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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT: OCTOBER 9, 1998
(DATE OF EARLIEST EVENT REPORTED: SEPTEMBER 28, 1998)
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KEEBLER FOODS COMPANY
(Exact name of Registrant as specified in its charter)
DELAWARE NO. 001-13705 36-3839556
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
677 LARCH AVE., ELMHURST, IL 60126
(Address of principal executive offices)
630-833-2900
(Registrant's telephone number, including area code)
NOT APPLICABLE.
(Former name or former address,
if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On September 28, 1998, Keebler Foods Company, a Delaware corporation
("Keebler"), purchased all of the issued and outstanding shares of common stock
of President International, Inc., a Delaware corporation ("PII"), the parent and
sole owner of President Baking Company, Inc. ("President") from President
International Trade and Investment Corporation, a company limited by shares
under the International Business Companies Ordinance of the British Virgin
Islands ("Parent") for an aggregate purchase price of $450.0 million subject to
post-closing adjustments.
The funds used to consummate the acquisition came from both existing
cash resources and from borrowings under the $700.0 million Senior Credit
Facility Agreement dated as of September 28, 1998 among Keebler, various
financial institutions, and the Bank of Nova Scotia ("BNS"), as the Lead
Arranger and Administrative Agent, The First National Bank of Chicago, as the
Syndication Agent, and the Bank of Montreal, as the Managing Agent. Keebler
financed the transaction using existing cash resources of approximately $75.0
million, and borrowings of $350.0 million under a BNS Term Loan, $105.0 million
under a BNS Revolver, and $75.0 million under a BNS Bridge Facility. In
conjunction with this acquisition, Keebler extinguished its outstanding Term A
Note plus accrued interest and bank fees in the amount of $146.1 million.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements of Business Acquired:
To be filed by Amendment not later than December 11, 1998.
(b) Pro Forma Financial Information:
To be filed by Amendment not later than December 11, 1998.
(c) EXHIBITS
EXHIBIT NO. DOCUMENT
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2.2 Stock Purchase Agreement dated as of August 24,
1998 between Keebler Foods Company and President
International, Inc.
10.33 $700,000,000 Senior Credit Facility dated as of
September 28, 1998 among Keebler, various
financial institutions, and the Bank of Nova
Scotia, as the Lead Arranger and Administrative
Agent, The First National Bank of Chicago, as
the Syndication Agent, and the Bank of
Montreal, as the Managing Agent.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
KEEBLER FOODS COMPANY
By: /s/ JAMES T. SPEAR
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Name: James T. Spear
Title: Vice President Finance and Corporate Controller
(Chief Accounting Officer)
Date: October 9, 1998
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EXHIBIT INDEX
EXHIBIT NO. DOCUMENT
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2.2 Stock Purchase Agreement dated as of August
24, 1998 between Keebler Foods Company and
President International, Inc.
10.33 $700,000,000 Senior Credit Facility dated as of
September 28, 1998 among Keebler, various
financial institutions, and the Bank of Nova
Scotia, as the Lead Arranger and Administrative
Agent, The First National Bank of Chicago, as
the Syndication Agent, and the Bank of
Montreal, as the Managing Agent.
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EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of August
24, 1998, by and among Keebler Foods Company, a Delaware corporation ("Buyer"),
President International, Inc., a Delaware corporation (the "Company"), and
President International Trade and Investment Corporation, a company limited by
shares under the International Business Companies Ordinance of the British
Virgin Islands ("Parent" and, together with the Company, "Seller").
WITNESSETH:
WHEREAS, Parent owns all of the issued and outstanding shares of
common stock, $.01 par value, of the Company;
WHEREAS, Parent desires to sell to Buyer, and Buyer desires to
purchase from Parent, all of the issued and outstanding shares of common stock,
$.01 par value, of the Company (collectively, the "Shares").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto,
on the basis of, and in reliance upon, the representations, warranties,
covenants, obligations and agreements set forth in this Agreement, and upon the
terms and subject to the conditions contained herein, hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 DEFINITIONS. In this Agreement, the following terms
have the meanings specified or referred to in this SECTION 1.1 and shall be
equally applicable to both the singular and plural forms. Any agreement
referred to below shall mean such agreement as amended, supplemented and
modified from time to time to the extent permitted by the applicable provisions
thereof and by this Agreement.
"ACCOUNTANTS" means the New York, New York office of Arthur
Andersen LLP, or any other independent accounting firm of nationally recognized
standing mutually acceptable to Parent and Buyer.
"ACTION" shall mean any civil, criminal or administrative action,
proceeding or suit or any appeal in respect thereof.
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"AFFILIATED PARTIES" shall have the meaning specified in SECTION
5.9.
"AGREEMENT" means this Stock Purchase Agreement.
"ANTITRUST DIVISION" means the Antitrust Division of the United
States Department of Justice.
"AUDITED FINANCIAL STATEMENTS" shall have the meaning specified in
SECTION 3.7.
"AUTHORITY" means any governmental, regulatory or administrative
body, agency or authority, any court of judicial authority or any arbitrator,
whether foreign, federal, state or local.
"BANKRUPTCY EXCEPTION" has the meaning specified in SECTION
3.3(a).
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday,
or a day on which banks in New York, New York are authorized or obligated by Law
or executive order to close.
"BUYER" means Keebler Foods Company, a Delaware corporation.
"CASH ESCROW AMOUNT" shall mean an amount equal to Five Million
Dollars ($5,000,000), together with all interest and earnings thereon.
"CASH INDEMNIFICATION ESCROW AGREEMENT" shall mean the Cash
Indemnification Escrow Agreement between Buyer and Seller in substantially the
form of EXHIBIT A attached hereto.
"CAPITALIZED LEASE AMOUNT" shall mean the aggregate present value
of all unpaid rental obligations of the Company (or its Subsidiaries) under the
equipment leases for the Lake Bluff automated brownie line and the Louisville
automated mint line as of the Closing Date, through the end of the current term
of each such lease; such present value to be computed using a per annum discount
rate of seven and one-half percent (7 1/2%).
"CLOSING" has the meaning specified in SECTION 2.3.
"CLOSING BALANCE SHEET" has the meaning specified in SECTION
2.2(d).
"CLOSING DATE" has the meaning specified in SECTION 2.3.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMON STOCK" means common stock of the Company, $0.01 par value,
of the Company.
"COMPANY" means President International, Inc., a Delaware
corporation.
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"COMPANY SALE" has the meaning specified in SECTION 5.9.
"COMPENSATION AND BENEFIT PLANS" shall have the meaning specified
in SECTION 3.15(a).
"COMPETING BUSINESS" shall have the meaning specified in SECTION
3.18(a).
"CONFIDENTIALITY AGREEMENT" means that certain Confidentiality
Agreement dated July 24, 1998, by and among Buyer and Parent.
"CONTRACT" shall mean any agreement, contract, license, lease,
sublease, binding arrangement or commitment, or other similar agreement.
"DEBT AMOUNT" shall mean all Indebtedness as of the Closing Date,
and any accrued interest, prepayment penalties, fees, costs and other charges
related thereto, but excluding all intercompany debt owed among the Company and
its Subsidiaries, all obligations under interest rate swap arrangements and all
Letter of Credit Obligations.
"EMPLOYEES" has the meaning specified in SECTION 3.15(a).
"ENCUMBRANCE" means any lien (statutory or other), claim, charge,
security interest, mortgage, pledge, hypothecation, assignment, encumbrance,
preference, priority, reversionary interest, easement, conditional sale or other
title retention agreement, defect in title or other restrictions of a similar
kind.
"ENVIRONMENTAL LAW" shall mean all applicable federal, state or
local statutes, regulations, rules, permits and orders of any Authority
relating to the protection of human health and the environment, soil, surface
waters, groundwaters, land, stream sediments, surface or subsurface strata,
ambient air, and any environmental medium existing as of the date hereof.
Environmental Law shall include, but not be limited to, the following: the
Comprehensive Environmental Response, Compensation, and Liability Act (42
U.S.C. sections 9601, ET SEQ.) ("CERCLA"), as amended by the Superfund
Amendments and Reauthorization Act, Public Law 99-499, 100 Stat. 1613; the
Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery
Act, 42 U.S.C. sections 6901, ET SEQ.; the Toxic Substances Control Act, 15
U.S.C. sections 2601, ET SEQ.; the Federal Water Pollution Control Act, 33
U.S.C. sections 1251, ET SEQ.; the Clean Air Act, 42 U.S.C. sections 7401, ET
SEQ.; the Safe Drinking Water Act, 42 U.S.C. section 300f-300j; and the state
and local analogs thereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ESCROW AGENT" shall mean a bank of nationally recognized
standing, whose principal office shall be in New York, New York (but who shall
maintain the Cash Escrow Amount in an offshore account provided cash funds are
available in New York, New York upon a draw made upon its New York, New York
office), mutually acceptable to Seller and Buyer.
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"ESTIMATED BALANCE SHEET" has the meaning specified in SECTION
2.2(b).
"EXPENSES" mean any and all reasonable expenses incurred in
connection with investigating, defending or asserting any Action incident to any
matter indemnified against hereunder (including, without limitation, court
filing fees, court costs, arbitration fees or costs, witness fees and reasonable
fees and disbursements of legal counsel, investigators, expert witnesses,
accountants and other professionals).
"FTC" shall mean the Federal Trade Commission.
"GAAP" shall mean generally accepted accounting principles in the
United States consistently applied and as in effect on December 27, 1997. More
specifically, as relates to financial statements of the Company as of any date
and for any period ending subsequent to December 27, 1997, GAAP shall exclude
the effects of any changes in accounting principles otherwise required to be
adopted subsequent to December 27, 1997 pursuant to new or existing standards,
interpretations or other pronouncements promulgated by the Financial Accounting
Standards Board, American Institute of CPA's, Securities and Exchange
Commission, Emerging Issues Task Force or any committees thereof. With respect
to the Closing Balance Sheet, GAAP shall have the same meaning as set forth
above and shall be applied on the same basis as that utilized in preparation of
the December 27, 1997 consolidated balance sheet of the Company as though the
Closing Date were a normal fiscal year end date of the Company.
"GOVERNMENTAL PERMITS" have the meaning specified in SECTION 3.10.
"HAZARDOUS SUBSTANCE" shall mean any substance: (i) the presence
of which requires investigation or remediation under any federal, state or local
statute, regulation, ordinance, order, permit or Action; (ii) which is or has
been identified as a hazardous waste, hazardous substance, pollutant or
contaminant under any applicable Environmental Law, or (iii) which is toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic, reactive, or otherwise hazardous and has been identified as regulated
under any Environmental Law.
"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended.
"INCOME TAX" means any federal, state or local income,
alternative, minimum, franchise or other similar tax, duty, governmental charge
or assessment imposed by or on behalf of any Authority that is based on or
measured by income (including, interest and penalties on any of the foregoing).
"INDEBTEDNESS" means all indebtedness for borrowed money by the
Company and its Subsidiaries calculated in accordance with GAAP, including (i)
prepayment penalties, fees, costs or charges payable in connection with the
retirement of such indebtedness as of the Closing, and (ii) obligations
evidenced by bonds, debentures, notes or similar instruments, but excluding
obligations under capitalized or other leases regardless of how classified under
GAAP or by the Company, and excluding all Letter of Credit Obligations (which
shall be the responsibility of
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Buyer, including without limitation, the portion of the Company's senior
debt facility related thereto).
"INDEMNIFICATION ESCROW AGREEMENTS" shall mean collectively the
Cash Indemnification Escrow Agreement, Supplemental Letter of Credit
Indemnification Escrow Agreement and the Tax Letter of Credit Indemnification
Escrow Agreement.
"INDEMNIFIED PARTY" shall have the meaning specified in SECTION
8.3(b).
"INDEMNIFYING PARTY" shall have the meaning specified in SECTION
8.3(a).
"INTELLECTUAL PROPERTY" shall have the meaning specified in
SECTION 3.11.
"INTERIM BALANCE SHEET" shall have the meaning specified in
SECTION 3.7 hereof.
"INTERIM FINANCIAL STATEMENTS" shall have the meaning specified in
SECTION 3.7 hereof.
"IRS" shall mean the United States Internal Revenue Service.
"KNOWLEDGE OR KNOWN" with respect to any Person, shall mean the
actual conscious awareness of such Person, and Knowledge or Known as to Seller
shall mean such awareness of Eric H. Wen, Steven B. Woolf, William G. Bayers,
Jerry Cavitt, Gerald V. DeFalco, Emmett E. Watson, Wendell Horner, Donald W.
Davis, Jr., Mark Murphy and Forest Ralph.
"LABOR DISPUTES" shall have the meaning specified in SECTION
3.20(b).
"LAW" shall mean any law, rule, regulation, order, ordinance,
requirement, treaty, statute or code or other binding action, requirement or
ruling of an Authority, other than any Environmental Law.
"LEASED REAL PROPERTY" means those certain parcels of land more
fully described on SCHEDULE 3.12 to this Agreement under the heading "Leased
Real Property."
"LETTER OF CREDIT BANK" shall mean a bank of nationally recognized
standing with not less than an "A" rating having combined capital and surplus of
not less than $300,000,000 and an office in New York, New York, mutually
acceptable to Seller and Buyer.
"LETTER OF CREDIT OBLIGATIONS" shall mean all reimbursement
obligations of the Company in respect of letters of credit issued in connection
with distributor loans.
"LIABILITY" shall mean any debt, liability, commitment or
obligation of any kind, character or nature whatsoever, known or unknown,
secured or unsecured, accrued, fixed, absolute, contingent, and whether due or
to become due.
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"LICENSES" means all licenses, franchises, certifications,
authorizations, approvals and permits issued or approved by any Authority and
relating to the operation, ownership, development and maintenance of the Real
Property or any part thereof, including elevator permits, machinery permits,
business licenses, ingress and egress permits and the like.
"LOSSES" mean any and all losses, costs, obligations, liabilities,
settlement payments, awards, judgments, fines, penalties, damages, expenses,
deficiencies or other charges.
"LTIP AMOUNT" shall mean all liabilities incurred in respect of
the sale of the Shares under the Company's 1998 Long-Term Incentive Plan
calculable as of the Closing Date.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
assets, business (including current business and prospects for continuation of
current business) or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole.
"MATERIAL CONTRACTS" has the meaning specified in SECTION 3.14(a).
"MULTIEMPLOYER PLAN" shall have the meaning specified in SECTION
3.15(a).
"NET WORKING CAPITAL" shall mean all current assets of the Company
and its Subsidiaries (excluding only cash and amounts owed to the Company or any
Subsidiary from Parent, any Subsidiary or the Company), MINUS all current
liabilities of the Company and its Subsidiaries (excluding amounts owed by the
Company or any Subsidiary to any Subsidiary, the Company or Parent), in each
case determined in accordance with GAAP, as further qualified by this
definition. Current liabilities of the Company and its Subsidiaries shall not
include any liability to the extent included in the Capitalized Lease Amount,
the Debt Amount, the LTIP Amount or the Tax Amount. Current liabilities shall
not include liabilities unknown to Seller or incurred out of the Ordinary Course
of Business, the existence of either of which constitutes the breach of any
representation or warranty contained in ARTICLE III whether or not giving effect
to any qualification contained therein as to materiality, Knowledge or by
reference to any Schedule. Current liabilities shall not include any reserves or
accruals for environmental liabilities of any nature. All reserves and other
accounts based on estimates shall be calculated in the same manner and shall be
based upon similar types of information, as was used by the Company in the
preparation of the Audited Financial Statements; PROVIDED THAT such calculation
shall not include the effects of any reversal or dimunition of such reserves
from those included in the June 27, 1998 balance sheet of the Company, except to
the extent of actual charges incurred in the Ordinary Course of Business.
Current assets and current liabilities shall include for purposes of the
computation of Net Working Capital, (i) any accelerated bonus payments made by
the Company at or immediately prior to Closing under the Company's Management
Incentive Plan, and (ii) Taxes other than Income Taxes (but only to the extent
historically included).
"NET WORKING CAPITAL DEFICIT" means the excess, if any, of (i) (A)
Thirty-Seven Million and One Hundred Thousand Dollars ($37,100,000), LESS (B)
the Swap Adjustment Amount, LESS (ii) the Net Working Capital as of the date of
the Closing Balance Sheet.
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"NET WORKING CAPITAL EXCESS" means the excess, if any, of (i) the
Net Working Capital as of the date of the Closing Balance Sheet, LESS (ii) (A)
Thirty-Seven Million and One Hundred Thousand Dollars ($37,100,000), LESS (B)
the Swap Adjustment Amount.
"ORDER" shall mean any award, decision, injunction, judgment,
decree, stipulation, settlement, order, filing, subpoena, consent or verdict
(whether temporary, preliminary or permanent) entered, issued, made or rendered
by any Authority against the Company or its Subsidiaries.
"ORDINARY COURSE OF BUSINESS" shall mean in the ordinary course of
the Company's or any Subsidiary's business, in a manner consistent with its past
practice or in a manner the Company believes is in the commercial best interests
of the Company (including without limitation with respect to the purchase,
development and maintenance of inventory of a quantity and type to enable the
Company and its Subsidiaries to fulfill their respective obligations under
Contracts with Girl Scouts Councils in a full and timely manner).
"ORGANIZATIONAL DOCUMENTS" shall mean, collectively, a true,
complete and correct copy of the Certificate of Incorporation (or comparable
governing document) and By-laws, each as amended to date, of a party as
indicated herein.
"OWNED REAL PROPERTY" means those certain parcels of land more
fully identified on SCHEDULE 3.12 to this Agreement under the heading "Owned
Real Property," together with all privileges and appurtenances thereto and all
plants, buildings, structures, fixtures and improvements, together with all
easements and rights-of-way granted to the Company and its Subsidiaries in
connection therewith.
"PENSION PLAN" shall have the meaning specified in SECTION
3.15(a).
"PERMITTED ENCUMBRANCES" means (a) Encumbrances for Taxes and
other governmental charges and assessments for the year 1998 which are not yet
due and payable, (b) Encumbrances of landlords and liens of carriers,
warehousemen, mechanics and materialmen and other like liens arising in the
Ordinary Course of Business for sums not yet due and payable, (c) other
Encumbrances on property which are not material in amount or do not materially
detract from the value of or materially impair the existing use of the property
affected by such Encumbrance and (d) all Encumbrances in favor of Chase
Manhattan Bank, N.A., as agent for the Company's senior lenders.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or Authority.
"PRELIMINARY CAPITALIZED LEASE AMOUNT" means the Capitalized Lease
Amount as computed pursuant to SECTION 2.2(b).
"PRELIMINARY DEBT AMOUNT" means the Debt Amount as computed
pursuant to SECTION 2.2(b).
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"PRELIMINARY LTIP AMOUNT" means the LTIP Amount computed pursuant
to SECTION 2.2(b).
"PRELIMINARY NET WORKING CAPITAL DEFICIT" means the excess, if
any, of (i) (A) Thirty-Seven Million and One Hundred Thousand Dollars
($37,100,000), LESS (B) the Swap Adjustment Amount, LESS (ii) the Net Working
Capital as reflected on the Estimated Balance Sheet.
"PRELIMINARY NET WORKING CAPITAL EXCESS" means the excess, if any,
of (i) the Net Working Capital as reflected on the Estimated Balance Sheet, LESS
(ii) (A) Thirty-Seven Million and One Hundred Thousand Dollars ($37,100,000),
LESS (B) the Swap Adjustment Amount.
"PRELIMINARY PURCHASE PRICE" shall have the meaning set forth in
SECTION 2.2(c).
"PRELIMINARY TAX AMOUNT" means the Tax Amount as reflected on the
Estimated Balance Sheet.
"PROPOSED FINAL PURCHASE PRICE" has the meaning specified in
SECTION 2.2(d).
"PURCHASE PRICE" has the meaning specified in SECTION 2.2(a).
"PURCHASE PRICE CERTIFICATE" has the meaning specified in SECTION
2.2(d).
"REAL PROPERTY" means, collectively, the Owned Real Property and
the Leased Real Property.
"SHARES" means all of the issued and outstanding shares of Common
Stock.
"SUBSIDIARY" shall mean with respect to any Person, any
corporation or other entity of which such Person has, directly or indirectly,
ownership of securities or other interests having the power to elect a majority
of such corporation's Board of Directors (or similar governing body), or
otherwise having the power to direct the business and policies of that
corporation, and with respect to the Company shall include the corporations
listed on SCHEDULE 3.1, but in no event shall include the Company's interests in
the Shanghai and Tainjin joint ventures.
"SUPPLEMENTAL LETTER OF CREDIT" shall mean the irrevocable letter
of credit issued by the Letter of Credit Bank and required to be delivered to
the Escrow Agent pursuant to the Supplemental Letter of Credit Indemnification
Escrow Agreement.
"SUPPLEMENTAL LETTER OF CREDIT ESCROW AMOUNT" shall mean Five
Million Dollars ($5,000,000), as may be adjusted in accordance with SECTION
6.2(a).
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"SUPPLEMENTAL LETTER OF CREDIT INDEMNIFICATION ESCROW AGREEMENT"
shall mean the Supplemental Letter of Credit Indemnification Escrow Agreement
substantially in the form of EXHIBIT B attached hereto.
"SWAP ADJUSTMENT AMOUNT" means the lesser of (i) $250,000, OR (ii)
the sum of all fees, penalties, costs and expenses incurred by the Company in
connection with the termination of the interest rate swap agreements as required
pursuant to SECTION 5.12.
"TAX AMOUNT" means all obligations as of the Closing Date as
accrued through such date of the Company and its Subsidiaries for Income Taxes
for periods ending on or before the Closing Date after giving effect to all Tax
write offs, benefits, deductions, credits and related Tax effects associated
with any payments actually made on, before or simultaneously with the Closing,
including without limitation, (i) the payment of accelerated bonuses by the
Company at or immediately prior to Closing under the Company's Management
Incentive Plan; (ii) all payments made by the Company in respect of the
termination of interest rate swap agreements at or prior to Closing as required
under SECTION 5.12; and (iii) the retirement of the Debt Amount.
"TAX(ES)" shall mean all federal, state, local or foreign income,
capital gains, gross receipts, windfall or excess profits, severance, property,
production, sales, use, license, excise, franchise, employment, withholding,
goods and services, stamp, occupation, value added or other tax or customs
duties, together with any interest, additions or penalties with respect thereto
and any interest in respect of such additions or penalties.
"TAX LETTER OF CREDIT" shall mean the irrevocable letter of credit
issued by the Letter of Credit Bank and required to be delivered to the Escrow
Agent pursuant to the Tax Letter of Credit Indemnification Escrow Agreement.
"TAX LETTER OF CREDIT ESCROW AMOUNT" shall mean Five Million
Dollars ($5,000,000).
"TAX LETTER OF CREDIT INDEMNIFICATION ESCROW AGREEMENT" shall mean
the Tax Letter of Credit Indemnification Escrow Agreement between Buyer and
Seller substantially in the form of EXHIBIT C attached hereto.
"TAX RETURN" means any return, report or similar statement
required to be filed with respect to any Tax (including any attached schedules),
including, without limitation, any information return, claim for refund, amended
return and declaration of estimated Tax.
"TAX WITHHOLDING" shall have the meaning specified in SECTION
5.10.
"TRADE SECRETS" shall have the meaning specified in SECTION 3.11.
"WARN ACT" shall mean the Worker Adjustment and Retraining
Notification Act of 1988, as amended.
"WELFARE PLAN" shall have the meaning specified in SECTION
3.15(a).
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ARTICLE II
PURCHASE AND SALE OF SHARES
SECTION 2.1 PURCHASE AND SALE OF SHARES. Subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties, covenants and agreements made by each party hereto, at the
Closing, Parent shall sell, assign, transfer, convey and deliver to Buyer, and
Buyer shall purchase from Parent, the Shares, free and clear of any
Encumbrances.
SECTION 2.2 PURCHASE PRICE.
(a) CONSIDERATION. In full consideration for the sale and purchase of the
Shares, Buyer shall pay to Parent, in the manner set forth in this SECTION 2.2,
subject to the adjustments set forth herein, an aggregate purchase price (the
"PURCHASE PRICE") equal to Four Hundred Fifty Million Dollars ($450,000,000),
PLUS (A) the Net Working Capital Excess, if any, or MINUS (B) the Net Working
Capital Deficit, if any, as the case may be. The actual consideration to be
paid to Parent shall be the Purchase Price LESS each of the Debt Amount, the
LTIP Amount, the Capitalized Lease Amount, and the Tax Amount.
(b) PRELIMINARY PURCHASE PRICE. On each Tuesday commencing on September 22,
1998, the Company shall prepare and deliver to Buyer (i) an unaudited
consolidated balance sheet of the Company prepared in accordance with GAAP,
estimated as of the Saturday prior to the Closing Date, pro forma as to, and
giving effect for, any transactions or operations anticipated to occur
subsequent to its preparation but on or before the Closing Date (the "ESTIMATED
BALANCE SHEET"), and (ii) a calculation of (A) Net Working Capital, (B) the
Debt Amount, (C) the LTIP Amount, (D) the Capitalized Lease Amount, and (E) the
Tax Amount; PROVIDED that the Company shall not be required to so deliver an
Estimated Balance Sheet in the event the Company does not reasonably anticipate
that Closing will occur the following week but in any event shall be required
to deliver an Estimated Balance Sheet at least three (3) Business Days prior to
the Closing Date.
(c) PAYMENT OF PRELIMINARY PURCHASE PRICE. At the Closing, the Buyer shall
deliver:
(i) to Parent by wire transfer of immediately available federal funds
to an account designated by Parent, an aggregate amount equal to (A) Four
Hundred Forty-Five Million Dollars ($445,000,000), MINUS (B) the
Preliminary Net Working Capital Deficit (if any), PLUS (C) the Preliminary Net
Working Capital Excess (if any), MINUS (D) the Preliminary Debt Amount, MINUS
(E) the Preliminary LTIP Amount, MINUS (F) the Preliminary Capitalized Lease
Amount, MINUS (G) the Preliminary Tax Amount; and
(ii) to the Escrow Agent, the Cash Escrow Amount to be held in an
escrow account pursuant to the terms of the Cash Indemnification Escrow
Agreement (the aggregate amount payable pursuant to this SECTION 2.1(c) is the
"PRELIMINARY PURCHASE PRICE").
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(d) ADJUSTMENT TO PURCHASE PRICE. No later than thirty (30) days after the
Closing Date, Buyer shall prepare and deliver to Parent (i) an unaudited
consolidated balance sheet of the Company as of the Saturday prior to the
Closing Date prepared in accordance with GAAP, giving effect for any
transactions or operations occurring on or before the Closing Date (the
"CLOSING BALANCE SHEET"), (ii) a calculation of (A) Net Working Capital, (B)
the Debt Amount, (C) the LTIP Amount, (D) the Capitalized Lease Amount and (E)
the Tax Amount, in each case as of the Closing Date and (iii) a certificate
(the "PURCHASE PRICE CERTIFICATE") setting forth a proposed final Purchase
Price subject to the adjustments provided in SECTION 2.2(a) (the "PROPOSED
FINAL PURCHASE PRICE") which shall be calculated as (A) Four Hundred Fifty
Million Dollars ($450,000,000), MINUS (B) the Working Capital Deficit (if any),
PLUS (C) the Net Working Capital Excess (if any), MINUS (D) the Debt Amount,
MINUS (E) the LTIP Amount, MINUS (F) the Capitalized Lease Amount, MINUS (G)
the Tax Amount. Buyer will furnish and cause the Company to furnish to Parent
and its advisors access (and if requested, copies) of such documents, financial
records, work papers, financial management personnel and other information as
Parent may request that are available to or obtainable by Buyer or the Company
and reasonably deemed relevant by Parent to the preparation of the Closing
Balance Sheet and Purchase Price Certificate. If within thirty (30) days
following delivery of the Closing Balance Sheet and the Purchase Price
Certificate, Parent has not given Buyer written notice of its objection thereto
(such notice must contain a statement of the basis of Parent's objection), then
Parent shall be deemed to have accepted and agreed to the Closing Balance Sheet
and the Purchase Price Certificate, and the Proposed Final Purchase Price shall
be deemed to be the Purchase Price as required to be adjusted per SECTION
2.2(a). If Parent gives such notice of objection, then Buyer and Parent shall
cooperate with each other in an effort to come to an agreement on the matters
which are in dispute. If such dispute cannot be resolved within thirty (30)
days of Buyer's receipt of Parent's notice of objection, then the issues in
dispute will be submitted to the Accountants for resolution. If issues in
dispute are submitted to the Accountants for resolution, (i) each party will be
afforded the opportunity to present to the Accountants any material relating to
the determination and to discuss the determination with the Accountants; (ii)
the determination by the Accountants, as set forth in a notice delivered to
both parties by the Accountants, will be binding and conclusive on the parties;
and (iii) Buyer and Parent will each bear one-half (1/2) of the fees and
expenses of the Accountants for such determination. The Final Purchase Price
shall be deemed to be the final Purchase Price (subject to and as required to
be adjusted pursuant to SECTION 2.2(a)) determined in accordance with this
SECTION 2.2(d), whether by the failure of Parent to provide a notice of
objection to the Proposed Final Purchase Price, by resolution of all disputes
by Buyer and Parent or by determination of the Accountants.
(e) POST-CLOSING PAYMENT. On the tenth (10th) Business Day following the final
determination of the Closing Balance Sheet and the Purchase Price as provided
hereinabove, if the Purchase Price as required to be adjusted per SECTION 2.2(a)
(as determined in accordance with SECTION 2.2(d)) is greater than the
Preliminary Purchase Price, Buyer will pay the difference to Parent, and if the
Purchase Price as required to be adjusted per SECTION 2.2(a) (as determined in
accordance with SECTION 2.2(d)) is less than the Preliminary Purchase Price,
Parent will pay the difference to Buyer. Payment must be made in immediately
available federal funds. Payment to Parent must be made in the manner set forth
in SECTION 2.2(c)(i). Payment to Buyer must be made by wire transfer to such
bank account as Buyer will specify. During the period from the Closing
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Date until payment of the Purchase Price as provided in this SECTION 2.2(e),
Parent and Buyer shall each maintain available cash or account balances of at
least $5,000,000 in a bank of nationally recognized standing whose principal
office shall be in New York, New York (but Parent may maintain such balance in
an offshore account provided the cash funds are available in New York, New
York) and each shall provide the other with account statements or other
documentation on a monthly basis evidencing compliance with this covenant.
SECTION 2.3 CLOSING. The closing of the purchase and sale of the
Shares and the other transactions provided for herein to occur coincident
therewith (the "CLOSING") shall occur on the Closing Date at the offices of
Winston & Strawn, New York, New York, commencing at 10:00 a.m. Eastern Time,
unless another date, time or place is mutually agreed to by Parent and Buyer.
The "CLOSING DATE" shall mean the later of (i) September 28, 1998 or (ii) the
first Monday which is a Business Day subsequent to satisfaction or waiver of
the closing condition set forth in SECTION 6.3 or such other date as Buyer and
Parent may mutually agree in writing, in either case, upon which date the
parties agree to effect the Closing.
SECTION 2.4 DELIVERIES BY SELLER. On the Closing Date, Seller shall
deliver, or cause to be delivered, to Buyer the following:
(a) a certificate or certificates evidencing all of the Shares, duly
endorsed or accompanied by stock powers executed in blank;
(b) (i) the certificate of incorporation of the Company and each of its
Subsidiaries certified by the Secretary of State of the State of Delaware as of
a date subsequent to the date hereof and (ii) the by-laws of the Company
certified by the Secretary or an Assistant Secretary of the Company as of the
Closing Date;
(c) certificates of good standing for the Company from the State of
Delaware and for each of its Subsidiaries in their respective jurisdictions of
incorporation;
(d) (i) the memorandum of association of Parent certified by the
appropriate governmental agency of the British Virgin Islands as of a date
subsequent to the date hereof and (ii) the articles of association of Parent
certified by the Secretary or an Assistant Secretary of Parent as of the
Closing Date;
(e) certificate of good standing (or comparable equivalent) for Parent
from its jurisdiction of incorporation to the extent such certificate is
issuable by such jurisdiction;
(f) the legal opinion of Jones, Day, Reavis & Pogue, counsel for Parent
and the Company, substantially in the proposed form attached hereto as EXHIBIT
2.4(f), and in respect of matters concerning the British Virgin Islands, the
legal opinion of counsel qualified to practice law in such jurisdiction;
(g) a copies of the Cash Indemnification Escrow Agreement, Supplemental
Letter of Credit Indemnification Escrow Agreement and Tax Letter of Credit
Indemnification Escrow Agreement duly executed by Parent;
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(h) copies of the resolutions of the Board of Directors of the Company
and Parent authorizing the execution, delivery and performance of this
Agreement and certificates of the Secretary or any Assistant Secretary of
Parent and the Company, as the case may be, dated as of the Closing Date, to
the effect that such resolutions were duly adopted and are in full force and
effect;
(i) the resignations of all directors of the Company;
(j) pay off letters from the Company's lenders with respect to the Debt
Amount in customary form reasonably satisfactory to Buyer;
(k) a copy of the Supplemental Letter of Credit and Tax Letter of
Credit; and
(l) an executed indemnity side letter by President Enterprises Corp.
for the benefit of Buyer indemnifying Buyer for any and all Tax Liabilities
associated with the operation or disposition of the Shanghai and Tainjin joint
ventures, and any payments owing to Buyer pursuant to SECTION 2.2(d), in the
form attached hereto as EXHIBIT 2.4(l).
SECTION 2.5 DELIVERIES BY BUYER. On the Closing Date, Buyer shall
deliver to Parent the following:
(a) the Preliminary Purchase Price in accordance with SECTION 2.2(c);
(b) the legal opinion of Winston & Strawn, special counsel for Buyer,
substantially in the form attached hereto as EXHIBIT 2.5(b);
(c) the certificate of incorporation of Buyer certified by the
Secretary of State of the State of Delaware as of a date subsequent to the date
hereof;
(d) copies of the Cash Indemnification Escrow Agreement, Supplemental
Letter of Credit Indemnification Escrow Agreement and Tax Letter of Credit
Indemnification Escrow Agreement duly executed by Buyer; and
(e) copies of the resolutions of the Board of Directors and a
certificate of the Secretary or an Assistant Secretary of Buyer dated as of the
Closing Date, to the effect that such resolutions were duly adopted and are in
full force and effect.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
PARENT AND THE COMPANY
As an inducement to Buyer to enter into this Agreement and consummate
the transactions contemplated hereby, and in consideration of the covenants of
Buyer contained herein, Parent and the Company, jointly and severally, represent
and warrant to, and for the
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benefit of, Buyer as set forth hereinbelow. All references to the Company
unless the context requires otherwise shall include the Company and each of its
Subsidiaries and references to Seller include Parent, the Company and each of
its Subsidiaries.
SECTION 3.1 CORPORATE ORGANIZATION AND QUALIFICATION. Each of the
Company and its Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of the state of its incorporation as set
forth on SCHEDULE 3.1. The Company is duly qualified or licensed to do business
as a foreign corporation and is in good standing as a foreign corporation in
each jurisdiction, except for immaterial failures to be so qualified, licensed
or in goodstanding. The Company has full corporate power and authority to own,
lease, operate or otherwise hold its properties and assets and to carry on its
business as it is now being conducted. The Company has delivered to Buyer a
complete and correct copy of the Company's Organizational Documents.
SECTION 3.2 CAPITALIZATION.
(a) The authorized capital stock of the Company consists of one
thousand (1,000) shares of Common Stock, of which only the Shares are issued
and outstanding. All of the Shares have been duly authorized and are validly
issued, fully paid and nonassessable. There are no options, conversion rights,
warrants, or other commitments by the Seller to issue additional shares of
capital stock of the Company.
(b) None of the Shares are subject to preemptive rights or any
outstanding subscriptions, options, warrants, calls, rights, convertible
securities or other agreements or other instruments outstanding or in effect
giving any Person the right to acquire any shares of capital stock or other
securities of the Company or any commitments of any character relating to the
issued or unissued capital stock or other securities of the Company, which have
not been waived.
(c) SCHEDULE 3.2 sets forth the authorized capital stock, and shares
issued and outstanding, of each Subsidiary of the Company, and indicates the
ownership of such shares.
SECTION 3.3 AUTHORITY; CONFLICTS.
(a) Each of the Company and Parent has the corporate power and
authority and has taken all corporate action necessary in order to execute,
deliver and perform this Agreement and each other agreement or certificate
delivered pursuant hereto and to consummate the transactions contemplated in
each such agreement. This Agreement and each other agreement or certificate
delivered pursuant hereto has been duly authorized, executed and delivered by
each of the Company and Parent and each such agreement constitutes or will
constitute (assuming the valid authorization, execution and delivery of this
Agreement and each other agreement or certificate delivered pursuant hereto by
Buyer) the legal, valid and binding obligation of each of the Company and
Parent enforceable in accordance with its terms, in each case subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws of general application relating to or affecting creditors'
rights and to general equity principles (the "BANKRUPTCY EXCEPTION").
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(b) Assuming compliance with the HSR Act, neither the execution and
delivery of this Agreement by Seller or the consummation of any of the
transactions contemplated herein or in any other agreement or certificate
delivered pursuant hereto, nor compliance with or fulfillment of the terms,
conditions and provisions thereof, except as set forth on SCHEDULE 3.3, will
conflict with, result in a breach of the terms, conditions or provisions of, or
constitute a default (or an event that with the passage of time will become a
default), an event of default or an event creating rights of acceleration,
termination or cancellation or a loss of rights under, or result in the
creation or imposition of any Encumbrance upon any of the Shares or any of the
assets of the Company, under (i) the Organizational Documents of either Parent
or the Company, (ii) any Material Contract (as defined in Section 3.14),
franchise or financial obligation to which Parent or the Company is a party or
by which Parent or the Company is bound, (iii) any Order to which Parent or the
Company is a party or by which Parent or the Company is bound or (iv) any Law
by which Parent or the Company is bound.
SECTION 3.4 REGULATORY FILINGS; NO VIOLATIONS. Other than the filings
and/or notices necessary to comply with the HSR Act, no notices, declarations,
registrations, reports or other filings are required to be made by Seller with,
nor are any consents, registrations, approvals, permits, expiration of any
applicable waiting periods or authorizations required to be obtained by Seller
or the Company (or any of its Subsidiaries) from, any Authority, in connection
with the execution or delivery of this Agreement or any other agreement
delivered in connection herewith by Seller, the performance by Seller of its
obligations hereunder or thereunder or the consummation by Seller of the
transactions contemplated hereby and thereby, other than notices, declarations,
registrations, reports, other filings, consents, approvals, permits,
expirations and authorizations that are immaterial.
SECTION 3.5 NO ACTIONS AGAINST SELLER. There is no Action pending or to
Seller's Knowledge threatened, against Seller which questions or challenges the
validity of this Agreement, any other agreement delivered pursuant hereto or
any action taken or proposed to be taken by the Seller pursuant hereto or
thereto or in connection with the transactions contemplated hereby and thereby.
SECTION 3.6 OWNERSHIP OF SHARES. Parent owns the Shares free and clear
of any Encumbrances and upon delivery of and payment by Buyer to Parent of the
Purchase Price, Buyer will acquire the Shares free and clear of all
Encumbrances.
SECTION 3.7 FINANCIAL STATEMENTS. The consolidated balance sheets of
the Company as of the fiscal years ended December 28, 1996 and December 27,
1997 and the related consolidated income statements and statements of cash flow
of the Company for the fiscal years ended on such dates (in each case audited
by and accompanied by the report of Price Waterhouse LLP (n/k/a
PricewaterhouseCoopers LLP) (collectively, the "AUDITED FINANCIAL STATEMENTS"),
and the unaudited consolidated balance sheet as of June 27, 1998 (the "INTERIM
BALANCE SHEET") and the income statement for the accounting period ending on
such date (together with the Interim Balance Sheet, the "INTERIM FINANCIAL
STATEMENTS"), copies of which are attached hereto as SCHEDULE 3.7, were
prepared from the books and records of the Company in accordance with GAAP as
consistently applied by the Company and present fairly in all material respects
the consolidated financial position and results of operations of the Company
(a) in the case of the
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Audited Financial Statements, as of and for the accounting periods ended on
December 28, 1996 and December 27, 1997, respectively, and (b) in the case
of the Interim Financial Statements, as of June 27, 1998 and for the period
ended on such date, except that the Interim Financial Statements have been
prepared using practices customarily followed in the preparation of interim
financial statements by the Company and exclude a statement of cash flows and
informative disclosures customarily required in notes to the financial
statements.
SECTION 3.8 ABSENCE OF CERTAIN CHANGES. Except as set forth in SCHEDULE
3.8, since the date of the Interim Financial Statements through the date of
this Agreement, the Company has conducted its business only in, and has not
engaged in any transaction other than according to, the Ordinary Course of
Business, or if not in the Ordinary Course of Business, not reasonably likely
to have a Material Adverse Effect. In addition, except as set forth in SCHEDULE
3.8, there has not been any:
(a) (i) change in the authorized or issued capital stock of the
Company; (ii) grant of any stock option, warrant, subscription, calls or other
right to purchase shares of capital stock of the Company; (iii) issuance of any
security convertible into the capital stock of the Company; (iv) grant of any
registration rights in respect of the capital stock of the Company; (v)
reclassification, combination, split, subdivision, purchase, redemption,
retirement, issuance, sale, or any other acquisition or disposition, directly
or indirectly, by the Company of any shares of the capital stock of the
Company; (vi) any amendment of any material terms of any outstanding security
of the Company; or (vii) sale or pledge of any stock or other equity interests
owned by the Company;
(b) amendment or other change to the Company's Organizational
Documents;
(c) (i) increase by the Company in the agreement of any bonus, salary
or other compensation payable to any officer or employee of the Company, other
than increases in the Ordinary Course of Business; (ii) entry into any
employment, consulting, termination, settlement, severance or similar Contracts
with any existing or former officer or employee of the Company or the payment
of any severance or termination pay to such Person, other than as required by
existing contractual obligations described on SCHEDULE 3.8(c); (iii) adoption
or amendment in any material respect of, or material increase or acceleration
in the payments to or benefits under, any profit sharing, bonus, thrift, stock
option, deferred compensation, savings, insurance, restricted stock, pension,
retirement, or other employee benefit plan for or with any officer or employee
of the Company; or (iv) establishment or adoption of, or material amendment to,
any collective bargaining agreement;
(d) (i) sale or lease (except for sales or disposition of inventory or
sale or lease of other property in the Ordinary Course of Business),
alteration, or other disposition of, or write down in excess of $250,000 of the
book value of (except under accounting practices and principles applied for
amortization and depreciation thereof for the period ending the date of the
Audited Financial Statements), any asset of the Company, except to the extent
replaced by a comparable asset; (ii) mortgage, pledge or imposition of any
Encumbrance (other than a Permitted Encumbrance) upon any asset of the Company;
(iii) sale, lease or other disposition of, or termination, lapse or other
expiration of the rights to the use of, any of the Intellectual
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Property; or (iv) entry into any transaction, arrangement, agreement or
understanding between the Company, Parent or any officer, director or
shareholder thereof other than the payment of cash dividends in accordance with
SECTION 5.6(b)(iii) or in connection with the distribution of the Company's
interests in the Shanghai and Tainjin joint ventures;
(e) (i) acquisition (including by merger, consolidation or acquisition
of stock or assets) by the Company of any Person or any division thereof or
portion of the assets thereof (other than the repurchase of routes in the
Ordinary Course of Business); (ii) liquidation, dissolution or winding up of
the Company; or (iii) organization of any new Subsidiary;
(f) entry into, amendment to, termination of, or receipt of notice of
termination of any Contract involving the commitment of the Company involving a
total remaining commitment by the Company of at least $250,000;
(g) settlement or compromise of any Action, other than such Actions in
which the amount paid in settlement or compromise, including the cost to the
Company of complying with any provision of such settlement or compromise other
than cash payments, does not exceed $100,000, in excess of any amount covered
by insurance;
(h) material change in the accounting practices, methods or principles
used by the Company;
(i) effectuation of (i) a "plant closing" (as defined in the WARN Act)
affecting any site of employment or one or more facilities or operating units
within any site of employment or facility of the business of the Company or
(ii) a "mass layoff" (as defined in the WARN Act) affecting any site of
employment or one or more facilities or operating units within any site of
employment or facilities of the business of the Company, except, in either
case, after fully complying with the notice and other requirements of the WARN
Act; and
(j) agreement (whether written or oral and express or implied) by the
Company to do any of the foregoing.
