loan Documents may be amended or waived by the Lenders, and any
consent given by the Lenders, if, but only if, such amendment, waiver or consent
is in writing signed by the Required Lenders (or by the Administrative Agent
with the consent of the Required Lenders) and delivered to the Administrative
Agent and, in the case of an amendment, signed by the Borrower; provided that no
amendment, waiver or consent shall (a) increase the amount or extend the time of
the obligation of the Lenders to make Revolving Credit Loans (including without
limitation pursuant to Section 2.6), (b) extend the originally scheduled time or
times of payment of the principal of any Revolving Credit Loan or the time or
times of payment of interest on any Revolving Credit Loan, (c) reduce the rate
of interest or fees payable on any Revolving Credit Loan, (d) reduce the
principal amount of any Revolving Credit Loan, (e) permit any subordination of
the principal or interest on any Revolving Credit Loan or (f) amend the
provisions of this Section 12.11 or the definition of Required Lenders, without
the prior written consent of each Lender. In addition, no amendment, waiver or
consent to the provisions of Article 11 shall be made without the written
consent of the Administrative Agent.
Section 12.12 Performance of Duties. The Borrower's obligations under
this Agreement and each of the Loan Documents shall be performed by the Borrower
at its sole cost and expense.
Section 12.13 All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lenders, the Administrative Agent and
any Persons designated by the Administrative Agent or any Lender pursuant to any
provisions of this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied or the Revolving Credit Facility has
not been terminated.
Section 12.14 Survival of Indemnities. Notwithstanding any termination
of this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article 12 and any other
provision of this Agreement and the Loan Documents shall continue in full force
and effect and shall protect the Administrative Agent and the Lenders against
events arising after such termination as well as before.
Section 12.15 Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
Section 12.16 Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 12.17 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
Section 12.18 Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
shall have been indefeasibly and irrevocably paid and satisfied in full and all
Revolving Credit Commitments shall have been terminated. No termination of this
Agreement shall affect the rights and obligations of the parties hereto arising
prior to such termination.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
RICHFOOD HOLDINGS, INC.,
as Borrower
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
[Remainder of this page intentionally left blank]
CRESTAR BANK, as Syndication
Agent and Lender
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
[Remainder of this page intentionally left blank]
SUNTRUST BANK, ATLANTA, as
Documentation Agent and Lender
By: /s/ Xxxxxx-Xxx X. Hattink
Name: Xxxxxx-Xxx X. Hattink
Title: Group Vice President
By: /s/ Xxx Kometor
Name: Xxx Kometor
Title: Vice President
[Remainder of this page intentionally left blank]
THE FIRST NATIONAL BANK
OF CHICAGO, as Co-Agent and Lender
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
Name: Xxxxxxxxx X. Xxxxxxxxx
Title: Vice President
[Remainder of this page intentionally left blank]
MELLON BANK, N.A., as Lender
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: First Vice President
[Remainder of this page intentionally left blank]
MERCANTILE BANK NATIONAL
ASSOCIATION, as Lender
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
[Remainder of this page intentionally left blank]
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Lender
By: /s/ Xxxxxxxxxxx X. Kuyhardt
Name: Xxxxxxxxxxx X. Kuyhardt
Title: Vice President
[Remainder of this page intentionally left blank]
THE BANK OF NEW YORK, as Lender
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice Pesident
[Remainder of this page intentionally left blank]
WACHOVIA BANK, N.A., as Lender
By: /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
[Remainder of this page intentionally left blank]
#495954V.3
08927.286
Schedule 1
LENDERS AND COMMITMENTS
REVOLVING CREDIT REVOLVING CREDIT
LENDER COMMITMENT PERCENTAGE COMMITMENT
------ --------------------- ----------
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx 27.1428571429% $27,142,857.14
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Crestar Bank
000 Xxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000 13.5714285714% $13,571,428.57
Attention: Xxxxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Mellon Bank, X.X.