SECTION 3.9 TAXES.
(a) Except as provided in SCHEDULE 3.9:
(i) The Company has timely filed (or prior to Closing will
timely file) all Tax Returns that it is required to file on or before the
Closing Date in all jurisdictions in which it is required to file Tax
Returns. All such returns were prepared in accordance with applicable Laws, and
are true, correct, and complete in all material respects. All Taxes, as due and
payable in respect of such Tax Returns have been paid, and there is no current
liability for any Taxes due in connection with any such returns. As of the
Closing Date, all material Taxes not yet due and payable have been fully
accrued on the books of the Company and adequate reserves have been established
for Taxes. There are no unpaid assessments for additional Taxes for any period.
All federal and state income Tax Returns filed by the Company for the past
three years have been provided to the Buyer;
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(ii) The Company has not been a member of any consolidated,
combined or unitary group for federal, state, local or foreign Tax
purposes within the last four (4) years other than the consolidated group that
includes the Company and its Subsidiaries;
(iii) the Company is not a party to any joint venture,
partnership or other arrangement that could be treated as a partnership for
federal income Tax purposes;
(iv) Except for failures that are immaterial, the Company has
(A) withheld all required amounts from its employees, agents, contractors and
nonresidents and remitted such amounts to the proper agencies; (B) paid
all employer contributions and premiums; and (C) filed all federal, state,
local, and foreign returns and reports required with respect to employee income
Tax withholding, social security unemployment Taxes and premiums;
(v) The federal income Tax Returns of the Company have been
examined by the IRS, or have been closed by the applicable statute of
limitations, for all periods through 1994; no deficiencies or
reassessments of any Taxes have been proposed, asserted or assessed against the
Company by any federal, state, local or foreign taxing authority which remain
outstanding;
(vi) The Company has not executed or filed with any taxing
authority (whether federal, state, local or foreign) any agreement or
other document extending or having the effect of extending the period for
assessment, reassessment or collection of any Taxes, that remains outstanding
or in force and no power of attorney granted by the Company with respect to any
Taxes is currently in force;
(vii) No federal, state, local or foreign Tax audits or other
administrative proceedings, discussions or court proceedings are presently
pending with regard to any Taxes or Tax Returns of the Company and no
additional issues has been asserted in writing against the Company in
connection with any existing audits of the Company;
(viii) The Company has not entered into any closing agreement
with the IRS or any other agreement with any taxing Authority relating
to Taxes which affects any taxable year ending after the Closing Date;
(ix) The Company has not agreed to and it is not required to
make any adjustment by reason of a change in accounting methods that affects
any taxable year ending after the Closing Date. Neither the IRS nor any other
agency has proposed any such adjustment or change in accounting methods that
affects any taxable year ending after the Closing date. The Company has no
application pending with any taxing authority requesting permission for any
changes in accounting methods that relate to its business or operations and
that affects any taxable year ending after the Closing Date;
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(x) The Company is not a party to any tax sharing agreement or
similar arrangement for the sharing of Tax liabilities or benefits that will be
in effect with respect to the Company after the Closing Date for which the
Company will have any liability after the Closing Date;
(xi) The Company is not a foreign person within the meaning of
Code section 1445;
(xii) The Company has not consented to the application of Code
section 341(f);
(xiii) There is no contract, agreement, plan or arrangement
covering any employee or former employee of the Company, that individually or
collectively, could give rise to the payment of the Company of any amount that
would not be deductible by reason Code section 280G;
(xiv) No asset of the Company is tax-exempt use property under
Code section 168(h);
(xv) No portion of the cost of any asset of the Company has been
financed directly or indirectly from the proceeds of any tax-exempt state or
local government obligation described in Code section 103(a) that are
currently outstanding.
(xvi) The Company does not have and has not had a permanent
establishment in any foreign country and does not and has not engaged in a
trade or business in any foreign country; and
(xvii) None of the assets of the Company is property that the
Company is required to treat as being owned by any other person pursuant to the
safe harbor lease provision.
SECTION 3.10 GOVERNMENTAL PERMITS. The Company owns, holds or possesses
all licenses, franchises, permits, privileges, immunities, approvals and other
authorizations from any Authority that are necessary to entitle it to own or
lease, operate and use its assets and to carry on and conduct its business
substantially as conducted immediately prior to the date of this Agreement
(herein collectively called "GOVERNMENTAL PERMITS"), except for such
Governmental Permits which are immaterial.
SECTION 3.11 INTELLECTUAL PROPERTY. SCHEDULE 3.11 sets forth (a) a true
and complete list of each patent and each patent application therefor which has
been issued to or is held by the Company or any of its Subsidiaries, (b) a true
and accurate identification of each United States federal and foreign
registered and material unregistered trademark, service mark, trade name, and
slogan, and each registration and application for any of the foregoing issued
to or held or used by the Company or any of its Subsidiaries, (c) a true and
complete list of each registered copyright, and each registration and
application for any of the foregoing, issued to or held by the Company or any
of its Subsidiaries, and (d) a true and complete list of all Contracts to
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which the Company or any of its Subsidiaries is a party or by which any of
them is bound either as licensee or licensor relating to any item of
intellectual property described in clauses (a) through (c) above that is
material to the business of the Company and its Subsidiaries (collectively,
together with all trade secrets and proprietary technology, designs, know-how
and processes owned by the Company or any of its Subsidiaries ("Trade
Secrets"), being referred to as the "Intellectual Property"). The consummation
of the transactions contemplated herein will not impair the rights of the
Company and its Subsidiaries to any item of the Intellectual property. Except
as indicated in SCHEDULE 3.11:
(a) the Company or a Subsidiary of the Company is the owner of all
right, title and interest in and to each item of Intellectual Property, free
and clear of all Encumbrances other than Permitted Encumbrances or is a
licensee of the Intellectual Property pursuant to a license agreement that is a
valid and binding obligation of the parties thereto enforceable in accordance
with its terms, except where the lack of ownership or the existence of
Encumbrance would be immaterial;
(b) all patents, copyrights, trademarks, service marks and other state
and federal registrations and all applications therefor listed in SCHEDULE 3.11
are valid and in full force and effect in each of the listed jurisdictions,
except where invalidity would be immaterial;
(c) there are no pending or threatened Actions concerning any item of
the Intellectual Property material to the business of the Company and its
Subsidiaries, and no such action, proceeding, dispute or disagreement has been
threatened in writing;
(d) to the Knowledge of the Company, the use or other exploitation of
each item of the Intellectual Property, either alone or in any combination used
or useful in the business of the Company or any of its Subsidiaries does not
conflict with, infringe upon or violate any patent, copyright, trademark, trade
secret or other proprietary right of any other Person;
(e) with respect to each Trade Secret comprising a part of the
Intellectual Property, such Trade Secret is valid and protectable, except where
its invalidity or unprotectability would be immaterial;
(f) to the Knowledge of the Company, no copying or reproduction of any
material copyrighted in the name of the Company or any Subsidiary of the
Company has occurred or been allowed that would materially diminish the value
thereof, or limit the ability of the Company or a Subsidiary of the Company to
enforce its rights thereto;
(g) the trademark registrations set forth in SCHEDULE 3.11 to the
Knowledge of the Seller are not being infringed by others, except where such
infringement is not material or the Company has taken commercially reasonable
action in respect of such infringement;
(h) the Company or one of its Subsidiaries has been assigned and owns
or has obtained licenses for any Intellectual Property that was developed by
any third-party contractor of, or consultant to, the Company or such
Subsidiary, except where the failure to obtain such assignment or license would
be immaterial.
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SECTION 3.12 REAL PROPERTY.
(a) A list of all Real Property of the Company other than immaterial
Real Property with an aggregate fair market value of less than $250,000 is set
forth on SCHEDULE 3.12(a) under the headings "Owned Real Property" and "Leased
Real Property." Except for the Leased Real Property listed on SCHEDULE 3.12(a),
the Company owns, and has good title to, all of the Real Property, free and
clear of all Encumbrances, except for Permitted Encumbrances. To the Seller's
Knowledge, except as set forth on SCHEDULE 3.12(a), the use and operation of
the Real Property does not violate any instrument of record or agreement or
order of any Authority affecting or relating to the Real Property, or any
building, zoning, subdivision or other land use or similar Law affecting the
Real Property.
(b) The plants, buildings, structures, fixtures and improvements which
are a part of the Real Property are generally in good operating condition and
repair, consistent with industry practices, normal wear and tear excepted,
taking into account age and usage and are generally adequate for the uses to
which they are being put.
(c) There is no existing or pending, or, to the Seller's Knowledge,
contemplated, threatened or anticipated (i) condemnation of any part of the
Real Property, except as provided on Schedule 3.12(c), (ii) special tax or
assessment to be levied against the Real Property, or (iii) change in the
zoning classification of the Real Property.
SECTION 3.13 LITIGATION. Except as set forth in SCHEDULE 3.13, there
are no (i) Actions, or (ii) Orders by which the Company or any of its assets,
properties or business are bound, other than immaterial Actions or Orders,
pending, or to the Seller's Knowledge, threatened against the Company or any of
its assets, properties or businesses.
SECTION 3.14 CONTRACTS.
(a) SCHEDULE 3.14(a) contains (A) a true and complete list of each
Contract to which the Company is party or by which it or any of its properties
or assets are bound (or as the case may be a summary of any binding arrangement
or commitment involving the Company), which (i) is an employment contract, or
material consulting agreement; (ii) is an indenture, mortgage, note,
installment obligation, agreement or other instrument relating to the borrowing
of money in excess of $250,000 by the Company or the guaranty of any obligation
for the borrowing of money in excess of $250,000 by the Company; (iii) imposes
any Encumbrance (other than Permitted Encumbrances); (iv) has a remaining term
as of the date hereof of over one year in length of obligation on the part of
the Company and involves the receipt or payment by the Company of more than
$250,000, except for agreements with suppliers or customers entered into in the
Ordinary Course of Business; (v) is a co-pack agreement; (vi) is an agreement
with one or more Girl Scouts Councils or any representative or agent thereof;
or (vii) has been entered into with an officer, director of affiliate of the
Company or Parent, and (B) a true and correct list of not less than 95% of all
broker distribution, franchise and distributor agreements (and the remainder
are of the same quality and tenor) to which the Company is a party or by which
it or any of its properties or assets are bound (collectively, the "MATERIAL
CONTRACTS").
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(b) Except as set forth in SCHEDULE 3.14(b), the Company is not a party
to or bound by any Contract:
(i) prohibiting or limiting the ability of the Company to (A)
engage in any line of business, (B) compete with any Person or (C) carry on or
expand the nature or geographical scope of the business of the Company
anywhere in the world;
(ii) providing for the acquisition or disposition after the date
of this Agreement of any portion of the business or assets (except for sales of
inventory or other disposition of property or assets in the Ordinary
Course of Business) of the Company;
(iii) relating to product warranties, guaranties, and/or other
similar undertakings with respect to contractual performance extended by the
Company other than in the Ordinary Course of Business;
(iv) involving the grant by the Company to any Person of any
right of first refusal to purchase any rights, assets or property of the
Company;
(v) to or with any labor union or other employee representative
of a group of employees relating to wages, hours, and any other conditions of
employment; or
(vi) which, in the case of broker Contracts, may not be
terminated by the Company at will or without penalty, subject to current
obligations thereunder and state law restrictions.
(c) Except as set forth in SCHEDULE 3.14(c), (i) each Material Contract
is a valid and binding obligation of the Company, and to the Seller's
Knowledge, of each of the other parties thereto, and is enforceable against
each party in accordance with its terms, except for the Bankruptcy Exception,
(ii) the Company is not in violation or breach of, or in default under, any
Material Contract and, to the Seller's Knowledge, no other party to any
Material Contract is in violation or breach thereof, or in default thereunder,
other than immaterial breaches or defaults, and (iii) to the Seller's
Knowledge, other than the transactions contemplated by this Agreement and
except for or by reason of violations, breaches or defaults referred to in
clause (ii) above, no event has occurred that, with the passage of time or the
giving of notice or both, would permit the unilateral modification,
acceleration or termination of any Material Contract.
SECTION 3.15 EMPLOYEE BENEFITS; ERISA.
(a) Except as set forth in SCHEDULE 3.15(a), the Company (including,
for purposes of this SECTION 3.15, its Subsidiaries), either directly or
indirectly through any other Person or entity, has not sponsored, established,
maintained, contributed to or become obligated under any "Compensation and
Benefit Plan" (as defined herein) on behalf of any current or former employee
of the Company (the "EMPLOYEES"). The term "COMPENSATION AND BENEFIT PLAN"
includes any pension, retirement, savings, profit-sharing, deferred
compensation, stock purchase, stock option, bonus (including without limitation
any stay or retention bonuses), incentive,
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disability, medical, dental, health, vacation pay, severance pay or benefit
commitment, life, death benefit, group insurance, collective bargaining or
other employee benefit plan, trust, arrangement, contract, agreement, policy or
commitment (including, without limitation, any PENSION PLAN as defined in ERISA
Section 3(2) ("PENSION PLAN"), any welfare plan as defined in ERISA Section
3(1) ("WELFARE PLAN"), and any multiemployer plan as defined under ERISA
Sections 3(37) and 4001 ("MULTIEMPLOYER PLAN")) and any other compensation
arrangement, other than for current compensation, whether or not any of the
foregoing is funded or insured and whether written or oral, which is intended
to provide or does in fact provide a benefit to any Employee, and to which the
Company is a party or is bound, either (i) at any time since December 31, 1992,
or (ii) if prior to that date, with respect to which the Company has any
liability (whether or not it still maintains such plan, trust, arrangement,
contract, agreement, policy or commitment).
(b) With respect to each Compensation and Benefit Plan listed on
SCHEDULE 3.15(a), Seller has provided or made available to Buyer current,
accurate and complete copies of (i) all material plan documents, amendments,
trust agreements, insurance contracts and other written materials describing
the substantive terms, conditions, benefits, rights and features of such
Compensation and Benefit Plan, and (ii) the most recent Form 5500 (with
schedules), actuarial valuation (for each defined benefit pension plan), and
audited financial statements (to the extent required by law to be prepared).
(c) Each Pension Plan that is intended to be qualified under Code
Section 401(a) (as amended by the Tax Reform Act of 1986) and subsequent
relevant legislation) has received a favorable determination letter from the
IRS for "TRA '86" (within the meaning of Revenue Procedure 93-39) stating that
the Pension Plan satisfies applicable requirements of the Code and that the
trust associated with the Pension Plan is tax-exempt under Code Section 501(a),
or applications for such determination letters have been timely filed with the
IRS in accordance with IRS procedures. To the best of Seller's Knowledge, no
facts exist that could reasonably be expected to affect adversely the
tax-qualified status of any Pension Plan that has received a favorable
determination letter of the IRS or to otherwise cause the revocation of any
such letter. Seller has provided or made available to Buyer a copy of the most
current favorable determination letter issued by the IRS as to each
Compensation and Benefit Plan that is intended to constitute a tax-qualified
retirement plan.
(d) Notwithstanding the standards of compliance set forth on SCHEDULE
3.16, each Compensation and Benefit Plans provided on SCHEDULE 3.15(a) conforms
to, and has been maintained, administered and operated in substantial
compliance with its terms and applicable Laws (including, without limitation,
the substantive and procedural requirements of ERISA and the Code). In
addition, no act or omission has occurred nor condition or fact exists, as of
the Closing with respect to the Compensation and Benefit Plans that could have
any Material Adverse Effect on the Company (either directly or by reason of its
affiliation with any member of its "controlled group" within the meaning of
Code Sections 414(b), (c), (m) and (o)) or Buyer, or any Compensation and
Benefit Plan participant, beneficiary or alternate payee, or in a lien upon the
Company.
(e) All contributions required to be made under applicable Law or under
the terms of any Compensation and Benefit Plan have been timely made or have
been reflected on the
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Company's financial statements. Neither any Pension Plan, nor the pension
plan of any member of the Company's "controlled group" (within the meaning of
ERISA Section 4001(a)(14)) (such controlled group member being referred to in
this subsection (e) as an "ERISA Affiliate" and such pension plan being
referred to in this subsection (e) as an "ERISA Affiliate Plan"), other than
any multiemployer plan not maintained by the Company or any ERISA Affiliate and
that is contained in or contributed to pursuant to a collective bargaining
agreement, has an "accumulated funding deficiency" (whether or not waived)
within the meaning of Code Section 412 and ERISA Section 302, and all required
payments with respect to each such Pension Plan or ERISA Affiliate Plan have
been made on or before the respective due dates for such payments.
(f) Except as set forth in SCHEDULE 3.15(f), the Company has not at any
time contributed, nor been obligated to contribute, to any Multiemployer Plan
with respect to any Employee. With respect to any Multiemployer Plan listed in
SCHEDULED 3.15(f), (i) neither the Company nor any member of its controlled
group (within the meaning of Code Sections 414(b), (c), (m) and (o)) has
incurred any withdrawal Liability under Title IV of ERISA for which the Company
is liable; (ii) the Company has not received written notification from the
trustees or other administrator of the Multiemployer Plan that such
Multiemployer Plan is in reorganization or insolvent (within the meaning of
ERISA Sections 4241 and 4245, respectively), and the Company has not taken any
action or failed to take any action that was not in substantial compliance with
the provisions of a Multiemployer Plan, collective bargaining agreement, ERISA,
the Code or any applicable Law.
(g) Except as set forth in SCHEDULE 3.15(g), the Company has no
obligation to provide retiree health and life insurance or other retiree
benefit (including, without limitation, retiree death benefits) under any
Compensation and Benefit Plan with respect to any Employee, except as mandated
under Code Section 4980B. Except to the extent set forth in SCHEDULE 3.15(g),
any retiree health benefit at all times has been, by its terms and
administration, secondary to benefits provided under the Medicare program. To
the extent that retiree health and/or life insurance benefits were at any time
reduced or eliminated by the Company, such reduction or elimination complied
with then-applicable plan documents and Law, and no claim or threat of claim
has at any time been made by any Employee (or by a dependent of any such
Employee) for retiree health and/or life insurance benefits that are no longer
available.
(h) Except as set forth in SCHEDULE 3.15(h), with respect to any
Compensation and Benefit Plan, (i) no "reportable event" within the meaning of
ERISA Section 4043) has occurred, (ii) to the best of Seller's Knowledge no
"prohibited transaction" (within the meaning of Code section 4975(c)) has
occurred, and (iii) no breach of "fiduciary duty (within the meaning of ERISA
Section 404) has occurred.
(i) Except as set forth in SCHEDULE 3.15(i), to the Seller's Knowledge,
no Action (other than routine claims for benefits) to, or by, any Person or
governmental entity have been filed, are pending or threatened, and no facts or
contemplated events exist that reasonably could be expected to give rise to any
such Action (other than a routine claim for benefits) with respect to any
Compensation and Benefit Plan.
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(j) Seller has no Liabilities for any accrued but unused paid-time off
(including without limitation vacation pay, holiday pay, short-term
disability pay and sick pay) for any period prior to the twelve (12) month
period preceding the Closing Date.
(k) Except as set forth in SCHEDULE 3.15(k), Seller does not maintain, nor does
it have any Liability for, any severance pay plans, policies, arrangements
or programs (including individual severance arrangements).
(l) Seller does not maintain, nor does it have any Liability for, any
nonqualified deferred compensation arrangements, "top hat" plans (within the
meaning of Department of Labor Regulation Section 2520.104-23), supplemental
executive retirement plan, or stock-based or equity-based plans.
(m) Except as set forth in SCHEDULE 3.15(m), the consummation of the transaction
contemplated hereunder would not (i) entitle any Employee to any payment
(including severance pay or similar compensation) or any increase in
compensation, (ii) result in the vesting or acceleration of any benefits under
any Compensation and Benefit Plan, or (iii) result in any material increase in
benefits payable under any Compensation and Benefit Plan.
SECTION 3.16 COMPLIANCE WITH LAWS. Except as set forth in SCHEDULE 3.16, and
except with respect to any Environmental Law and except for
immaterial matters:
(a) The Company is in compliance with each Law that is or was applicable to
it or to the conduct or operation of the business of the Company or the
ownership or use of any of its assets;
(b) To the Seller's Knowledge, no investigation or review by any Authority with
respect to the Company or any of its businesses, facilities, operations,
agreements or products is pending or threatened, nor has any Authority indicated
an intention to conduct the same;
(c) During the twenty-four (24) months preceding the date hereof, the Company
has not received any notice or written communication alleging any
noncompliance by the Company with any Law, Order or approval that has not been
cured or otherwise resolved, and the Company is not subject to any unpaid fine
or any continuing sanction for any such noncompliance;
(d) The Company is not in violation of or in default under, and to the Seller's
Knowledge, no event has occurred which, with the lapse of time or the giving of
notice or both, would result in the violation of or default under, the terms of
any Order; and
(e) The Company has not received any notice, citation, claim, assessment or
proposed assessment as to or alleging any violation of any federal,
state or local occupational safety and health Laws relating to its business nor
to the Company's Knowledge has the Company been subject to any investigation
relating to its business by any occupational safety and health Authority within
the twenty-four (24) months preceding the date hereof.
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SECTION 3.17 INSURANCE. SCHEDULE 3.17 contains a true, complete and current
list of (i) all material insurance policies currently insuring the property,
assets or business Liabilities of the Company and all bonds required to be
maintained with respect to the operation of its business, and (ii) any
agreements, arrangements or commitments by or relating to the Company under
which the Company indemnifies any other Person or is required to carry
insurance for the benefit of any other Person, except for indemnity agreements
with customers or lessees in the Ordinary Course of Business. Such policies and
bonds are in full force and effect, no notice of cancellation or termination
has been received with respect to any such policy, and the Company has complied
in all material respects with such policies and bonds.
SECTION 3.18 INTERESTS OF RELATED PERSONS. Except as set forth in SCHEDULE
3.18:
(a) Neither Parent, any director or officer of Seller or any affiliate of
Seller (i) has any interest in any property, real or personal, tangible or
intangible, of the Company, (ii) to the Seller's Knowledge, has any cause of
action or other claim whatsoever against the Company or its assets or
properties, (iii) other than for travel, meals and similar reimbursable
expenses, owes any amount to, or is owed any amount by, the Company or (iv)
other than Parent owns, directly or indirectly, any debt, equity or other
interest or investment in any Person that has (x) had business dealings or a
material financial interest in any transaction with the Company (other than
business dealings or transactions conducted in the Ordinary Course of Business
with the Company at substantially prevailing market prices and on substantially
prevailing market terms), or (y) engaged in competition with the Company with
respect to the business of the Company or any line of the products or services
of the Company (a "COMPETING BUSINESS") in any market presently served by the
Company (except for less than one percent (1%) of the outstanding capital stock
of any Competing Business that is publicly traded on any recognized exchange or
in the over-the-counter market).
(b) There are no Contracts, indebtedness, arrangements, understandings,
obligations or other rights or obligations in effect between the Company,
on the one hand, and any director, officer, stockholder or other affiliate of
Parent or the Company, on the other hand, other than employment relationships.
(c) There will be as of Closing no obligations of the Company outstanding or
accruing in connection with the distribution of the Company's interests in the
Shanghai and Tainjin joint ventures to Parent.
SECTION 3.19 ENVIRONMENTAL MATTERS. Except as disclosed on SCHEDULE 3.19,
The Company, and the operation of its business, is in substantial compliance
with all applicable Environmental Laws and, in addition, the Company has not
received during the preceding thirty-six (36) months or, to the Company's
Knowledge, prior to that time any written notice, demand, or claim that it may
be in violation of or liable under any Environmental Law. There is no civil,
criminal, or administrative action, suit, demand, claim, notice of violation,
notice of investigation, or proceeding pending relating to the property or
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business of the Company, or to the Company's Knowledge, threatened against the
business or property of the Company or relating to any formerly-owned properties
for which the Company has retained or assumed liability either contractually or
by operation of law, relating in any way to Environmental Laws. The Company has
no material Liability for any indemnity or other agreement with any third party
relating to Liability under any Environmental Law.
(b) The Company possesses all permits, licenses, authorizations, and approvals
required under Environmental Law ("Environmental Permits") to operate its
business in substantial compliance with such Environmental Laws and all such
Environmental Permits are currently maintained in full force and effect. The
Company has received no written notice or other written communication and has no
Knowledge of any facts or circumstances that any such Environmental Permits may
be suspended, revoked, or modified by any Authority. SCHEDULE 3.19(b) contains a
true and complete listing of all material Environmental Permits.
(c) The Company has not, nor to the Knowledge of the Company has any other
person, placed, stored, buried, released, dumped or disposed of any Hazardous
Substances in quantities requiring investigation or cleanup, or otherwise
in a manner that could form the basis of liability under Environmental Laws, on
the properties owned or operated by the Company or to the Company's Knowledge,
at any formerly-owned properties for which the Company has retained or assumed
liability either contractually or by operation of law, or at any offsite
storage, treatment or disposal facility, except for inventories of such
substances to be used, and wastes generated therefrom, in the Ordinary Course
of Business (which inventories and wastes, if any, were stored or disposed of
in accordance with Environmental Laws and in a manner such that there was no
material release of any such substances into the environment) and the Company
has received no request for information nor any notice of potential liability
from any Authority or individual with respect to Hazardous Substances or
contamination at any such properties. No cleanup has occurred at any property
owned or operated by the Company that could reasonably be expected to result in
the assertion or creation of a lien on such property by any Authority with
respect thereto, nor has any such assertion of a lien been made by any
Authority.
(d) Except as set forth on SCHEDULE 3.19, to the Company's Knowledge there is
not at, on or in any property owned or operated by the Company (i) any friable
asbestos-containing material or (ii) any poly-chlorinated biphenyls which, with
respect to either (i) or (ii) are present in concentrations that would impose
regulatory obligations on the Company that requires under Law corrective or
cleanup action.
(e) Except as set forth on SCHEDULE 3.19, there are no underground storage
tanks or regulated surface impoundments at, on or in any property owned
or operated by the Company, including to the Seller's Knowledge, any former
property of the Company for which the Company has retained or assumed liability
either contractually or by operation of law.
(f) The Seller and the Company have provided Buyer copies of all environmental
reports, studies, assessments, and sampling data within its possession that have
been issued in the past three (3) years relating to the Company or any of its
current or former properties or operations.
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SECTION 3.20 LABOR MATTERS. As of the date hereof and during the prior
twenty-four (24) months, except as set forth in SCHEDULE 3.20:
(a) The Company has not been a party to, or bound by, any collective bargaining
agreement or other labor Contract nor is any collective bargaining agreement or
other labor Contract currently being negotiated, nor are there any activities
or proceedings of any labor union or labor organization to organize any of the
employees of the Company.
(b) There has not been, there is not presently pending or existing, and there
is not threatened any strike, slowdown, picketing, work stoppage, material
labor difficulty, labor arbitration or other proceeding in respect of the
grievance of any employee, application or complaint filed by an employee or
union with the National Labor Relations Board or any comparable Authority,
organizational activity or other material labor dispute against or affecting
the Company or its premises (collectively, "LABOR DISPUTES"), and no
application for certification of a collective bargaining agent is pending or,
to the Company's Knowledge, is threatened.
SECTION 3.21 ASSETS USED IN THE CONDUCT OF THE BUSINESS. Except for assets
disposed of in the Ordinary Course of Business and except as set forth on
SCHEDULE 3.21(a), the Company, or as the case may be, the Company's
Subsidiaries, have good and marketable title to each item of equipment and
other property reflected in the Interim Financial Statements, free and clear of
all Encumbrances, except for Permitted Encumbrances. The assets of the Company
as of the date hereof are sufficient for the conduct of the business of the
Company as conducted on the date hereof. All of the assets reflected in the
Interim Financial Statements are generally in good operating condition and
repair, consistent with industry practices, normal wear and tear excepted,
taking into account age and usage, and are generally adequate for the uses to
which they are being put. Attached hereto as SCHEDULE 3.21(b) are
certifications or other undertakings from certain software vendors to the
Company in respect of software licensed by the Company regarding the ability of
such software to process date data between the 20th and 21st centuries, and
such certifications and undertakings have not been amended or withdrawn.
SECTION 3.22 BANK ACCOUNTS. SCHEDULE 3.22 contains a true, correct and complete
schedule setting forth the name of every bank in which the Company or
any Subsidiary has one or more accounts, savings or other certificates, or safe
deposit boxes; the names of every Person authorized to draw on such accounts,
redeem such certificates or have access to such boxes; and the principal terms
of such certificates and the contents of such boxes.
SECTION 3.23 NO BROKERS. Except as set forth in SCHEDULE 3.23, neither the
Seller nor any Person acting on its behalf has paid or become obligated to pay
any fee or commission to any broker, finder or intermediary for or on account
of the transactions contemplated by this Agreement.
SECTION 3.24 GIRL SCOUT RELATIONSHIP. To the Company's and Parent's Knowledge,
there is no fact, circumstance, information, development or event in
existence which could result in an adverse change other than an immaterial
adverse change in the Company's current or prospective relationship with the
Girl Scouts of America relating to the sale of cookies thereto or the Contract
entered in connection therewith. SCHEDULE 3.24 sets forth the current Girl
Scouts production schedule through December 31, 1998.
SECTION 3.25 PARENT OPERATIONS. Except as disclosed on SCHEDULE 3.25, there are
no operations, offices, employees, assets or Liabilities of Parent
associated with the Company's Los Angeles office.
SECTION 3.26 GRANNY GOOSE RELATIONSHIP. The Company is currently distributing
certain of its products through the Granny Goose distribution network. Other
than fulfilling current orders for product, the Company has no contractual
commitment to continue such distribution arrangement.
SECTION 3.27 CERTAIN LIABILITIES. As of June 27, 1998, neither the Company nor
any Subsidiary of the Company had any Liability with respect to its business
of any nature of the type required to be reflected on a balance sheet prepared
in accordance with GAAP using practices customarily followed in preparation of
interim financial statements of the Company (inclusive without limitation of
the practice of not preparing footnotes) which was not fully disclosed,
reflected or reserved against in the Interim Financial Statements including,
without limitation, such Liabilities arising in connection with any
distribution agreement (although excluding any obligations under leases,
capitalized or otherwise); and, except for Liabilities which have been incurred
since such date in the Ordinary Course of Business, the Company has not
incurred any such Liability except as disclosed on SCHEDULE 3.8 or as would be
included in the Debt Amount or the LTIP Amount, or in respect of leases,
capitalized or otherwise with obligations in excess of $250,000 in the
aggregate. At the Closing Date neither the Company nor any Subsidiary of the
Company will have any Indebtedness other than the Debt Amount and intercompany
debt owned among the Company and its Subsidiaries.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
As an inducement to Seller to enter into this Agreement and to
consummate the transactions contemplated hereby, and in consideration of the
covenants of Seller contained herein, Buyer hereby represents and warrants to
the Seller as follows:
SECTION 4.1 ORGANIZATION OF BUYER. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Buyer has the corporate power and corporate authority to own, lease,
operate or otherwise hold its properties and assets and to carry on its
business as it is now being conducted.
SECTION 4.2 AUTHORITY OF BUYER; CONFLICTS. Buyer has the corporate
power and authority to execute, deliver and perform this Agreement and each
other agreement or certificate delivered pursuant hereto and to consummate the
transactions contemplated in each such agreement. This Agreement and each other
agreement or certificate delivered pursuant hereto by Buyer has been duly
authorized and
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approved by Buyer's board of directors and do not require any further
authorization or consent of Buyer or its shareholders. This Agreement and each
other agreement or certificate delivered pursuant hereto has been duly
authorized, executed and delivered by Buyer and (assuming the valid
authorization, execution and delivery of this Agreement and each other
agreement or certificate delivered pursuant hereto by Seller) each such
agreement is the legal, valid and binding agreement of Buyer enforceable in
accordance with its terms, subject to the Bankruptcy Exception.
(b) Neither the execution and delivery of this Agreement each other agreement or
certificate delivered herewith by Buyer or the consummation of any of the
transactions contemplated hereby and thereby nor compliance with or fulfillment
of the terms, conditions and provisions hereof and thereof will:
(i) conflict with, result in a breach of the terms, conditions or provisions
of, or constitute a default, an event of default or an event creating rights
of acceleration, termination or cancellation or a loss of rights under (A) the
Organizational Documents of Buyer, (B) any material note, instrument, mortgage,
lease, franchise or financial obligation to which Buyer is a party or any of
its properties is subject or by which Buyer is bound, (C) any Order to which
Buyer is a party or by which it is bound or (D) any Law by which Buyer is
bound, or
(ii) require the approval, consent, authorization or act of, or the making by
Buyer of any declaration, filing or registration with, any Person, except for
(A) in connection, or in compliance, with the provisions of the HSR Act, and
(B) such approvals, consents, authorizations, declarations, filings or
registrations the failure of which to be obtained or made would not materially
impair the ability of Buyer to perform its obligations hereunder or prevent the
consummation of any of the transactions contemplated hereby.
SECTION 4.3 NO PROCEEDING. There is no Action pending or, to the
Knowledge of Buyer, threatened that questions the legality or propriety of
the transactions contemplated by this Agreement.
SECTION 4.4 NO FINDERS OR BROKERS. Except as set forth in SCHEDULE 4.4,
neither Buyer nor any Person acting on its behalf has paid or become obligated
to pay any fee or commission to any broker, finder or intermediary for or on
account of the transactions contemplated by this Agreement.
SECTION 4.5 FINANCIAL ABILITY. Buyer has ready access to sufficient
funds or has received written commitments from responsible financial
institutions to provide sufficient funds on the Closing Date to pay the
Preliminary Purchase Price.
SECTION 4.6 INVESTMENT INTENT. Buyer is acquiring the Shares as an
investment for its own account and not with a view to the distribution thereof.
Buyer shall not sell, transfer, assign, pledge or hypothecate any of the Shares
in the absence of registration under, or pursuant to an applicable exemption
from, federal and applicable state securities Laws.
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ARTICLE V.
ACTIONS PRIOR TO THE CLOSING DATE
The respective parties hereto covenant and agree to take the
following actions between the date hereof and the Closing Date set forth
hereinbelow. All references to the Company, unless the context requires
otherwise, shall include the Company and each of its Subsidiaries.
SECTION 5.1 ACCESS TO INFORMATION. The officers, employees and authorized
representatives of Buyer (including, without limitation, independent
public accountants and attorneys) shall have reasonable access, during normal
business hours and upon reasonable advance notice, to the
offices, properties, employees and business and financial records of the
Company, to the extent Buyer shall reasonably deem necessary or desirable and
the Company shall furnish to Buyer or its authorized representatives such
additional information concerning the Company as shall be reasonably requested
and shall reasonably promptly respond to reasonable inquiries by Seller;
PROVIDED, HOWEVER, that the Seller shall not be required to violate any
obligation of confidentiality to which it is subject in discharging its
obligations pursuant to this SECTION 5.1. Buyer agrees that such investigation
shall be conducted in such a manner as not to interfere unreasonably with the
operations of the Seller. No such access, examination or review shall in any way
affect, diminish, terminate or mitigate any of the representations, warranties
or covenants of Seller set forth herein. If in the course of any investigation
pursuant to this SECTION 5.1 the Buyer's officers, employees or authorized
representatives discover any breach of any representation or warranty contained
in this Agreement that is not immaterial, or any circumstance or condition that
upon Closing would constitute such a breach, Buyer covenants that it will use
its best efforts to promptly inform Seller in writing; PROVIDED, the failure by
Buyer to so inform Seller shall not in any way affect, diminish, terminate or
mitigate Seller's liability for such breach.
SECTION 5.2 PUBLICITY. The initial press release announcing the transactions
contemplated herein shall be released jointly after mutual agreement between
the parties hereto and thereafter except for making customary communications by
the Company and Buyer to employees, shareholders, financial analysts, customers
or suppliers, the parties hereto shall obtain the prior approval of each party
hereto prior to issuing any press releases or otherwise making public
announcements with respect to the transactions contemplated herein and prior to
making any filings with any Authority or with any national securities exchange
with respect thereto, except as may be required by Law or by obligations
pursuant to any listing agreement with or rules of any national securities
exchange.
SECTION 5.3 CERTAIN NOTIFICATIONS. Each party shall promptly notify the other
of any Action that shall be instituted or threatened against such party to
restrain, prohibit or otherwise challenge the legality of any transaction
contemplated by this Agreement. Each party hereto shall promptly notify the
other of any lawsuit, claim, proceeding or investigation that may be
threatened, brought, asserted or commenced against the Company or Buyer, as the
case may be, that would have been listed in SCHEDULE 3.13 or constitute an
exception to SECTION 4.3, as the
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case may be, if such lawsuit, claim, proceeding or investigation had arisen
prior to the date hereof. Seller shall promptly notify Buyer in writing of any
event following the date hereof of which Seller is or becomes aware that could
have a Material Adverse Effect or adversely affect the performance by Seller of
its obligations under the Agreement.
SECTION 5.4 REQUIRED APPROVALS. Each party hereto hereby agrees to cooperate
with the other and use its reasonable efforts to promptly prepare and file all
necessary documentation, to effect all necessary applications, notices,
petitions, filings and other documents and to obtain as promptly as practicable
all necessary permits, consents, approvals and authorizations of all third
parties and Authorities that are necessary to the consummation of the
transactions contemplated herein. Each party shall have the right to review in
advance, and to the extent practicable each will consult with the other on, in
each case subject to applicable Laws relating to the exchange of information,
all the information relating to the other party that appears in any filing made
with, or written materials submitted to, all third parties and Authorities in
connection with the transactions contemplated in this Agreement. In exercising
the foregoing right, Buyer and the Seller shall act reasonably and as promptly
as practicable. Buyer and the Seller agree that they will keep the other
apprised of the status of matters relating to completion of the transactions
contemplated herein, including promptly furnishing the other with copies of
notices or other communications received from all third parties and Authorities
with respect to the transactions contemplated herein. HSR ACT. Buyer and Seller
each agree to prepare and file the Notification and Report Form required
pursuant to the HSR Act with the FTC and the Antitrust Division if reasonably
practicable on the date hereof, and otherwise by no later than the first (1st)
Business Day following the date hereof. The Notification and Report Form shall
be in accordance with the requirements of the HSR Act. Each such party hereby
covenants (i) to request early termination of the waiting period required by
the HSR Act; (ii) to promptly furnish to the other party hereto such necessary
or appropriate information and reasonable assistance, including access to each
other's documents and personnel, as such other party may reasonably request in
connection with its preparation of necessary or voluntary filings and other
submissions, communications or presentations pursuant to the HSR Act; (iii) to
promptly keep the other party apprised of the status of any communications with
and any inquiries by the FTC or Antitrust Division; and (iv) to comply with a
request for additional information issued by the FTC, the Antitrust Division or
any other Authority, as the case may be, as promptly and expeditiously as
practicable. The parties shall use best efforts and cooperate to expedite the
termination of the waiting period under the HSR Act. Buyer and Seller each
agree that they will not undertake any unilateral contacts with either the FTC
or Antitrust Division without the prior approval of the other party. Buyer
shall pay the HSR Act filing fee. If any administrative, judicial or
legislative action or proceeding is instituted (or threatened to be instituted)
challenging the transactions contemplated by this Agreement as violative of any
antitrust Law, Buyer and Seller shall each use best efforts and cooperate to
contest and vigorously resist any such action or proceeding, and to have
vacated, lifted, reversed or overturned as promptly and expeditiously as
practicable any decree, judgment, injunction or other order (whether temporary,
preliminary or permanent) that is in effect and that restricts, prevents or
prohibits consummation of the transactions contemplated by this Agreement,
including, without limitation, by pursuing all reasonable avenues of
administrative and judicial appeal.
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SECTION 5.6 OPERATIONS PRIOR TO THE CLOSING DATE.
(a) The Company shall operate and carry on its business in the Ordinary Course
of Business including, without limitation, the processing of cash receipts
and disbursements. The Company shall use all commercially reasonable efforts
consistent with good business practice to preserve its goodwill, prospects,
rights, properties, assets and business, and to preserve and protect the
Company's relationships with its suppliers, contractors, employees, customers,
including without limitation, its current and prospective relationship with the
Girl Scouts Councils with whom it has a Contract, relating to the sale of
cookies thereto.
(b) Notwithstanding SECTION 5.6(a), except as expressly contemplated by this
Agreement or except with the express written approval of Buyer (which Buyer
agrees shall not be unreasonably withheld or delayed), the Company shall not,
except as allowed on SCHEDULE 5.6:
(i) other than is required pursuant to applicable Laws, take any act listed in
subparagraph (a) through (j) of SECTION 3.8; or
(ii) other than in the Ordinary Course of Business, enter into or terminate any
Material Contract;
(iii) not issue any shares of its capital stock or issue any distribution or
dividend thereon of property or capital stock; PROVIDED, HOWEVER,
notwithstanding anything herein to the contrary, the Company shall be entitled
to (i) distribute or forgive the promissory note received from Parent in respect
of the Shanghai and Tainjin joint ventures, and (ii) make distributions from
available cash on hand from time to time in any amount or amounts to Parent on
or prior to the end of business on the Friday prior to the Closing Date;
(iv) enter into or contract for any hedging or similar derivative transaction
other than in the Ordinary Course of Business;
(v) engage in the offering of special programs whether written or oral
including, without limitation, trade discounts, special payment terms,
consignment programs, pricing changes or announced price increases which will be
effective in the future other than in the Ordinary Course of Business; or
(vi) enter into or issue letter of credit guarantees in connection with route
man loans other than in the Ordinary Course of Business.
(c) As of the Closing Date, any net intercompany receivables, payables, loans
and any other corporate charges then existing between the Company, Parent and
any affiliate (excluding the Company's Subsidiaries) shall be settled or
forgiven (implementing whichever action is most tax advantageous to the Company)
and any intercompany agreement between such parties shall be terminated.
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SECTION 5.7 BOOKS AND RECORDS. Buyer agrees to, and shall cause the Company to,
retain all books, records and other documents pertaining to the Company's
business in existence on the Closing Date for a period of four (4) years (or
such longer period of the applicable statutes of limitation relating to claims
relative to such matters or such longer period as is required by Law) after the
Closing and to make the same available after the Closing Date for inspection and
copying by Parent or Parent's agents, upon reasonable request and upon
reasonable notice.
SECTION 5.8 FURTHER ASSURANCES. At any time and from time to time after the
Closing Date, the parties hereto agree to (a) furnish upon request to each other
such further assurances, information, documents, instruments of transfer or
assignment, files and books and records as reasonably requested, (b) promptly
execute, acknowledge, and deliver any such further assurances, documents,
instruments of transfer or assignment, files and books and records as reasonably
requested, and (c) do all such further acts and things all as such other party
may reasonably request for the purpose of carrying out the intent of this
Agreement and the documents referred to herein.