Xxxxxx Bank Center
0000 Xxxxxx Xxxxxx, Xxxx 000 7.1428571429% $7,142,857.14
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Mercantile Bank National Association
One Mercantile Center, Tram 00-0
Xx. Xxxxx, Xxxxxxxx 00000 5.7142857143% $5,714,285.71
Attention: Xxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Xxxxxx Guaranty Trust Company of New
York
00 Xxxx Xxxxxx, 00xx Xxxxx 7.1428571429% $7,142,857.14
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Schedule 1
(continued)
LENDERS AND COMMITMENTS
REVOLVING CREDIT REVOLVING CREDIT
LENDER COMMITMENT PERCENTAGE COMMITMENT
------ --------------------- ----------
The Bank of New York
Xxx Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 7.1428571429% $7,142,857.14
Attention: Xxxxx Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000 or 1483
The First National Bank of Chicago
One First National Plaza
Mail Suite 0086 11.4285714286% $11,428,571.43
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
SunTrust Bank
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000 13.5714285714% $13,571,428.57
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Wachovia Bank, N.A.
000 X. Xxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 7.1428571429% $7,142,857.14
27150-7202
Attention: Southeast Corporate
Banking
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Schedule 5.1(a)
JURISDICTIONS OF ORGANIZATION AND QUALIFICATION
Schedule 5.1(b)
SUBSIDIARIES AND CAPITALIZATION
Schedule 5.1(i)
EMPLOYEE BENEFIT PLANS
Schedule 5.1(l)
MATERIAL CONTRACTS
Schedule 5.1(m)
LABOR AND COLLECTIVE BARGAINING AGREEMENTS
Schedule 5.1(t)
DEBT AND GUARANTY OBLIGATIONS
Schedule 9.3
EXISTING LIENS
Schedule 9.6
EXISTING RESTRICTIONS ON DIVIDENDS
EXHIBIT A
REVOLVING CREDIT NOTE
$ _____________________ February 27, 0000
Xxxxxxxx, Xxxxxxxx
FOR VALUE RECEIVED, the undersigned, RICHFOOD HOLDINGS, INC., a
corporation organized under the laws of the Commonwealth of Virginia (the
"Borrower"), promises to pay to the order of
______________________________________________________________ (the "Lender"),
at the times, at the place and in the manner provided in the Credit Agreement
(as hereinafter defined), the principal sum of
_________________________________________ Dollars ($____________), or, if less,
the aggregate unpaid principal amount of all Revolving Credit Loans made by the
Lender under the Credit Agreement, together with interest at the rates as in
effect from time to time with respect to each portion of the principal amount
hereof, determined and payable as provided in Article 3 of the Credit Agreement.
This Note is one of the Revolving Credit Notes referred to in, and is
entitled to the benefits of, the Credit Agreement dated as of February 27, 1998,
by and among the Borrower, the Lenders parties thereto, First Union National
Bank as Administrative Agent, Crestar Bank as Syndication Agent and SunTrust
Bank, Atlanta as Documentation Agent (the "Credit Agreement"). The Credit
Agreement contains, among other things, provisions for the time, place and
manner of payment of this Note, the determination of the interest rate borne by
and fees payable with respect to this Note and the mandatory repayment of this
Note under certain circumstances.
The events of default hereunder are the same as those described in the
Credit Agreement which are incorporated herein by this reference. In the event
of the occurrence of any or all of such events, the entire amount of the
principal of this Note together with all accrued interest may automatically
become or may be declared immediately due and payable in the manner and with the
effect as provided in the Credit Agreement.
The Borrower agrees to pay on demand all costs of collection, including
reasonable attorneys' fees, if any part of this Note, principal or interest, is
collected after maturity with the aid of any attorney.
Presentment, demand, protest and notice of dishonor are hereby waived
by all makers and endorsers hereon.
This Note shall be governed by and construed and enforced in accordance
with the laws of the Commonwealth of Virginia, without reference to the
conflicts or choice of law principles thereof.
A-1
IN WITNESS WHEREOF, the Borrower has caused its name to be signed by
its duly authorized officer as of the day and year first above written.
RICHFOOD HOLDINGS, INC.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
A-2
EXHIBIT B
NOTICE OF REVOLVING CREDIT BORROWING
---------- --, ----
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Revolving Credit Borrowing is delivered to
you under Section 2.2 (a) of the Credit Agreement dated as of February 27, 1998
(as amended or supplemented from time to time, the "Credit Agreement"), by and
among Richfood Holdings, Inc. (the "Borrower"), the Lenders parties thereto (the
"Lenders"), First Union National Bank as Administrative Agent, Crestar Bank as
Syndication Agent and SunTrust Bank, Atlanta as Documentation Agent.
1. The Borrower hereby requests that the Lenders make the Revolving
Credit Loans described below.
2. The Borrower hereby requests that the Lenders make the Revolving
Credit Loans in the aggregate principal amount of $_____________. (For LIBOR
Rate Loans, complete with an amount equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof; and for Base Rate Loans, complete with an amount
equal to $1,000,000 or a whole multiple of $500,000 in excess thereof.)
3. The Borrower hereby requests that the Revolving Credit Loans be made
on the following Business Day: _______________. (Complete with a date at least
one (1) Business Day after the date of this Notice of Revolving Credit Borrowing
for Revolving Credit Loans which are initially to be Base Rate Loans, and at
least three (3) Business Days after the date of this Notice of Revolving Credit
Borrowing for Revolving Credit Loans which are initially to be LIBOR Rate
Loans.)
4. The Borrower hereby requests that the Revolving Credit Loans
initially bear interest at the following interest rate, plus the Applicable
Margin, as set forth below: (check one)
______ Base Rate
______ LIBOR Rate
B-1
5. If the Revolving Credit Loans requested are initially to be LIBOR
Rate Loans, the Borrower hereby requests the following initial Interest Period
with respect thereto: (check one)
_______ 1 month
_______ 2 months
_______ 3 months
_______ 6 months
6. The principal amount of all Revolving Credit Loans outstanding after
giving effect to the Revolving Credit Loans requested hereby will not exceed the
maximum amount permitted to be outstanding pursuant to the terms of the Credit
Agreement.
7. All of the conditions applicable to the Revolving Credit Loans
requested herein as set forth in the Credit Agreement have been satisfied as of
the date hereof and will remain satisfied to the date the requested Revolving
Credit Loans are made.
8. No Default or Event of Default exists, and none will exist upon the
making of the requested Revolving Credit Loans.
9. The representations and warranties of the Borrower described in
Section 4.3(a) of the Credit Agreement are true and correct in all material
respects as of the date hereof and will be true and correct in all material
respects after giving effect to the requested Revolving Credit Loans.
10. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Revolving Credit Borrowing this _____ day of ________________, _____.
RICHFOOD HOLDINGS, INC.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
B-2
EXHIBIT C
NOTICE OF ACCOUNT DESIGNATION
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Syndication Agency Services
Ladies and Gentlemen:
In accordance with the terms of Section 2.2(b) of the Credit Agreement
dated February 27, 1998 (as amended or supplemented from time to time, the
"Credit Agreement"), by and among Richfood Holdings, Inc. (the "Borrower"), the
Lenders parties thereto, First Union National Bank as Administrative Agent,
Crestar Bank as Syndication Agent and SunTrust Bank, Atlanta as Documentation
Agent, the Borrower hereby designates the following account as the account to
which the proceeds of Revolving Credit Loans under the Credit Agreement may be
disbursed:
--------------------------------------
--------------------------------------
--------------------------------------
IN WITNESS WHEREOF, the undersigned has executed this Notice of Account
Designation this _____ day of _______________, 1998.
RICHFOOD HOLDINGS, INC.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
C-1
EXHIBIT D
NOTICE OF PREPAYMENT
---------- --, -----
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you under Section
2.3(c) of the Credit Agreement dated as of February 27, 1998 (as amended or
supplemented from time to time, the "Credit Agreement"), by and among Richfood
Holdings, Inc. (the "Borrower"), the Lenders parties thereto (the "Lenders"),
First Union National Bank as Administrative Agent, Crestar Bank as Syndication
Agent and SunTrust Bank, Atlanta as Documentation Agent.