SECTION 5.9 EXCLUSIVITY. Unless this Agreement has been terminated in
accordance with ARTICLE VII, and except as provided on SCHEDULE 5.9, Seller
agrees that from the date hereof neither it nor any of Seller's officers,
directors, shareholders, affiliates or other representatives (collectively the
"AFFILIATED PARTIES") will invite, solicit or encourage proposals or offers or
entertain, accept, negotiate, discuss or otherwise participate in a possible
merger, combination, sale or other disposition of the Shares or substantially
all the assets of Parent or the Company or any business combination or change
in control of the Company (a "COMPANY SALE") with any other party. Seller
represents that it is not a party to or bound by any agreement with respect to
a Company Sale other than this Agreement. Seller shall cause the Affiliated
Parties to immediately cease and terminate any existing or prior existing
activities, discussions or negotiations with any persons or entities conducted
heretofore with respect to any Company Sale, and shall promptly request each
such person or entity who has heretofore entered into a confidentiality
agreement in connection with a Company Sale or has otherwise received
information in connection with a Company Sale to (a) return to the Seller all
confidential information heretofore furnished to such person or entity by or on
behalf of the Seller and (b) destroy (and certify to the Seller as to the
destruction) all notes, analyses, compilations, reports, forecasts, studies,
memoranda, computer-stored data or other documents which contain, or are based
in whole or in part or otherwise reflect, confidential information received in
connection with a Company Sale. It is intended by the parties hereto that so
long as the terms of this SECTION 5.9 are in effect, Buyer shall have the
exclusive right to purchase the Shares on the terms and conditions herein
contained.
SECTION 5.10 TAX WITHHOLDING. The Company and Seller shall take all
actions necessary to comply with sections 897, 1446, and 3406 of the Code and
any rules, regulations, and orders promulgated thereunder. In the event that
the Company or Parent fails to provide Buyer, at or prior to Closing (a) an
affidavit in the form attached hereto as EXHIBIT 5.10, or (b) other evidence
satisfactory to Buyer that the transactions contemplated by this Agreement are
exempt from any Taxes which may apply by reason of sections 897, 1446, or 3406
of the Code,
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Buyer shall have the right to withhold the required portion of the Purchase
Price ("Tax Withholding"). The amount of Tax Withholding shall be credited
against the Purchase Price and Parent shall not have recourse against Buyer for
the amount of the Tax Withholding.
SECTION 5.11 EMPLOYMENT MATTERS. Buyer covenants and agrees after Closing to
timely discharge all Liabilities under the 1998 Long Term Incentive Plan as
directed by Parent. Parent shall reimburse the Company for any Liabilities so
discharged to the extent not reflected in the LTIP Amount. Buyer also covenants
and agrees that for a period of one (1) year after Closing, the Company shall
continue the employment of Messrs. Woolf, Cavitt and Bayers at their current
salary and bonus opportunity levels with generally comparable terms and
conditions of employment (other than job title and specific duties) and fringe
benefits; PROVIDED, that long-term incentive and other programs (severance,
etc.) will be determined by the Company after Closing in its discretion.
SECTION 5.12 INTEREST RATE SWAP AGREEMENTS. Seller covenants and agrees to
terminate all interest rate swap agreements to which the Company is a party at
or prior to Closing.
SECTION 6.1 LOS ANGELES OFFICE. The Company covenants and agrees to close the
Company's Los Angeles office prior to Closing and any expense, cost or liability
in connection therewith shall either be discharged by the Company prior to
Closing or accrued as a current liability on the Closing Balance Sheet.
ARTICLE VI
CONDITIONS TO OBLIGATION OF PARTIES TO CLOSE
CONDITIONS TO OBLIGATIONS OF SELLER TO CLOSE. The obligations of the Seller to
consummate the sale and transfer of the Shares and the other transactions set
forth herein shall be subject to the satisfaction or waiver on or prior to the
Closing Date of the following conditions: (a) REPRESENTATIONS, WARRANTIES AND
AGREEMENTS. Each of the representations and warranties of Buyer contained in
this Agreement shall be true and correct in all material respects as of the
Closing Date, except that such representations and warranties made as of a
specific date need only be true as of such specified date, and each of the
covenants and agreements of Buyer to be performed on or prior to the Closing
Date shall have been duly performed in all material respects.
(b) OPINION OF BUYER'S COUNSEL. Seller shall have received from Winston &
Strawn, counsel to Buyer, an opinion dated as of the Closing Date to the effect
set forth in EXHIBIT 2.5(b).
(c) PRELIMINARY PURCHASE PRICE. Buyer shall have made payment of the Preliminary
Purchase Price in the amount and manner provided for in SECTION 2.2(c).
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(d) SECRETARY'S CERTIFICATE. Seller shall have received copies of the
resolutions of the Board of Directors of Buyer, authorizing the execution,
delivery and performance of this Agreement and certificates of the secretary or
any assistant secretary of the Buyer dated as of the Closing Date, to the effect
that such resolutions were duly adopted and are in full force and effect,
together with copies of the Organizational Documents of the Buyer certified by
such secretary or assistant secretary.
(e) INDEMNIFICATION ESCROW AGREEMENTS. The Buyer shall have entered into
Indemnification Escrow Agreements.
(f) NO ORDER. No Order shall be in effect which would prohibit or restrict the
consummation of any of the transactions contemplated hereby.
(g) CLOSING DOCUMENTS. Buyer shall have delivered all agreements, certificates,
instruments, opinions and other documents required to be delivered by it on the
Closing Date pursuant to SECTION 2.5.
SECTION 6.2 CONDITIONS TO OBLIGATIONS OF BUYER TO CLOSE. The obligations of the
Buyer to consummate the purchase and sale of the Shares and the other
transactions set forth herein shall be subject to the satisfaction or waiver on
or prior to the Scheduled Closing Date of the following conditions:
(a) REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Each of the representations and
warranties of the Seller contained in this Agreement shall be true and correct
in all material respects as of the date of this Agreement and as of the Closing
Date, in each case with the same effect as though such representations and
warranties had been made on and as of such date, except that such
representations and warranties made as of a specific date need only be true as
of such specified date, and each of the covenants and agreements of the Seller
to be performed on or prior to the Closing Date shall have been duly performed
in all material respects; PROVIDED, HOWEVER, that, notwithstanding the failure
of such representations and warranties to be true and correct, and such
covenants and agreements to be performed, the condition provided in this
SECTION 6.2(a) shall be deemed satisfied if the aggregate Losses and Expenses
that could reasonably be expected (as determined as indicated below) to
result to Buyer by reason of the failure of such representations and warranties
to be true and correct and such covenants and agreements to be performed, if
the Closing would be effected, is (i) less than or equal to $2 million, or (ii)
greater than $2 million, only if the Seller elects, in its discretion, by a
notice to Buyer, to increase the then effective Supplemental Letter of Credit
Escrow Amount by the amount that such Losses and Expenses exceed $2 million,
PROVIDED that such increase may not exceed $15 million in the aggregate. In the
event Buyer in good faith at any time believes that the amount of such Losses
and Expenses exceed $2 million, Buyer shall provide the Seller a certificate to
such effect, which certificate shall set forth the details on which such belief
is based. If the Seller does not agree in writing within ten (10) Business Days
of the issuance of Buyer's certificate that the amount of the Losses and
Expenses determined pursuant to this SECTION 6.2(a) exceed $2 million, the
issue shall be settled by arbitration in accordance with the arbitration
procedures set forth in Section 9.12 hereof. The decision resulting from such
arbitration shall be final regarding the issue of whether such Losses and
Expenses exceed $2 million and whether the
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condition provided in this Section 6.2(a) is satisfied. Any claim for
indemnification (including claims for Losses and Expenses identified pursuant to
this SECTION 6.2(a)) which may be asserted by Buyer relative to the failure of
such representations or warranties to be true and correct and such covenants and
agreements to be performed shall be determined in accordance with the provisions
of Article VIII hereto regarding indemnification, and upon a determination in
accordance therewith, the Supplemental Letter of Credit Escrow Amount shall be
reduced by the amount, if any, by which the Supplemental Letter of Credit Escrow
Amount was increased in respect of such claim, LESS the amount disbursed to
Buyer pursuant to such determination.
(b) OPINION OF SELLER'S COUNSEL. Buyer shall have received from Jones, Day,
Reavis & Pogue, an opinion dated as of the Closing Date to the effect set forth
in EXHIBIT 2.4(f).
(c) SHARE CERTIFICATES. Parent shall have delivered to Buyer the certificates
evidencing the Shares, accompanied by stock powers duly executed in blank.
(d) SECRETARY'S CERTIFICATES. Buyer shall have received copies of the
resolutions of the respective Boards of Directors of each of the Parent and the
Company (and the Parent as sole shareholder of the Company) authorizing the
execution, delivery and performance of this Agreement and certificates of the
secretary or any assistant secretary of each of Parent and the Company dated as
of the Closing Date, to the effect that such resolutions were duly adopted and
are in full force and effect, together with copies of the Organizational
Documents of each of the Parent and the Company certified by their respective
secretaries or assistant secretaries.
(e) INDEMNIFICATION ESCROW AGREEMENTS. The Parent shall have entered into the
Indemnification Escrow Agreements.
(f) NO ORDER. No Order shall be in effect which would prohibit or restrict the
consummation of any of the transactions contemplated hereby.
(g) CLOSING DOCUMENTS. Seller shall have delivered all agreements, certificates,
instruments, opinions and other documents required to be delivered by it on the
Closing Date pursuant to SECTION 2.4.
SECTION 6.3 CONDITION TO OBLIGATIONS OF THE PARTIES TO CLOSE. The respective
obligations of the Seller and Buyer to consummate the purchase and sale of the
Shares and the other transactions set forth herein shall be subject to the
satisfaction or waiver on or prior to the Scheduled Closing Date of the
following condition:
The waiting period applicable to the purchase and sale of the
Shares provided for herein under the HSR Act shall have
expired or been terminated, and there shall be no order or
injunction of any court of competent jurisdiction that
prohibits the purchase and sale of the Shares provided for
herein.
SECTION 6.4 EFFECT OF WAIVER OF CONDITIONS, ETC. Any of the foregoing
conditions may be waived, in whole or in part, by any party as to whom such
condition is a condition precedent to such party's performance, for purposes of
consummating the purchase and
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sale of the Shares and the other transactions provided for herein. Should the
condition provided for in Section 6.2(a) be satisfied by reason of a
determination by the parties or by arbitration that the amount of the Damage
Proviso has not been exceeded, and the Closing occurs, although the Seller may
have nonetheless breached a representation, warranty or covenant hereunder,
nothing provided in Section 6.2(a) shall obviate or diminish Buyer's right to
seek indemnification therefor in accordance with the provisions of Article VIII
hereto regarding indemnification, subject to the conditions and limitations
therein.
ARTICLE VII.
TERMINATION OF AGREEMENT
SECTION 7.1 TERMINATION. This Agreement constitutes the binding and irrevocable
agreement of the parties to consummate the transactions contemplated hereby, and
this Agreement may be terminated prior to the Closing only as follows:
By mutual written consent of Buyer and Seller;
(a) By the Seller by written notice to Buyer given subsequent to December 26,
1998, if the Closing shall not have been consummated on or prior to such date,
regardless of whether the condition provided in Section 6.3 has been satisfied,
unless any of the conditions precedent to the obligation of Buyer to effect the
Closing set forth in Section 6.2 shall not have been satisfied or waived; or
(b) By the Buyer by written notice to Seller given subsequent to December 26,
1998, if the Closing shall not have been consummated on or prior to such date,
regardless of whether the condition provided in SECTION 6.3 has been satisfied,
unless any of the conditions precedent to the obligations of Seller to effect
the Closing set forth in Section 6.1 shall not have been satisfied or waived.
SECTION 7.2 EFFECT OF TERMINATION.
(a) In the event of a termination of this Agreement pursuant to SECTION 7.1
hereof, each party shall pay the Expenses incurred by it in connection with the
Agreement and no party hereto shall have any liability or obligation to any
other party to this Agreement under or in connection with this Agreement, but
except that nothing herein will relieve any party from liability for any breach
of this Agreement prior to such termination; PROVIDED, HOWEVER, that if this
Agreement is terminated by a party because of the breach of this Agreement by
the other party or because one or more of the conditions to the terminating
party's obligations under this Agreement is not satisfied as a result of the
other party's failure to comply in all material respects with its obligations
under this Agreement, the terminating party's rights to pursue all legal
remedies will survive such termination unimpaired.
(b) Notwithstanding any termination of this Agreement, the obligations of the
parties with respect to SECTION 5.2 (Publicity), SECTION 9.11 (Governing Law),
and in the Confidentiality Agreement shall survive.
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ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1 INDEMNIFICATION BY THE PARENT. From and after the Closing, Parent
shall defend, indemnify, hold harmless and waive any claim for contribution
against the Buyer, the Company and all of their officers, directors, employees,
agents and affiliates from and against and in respect of any and all Losses and
Expenses arising out of or due to a breach of any representation, warranty or
covenant of the Seller contained in this Agreement, PROVIDED, that Parent shall
have no obligation to indemnify Buyer (other than for indemnification claims
with a respect to a breach of the representations or warranties contained in
SECTIONS 3.6 and 3.9 hereof which shall not be subject to this proviso) until
the aggregate Losses and Expense to which it would be entitled to be indemnified
pursuant to this sentence shall equal or exceed Two Million Dollars
($2,000,000), in which event Parent shall be obligated only for Losses and
Expenses in excess of such sum; and PROVIDED FURTHER, that the liability of
Parent for indemnification hereunder shall be limited to, and all such claims
for indemnification hereunder shall be payable solely from (and to the extent
of), (i) the Cash Escrow Amount pursuant to the terms and conditions of the Cash
Indemnification Escrow Agreement for any indemnification claim other than with
respect to a breach of the representations or warranties contained in SECTION
3.9, (ii) the Tax Letter of Credit Escrow Amount pursuant to the terms and
conditions of the Tax Letter of Credit Indemnification Escrow Agreement for any
indemnification claim with respect to a breach of the representations contained
in SECTION 3.9, and (iii) the Supplemental Letter of Credit Escrow Amount
pursuant to the terms and conditions of the Supplemental Letter of Credit
Indemnification Escrow Agreement, if and only if (A) the Cash Escrow Amount has
been exhausted (and not in any event with respect of a claim for a breach of the
representations in SECTION 3.9), or (B) a claim for indemnification is made with
respect to a breach of the representations in SECTION 3.19 after the date that
is fifteen (15) months after the Closing Date. The indemnification provided for
in this SECTION 8.1 shall terminate on the date that is fifteen (15) months
after the Closing Date and no claim may be made by Buyer hereunder or pursuant
to the Cash Indemnification Escrow Agreement, the Supplemental Letter of Credit
Indemnification Escrow Agreement, the Tax Letter of Credit Indemnification
Escrow Agreement or otherwise thereafter, except for (x) indemnification claims
with respect to a breach of the representations or warranties contained in
SECTION 3.19 which may be made pursuant to the Supplemental Letter of Credit
Indemnification Escrow Agreement prior to the date that is thirty (30) months
after the Closing Date, and (y) indemnification claims with respect to a breach
of the representations or warranties contained in SECTION 3.9 which may be made
pursuant to the Tax Letter of Credit Indemnification Escrow Agreement prior to
the date that is thirty-six (36) months after the Closing Date. Notwithstanding
anything herein to the contrary, an indemnification claim in respect of a breach
of the representations or warranties in SECTIONS 3.6 and 3.18(c) and the
covenants set forth in SECTION 5.11 shall not be subject to any of the
limitations in this SECTION 8.1.
SECTION 8.2 INDEMNIFICATION BY BUYER. From and after the Closing, Buyer agrees
to defend, indemnify, hold harmless and waive any claim for contribution
against Parent and all of its officers, directors, employees, agents, and
affiliates from and against any and all Losses and Expenses incurred by Parent
or arising out of or due to a breach of any representation,
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warranty or covenant of Buyer contained in this Agreement. The maximum amount
payable by Buyer pursuant to this SECTION 8.2 shall not exceed $10 million.
Buyer's obligation to make payments hereunder shall expire fifteen (15) months
after the Closing Date.
SECTION 8.3 PROCEDURE FOR INDEMNIFICATION.
(a) Promptly after the receipt by a party hereto of notice of any claim or the
commencement of any action or proceeding, such party (the "INDEMNIFIED PARTY")
will, if a claim with respect thereto is to be made against the other party
pursuant to SECTION 8.1 or 8.2, give the indemnifying party (the "INDEMNIFYING
PARTY") written notice of such claim or the commencement of such action or
proceeding and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting from such claim; PROVIDED that no failure
or delay in delivery of any notice shall impair the rights of the Indemnified
Party, except to the extent the Indemnifying Party is prejudiced thereby. If the
Indemnifying Party assumes the defense of any such claim or litigation resulting
therefrom, the obligations of the Indemnifying Party as to such claim shall be
limited to taking all steps necessary in the defense or settlement of such claim
or litigation resulting therefrom and to the extent required by SECTION 8.1 or
8.2, and subject to its terms, conditions and limitations, to holding the
Indemnified Party harmless from and against any and all Losses and Expenses
caused by or arising out of any settlement approved by the Indemnifying Party or
any judgment in connection with such claim or litigation resulting therefrom.
The Indemnified Party may participate, at its expense, in the defense of such
claim or litigation provided that the attorney selected by the Indemnifying
Party to represent the Indemnifying Party shall direct and control the defense
of such claim or litigation. The Indemnifying Party shall not, in the defense of
such claim or any litigation resulting therefrom, consent to entry of any
judgment, or enter into any settlement, except with the written consent of the
Indemnified Party, which does not include as an unconditional term thereof the
giving by the claimant or the plaintiff to the Indemnified Party of a release
from all liability in respect of such claim or litigation or which provides for
a settlement payment in excess of the remaining amount held pursuant to the
Indemnification Escrow Agreement.
(b) If the Indemnifying Party shall not assume the defense of any such claim or
litigation resulting therefrom, the Indemnified Party may defend against such
claim or litigation in such manner as it may deem appropriate. The Indemnified
Party may not settle such claim or litigation as to which it seeks
indemnification hereunder without the written consent of the Indemnifying Party
(which consent shall not be unreasonably withheld).
SECTION 8.4 EXCLUSIVE REMEDY. Other than a claim for breach should the Closing
not occur, the parties hereto acknowledge and agree that the remedies provided
in this ARTICLE VIII shall be the sole and exclusive remedies of such parties
(or any Person claiming by or through such party) for breach, misrepresentation
or default by any party under or in respect to this Agreement, or in respect of
the transactions provided for herein. In particular, and not in limitation of
the foregoing, each party hereto waives in respect of, and covenants not to sue,
each other party hereto, as to any claim, right or remedy against or in respect
of (including without limitation any right of contribution) as to each such
other party under any Environmental Law, including without limitation, the
Comprehensive Environmental Response Compensation and Liability Act of 1989, as
amended.
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SECTION 8.5 EXCLUSION OF CERTAIN DAMAGES. Except as provided for in this
Agreement, for purposes of this ARTICLE VIII, no party shall have any liability
under this Agreement or any agreement, document or instrument delivered pursuant
to this Agreement, or in connection with the transactions contemplated hereby or
thereby, for indirect, consequential or incidental damages of any kind or
nature, including, without limitation, loss of profits or loss of business,
howsoever caused.
SECTION 8.5 MITIGATION, ETC. Any party seeking indemnification for any damages
for which it is entitled to seek indemnification shall use all commercially
reasonable efforts to mitigate its damages in connection with such indemnity
claim. The indemnification obligation of any party shall be adjusted so as to
give credit to such party for any tax benefits, or any other recovery available
to the party being indemnified, including without limitation insurance and
contractual or other rights to indemnification available from third parties.
ARTICLE IX.
GENERAL PROVISIONS
SECTION 9.1 CONFIDENTIAL NATURE OF INFORMATION. Buyer agrees that all
documents, materials and other information which it shall have obtained
regarding the Company during the course of the negotiations leading to the
consummation of the transactions contemplated hereby (whether obtained before or
after the date of this Agreement), the investigation provided for herein and the
preparation of this Agreement and other related documents shall be held in
confidence pursuant to terms, conditions and limitations set forth in the
Confidentiality Agreement.
SECTION 9.2 NON-COMPETITION AGREEMENT. From the date of Closing for a period of
one (1) year Parent shall not, directly or indirectly, or as the agent of
another Person or through other Persons as an agent:
(i) engage, directly or indirectly, within the United States in a business the
same as, or substantially similar to, the business currently conducted by the
Company and Buyer;
(ii) own, manage or operate any other business directly or indirectly engaged in
the promotion, sale or distribution, within the United States, of products or
services competitive with those of the business currently conducted by the
Company and Buyer, except that an interest of less than five percent (5%) of a
publicly-held corporation that is engaged in a business competitive with the
business currently conducted by the Company and Buyer within the United States
shall be permitted; or
(iii) directly or indirectly solicit for employment any employee of Buyer or
the Company within the United States, or request, induce or advise any employee
to leave the employ of Buyer or the Company, unless Buyer consents to said
employee leaving the employ of the Buyer or the Company.
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(b) The necessity of protection against the competition of Parent against Buyer
or the Company and the nature and scope of such protection has been carefully
considered by the parties hereto. The parties hereto agree and acknowledge that
the duration, scope and geographic areas applicable to the covenant
not-to-compete described in this SECTION 9.2 are fair, reasonable and necessary
and that adequate compensation has been received by Sellers for such
obligations. If, however, for any reason any court determines that the
restrictions in this SECTION 9.2 are not reasonable or that consideration is
inadequate, such restrictions shall be interpreted, modified or rewritten to
include as much of the duration, scope and geographic area identified in this
SECTION 9.2 as will render such restrictions valid and enforceable.
(c) In the event of a breach or threatened breach of this SECTION 9.2, Buyer
shall be entitled, without the posting of a bond, to an injunction restraining
such breach. Nothing herein contained shall be construed as prohibiting any
party from pursuing any other remedy available to it for such breach or
threatened breach.
SECTION 9.3 NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given or delivered when
delivered personally or when sent by registered or certified mail or by private
courier addressed as follows:
If to Buyer, to:
Keebler Foods Company
677 Larch Avenue
Elmhurst, Illinois 60126
Attention: Sam K. Reed
with a copy to:
Keebler Foods Company
677 Larch Avenue
Elmhurst, Illinois 60126
Attention: Thomas E. O'Neill
and:
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Attention: Bruce A. Toth
Oscar A. David
42
<PAGE> 42
If to Seller, and prior to Closing, to:
President International Trade and Investment Corporation
c/o 41 Perimeter Center East
Suite 400
Atlanta, Georgia 30346
Attention: Eric H. Wen
or, if to Seller, and subsequent to Closing, to:
President International Trade and Investment Corporation
c/o President Enterprises Corporation
301 Chung Chen Rd. Yan Harng
Yeong Kang Shiano
Tainan Hsien, Taiwan
Republic of China
Attention: C. S. Lin
with a copy, in either case, to:
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
Attention: John E. Zamer
and
Jones, Day, Reavis & Pogue
8th Floor
No. 2 Tun Hwa South Road
Section 2, Taipei
Taiwan, R.O.C.
Attention: Jack J. T. Huang
or to such other address as such party may indicate by a notice delivered to the
other party hereto.
SECTION 9.5 SUCCESSORS AND ASSIGNS. The rights of either party under this
Agreement shall not be assignable by such party without the written consent of
the other party. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their successors and permitted assigns. Nothing in
this Agreement, expressed or implied, is intended or shall be construed to
confer upon any Person other than the parties and successors and assigns
permitted by this SECTION 9.4 any right, remedy or claim under or by reason of
this Agreement.
SECTION 9.5 ENTIRE AGREEMENT; AMENDMENTS. This Agreement, the Exhibits and
Schedules referred to herein and the documents delivered pursuant hereto and the
43
<PAGE> 43
Confidentiality Agreement contain the entire understanding of the parties hereto
with regard to the subject matter contained herein or therein, and supersede all
other prior agreements, understandings or letters of intent between or among any
of the parties hereto. This Agreement shall not be amended, modified or
supplemented except by a written instrument signed by an authorized
representative of each of the parties hereto.
SECTION 9.6 INTERPRETATION. Articles, titles and headings to sections herein
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement. The Schedules
and Exhibits referred to herein shall be construed with and as an integral part
of this Agreement to the same extent as if they were set forth verbatim herein.
Neither the specification of any dollar amount in any representation or warranty
contained in this Agreement nor the inclusion of any specific item in any
Schedule hereto is intended to imply that such amount, or higher or lower
amounts, or the item so included or other items, are or are not material, and no
party shall use the fact of the setting forth of any such amount or the
inclusion of any such item in any dispute or controversy between the parties as
to whether any obligation, item or matter not described herein or included in
any Schedule or Exhibit is or is not material for purposes of this Agreement.
Unless this Agreement specifically provides otherwise, neither the specification
of any item or matter in any representation or warranty contained in this
Agreement nor the inclusion of any specific item in any Schedule hereto is
intended to imply that such item or matter, or other items or matters, are or
are not in the ordinary course of business, and no party shall use the fact of
the setting forth or the inclusion of any such item or matter in any dispute or
controversy between the parties as to whether any obligation, item or matter not
described herein or included in any Schedule is or is not in the ordinary course
of business for purposes of this Agreement.
SECTION 9.7 WAIVERS. Any term or provision of this Agreement may be waived, or
the time for its performance may be extended, by the party or parties entitled
to the benefit thereof. Any such waiver shall be validly and sufficiently
authorized for the purposes of this Agreement if, as to any party, it is
authorized in writing by an authorized representative of such party. The failure
of any party hereto to enforce at any time any provision of this Agreement shall
not be construed to be a waiver of such provision, nor in any way to affect the
validity of this Agreement or any part hereof or the right of any party
thereafter to enforce each and every such provision. No waiver of any breach of
this Agreement shall be held to constitute a waiver of any other or subsequent
breach.
SECTION 9.8 EXPENSES. The Buyer on the one hand, and the Parent, with respect
to the costs and expenses of Parent and the Company, on the other hand, will pay
all costs and expenses incident to its negotiation and preparation of this
Agreement and to its performance and compliance with all agreements and
conditions contained herein on its part to be performed or complied with,
including the fees, expenses and disbursements of its counsel and independent
public accountants.
SECTION 9.9 PARTIAL INVALIDITY. Wherever possible, each provision hereof shall
be interpreted in such manner as to be effective and valid under applicable Law,
but in case any one or more of the provisions contained herein shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
provision shall be ineffective to the extent, but only to the
44
<PAGE> 44
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or
provisions or any other provisions hereof, unless such a construction would be
unreasonable.
SECTION 9.10 EXECUTION IN COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be considered an original instrument,
but all of which shall be considered one and the same agreement, and shall
become binding when one or more counterparts have been signed by each of the
parties hereto and delivered to Seller and Buyer.
SECTION 9.11 FURTHER ASSURANCES. On and after the Closing Date each party
hereto shall take such other actions and execute such other documents and
instruments of conveyance and transfer as may be reasonably requested by the
other party hereto from time to time to effectuate or confirm the transfer of
the Shares to Buyer in accordance with the terms of this Agreement.
SECTION 9.12 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement shall
be governed by and construed in accordance with the internal laws (as opposed
to the conflicts of law provisions) of the State of New York. The parties
hereby irrevocably and unconditionally agree that except as provided in SECTION
9.13 hereof, any legal action or proceeding arising out of or relating to this
Agreement may be brought in the United States District Court for the Southern
District of New York; PROVIDED, HOWEVER, in the event such court shall not then
have jurisdiction over such action or proceeding, each party hereby irrevocably
and unconditionally agrees that such action or proceeding may be brought in any
state court in the State of New York. By the execution and delivery of this
Agreement, each party hereby irrevocably submits to the exclusive jurisdiction
of such court(s). Each party hereby waives any objection which it may hereafter
have to the laying of venue of any proceeding arising out of or relating to
this Agreement brought in the United States District Court for the Southern
District of New York (or in any state court in the State of New York in the
event said United States District Court shall not then have jurisdiction) and
further waives any claim that any such proceeding brought in such court(s) has
been brought in an inconvenient forum.
SECTION 9.13 CONSULTATION AND ARBITRATION.
The parties hereto agree that they shall attempt to resolve in good faith
disputes arising in connection with the proviso set forth in SECTION 6.2(a) of
this Agreement. Parent and Buyer shall designate one officer for this purpose
who is expressly authorized to make decisions. A dispute shall be referred by a
party for consultation between the parties by delivering written notice to the
other party briefly stating the nature of the dispute and requesting
consultation.
(b) In the event that, upon the expiration of ten (10) calendar days after
receipt of the notice referred to in subsection (a) of this Section, the
parties are unable to resolve the matter in dispute, and if the matter relates
to any alleged breach of any representation, warranty, covenant or agreement in
this Agreement hereto, then the dispute shall be resolved in the manner
provided in subsection (c) of this Section.
45
<PAGE> 45
(c) Any dispute with respect to the proviso set forth in SECTION 6.2(a) of this
Agreement, including any dispute relating to the construction or interpretation
of the rights and obligations of any party, which is not resolved through
consultation as provided in subsection (a) and (b) of this Section, shall be
resolved by an arbitration proceeding conducted in accordance with the
following:
(i) The arbitration proceeding shall be governed by the commercial rules of the
American Arbitration Association ("AAA");
(ii) The arbitrators shall be qualified by education and training to pass upon
the particular matter to be decided;
(iii) There shall be three (3) arbitrators, one of whom shall be selected by the
party seeking to initiate arbitration, one by the other party and the third by
the two arbitrators so selected;
(iv) The arbitration proceeding shall take place in Atlanta, Georgia;
(v) The parties shall agree in advance as to the manner in which the
arbitration panel shall promptly hear witnesses and arguments, review documents
and otherwise conduct the arbitration proceedings. Both parties shall
receive notice of the subject of the arbitration and the arbitration shall not
be binding on the parties with respect to any matters not specified in such
notice. Should the parties fail to reach an agreement as to the conduct of such
proceedings, the arbitration panel shall formulate its own procedural rules and
promptly commence the arbitration proceedings;
(vi) The arbitration proceedings shall be conducted as expeditiously as
possible with due consideration for the complexity of the dispute in question.
The arbitration panel shall issue its decision in writing within fifteen (15)
days from the hearing of final arguments by the parties.
(vii) The arbitration award shall be given in writing and shall be final and
binding on the parties with respect to the subject matter identified in the
notice called for by subjection (c)(v) of this Section, and not subject to any
appeal and shall deal with the question of costs of arbitration;
(viii) Judgment upon the award may be entered in any court having jurisdiction
or, application may be made to such court for a judicial recognition of the
award or an order of enforcement thereof, as the case may be;
(ix) The parties shall not submit a dispute subject to this subsection (c) of
this Section to any federal, state, local or foreign court or arbitration
association except as may be necessary to enforce the arbitration procedures of
this subsection (c) of this Section or to enforce the award of the arbitration
panel, and if court proceedings to stay litigation or compel arbitration under
the Federal Arbitration Act (Title 9, U.S.C.) or
46
<PAGE> 46
similar state or foreign legislation are necessary, the party who unsuccessfully
opposes such proceedings shall pay all associated costs, expenses and attorneys'
fees which are reasonably and actually incurred by the other party; and
(x) The parties shall keep confidential the arbitration proceedings and the
terms of any arbitration award, except as may be otherwise required by Law.
SECTION 9.14 DISCLAIMER OF WARRANTIES. Seller makes no representations or
warranties with respect to any projections, forecasts or forward-looking
information provided to Buyer. There is no assurance that any projected or
forecasted results will be achieved. EXCEPT AS TO THOSE MATTERS EXPRESSLY
COVERED BY THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT, SELLER IS
SELLING THE SHARES (AND THE BUSINESS AND ASSETS OF THE COMPANY REPRESENTED
THEREBY) ON AN "AS IS, WHERE IS" BASIS AND DISCLAIM ALL OTHER WARRANTIES,
REPRESENTATIONS AND GUARANTIES WHETHER EXPRESS OR IMPLIED. EXCEPT FOR THOSE
REPRESENTATIONS OR WARRANTIES SET FORTH IN THIS AGREEMENT, SELLER MAKES NO
REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE AND NO IMPLIED WARRANTIES WHATSOEVER. Buyer acknowledges that neither
Seller nor any of its representatives nor any other Person has made any
representation or warranty, express or implied, as to the accuracy or
completeness of any memoranda, charts, summaries or schedules heretofore made
available by Seller or its respective representatives to Buyer or any other
information which is not included in this Agreement or the Schedules hereto,
and neither Seller nor any of its representatives nor any other Person will
have or be subject to any liability to Buyer, any affiliate of Buyer or any
other Person resulting from the distribution of any such information to, or
use of any such information by, Buyer, any affiliate of Buyer or any of their
agents, consultants, accountants, counsel or other representatives.
47
<PAGE> 47
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PRESIDENT INTERNATIONAL TRADE
AND INVESTMENT CORPORATION
By: /s/ ERIC HONG-HSU WEN
Name: Eric Hong-Hsu Wen
Title: President
PRESIDENT INTERNATIONAL, INC.
By: /s/ ERIC HONG-HSU WEN
Name: Eric Hong-Hsu Wen
Title: Vice Chairman & CEO
KEEBLER FOODS COMPANY
By: /s/ SAM K. REED
Name: Sam K. Reed
Title: President & CEO
48
<PAGE> 48
The following schedules to the Stock Purchase Agreement have been omitted. The
Company hereby undertakes to furnish supplementally a copy of any such omitted
schedules to the Commission upon request.
SCHEDULE TITLE
- -------- -----
SCHEDULE 3.1 CORPORATE ORGANIZATION AND QUALIFICATION
SCHEDULE 3.2 CAPITALIZATION
SCHEDULE 3.3 AUTHORITY: CONFLICTS
SCHEDULE 3.7 FINANCIAL STATEMENTS
SCHEDULE 3.8 ABSENCE OF CERTAIN CHANGES
SCHEDULE 3.8(c) ABSENCE OF CERTAIN CHANGES
SCHEDULE 3.9 TAXES
SCHEDULE 3.11 INTELLECTUAL PROPERTY
ATTACHMENT 1 U.S. TRADEMARKS:
- PRESIDENT BAKING COMPANY, INC.
- BISHOP BAKING COMPANY
- FAMOUS AMOS CHOCOLATE CHIP COOKIE CORPORATION
- PLANTATION BAKING COMPANY, INC.
ATTACHMENT 2 FOREIGN TRADEMARK/SERVICE MARK APPLICATIONS AND
REGISTRATIONS:
- PRESIDENT BAKING COMPANY, INC.
- BISHOP BAKING COMPANY, INC.
- FAMOUS AMOS CHOCOLATE CHIP COOKIE CORPORATION
- PLANTATION BAKING COMPANY
ATTACHMENT 3 ADDITIONAL FOREIGN TRADEMARK/SERVICE MARK APPLICATIONS AND
REGISTRATIONS:
- PRESIDENT BAKING COMPANY, INC.
- BISHOP BAKING COMPANY, INC.
- FAMOUS AMOS CHOCOLATE CHIP COOKIE CORPORATION
- PLANTATION BAKING COMPANY
SCHEDULE 3.12(a) REAL PROPERTY
SCHEDULE 3.12(c) CONDEMNATION
SCHEDULE 3.13 LITIGATION
SCHEDULE 3.14(a) CONTRACTS
SCHEDULE 3.14(b) CONTRACTS
SCHEDULE 3.14(c) CONTRACTS
SCHEDULE 3.15(a) EMPLOYEE BENEFITS: ERISA
SCHEDULE 3.15(f) MULTIEMPLOYER PLANS
SCHEDULE 3.15(g) RETIREE BENEFITS
<PAGE> 49
SCHEDULE 3.15(h) "REPORTABLE EVENTS," "PROHIBITED TRANSACTIONS," AND
BREACHES OF "FIDUCIARY DUTY"
SCHEDULE 3.15(i) ACTIONS WITH RESPECT TO COMPENSATION AND BENEFIT PLANS
SCHEDULE 3.15(k) SEVERANCE PAY PLANS, POLICIES, ARRANGEMENTS OR PROGRAMS
SCHEDULE 3.15(m) SEVERANCE PAY: COMPENSATION INCREASES
SCHEDULE 3.16 COMPLIANCE WITH LAWS
SCHEDULE 3.17 INSURANCE
SCHEDULE 3.18 INTERESTS OF RELATED PERSONS
SCHEDULE 3.19 ENVIRONMENTAL MATTERS
SCHEDULE 3.19(b) ENVIRONMENTAL PERMITS
SCHEDULE 3.20 LABOR MATTERS
SCHEDULE 3.21(a) EQUIPMENT AND OTHER PROPERTY ENCUMBRANCES
SCHEDULE 3.21(b) YEAR 2000 CERTIFICATIONS
SCHEDULE 3.22 BANK ACCOUNTS AND AUTHORIZED PERSONS
SCHEDULE 3.23 BROKERS
SCHEDULE 3.24 PRODUCTION SCHEDULE
SCHEDULE 3.25 PARENT OPERATIONS
SCHEDULE 5.6 OPERATIONS PRIOR TO THE CLOSING DATE
ATTACHMENT A OWNERS OF M/J/FA
ATTACHMENT B EEO CHARGES
ATTACHMENT C GIRL SCOUT BROKER AGREEMENTS AND GIRL SCOUT COUNCIL
SALES AGREEMENTS
SCHEDULE 5.9 SECTION 5.9 CLOSING DATE CLAUSE
EXHIBIT A FORM OF CASH INDEMNIFICATION ESCROW AGREEMENT
SCHEDULE 1 PERMITTED INVESTMENTS
EXHIBIT B FORM OF SUPPLEMENTAL LETTER OF CREDIT INDEMNIFICATION
ESCROW AGREEMENT
SCHEDULE 1 PERMITTED INVESTMENTS
EXHIBIT C FORM OF TAX LETTER OF CREDIT INDEMNIFICATION ESCROW
AGREEMENT
SCHEDULE 1 PERMITTED INVESTMENTS
<PAGE> 50
EXHIBIT 2.4(f) OPINION LETTER TO KEEBLER FROM JONES, DAY, REAVIS & POGUE
EXHIBIT 2.4(l) STOCK PURCHASE AGREEMENT LETTER TO KEEBLER FROM PRESIDENT
ENTERPRISES CORP.
EXHIBIT 2.5(b) OPINION LETTER TO PRESIDENT INTERNATIONAL TRADE AND
INVESTMENT CORPORATION FROM WINSTON & STRAWN
EXHIBIT 5.10 A PRESIDENT INTERNATIONAL, INC. TAX REPRESENTATION LETTER
EXHIBIT 5.10 B NOTICE OF STATEMENT GIVEN TO SHAREHOLDER
EXHIBIT 5.10 C FORM W-8, CERTIFICATE OF FOREIGN STATUS
<PAGE> 1
EXHIBIT 10.33
CREDIT AGREEMENT,
dated as of September 28, 1998,
among
KEEBLER FOODS COMPANY,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
THE BANK OF NOVA SCOTIA,
as the Lead Arranger and
the Administrative Agent for the Lenders,
THE FIRST NATIONAL BANK OF CHICAGO,
as the Syndication Agent for the Lenders,
BANK OF MONTREAL,
as the Managing agent for the Lenders,
and
NATIONSBANK, N.A.,
THE NORTHERN TRUST COMPANY,
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
NEW YORK BRANCH,
SUNTRUST BANK, ATLANTA, and
WACHOVIA BANK,
as the Co-Agents for the Lenders
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
<S> <C> <C>
1.1. Defined Terms.....................................................................2
1.2. Use of Defined Terms.............................................................24
1.3. CrossReferences..................................................................25
1.4. Accounting and Financial Determinations..........................................25
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
2.1. Commitments......................................................................25
2.1.1. Term Loan Commitments............................................................25
2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment.........................25
2.1.3. Letter of Credit Commitment......................................................26
2.1.4. Lenders Not Permitted or Required To Make the Loans..............................26
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit......................27
2.2. Reduction of the Commitment Amounts..............................................27
2.2.1. Optional.........................................................................27
2.2.2. Mandatory........................................................................27
2.3. Borrowing Procedures and Funding Maintenance.....................................27
2.3.1. Term Loans and Revolving Loans...................................................28
2.3.2. Swing Line Loans.................................................................28
2.4. Continuation and Conversion Elections............................................29
2.5. Funding..........................................................................30
2.6. Issuance Procedures..............................................................30
2.6.1. Other Lenders' Participation.....................................................31
2.6.2. Disbursements; Conversion to Revolving Loans.....................................31
2.6.3. Reimbursement....................................................................31
2.6.4. Deemed Disbursements.............................................................32
2.6.5. Nature of Reimbursement Obligations..............................................32
2.6.6. Deemed Issuance of Existing Letters of Credit....................................33
2.7. Register; Notes..................................................................33
</TABLE>
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<PAGE> 3
ARTICLE III
<TABLE>
<CAPTION>
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
<S> <C> <C>
3.1. Repayments and Prepayments; Application..........................................35
3.1.1. Repayments and Prepayments.......................................................35
3.1.2. Application......................................................................37
3.2. Interest Provisions..............................................................37
3.2.1. Rates............................................................................37
3.2.2. PostMaturity Rates...............................................................38
3.2.3. Payment Dates....................................................................38
3.3. Fees.............................................................................39
3.3.1. Commitment Fee...................................................................39
3.3.2. Administrative Agent's Fee.......................................................39
3.3.3. Letter of Credit Fee.............................................................39
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful.......................................................39
4.2. Deposits Unavailable.............................................................40
4.3. Increased LIBO Rate Loan Costs, etc..............................................40
4.4. Funding Losses...................................................................40
4.5. Increased Capital Costs..........................................................41
4.6. Taxes............................................................................41
4.7. Payments, Computations, etc......................................................43
4.8. Sharing of Payments..............................................................43
4.9. Setoff...........................................................................44
4.10. Mitigation.......................................................................44
4.11. Replacement of Lenders...........................................................44
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Initial Credit Extensions........................................................45
5.1.1. Resolutions, etc.................................................................45
5.1.2. Delivery of Notes................................................................45
5.1.3. Consummation of Acquisition......................................................45
5.1.4. Acquisition Documents............................................................46
5.1.5. Closing Date Certificate.........................................................46
5.1.6. Payment of Outstanding Indebtedness, etc.........................................46
5.1.7. Financial Information, etc.......................................................46
</TABLE>
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<PAGE> 4
<TABLE>
<CAPTION>
<S> <C> <C>
5.1.8. Solvency, etc....................................................................47
5.1.9. Litigation.......................................................................47
5.1.10. Material Adverse Change..........................................................47
5.1.11. Sources and Uses, etc............................................................47
5.1.12. Governmental Approval, etc.......................................................47
5.1.13. Trustee Letter; Calculation of Consolidated Coverage Ratio.......................47
5.1.14. Opinion of Counsel...............................................................47
5.1.15. Reliance Letters.................................................................48
5.1.16. Closing Fees, Expenses, etc......................................................48
5.2. All Credit Extensions............................................................48
5.2.1. Compliance with Warranties, No Default, etc......................................48
5.2.2. Credit Extension Request.........................................................48
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc................................................................49
6.2. Due Authorization, NonContravention, etc.........................................49
6.3. Government Approval, Regulation, etc.............................................49
6.4. Validity, etc....................................................................49
6.5. Financial Information............................................................50
6.6. No Material Adverse Change.......................................................50
6.7. Litigation, Labor Controversies, etc.............................................50
6.8. Year 2000 Compliance.............................................................50
6.9. Ownership of Properties..........................................................50
6.10. Taxes............................................................................50
6.11. Pension and Welfare Plans........................................................51
6.12. Environmental Warranties.........................................................51
6.13. Regulations U and X..............................................................52
6.14. Accuracy of Information..........................................................52
6.15. Seniority of Obligations, etc....................................................52
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants............................................................53
7.1.1. Financial Information, Reports, Notices, etc.....................................53
7.1.2. Compliance with Laws, etc........................................................54
7.1.3. Maintenance of Properties........................................................55
7.1.4. Books and Records................................................................55
7.1.5. Use of Proceeds, etc.............................................................55
7.1.6. LongTerm Debt Rating Downgrade...................................................56
</TABLE>
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<PAGE> 5
<TABLE>
<CAPTION>
<S> <C> <C>
7.2. Negative Covenants...............................................................57
7.2.1. Business Activities..............................................................57
7.2.2. Indebtedness.....................................................................57
7.2.3. Liens............................................................................58
7.2.4. Financial Condition..............................................................60
7.2.5. Investments......................................................................60
7.2.6. Restricted Payments, etc.........................................................61
7.2.7. Capital Expenditures, etc........................................................63
7.2.8. Consolidation, Merger, etc.......................................................63
7.2.9. Asset Dispositions, etc..........................................................63
7.2.10. Modification of Certain Agreements...............................................64
7.2.11. Transactions with Affiliates.....................................................65
7.2.12. Negative Pledges, Restrictive Agreements, etc....................................65
7.2.13. Sale and Leaseback...............................................................65
7.2.14. Indenture Restrictions...........................................................66
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default.....................................................66
8.1.1. NonPayment of Obligations........................................................66
8.1.2. Breach of Warranty...............................................................66
8.1.3. NonPerformance of Certain Covenants and Obligations..............................66
8.1.4. NonPerformance of Other Covenants and Obligations................................66
8.1.5. Default on Other Indebtedness....................................................67
8.1.6. Judgments........................................................................67
8.1.7. Pension Plans....................................................................67
8.1.8. Change in Control................................................................67
8.1.9. Bankruptcy, Insolvency, etc......................................................67
8.1.10. Impairment of Security, etc......................................................68
8.1.11. Subordinated Notes...............................................................68
8.1.12. Termination of Receivables Facility..............................................69
8.2. Action if Bankruptcy, etc........................................................69
8.3. Action if Other Event of Default.................................................69
ARTICLE IX
THE AGENTS
9.1. Actions..........................................................................69
9.2. Funding Reliance, etc............................................................70
9.3. Exculpation......................................................................70
9.4. Successor........................................................................71
</TABLE>
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<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C>
9.5. Credit Extensions by Each Agent..................................................71
9.6. Credit Decisions.................................................................71
9.7. Copies, etc......................................................................71
9.8. The Syndication Agent, the Managing Agent and the CoAgents.......................72
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc.........................................................72
10.2. Notices..........................................................................73
10.3. Payment of Costs and Expenses....................................................73
10.4. Indemnification..................................................................74
10.5. Survival.........................................................................75
10.6. Severability.....................................................................75
10.7. Headings.........................................................................75
10.8. Execution in Counterparts, Effectiveness, etc....................................75
10.9. Governing Law; Entire Agreement..................................................75
10.10. Successors and Assigns...........................................................75
10.11. Sale and Transfer of Loans and Notes; Participations in Loans and Notes..........76
10.11.1. Assignments......................................................................76
10.11.2. Participations...................................................................78
10.12. Other Transactions...............................................................79
10.13. Forum Selection and Consent to Jurisdiction......................................79
10.14. Waiver of Jury Trial.............................................................79
10.15. Confidentiality..................................................................80
</TABLE>
- v -
<PAGE> 7
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Fiscal Quarters
SCHEDULE III - Percentages and Administrative Information
SCHEDULE IV - Existing Letters of Credit
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term Note
EXHIBIT A-3 - Form of Swing Line Note
EXHIBIT A-4 - Form of Registered Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Lender Assignment Agreement
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F - Form of Closing Date Certificate
EXHIBIT G - Form of Intercompany Subordination Agreement
EXHIBIT H - Form of Solvency Certificate
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<PAGE> 8
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of September 28, 1998, is among KEEBLER
FOODS COMPANY, a Delaware corporation (the "BORROWER"), the various financial
institutions as are or may become parties hereto (collectively, the "LENDERS"),
THE BANK OF NOVA SCOTIA ("SCOTIABANK"), as the lead arranger and as the
administrative agent (the "ADMINISTRATIVE AGENT") for the Lenders, THE FIRST
NATIONAL BANK OF CHICAGO, as the syndication agent (the "SYNDICATION AGENT") for
the Lenders, the BANK OF MONTREAL as the managing agent (the "MANAGING AGENT")
for the Lenders, and NATIONSBANK, N.A., THE NORTHERN TRUST COMPANY, COOPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., NEW YORK BRANCH, SUNTRUST BANK,
ATLANTA and WACHOVIA BANK as the co-agents (collectively, the "CO-AGENTS") for
the Lenders.
W I T N E S S E T H:
WHEREAS, in accordance with and subject to the terms and conditions
contained in the Stock Purchase Agreement, dated August 24, 1998 (as amended or
otherwise modified in accordance with CLAUSE (a) of SECTION 7.2.10, the
"PURCHASE AGREEMENT"), by and among the Borrower, President International, Inc.,
a Delaware corporation ("PRESIDENT") and President International Trade and
Investment Corporation, a company limited by shares under the International
Business Companies Ordinance of the British Virgin Islands (the "SELLER"), the
Borrower has agreed to acquire (the "ACQUISITION") from the Seller all of the
outstanding shares of issued and outstanding shares of Capital Stock (the
"SHARES") of President, as further set forth in the Purchase Agreement, for an
aggregate purchase price not to exceed $450,000,000 (as such amount may be
adjusted pursuant to the terms of the Purchase Agreement);
WHEREAS, in connection with the Acquisition, the Borrower has requested the
Lenders and the Issuer to provide
(a) a Term Loan Commitment pursuant to which Borrowings of Term Loans
will be made, in a maximum, original principal amount equal to the Term
Loan Commitment Amount, to the Borrower in a single Borrowing to occur on
the Closing Date;
(b) a Revolving Loan Commitment (to include availability for Revolving
Loans, Swing Line Loans and Letters of Credit) pursuant to which Borrowings
of Revolving Loans will be made to the Borrower from time to time prior to
the Revolving Loan Commitment Termination Date;
(c) a Letter of Credit Commitment pursuant to which the Issuer will
issue Letters of Credit from time to time prior to the Revolving Loan
Commitment Termination Date; and
(d) a Swing Line Loan Commitment pursuant to which Borrowings of Swing
Line Loans will be made from time to time prior to the Revolving Loan
Commitment Termination Date; and
<PAGE> 9
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including ARTICLE V), to extend such
Commitments and make Loans to the Borrower and issue (or participate in) Letters
of Credit pursuant to the Commitments described above;
NOW, THEREFORE, the parties hereto agree as set forth above and as follows.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. DEFINED TERMS. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"ACCOUNT" means any account (as that term is defined in Section 9-106 of
the UCC) of the Borrower or any of its wholly-owned U.S. Subsidiaries arising
from the sale or lease of goods or rendering of services.
"ACQUISITION" is defined in the FIRST RECITAL.
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE and includes each other
Person as shall have subsequently been appointed as the successor Administrative
Agent pursuant to SECTION 9.4.
"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 15% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners; or
(b) to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.
"AGENTS" means, collectively, the Administrative Agent, the Syndication
Agent, the Managing Agent and the Co-Agents.
"AGREEMENT" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"ALTERNATE BASE RATE" means, on any date and with respect to all Base Rate
Loans, a fluctuating rate of interest per annum equal to the higher of
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<PAGE> 10
(a) the rate of interest most recently established by the
Administrative Agent at its Domestic Office as its base rate for Dollar
loans in the United States; and
(b) the Federal Funds Rate most recently determined by the
Administrative Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions of
credit. Changes in the rate of interest on that portion of any Loans maintained
as Base Rate Loans will take effect simultaneously with each change in the
Alternate Base Rate. The Administrative Agent will give notice promptly to the
Borrower and the Lenders of changes in the Alternate Base Rate.
"APPLICABLE COMMITMENT FEE MARGIN" means at all times during the applicable
periods set forth below, the applicable percentage per annum set forth below
under the column entitled "Applicable Commitment Fee Margin":
<TABLE>
<CAPTION>
Applicable
Debt to EBITDA Ratio Commitment Fee Margin
-------------------- ---------------------
<S> <C>
Greater than or equal to 3.5:1 0.30%
Greater than or equal to 3.0:1 and less
than 3.5:1 0.25%
Greater than or equal to 2.5:1 and less
than 3.00:1 0.20%
Greater than or equal to 2.0:1 and less
than 2.5:1 0.15%
Less than 2.0:1 0.125%;
</TABLE>
PROVIDED, that, notwithstanding the then applicable Debt to EBITDA Ratio, the
Applicable Commitment Fee Margin for the period from the Closing Date through
the sixth-month anniversary of the Closing Date shall be at least 0.20%. The
Debt to EBITDA Ratio used to compute the Applicable Commitment Fee Margin shall
be the Debt to EBITDA Ratio set forth in the Compliance Certificate most
recently delivered by the Borrower to the Administrative Agent pursuant to
CLAUSE (c) of SECTION 7.1.1; changes in the Applicable Commitment Fee Margin
resulting from a change in the Debt to EBITDA Ratio shall become effective upon
delivery by the Borrower to the Administrative Agent of a new Compliance
Certificate pursuant to CLAUSE (c) of SECTION 7.1.1. If the Borrower shall fail
to deliver a Compliance Certificate within the number of days after the end of
any Fiscal Quarter as required pursuant to CLAUSE (c) of SECTION 7.1.1 (without
giving effect to any grace period), the Applicable Commitment Fee Margin from
and including the first day after the date on which such Compliance Certificate
was required to be delivered to but not including the date the Borrower delivers
to the Administrative Agent a Compliance Certificate shall conclusively equal
the highest Applicable Commitment Fee Margin set forth above.
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<PAGE> 11
"APPLICABLE MARGIN" means at all times during the applicable periods set
forth below,
(a) with respect to the unpaid principal amount of each Revolving Loan
and each Term Loan maintained as a Base Rate Loan, the applicable
percentage per annum set forth below under the column entitled "Applicable
Margin for Base Rate Loans"; and
(b) with respect to the unpaid principal amount of each Revolving Loan
and each Term Loan maintained as a LIBO Rate Loan, the applicable
percentage per annum set forth below under the column entitled "Applicable
Margin for LIBO Rate Loans":
<TABLE>
<CAPTION>
Applicable Applicable
Margin for Base Margin for LIBO
Debt to EBITDA Ratio Rate Loans Rate Loans
-------------------- ---------- ----------
<S> <C> <C>
Greater than or equal to 3.5:1 0.25% 1.25%
Greater than or equal to 3.0:1 and less
than 3.5:1 0.00% 1.00%
Greater than or equal to 2.5:1 and less
than 3.0:1 0.00% 0.75%
Greater than or equal to 2.0:1 and less
than 2.5:1 0.00% 0.50%
Less than 2.0:1 0.00% 0.40%;
</TABLE>
PROVIDED, that, notwithstanding the then applicable Debt to EBITDA Ratio, the
Applicable Margin for LIBO Rate Loans for the period from the Closing Date
through the sixth-month anniversary of the Closing Date shall be at least 0.75%.
The Debt to EBITDA Ratio used to compute the Applicable Margin for Revolving
Loans and Term Loans shall be the Debt to EBITDA Ratio set forth in the
Compliance Certificate most recently delivered by the Borrower to the
Administrative Agent pursuant to CLAUSE (c) of SECTION 7.1.1; changes in the
Applicable Margin for Revolving Loans and Term Loans resulting from a change in
the Debt to EBITDA Ratio shall become effective upon delivery by the Borrower to
the Administrative Agent of a new Compliance Certificate pursuant to CLAUSE (c)
of SECTION 7.1.1. If the Borrower shall fail to deliver a Compliance Certificate
within the number of days after the end of any Fiscal Quarter as required
pursuant to CLAUSE (c) of SECTION 7.1.1 (without giving effect to any grace
period), the Applicable Margin for Revolving Loans and Term Loans from and
including the first day after the date on which such Compliance Certificate was
required to be delivered to but not including the date the Borrower delivers to
the Administrative Agent a Compliance Certificate shall conclusively equal the
highest Applicable Margin for Revolving Loans and Term Loans set forth above.
"ARTAL" means ARTAL Luxembourg S.A., a corporation organized under the laws
of Luxembourg.
"ASSIGNEE LENDER" is defined in SECTION 10.11.1.
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<PAGE> 12
"AUTHORIZED OFFICER" means, relative to any Obligor, those of its officers
whose signatures and incumbency shall have been certified to the Administrative
Agent and the Lenders pursuant to SECTION 5.1.1.
"BANK CONFIDENTIAL OFFERING MEMORANDUM" means, the Confidential Offering
Memorandum, dated September, 1998.
"BASE RATE LOAN" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"BORROWER" is defined in the PREAMBLE.
"BORROWING" means the Loans of the same type and, in the case of LIBO Rate
Loans, having the same Interest Period made by the relevant Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
SECTION 2.1.
"BORROWING REQUEST" means a loan request and certificate duly executed by
an Authorized Officer of the Borrower, substantially in the form of EXHIBIT B-1
hereto.
"BRIDGE AGREEMENT" means the credit agreement, dated as of the date hereof,
between the Borrower and Scotiabank, as amended, supplemented, amended and
restated or otherwise modified from time to time.
"BUSINESS DAY" means
(a) any day which is neither a Saturday or Sunday nor a legal holiday
on which banks are authorized or required to be closed in Atlanta, Georgia
or New York, New York; and
(b) relative to the making, continuing, prepaying or repaying of any
LIBO Rate Loans, any day on which dealings in Dollars are carried on in the
London interbank market.
"CAPITAL EXPENDITURES" means for any period, the sum, without duplication,
of
(a) the aggregate amount of all expenditures of the Borrower and its
Subsidiaries for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures; and
(b) the aggregate amount of all Capitalized Lease Liabilities incurred
during such period.
"CAPITALIZED LEASE LIABILITIES" means, without duplication, all monetary
obligations of the Borrower or any of its Subsidiaries under any leasing or
similar arrangement which, in accordance with GAAP, would be classified as
capitalized leases, and, for purposes of this Agreement and each other Loan
Document, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP, and the stated maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease
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<PAGE> 13
prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"CAPITAL STOCK" means (i) any and all shares, interests, participations or
other equivalents of or interests in (however designated) corporate stock,
including shares of preferred or preference stock, (ii) all partnership
interests (whether general or limited) in any Person which is a partnership,
(iii) all membership interests or limited liability company interests in any
limited liability company, and (iv) all equity or ownership interests in any
Person of any other type.
"CASH EQUIVALENT INVESTMENT" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one year
after such time, issued or guaranteed by the United States Government or
any agency thereof;
(b) commercial paper, maturing not more than nine months from the
date of issue, which is issued by
(i) a corporation (other than an Affiliate of any Obligor)
organized under the laws of any state of the United States or of the
District of Columbia and rated at least A1 by S&P or P-1 by Moody's,
or
(ii) any Lender (or its holding company);
(c) any certificate of deposit or bankers acceptance, maturing not
more than one year after such time, which is issued by either
(i) a commercial banking institution that is a member of the
Federal Reserve System and has a combined capital and surplus and
undivided profits of not less than $500,000,000, or
(ii) any Lender;
(d) short-term tax-exempt securities rated not lower than MIG-1/1+ by
either Moody's or S&P with provisions for liquidity or maturity
accommodations of 183 days or less;
(e) any money market or similar fund the assets of which are comprised
exclusively of any of the items specified in CLAUSES (a) through (d) above
and as to which withdrawals are permitted at least every 90 days; or
(f) any repurchase agreement entered into with any Lender or any
commercial banking institution of the stature referred to in CLAUSE (c)(i)
which
(i) is secured by a fully perfected security interest in any
obligation of the type described in CLAUSE (a), and
(ii) has a market value at the time such repurchase agreement is
entered into of not less than 100% of the repurchase obligation of
such commercial banking institution thereunder.
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<PAGE> 14
"CASH FLOW COVERAGE RATIO" means, at the close of any Fiscal Quarter, the
ratio, computed (except as set forth in CLAUSES (c), (d) and (e), below) for the
period consisting of such Fiscal Quarter and each of the three immediately prior
Fiscal Quarters, of
(a) EBITDA less Capital Expenditures actually made by the Borrower and
its Subsidiaries (for all such Fiscal Quarters)
TO
(b) Interest Expense (for all such Fiscal Quarters);
PROVIDED, HOWEVER, that in computing the Cash Flow Coverage Ratio for
(c) the fourth Fiscal Quarter of the 1998 Fiscal Year, the amount set
forth in CLAUSE (b) above shall equal the amount set forth in CLAUSE (b)
for such Fiscal Quarter multiplied by four;
(d) the first Fiscal Quarter of the 1999 Fiscal Year, the amount set
forth in CLAUSE (b) above shall equal the amount set forth in CLAUSE (b)
for such Fiscal Quarter and the immediately preceding Fiscal Quarter
multiplied by two; and
(e) the second Fiscal Quarter of the 1999 Fiscal Year, the amount set
forth in CLAUSE (b) above shall equal the amount set forth in CLAUSE (b)
for such Fiscal Quarter and the two immediately preceding Fiscal Quarters
multiplied by 1.333.
"CERCLA" means the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"CHANGE IN CONTROL" means
(a) any "person" or "group" (as such terms are used in Rule 13d-5 of
the Exchange Act, and Sections 13(d) and 14(d) of the Exchange Act) of
persons (other than the Permitted ARTAL Investor Group or Flowers or, in
either case, any of their wholly-owned Subsidiaries) becomes, directly or
indirectly, in a single transaction or in a related series of transactions
by way of merger, consolidation, or other business combination or
otherwise, the "beneficial owner" (as such term is used in Rule 13d-3 of
the Exchange Act) of more than 30% of the total voting power in the
aggregate of all classes of Capital Stock of the Borrower then outstanding
entitled to vote generally in elections of directors of the Borrower; or
(b) during any period of 24 consecutive months, individuals who at the
beginning of such period constituted the Board of Directors of the Borrower
(together with any new directors whose election to such Board or whose
nomination for election by the stockholders of the Borrower was approved by
ARTAL or Flowers or a vote of a majority of the directors then still in
office who were either directors at the beginning
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<PAGE> 15
of such period or whose nomination for election was previously so approved)
cease for any reason to constitute a majority of the Board of Directors of
the Borrower then in office.
"CLOSING DATE" means the date all conditions set forth in SECTION 5.1 are
satisfied (or have been waived) and the initial Credit Extension is made
hereunder.
"CLOSING DATE CERTIFICATE" means a certificate of an Authorized Officer of
the Borrower, substantially in the form of EXHIBIT F hereto, delivered pursuant
to SECTION 5.1.5.
"CO-AGENTS" is defined in the PREAMBLE.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITMENT" means, as the context may require, a Lender's Letter of Credit
Commitment, Revolving Loan Commitment, Swing Line Loan Commitment or Term Loan
Commitment.
"COMMITMENT AMOUNT" means, as the context may require, the Letter of Credit
Commitment Amount, the Revolving Loan Commitment Amount, the Swing Line Loan
Commitment Amount or the Term Loan Commitment Amount.
"COMMITMENT TERMINATION DATE" means, as the context may require, the
Revolving Loan Commitment Termination Date or the Term Loan Commitment
Termination Date.
"COMMITMENT TERMINATION EVENT" means
(a) the occurrence of any Event of Default described in CLAUSES (a)
through (d) of SECTION 8.1.9 with respect to the Borrower; or
(b) the occurrence and continuance of any other Event of Default and
either
(i) the declaration of the Loans to be due and payable pursuant
to SECTION 8.3, or
(ii) in the absence of such declaration, the giving of notice by
the Administrative Agent, acting at the direction of the Required
Lenders, to the Borrower that the Commitments have been terminated.
"COMPLIANCE CERTIFICATE" means a certificate duly completed and executed by
the chief financial Authorized Officer of the Borrower, substantially in the
form of EXHIBIT E hereto.
"CONSOLIDATED TANGIBLE ASSETS" means, as determined on any date, all assets
other than intangible assets of the Borrower and its Subsidiaries as reflected
on the latest audited consolidated financial statements of the Borrower and its
Subsidiaries.
"CONTINGENT LIABILITY" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, a
-8-
<PAGE> 16
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability, including "keep-well" agreements, of any
other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person. The amount of any Person's obligation under any
Contingent Liability shall (subject to any limitation set forth therein) be
deemed to be the outstanding principal amount (or maximum principal amount, if
larger) of the debt, obligation or other liability guaranteed thereby.
"CONTINUATION/CONVERSION NOTICE" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of EXHIBIT C hereto.
"CONTROLLED GROUP" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Borrower, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"CREDIT EXTENSION" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension of any
Stated Expiry Date of any previously issued Letter of Credit, by the
Issuer.
"CREDIT EXTENSION REQUEST" means, as the context may require, any Borrowing
Request or Issuance Request.
"DEBT" means, without duplication, as determined on any date, Indebtedness
of the Borrower and its Subsidiaries to the extent reflected on a consolidated
balance sheet of the Borrower determined in accordance with GAAP (but net, for
so long as no Revolving Loans or Swing Line Loans are outstanding on such date
of determination, of cash and Cash Equivalent Investments of the Borrower and
its Subsidiaries on such date) and which shall also include Indebtedness of the
Borrower and its Subsidiaries of the type referred to in clauses (b) (without
duplication of letters of credit issued to support obligations under industrial
development revenue bonds to the extent the obligations arising under such bonds
are otherwise included in this definition, and exclusive of documentary trade
letters of credit) and (f) of the definition of "Indebtedness" or any Contingent
Liability in respect thereof.
"DEBT TO EBITDA RATIO" means, as of the last day of any Fiscal Quarter, the
ratio of
(a) Debt outstanding on the last day of such Fiscal Quarter
TO
(b) EBITDA computed for the period consisting of such Fiscal Quarter
and each of the three immediately preceding Fiscal Quarters.
"DEFAULT" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
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<PAGE> 17
"DISBURSEMENT" is defined in SECTION 2.6.2.
"DISBURSEMENT DATE" is defined in SECTION 2.6.2.
"DISBURSEMENT DUE DATE" is defined in SECTION 2.6.2.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
SCHEDULE I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrower with the written consent of the Required Lenders.
"DOLLAR" and the sign "$" mean lawful money of the United States.
"DOMESTIC OFFICE" means, relative to any Lender, the office of such Lender
designated as such on SCHEDULE III hereto or designated in the Lender Assignment
Agreement or such other office of a Lender (or any successor or assign of such
Lender) within the United States as may be designated from time to time by
notice from such Lender, as the case may be, to each other Person party hereto.
"DOWNGRADE DATE" means the date on which the Borrower's long-term senior,
unsecured Debt (without third party credit enhancement) is no longer Investment
Grade.
"EBITDA" means, for any applicable period and giving PRO FORMA effect to
any permitted acquisitions (including the Acquisition) on terms satisfactory to
the Administrative Agent, the sum (without duplication) of
(a) Net Income,
PLUS
(b) the amount deducted, in determining Net Income, representing
amortization,
PLUS
(c) the amount deducted, in determining Net Income, of all income
taxes (whether paid or deferred) of the Borrower and its Subsidiaries,
PLUS
(d) Interest Expense,
PLUS
(e) the amount deducted, in determining Net Income, representing
depreciation of assets,
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<PAGE> 18
PLUS
(f) an amount equal to the amount of all extraordinary, non-recurring
non-cash charges deducted in arriving at Net Income,
MINUS
(g) an amount equal to the amount of all extraordinary, non-recurring
non-cash credits included in arriving at Net Income.
"EFFECTIVE DATE" means the date this Agreement becomes effective pursuant
to SECTION 10.8.
"ENVIRONMENTAL LAWS" means all applicable federal, state or local statutes,
laws, ordinances, codes, rules and regulations (including consent decrees and
administrative orders) relating to public health and safety and protection of
the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EVENT OF DEFAULT" is defined in SECTION 8.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXISTING LETTERS OF CREDIT" means, collectively, the letters of credit
listed on SCHEDULE IV hereto.
"EXISTING CREDIT AGREEMENT" means the Second Amended and Restated Credit
Agreement, dated as of April 8, 1997 (as amended or otherwise modified prior to
the Effective Date), among the Borrower, certain financial institutions from
time to time parties thereto, certain financial institutions parties thereto as
co-agents and Scotiabank, as administrative agent.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"FEE LETTER" means the confidential fee letter, dated as of August 28,
1998, between the Borrower and the Administrative Agent.
"FISCAL QUARTER" means any quarter beginning and ending on the dates set
forth in SCHEDULE II.
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<PAGE> 19
"FISCAL YEAR" means any period of 52 (or, if applicable, 53) consecutive
weeks ending on the Saturday occurring nearest to December 31 of any year;
references to a Fiscal Year with a number corresponding to any calendar year
(e.g., the "1998 FISCAL YEAR") refer to the Fiscal Year ending on the Saturday
occurring nearest to December 31 of that calendar year, even if such date occurs
in the next calendar year.
"FLOWERS" means Flowers Industries, Inc., a Georgia corporation.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"GAAP" is defined in SECTION 1.4.
"HAZARDOUS MATERIAL" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource Conservation and
Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other applicable
federal, state or local law, regulation, ordinance or requirement
(including consent decrees and administrative orders) relating to or
imposing liability or standards of conduct concerning any hazardous, toxic
or dangerous waste, substance or material, all as amended or hereafter
amended.
"HEDGING OBLIGATIONS" means, with respect to any Person, all liabilities of
such Person under commodity hedging agreements, interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and all other
agreements or arrangements designed to protect such Person against fluctuations
in commodity prices, interest rates or currency exchange rates.
"HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"IMMATERIAL SUBSIDIARY" means each Subsidiary of the Borrower that (a)
accounted for no more than 2% of the consolidated gross revenues of the Borrower
and its Subsidiaries; and (b) has assets which represent no more than 2% of the
consolidated gross assets of the Borrower and its Subsidiaries, in each case, as
of the last day of the most recently completed Fiscal Quarter with respect to
which, pursuant to CLAUSES (a) or (b) of SECTION 7.1.1, financial statements
have been, or are required to have been, delivered by the Borrower.
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<PAGE> 20
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
such Obligor to be in default of any of its obligations under SECTION
7.2.4.
"INCLUDING" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of EJUSDEM GENERIS
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"INDEBTEDNESS" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments for borrowed money in respect thereof;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(d) net liabilities of such Person under all Hedging Obligations;
(e) whether or not so included as liabilities in accordance with GAAP,
all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest thereon
and interest not yet due) due more than six months from the date of
incurrence of the obligation in respect thereof and secured by a Lien on
property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by such Person or
is limited in recourse; PROVIDED, HOWEVER, that, for purposes of
determining the amount of any Indebtedness of the type described in this
clause, if recourse with respect to such Indebtedness is limited to
specific property financed with such Indebtedness, the amount of such
Indebtedness shall be limited to the fair market value (determined on a
basis reasonably acceptable to the Administrative Agent) of such property
or the principal amount of such Indebtedness, whichever is less;
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(f) all Receivables Facility Outstandings; and
(g) all Contingent Liabilities of such Person in respect of any of the
foregoing;
PROVIDED, that, Indebtedness shall not include unsecured Indebtedness incurred
in the ordinary course of business in the nature of accrued liabilities and open
accounts extended by suppliers on normal trade terms in connection with
purchases of goods and services, but excluding the Indebtedness incurred through
the borrowing of money. For all purposes of this Agreement, the Indebtedness of
any Person shall include the Indebtedness of any partnership or joint venture in
which such Person is a general partner or a joint venturer (to the extent such
Person is liable for such Indebtedness).
"INDEMNIFIED LIABILITIES" is defined in SECTION 10.4.
"INDEMNIFIED PARTIES" is defined in SECTION 10.4.
"INDENTURE" means the Indenture, dated as of June 15, 1996, by and among
the Borrower, the Subsidiaries of the Borrower from time to time parties thereto
(as guarantors) and U.S. Trust Company of New York, as the trustee, as such
Indenture may be amended, supplemented, amended and restated or otherwise
modified in accordance with the terms of SECTION 7.2.10.
"INTERCOMPANY SUBORDINATION AGREEMENT" means an agreement to be executed
and delivered pursuant to the terms of this Agreement (including CLAUSE (f) of
SECTION 7.2.2), substantially in the form of EXHIBIT G hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with its terms.
"INTEREST EXPENSE" means, for any Fiscal Quarter, the aggregate
consolidated cash interest expense (net of interest income) of the Borrower and
its Subsidiaries for such Fiscal Quarter, as determined in accordance with GAAP,
including (i) the portion of any payments made in respect of Capitalized Lease
Liabilities allocable to interest expense and (ii) interest (or other fees in
the nature of interest or discount accrued and paid or payable in cash for such
Fiscal Quarter) in respect of the Permitted Receivables Transaction.
"INTEREST PERIOD" means, relative to any LIBO Rate Loans, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to SECTION 2.3.1 or
2.4 and shall end on (but exclude) the day which numerically corresponds to such
date one, two, three or six (or, if available to all relevant Lenders and at the
discretion of the Administrative Agent, nine or twelve) months thereafter (or,
if such month has no numerically corresponding day, on the last Business Day of
such month), in either case as the Borrower may select in its relevant notice
pursuant to SECTION 2.3 or 2.4; PROVIDED, HOWEVER, that
(a) the Borrower shall not be permitted to select Interest Periods to
be in effect at any one time which have expiration dates occurring on more
than ten different dates;
(b) Interest Periods commencing on the same date for Loans comprising
part of the same Borrowing shall be of the same duration;
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<PAGE> 22
(c) if such Interest Period would otherwise end on a day which is not
a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first Business
Day of a calendar month, in which case such Interest Period shall end on
the Business Day next preceding such numerically corresponding day); and
(d) no Interest Period for any Loan may end later than the Stated
Maturity Date for such Loan.
"INVESTMENT" means, relative to any Person,
(a) any loan or advance made by such Person to any other Person
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business); and
(b) any ownership or similar interest held by such Person in any other
Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such transfer or exchange.
"INVESTMENT AMOUNT" means an unlimited amount which can be applied for
acquisitions of Capital Stock pursuant to CLAUSE (i) of SECTION 7.2.5 and/or the
making of Capital Expenditures pursuant to CLAUSE (b)(ii) of SECTION 7.2.7;
PROVIDED, HOWEVER, that after the Downgrade Date, the aggregate amount of such
acquisitions and Capital Expenditures shall not, singly or in the aggregate
exceed 20% of Consolidated Tangible Assets (less the aggregate amount of
Investments and Capital Expenditures made subsequent to the Downgrade Date
pursuant to CLAUSE (i) of SECTION 7.2.5 and CLAUSE (b)(ii) of SECTION 7.2.7
(respectively)).
"INVESTMENT GRADE" means, with respect to the Borrower's long-term senior,
unsecured Debt (without third party credit enhancement), a rating of BBB- or
above from S&P or Baa3 or above from Moody's or an equivalent rating from
another nationally recognized rating agency acceptable to the Administrative
Agent.
"ISSUANCE REQUEST" means a Letter of Credit request and certificate duly
executed by an Authorized Officer of the Borrower, substantially in the form of
EXHIBIT B-2 hereto.
"ISSUER" means, collectively, Scotiabank in its individual capacity
hereunder as issuer of the Letters of Credit and such other Lender as may be
designated by Scotiabank (and agreed to by the Borrower and such Lender) in its
individual capacity as the issuer of Letters of Credit.
"LENDER ASSIGNMENT AGREEMENT" means a Lender Assignment Agreement,
substantially in the form of EXHIBIT D hereto.
"LENDERS" is defined in the PREAMBLE.
"LETTER OF CREDIT" is defined in SECTION 2.1.3.
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<PAGE> 23
"LETTER OF CREDIT COMMITMENT" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to SECTION 2.1.3 and,
with respect to each of the Revolving Loan Lenders, the obligations of each such
Revolving Loan Lender to participate in such Letters of Credit pursuant to
SECTION 2.6.1.
"LETTER OF CREDIT COMMITMENT AMOUNT" means, on any date, a maximum amount
of $75,000,000, as such amount may be reduced from time to time pursuant to
SECTION 2.2.
"LETTER OF CREDIT OUTSTANDINGS" means, on any date, an amount equal to the
sum of (a) the then aggregate amount which is undrawn and available under all
issued and outstanding Letters of Credit, PLUS (b) the then aggregate amount of
all unpaid and outstanding Reimbursement Obligations in respect of such Letters
of Credit.
"LIBO RATE" means, relative to any Interest Period for LIBO Rate Loans, the
rate of interest equal to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates per annum at which Dollar deposits in
immediately available funds are offered to the Administrative Agent's LIBOR
Office in the London interbank market as at or about 11:00 a.m. London time two
Business Days prior to the beginning of such Interest Period for delivery on the
first day of such Interest Period, and in an amount approximately equal to the
amount of the Administrative Agent's LIBO Rate Loan and for a period
approximately equal to such Interest Period.
"LIBO RATE LOAN" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO RATE (RESERVE ADJUSTED)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) determined pursuant to the following formula:
<TABLE>
<S> <C> <C>
LIBO Rate = LIBO Rate
-------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
</TABLE>
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be determined by the Administrative Agent on the basis of the LIBOR
Reserve Percentage in effect on, and the applicable rates furnished to and
received by the Administrative Agent from Scotiabank, two Business Days before
the first day of such Interest Period.
"LIBOR OFFICE" means, relative to any Lender, the office of such Lender
designated as such on SCHEDULE III hereto or designated in the Lender Assignment
Agreement or such other office of a Lender as designated from time to time by
notice from such Lender to the Borrower and the Administrative Agent, whether or
not outside the United States, which shall be making or maintaining LIBO Rate
Loans of such Lender hereunder.
"LIBOR RESERVE PERCENTAGE" means, relative to any Interest Period for LIBO
Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve
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<PAGE> 24
requirements) specified under regulations issued from time to time by the
F.R.S. Board and then applicable to assets or liabilities consisting of and
including "Eurocurrency Liabilities", as currently defined in Regulation D of
the F.R.S. Board, having a term approximately equal or comparable to such
Interest Period.
"LIEN" means any security interest, mortgage, pledge, hypothecation,
assignment, encumbrance, lien (statutory or otherwise) or charge against or
interest in property, to secure payment of a debt or performance of an
obligation.
"LOAN" means, as the context may require, a Revolving Loan, a Swing Line
Loan or a Term Loan of any type.
"LOAN DOCUMENT" means this Agreement, the Notes, the Letters of Credit, the
Fee Letter, the Intercompany Subordination Agreement and each other agreement,
document or instrument delivered in connection with this Agreement or any other
Loan Document, whether or not specifically mentioned herein or therein.
"MANAGING AGENT" is defined in the PREAMBLE.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse effect on the
financial condition, operations, assets, business or properties of the Borrower
and its Subsidiaries, taken as a whole, (b) a material impairment of the ability
of the Borrower or any other Obligor (other than any Immaterial Subsidiary) to
perform its respective material obligations under the Loan Documents to which it
is or will be a party, or (c) an impairment of the validity or enforceability
of, or a material impairment of the rights, remedies or benefits available to
the Administrative Agent, the Issuer or the Lenders under, this Agreement or any
other Loan Document.
"MOODY'S" means Moody's Investors Service, Inc.
"NET DISPOSITION PROCEEDS" means, with respect to a Permitted Disposition
of the assets of the Borrower or any of its Subsidiaries, the excess of
(a) the gross cash proceeds received by the Borrower or any of its
Subsidiaries from any Permitted Disposition and any cash payments received
in respect of promissory notes or other non-cash consideration delivered to
the Borrower or such Subsidiary in respect of any Permitted Disposition,
LESS
(b) the sum of
(i) all reasonable and customary fees and expenses with respect
to legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all other
reasonable fees, expenses and charges, in each case actually incurred
in connection with such Permitted Disposition which have not been paid
to Affiliates of the Borrower,
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<PAGE> 25
(ii) all taxes and other governmental costs and expenses actually
paid or estimated by the Borrower (in good faith) to be payable in
cash in connection with such Permitted Disposition, and
(iii) payments made by the Borrower or any of its Subsidiaries to
retire Indebtedness (other than the Loans) of the Borrower or any of
its Subsidiaries where payment of such Indebtedness is required in
connection with such Permitted Disposition;
PROVIDED, HOWEVER, that if, after the payment of all taxes with respect to such
Permitted Disposition, the amount of estimated taxes, if any, pursuant to CLAUSE
(b)(ii) above exceeded the tax amount actually paid in cash in respect of such
Permitted Disposition, the aggregate amount of such excess shall be immediately
payable, pursuant to CLAUSE (b) of SECTION 3.1.1, as Net Disposition Proceeds.
"NET INCOME" means, for any period, the net income of the Borrower and its
Subsidiaries for such period on a consolidated basis, excluding extraordinary
gains.
"NON-U.S. LENDER" means any Lender (including each Assignee Lender) that is
not (i) a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, or (iii) any estate or trust that is subject
to U.S. Federal income taxation regardless of the source of its income.
"NON-U.S. SUBSIDIARY" means any Subsidiary of the Borrower that is not
incorporated or organized in or under the laws of the United States or any state
thereof.
"NOTE" means, as the context may require, a Revolving Note, a Swing Line
Note, a Registered Note or a Term Note.
"OBLIGATIONS" means all obligations (monetary or otherwise) of the Borrower
and each other Obligor arising under or in connection with this Agreement and
each other Loan Document, and Hedging Obligations owed to a Lender or an
Affiliate thereof (or a Person that was a Lender or an Affiliate of a Lender at
the time the applicable Rate Protection Agreement was entered into), unless the
Lender or such Affiliate (or other Person) otherwise agrees.
"OBLIGOR" means the Borrower or any other Person (other than the
Administrative Agent or any Lender) obligated under any Loan Document.
"ORGANIC DOCUMENT" means, relative to any Obligor, its certificate of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its authorized interests of Capital
Stock.
"PARTICIPANT" is defined in SECTION 10.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
entity.
"PENSION PLAN" means a "pension plan", as such term is defined in SECTION
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in SECTION 4001(a)(3) of ERISA), and to which the Borrower or
any corporation, trade or business that is,
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<PAGE> 26
along with the Borrower, a member of a Controlled Group, has or within the
prior six years has had any liability, including any liability by reason of
having been a substantial employer within the meaning of section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under section 4069 of ERISA.
"PERCENTAGE" means, relative to any Lender, the applicable percentage
relating to Term Loans or Revolving Loans, as the case may be, as set forth
opposite its name on SCHEDULE III hereto under the applicable column heading or
set forth in Lender Assignment Agreement(s) under the applicable column heading,
as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and
delivered pursuant to SECTION 10.11.1. A Lender shall not have any Commitment to
make Revolving Loans or Term Loans (as the case may be) if its percentage under
the respective column heading is zero.
"PERMITTED ARTAL INVESTOR GROUP" means ARTAL or any of its direct or
indirect wholly-owned Subsidiaries and ARTAL Group S.A., a Luxembourg
corporation or any of its direct or indirect wholly-owned Subsidiaries.
"PERMITTED DISPOSITION" means a sale, disposition or other conveyance of
assets by the Borrower or any of its Subsidiaries in accordance with the terms
of CLAUSE (b) (other than as permitted by CLAUSE (a) or (c)) of SECTION 7.2.9.
"PERMITTED RECEIVABLES TRANSACTION" means any transaction providing for the
sale or financing of Accounts with customary limited recourse based on the
collectability of the Accounts sold; PROVIDED, HOWEVER, that the expiration
date, term, conditions and structure (including the legal and organizational
structure of Receivables Co. and the restrictions imposed on its activities) of,
and the documentation relating to, the Permitted Receivables Transaction must be
on terms and conditions reasonably satisfactory to the Administrative Agent.
"PERSON" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"PLAN" means any Pension Plan or Welfare Plan.
"PRESIDENT" is defined in the FIRST RECITAL.
"PRO FORMA BALANCE SHEET" is defined in CLAUSE (b) of SECTION 5.1.7.
"PURCHASE AGREEMENT" is defined in the FIRST RECITAL.
"QUALIFIED ASSETS" is defined in CLAUSE (b) of SECTION 3.1.1.
"QUARTERLY PAYMENT DATE" means the last day of each March, June, September
and December, or, if any such day is not a Business Day, the next succeeding
Business Day.
"RATE PROTECTION AGREEMENT" means, collectively, any interest rate swap,
cap, collar or similar agreement entered into by the Borrower under which the
counterparty to such agreement
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<PAGE> 27
is (or at the time such Rate Protection Agreement was entered into, was) a
Lender or an Affiliate of a Lender.
"RECEIVABLES CO." means any special purpose, bankruptcy-remote wholly-owned
Subsidiary of the Borrower organized after the date hereof (or such other Person
agreed to by the Administrative Agent) that purchases Accounts generated by the
Borrower or any of its Subsidiaries in connection with the Permitted Receivables
Transaction.
"RECEIVABLES FACILITY OUTSTANDINGS" means, at any date of determination,
with respect to the Permitted Receivables Transaction, the aggregate cash
proceeds received by the Borrower or any of its Subsidiaries from the sale or
financing of Accounts pursuant to the Permitted Receivables Transaction which
are outstanding on the date of determination.
"REFINANCING" means, the sale by public offering or private placement by
the Borrower of the Refinancing Notes in order to refinance all or any portion
of the then outstanding principal amount of the Subordinated Notes outstanding
on the Effective Date or other Refinancing Notes in accordance with the terms of
this Agreement.
"REFINANCING NOTE INDENTURE" means, collectively, each indenture, if any,
to be executed by the Borrower and a trustee to be named therein, pursuant to
which the Refinancing Notes are issued and governed by, which Refinancing Note
Indenture shall (i) contain subordination provisions that are no less favorable
to the holders of "Senior Indebtedness", "Senior Debt" or terms of similar
import as used in such Refinancing Note Indenture than the subordination
provisions contained in the Indenture, (ii) not provide for any amortization (in
whole or in part) of the Refinancing Notes prior to July 26, 2005, (iii) provide
for accrued interest on the Refinancing Notes at a maximum rate per annum not in
excess of the rate of interest then prevailing in the unsecured senior
subordinated debt capital markets (as reasonably determined in good faith by the
Administrative Agent) for companies comparable to the Borrower (based upon,
INTER ALIA, historical and current financial performance, credit ratios and the
industry in which the Borrower participates) at the time of the Refinancing, and
(iv) contain such other terms and conditions which, taken as a whole, are
comparable to those contained in indentures then prevailing in the unsecured
senior subordinated debt capital markets (as reasonably determined in good faith
by the Required Lenders) for companies comparable to the Borrower (based upon,
INTER ALIA, historical and current financial performance, credit ratios and the
industry in which the Borrower participates) at the time of the Refinancing, as
such indenture may be amended, supplemented, amended and restated or otherwise
modified pursuant to SECTION 7.2.10.
"REFINANCING NOTES" means, collectively, the unsecured senior subordinated
notes, if any, to be issued by the Borrower pursuant to the Refinancing Note
Indenture in connection with a Refinancing of the Subordinated Notes outstanding
on the Effective Date or other Refinancing Notes which Refinancing Notes shall
not have any terms that are inconsistent with the Refinancing Note Indenture
pursuant to which they were issued.