1. The Borrower hereby gives notice that it will repay Revolving Credit
Loans in an aggregate principal amount of $________. (For LIBOR Rate Loans,
complete with an amount equal to at least $5,000,000 or a whole multiple of
$1,000,000 in excess thereof; and for Base Rate Loans, complete with an amount
equal to $1,000,000 or a whole multiple of $500,000 in excess thereof.)
2. The repayment will be made on the following Business Day:
______________ (Complete with a date at least one (1) Business Day after the
date of this Notice of Prepayment if the Revolving Credit Loans to be repaid are
Base Rate Loans, and at least three (3) Business Days after the date of this
Notice of Prepayment if the Revolving Credit Loans to be repaid are LIBOR Rate
Loans.)
3. The Revolving Credit Loans to be repaid are: (check one or more).
Base Rate Loans in the amount of $____________
LIBOR Rate Loans in the amount of $__________
4. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
D-1
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Prepayment this ____ day of __________________, ______.
RICHFOOD HOLDINGS, INC.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
D-2
EXHIBIT E
NOTICE OF CONVERSION/CONTINUATION
---------- --, ----
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation is delivered to you
under Section 3.2 of the Credit Agreement dated as of February 27, 1998 (as
amended or supplemented from time to time, the "Credit Agreement"), by and among
Richfood Holdings, Inc. (the "Borrower"), the Lenders parties thereto (the
"Lenders"), First Union National Bank as Administrative Agent, Crestar Bank as
Syndication Agent and SunTrust Bank, Atlanta as Documentation Agent.
1. This Notice of Conversion/Continuation is submitted with respect to
Revolving Credit Loans for the purpose of:
(a) [Converting] [continuing] a ________ Loan [into] [as] a
________ Loan.1
(b) The aggregate outstanding principal balance of such Revolving
Credit Loans is $_______________.2
(c) The last day of the current Interest Period for such Revolving
Credit Loans is __________ __, _____.3
(d) The principal amount of such Revolving Credit Loan to be
[converted] [continued] is $____________.4
(e) The requested effective date of the [conversion]
[continuation] of such Revolving Credit Loans is __________
__, _____.5
(f) The requested Interest Period applicable to the [converted]
[continued] Loan is _______________.6
2. No Default or Event of Default exists, and none will exist upon the
conversion or continuation of the Revolving Credit Loans requested herein.
E-1
3. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Conversion/Continuation this ______ day of _______________, ____.
RICHFOOD HOLDINGS, INC.
By:
------------------------------------
Name:
-----------------------------
Title:
-----------------------------
1. Delete the brackets and the bracketed language as appropriate and
insert "Base Rate" or "LIBOR Rate," as applicable, in each blank.
2. Insert the amount of the applicable Loans.
3. Insert applicable date for any LIBOR Rate Loan being converted or
continued.
4. Complete with an amount in compliance with Section 3.2 of the Credit
Agreement.
5. Delete the brackets and bracketed language as appropriate, and complete
with a Business Day at least one (1) Business Day after the date of
this Notice for a continuation of or conversion to a Base Rate Loan and
at least three (3) Business Days after the date of this Notice for a
continuation of or conversion to a LIBOR Rate Loan.
6. Complete for any LIBOR Rate Loan with an Interest Period in compliance
with the definition of Interest Period contained in the Credit
Agreement.
E-2
EXHIBIT F
OFFICER'S COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement dated as of February 27, 1998
(as amended or supplemented from time to time, the "Credit Agreement"), by and
among Richfood Holdings, Inc. (the "Borrower"), the Lenders parties thereto (the
"Lenders"), First Union National Bank as Administrative Agent, Crestar Bank as
Syndication Agent and SunTrust Bank, Atlanta as Documentation Agent. Capitalized
terms which are defined in the Credit Agreement and which are used herein
without definition shall have the same meanings herein as in the Credit
Agreement.