"REFUNDED SWING LINE LOANS" is defined in CLAUSE (b) of SECTION 2.3.2.
"REGISTER" is defined in CLAUSE (b) of SECTION 2.7.
"REGISTERED NOTE" means a promissory note of the Borrower payable to the
order of any Lender, substantially in the form of EXHIBIT A-4 hereto (as such
promissory note may be
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<PAGE> 28
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from outstanding
Term Loans, and also means all other promissory notes accepted from time to time
in substitution therefor or renewal thereof, in each case registered pursuant to
SECTION 2.7.
"REIMBURSEMENT OBLIGATION" is defined in SECTION 2.6.3.
"RELEASE" means a "release", as such term is defined in CERCLA.
"REQUIRED LENDERS" means, at any time, Lenders holding more than 50% of the
Total Exposure Amount.
"RESOURCE CONSERVATION AND RECOVERY ACT" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, ET SEQ., as in effect from time to
time.
"RESTRICTED PAYMENTS" is defined in SECTION 7.2.6.
"REVOLVING LOAN" is defined in CLAUSE (a) of SECTION 2.1.2.
"REVOLVING LOAN COMMITMENT" is defined in CLAUSE (a) of SECTION 2.1.2.
"REVOLVING LOAN COMMITMENT AMOUNT" means, on any date, $350,000,000, as
such amount may be reduced from time to time pursuant to SECTION 2.2.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means the earliest of
(a) November 15, 1998 (if the initial Loans have not been made on or
prior to such date);
(b) September 28, 2004;
(c) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to SECTION 2.2; and
(d) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in CLAUSE (c) or (d), the Revolving
Loan Commitments shall terminate automatically and without any further action.
"REVOLVING LOAN LENDERS" means Lenders with a Revolving Loan Commitment.
"REVOLVING NOTE" means a promissory note of the Borrower payable to any
Lender, substantially in the form of EXHIBIT A-1 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Revolving Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"RL PERCENTAGE" means, as to any Revolving Loan Lender, such Revolving Loan
Lender's Percentage (in excess of zero) of the Revolving Loan Commitment Amount.
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<PAGE> 29
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc.
"SCOTIABANK" is defined in the PREAMBLE.
"SEC" means the Securities and Exchange Commission.
"SELLER" is defined in the FIRST RECITAL.
"SHARES" is defined in the FIRST RECITAL.
"SOLVENCY CERTIFICATE" means a certificate of an Authorized Officer of the
Borrower, substantially in the form of EXHIBIT H hereto, delivered pursuant to
SECTION 5.1.8.
"STATED AMOUNT" of each Letter of Credit means the total amount available
to be drawn under such Letter of Credit upon the issuance thereof.
"STATED EXPIRY DATE" is defined in SECTION 2.6.
"STATED MATURITY DATE" means September 28, 2004.
"SUBORDINATED DEBT" means, as the context may require, (i) the unsecured
Debt of the Borrower evidenced by the Subordinated Notes and (ii) to the extent
permitted by the Required Lenders, any other unsecured Debt of the Borrower
subordinated in right of payment to the Obligations pursuant to documentation
containing maturities, amortization schedules, covenants, defaults, remedies,
subordination provisions and other material terms in form and substance
satisfactory to the Administrative Agent and Required Lenders.
"SUBORDINATED GUARANTY" means, collectively, each guaranty, if any,
executed from time to time by any Subsidiary of the Borrower pursuant to which
the guarantor thereunder has any Contingent Liability with respect to any
Subordinated Debt.
"SUBORDINATED NOTE" means, as the context may require, (i) the 10 3/4%
senior subordinated notes due 2006 issued under the Indenture and outstanding on
the Effective Date and (ii) the Refinancing Notes, and collectively means all of
the above notes, as, in each case, amended, supplemented, amended and restated
or otherwise modified from time to time in accordance with SECTION 7.2.10.
"SUBORDINATED NOTE INDENTURE" means, as the context may require, the
Indenture and each Refinancing Note Indenture, and collectively means all of the
above agreements and indentures, in each case, as such agreements or indentures
may hereafter be amended, supplemented, restated or otherwise modified from time
to time in accordance with CLAUSE (b) of SECTION 7.2.10.
"SUBORDINATED NOTEHOLDER" means, at any time, any holder of a Subordinated
Note.
"SUBORDINATION PROVISIONS" is defined in SECTION 8.1.11.
"SUBSIDIARY" means, with respect to any Person, any corporation, limited
liability company, partnership or other entity of which more than 50% of the
outstanding Capital Stock
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(or other ownership interest) having ordinary voting power to elect the
board of directors, managers or other voting members of the governing body of
such corporation, limited liability company, partnership or other entity
(irrespective of whether at the time Capital Stock of any other class or classes
of such corporation, limited liability company, partnership or other entity
shall or might have voting power upon the occurrence of any contingency) is at
the time directly or indirectly owned by such Person, by such Person and one or
more other Subsidiaries of such Person, or by one or more other Subsidiaries of
such Person. Unless the context otherwise specifically requires, the term
"Subsidiary" shall be a reference to a Subsidiary of the Borrower.
"SWING LINE LENDER" means Scotiabank (or another Lender designated by
Scotiabank with the consent of the Borrower, if such Lender agrees to be the
Swing Line Lender hereunder), in such Person's capacity as the maker of Swing
Line Loans.
"SWING LINE LOAN" is defined in CLAUSE (b) of SECTION 2.1.2.
"SWING LINE LOAN COMMITMENT" means, with respect to the Swing Line Lender,
the Swing Line Lender's obligation pursuant to CLAUSE (b) of SECTION 2.1.2 to
make Swing Line Loans and, with respect to each Lender with a Commitment to make
Revolving Loans (other than the Swing Line Lender), such Lender's obligation to
participate in Swing Line Loans pursuant to SECTION 2.3.2.
"SWING LINE LOAN COMMITMENT AMOUNT" means, on any date, $20,000,000, as
such amount may be reduced from time to time pursuant to SECTION 2.2.
"SWING LINE NOTE" means a promissory note of the Borrower payable to the
Swing Line Lender, substantially in the form of EXHIBIT A-3 hereto (as such
promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to the Swing Line
Lender resulting from outstanding Swing Line Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"SYNDICATION AGENT" is defined in the PREAMBLE.
"TAXES" is defined in SECTION 4.6.
"TERM LOAN" is defined in SECTION 2.1.1.
"TERM LOAN COMMITMENT" is defined in SECTION 2.1.1.
"TERM LOAN COMMITMENT AMOUNT" means $350,000,000.
"TERM LOAN COMMITMENT TERMINATION DATE" means the earlier of
(a) November 15, 1998 (if the Term Loans have not been made on or
prior to such date);
(b) the Closing Date (immediately after the making of the Term Loans
on such date); or
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(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in CLAUSE (b) or (c), the Term Loan
Commitments shall terminate automatically and without any further action.
"TERM NOTE" means each promissory note of the Borrower payable to the order
of any Lender, substantially in the form of EXHIBIT A-2 hereto (as such
promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to such Lender
resulting from outstanding Term Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"TOTAL EXPOSURE AMOUNT" means, on any date of determination, the then
outstanding principal amount of all Term Loans and the then effective Revolving
Loan Commitment Amount (or in the event the Revolving Loan Commitments are no
longer in effect, the then outstanding principal amount of all Revolving Loans).
"TRANCHE" means, as the context may require, the Loans constituting Term
Loans, Swing Line Loans or Revolving Loans.
"TRUE AND ACCURATE" means, as to any information, that such information is
true and accurate in every material respect on the date as of which such
information is dated or certified and such information is not, or shall not be,
as the case may be, incomplete by omitting to state any material fact necessary
to make such information not misleading.
"TYPE" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the State of New York.
"UNITED STATES" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"U.S. SUBSIDIARIES" means each Subsidiary that is organized under the laws
of the United States or a State thereof.
"WELFARE PLAN" means a "WELFARE PLAN", as such term is defined in section
3(1) of ERISA, and to which the Borrower has any liability.
"WHOLLY-OWNED SUBSIDIARY" shall mean, with respect to any Person, any
Subsidiary of such Person all of the Capital Stock (and all rights and options
to purchase such Capital Stock) of which, other than directors' qualifying
shares, are owned, beneficially and of record, by such Person and/or one or more
wholly-owned Subsidiaries of such Person.
SECTION 1.2. USE OF DEFINED TERMS. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in the Disclosure Schedule and in each other
Loan Document, notice and
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other communication delivered from time to time in connection with this
Agreement or any other Loan Document.
SECTION 1.3. CROSS-REFERENCES. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. ACCOUNTING AND FINANCIAL DETERMINATIONS. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under SECTION 7.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared in
accordance with, those generally accepted accounting principles ("GAAP") as in
effect as of December 31, 1997.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
SECTION 2.1. COMMITMENTS. On the terms and subject to the conditions of
this Agreement (including ARTICLE V),
(a) each Lender severally agrees to make Loans (other than Swing Line
Loans) pursuant to the Commitments and the Swing Line Lender agrees to make
Swing Line Loans pursuant to the Swing Line Loan Commitment in each case as
described in this ARTICLE II; and
(b) each Issuer severally agrees that it will issue Letters of Credit
pursuant to SECTION 2.1.3, and each Revolving Loan Lender severally agrees
that it will purchase participation interests in such Letters of Credit
pursuant to SECTION 2.6.1.
SECTION 2.1.1. TERM LOAN COMMITMENTS. In a single Borrowing on the Closing
Date (which shall be a Business Day) occurring on or prior to the Term Loan
Commitment Termination Date, each Lender with a commitment to make Term Loans
will make term loans (relative to such Lender, its "TERM LOANS") to the Borrower
in an amount equal to such Lender's Percentage of the Term Loan Commitment
Amount (with the commitment of each such applicable Lender described in this
Section herein referred to as its "TERM LOAN COMMITMENT"). No amounts paid or
prepaid with respect to Term Loans may be reborrowed.
SECTION 2.1.2. REVOLVING LOAN COMMITMENT AND SWING LINE LOAN COMMITMENT.
The Revolving Loans and Swing Line Loans will be made as set forth below.
(a) From time to time on any Business Day occurring concurrently with
(or after) the making of the Term Loans but prior to the Revolving Loan
Commitment Termination Date, each Revolving Loan Lender will make loans
(relative to such Revolving Loan Lender, its "REVOLVING LOANS") to the
Borrower equal to such Revolving Loan Lender's
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RL Percentage of the aggregate amount of the Borrowing of the
Revolving Loans requested by the Borrower to be made on such day. The
Commitment of each Revolving Loan Lender described in this clause is herein
referred to as its "REVOLVING LOAN COMMITMENT". On the terms and subject to
the conditions hereof, the Borrower may from time to time borrow, prepay
and reborrow the Revolving Loans.
(b) From time to time on any Business Day occurring concurrently with
(or after) the making of the Term Loans, but prior to the Revolving Loan
Commitment Termination Date, the Swing Line Lender will make Loans
(relative to the Swing Line Lender, its "SWING LINE LOANS") to the Borrower
equal to the principal amount of the Swing Line Loans requested by the
Borrower. On the terms and subject to the conditions hereof, the Borrower
may from time to time borrow, prepay and reborrow such Swing Line Loans.
SECTION 2.1.3. LETTER OF CREDIT COMMITMENT. From time to time on any
Business Day occurring from and after the Closing Date but prior to the
Revolving Loan Commitment Termination Date, the Issuer will
(a) issue one or more standby (including direct pay) or documentary
letters of credit (including the Existing Letters of Credit, individually
referred to as a "LETTER OF CREDIT" and collectively referred to as the
"LETTERS OF CREDIT") for the account of the Borrower or certain of its
Subsidiaries, as described in SECTION 2.6, in the Stated Amount requested
by the Borrower on such day; or
(b) extend the Stated Expiry Date of an existing standby (including
direct pay) Letter of Credit previously issued hereunder to a date not
later than the earlier of (x) the Revolving Loan Commitment Termination
Date and (y) one year from the date of such extension.
SECTION 2.1.4. LENDERS NOT PERMITTED OR REQUIRED TO MAKE THE LOANS. No
Lender shall be permitted or required to, and the Borrower shall not request
that any Lender, make
(a) any Term Loan if, after giving effect thereto, the aggregate
original principal amount of all the Term Loans
(i) of all Lenders would exceed the Term Loan Commitment Amount;
or
(ii) of such Lender would exceed its Percentage of the Term Loan
Commitment Amount;
(b) any Revolving Loan or Swing Line Loan if, after giving effect
thereto, the aggregate outstanding principal amount of all Revolving Loans
and Swing Line Loans
(i) of all the Revolving Loan Lenders, together with the
aggregate amount of all Letter of Credit Outstandings, would exceed
the Revolving Loan Commitment Amount; or
(ii) of such Revolving Loan Lender (other than the Swing Line
Lender), together with such Revolving Loan Lender's RL Percentage of
the aggregate
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amount of all Letter of Credit Outstandings, would exceed such
Revolving Loan Lender's RL Percentage of the Revolving Loan Commitment
Amount; or
(c) any Swing Line Loan if after giving effect to the making of such
Swing Line Loan, the outstanding principal amount of all Swing Line Loans
would exceed the then existing Swing Line Loan Commitment Amount.
SECTION 2.1.5. ISSUER NOT PERMITTED OR REQUIRED TO ISSUE LETTERS OF CREDIT.
No Issuer shall be permitted or required to issue any Letter of Credit if, after
giving effect thereto, (a) the aggregate amount of all Letter of Credit
Outstandings would exceed the Letter of Credit Commitment Amount or (b) the sum
of the aggregate amount of all Letter of Credit Outstandings plus the aggregate
principal amount of all Revolving Loans and Swing Line Loans then outstanding
would exceed the Revolving Loan Commitment Amount.
SECTION 2.2. REDUCTION OF THE COMMITMENT AMOUNTS. The Commitment Amounts
are subject to reductions from time to time pursuant to this SECTION 2.2.
SECTION 2.2.1. OPTIONAL. The Borrower may, from time to time on any
Business Day occurring after the Closing Date, voluntarily reduce the Swing Line
Loan Commitment Amount, the Letter of Credit Commitment Amount or the Revolving
Loan Commitment Amount; PROVIDED, HOWEVER, that all such reductions shall
require at least three Business Days' prior notice to the Administrative Agent
and be permanent, and any partial reduction of any Commitment Amount shall be in
a minimum amount of $5,000,000 and in an integral multiple of $1,000,000.
SECTION 2.2.2. MANDATORY. The Revolving Loan Commitment Amount shall be
reduced as set forth below.
(a) Following the prepayment in full of the Term Loans, the Revolving
Loan Commitment Amount shall, without any further action, automatically and
permanently be reduced on the date the Term Loans would otherwise have been
required to be prepaid with any Excess Net Disposition Proceeds in an
amount equal to the amount by which the Term Loans would otherwise be
required to be prepaid if Term Loans had been outstanding; PROVIDED, that
(notwithstanding the foregoing), the Revolving Loan Commitment Amount shall
not be reduced to less than $200,000,000 as a result of the application of
Excess Net Disposition Proceeds.
(b) Any reduction of the Revolving Loan Commitment Amount (whether
pursuant to SECTION 2.2.1 or this Section) which reduces the Revolving Loan
Commitment Amount below the sum of (i) the Swing Line Loan Commitment
Amount and (ii) the Letter of Credit Commitment Amount shall result in an
automatic and corresponding reduction of the Swing Line Loan Commitment
Amount and/or Letter of Credit Commitment Amount (as directed by the
Borrower in a notice to the Administrative Agent) to an aggregate amount
not in excess of the Revolving Loan Commitment Amount, as so reduced,
without any further action on the part of the Swing Line Lender or the
Issuer.
SECTION 2.3. BORROWING PROCEDURES AND FUNDING MAINTENANCE. Loans shall be
made by the Lenders in accordance with this Section.
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SECTION 2.3.1. TERM LOANS AND REVOLVING LOANS. By delivering a Borrowing
Request to the Administrative Agent on or before 1:00 p.m., New York time, on a
Business Day, the Borrower may from time to time irrevocably request, on not
less than one (in the case of Base Rate Loans) and three (in the case of LIBO
Rate Loans) nor more than (in each case) five Business Days' notice, that a
Borrowing be made, in the case of LIBO Rate Loans, in a minimum amount of
$5,000,000 and an integral multiple of $1,000,000, and in the case of Base Rate
Loans, in a minimum amount of $1,000,000 and an integral multiple thereof, or,
in either case, in the unused amount of the applicable Commitment. On the terms
and subject to the conditions of this Agreement, each Borrowing shall be
comprised of the type of Loans, and shall be made on the Business Day, specified
in such Borrowing Request. On or before 11:00 a.m., New York time, on such
Business Day each Lender shall deposit with the Administrative Agent same day
funds in an amount equal to such Lender's Percentage of the requested Borrowing.
Such deposit will be made to an account which the Administrative Agent shall
specify from time to time by notice to the Lenders. To the extent funds are
received from the Lenders, the Administrative Agent shall make such funds
available to the Borrower by wire transfer to the accounts the Borrower shall
have specified in its Borrowing Request. No Lender's obligation to make any Loan
shall be affected by any other Lender's failure to make any Loan.
SECTION 2.3.2. SWING LINE LOANS. (a) By telephonic notice, promptly
followed (within three Business Days) by the delivery of a confirming Borrowing
Request, to the Swing Line Lender on or before 12:00 noon (or later, if agreed
to by the Swing Line Lender), New York time, on a Business Day, the Borrower may
from time to time irrevocably request that Swing Line Loans be made by the Swing
Line Lender in an aggregate minimum principal amount of $200,000 and an integral
multiple of $100,000. Each request by the Borrower for a Swing Line Loan shall
constitute a representation and warranty by the Borrower that on the date of
such request and (if different) the date of the making of the Swing Line Loan,
both immediately before and after giving effect to such Swing Line Loan and the
application of the proceeds thereof, the statements made in SECTION 5.2.1 are
true and correct. All Swing Line Loans shall be made as Base Rate Loans and
shall not be entitled to be converted into LIBO Rate Loans. The proceeds of each
Swing Line Loan shall be made available by the Swing Line Lender, by its close
of business on the Business Day telephonic notice is received by it as provided
in the preceding sentences, to the Borrower by wire transfer to the accounts the
Borrower shall have specified in its notice therefor.
(b) If (i) any Swing Line Loan shall be outstanding for more than four full
Business Days or (ii) after giving effect to any request for a Swing Line Loan
or a Revolving Loan the aggregate principal amount of Revolving Loans and Swing
Line Loans outstanding to the Swing Line Lender, together with the Swing Line
Lender's Percentage of all Letter of Credit Outstandings, would exceed the Swing
Line Lender's Percentage of the Revolving Loan Commitment Amount, the Swing Line
Lender, at any time in its sole and absolute discretion, may request each
Revolving Loan Lender, and each such Revolving Loan Lender, including the Swing
Line Lender hereby agrees, to make a Revolving Loan (which shall always be
initially funded as a Base Rate Loan) in an amount equal to such Lender's
Percentage of the amount of the Swing Line Loans ("REFUNDED SWING LINE LOANS")
outstanding on the date such notice is given. On or before 11:00 a.m. (New York
time) on the first Business Day following receipt by each Revolving Loan Lender
of a request to make Revolving Loans as provided in the preceding sentence, each
Revolving Loan Lender (other than the Swing Line Lender) shall deposit in an
account specified by the Administrative Agent to the Lenders from time to time
the amount so requested in same day funds, whereupon such funds shall be
immediately delivered to the Swing
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Line Lender (and not the Borrower) and applied to repay the Refunded Swing
Line Loans. On the day such Revolving Loans are made, the Swing Line Lender's
Percentage of the Refunded Swing Line Loans shall be deemed to be paid. Upon the
making of any Revolving Loan pursuant to this clause, the amount so funded shall
become due under such Revolving Loan Lender's Revolving Note and shall no longer
be owed under the Swing Line Note. Each Revolving Loan Lender's obligation to
make the Revolving Loans referred to in this clause shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
set-off, counterclaim, recoupment, defense or other right which such Revolving
Loan Lender may have against the Swing Line Lender, the Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of any
Default; (iii) any adverse change in the condition (financial or otherwise) of
the Borrower or any other Obligor; (iv) the acceleration or maturity of any
Loans or the termination of the Revolving Loan Commitment after the making of
any Swing Line Loan; (v) any breach of this Agreement by the Borrower or any
other Lender; or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(c) In the event that (i) the Borrower or any Subsidiary is subject to any
bankruptcy or insolvency proceedings as provided in SECTION 8.1.9 or (ii) the
Swing Line Lender otherwise requests, each Revolving Loan Lender shall acquire
without recourse or warranty an undivided participation interest equal to such
Revolving Loan Lender's Percentage of any Swing Line Loan otherwise required to
be repaid by such Revolving Loan Lender pursuant to the preceding clause by
paying to the Swing Line Lender on the date on which such Revolving Loan Lender
would otherwise have been required to make a Revolving Loan in respect of such
Swing Line Loan pursuant to the preceding clause, in same day funds, an amount
equal to such Revolving Loan Lender's Percentage of such Swing Line Loan, and no
Revolving Loans shall be made by such Revolving Loan Lender pursuant to the
preceding clause. From and after the date on which any Revolving Loan Lender
purchases an undivided participation interest in a Swing Line Loan pursuant to
this clause, the Swing Line Lender shall distribute to such Revolving Loan
Lender (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Revolving Loan Lender's participation interest
is outstanding and funded) its ratable amount of all payments of principal and
interest in respect of such Swing Line Loan in like funds as received; PROVIDED,
HOWEVER, that in the event such payment received by the Swing Line Lender is
required to be returned to the Borrower, such Revolving Loan Lender shall return
to the Swing Line Lender the portion of any amounts which such Revolving Loan
Lender had received from the Swing Line Lender in like funds.
(d) Notwithstanding anything herein to the contrary, the Swing Line Lender
shall not be obligated to make any Swing Line Loans if it has elected after the
occurrence of a Default not to make Swing Line Loans and has notified the
Borrower in writing or by telephone of such election. The Swing Line Lender
shall promptly give notice to the Lenders of such election not to make Swing
Line Loans.
SECTION 2.4. CONTINUATION AND CONVERSION ELECTIONS. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 1:00
p.m., New York time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one (in the case of a conversion of LIBO
Rate Loans to Base Rate Loans) and three (in the case of a continuation of LIBO
Rate Loans or a conversion of Base Rate Loans into LIBO Rate Loans) nor more
than (in each case) five Business Days' notice that all, or any portion in an
aggregate minimum amount of $5,000,000 and an integral multiple of $1,000,000,
in the case of the
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continuation of, or conversion into, LIBO Rate Loans, or an aggregate
minimum amount of $1,000,000 and an integral multiple thereof, in the case of
the conversion into Base Rate Loans, (other than Swing Line Loans as provided in
CLAUSE (a) of SECTION 2.3.2) be, in the case of Base Rate Loans, converted into
LIBO Rate Loans or, in the case of LIBO Rate Loans, be converted into a Base
Rate Loan or continued as a LIBO Rate Loan (in the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan at least three
Business Days before the last day of the then current Interest Period with
respect thereto, such LIBO Rate Loan shall, on such last day, automatically
convert to a Base Rate Loan); PROVIDED, HOWEVER, that (x) each such conversion
or continuation shall be pro rated among the applicable outstanding Loans of the
relevant Lenders, and (y) no portion of the outstanding principal amount of any
Loans may be continued as, or be converted into, LIBO Rate Loans when any Event
of Default has occurred and is continuing.
SECTION 2.5. FUNDING. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as such
action does not result in increased costs to the Borrower; PROVIDED, HOWEVER,
that such LIBO Rate Loan shall nonetheless be deemed to have been made and to be
held by such Lender, and the obligation of the Borrower to repay such LIBO Rate
Loan shall nevertheless be to such Lender for the account of such foreign
branch, Affiliate or international banking facility; and PROVIDED, FURTHER,
HOWEVER, that such Lender shall cause such foreign branch, Affiliate or
international banking facility to comply with the applicable provisions of
CLAUSE (b) of SECTION 4.6 with respect to such LIBO Rate Loan. In addition, the
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of SECTION 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
assumed that each Lender elected to fund all LIBO Rate Loans by purchasing
Dollar deposits in its LIBOR Office's interbank Eurodollar market.
SECTION 2.6. ISSUANCE PROCEDURES. By delivering to the Administrative Agent
an Issuance Request on or before 1:00 p.m., New York time, on a Business Day,
the Borrower may, from time to time irrevocably request, on not less than three
nor more than ten Business Days' notice (or such other notice as may be
acceptable to the Issuer in its sole discretion), in the case of an initial
issuance of a Letter of Credit, and not less than three nor more than ten
Business Days' notice prior to the then existing Stated Expiry Date of a Letter
of Credit (unless a shorter or longer notice period is acceptable to the Issuer
in its sole discretion), in the case of a request for the extension of the
Stated Expiry Date of a Letter of Credit, that the Issuer issue, or extend the
Stated Expiry Date of, as the case may be, an irrevocable Letter of Credit for
the Borrower's account or for the account of any wholly-owned U.S. Subsidiary of
the Borrower, in such form as may be requested by the Borrower and approved by
the Issuer, solely for the purposes described in SECTION 7.1.5. Notwithstanding
anything to the contrary contained herein or in any separate application for any
Letter of Credit, the Borrower hereby acknowledges and agrees that it shall be
obligated to reimburse the Issuer upon each Disbursement of a Letter of Credit,
and it shall be deemed to be the obligor for purposes of each Letter of Credit
issued hereunder (whether the account party on such Letter of Credit is the
Borrower or a Subsidiary of the Borrower). Upon receipt of an Issuance Request,
the Administrative Agent shall promptly notify the Issuer. Each Letter of Credit
shall by its terms be stated to expire on a date (its "STATED EXPIRY DATE") no
later than the earlier to occur of (i) the Revolving Loan Commitment Termination
Date or (ii) in the case of standby (including direct pay) Letters of Credit,
one year from the date of its issuance and, in the case of documentary Letters
of Credit, 180 days from the date of its issuance. The
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Issuer will make available to the beneficiary thereof the original of each
Letter of Credit which it issues hereunder.
SECTION 2.6.1. OTHER LENDERS' PARTICIPATION. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Revolving Loan Lender (other than the Issuer) shall be deemed to
have irrevocably purchased from the Issuer, to the extent of its RL Percentage,
and the Issuer shall be deemed to have irrevocably granted and sold to such
Revolving Loan Lender, a participation interest in such Letter of Credit
(including the Contingent Liability and any Reimbursement Obligation and all
rights with respect thereto), and such Revolving Loan Lender shall, to the
extent of its RL Percentage, be responsible for reimbursing promptly (and in any
event within one Business Day) the Issuer for Reimbursement Obligations which
have not been reimbursed by the Borrower in accordance with SECTION 2.6.3. In
addition, such Revolving Loan Lender shall, to the extent of its RL Percentage,
be entitled to receive a ratable portion of the Letter of Credit fees payable
pursuant to SECTION 3.3.3 with respect to each Letter of Credit and of interest
payable pursuant to SECTION 3.2 with respect to any Reimbursement Obligation. To
the extent that any Revolving Loan Lender has reimbursed the Issuer for a
Disbursement as required by this Section, such Revolving Loan Lender shall be
entitled to receive its ratable portion of any amounts subsequently received
(from the Borrower or otherwise) in respect of such Disbursement.
SECTION 2.6.2. DISBURSEMENTS; CONVERSION TO REVOLVING LOANS. The Issuer
will notify the Borrower and the Administrative Agent promptly of the
presentment for payment of any Letter of Credit issued by the Issuer, together
with notice of the date (the "DISBURSEMENT DATE") such payment shall be made
(each such payment, a "DISBURSEMENT"). Subject to the terms and provisions of
such Letter of Credit and this Agreement, the Issuer shall make such payment to
the beneficiary (or its designee) of such Letter of Credit. Prior to 12:00 noon,
New York time, on the first Business Day following the Disbursement Date (the
"DISBURSEMENT DUE DATE"), the Borrower will reimburse the Administrative Agent,
for the account of the Issuer, for all amounts which the Issuer has disbursed
under such Letter of Credit, together with interest thereon at the rate per
annum otherwise applicable to Revolving Loans (made as Base Rate Loans) from and
including the Disbursement Date to but excluding the Disbursement Due Date and,
thereafter (unless such Disbursement is converted into a Base Rate Loan on the
Disbursement Due Date), at a rate per annum equal to the rate per annum then in
effect with respect to overdue Revolving Loans (made as Base Rate Loans)
pursuant to SECTION 3.2.2 for the period from the Disbursement Due Date through
the date of such reimbursement; PROVIDED, HOWEVER, that, if no Default shall
have then occurred and be continuing, unless the Borrower has notified the
Administrative Agent no later than one Business Day prior to the Disbursement
Due Date that it will reimburse the Issuer for the applicable Disbursement, then
the amount of the Disbursement shall be deemed to be a Revolving Loan
constituting a Base Rate Loan and following the giving of notice thereof by the
Administrative Agent to the Lenders, each Revolving Loan Lender (other than the
Issuer) will deliver to the Issuer on the Disbursement Due Date immediately
available funds in an amount equal to such Revolving Loan Lender's RL Percentage
of such Revolving Loan. Each conversion of Disbursement amounts into Revolving
Loans shall constitute a representation and warranty by the Borrower that on the
date of the making of such Revolving Loan all of the statements set forth in
SECTION 5.2.1 are true and correct.
SECTION 2.6.3. REIMBURSEMENT. The obligation (a "REIMBURSEMENT OBLIGATION")
of the Borrower under SECTION 2.6.2 to reimburse the Issuer with respect to each
Disbursement (including interest thereon) not converted into a Base Rate Loan
pursuant to SECTION 2.6.2, and,
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upon the failure of the Borrower to reimburse the Issuer and the giving of
notice thereof by the Administrative Agent to the Lenders, each Revolving Loan
Lender's obligation under SECTION 2.6.1 to reimburse the Issuer or fund its RL
Percentage of any Disbursement converted into a Base Rate Loan, shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower or such
Lender, as the case may be, may have or have had against the Issuer or any such
Lender, including any defense based upon the failure of any Disbursement to
conform to the terms of the applicable Letter of Credit (if, in the Issuer's
good faith opinion, such Disbursement is determined to be appropriate) or any
non-application or misapplication by the beneficiary of the proceeds of such
Letter of Credit; PROVIDED, HOWEVER, that after paying in full its Reimbursement
Obligation hereunder, nothing herein shall adversely affect the right of the
Borrower or such Lender, as the case may be, to commence any proceeding against
the Issuer for any wrongful Disbursement made by the Issuer under a Letter of
Credit as a result of acts or omissions constituting gross negligence or willful
misconduct on the part of the Issuer.
SECTION 2.6.4. DEEMED DISBURSEMENTS. Upon the occurrence and during the
continuation of any Event of Default of the type described in SECTION 8.1.9 or,
with notice from the Administrative Agent acting at the direction of the
Required Lenders, upon the occurrence and during the continuation of any other
Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn and
available under all Letters of Credit issued and outstanding shall, without
demand upon or notice to the Borrower or any other Person, be deemed to
have been paid or disbursed by the Issuer under such Letters of Credit
(notwithstanding that such amount may not in fact have been so paid or
disbursed); and
(b) upon notification by the Administrative Agent to the Borrower of
its obligations under this Section, the Borrower shall be immediately
obligated to reimburse the Issuer for the amount deemed to have been so
paid or disbursed by the Issuer.
Any amounts so payable by the Borrower pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
Issuer. At such time when the Events of Default giving rise to the deemed
disbursements hereunder shall have been cured or waived, the Administrative
Agent shall return to the Borrower all amounts then on deposit with the
Administrative Agent pursuant to this Section, together with accrued interest at
the Federal Funds Rate, which have not been applied to the satisfaction of such
Obligations.
SECTION 2.6.5. NATURE OF REIMBURSEMENT OBLIGATIONS. The Borrower and, to
the extent set forth in SECTION 2.6.1, each Revolving Loan Lender, shall assume
all risks of the acts, omissions or misuse of any Letter of Credit by the
beneficiary thereof. The Issuer (except to the extent of its own gross
negligence or willful misconduct) shall not be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
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(b) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or the proceeds thereof in whole or in part, which may prove to be invalid
or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise; or
(e) any loss or delay in the transmission or otherwise of any document
or draft required in order to make a Disbursement under a Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Revolving Loan Lender hereunder.
In furtherance and extension and not in limitation or derogation of any of the
foregoing, any action taken or omitted to be taken by the Issuer in good faith
(and not constituting gross negligence or willful misconduct) shall be binding
upon the Borrower, each Obligor and each such Lender, and shall not put the
Issuer under any resulting liability to the Borrower, any Obligor or any such
Lender, as the case may be.
SECTION 2.6.6. DEEMED ISSUANCE OF EXISTING LETTERS OF CREDIT. The parties
hereto acknowledge and agree that all Existing Letters of Credit shall, for all
purposes hereof, be deemed to be Letters of Credit issued hereunder on the
Closing Date.
SECTION 2.7. REGISTER; NOTES.
(a) Each Lender may maintain in accordance with its usual practice an
account or accounts evidencing the Indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder. In the
case of a Lender that does not request, pursuant to CLAUSE (b)(ii) below,
execution and delivery of a Note evidencing the Loans made by such Lender to the
Borrower, such account or accounts shall, to the extent not inconsistent with
the notations made by the Administrative Agent in the Register, be conclusive
and binding on the Borrower absent manifest error; PROVIDED, HOWEVER, that the
failure of any Lender to maintain such account or accounts shall not limit or
otherwise affect any Obligations of the Borrower or any other Obligor.
(b)(i) The Borrower hereby designates the Administrative Agent to
serve as the Borrower's agent, solely for the purpose of this CLAUSE (b),
to maintain a register (the "REGISTER") on which the Administrative Agent
will record each Lender's Commitment, the Loans made by each Lender and
each repayment in respect of the principal amount of the Loans of each
Lender and annexed to which the Administrative Agent shall retain a copy of
each Lender Assignment Agreement delivered to the Administrative Agent
pursuant to SECTION 10.11.1. Failure to make any recordation, or any error
in such recordation, shall not affect the Borrower's obligation in respect
of such Loans. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Administrative Agent and
the Lenders shall treat each Person in whose
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<PAGE> 41
name a Loan (and as provided in CLAUSE (ii) the Note evidencing such Loan,
if any) is registered as the owner thereof for all purposes of this
Agreement, notwithstanding notice or any provision herein to the contrary.
A Lender's Commitment and the Loans made pursuant thereto may be assigned
or otherwise transferred in whole or in part only by registration of such
assignment or transfer in the Register. Any assignment or transfer of a
Lender's Commitment or the Loans made pursuant thereto shall be registered
in the Register only upon delivery to the Administrative Agent of a Lender
Assignment Agreement duly executed by the assignor thereof and the
compliance by the parties thereto with the other requirements of SECTION
10.11.1. No assignment or transfer of a Lender's Commitment or the Loans
made pursuant thereto shall be effective unless such assignment or transfer
shall have been recorded in the Register by the Administrative Agent as
provided in this Section.
(ii) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender,
as applicable, a Note of the applicable Tranche evidencing the Loans made
by such Lender. The Borrower hereby irrevocably authorizes each Lender to
make (or cause to be made) appropriate notations on the grid attached to
such Lender's Notes (or on any continuation of such grid), which notations,
if made, shall evidence, INTER ALIA, the date of, the outstanding principal
amount of, and the interest rate and Interest Period applicable to the
Loans evidenced thereby. Such notations shall, to the extent not
inconsistent with the notations made by the Administrative Agent in the
Register, be conclusive and binding on the Borrower absent manifest error;
PROVIDED, HOWEVER, that the failure of any Lender to make any such
notations shall not limit or otherwise affect any Obligations of the
Borrower or any other Obligor. The Loans evidenced by any Registered Note
and interest thereon shall at all times (including after assignment
pursuant to SECTION 10.11.1) be payable to the order of the payee named
therein and its registered assigns. A Registered Note and the obligation
evidenced thereby may be assigned or otherwise transferred in whole or in
part only by registration of such assignment or transfer of such Registered
Note and the obligation evidenced thereby in the Register (and each
Registered Note shall expressly so provide). Any assignment or transfer of
all or part of an obligation evidenced by a Registered Note shall be
registered in the Register only upon surrender for registration of
assignment or transfer of the Registered Note evidencing such obligation,
accompanied by a Lender Assignment Agreement duly executed by the assignor
thereof and the compliance by the parties thereto with the other
requirements of SECTION 10.11.1, and thereupon, if requested by the
assignee, one or more new Notes shall be issued to the designated assignee
and the old Registered Note shall be returned by the Administrative Agent
to the Borrower marked "exchanged". No assignment of a Registered Note and
the obligation evidenced thereby shall be effective unless it shall have
been recorded in the Register by the Administrative Agent as provided in
this Section.
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. REPAYMENTS AND PREPAYMENTS; APPLICATION.
SECTION 3.1.1. REPAYMENTS AND PREPAYMENTS. The Borrower shall repay in full
the unpaid principal amount of each Loan upon the Stated Maturity Date therefor.
Prior thereto, the Borrower
(a) may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of any
(i) Loans (other than Swing Line Loans), PROVIDED, HOWEVER, that
(A) any such prepayment of the Term Loans shall be made PRO
RATA among Term Loans of the same type and if applicable, having
the same Interest Period of all Lenders that have made such Term
Loans, and any such prepayment of Revolving Loans shall be made
PRO RATA among the Revolving Loans of the same type and, if
applicable, having the same Interest Period of all Lenders that
have made such Revolving Loans;
(B) the Borrower shall comply with SECTION 4.4 in the event
that any LIBO Rate Loan is prepaid on any day other than the last
day of the Interest Period for such Loan;
(C) all such voluntary prepayments shall require at least
three but no more than five Business Days' prior written notice
to the Administrative Agent; and
(D) all such voluntary partial prepayments shall be, in the
case of LIBO Rate Loans, in an aggregate minimum amount of
$5,000,000 and an integral multiple of $1,000,000 and, in the
case of Base Rate Loans, in an aggregate minimum amount of
$1,000,000 and an integral multiple of $500,000; or
(ii) Swing Line Loans, PROVIDED that all such voluntary
prepayments shall require prior telephonic notice to the Swing Line
Lender on or before 1:00 p.m., New York time, on the day of such
prepayment (such notice to be confirmed in writing within 24 hours
thereafter);
(b) shall, no later than one Business Day following the receipt of any
Net Disposition Proceeds (exclusive of Net Disposition Proceeds received in
connection with the disposition of assets of President and its Subsidiaries
in an amount not to exceed $60,000,000 over the term of this Agreement) in
excess of $25,000,000 ("EXCESS NET DISPOSITION PROCEEDS") in any Fiscal
Year, subject to the following proviso, make a mandatory prepayment of the
Term Loans in an amount equal to 100% of such Excess Net Disposition
Proceeds, to be applied as set forth in SECTION 3.1.2; PROVIDED, that, at
the option of the Borrower and so long as no Default shall have occurred
and be continuing
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<PAGE> 43
or would result therefrom, the Borrower may use or cause the
appropriate Subsidiary to use the Excess Net Disposition Proceeds to
purchase assets useful in the business of the Borrower and its Subsidiaries
or to purchase a majority controlling interest in a Person owning such
assets or to increase any such controlling interest already maintained by
it (with such assets or interests collectively referred to as "QUALIFIED
ASSETS") within 18 months after the consummation (and with the Net
Disposition Proceeds) of such sale, conveyance or disposition. If and to
the extent that the Borrower has elected to reinvest Excess Net Disposition
Proceeds as permitted above, then on the date which is 18 months after the
relevant sale, conveyance or disposition, the Borrower shall deliver to the
Administrative Agent, for application in accordance with this clause and
SECTION 3.1.2, an amount equal to the remaining unused Excess Net
Disposition Proceeds;
(c) shall, on each date when any reduction in the Revolving Loan
Commitment Amount shall become effective, including pursuant to SECTION
2.2, make a mandatory prepayment of Revolving Loans and (if necessary)
Swing Line Loans, and (if necessary) deposit with the Administrative Agent
cash collateral for Letter of Credit Outstandings in an aggregate amount
equal to the excess, if any, of the aggregate outstanding principal amount
of all Revolving Loans, Swing Line Loans and Letters of Credit Outstanding
over the Revolving Loan Commitment Amount as so reduced;
(d) shall, on the Stated Maturity Date and on each Quarterly Payment
Date occurring on or during any period set forth below, make a scheduled
repayment of the aggregate outstanding principal amount of all Term Loans
in an amount equal to the amount set forth below opposite the Stated
Maturity Date or such Quarterly Payment Date (as such amounts may have
otherwise been reduced pursuant to this Agreement), as applicable:
<TABLE>
<CAPTION>
Principal
Period Amount
------ ------
<S> <C>
03/31/99 through (and including)
12/31/99 $8,750,000
03/31/00 through (and including)
12/31/00 $8,750,000
03/31/01 through (and including)
12/31/01 $13,125,000
03/31/02 through (and including)
12/31/02 $17,500,000
03/31/03 through (and including)
12/31/03 $21,875,000
03/31/04 through (and including)
06/30/04 $17,500,000
</TABLE>
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<PAGE> 44
<TABLE>
<CAPTION>
<S> <C>
Stated Maturity Date for
Term Loans $35,000,000 or the then
outstanding principal
amount of all Term Loans,
if different; and
</TABLE>
(e) shall, immediately upon any acceleration of the Stated Maturity
Date of any Loans or Obligations pursuant to SECTION 8.2 or SECTION 8.3,
repay all Loans and provide the Administrative Agent with cash collateral
in an amount equal to the Letter of Credit Outstandings, unless, pursuant
to SECTION 8.3, only a portion of all Loans and Obligations are so
accelerated (in which case the portion so accelerated shall be so prepaid
or cash collateralized with the Administrative Agent).
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by SECTION 4.4. No prepayment of
principal of any Revolving Loans or Swing Line Loans pursuant to CLAUSE (a) of
SECTION 3.1.1 shall cause a reduction in the Revolving Loan Commitment Amount or
the Swing Line Loan Commitment Amount, as the case may be.
SECTION 3.1.2. APPLICATION. (a) Subject to CLAUSE (b), each prepayment or
repayment of the principal of the Loans shall be applied, to the extent of such
prepayment or repayment, FIRST, to the principal amount thereof being maintained
as Base Rate Loans, and SECOND, to the principal amount thereof being maintained
as LIBO Rate Loans.
(b) Each voluntary prepayment of Term Loans and each prepayment of Term
Loans made pursuant to CLAUSE (b) of SECTION 3.1.1 shall be applied to the
remaining Term Loan amortization payments required pursuant to CLAUSE (d) of
SECTION 3.1.1, PRO RATA in accordance with the amount of each such remaining
Term Loan amortization payment, until all such Term Loans have been paid in
full.
SECTION 3.2. INTEREST PROVISIONS. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this SECTION 3.2.
SECTION 3.2.1. RATES. Pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, the Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) with respect to Revolving Loans and Term Loans,
(i) on that portion maintained from time to time as a Base Rate
Loan, equal to the sum of the Alternate Base Rate from time to time in
effect plus the Applicable Margin; and
(ii) on that portion maintained as a LIBO Rate Loan, during each
Interest Period applicable thereto, equal to the sum of the LIBO Rate
(Reserve Adjusted) for such Interest Period plus the Applicable
Margin; and
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(b) with respect to Swing Line Loans, equal to the sum of the
Alternate Base Rate from time to time in effect plus the Applicable Margin
payable for Revolving Loans that are Base Rate Loans.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. POST-MATURITY RATES. After the date any principal amount of
any Loan shall have become due and payable (whether on the Stated Maturity Date,
upon acceleration or otherwise), or any other monetary Obligation (other than
overdue Reimbursement Obligations which shall bear interest as provided in
SECTION 2.6.2) of the Borrower shall have become due and payable, the Borrower
shall pay, but only to the extent permitted by law, interest (after as well as
before judgment) on such amounts at a rate per annum equal to
(a) in the case of any overdue principal amount of Loans, overdue
interest thereon, overdue commitment fees or other overdue amounts owing in
respect of Loans or other obligations (or the related Commitments) under a
particular Tranche, the rate that would otherwise be applicable to Base
Rate Loans under such Tranche pursuant to SECTION 3.2.1 plus 2%; and
(b) in the case of overdue monetary Obligations (other than as
described in CLAUSE (a)), the Alternate Base Rate plus 2%.
SECTION 3.2.3. PAYMENT DATES. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment of the Term Loans, in
whole or in part, of principal outstanding on such Loan;
(c) with respect to Base Rate Loans, on each Quarterly Payment Date;
(d) with respect to LIBO Rate Loans, the last day of each applicable
Interest Period (and, if such Interest Period shall exceed three months, on
the third month anniversary of the first day of such Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO Rate Loans
on a day when interest would not otherwise have been payable pursuant to
CLAUSE (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to SECTION 8.2 or SECTION 8.3, immediately upon such
acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
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<PAGE> 46
SECTION 3.3. FEES. The Borrower agrees to pay the fees set forth in
this SECTION 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. COMMITMENT FEE. The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Loan Lender, for the
period (including any portion thereof when any of the Revolving Loan Lender's
Commitments are suspended by reason of the Borrower's inability to satisfy any
condition of ARTICLE V) commencing on the Effective Date and continuing through
the Revolving Loan Commitment Termination Date, a commitment fee at the rate of
the Applicable Commitment Fee Margin on such Revolving Loan Lender's RL
Percentage of the average daily unused portion of the Revolving Loan Commitment
Amount (net of Letter of Credit Outstandings). Such commitment fees shall be
payable by the Borrower in arrears on each Quarterly Payment Date and on the
Revolving Loan Commitment Termination Date. The making of Swing Line Loans by
the Swing Line Lender shall constitute the usage of the Revolving Loan
Commitment with respect to the Swing Line Lender only and the commitment fees to
be paid by the Borrower to the Lenders (other than the Swing Line Lender) shall
be calculated and paid accordingly.
SECTION 3.3.2. ADMINISTRATIVE AGENT'S FEE. The Borrower agrees to pay
to the Administrative Agent, for its own account, the non-refundable fees in the
amounts and on the dates set forth in the Fee Letter.
SECTION 3.3.3. LETTER OF CREDIT FEE. The Borrower agrees to pay to the
Administrative Agent, for the PRO RATA account of the Issuer and each other
Revolving Loan Lender, a Letter of Credit fee in an amount equal to (a) with
respect to each standby (including direct pay) Letter of Credit, the Applicable
Margin per annum for Revolving Loans that are maintained as LIBO Rate Loans
multiplied by the Stated Amount of each such Letter of Credit, and (b) with
respect to each documentary Letter of Credit, 0.5625% per annum multiplied by
the Stated Amount of each such Letter of Credit, such fees being in each case
payable quarterly in arrears on each Quarterly Payment Date.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO RATE LENDING UNLAWFUL. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the Lenders,
be conclusive and binding on the Borrower) that the introduction of or any
change in or in the interpretation of any law makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful, for such
Lender to make, continue or maintain any Loan as, or to convert any Loan into, a
LIBO Rate Loan, the obligations of such Lender to make, continue, maintain or
convert any Loans as LIBO Rate Loans shall, upon such determination, forthwith
be suspended until such Lender shall notify the Administrative Agent that the
circumstances causing such suspension no longer exist (with the date of such
notice being the "REINSTATEMENT DATE"), and (i) all LIBO Rate Loans previously
made by such Lender shall automatically convert into Base Rate Loans at the end
of the then current Interest Periods with respect thereto or sooner, if required
by such law or assertion and (ii) all Loans thereafter made by such Lender and
outstanding prior to the Reinstatement Date shall be made as Base Rate Loans,
with interest
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<PAGE> 47
thereon being payable on the same date that interest is payable with respect to
corresponding Borrowing of LIBO Rate Loans made by Lenders not so affected.
SECTION 4.2. DEPOSITS UNAVAILABLE. If the Administrative Agent shall
have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Administrative Agent
in its relevant market; or
(b) by reason of circumstances affecting the Administrative
Agent's relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to LIBO Rate Loans,
then, upon notice from the Administrative Agent to the Borrower and the Lenders,
the obligations of all Lenders under SECTION 2.3 and SECTION 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.
SECTION 4.3. INCREASED LIBO RATE LOAN COSTS, ETC. The Borrower agrees
to reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, LIBO Rate Loans (excluding any amounts, whether or not constituting
Taxes, referred to in SECTION 4.6) arising after the date of any change in, or
the introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority that results in such increase in cost or
reduction in amounts receivable. Such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by the Borrower
directly to such Lender within five days of its receipt of such notice, and such
notice shall, in the absence of manifest error, be conclusive and binding on the
Borrower.
SECTION 4.4. FUNDING LOSSES. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loans on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to
SECTION 3.1 or otherwise;
(b) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor; or
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<PAGE> 48
(c) any Loans not being continued as, or converted into, LIBO
Rate Loans in accordance with the Continuation/Conversion Notice
therefor,
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on the
Borrower.
SECTION 4.5. INCREASED CAPITAL COSTS. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments, participation in Letters of Credit or the Loans
made by such Lender is reduced to a level below that which such Lender or such
controlling Person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by such
Lender to the Borrower, the Borrower shall immediately pay directly to such
Lender additional amounts sufficient to compensate such Lender or such
controlling Person for such reduction in rate of return; PROVIDED, that the
Borrower shall not be liable to any Lender for such additional amounts incurred
more than sixty days prior to receipt by the Borrower of the notice referred to
in the immediately preceding sentence from such Lender. A statement of such
Lender as to any such additional amount or amounts (including calculations
thereof in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrower. In determining such amount, such Lender
may use any method of averaging and attribution that it (in its sole and
absolute discretion) shall deem applicable.
SECTION 4.6. TAXES. (a) All payments by the Borrower of principal of,
and interest on, the Loans and all other amounts payable hereunder (including
Reimbursement Obligations and fees) shall be made free and clear of and without
deduction for any present or future income, excise, stamp or franchise taxes and
other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding (i) Taxes imposed on
the Administrative Agent as a result of a present or former connection between
the applicable lending office of the Administrative Agent, and Taxes imposed on
any Lender as a result of a present or former connection between the applicable
lending office of a Lender, in each case and the jurisdiction of the
governmental authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or taken any action to enforce,
this Agreement) or (ii) any taxes to the extent that they are in effect and
would apply as of the date any Person becomes a Lender or Assignee Lender, or as
of the date that any Lender changes its applicable lending office, to the extent
such taxes become applicable as a result of such change (other than a change in
an applicable lending office made pursuant to SECTION 4.10 below) (such
non-excluded items being called "TAXES"). In the event that any withholding or
deduction from any payment to be made by the Borrower hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
the Borrower will
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<PAGE> 49
(i) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and
(iii) pay to the Administrative Agent for the account of the
Lenders such additional amount or amounts as is necessary to ensure
that the net amount actually received by each Lender will equal the
full amount such Lender would have received had no such withholding or
deduction been required, PROVIDED, HOWEVER, that the Borrower shall not
be required to increase any such amounts payable to any Lender that is
not organized under the laws of the United States or a state thereof if
such Lender fails to comply with the requirements of CLAUSE (b) of
SECTION 4.6.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and the Borrower will promptly pay to such Person such additional amounts
(including any penalties, interest or expenses) as is necessary in order that
the net amount received by such Person (including any Taxes on such additional
amount) shall equal the amount of such Taxes paid by such Person.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the respective Lenders, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure.
(b) Each Non-U.S. Lender shall, (i) on or prior to the date of the
execution and delivery of this Agreement, in the case of each Lender listed on
the signature pages hereof, or, in the case of an Assignee Lender, on or prior
to the date it becomes a Lender, execute and deliver to the Borrower and the
Administrative Agent, two or more (as the Borrower or the Administrative Agent
may reasonably request) United States Internal Revenue Service Forms 4224 or
Forms 1001 or, solely if such Lender is claiming exemption from United States
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", United States Internal Revenue Service Forms
W-8 and a certificate signed by a duly authorized officer of such Lender
representing that such Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, or such other forms or documents (or successor forms
or documents), appropriately completed, as may be applicable to establish the
extent, if any, to which a payment to such Lender is exempt from withholding or
deduction of Taxes; and (ii) deliver to the Borrower and the Administrative
Agent two further copies of any such form or documents on or before the date
that any such form or document expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent such form or
document previously delivered by it to the Borrower.
(c) If the Borrower determines in good faith that a reasonable basis
exists for contesting the imposition of a Tax with respect to a Lender or the
Administrative Agent, the relevant Lender or the Administrative Agent, as
applicable, shall cooperate with the Borrower in challenging such Tax at the
Borrower's expense if requested by the Borrower.
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SECTION 4.7. PAYMENTS, COMPUTATIONS, ETC. Unless otherwise expressly
provided, all payments by or on behalf of the Borrower pursuant to this
Agreement, the Notes, each Letter of Credit or any other Loan Document shall be
made by the Borrower to the Administrative Agent for the PRO RATA account of the
Lenders entitled to receive such payment. All such payments required to be made
to the Administrative Agent shall be made, without setoff, deduction or
counterclaim, not later than 12:00 noon, New York time, on the date due, in same
day or immediately available funds, to such account as the Administrative Agent
shall specify from time to time by notice to the Borrower. Funds received after
that time shall be deemed to have been received by the Administrative Agent on
the next succeeding Business Day. The Administrative Agent shall promptly remit
in same day funds to each Lender its share, if any, of such payments received by
the Administrative Agent for the account of such Lender. All interest and fees
shall be computed on the basis of the actual number of days (including the first
day but excluding the last day) occurring during the period for which such
interest or fee is payable over a year comprised of 360 days (or, in the case of
interest on a Base Rate Loan, 365 days or, if appropriate, 366 days). Whenever
any payment to be made shall otherwise be due on a day which is not a Business
Day, such payment shall (except as otherwise required by CLAUSE (c) of the
definition of the term "INTEREST PERIOD") be made on the next succeeding
Business Day and such extension of time shall be included in computing interest
and fees, if any, in connection with such payment.
SECTION 4.8. SHARING OF PAYMENTS. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan or Reimbursement Obligation (other
than pursuant to the terms of SECTIONS 4.3, 4.4 and 4.5) in excess of its PRO
RATA share of payments then or therewith obtained by all Lenders entitled
thereto, such Lender shall purchase from the other Lenders such participation in
Credit Extensions made by them as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of them;
PROVIDED, HOWEVER, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase shall
be rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of
(a) the amount of such selling Lender's required repayment to
the purchasing Lender
TO
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to SECTION 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar
law, any Lender receives a secured claim in lieu of a setoff to which this
Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with
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the rights of the Lenders entitled under this Section to share in the benefits
of any recovery on such secured claim.
SECTION 4.9. SETOFF. Each Lender shall, upon the occurrence of any
Default described in CLAUSES (a) through (d) of SECTION 8.1.9 as it relates to
the Borrower or, with the consent of the Required Lenders, upon the occurrence
of any other Event of Default, have the right to appropriate and apply to the
payment of the Obligations owing to it (whether or not then due) any and all
balances, credits, deposits, accounts or moneys of the Borrower then or
thereafter maintained with or otherwise held by such Lender; PROVIDED, HOWEVER,
that any such appropriation and application shall be subject to the provisions
of SECTION 4.8. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such setoff and application made by such Lender;
PROVIDED, HOWEVER, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff under applicable law or otherwise) which such Lender may have.
SECTION 4.10. MITIGATION. Each Lender agrees that if it makes any
demand for payment under SECTION 4.3, 4.4, 4.5, or 4.6, or if any adoption or
change of the type described in SECTION 4.1 shall occur with respect to it, it
will use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be disadvantageous
to it, as determined in its sole discretion) to designate a different lending
office if the making of such a designation would reduce or obviate the need for
the Borrower to make payments under SECTION 4.3, 4.4, 4.5, or 4.6, or would
eliminate or reduce the effect of any adoption or change described in SECTION
4.1.
SECTION 4.11. REPLACEMENT OF LENDERS. If any Lender (an "AFFECTED
LENDER") makes a determination under SECTION 4.1 or a demand upon the Borrower
for (or if the Borrower is otherwise required to pay) amounts pursuant to
SECTION 4.3, 4.5 or 4.6 and the payment of such additional amounts are, and are
likely to continue to be, more onerous in the reasonable judgment of the
Borrower than with respect to the other Lenders, the Borrower may, within 30
days of receipt by the Borrower of such demand or notice (or the occurrence of
such other event causing the Borrower to be required to pay such compensation),
as the case may be, give notice (a "REPLACEMENT NOTICE") in writing to the
Administrative Agent and such Affected Lender of the Borrower's intention to
replace such Affected Lender with a financial institution (a "REPLACEMENT
LENDER") designated in such Replacement Notice. If the Administrative Agent
shall, in the exercise of its reasonable discretion and within 30 days of their
receipt of such Replacement Notice, notify the Borrower and such Affected Lender
in writing that the designated financial institution is satisfactory to the
Administrative Agent (such consent not being required where the Replacement
Lender is already a Lender), then such Affected Lender shall assign, in
accordance with SECTION 10.11.1, all of its Commitments, Loans and other rights
and obligations under this Agreement and all other Loan Documents (including
Reimbursement Obligations, if applicable) to such designated financial
institution; PROVIDED, HOWEVER, that (i) such assignment shall be without
recourse, representation or warranty (except as to title) and shall be on terms
and conditions reasonably satisfactory to such Affected Lender and such
designated financial institution, (ii) the purchase price paid by such
designated financial institution shall be in the amount of such Affected
Lender's Loans and its Percentage of outstanding Reimbursement Obligations,
together with all accrued and unpaid interest and fees in respect thereof), (ii)
the Borrower shall have paid to the Administrative Agent for the account of the
Affected Lender all other amounts owing to such Affected Lender under this
Agreement
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(including the amounts demanded and unreimbursed under this Article, commitment
fees, expense reimbursements, indemnities and breakage fees with respect to any
LIBO Rate Loan computed as if such Loan were being prepaid) and (iii) the
Borrower shall pay to the Affected Lender and the Administrative Agent all
reasonable out-of-pocket expenses incurred by the Affected Lender and the
Administrative Agent in connection with such assignment and assumption
(including the processing fees described in SECTION 10.11.1). Upon the effective
date of an assignment described above, the Replacement Lender shall become a
"Lender" for all purposes under this Agreement and the other Loan Documents.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. INITIAL CREDIT EXTENSIONS. The obligations of the Lenders
to make Loans and the Issuer to issue Letters of Credit and continue Existing
Letters of Credit as Letters of Credit under this Agreement shall be subject to
the prior or concurrent satisfaction of each of the conditions precedent set
forth below.
SECTION 5.1.1. RESOLUTIONS, ETC. The Administrative Agent shall have
received from the Borrower a certificate, dated the Closing Date, of its
Secretary or Assistant Secretary as to, and attaching,
(a) resolutions of its Board of Directors then in full force
and effect authorizing the execution, delivery and performance of the
Purchase Agreement, this Agreement, each other Loan Document to be
executed by it and the transactions contemplated hereby and thereby;
(b) the incumbency and signatures of those of its officers
authorized to act with respect to the Purchase Agreement, this
Agreement and each other Loan Document executed by it; and
(c) the full force and validity of its Organic Documents,
upon which certificate each Agent, each Lender and the Issuer may conclusively
rely until it shall have received a further certificate of the Secretary of the
Borrower canceling or amending such prior certificate.
SECTION 5.1.2. DELIVERY OF NOTES. The Administrative Agent shall have
received, for the account of each Lender that has requested a Note, such
Lender's Notes, duly executed and delivered by the Borrower.
SECTION 5.1.3. CONSUMMATION OF ACQUISITION. The Administrative Agent
shall have received evidence satisfactory to it that (a) all actions necessary
to consummate the Acquisition shall have been taken in accordance with all
applicable laws, and (b) the Acquisition shall have been consummated for an
aggregate purchase price (excluding related fees and expenses) not to exceed
$450,000,000 (as such amount may be adjusted pursuant to the terms of the
Purchase Agreement), with the amount of related fees and expenses not to exceed
$10,000,000.
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SECTION 5.1.4. ACQUISITION DOCUMENTS. The Administrative Agent shall
have received (with copies for each Lender) a fully executed copy of the
Purchase Agreement and, to the extent requested by the Administrative Agent, all
other documents and instruments delivered in connection with the consummation of
the Acquisition that are required to be delivered pursuant to the terms of the
Purchase Agreement. The Purchase Agreement shall be in full force and effect and
shall not have been modified or waived in any material respect, nor shall there
have been any forbearance to exercise any material rights with respect to any of
the terms or provisions relating to the conditions to the consummation of the
Acquisition in the Purchase Agreement unless otherwise agreed to by the Required
Lenders.
SECTION 5.1.5. CLOSING DATE CERTIFICATE. The Administrative Agent shall
have received, with counterparts for each Lender, the Closing Date Certificate,
dated the Closing Date and duly executed and delivered by the chief executive,
financial or accounting (or equivalent) Authorized Officer of the Borrower, in
which certificate the Borrower shall agree and acknowledge that the statements
made therein shall be deemed to be true and correct representations and
warranties of the Borrower made as of such date under this Agreement, and, at
the time such certificate is delivered, such statements shall in fact be true
and correct.
SECTION 5.1.6. PAYMENT OF OUTSTANDING INDEBTEDNESS, ETC. All
Indebtedness identified in ITEM 7.2.2 of the Disclosure Schedule, together with
all interest, all prepayment premiums and other amounts due and payable with
respect thereto, shall have been paid in full (including, to the extent
necessary, from proceeds of the initial Credit Extensions) or to the extent not
pre-paid are permitted to remain outstanding under this Agreement, and all Liens
securing payment of any such Indebtedness shall have been released (or to the
extent not released are permitted to remain outstanding under this Agreement)
and (if applicable) the Administrative Agent shall have received executed
Uniform Commercial Code Form UCC-3 termination statements or other instruments
as may be suitable or appropriate in connection therewith (or arrangements
satisfactory to the Administrative Agent shall have been entered into relating
to such release to occur promptly following the initial Credit Extensions).
SECTION 5.1.7. FINANCIAL INFORMATION, ETC. The Administrative Agent
shall have received, with copies for each Lender,
(a) the (i) unqualified audited consolidated financial
statements of President and its Subsidiaries for the 1995, 1996, 1997
Fiscal Years, and (ii) the unaudited consolidated balance sheet and
income statements of President and its Subsidiaries for the period
ended June 30, 1998, prepared on a basis substantially comparable to
the basis used to prepare the audited financial statements of President
and its Subsidiaries referred to in CLAUSE (a)(i);
(b) a PRO FORMA consolidated balance sheet to the Borrower and
its Subsidiaries, as of the Closing Date (the "PRO FORMA BALANCE
SHEET"), certified by the chief financial or accounting Authorized
Officer of the Borrower, giving effect to the consummation of the
Acquisition and all the transactions contemplated by this Agreement and
reflecting the proposed capital structure of the Borrower, which shall
be satisfactory in all respects to the Administrative Agent; and
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(c) PRO FORMA consolidated projections of the Borrower and its
Subsidiaries (including President and its Subsidiaries), satisfactory
in all respects to the Administrative Agent.
SECTION 5.1.8. SOLVENCY, ETC. The Administrative Agent shall have
received, with counterparts for each Lender, a Solvency Certificate dated the
Closing Date, duly executed and delivered by an Authorized Officer of the
Borrower.
SECTION 5.1.9. LITIGATION. The Administrative Agent shall be
satisfied in all respects that there exists no pending or threatened material
litigation, proceedings or investigation contesting the Acquisition or this
Agreement, or which could reasonably be expected to have a material adverse
effect on the financial condition, operations, assets, business, properties or
prospects of the Borrower and its Subsidiaries, taken as a whole (which shall be
deemed to include President and its Subsidiaries).
SECTION 5.1.10. MATERIAL ADVERSE CHANGE. The Lenders shall be satisfied
(as evidenced by the delivery of their respective executed signature page to
this Agreement) that there has been no material adverse change in the financial
condition, operations, assets, business, properties, or prospects of the
Borrower and its Subsidiaries, taken as a whole (which shall be deemed to
include President and its Subsidiaries) since January 3, 1998.
SECTION 5.1.11. SOURCES AND USES, ETC. The Administrative Agent shall
be satisfied with (i) the final structure of the Acquisition, (ii) the sources
and uses of proceeds used to consummate the Acquisition and (iii) the terms and
provisions of all documents, agreements and contracts related to the
Acquisition.
SECTION 5.1.12. GOVERNMENTAL APPROVAL, ETC. All material (as reasonably
determined by the Administrative Agent) governmental and third party approvals
necessary or advisable in connection with the Acquisition, the financing
contemplated hereunder and the continuing operations of the Borrower, President
and their respective Subsidiaries shall have been obtained and shall be in full
force and effect, and all applicable waiting periods shall have expired without
any action being taken or threatened by any competent authority which would
restrain, prevent or otherwise impose adverse conditions on the Acquisition or
the financing thereof.
SECTION 5.1.13. TRUSTEE LETTER; CALCULATION OF CONSOLIDATED COVERAGE
RATIO. The Borrower shall have delivered to the trustee under the Indenture a
notice to the effect that this Agreement is the "Credit Agreement" and that the
Administrative Agent is the "Credit Agent" for all purposes under (and as such
terms are defined in) the Indenture. The Administrative Agent shall have also
received a certificate from an Authorized Officer of the Borrower evidencing the
calculation of the Consolidated Coverage Ratio (under and as defined in the
Indenture) after giving effect to the Credit Extensions made on the Closing
Date, together with a summary of how the Borrower is designating the Credit
Extensions under Section 3.8 of the Indenture, and such certificates shall
demonstrate that all Credit Extensions made on such date shall constitute
"Senior Indebtedness" (as defined in the Indenture).
SECTION 5.1.14. OPINION OF COUNSEL. The Administrative Agent shall have
received an opinion letter, dated the Closing Date and addressed to the
Administrative Agent and all Lenders, from (i) Winston & Strawn, New York
counsel to the Borrower and its U.S.
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Subsidiaries, and (ii) Thomas E. O'Neill, general counsel to the Borrower and
its U.S. Subsidiaries, in each case in form and substance satisfactory to the
Administrative Agent.
SECTION 5.1.15. RELIANCE LETTERS. The Administrative Agent shall have
received reliance letters, dated the Closing Date and addressed to each Lender
and the Administrative Agent, in respect of each of the legal opinions delivered
in connection with the Acquisition from counsel to the Borrower and counsel to
President.
SECTION 5.1.16. CLOSING FEES, EXPENSES, ETC. The Administrative Agent
shall have received for its own account, or for the account of each Lender, as
the case may be, all fees, costs and expenses due and payable pursuant to
SECTIONS 3.3 and 10.3, if then invoiced.
SECTION 5.2. ALL CREDIT EXTENSIONS. The obligation of each Lender and
the Issuer to make any Credit Extension (including the initial Credit
Extensions) shall be subject to the satisfaction of each of the conditions
precedent set forth in this SECTION 5.2.
SECTION 5.2.1. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both before
and after giving effect to any Credit Extension the following statements shall
be true and correct:
(a) the representations and warranties set forth in ARTICLE VI
and in each other Loan Document shall, in each case, be true and
correct in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date);
(b) the sum of (x) the aggregate outstanding principal amount
of all Revolving Loans and Swing Line Loans and (y) all Letter of
Credit Outstandings does not exceed the Revolving Loan Commitment
Amount; and
(c) no Default shall have then occurred and be continuing.
SECTION 5.2.2. CREDIT EXTENSION REQUEST. The Administrative Agent shall
have received a Borrowing Request, if Loans (other than Swing Line Loans) are
being requested, or an Issuance Request (except in the case of the deemed
issuance hereunder on the Closing Date of Existing Letters of Credit pursuant to
SECTION 2.6.6), if a Letter of Credit is being requested or extended. Each of
the delivery of a Borrowing Request or Issuance Request and the acceptance by
the Borrower of the proceeds of any Credit Extension shall constitute a
representation and warranty by the Borrower that on the date of such Credit
Extension (both immediately before and after giving effect to such Credit
Extension and the application of the proceeds thereof) the statements made in
SECTION 5.2.1 are true and correct.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Agents to enter into
this Agreement, continue the Existing Letters of Credit as Letters of Credit
hereunder and to make Credit
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Extensions hereunder, the Borrower represents and warrants unto each Lender, the
Issuer and each Agent as set forth in this Article.
SECTION 6.1. ORGANIZATION, ETC. The Borrower and each of its
Subsidiaries (a) is validly organized and existing and in good standing under
the laws of the State of its organization, is duly qualified to do business and
is in good standing as a foreign corporation in each jurisdiction where the
nature of its business requires such qualification, except to the extent that
the failure to qualify would not reasonably be expected to result in a Material
Adverse Effect, and (b) has full power and authority and holds all requisite
governmental licenses, permits and other approvals to (i) enter into and perform
its Obligations in connection with the Acquisition and under this Agreement and
each other Loan Document to which it is a party and (ii) own and hold under
lease its property and to conduct its business substantially as currently
conducted by it except, in the case of this CLAUSE (b)(ii), where the
failure could not reasonably be expected to result in a Material Adverse Effect.
SECTION 6.2. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution,
delivery and performance by the Borrower of this Agreement and each other Loan
Document executed or to be executed by it, and the Borrower's and, where
applicable, each Subsidiary's participation in the consummation of the
Acquisition are within the Borrower's and each such Subsidiary's corporate
powers, have been duly authorized by all necessary corporate action, and do not
(a) contravene the Borrower's or any such Subsidiary's Organic
Documents;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Borrower or any such Subsidiary, where such
contravention, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect; or
(c) result in, or require the creation or imposition of, any
Lien on any of the Borrower's or any other Subsidiary's properties.
SECTION 6.3. GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person, is required for the due execution,
delivery or performance by the Borrower of this Agreement or any other Loan
Document to which it is a party, or for the Borrower's or any Subsidiary's
participation in the consummation of the Acquisition, except as have been duly
obtained or made and are in full force and effect or those which the failure to
obtain or make could not reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or a "holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 6.4. VALIDITY, ETC. This Agreement constitutes, and each other
Loan Document executed by the Borrower will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligations of the Borrower
enforceable in accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
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generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
SECTION 6.5. FINANCIAL INFORMATION. The
(a) audited consolidated balance sheet of President and its
Subsidiaries as at December 27, 1997 and the related consolidated
statements of earnings and cash flow; and
(b) audited consolidated balance sheet of the Borrower and its
Subsidiaries (prior to giving effect to the Acquisition) and related
consolidated statement of earnings and cash flow, as at January 3,
1998;
copies of which have been furnished to each Agent, the Issuer and each Lender,
have, in each case, been prepared in accordance with GAAP consistently applied,
and present fairly the consolidated financial condition of the Persons covered
thereby as at the dates thereof and the results of their operations for the
periods then ended.
SECTION 6.6. NO MATERIAL ADVERSE CHANGE. Since January 3, 1998, there
has been no material adverse change in the financial condition, operations,
assets, business or properties of the Borrower and its Subsidiaries, taken as a
whole.
SECTION 6.7. LITIGATION, LABOR CONTROVERSIES, ETC. There is no pending
or, to the knowledge of the Borrower, threatened litigation, action, proceeding,
labor controversy, arbitration or governmental investigation affecting the
Borrower or any Subsidiary, or any of their respective properties, businesses,
assets or revenues, which (a) could reasonably be expected to result in a
Material Adverse Effect, or (b) purports to affect the legality, validity or
enforceability of the Acquisition, this Agreement, the Notes or any other Loan
Document, except as disclosed in ITEM 6.7 ("Litigation") of the Disclosure
Schedule.
SECTION 6.8. YEAR 2000 COMPLIANCE. The Borrower reasonably believes
that all internal computer operations that are material to its and each of its
Subsidiaries' business operations will be able to perform properly date
sensitive functions for all dates before, on and after January 1, 2000, except
to the extent that a failure to do so could not reasonably be expected to have a
Material Adverse Effect.
SECTION 6.9. OWNERSHIP OF PROPERTIES. The Borrower and each of its
Subsidiaries owns good title to all of its properties and assets (other than
insignificant properties and assets), real and personal, tangible and
intangible, of any nature whatsoever (including patents, trademarks, trade
names, service marks and copyrights), free and clear of all Liens or material
claims (including material infringement claims with respect to patents,
trademarks, copyrights and the like) except as permitted pursuant to SECTION
7.2.3.
SECTION 6.10. TAXES. The Borrower and each of its Subsidiaries has
filed all Federal, State and other material tax returns and reports required by
law to have been filed by it and has paid all taxes and governmental charges
thereby shown to be owing, except any such taxes or charges which are being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books.
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SECTION 6.11. PENSION AND WELFARE PLANS. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the date of any Credit Extension hereunder, no
Pension Plan has been terminated that has resulted in a liability to the
Borrower or any of its Subsidiaries of more than $10,000,000, and no
contribution failure has occurred with respect to any Pension Plan sufficient to
give rise to a Lien under section 302(f) of ERISA in excess of $10,000,000. No
condition exists or event or transaction has occurred with respect to any
Pension Plan which could reasonably be expected to result in the incurrence by
the Borrower or any of its Subsidiaries of any material liability, fine or
penalty other than such condition, event or transaction which would not
reasonably be expected to have a Material Adverse Effect. Except as disclosed in
ITEM 6.11 of the Disclosure Schedule, since the date of the last financial
statement the Borrower has not materially increased any contingent liability
with respect to any post-retirement benefit under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of Subtitle B of Title I
of ERISA.
SECTION 6.12. ENVIRONMENTAL WARRANTIES. Except as set forth in ITEM
6.12 of the Disclosure Schedule or as, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower or any of its Subsidiaries
have been, and continue to be, owned or leased by the Borrower and its
Subsidiaries in compliance with all Environmental Laws;
(b) there have been no past, and there are no pending or
threatened
(i) written claims, complaints, notices or requests
for information received by the Borrower or any of its
Subsidiaries with respect to any alleged violation of any
Environmental Law, or
(ii) written complaints, notices or inquiries to the
Borrower or any of its Subsidiaries regarding potential
liability under any Environmental Law;
(c) to the best knowledge of the Borrower, there have been no
Releases of Hazardous Materials at, on or under any property now or
previously owned or leased by the Borrower or any of its Subsidiaries;
(d) the Borrower and its Subsidiaries have been issued and are
in compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters and necessary or
desirable for their businesses;
(e) no property now or previously owned or leased by the
Borrower or any of its Subsidiaries is listed or, to the knowledge of
the Borrower or any of its Subsidiaries, proposed for listing (with
respect to owned property only) on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar state list of
sites requiring investigation or clean-up;
(f) to the best knowledge of the Borrower, there are no
underground storage tanks, active or abandoned, including petroleum
storage tanks, on or under any property now or previously owned or
leased by the Borrower or any of its Subsidiaries;
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(g) the Borrower and its Subsidiaries have not directly
transported or directly arranged for the transportation of any
Hazardous Material to any location (i) which is listed or to the
knowledge of the Borrower or any of its Subsidiaries, proposed for
listing on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list, or (ii) which is the subject of
federal, state or local enforcement actions or other investigations;
(h) to the best knowledge of the Borrower, there are no
polychlorinated biphenyls or friable asbestos present in a manner or
condition at any property now or previously owned or leased by the
Borrower or any Subsidiary of the Borrower; and
(i) to the best knowledge of the Borrower, no conditions exist
at, on or under any property now or previously owned or leased by the
Borrower or any of its Subsidiaries which, with the passage of time, or
the giving of notice or both, would give rise to liability under any
Environmental Law.
SECTION 6.13. REGULATIONS U AND X. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Credit Extensions will be used to acquire any
equity security of a class which is registered pursuant to Section 12 of the
Exchange Act or any "margin stock" in violation of Regulations U or X. Terms for
which meanings are provided in F.R.S. Board Regulation U or X or any regulations
substituted therefor, as from time to time in effect, are used in this Section
with such meanings.
SECTION 6.14. ACCURACY OF INFORMATION. (a) All material factual
information concerning the financial condition, operations or prospects of the
Borrower and its Subsidiaries furnished on or prior to the Closing Date by or on
behalf of the Borrower in writing to the Administrative Agent, the Issuer or any
Lender for purposes of or in connection with this Agreement or any transaction
contemplated hereby (including (i) the Acquisition and (ii) such information
contained in the Bank Confidential Offering Memorandum) is, and all other such
factual information hereafter furnished by or on behalf of the Borrower to the
Administrative Agent, the Issuer or any Lender will be, True and Accurate.
(b) Any term or provision of this Section to the contrary
notwithstanding, insofar as any of the factual information described above
includes (i) assumptions, estimates, projections or opinions, no representation
or warranty is made herein with respect thereto; PROVIDED, HOWEVER, that to the
extent any such assumptions, estimates, projections or opinions are based on
factual matters, the Borrower has reviewed such factual matters and nothing has
come to its attention in the context of such review which would lead it to
believe that such factual matters were not or are not true and correct in all
material respects or that such factual matters omit to state any material fact
necessary to make such assumptions, estimates, projections or opinions not
misleading in any material respect and (ii) information concerning President and
its Subsidiaries prior to the Acquisition that was supplied to the Agents, the
Lenders or the Issuer on or prior to the Closing Date, then the representation
made in CLAUSE (a) as to such information being True and Accurate is only made
to the best of the Borrower's knowledge.
SECTION 6.15. SENIORITY OF OBLIGATIONS, ETC. The subordination
provisions of the Subordinated Notes and contained in each Subordinated Note
Indenture are enforceable against the holders of the Subordinated Notes by the
Agents, the Lenders and the Issuer, as applicable,
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which have not effectively waived the benefits thereof in writing. All monetary
Obligations, including those to pay principal of and interest (including
post-petition interest, whether or not permitted as a claim) on the Loans and
Reimbursement Obligations, and fees and expenses in connection therewith,
constitute "Senior Indebtedness", "Senior Debt" or similar term referring to the
Obligations, as applicable in such Subordinated Note Indenture, and all such
Obligations are entitled to the benefits of the subordination created by such
Subordinated Note Indenture. The Borrower acknowledges that each Agent, the
Issuer and each Lender is entering into this Agreement, and is extending its
Commitments, in reliance upon the subordination provisions of (or to be
contained in) each Subordinated Note Indenture, the Subordinated Notes and this
Section. Both before and after giving effect to the making of a Credit
Extension, the Borrower has remained in compliance with Section 3.8 of the
Indenture (or any similar provision contained in any Refinancing Note
Indenture). Notwithstanding anything herein or in any Subordinated Note
Indenture to the contrary, each Revolving Loan and Swing Line Loan and Letter of
Credit made hereunder and Reimbursement Obligations under Letters of Credit
issued hereunder shall constitute "Senior Indebtedness", "Senior Debt" or
similar term referring to the Obligations, as applicable in such Subordinated
Note Indenture. The parties hereto acknowledge and agree that the foregoing
representations shall only be made to the extent that the Subordinated Notes
have not been repaid in full.
ARTICLE VII
COVENANTS
SECTION 7.1. AFFIRMATIVE COVENANTS. The Borrower agrees with each
Agent, the Issuer and each Lender that, until all Commitments have terminated,
all Letters of Credit have terminated or expired and all Obligations have been
paid and performed in full, the Borrower will perform the obligations set forth
below.
SECTION 7.1.1. FINANCIAL INFORMATION, REPORTS, NOTICES, ETC. The
Borrower will furnish, or will cause to be furnished, to each Lender, the Issuer
and each Agent copies of the following financial statements, reports, notices
and information:
(a) promptly following each Form 10-Q filing by the Borrower
with the SEC and in any event within 60 days after the end of each of
the first three Fiscal Quarters of each Fiscal Year of the Borrower,
the Borrower's report to the SEC on Form 10-Q, certified by the chief
financial Authorized Officer of the Borrower;
(b) promptly following each Form 10-K filing by the Borrower
with the SEC and in any event within 120 days after the end of each
Fiscal Year of the Borrower, a copy of the annual audit report for such
Fiscal Year for the Borrower and its Subsidiaries, including therein a
consolidated balance sheet for the Borrower and its Subsidiaries as of
the end of such Fiscal Year, together with the related consolidated
statement of earnings and cash flow of the Borrower and its
Subsidiaries for such Fiscal Year the Borrower's report to the SEC on
Form 10-K, in each case certified (without any Impermissible
Qualification) by PriceWaterhouseCoopers LLP or another "Big Four" firm
of independent public accountants;
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(c) together with the delivery of the financial information
required pursuant to CLAUSES (a) and (b), a Compliance Certificate,
executed by the chief financial Authorized Officer of the Borrower,
showing (in reasonable detail and with appropriate calculations and
computations in all respects satisfactory to the Administrative Agent)
compliance with the financial covenants set forth in SECTION 7.2.4;
(d) as soon as possible and in any event within three Business
Days after obtaining knowledge of the occurrence of each Default, a
statement of the chief financial Authorized Officer of the Borrower
setting forth details of such Default and the action which the Borrower
has taken and proposes to take with respect thereto;
(e) as soon as possible and in any event within five Business
Days after (x) the occurrence of any material adverse development with
respect to any litigation, action, proceeding, labor controversy,
arbitration or governmental investigation described in SECTION 6.7 and
the action which the Borrower has taken and proposes to take with
respect thereto or (y) the commencement of any litigation, action,
proceeding, labor controversy, arbitration or governmental
investigation of the type described in SECTION 6.7, notice thereof and
of the action which the Borrower has taken and proposes to take with
respect thereto;
(f) promptly after the sending or filing thereof, copies of
all reports and registration statements which the Borrower or any of
its Subsidiaries files with the SEC or any national securities
exchange;
(g) as soon as practicable after the chief financial officer
or the chief executive officer of the Borrower or a member of the
Borrower's Controlled Group becomes aware of (i) formal steps in
writing to terminate any Pension Plan or (ii) the occurrence of any
event with respect to a Pension Plan which, in the case of (i) or (ii),
could reasonably be expected to result in a contribution to such
Pension Plan by (or a liability to) the Borrower or a member of the
Borrower's Controlled Group in excess of $10,000,000, (iii) the failure
to make a required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under section 302(f) of ERISA, (iv)
the taking of any action with respect to a Pension Plan which could
reasonably be expected to result in the requirement that the Borrower
furnish a bond to the PBGC or such Pension Plan or (v) any material
increase in the contingent liability of the Borrower with respect to
any post-retirement Welfare Plan benefit, notice thereof and copies of
all documentation relating thereto;
(h) promptly and in any event within five Business Days
following receipt of any notice from S&P or Moody's (or any other
nationally recognized agency that has previously rated the Borrower's
long-term unsecured Debt) of a change in such long-term unsecured Debt
rating, a copy of such notice; and
(i) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
Subsidiaries as any Lender or the Issuer through the Administrative
Agent may from time to time reasonably request.
SECTION 7.1.2. COMPLIANCE WITH LAWS, ETC. The Borrower will, and will
cause each of its Subsidiaries to, comply in all material respects with all
applicable laws (including
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Environmental Laws), rules, regulations and orders, such compliance to include
(without limitation):
(a) the maintenance and preservation of its corporate
existence and qualification as a foreign corporation, except where the
failure to so qualify could not reasonably be expected to have a
Material Adverse Effect;
(b) the payment, before the same become delinquent, of all
material taxes, assessments and governmental charges imposed upon it or
upon its property except to the extent being contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books; and
(c) use and operate all of its facilities and properties in
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith, and
handle all Hazardous Materials in compliance with all applicable
Environmental Laws, in each case except where the failure to comply
with the terms of this clause could not reasonably be expected to have
a Material Adverse Effect.
SECTION 7.1.3. MAINTENANCE OF PROPERTIES. The Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep its
properties (other than insignificant properties) in good repair, working order
and condition (ordinary wear and tear excepted), and make necessary and proper
repairs, renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times unless the Borrower determines
in good faith that the continued maintenance of any of its properties is no
longer economically desirable.
SECTION 7.1.4. BOOKS AND RECORDS. The Borrower will, and will cause
each of its Subsidiaries to, keep books and records which accurately reflect in
all material respects all of its business affairs and transactions and permit
the Administrative Agent, the Issuer and each Lender or any of their respective
representatives, at reasonable times and intervals, and upon reasonable notice,
to visit all of its offices, to discuss its financial matters with its officers
and independent public accountant (and the Borrower hereby authorizes such
independent public accountant to discuss the Borrower's financial matters with
the Issuer and each Lender or its representatives whether or not any
representative of the Borrower is present) and to examine, and photocopy
extracts from, any of its books or other corporate records.
SECTION 7.1.5. USE OF PROCEEDS, ETC. The Borrower shall apply the
proceeds of the Credit Extensions as follows:
(a) in the case of Revolving Loans,
(i) to refinance the principal amount of the loans
and other amounts owing under the Existing Credit Agreement;
(ii) to pay a portion of the purchase price of the
Shares, and to pay transaction costs, fees and expenses
associated with the Acquisition; and
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(iii) for working capital and general corporate
purposes of the Borrower and its U.S. Subsidiaries (including
the acquisition of Capital Stock and assets, and the
redemption, repurchase or defeasance of Subordinated Debt, in
each case to the extent permitted under the terms of this
Agreement); and
(b) in the case of Letters of Credit, for issuing documentary
and standby (including direct pay) Letters of Credit for working
capital and general corporate purposes of the Borrower and its U.S.
Subsidiaries (including the replacement of or deemed issuance hereunder
of Existing Letters of Credit), as described in SECTION 2.6; and
(c) in the case of Term Loans,
(i) to refinance the principal amount of the loans
and other amounts owing under the Existing Credit Agreement;
and
(ii) to pay a portion of the purchase price of the
Shares, and to pay costs, fees and expenses associated with
the Acquisition.
Notwithstanding any provisions of this Agreement to the contrary, no proceeds of
any Credit Extension shall be used to make an Investment in or otherwise acquire
any Capital Stock of a Person unless such Investment or acquisition has been
approved by the board of directors (or equivalent managerial body) of such
Person (it being the intent of the parties hereto that proceeds of Credit
Extensions shall not be used to finance the purchase of Capital Stock in
"hostile tender offers").
SECTION 7.1.6. LONG-TERM DEBT RATING DOWNGRADE. The Borrower covenants
and agrees that promptly, and in any event within 30 days following the
Downgrade Date, it will, and will cause each of its then existing U.S.
Subsidiaries (other than Immaterial Subsidiaries and Receivable Co.) and, after
the Downgrade Date, upon any Person becoming a U.S. Subsidiary of the Borrower
(other than an Immaterial Subsidiary and Receivable Co.), such future U.S.