Pursuant to Section 6.2 of the Credit Agreement, ______________, the
duly authorized ____________________ of the Borrower, hereby certifies to the
Administrative Agent and each of the Lenders that the information contained
below is true, accurate and complete for the four-quarter period ending
______________ __, ____, or as of such date, as applicable, and that as of such
date no Default or Event of Default has occurred and is continuing:
Leverage Ratio:
Fixed Charge Coverage Ratio:
[Other Negative Covenants:]
---------------------------------------
(Officer's Signature)
F-1
EXHIBIT G
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of February 27, 1998
(as amended or supplemented from time to time, the "Credit Agreement"), by and
among Richfood Holdings, Inc. (the "Borrower"), the Lenders parties thereto (the
"Lenders"), First Union National Bank as Administrative Agent, Crestar Bank as
Syndication Agent and SunTrust Bank, Atlanta as Documentation Agent. Capitalized
terms which are defined in the Credit Agreement and which are used herein
without definition shall have the same meanings herein as in the Credit
Agreement.
________________________________________________________ (the "Assignor")
and ___________________________________________________ (the "Assignee") agree
as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, as of the Effective
Date (as defined below), a _____% interest (the "Assigned Interest") in and to
the Assignor's Revolving Credit Commitment under the Credit Agreement and the
Assignor thereby retains _____% of its interest therein (the "Retained
Interest"). This Assignment and Acceptance is entered pursuant to, and
authorized by, Section 12.10 of the Credit Agreement.
2. The Assignor (a) represents that, as of the date hereof, (i) its
Revolving Credit Commitment (without giving effect to assignments thereof which
have not yet become effective) under the Credit Agreement, and (ii) the
outstanding balance of its Revolving Credit Loans (unreduced by any assignments
thereof which have not yet become effective) under the Credit Agreement, are
each set forth in Section 2 of Schedule I hereto; (b) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or any other Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto, other than that the Assignor
is the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (c) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or its Subsidiaries or the performance or
observance by the Borrower or its Subsidiaries of any of their obligations under
the Credit Agreement or any other Loan Document; and (d) attaches the Revolving
Credit Note delivered to it under the Credit Agreement and requests that the
Borrower exchange such Note for new Notes payable to each of the Assignor and
the Assignee as follows:
G-1
Revolving Credit Note
Payable to the Order of: Principal Amount of Note:
----------------------------------- $---------------
----------------------------------- $---------------
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.1 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (c)
agrees that it will, independently and without reliance upon the Assignor or any
other Lender or the Administrative Agent 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 the Credit Agreement; (d)
confirms that it is an Eligible Assignee; (e) appoints and authorizes the
Administrative Agent to take such action as Agent on its behalf and to exercise
such powers under the Credit Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (f) agrees that it will perform in
accordance with their terms all the obligations which by the terms of the Credit
Agreement and the other Loan Documents are required to be performed by it as a
Lender; and (g) agrees that it will keep confidential all non-public information
with respect to the Borrower obtained pursuant to the Loan Documents in
accordance with Section 12.10(g) of the Credit Agreement.
4. The effective date for this Assignment and Acceptance shall be as
set forth in Section 1 of Schedule I hereto (the "Effective Date"). Following
the execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent [and the Borrower] for consent thereby and acceptance and
recording in the Register.
5. Upon such consents, acceptance and recording, from and after the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and
the other Loan Documents to which Lenders are parties and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Lender under each such agreement, and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement and the other Loan
Documents.
6. Upon such consents, acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments with respect to
the interest assigned hereby (including payments of principal, interest, fees
and other amounts) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
G-2
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT REGARD TO
CONFLICT OF LAW PRINCIPLES.
ASSIGNOR
-------------------------------------------
By:
----------------------------------------
Title:
-------------------------------------
ASSIGNEE
-------------------------------------------
By:
----------------------------------------
Title:
-------------------------------------
Consented to and Accepted:
FIRST UNION NATIONAL BANK,
as Administrative Agent
By:
----------------------------------------
Title:
-------------------------------------
[RICHFOOD HOLDINGS, INC.
By:
----------------------------------------
Title:
-------------------------------------
G-3
SCHEDULE I TO ASSIGNMENT AND ACCEPTANCE
1. Effective Date: ________________ __, ____
2. Assignor's Revolving Credit Commitment $____________
Assignor's Outstanding Revolving Credit Loans $____________
G-4