Subsidiary to,
(a) in the case of such U.S. Subsidiaries, execute and deliver
to the Administrative Agent, with sufficient copies for each Lender, a
guaranty of payment (in form and substance reasonably satisfactory to
the Administrative Agent) of all Obligations; and
(b) pledge to the Administrative Agent, for the benefit of the
Lenders, the Issuer and each Agent, pursuant to a pledge agreement (in
form and substance satisfactory to the Administrative Agent), 100%, in
the case of each U.S. Subsidiary, other than Immaterial Subsidiaries
and Receivables Co., and 65%, in the case of non-U.S. Subsidiaries, of
the issued and outstanding Capital Stock of each Subsidiary, and shall
take all such actions as requested by the Administrative Agent to
ensure that the Administrative Agent has a first priority (shared PARI
PASSU with obligations (if any) under the Bridge Facility pursuant to
an Intercreditor Agreement satisfactory to the Required Lenders)
perfected Lien on and security interest in all Capital Stock pledged in
favor of the Administrative Agent (including delivery to the
Administrative Agent of all shares of certificated securities so
pledged, accompanied by stock powers or other instruments of transfer,
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undated and duly executed in blank by the applicable pledgor and, in
the case of uncertificated Capital Stock, notice of the pledge by the
pledgor to the issuer of such Capital Stock, and evidence of the
recording on the books of such issuer of the pledge described above);
PROVIDED, that the failure of the Required Lenders to approve an
Intercreditor Agreement shall not result in a breach of the Agreement;
and
(c) deliver legal opinions addressed to all Lenders, the
Issuer and the Administrative Agent in form and substance, and from
counsel, reasonably acceptable to the Administrative Agent relating to
the actions described in CLAUSES (a) and (b);
PROVIDED, HOWEVER, that the U.S. Subsidiaries executing a guaranty and whose
Capital Stock is pledged pursuant to this Section shall, at any time after the
Downgrade Date, in the aggregate, account for no less than 85% of the
consolidated gross revenues of the Borrower and its Subsidiaries and have assets
which represent no less than 85% of the consolidated gross assets of the
Borrower and its Subsidiaries, as such revenues and assets are measured on the
last day of the most recently completed Fiscal Quarter with respect to which,
pursuant to CLAUSES (a) or (b) of SECTION 7.1.1, financial statements have been,
or are required to have been, delivered by the Borrower.
In furtherance of the foregoing, the Borrower agrees that it shall make all
reasonable efforts to cause either S&P and/or Moody's (or another nationally
recognized rating agency acceptable to the Administrative Agent) to at all times
continue to rate the Borrower's long term senior, unsecured Debt.
SECTION 7.2. NEGATIVE COVENANTS. The Borrower agrees with the
Administrative Agent, the Issuer and each Lender that, until all Commitments
have terminated, all Letters of Credit have terminated or expired and all
Obligations have been paid and performed in full, the Borrower will perform the
obligations set forth below.
SECTION 7.2.1. BUSINESS ACTIVITIES. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any business activity, except (i)
business activities of the type in which the Borrower and its Subsidiaries are
engaged on the date hereof and such activities as may be incidental, similar or
related thereto and (ii) other business activities which, collectively, do not
account for more than 10% of the consolidated total revenue of the Borrower and
its Subsidiaries for the most recently ended four quarter period.
SECTION 7.2.2. INDEBTEDNESS. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of the Credit Extensions and other
Obligations;
(b) Indebtedness existing as of the Effective Date which is
identified in ITEM 7.2.2(b) of the Disclosure Schedule, and any
refinancing or replacement thereof, but only in amounts not in excess
of the outstanding amounts on the date of such refinancing (which shall
not exceed the committed amount on the Effective Date);
(c) Indebtedness incurred by the Borrower or any of its
Subsidiaries (i) owed to any Person providing financing for the
acquisition of any assets permitted to be acquired
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pursuant to SECTION 7.2.7 to finance its acquisition of such assets,
and (ii) in respect of Capitalized Lease Liabilities (but only to the
extent otherwise permitted by SECTION 7.2.7); PROVIDED, that the
maximum aggregate amount of all Indebtedness permitted under this
CLAUSE (c) shall not at any time exceed $50,000,000;
(d) Hedging Obligations of the Borrower or any of its
Subsidiaries;
(e) intercompany Indebtedness of any Subsidiary of the
Borrower owing to the Borrower or any other Subsidiary of the Borrower,
which Indebtedness shall, in the case of Receivables Co., be incurred
only in connection with the Permitted Receivables Transaction;
(f) unsecured intercompany Indebtedness of the Borrower owing
to a Subsidiary of the Borrower that has previously executed and
delivered to the Administrative Agent the Intercompany Subordination
Agreement;
(g) unsecured Subordinated Debt of the Borrower owing to the
Subordinated Noteholders evidenced by the Subordinated Notes and
governed by the terms of a Subordinated Note Indenture;
(h) Indebtedness of Receivables Co. incurred in connection
with the Permitted Receivables Transaction in an aggregate amount at
any time not to exceed $145,000,000;
(i) Indebtedness of the Borrower incurred under the Bridge
Agreement in a principal amount at any time outstanding not to exceed
$125,000,000; PROVIDED, HOWEVER, that the Indebtedness under the Bridge
Agreement shall be repaid in full and the Bridge Agreement shall be
terminated upon earlier of (i) 364 days following the Closing Date and
(ii) the consummation of the Permitted Receivables Transaction;
(j) Indebtedness of Subsidiaries of the Borrower (other than
the Immaterial Subsidiaries and Receivables Co.) pursuant to the
Subordinated Guaranty; and
(k) other Indebtedness in an aggregate amount at any time not
to exceed $250,000,000 (provided that the aggregate amount of such
Indebtedness of Subsidiaries shall not exceed $125,000,000 at any time
outstanding).
SECTION 7.2.3. LIENS. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any
of its property, revenues or assets, whether now owned or hereafter acquired,
except:
(a) Liens securing payment of the Obligations, granted
pursuant to any Loan Document executed pursuant to SECTION 7.1.6
together with a PARI PASSU Lien to secure obligations under the Bridge
Facility and related documents;
(b) Liens granted prior to the Effective Date to secure
payment of Indebtedness of the type permitted and described in CLAUSE
(b) of SECTION 7.2.2;
(c) Liens granted to secure payment of Indebtedness of the
type permitted and described in CLAUSE (c) of SECTION 7.2.2 and any
extension, renewal or replacement
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thereof but only if the principal amount of the Indebtedness secured
thereby is not increased and such Liens do not extend to cover any
other property or assets;
(d) Liens for taxes, assessments or other governmental charges
or levies, including Liens pursuant to Section 107(l) of CERCLA or
other similar law, not at the time delinquent or thereafter payable
without penalty or being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(e) Liens of carriers, warehousemen, mechanics, repairmen,
materialmen and landlords or other like liens incurred in the ordinary
course of business for sums not overdue for a period of more than 30
days or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(f) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or other
forms of governmental insurance or benefits, or to secure performance
of tenders, statutory obligations, insurance obligations, leases and
contracts (other than for borrowed money) entered into in the ordinary
course of business or to secure obligations on surety or appeal bonds;
(g) judgment Liens in existence less than 60 days after the
entry thereof or with respect to which execution has been stayed or the
payment of which is covered in full by a bond or (subject to a
customary deductible) by insurance maintained with responsible
insurance companies;
(h) Liens with respect to recorded minor imperfections of
title and easements, rights-of-way, restrictions, reservations,
permits, servitudes and other similar encumbrances on real property and
fixtures which do not materially detract from the value or materially
impair the use by the Borrower or any such Subsidiary in the ordinary
course of their business of the property subject thereto;
(i) leases or subleases granted by the Borrower or any of its
Subsidiaries to any other Person in the ordinary course of business;
(j) Liens in the nature of trustees' Liens granted pursuant to
any indenture governing any Indebtedness permitted by SECTION 7.2.2, in
each case in favor of the trustee under such indenture and securing
only obligations to pay compensation to such trustee, to reimburse its
expenses and to indemnify it under the terms thereof;
(k) Liens on Accounts of Receivables Co. created in
connection with the Permitted Receivables Transaction; and
(l) other Liens securing Indebtedness or other obligations of
the Borrower and its Subsidiaries; PROVIDED that the aggregate
principal amount of the Indebtedness or other obligations so secured at
any time, when added to the net book value of all property the subject
of Sale and Leaseback Transactions at such time does not exceed
$125,000,000.
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SECTION 7.2.4. FINANCIAL CONDITION.
(a) DEBT TO EBITDA RATIO. The Borrower will not permit the
Debt to EBITDA Ratio as of the last day of any Fiscal Quarter occurring
during any period set forth below to be greater than the ratio set
forth opposite such period:
<TABLE>
<CAPTION>
Debt to
Period EBITDA Ratio
<S> <C>
Effective Date through (and including)
12/30/00 3.75:1
12/31/00 through (and including)
12/29/01 3.25:1
12/30/01 through (and including)
12/28/02 3.00:1
12/29/02 through (and including)
01/03/04 2.75:1
01/04/04 and thereafter 2.50:1
</TABLE>
(b) CASH FLOW COVERAGE RATIO. The Borrower will not permit the
Cash Flow Coverage Ratio as of the end of any Fiscal Quarter occurring
after the Effective Date to be less than 3:1
SECTION 7.2.5. INVESTMENTS. The Borrower will not, and will not
permit any of its Subsidiaries to, make, incur or assume any Investment in any
other Person, except:
[(a) Investments existing on the Effective Date and
identified in ITEM 7.2.5(a) of the Disclosure Schedule;]
(b) Cash Equivalent Investments; PROVIDED, HOWEVER, that any
Investment which when made complies with the requirements of the
definition of the term "Cash Equivalent Investment" may continue to be
held notwithstanding that such Investment if made thereafter would not
comply with such requirements;
(c) without duplication, Investments (i) permitted as
Indebtedness pursuant to SECTION 7.2.2 and (ii) to the extent that
Receivables Co. is not a Subsidiary of the Borrower, Investments in
Receivables Co. in connection with the Permitted Receivables
Transaction made by the Borrower and/or its Subsidiaries;
(d) without duplication, Investments permitted as Capital
Expenditures pursuant to SECTION 7.2.7;
(e) Investments by the Borrower in any of its Subsidiaries,
or by any such Subsidiary in any of its Subsidiaries, by way of
contributions to capital; PROVIDED, that
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such Investments in Receivables Co. shall only be made in connection
with the Permitted Receivables Transaction;
(f) Investments made by the Borrower or any of its
Subsidiaries, solely with proceeds from Net Disposition Proceeds which
are being reinvested by the Borrower or such Subsidiary in Qualified
Assets in accordance with the terms of CLAUSE (b) of SECTION 3.1.1;
(g) Investments in the form of loans or advances made to
management or employees of the Borrower or any of its Subsidiaries in
the ordinary course of business;
(h) Investments to the extent the consideration received
pursuant to CLAUSE (b)(i) of SECTION 7.2.9 is not all cash;
(i) Investments of Capital Stock made by the Borrower or any
of its Subsidiaries (other than Receivables Co.) in an amount which
shall not exceed the Investment Amount, which Investments shall (if
less than 100% of the outstanding Capital Stock is being acquired)
result in the Borrower or the relevant Subsidiary acquiring (subject to
SECTION 7.2.1) either (i) a sufficient number of shares of Capital
Stock of such Person such that the Borrower or its Subsidiaries can
consummate the merger of such Person with or into the Borrower or
another Subsidiary without the approval of shareholders (or any other
equity owners) of the Person being acquired (other than the Borrower
and its Subsidiaries, after giving effect to their initial purchase of
such Capital Stock in such acquisition) or (ii) additional Capital
Stock in a non-wholly-owned Subsidiary; and
(j) other Investments made by the Borrower or any of its
Subsidiaries (other than Receivables Co.) in an amount which are
outstanding at any date (singly or in the aggregate with other
Investments made pursuant to this clause since the Closing Date) do not
exceed 10% of Consolidated Tangible Assets.
SECTION 7.2.6. RESTRICTED PAYMENTS, ETC.
(a) The Borrower will not declare, pay or make any dividend or
distribution (in cash, property or obligations) on any shares of any
class of Capital Stock (now or hereafter outstanding) of the Borrower
or on any warrants, options or other rights with respect to any shares
of any class of Capital Stock (now or hereafter outstanding) of the
Borrower (other than dividends or distributions payable in its common
stock or warrants to purchase its common stock or splits or
reclassifications of its stock into additional or other shares of its
common stock) or apply, or permit any of its Subsidiaries to apply, any
of its funds, property or assets to the purchase, redemption, sinking
fund or other retirement of, or agree or permit any of its Subsidiaries
to purchase or redeem, any shares of any class of Capital Stock (now or
hereafter outstanding) of the Borrower, or warrants, options or other
rights with respect to any shares of any class of Capital Stock (now or
hereafter outstanding) of the Borrower (collectively, "RESTRICTED
PAYMENTS");
(b) The Borrower will not, and will not permit any of its
Subsidiaries to
(i) make any payment or prepayment of principal of,
or interest on, any Subordinated Notes (A) on any day other
than, in the case of interest only, the
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stated, scheduled date for such payment of interest set forth
in the applicable Subordinated Notes or in the applicable
Subordinated Note Indenture, or (B) which would violate the
terms of this Agreement or the subordination provisions of
such Subordinated Note Indenture; or
(ii) redeem, purchase or defease, any Subordinated
Notes; and
(c) the Borrower will not, and will not permit any Subsidiary
to, make any deposit for any of the foregoing purposes;
PROVIDED, HOWEVER, that,
(d) notwithstanding the provisions of CLAUSE (a) above, the
Borrower shall be permitted to make Restricted Payments in an aggregate
amount not to exceed the sum of $50,000,000 plus 50% of positive net
income accrued during the period (treated as one accounting period)
from December 31, 1997 to the end of the most recent Fiscal Quarter for
which financial statements have been delivered to the Administrative
Agent plus the aggregate net proceeds received by the Borrower from the
issuance or sale of Capital Stock subsequent to the Closing Date, so
long as (A) no Default shall have occurred and be continuing on the
date such Restricted Payment is declared or to be made, nor would a
Default result from the making of such Restricted Payment and (B) after
giving effect to the making of such Restricted Payment, the Borrower
shall be in PRO FORMA compliance with the covenants set forth in
SECTION 7.2.4 for the most recent full Fiscal Quarter immediately
preceding the date of the payment of such Restricted Payment for which
the relevant financial information has been delivered pursuant to
CLAUSE (a) or CLAUSE (b) of SECTION 7.1.1; and
(e) notwithstanding the provisions of CLAUSE (b) above, the
Borrower shall be permitted to
(i) redeem, purchase or defease the Subordinated
Notes, but only if (A) no Default shall have occurred and be
continuing on the date such redemption, purchase or defeasance
is to occur, nor would a Default result therefrom, (B) after
giving effect thereto, the Borrower will be in compliance with
SECTION 7.2.4 on a PRO FORMA basis for the most recent full
Fiscal Quarter immediately preceding the date of such
redemption, purchase or defeasance for which the relevant
financial information has been delivered pursuant to CLAUSE
(a) or CLAUSE (b) of SECTION 7.1.1, and (C) an Authorized
Officer of the Borrower shall have delivered a certificate to
the Administrative Agent in form and substance satisfactory to
the Administrative Agent certifying to the accuracy of the
foregoing; and
(ii) refinance and repay Dollar for Dollar the
Subordinated Notes and accrued interest and fees thereon with
the net proceeds of other unsecured Subordinated Debt with all
terms and conditions reasonably satisfactory to the
Administrative Agent, upon which issuance such other
Subordinated Debt shall be deemed for all purposes of this
Agreement and the Loan Documents to be "Refinancing Notes"
issued pursuant to the "Refinancing Note Indenture".
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SECTION 7.2.7. CAPITAL EXPENDITURES, ETC. The Borrower will not, and
will not permit any of its Subsidiaries to, make or commit to make Capital
Expenditures in excess of $200,000,000 in any Fiscal Year, PROVIDED, that to the
extent the amount of Capital Expenditures permitted to be made in any Fiscal
Year pursuant to this clause exceeds the aggregate amount of Capital
Expenditures actually made during such Fiscal Year, such excess amount
may be carried forward to (but only to) and made in the next succeeding Fiscal
Year.
(b) The parties acknowledge and agree that the permitted Capital
Expenditure levels set forth in CLAUSE (a) above shall be exclusive of:
(i) Net Disposition Proceeds which have been reinvested by the
Borrower or a Subsidiary of the Borrower in Qualified Assets in
accordance with the terms of CLAUSE (b) of SECTION 3.1.1 and casualty
proceeds applied to rebuild or replace property or other assets of the
Borrower and its Subsidiaries; and
(ii) Capital Expenditures constituting the purchase of all or
substantially all of the assets of another Person or a division or line
of business of another Person, in each case in an amount which shall
not exceed the Investment Amount.
SECTION 7.2.8. CONSOLIDATION, MERGER, ETC. The Borrower will not, and
will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate
with, or merge into or with, any other corporation, or purchase or otherwise
acquire all or substantially all of the assets of any Person (or of any division
thereof) except
(a) any such Subsidiary (other than Receivables Co.) may
liquidate or dissolve voluntarily into, and may merge with and into,
the Borrower (so long as the Borrower is the surviving corporation of
such combination or merger) or any other Subsidiary (other than
Receivables Co.), and the assets or stock of any Subsidiary may be
purchased or otherwise acquired by the Borrower or any other Subsidiary
(other than an Immaterial Subsidiary and Receivables Co.); and
(b) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, the Borrower or any of its
Subsidiaries may purchase all or substantially all of the assets of any
Person (or any division thereof) not then a Subsidiary, or acquire such
Person by merger.
SECTION 7.2.9. ASSET DISPOSITIONS, ETC. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, all or any part of its assets, whether now owned or hereafter
acquired (including Accounts and Capital Stock of Subsidiaries) to any Person,
unless
(a) such sale, transfer, lease, contribution or conveyance of
such assets is (i) in the ordinary course of its business (and does not
constitute a sale, transfer, lease, contribution or other conveyance of
all or a substantial part of the Borrower's or such Subsidiary's
assets) or is of obsolete or worn out property or (ii) permitted by
SECTION 7.2.8;
(b) (i) such sale, transfer, lease, contribution or
conveyance of such assets is for fair market value and the
consideration consists of no less than 75% in cash and (ii) the
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Net Disposition Proceeds received from such assets, together with the
Net Disposition Proceeds of all other assets sold, transferred, leased,
contributed or conveyed pursuant to this clause since the Effective
Date, does not exceed (individually or in the aggregate) 30% of the
amount of Consolidated Tangible Assets; or
(c) such sale is of Accounts or related assets pursuant to the
Permitted Receivables Transaction.
SECTION 7.2.10. MODIFICATION OF CERTAIN AGREEMENTS. The Borrower will
not, and will not permit any of its Subsidiaries to, consent to any amendment,
supplement, amendment and restatement, waiver or other modification of any of
the terms or provisions contained in, or applicable to,
(a) the Purchase Agreement or any schedules, exhibits or
agreements related thereto (including the certificate of merger), in
each case which would adversely affect the rights or remedies of the
Lenders, or the Borrower's ability to perform hereunder or under any
Loan Document or which would increase the purchase price with respect
to the Acquisition or, which would increase the Borrower's or any of
its Subsidiaries' obligations or liabilities, contingent or otherwise
(other than adjustments to the purchase price made pursuant to the
terms of the Purchase Agreement); or
(b) any Subordinated Debt (including any Subordinated Note
Indenture or any of the Subordinated Notes), or any guarantees
delivered in connection with any Subordinated Debt (including any
Subordinated Guaranty) (collectively, the "RESTRICTED AGREEMENTS"), or
make any payment in order to obtain an amendment thereof or change
thereto, if the effect of such amendment, supplement, modification or
change is to (i) increase the principal amount of, or increase the
interest rate on, or add or increase any fee with respect to such
Subordinated Debt or any such Restricted Agreement, advance any dates
upon which payments of principal or interest are due thereon or change
any of the covenants with respect thereto in a manner which is more
restrictive to the Borrower or any of its Subsidiaries or (ii) change
any event of default or condition to an event of default with respect
thereto, change the redemption, prepayment or defeasance provisions
thereof, change the subordination provisions thereof, or change any
collateral therefor (other than to release such collateral), if (in the
case of this CLAUSE (b)(ii)), the effect of such amendment or change,
individually or together with all other amendments or changes made, is
to increase the obligations of the obligor thereunder or to confer any
additional rights on the holders of such Subordinated Debt, or any such
Restricted Agreement (or a trustee or other representative on their
behalf).
(c) Without the prior written consent of the Administrative
Agent, the Borrower will not, and will not permit any of its
Subsidiaries to consent to any amendment, supplement, or other
modification to any of the terms of the documents, instruments and
agreements delivered in connection with the Permitted Receivables
Transaction, other than any such amendment, modification or change
which (A) would extend the maturity thereof or (B) does not in any way
adversely affect the interests of the Agents, the Lenders or the Issuer
hereunder or under the Loan Documents or (C) is of a technical or
clarifying nature.
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SECTION 7.2.11. TRANSACTIONS WITH AFFILIATES. The Borrower will not,
and will not permit any of its Subsidiaries to, enter into any arrangement or
contract with any of its other Affiliates (other than any Obligor) unless such
arrangement or contract is fair and equitable to the Borrower or such Subsidiary
and is an arrangement or contract of the kind which would be entered into by a
prudent Person in the position of the Borrower or such Subsidiary with a Person
which is not one of its Affiliates; PROVIDED, HOWEVER, that notwithstanding the
foregoing,
(a) the Borrower may pay to The Invus Group Ltd. and/or
Flowers management and consulting fees in an amount not to exceed in
the aggregate $1,500,000 per annum, PROVIDED, FURTHER, that no such
payment shall be made during the occurrence and continuation of a
Default, or if such payment would result in a Default; and
(b) Indebtedness permitted by CLAUSE (e) of SECTION 7.2.2,
Investments permitted by CLAUSE (c)(ii) or (d) of SECTION 7.2.5 and
Restricted Payments permitted by SECTION 7.2.6 shall not be restricted
by this Section.
SECTION 7.2.12. NEGATIVE PLEDGES, RESTRICTIVE AGREEMENTS, ETC. The
Borrower will not, and will not permit any of its Subsidiaries to, enter into
any agreement (excluding (i) any restrictions existing under the Loan Documents
or, in the case of CLAUSES (a)(i) and (b) below, any other agreements in effect
on the Effective Date and disclosed in ITEM 7.2.12 of the Disclosure Schedule,
(ii) in the case of CLAUSES (a)(i) and (b), any restrictions with respect to a
Subsidiary imposed pursuant to an agreement which has been entered into in
connection with the sale or disposition of all or substantially all of the
Capital Stock or assets of such Subsidiary pursuant to a transaction otherwise
permitted hereby, (iii) in the case of CLAUSE (b), restrictions on Receivables
Co. contained in documentation delivered for the Permitted Receivables
Transaction, or (iv) any restrictions existing under any agreement that amends,
refinances or replaces any agreement containing the restrictions referred to in
CLAUSE (i) or (ii) above; PROVIDED, that the terms and conditions of any such
agreement referred to in CLAUSE (i), (ii) or (iv) are not materially less
favorable to the Lenders or materially more restrictive to any Obligor a party
thereto than those under the agreement so amended, refinanced or replaced)
prohibiting
(a) the (i) creation or assumption of any Lien upon any
Capital Stock that may be required to be pledged pursuant to CLAUSE (b)
of SECTION 7.1.6 (unless the pledge contemplated by this Agreement is
permitted), or (ii) ability of the Borrower or any other Obligor to
amend or otherwise modify this Agreement or any other Loan Document; or
(b) the ability of any Subsidiary to make any payments,
directly or indirectly, to the Borrower by way of dividends, advances,
repayments of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to the Borrower.
SECTION 7.2.13. SALE AND LEASEBACK. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any agreement or arrangement with
any other Person providing for the leasing by the Borrower or any of its
Subsidiaries of real or personal property which has been or is to be sold or
transferred by the Borrower or any of its Subsidiaries to such other Person or
to any other Person to whom funds have been or are to be advanced by such Person
on the security of such property or rental obligations of the Borrower or any of
its Subsidiaries
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(hereinafter a "SALE AND LEASEBACK TRANSACTION") unless immediately thereafter
the sum of (i) the net book value (determined as of the time of sale) of all
property that is the subject of Sale and Leaseback Transactions, PLUS (ii) the
aggregate principal amount of Indebtedness of the Borrower or any Subsidiary
secured at such time by Liens permitted only under CLAUSE (l) of SECTION 7.2.3,
does not exceed $125,000,000 at such time.
SECTION 7.2.14. INDENTURE RESTRICTIONS. Notwithstanding other
provisions of this Agreement to the contrary, the Borrower and the Lenders
acknowledge and agree that if covenants similar to those contained in this
Agreement are contained in a Subordinated Note Indenture and such Subordinated
Note Indenture covenants are more restrictive than the terms of the covenants
contained in this Agreement, then, for so long as the more restrictive
Subordinated Note Indenture covenants are binding on the Borrower or its
Subsidiaries, the covenants contained in this Agreement shall be deemed to be as
restrictive as those contained in such Subordinated Note Indenture.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. LISTING OF EVENTS OF DEFAULT. Each of the following
events or occurrences described in this SECTION 8.1 shall constitute an "EVENT
OF DEFAULT".
SECTION 8.1.1. NON-PAYMENT OF OBLIGATIONS. (a) The Borrower shall
default in the payment or prepayment of (i) any Reimbursement Obligation
(including pursuant to SECTIONS 2.6 and 2.6.2) on the applicable Disbursement
Due Date or any deposit of cash for collateral purposes on the date required
pursuant to SECTION 2.6.4 or (ii) any principal of any Loan when due, or (b) any
Obligor (including the Borrower) shall default (and such default shall continue
unremedied for a period of five Business Days) in the payment when due of any
interest or commitment fee or of any other monetary Obligation.
SECTION 8.1.2. BREACH OF WARRANTY. Any representation or warranty of
the Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate
(including the Closing Date Certificate) furnished by or on behalf of the
Borrower or any other Obligor to the Administrative Agent, the Issuer or any
Lender for the purposes of or in connection with this Agreement or any such
other Loan Document (including any certificates delivered pursuant to ARTICLE V)
is or shall be incorrect when made in any material respect.
SECTION 8.1.3. NON-PERFORMANCE OF CERTAIN COVENANTS AND OBLIGATIONS.
The Borrower shall default in the due performance and observance of any of its
obligations under SECTIONS 7.1.5, 7.1.6, 7.2.4, 7.2.6, 7.2.7 or 7.2.9.
SECTION 8.1.4. NON-PERFORMANCE OF OTHER COVENANTS AND OBLIGATIONS. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrower by the Administrative Agent at the
direction of the Required Lenders.
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SECTION 8.1.5. DEFAULT ON OTHER INDEBTEDNESS. A default shall occur
(i) in the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (which, for purposes of this
Section, shall also include all other items which, in accordance with GAAP,
would be included as liabilities on the liability side of the balance sheet of
the Borrower and its Subsidiaries as of the date at which Indebtedness is to be
determined), other than Indebtedness described in SECTION 8.1.1, of the Borrower
or any of its Subsidiaries or any other Obligor having a principal amount,
individually or in the aggregate, in excess of $10,000,000, or (ii) a default
shall occur in the performance or observance of any obligation or condition with
respect to such Indebtedness having a principal amount, individually or in the
aggregate, in excess of $20,000,000 if the effect of such default is to
accelerate the maturity of any such Indebtedness or such default shall continue
unremedied for any applicable period of time sufficient to permit the holder or
holders of such Indebtedness, or any trustee or agent for such holders, to cause
such Indebtedness to become due and payable prior to its expressed maturity.
SECTION 8.1.6. JUDGMENTS. Any judgment or order for the payment of
money in excess of $10,000,000 (not covered by insurance from a responsible
insurance company that is not denying its liability with respect thereto) shall
be rendered against the Borrower or any of its Subsidiaries or any other Obligor
and remain unpaid and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(b) there shall be any period of 60 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect.
SECTION 8.1.7. PENSION PLANS. Any of the following events shall occur
with respect to any Pension Plan
(a) the termination of any Pension Plan if, as a result of
such termination, the Borrower would be required to make a contribution
to such Pension Plan, or would reasonably expect to incur a liability
or obligation to such Pension Plan, in excess of $10,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA in
an amount in excess of $10,000,000.
SECTION 8.1.8. CHANGE IN CONTROL. Any Change in Control shall occur.
SECTION 8.1.9. BANKRUPTCY, INSOLVENCY, ETC. The Borrower or any of
its Subsidiaries or any other Obligor (other than one or more Immaterial
Subsidiaries) shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they become
due;
(b) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, sequestrator or other custodian for the Borrower
or any of its Subsidiaries or any other
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Obligor (other than such Immaterial Subsidiaries) or any property of
any thereof, or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for the Borrower or any of
its Subsidiaries or any other Obligor (other than such Immaterial
Subsidiaries) or for a substantial part of the property of any thereof,
and such trustee, receiver, sequestrator or other custodian shall not
be discharged within 60 days, provided that the Borrower, each
Subsidiary and each other Obligor hereby expressly authorizes the
Administrative Agent, the Issuer and each Lender to appear in any court
conducting any relevant proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Borrower or any
of its Subsidiaries or any other Obligor (other than such Immaterial
Subsidiaries), and, if any such case or proceeding is not commenced by
the Borrower or such Subsidiary or such other Obligor, such case or
proceeding shall be consented to or acquiesced in by the Borrower or
such Subsidiary or such other Obligor or shall result in the entry of
an order for relief or shall remain for 60 days undismissed, provided
that the Borrower, each Subsidiary and each other Obligor hereby
expressly authorizes the Administrative Agent, the Issuer and each
Lender to appear in any court conducting any such case or proceeding
during such 60-day period to preserve, protect and defend their rights
under the Loan Documents; or
(e) take any action (corporate or otherwise) authorizing, or
in furtherance of, any of the foregoing.
SECTION 8.1.10. IMPAIRMENT OF SECURITY, ETC. Any Loan Document or, if
granted pursuant to SECTION 7.1.6, any Lien granted thereunder, shall (except in
accordance with its terms), in whole or in part, terminate, cease to be in full
force and effect or cease to be the legally valid, binding and enforceable
obligation of any Obligor party thereto; the Borrower or any other Obligor
shall, directly or indirectly, contest in any manner the effectiveness,
validity, binding nature or enforceability thereof; or any Lien securing any
Obligation granted pursuant to SECTION 7.1.6 shall, in whole or in part, cease
to be a perfected first priority Lien, subject only to those exceptions
expressly permitted by such Loan Document, except to the extent any event
referred to above (a) relates to assets or the Borrower or any of its
Subsidiaries which are immaterial, or (b) results from the failure of the
Administrative Agent to maintain possession of certificates representing
securities pledged under any pledge agreement or to file continuation statements
under the Uniform Commercial Code of any applicable jurisdiction.
SECTION 8.1.11. SUBORDINATED NOTES. So long as the Subordinated Notes
have not been repaid in full, the subordination provisions relating to any
Subordinated Note Indenture (the "SUBORDINATION PROVISIONS") shall fail to be
enforceable by the Administrative Agent, the Issuer or the Lenders (which have
not effectively waived the benefits thereof) in accordance with the terms
thereof, or the principal or interest on any Loan, Reimbursement Obligation or
other monetary Obligations shall fail to constitute Senior Indebtedness (as
defined in the Indenture) or the same (or any other similar term) used to define
the monetary Obligations (as set forth in the
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Refinancing Note Indenture or any other agreement or indenture governing
Subordinated Debt); or the Borrower, or any of its Subsidiaries shall, directly
or indirectly, disavow or contest in any manner (i) the effectiveness, validity
or enforceability of any of the Subordination Provisions, or (ii) that any of
such Subordination Provisions exist for the benefit of the Administrative Agent,
the Issuer and the Lenders.
SECTION 8.1.12. TERMINATION OF RECEIVABLES FACILITY. Any event or
circumstance shall occur which permits or requires the Persons purchasing, or
financing the purchase of, Accounts under the Permitted Receivables Transaction
to stop so purchasing or financing such Accounts, other than by reason of the
occurrence of the stated expiry date of the Permitted Receivables Transaction;
PROVIDED, that any notices or cure periods that are conditions to the rights of
such Persons to stop purchasing, or financing the purchase of, such Accounts
have been given or have expired, as the case may be.
SECTION 8.2. ACTION IF BANKRUPTCY, ETC. If any Event of Default
described in CLAUSES (a) through (d) of SECTION 8.1.9 shall occur with respect
to the Borrower, the Commitments (if not theretofore terminated) shall
automatically terminate and the outstanding principal amount of all outstanding
Loans and all other Obligations shall automatically be and become immediately
due and payable, without notice or demand.
SECTION 8.3. ACTION IF OTHER EVENT OF DEFAULT. If any Event of Default
other than under CLAUSES (a) through (d) of SECTION 8.1.9 with respect to the
Borrower shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations to be due and
payable, require the Borrower to provide cash collateral to be deposited with
the Administrative Agent in an amount equal to the Stated Amount of all issued
Letters of Credit and/or declare the Commitments (if not theretofore terminated)
to be terminated, whereupon the full unpaid amount of such Loans and other
Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment, the
Borrower shall deposit with the Administrative Agent cash collateral in an
amount equal to the Stated Amount of all issued Letters of Credit and/or, as the
case may be, the Commitments shall terminate.
ARTICLE IX
THE AGENTS
SECTION 9.1. ACTIONS. Each Lender hereby appoints Scotiabank as its
Administrative Agent under and for purposes of this Agreement, the Notes and
each other Loan Document. Each Lender authorizes the Administrative Agent to act
on behalf of such Lender under this Agreement, the Notes and each other Loan
Document and, in the absence of other written instructions from the Required
Lenders received from time to time by the Administrative Agent (with respect to
which the Administrative Agent agrees that it will comply, except as otherwise
provided in this Section or as otherwise advised by counsel), to exercise such
powers hereunder and thereunder as are specifically delegated to or required of
the Administrative Agent by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. Each Lender hereby indemnifies
(which indemnity shall survive any amendment and restatement
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of, or termination of, this Agreement) the Administrative Agent, ratably in
accordance with their respective Term Loans outstanding and Commitments (or, if
no Term Loans or Commitments are at the time outstanding and in effect, then
ratably in accordance with the principal amount of Term Loans held by such
Lender, and their respective Commitments as in effect in each case on the date
of the termination of this Agreement), from and against any and all liabilities,
obligations, losses, damages, claims, reasonable costs or reasonable expenses of
any kind or nature whatsoever which may at any time be imposed on, incurred by,
or asserted against, the Administrative Agent in any way relating to or arising
out of this Agreement, the Notes and any other Loan Document, including
reasonable attorneys' fees, and as to which the Administrative Agent is not
reimbursed by the Borrower or any other Obligor (and without limiting the
obligation of the Borrower or any other Obligor to do so); PROVIDED, HOWEVER,
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, claims, costs or expenses which are
determined by a court of competent jurisdiction in a final proceeding to have
resulted solely from the Administrative Agent's gross negligence or willful
misconduct. The Administrative Agent shall not be required to take any action
hereunder, under the Notes or under any other Loan Document, or to prosecute or
defend any suit in respect of this Agreement, the Notes or any other Loan
Document, unless it is indemnified hereunder to its satisfaction. If any
indemnity in favor of the Administrative Agent shall be or become, in the
Administrative Agent's determination, inadequate, the Administrative Agent may
call for additional indemnification from the Lenders and cease to do the acts
indemnified against hereunder until such additional indemnity is given.
SECTION 9.2. FUNDING RELIANCE, ETC. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York time, on the day prior to a Borrowing that such Lender will
not make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If and to the extent that such Lender shall not have made such amount
available to the Administrative Agent, such Lender severally agrees and the
Borrower agrees to repay the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
the Administrative Agent made such amount available to the Borrower to the date
such amount is repaid to the Administrative Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing.
SECTION 9.3. EXCULPATION. Neither the Administrative Agent, any other
Agent nor any of their respective directors, officers, employees or agents shall
be liable to any Lender for any action taken or omitted to be taken by it under
this Agreement or any other Loan Document, or in connection herewith or
therewith, except for its own willful misconduct or gross negligence, nor
responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of this Agreement or
any other Loan Document, nor for the creation, perfection or priority of any
Liens purported to be created by any of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency of any collateral
security, nor to make any inquiry respecting the performance by the Borrower of
its obligations hereunder or under any other Loan Document. Any such inquiry
which may be made by any Agent shall not obligate it to make any further inquiry
or to take any action. The Administrative Agent shall be entitled to rely upon
advice of counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which the Administrative Agent believes to be
genuine and to have been presented by a proper Person.
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SECTION 9.4. SUCCESSOR. Any Agent (other than the Administrative Agent)
may resign as such upon one Business Day's notice to the Borrower and the
Administrative Agent. The Administrative Agent may resign as such at any time
upon at least 30 days' prior notice to the Borrower and all Lenders. If the
Administrative Agent at any time shall resign, the Required Lenders may, with
the prior consent of the Borrower (which consent shall not be unreasonably
withheld), appoint another Lender as a successor Administrative Agent which
shall thereupon become the Administrative Agent hereunder. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
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 be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and 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 under this Agreement. After any
retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of
(a) this ARTICLE IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement; and
(b) SECTION 10.3 and SECTION 10.4 shall continue to inure to
its benefit.
SECTION 9.5. CREDIT EXTENSIONS BY EACH AGENT. Each Agent shall have the
same rights and powers with respect to (x) the Credit Extensions made by it or
any of its Affiliates, and (y) the Notes held by it or any of its Affiliates as
any other Lender and may exercise the same as if it were not an Agent. Each
Agent and its respective Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or
Affiliate of the Borrower as if such Agent were not an Agent hereunder.
SECTION 9.6. CREDIT DECISIONS. Each Lender acknowledges that it has,
independently of each Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrower, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of each Agent and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
SECTION 9.7. COPIES, ETC. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received
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by the Administrative Agent from the Borrower for distribution to the Lenders by
the Administrative Agent in accordance with the terms of this Agreement.
SECTION 9.8. THE SYNDICATION AGENT, THE MANAGING AGENT AND THE
CO-AGENTS. Notwithstanding anything else to the contrary contained in this
Agreement or any other Loan Document, the Syndication Agent, the Managing Agent
and the Co-Agents, in such capacity, shall not have any rights, duties or
responsibilities under this Agreement or any other Loan Document, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Syndication Agent, the Managing Agent
or any Co-Agent in such capacity.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. WAIVERS, AMENDMENTS, ETC. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrower and the Required Lenders; PROVIDED, HOWEVER, that
no such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders shall be effective unless consented
to by each Lender;
(b) modify this SECTION 10.1, or CLAUSE (a) of SECTION 10.10,
change the definition of "Required Lenders", increase any Commitment
Amount or the Percentage of any Lender, reduce any fees described in
ARTICLE III, if any guarantees are delivered or Capital Stock is
pledged pursuant to SECTION 7.1.6, release any Subsidiary guarantor
from its obligations under such guaranty or all or substantially all of
the collateral security (except in each case as otherwise specifically
provided in this Agreement, the subsidiary guaranty or a pledge
agreement), or extend any Commitment Termination Date shall be made
without the consent of each Lender adversely affected thereby;
(c) extend the final Stated Maturity Date of any Loan, or
extend the due date for, or reduce the amount of any payment of
interest on or fees payable in respect of any Loan (or reduce the
principal amount of or rate of interest on or fees payable in respect
of any Loan) or any Reimbursement Obligation (which shall in each case
include the conversion of all or any part of the Obligations into
equity of any Obligor) shall be made without the consent of the Lender
owed such Loan or, in the case of a Reimbursement Obligation, the
Issuer owed (and those Lenders participating in) such Reimbursement
Obligation;
(d) extend the due date for, or reduce the amount of, any
mandatory prepayment of principal of any Loan or any mandatory
reduction in the Revolving Loan Commitment Amount shall be made unless
consented to by, so long as any such Loans are outstanding (or, in the
case of Revolving Loan Lenders, the Revolving Loan Commitment is in
effect), Lenders holding at least 51% of the outstanding principal
amount of the Tranche of Loans (or Revolving Loan Commitments, in the
case of Revolving Loan Lenders) adversely affected by such amendment,
modification or waiver; or
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(e) affect adversely the interests, rights or obligations of
the Administrative Agent (in its capacity as Administrative Agent), the
Issuer (in its capacity as Issuer), or the Swing Line Lender (in its
capacity as Swing Line Lender) shall be effective unless consented to
by the Administrative Agent, the Issuer or the Swing Line Lender, as
the case may be.
No failure or delay on the part of the Administrative Agent, the Issuer or any
Lender in exercising any power or right under this Agreement or any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
the Borrower in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by the Administrative Agent, the
Issuer or any Lender under this Agreement or any other Loan Document shall,
except as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any
similar or dissimilar waiver or approval thereafter to be granted hereunder.
SECTION 10.2. NOTICES. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party,
in the case of the Borrower or the Administrative Agent, at its address or
facsimile number set forth below its signatures in this Agreement, and if to any
other party, as set forth on SCHEDULE III hereto or set forth in the Lender
Assignment Agreement or at such other address or facsimile number as may be
designated by such party in a notice to the other parties. Any notice, if mailed
and properly addressed with postage prepaid or if properly addressed and sent by
prepaid courier service, shall be deemed given when received; any notice, if
transmitted by facsimile, shall be deemed given when transmitted (telephonic
confirmation in the case of facsimile).
SECTION 10.3. PAYMENT OF COSTS AND EXPENSES. The Borrower agrees to pay
on demand all reasonable expenses of the Administrative Agent (including the
reasonable fees and out-of-pocket expenses of counsel to the Administrative
Agent and of local counsel, if any, who may be retained by counsel to the
Administrative Agent) in connection with
(a) the syndication by the Administrative Agent of the Loans,
the negotiation, preparation, execution and delivery of this Agreement
and of each other Loan Document, including schedules and exhibits, and
any amendments, waivers, consents, supplements or other modifications
to this Agreement or any other Loan Document as may from time to time
hereafter be required, whether or not the transactions contemplated
hereby are consummated; and
(b) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save the Administrative Agent, the
Issuer and the Lenders harmless from all liability for, any stamp or other
similar taxes which may be payable in connection with the execution or delivery
of this Agreement, the Credit Extensions made hereunder, or the issuance of the
Notes and Letters of Credit or any other Loan Documents. The Borrower also
agrees to reimburse the Administrative Agent, the Issuer and each Lender upon
demand for all reasonable out-of-pocket expenses (including attorneys' fees and
legal expenses)
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incurred by the Administrative Agent, the Issuer or such Lender
in connection with (x) the negotiation of any restructuring or "work-out",
whether or not consummated, of any Obligations and (y) the enforcement of any
Obligations.
SECTION 10.4. INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby indemnifies, exonerates and holds each Agent, the Issuer and
each Lender and each of their respective Affiliates, and each of their
respective partners, officers, directors, employees and agents, and each other
Person controlling any of the foregoing within the meaning of either Section 15
of the Securities Act of 1933, as amended, or Section 20 of the Exchange Act,
(collectively, the "INDEMNIFIED PARTIES"), free and harmless from and against
any and all actions, causes of action, suits, losses, costs, liabilities and
damages, fees, and expenses actually incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable attorneys' fees
and disbursements (collectively, the "INDEMNIFIED LIABILITIES"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit Extension
hereunder;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of the Borrower as the result of any
determination by the Required Lenders pursuant to ARTICLE V not to make
any Credit Extension);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not such Indemnified Party is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
the Borrower's or any of its Subsidiaries' compliance with or liability
under Environmental Law or the Release by the Borrower or any of its
Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof of
any Hazardous Material present on or under such property in a manner
giving rise to liability at or prior to the time the Borrower or such
Subsidiary owned or operated such property (including any losses,
liabilities, damages, injuries, costs, expenses or claims asserted or
arising under any Environmental Law), regardless of whether caused by,
or within the control of, the Borrower or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct. The Borrower and its permitted successors and
assigns hereby waive, release and agree not to make any claim, or bring any cost
recovery action against, any Agent, the Issuer or any Lender under CERCLA or any
state equivalent, or any similar law now existing or hereafter enacted, except
to the extent arising out of the gross negligence or willful misconduct of any
Indemnified Party. It
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is expressly understood and agreed that to the extent that any of such Persons
is strictly liable under any Environmental Laws, the Borrower's obligation to
such Person under this indemnity shall likewise be without regard to fault on
the part of the Borrower with respect to the violation or condition which
results in liability of such Person. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrower hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
SECTION 10.5. SURVIVAL. The obligations of the Borrower under SECTIONS
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
SECTIONS 4.8 and 9.1, shall in each case survive any termination of this
Agreement, the payment in full of all Obligations, the termination or expiration
of all Letters of Credit and the termination of all Commitments. The
representations and warranties made by the Borrower and each other Obligor in
this Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION 10.6. SEVERABILITY. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. HEADINGS. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8. EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. This Agreement shall become effective
when counterparts hereof executed on behalf of the Borrower, the Issuer and each
Lender (or notice thereof satisfactory to the Administrative Agent) shall have
been received by the Administrative Agent and notice thereof shall have been
given by the Administrative Agent to the Borrower, the Issuer and each Lender.
SECTION 10.9. GOVERNING LAW; ENTIRE AGREEMENT. THIS AGREEMENT, THE
NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement
and the other Loan Documents constitute the entire understanding among the
parties hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.
SECTION 10.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; PROVIDED, HOWEVER, that:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and all Lenders; and
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(b) the rights of sale, assignment and transfer of the Lenders
are subject to SECTION 10.11.
SECTION 10.11. SALE AND TRANSFER OF LOANS AND NOTES; PARTICIPATIONS IN
LOANS AND NOTES. Each Lender may assign, or sell participations in, its Loans,
Letters of Credit and Commitments to one or more other Persons, on a non PRO
RATA basis, in accordance with this SECTION 10.11.
SECTION 10.11.1. ASSIGNMENTS. Any Lender (the "ASSIGNOR LENDER"),
(a) with the written consents of the Borrower and the
Administrative Agent (which consents shall not be unreasonably delayed
or withheld and which consent, in the case of the Borrower, shall be
deemed to have been given in the absence of a written notice delivered
by the Borrower to the Administrative Agent, on or before the fifth
Business Day after receipt by the Borrower of such Lender's request for
such consent), may at any time assign and delegate to one or more
commercial banks or other financial institutions or funds which are
regularly engaged in making, purchasing or investing in loans or
securities, and
(b) with notice to the Borrower and the Administrative Agent,
but without the consent of either the Borrower or the Administrative
Agent, may assign and delegate to any of its Affiliates or to any other
Lender
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "ASSIGNEE LENDER"), all or any fraction of such Lender's total Loans,
participations in Letters of Credit and Letter of Credit Outstandings with
respect thereto and Commitments (which assignment and delegation shall be, as
among Revolving Loan Commitments, Revolving Loans, participations in Letters of
Credit and Swing Line Loans and Term Loans, of a constant, and not a varying,
percentage) in a minimum aggregate amount of $10,000,000 or the then remaining
amount of a Lender's Loans and Commitments; PROVIDED, HOWEVER, that any such
Assignee Lender will comply, if applicable, with the provisions contained in
SECTION 4.6 and the Borrower, each other Obligor and the Administrative Agent
shall be entitled to continue to deal solely and directly with such Assignor
Lender in connection with the interests so assigned and delegated to an Assignee
Lender until
(c) written notice of such assignment and delegation, together
with payment instructions, addresses and related information with
respect to such Assignee Lender, shall have been given to the Borrower
and the Administrative Agent by such Assignor Lender and such Assignee
Lender;
(d) such Assignee Lender shall have executed and delivered to
the Borrower and the Administrative Agent a Lender Assignment
Agreement, accepted by the Administrative Agent;
(e) the processing fees described below shall have been paid;
and
(f) the Administrative Agent shall have registered such
assignment and delegation in the Register pursuant to CLAUSE (b) of
SECTION 2.7.
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From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement and such assignment and delegation is registered in the
Register pursuant to CLAUSE (b) of SECTION 2.7, (i) the Assignee Lender
thereunder shall be deemed automatically to have become a party hereto and to
the extent that rights and obligations hereunder have been assigned and
delegated to such Assignee Lender in connection with such Lender Assignment
Agreement, shall have the rights and obligations of a Lender hereunder and under
the other Loan Documents, and (ii) the Assignor Lender, to the extent that
rights and obligations hereunder have been assigned and delegated by it in
connection with such Lender Assignment Agreement, shall be released from its
obligations hereunder and under the other Loan Documents. Subject to the
provisions of SECTION 2.7, within ten Business Days after its receipt of notice
that the Administrative Agent has received an executed Lender Assignment
Agreement, at the request of the Assignee Lender, the Borrower shall execute and
deliver to the Administrative Agent (for delivery to the relevant Assignee
Lender) new Notes evidencing such Assignee Lender's assigned Loans and
Commitments and, if the assignor Lender has retained Loans and Commitments
hereunder and had originally requested Notes to evidence such loans and
Commitments, replacement Notes in the principal amount of the Loans and
Commitments retained by the assignor Lender hereunder (such Notes to be in
exchange for, but not in payment of, those Notes then held by such assignor
Lender). Each such Note shall be dated the date of the predecessor Notes. The
Assignor Lender shall mark the predecessor Notes "exchanged" and deliver them to
the Borrower. Unless otherwise specified in the Lender Assignment Agreement,
interest and fees on the portion of Loans and Commitments being assigned that
have accrued prior to the date of such assignment shall be paid to the account
of the Assignor Lender and interest and fees that accrue on and subsequent to
the date of such assignment shall be paid to the account of the Assignee Lender.
Accrued interest and accrued fees shall be paid at the same time or times
provided in this Agreement. Such Assignor Lender or such Assignee Lender (unless
such Assignor Lender or Assignee Lender is Scotiabank) must also pay a
processing fee to the Administrative Agent upon delivery of any Lender
Assignment Agreement in the amount of $3,500, unless such assignment and
delegation is by a Lender to its Affiliate or if such assignment and delegation
is by a Lender to the Federal Reserve Bank (or in the case of a Lender that is
an investment fund, to the trustee under the indenture to which such fund is a
party), as provided below or is otherwise consented to by the Administrative
Agent. Any attempted assignment and delegation not made in accordance with this
SECTION 10.11.1 shall be null and void. Notwithstanding any other term of this
SECTION 10.11.1, the agreement of the Swing Line Lender to provide the Swing
Line Loan Commitment shall not impair or otherwise restrict in any manner the
ability of the Swing Line Lender to make any assignment of its Loans or
Commitments, it being understood and agreed that the Swing Line Lender may
terminate its Swing Line Loan Commitment, to the extent such Swing Line
Commitment would exceed its Revolving Loan Commitment after giving effect to
such assignment, in connection with the making of any assignment. Nothing
contained in this SECTION 10.11.1 shall prevent or prohibit any Lender from
pledging its rights (but not its obligations to make Loans) under this Agreement
and/or its Loans and/or its Notes hereunder to a Federal Reserve Bank in support
of borrowings made by such Lender from such Federal Reserve Bank or in the case
of a Lender that is an investment fund, to the trustee under the indenture to
which such fund is a party in support of its obligations to such trustee, in
either case, without notice to or consent of the Borrower or the Administrative
Agent; PROVIDED, HOWEVER, that (A) such Lender shall remain a "Lender" under
this Agreement and shall continue to be bound by the terms and conditions hereof
and in the other Loan Documents, and (B) any assignment by such trustee shall be
subject to the provisions of CLAUSE (a) of this SECTION 10.11.1. In the event
that S&P, Moody's or Thompson's BankWatch (or InsuranceWatch Ratings Service, in
the case of Lenders that are insurance
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companies (or Best's Insurance Reports, if such insurance company is not rated
by Insurance Watch Ratings Service)) shall, after the date that any Lender with
a Commitment to make Revolving Loans or participate in Letters of Credit or
Swing Line Loans becomes a Lender, downgrade the long-term certificate of
deposit rating or long-term senior, unsecured debt rating of such Lender, and
the resulting rating shall be below BBB-, Baa3 or C (or BB, in the case of
Lender that is an insurance company (or B, in the case of an insurance company
not rated by InsuranceWatch Ratings Service)), then each of the Issuer and (if
different) the Swing Line Lender shall have the right, but not the obligation,
upon notice to such Lender and the Administrative Agent, to replace such Lender
with an Assignee Lender in accordance with and subject to the restrictions
contained in this Section, and such Lender hereby agrees to transfer and assign
without recourse (in accordance with and subject to the restrictions contained
in this Section) all its interests, rights and obligations in respect of its
Revolving Loan Commitment under this Agreement to such Assignee Lender;
PROVIDED, HOWEVER, that (i) no such assignment shall conflict with any law, rule
and regulation or order of any governmental authority and (ii) such Assignee
Lender shall pay to such Lender in immediately available funds on the date of
such assignment the principal of and interest and fees (if any) accrued to the
date of payment on the Loans made, and Letters of Credit participated in, by
such Lender hereunder and all other amounts accrued for such Lender's account or
owed to it hereunder.
SECTION 10.11.2. PARTICIPATIONS. Any Lender may at any time sell to one
or more commercial banks or other Persons (each of such commercial banks and
other Persons being herein called a "PARTICIPANT") participating interests in
any of the Loans, Commitments, or other interests of such Lender hereunder;
PROVIDED, HOWEVER, that
(a) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Borrower and each other Obligor and the Administrative
Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement and each of the other Loan Documents;
(d) no Participant, unless such Participant is an Affiliate of
such Lender, or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under any
other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, agree to (i) any reduction in the interest rate or amount of
fees that such Participant is otherwise entitled to or (ii) a decrease
in the principal amount, or an extension of the final Stated Maturity
Date, of any Loan in which such Participant has purchased a
participating interest; and
(e) the Borrower shall not be required to pay any amount under
SECTIONS 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4 that is greater than the
amount which it would have been required to pay had no participating
interest been sold.
The Borrower acknowledges and agrees, subject to CLAUSE (e) above, that each
Participant, for purposes of SECTIONS 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and
10.4, shall be considered a Lender.
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SECTION 10.12. OTHER TRANSACTIONS. Nothing contained herein shall
preclude the Agents, the Issuer or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Borrower or any of its Affiliates in which the Borrower
or such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 10.13. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE LENDERS OR THE BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY
IN THE COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK, NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH SUCH LITIGATION. THE BORROWER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.14. WAIVER OF JURY TRIAL. THE AGENTS, THE ISSUER, THE
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE LENDERS OR THE BORROWER.
THE BORROWER ACKNOWLEDGES AND
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AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION
(AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY)
AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT,
THE ISSUER AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN
DOCUMENT.
SECTION 10.15. CONFIDENTIALITY. The Lenders shall hold all non-public
information obtained pursuant to or in connection with this Agreement or
obtained by such Lender based on a review of the books and records of the
Borrower or any of its Subsidiaries in accordance with their customary
procedures for handling confidential information of this nature, but may make
disclosure to any of their examiners, Affiliates, outside auditors, counsel and
other professional advisors in connection with this Agreement or as reasonably
required by any potential bona fide transferee, participant or assignee, or in
connection with the exercise of remedies under a Loan Document, or as requested
by any governmental agency or representative thereof or pursuant to legal
process; PROVIDED, HOWEVER, that
(a) unless specifically prohibited by applicable law or court
order, each Lender shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such
request in connection with an examination of the financial condition of
such Lender by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information;
(b) prior to any such disclosure pursuant to this SECTION
10.15, each Lender shall require any such BONA FIDE transferee,
participant and assignee receiving a disclosure of non-public
information to agree in writing
(i) to be bound by this SECTION 10.15; and
(ii) to require such Person to require any other
Person to whom such Person discloses such non-public
information to be similarly bound by this SECTION 10.15; and
(c) except as may be required by an order of a court of
competent jurisdiction and to the extent set forth therein, no Agent or
Lender shall be obligated or required to return any materials furnished
by the Borrower or any Subsidiary.
-80-
<PAGE> 88
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
KEEBLER FOODS COMPANY
By: /s/ E. NICHOL MCCULLY
---------------------------------
Name: E. Nichol McCully
Title: Senior Vice President and
Chief Financial Officer
THE BANK OF NOVA SCOTIA,
as the Administrative Agent
and as a Lender
By: /s/ F.C.H. ASHBY
-------------------------
Name: F.C.H. Ashby
Title: Senior Manager
Loan Operations
THE FIRST NATIONAL BANK OF
CHICAGO,
as the Syndication Agent and as a Lender
By: /s/ KAREN F. KIZER
-------------------------
Name: Karen F. Kizer
Title: Senior Vice President
<PAGE> 89
BANK OF MONTREAL, as Managing
Agent and as a Lender,
By:
--------------------------
Name: L.A. Durning
Title: Portfolio Manager
<PAGE> 90
NATIONSBANK, N.A., as a Co-Agent and Lender
By: /s/ KATHRYN W. ROBINSON
--------------------------------
Name: Kathryn W. Robinson
Title: Senior Vice President
<PAGE> 91
THE NORTHERN TRUST COMPANY, as
a CoAgent and as a Lender,
By: /s/ LISA M. TAYLOR
----------------------------
Name: Lisa M. Taylor
Title: Second Vice President
<PAGE> 92
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEEN BANK
B.A."RABOBANK NEDERLAND,"
NEW YORK BRANCH, as a CoAgent and
as a Lender,
By: /s/ IAN REECE
------------------------------
Name: Ian Reece
Title: Senior Credit Officer
By: /s/ CAROLINE HASTINGS
------------------------------
Name: Caroline Hastings
Title: VP
<PAGE> 93
SUNTRUST BANK, ATLANTA, as a
CoAgent and as a Lender,
By: /s/ MICHAEL A. ODERMATT
------------------------
Name: Michael A. Odermatt
Title: Vice President
By: /s/ F. STEVEN PARRISH
------------------------
Name: F. Steven Parrish
Title: Vice President
<PAGE> 94
WACHOVIA BANK, as a CoAgent and as a
Lender
By: /s/ J. TIMOTHY TOLER
---------------------------------
Name: J. Timothy Toler
Title: Senior Vice President
<PAGE> 95
LENDERS
ABN AMRO BANK N.V.
By: /s/ J. PAUL DE KLERK
----------------------------
Name: J. Paul de Klerk
Title: SVP
By: /s/ WENDY DEVENISH
----------------------------
Name: Wendy Devenish
Title: AVP
<PAGE> 96
BANK OF NEW YORK
By:/s/ JOHN M. LOKAY, JR.
--------------------------
Name: John M. Lokay. Jr.
Title: Vice President
<PAGE> 97
BANQUE NATIONALE DE PARIS
By: /s/ ARNAUD COLLIN DU BOCAGE
---------------------------
Name: Arnaud Collin du Bocage
Title: Executive Vice President
and General Manager
<PAGE> 98
COBANK, ACB
By: /s/ ANTONY BAHR
------------------------
Name: Antony Bahr
Title: VP
<PAGE> 99
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK, CAYMAN
ISLANDS BRANCH
By: /s/ SABINE WENDT
-------------------------
Name: Sabine Wendt
Title: Asst. Vice President
By: /s/ KAREN A. BRINKMAN
-------------------------
Name: Karen A. Brinkman
Title: Vice President
<PAGE> 100
FIRST UNION NATIONAL BANK
By: /s/ SCOTT SANTA CRUZ
---------------------------
Name: Scott Santa Cruz
Title: Vice President
<PAGE> 101
FIRSTRUST BANK
By: /s/ EDWARD D' ANCONA
--------------------------
Name: Edward D' Ancona
Title: EVP
<PAGE> 102
GENERALE BANK, NEW YORK
BRANCH
By: /s/ E. MATTHEWS
----------------------------------
Name: E. Matthews
Title: SVP
By: /s/ S. DEL ROSARIO
----------------------------------
Name: S. Del Rosario
Title: SVP
<PAGE> 103
HIBERNIA NATIONAL BANK
By: /s/ CHRISTOPHER B. PITRE
----------------------------
Name: Christopher B. Pitre
Title: Vice President
<PAGE> 104
KBC BANK N.V.
By: /s/ JOHN E. THERFELLER
-----------------------------------------
Name: John E. Therfeller
Title: Vice President
By: /s/ ROBERT SNAUFFER
-----------------------------------------
Name: Robert Snauffer
Title: First Vice President
<PAGE> 105
LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By: /s/ ARMUND J. SCHOEN. JR.
-----------------------------
Name: Armund J. Schoen, Jr.
Title: Senior; Vice President
<PAGE> 106
NATIONAL CITY BANK
By: /s/ JOSEPH D. ROBISON
--------------------------
Name: Joseph D. Robison
Title: Vice President
<PAGE> 107
SUMITOMO BANK, LIMITED
By: /s/ KENICHIRO KOBAYASHI
--------------------------
Name: Kenichiro Kobayashi
Title: Joint General Manager
<PAGE> 108
SCHEDULE I
DISCLOSURE SCHEDULE
<PAGE> 109
ITEM 6.7
LITIGATION
None
<PAGE> 110
ITEM 6.11
ERISA
Employees Benefit Plans set forth on Schedule 3.15(a) to the Purchase Agreement,
a copy of which has been provided to all Lenders.
<PAGE> 111
ITEM 6.12
ENVIRONMENTAL MATTERS
None
<PAGE> 112
ITEM 7.2.2
INDEBTEDNESS TO BE PAID
1. Indebtedness of President and its subsidiaries, including without
limitation the following:
(i) Third Amended and Restated Loan Agreement dated December 19,
1997 by and between President Baking Company, Inc., The
Chase Manhattan Bank and the parties who are signatories
thereto; and
(ii) The Chase Manhattan Bank Letter of Credit dated October 28,
1993 on behalf of President Baking Company, Inc. in favor of
First Union National Bank of Georgia.
2. Second Amended and Restated Credit Agreement, dated as of April 8,
1997, among Keebler Corporation, the Lenders named therein, the
Co-Agents named therein and The Bank of Nova Scotia, as Administrative
Agent for the Lenders.
<PAGE> 113
ITEM 7.2.2(b)
ONGOING INDEBTEDNESS
1. Loan Agreement, dated February 1, 1993, between Summit county, Ohio and
Keebler Company relating to $995,000 aggregate principal amount of
industrial development revenue refunding bonds issued by Summit County,
Ohio ("Summit County IRB's").
2. Lease Agreement, dated February 1, 1993, between The Industrial
Development Board of The City of Homewood, Alabama and Keebler Company
relating to $560,000 aggregate principal amount of industrial
development revenue refunding bonds issued by The Industrial
Development Board of the City of Homewood, Alabama ("Homewood IRB's").
3. Loan Agreement, dated February 1, 1993, between the City of Evansville,
Indiana and Keebler Company relating to $505,000 aggregate principal
amount of industrial development revenue refunding bonds issued by the
City of Evansville, Indiana ("Evansville IRB's").
4. Loan Agreement, dated January 1, 1993, between the City of Bluffton,
Indiana and Keebler Company relating to $5,300,000 aggregate principal
amount of industrial development revenue refunding bonds issued by the
City of Bluffton, Indiana.
5. Loan Agreement, dated February 1, 1993, between Village of Alsip,
Illinois and Keebler Company relating to $3,750,000 aggregate principal
amount of industrial development revenue refunding bonds issued by the
Village of Alsip, Illinois ("Alsip IRB's").
6. Loan Agreement, dated January 1, 1993, between Howard County, Maryland
and Keebler Company relating to $925,000 aggregate principal amount of
industrial development revenue refunding bonds issued by Howard County,
Maryland.
7. Loan Agreement, dated January 1, 1993, between the city of Fort Wayne,
Indiana and Keebler Company relating to aggregate principal amount of
$825,000 industrial development revenue refunding bonds issued by the
City of Fort Wayne, Indiana.
8. Loan Agreement, dated January 1, 1993, between the Village of Menomonee
Falls, Wisconsin and Keebler Company relating to $850,000 aggregate
principal amount of industrial development revenue refunding bonds
issued by the Village of Menomonee Falls, Wisconsin.
9. Loan Agreement, dated January 1, 1993, between the Industrial
Development Authority of the City of Springfield, Missouri and Keebler
Company relating to $850,000 aggregate principal amount of industrial
development revenue refunding bonds, issued by the Industrial
Development Authority of the City of Springfield, Missouri.
10. Financing Agreement, dated January 1, 1993, between Lehigh County
Industrial Development Authority and Keebler Company relating to
$1,125,000 aggregate principal amount of industrial development revenue
refunding bonds issued by Lehigh County
<PAGE> 114
Industrial Development Authority.
11. Financing Agreement, dated January 1, 1992, between the Lehigh County
Industrial Development Authority and Keebler Company, relating to
$6,340,000 aggregate principal amount of industrial revenue refunding
bonds issued by the Lehigh County Industrial Development Authority
("Lehigh 1992 IRB's").
12. Letter of Credit #S243004 with Continental Casualty relating to
Automobile/General Liability insurance.
13. Letter of Credit #S245282 with Transportation Insurance relating to
Workers' Compensation insurance.
14. Letter of Credit #S250171 with Transportation Insurance relating to
Workers' Compensation insurance.
15. Letter of Credit #S254296 with Trans. Ins. Cont. Casualty relating to
Workers' Compensation insurance.
16. Letter of Credit #S257646 with Trans. Ins. Cont. Casualty relating to
Workers' compensation insurance.
17. Letter of Credit #S261336 with Trans. Ins. Cont. Casualty relating to
Workers' Compensation insurance.
18. Letter of Credit #S245281 with Continental Casualty relating to
Automobile/General Liability insurance.
19. Letter of Credit #250172 with Continental Casualty relating to
Automobile/General Liability insurance.
20. Letter of Credit #S254299 with Continental Casualty relating to
Automobile/General Liability insurance.
21. Letter of Credit #S257645 with continental Casualty relating to
Automobile/General Liability insurance.
22. Letter of Credit #S261337 with Continental Casualty relating to
Automobile/General Liability insurance.
23. Gerber Debt-Grand Rapids. The balance as of September 12, 1998 is
$867.23.
24. Lease Agreement, dated March 21, 1991, between Wyndham Baking Company,
Inc. and Gelco Company (d/b/a GE Capital Fleet Services).
<PAGE> 115
25. Vehicle Lease Service Agreement, dated May 30, 1997, between President
Baking Company, Inc. and Penske Truck Leasing Co., L.P. ("Penske").
26. Equipment Lease, dated August 19, 1993, between President Baking
Company, Inc. and First Union Commercial Corporation ("First Union").
27. Equipment Lease, dated May 8,1995, between President Baking Company,
Inc. and Citicorp Dealer Finance.
28. Three Party Consent and Agreement, dated May 30, 1997, by and between
President Baking Company, Inc., Penske and GE Capital.
29. Nissan Motor Corporation Master Lease Agreement, dated May 9, 1997,
between Burch Lowe, Inc. and President Baking Company, Inc.
30. Vehicle Lease Agreement, dated March 13, 1998, between President Baking
Company, Inc. and Lease Plan U.S.A.
31. Master Lease Agreement, dated July 11, 1997, between President Baking
Company, Inc. and GE Capital.
32. Vehicle Lease Agreement, dated March 30, 1990, between World Omni
Leasing, Inc. and Wyndham Baking Company, Inc.
<PAGE> 116
ITEM 7.2.5(a)
INVESTMENTS
The following are the only investments maintained by the Borrower and its
subsidiaries in any other Person:
I. The Borrower directly owns 100% of all classes of the outstanding stock
of the following corporations:
Keebler Leasing Corp.
Keebler Company ("Keebler")
Johnston's Ready-Crust Company
Bake-Line Products, Inc.
Sunshine Biscuits, Inc.
Shaffer, Clarke & Co., Inc.
President International, Inc. ("President")
II. Keebler directly owns 100% of all classes of the outstanding stock of
the following corporations:
Steamboat Corporation
Illinois Baking Corporation
Keebler Cookie and Cracker Company
Hollow Tree Company
Keebler Company/Puerto Rico, Inc.
Keebler H.C., Inc.
Keebler-Georgia, Inc.
Keebler Foreign Sales Corporation
Godfrey Transport, Inc.
III. Keebler directly owns a membership interest in the following limited
liability companies:
Hollow Tree Financial Co., LLC (100%)
Elfin Equity Co., LLC (65%; Sunshine 35%)
Keebler Assets Company, LLC (34%; Keebler Leasing Company 33%;
Keebler-Georgia, Inc. 33%)
IV. Keebler is the sole member of the following Illinois not for profit
corporations:
Keebler International Prep Track & Field Invitational Foundation
Keebler Company Foundation
<PAGE> 117
V. President directly owns 100% of all classes of the outstanding stock of
the following corporations:
President Baking Company, Inc.
VI. Investments made pursuant to the Purchase Agreement.
<PAGE> 118
ITEM 7.2.12
RESTRICTIVE AGREEMENTS
None
<PAGE> 119
SCHEDULE II
FISCAL QUARTERS
---------------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
1998
- --------------------------------------------------------------------------------
<S> <C> <C>
07/19/98 through (and including) 10/10/98
10/11/98 through (and including) 01/02/99
- --------------------------------------------------------------------------------
1999
- --------------------------------------------------------------------------------
01/03/99 through (and including) 04/24/99
04/25/99 through (and including) 07/17/99
07/18/99 through (and including) 10/09/99
10/10/99 through (and including) 01/01/00
- --------------------------------------------------------------------------------
2000
- --------------------------------------------------------------------------------
01/02/00 through (and including) 04/22/00
04/23/00 through (and including) 07/15/00
07/16/00 through (and including) 10/07/00
10/08/00 through (and including) 12/30/00
- --------------------------------------------------------------------------------
2001
- --------------------------------------------------------------------------------
12/31/00 through (and including) 04/21/01
04/22/01 through (and including) 07/14/01
07/15/01 through (and including) 10/06/01
10/07/01 through (and including) 12/29/01
- --------------------------------------------------------------------------------
2002
- --------------------------------------------------------------------------------
12/30/01 through (and including) 04/20/02
04/21/02 through (and including) 07/13/02
07/14/02 through (and including) 10/05/02
10/06/02 through (and including) 12/28/02
</TABLE>
- i -
<PAGE> 120
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
2003
- --------------------------------------------------------------------------------
<S> <C> <C>
12/29/02 through (and including) 04/19/03
04/20/03 through (and including) 07/12/03
07/13/03 through (and including) 10/04/03
10/05/03 through (and including) 01/03/04
- --------------------------------------------------------------------------------
2004
- --------------------------------------------------------------------------------
01/04/04 through (and including) 04/24/04
04/25/04 through (and including) 07/17/04
07/18/04 through (and including) 10/09/04
</TABLE>
- ii -
<PAGE> 121
SCHEDULE III
PERCENTAGES AND ADMINISTRATIVE INFORMATION
__________________________________________
THE BORROWER:
Keebler Foods Company
Address: 677 Larch Avenue
Elmhurst, Illinois 60126
Facsimile No.: (708) 833-3372
Attention: E. Nichol McCully
LENDERS:
<TABLE>
<CAPTION>
PERCENTAGES
-----------
TERM LOAN
COMMITMENT/TERM REVOLVING LOAN
NAME: LOANS: COMMITMENT: DOMESTIC OFFICE: LIBOR OFFICE:
- ----- ------ ----------- ---------------- -------------
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
The Bank of Nova Scotia 8.5714286000% 8.5714286000% One Liberty Plaza One Liberty Plaza
New York, NY 10006 New York, NY 10006
Facsimile No.: (212) 225-5090 Facsimile No.: (212) 225-5090
Attn: Carroll Rockey Attn: Carroll Rockey
- ----------------------------------------------------------------------------------------------------------------------------------
The First National Bank of 7.8571429000% 7.8571429000% First National Plaza First National Plaza
Chicago Suite 0088 Suite 0088
14th Floor 14th Floor
Chicago, IL 60670 Chicago, IL 60670
- ----------------------------------------------------------------------------------------------------------------------------------
Bank of Montreal 7.8571429000% 7.8571429000% 115 South LaSalle Street 115 South LaSalle Street
Chicago, IL 60603 Chicago, IL 60603
Facsimile No.: (312) 750-4304 Facsimile No.: (312) 750-4304
Attn: Josie Nichols Attn: Josie Nichols
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- i -
<PAGE> 122
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
PERCENTAGES
-----------
TERM LOAN
COMMITMENT/TERM REVOLVING LOAN
NAME: LOANS: COMMITMENT: DOMESTIC OFFICE: LIBOR OFFICE:
- ----- ------ ----------- ---------------- -------------
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Banque Nationale de Paris 5.0000000000% 5.0000000000% 209 South LaSalle Street 209 South LaSalle Street
Fifth Floor Fifth Floor
Chicago, IL 60604 Chicago, IL 60604
Facsimile: (312) 977-2234 Facsimile: (312) 977-2234
- ----------------------------------------------------------------------------------------------------------------------------------
CoBank, ACB 5.0000000000% 5.0000000000% 5500 S. Quebec Street 5500 S. Quebec Street
Englewood, CD 80111 Englewood, CD 80111
Facsimile: (303) 740-4021 Facsimile: (303) 740-4021
- ----------------------------------------------------------------------------------------------------------------------------------
NationsBank, N.A. 5.7142857000 5.7142857000% 101 N. Tryon Street 101 N. Tryon Street
Charlotte, NC 28255-0001 Charlotte, NC 28255-0001
Facsimile: (704) 386-4576 Facsimile: (704) 386-4576
Attn: Corporate Credit Services Attn: Corporate Credit Services
- ----------------------------------------------------------------------------------------------------------------------------------
The Northern Trust Company 5.7142857000 5.7142857000 50 S. LaSalle Street 50 S. LaSalle Street
11th Floor 11th Floor
Chicago, IL Chicago, IL
Facsimile: (312) 630-1566 Facsimile: (312) 630-1566
Attn: Commercial Loan Dept. Attn: Commercial Loan Dept.
- ----------------------------------------------------------------------------------------------------------------------------------
Cooperatieve Centrale 5.7142857000 5.7142857000 245 Park Avenue 245 Park Avenue
Raiffeisen-Boerenleenbank New York, NY 10167 New York, NY 10167
B.A. "Rabobank Nederland" Facsimile: (212) 916-7930 Facsimile: (212) 916-7930
New York Branch
- ----------------------------------------------------------------------------------------------------------------------------------
SunTrust Bank, Atlanta 5.7142857000 5.7142857000 25 Park Place 25 Park Place
Atlanta, GA 30302 Atlanta, GA 30302
Facsimile: (404) 724-3790 Facsimile: (404) 724-3790
Attn: Alma Sellers Attn: Alma Sellers
- ----------------------------------------------------------------------------------------------------------------------------------
Wachovia Bank 5.7142857000 5.7142857000 191 Peachtree Street 191 Peachtree Street
Atlanta, GA 30303 Atlanta, GA 30303
Facsimile: (404) 332-6408 Facsimile: (404) 332-6408
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ii -
<PAGE> 123
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
PERCENTAGES
-----------
TERM LOAN
COMMITMENT/TERM REVOLVING LOAN
NAME: LOANS: COMMITMENT: DOMESTIC OFFICE: LIBOR OFFICE:
- ----- ------ ----------- ---------------- -------------
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
First Union National Bank 5.0000000000% 5.0000000000% 301 S. College Street 301 S. College Street
Charlotte, NC 28288-0979 Charlotte, NC 28288-0979
Facsimile: (704) 374-2802 Facsimile: (704) 374-2802
Attn: Leneisha Neely Attn: Lekeisha Neely
- ------------------------------------------------------------------------------------------------------------------------------------
ABN Amro Bank N.V. 5.0000000000% 5.0000000000% 135 South LaSalle Street 135 South LaSalle Street
Suite 625 Suite 625
Chicago, IL 60674-9135 Chicago, IL 60674-9135
Facsimile No.: (312) 904-6893 Facsimile No.: (312) 904-6893
Attn: Loan Operations Attn: Loan Operations
- ------------------------------------------------------------------------------------------------------------------------------------
Generale Bank 5.0000000000% 5.0000000000% 520 Madison Avenue 520 Madison Avenue
New York Branch 3rd Floor 3rd Floor
New York, NY 10022 New York, NY 10022
Facsimile No.: (212) 750-9503 Facsimile No.: (212) 750-9503
Attn: Loans Admin. Attn: Loans Admin.
- ------------------------------------------------------------------------------------------------------------------------------------
Hibernia National Bank 3.5714286000% 3.5714286000% 313 Carondelet Street 313 Carondelet Street
New Orleans, LA 70130 New Orleans, LA 70130
Facsimile: 504-533-5344 Facsimile: 504-533-5344
- ------------------------------------------------------------------------------------------------------------------------------------
The Bank of New York 2.8571429000% 2.8571429000% One Wall Street One Wall Street
19th Floor 19th Floor
New York, NY 10286 New York, NY 10286
Attn: Central Division Attn: Central Division
- ------------------------------------------------------------------------------------------------------------------------------------
DG Bank Deutsche 2.8571429000% 2.8571429000% 609 Fifth Avenue 609 Fifth Avenue
Genossenschaftsbank New York, NY 10017 New York, NY 10017
Cayman Islands Branch Facsimile: (212) 745- Facsimile: (212) 745-
1556/1550 1556/1550
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- iii -
<PAGE> 124
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
PERCENTAGES
-----------
TERM LOAN
COMMITMENT/TERM REVOLVING LOAN
NAME: LOANS: COMMITMENT: DOMESTIC OFFICE: LIBOR OFFICE:
- ----- ------ ----------- ---------------- -------------
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
KBC Bank N.V. 2.8571429000% 2.8571429000% 125 West 55th Street 125 West 55th Street
New York, NY 10019 New York, NY 10019
Facsimile: (212) 956-5581 Facsimile: (212) 956-5581
Attn: Loan Department Attn: Loan Department
- ------------------------------------------------------------------------------------------------------------------------------------
The Long Term Credit Bank of 2.8571429000% 2.8571429000% 165 Broadway, 48th Floor 165 Broadway, 48th Floor
Japan, Ltd. New York, NY 10006 New York, NY 10006
Facsimile: (212) 335-4441 Facsimile: (212) 335-4441
- ------------------------------------------------------------------------------------------------------------------------------------
National City Bank 2.8571429000% 2.8571429000% 1111 W. 22nd, Suite 300 1111 W. 22nd, Suite 300
Oakbrook, IL 60521 Oakbrook, IL 60521
Facsimile: (630) 954-3135 Facsimile: (630) 954-3135
- ------------------------------------------------------------------------------------------------------------------------------------
The Sumitomo Bank, Limited 2.8571429000% 2.8571429000% 233 South Wacker Drive 233 South Wacker Drive
Suite 4800 Suite 4800
Chicago, IL 60606-6448 Chicago, IL 60606-6448
Facsimile: (312) 876-6430 Facsimile: (312) 876-6430
Attn: John Kemperl Attn: John Kemperl
Mary Coseo Mary Coseo
- ------------------------------------------------------------------------------------------------------------------------------------
Firstrust Bank 1.4285714000% 1.4285714000 15 E. Ridge Pike/4th 15 E. Ridge Pike/4th
Conshohocken, PA 19428 Consho Locken, PA 19428
Facsimile: 610-238-5066 Facsimile: 610-238-5066
Attn: Kent Nelson Attn: Kent Nelson
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- iv -
<PAGE> 125
SCHEDULE IV
EXISTING LETTERS OF CREDIT
--------------------------
<TABLE>
<CAPTION>
ISSUER: NORTHERN TRUST
- ------------------------------------------------------------------------------------------------------------------------------------
LETTER OF CREDIT BENEFICIARY L/C DOLLAR RENEWAL EXPIRATION L/C
NUMBER AMOUNT NOTIFICATION DATE TERMS
DATE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
S269658 Burlington Northern Santa Fe Railway $10,000.00 10/26/98 12/31/99 Evergreen
Co.
- ------------------------------------------------------------------------------------------------------------------------------------
S243004 Continental Casualty Company $1,095,000.00 10/27/98 1/1/99 Evergreen
- ------------------------------------------------------------------------------------------------------------------------------------
S245281 Continental Casualty Company $1,202,000.00 10/27/98 1/1/99 Evergreen
- ------------------------------------------------------------------------------------------------------------------------------------
S250172 Continental Casualty Company $1,425,000.00 10/26/98 12/31/99 Evergreen
- ------------------------------------------------------------------------------------------------------------------------------------
S254299 Continental Casualty Company $1,450,000.00 10/27/98 1/1/99 Evergreen
- ------------------------------------------------------------------------------------------------------------------------------------
S257645 Continental Casualty Company $1,734,000.00 10/27/98 1/1/99 Evergreen
- ------------------------------------------------------------------------------------------------------------------------------------
S261337 Continental Casualty Company $1,850,000.00 10/24/98 1/1/99 Evergreen
- ------------------------------------------------------------------------------------------------------------------------------------
S245282 Transportation Insurance Company $795,000.00 10/27/98 1/1/99 Evergreen
- ------------------------------------------------------------------------------------------------------------------------------------
S254296 Transportation Insurance Company $1,030,000.00 10/27/98 1/1/99 Evergreen
- ------------------------------------------------------------------------------------------------------------------------------------
S250171 Transportation Insurance Company $1,155,000.00 10/26/97 12/31/99 Evergreen
- ------------------------------------------------------------------------------------------------------------------------------------
S257646 Transportation Insurance Company $2,500,000.00 10/27/98 1/1/99 Evergreen
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- i -
<PAGE> 126
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
S261336 Transportation Insurance Company $2,755,000.00 11/27/98 1/1/99 Evergreen
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL DOLLAR AMOUNT $17,001,000.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
ISSUER: THE BANK OF NOVA SCOTIA
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
LETTER OF CREDIT BENEFICIARY L/C DOLLAR RENEWAL EXPIRATION L/C
NUMBER AMOUNT NOTIFICATION DATE TERMS
DATE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
2119/96/80085 First Trust of Illinois, Chicago Illinois -- $3,823,973.00 NONE. 02/15/99 NA
Village of Alsip
- -------------------------------------------------------------------------------------------------------------------------------
2120/96/80085 First Trust of Illinois, Chicago Illinois -- $1,014,628.00 NONE. 02/15/99 NA
County of Summit
- -------------------------------------------------------------------------------------------------------------------------------
2121/96/80085 First Trust of Illinois, Chicago Illinois -- $571,047.00 NONE. 02/15/99 NA
Homewood AL
- -------------------------------------------------------------------------------------------------------------------------------
2126/96/80085 First Citizens Bank & Trust Co. Raleigh, $4,137,000.00 NONE. 04/25/99 NA
NC -- Lehigh County
- -------------------------------------------------------------------------------------------------------------------------------
2122/96/80085 Fort Wayne National Bank, Fort Wayne, $514,962.00 NONE. 02/15/99 NA
IN -- Evansville, IN
- -------------------------------------------------------------------------------------------------------------------------------
2133/96/80085 United States Fire Insurance Co. -- $100,000.00 Auto renew 30 06/04/99 NA
Morristown, NJ days prior to
expiry date.
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ii -
<PAGE> 127
<TABLE>
<S> <C>
- --------------------------------------------------------------------------------
TOTAL DOLLAR AMOUNT: THE BANK OF NOVA SCOTIA: $ 10,161,610.00
- --------------------------------------------------------------------------------
TOTAL DOLLAR AMOUNT (NORTHERN TRUST & THE BANK OF $ 27,162,610.00
NOVA SCOTIA):
- --------------------------------------------------------------------------------
</TABLE>
- iii -
<PAGE> 128
EXHIBIT A-1
REVOLVING NOTE
$ , 1998
_______________________ ____________ ___
FOR VALUE RECEIVED, the undersigned, KEEBLER FOODS COMPANY, a Delaware
corporation (the "BORROWER"), promises to pay to the order of ________ (the
"LENDER") on the Stated Maturity Date for Revolving Loans the principal sum of
_______ DOLLARS ($______ ) or, if less, the aggregate unpaid principal amount of
all Revolving Loans made by the Lender pursuant to the Credit Agreement, dated
as of September 28, 1998 (as amended, supplemented, amended and restated, or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among the
Borrower, The Bank of Nova Scotia, as Administrative Agent, the various
financial institutions as are, or may from time to time become, parties thereto
and The First National Bank of Chicago, as Syndication Agent. Unless otherwise
defined, terms used in this Note have the meanings provided in the Credit
Agreement.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds to
the account designated by the Administrative Agent pursuant to the Credit
Agreement.
This Note is one of the Revolving Notes referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a description of the security for this Note and for a statement of the terms
and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
<PAGE> 129
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
KEEBLER FOODS COMPANY
By_____________________________
Title:
-2-
<PAGE> 130
REVOLVING LOANS AND PRINCIPAL PAYMENTS
<TABLE>
<CAPTION>
==============================================================================================
Amount of Amount of Unpaid Principal
Revolving Principal Balance
Loan Made Interest Repaid
Period
---------------- (If Ap- ----------------- -----------------
Alternate LIBO plic- Alternate LIBO Alternate LIBO Notation
Date Base Rate Rate able) Base Rate Rate Base Rate Rate Total Made By
====== ========== ===== ========= =========== ===== ========== ====== ========== =============
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
====== ---------- ----- --------- ----------- ----- ---------- ------ ---------- =============
====== ---------- ----- --------- ----------- ----- ---------- ------ ---------- =============
====== ---------- ----- --------- ----------- ----- ---------- ------ ---------- =============
====== ---------- ----- --------- ----------- ----- ---------- ------ ---------- =============
====== ---------- ----- --------- ----------- ----- ---------- ------ ---------- =============
====== ---------- ----- --------- ----------- ----- ---------- ------ ---------- =============
====== ---------- ----- --------- ----------- ----- ---------- ------ ---------- =============
====== ---------- ----- --------- ----------- ----- ---------- ------ ---------- =============
====== ========== ===== ========= =========== ===== ========== ====== ========== =============
====== ========== ===== ========= =========== ===== ========== ====== ========== =============
</TABLE>
-3-
<PAGE> 131
EXHIBIT A-2
TERM NOTE
$ , 1998
___________ _________ ___
FOR VALUE RECEIVED, the undersigned, KEEBLER FOODS COMPANY, a Delaware
corporation (the "BORROWER"), promises to pay to the order of _________ (the
"LENDER") the principal sum of __________ DOLLARS ($________ ) or, if less, the
aggregate unpaid principal amount of all Term Loans made by the Lender pursuant
to the Credit Agreement, dated as of September 28, 1998 (as so amended,
supplemented, amended and restated, or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among the Borrower, The Bank of Nova Scotia, as
Administrative Agent, the various financial institutions as are, or may from
time to time become, parties thereto and The First National Bank of Chicago, as
Syndication Agent, payable in installments as set forth in the Credit Agreement,
with a final installment due and payable on the Stated Maturity Date for Term
Loans. Unless otherwise defined, terms used herein have the meanings provided in
the Credit Agreement.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds to
the account designated by the Administrative Agent pursuant to the Credit
Agreement.
This Note is one of the Term Notes referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a description of the security for this Note and for a statement of the terms
and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
<PAGE> 132
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
KEEBLER FOODS COMPANY
By:
________________________
Title:
-2-
<PAGE> 133
<TABLE>
<CAPTION>
TERM LOANS AND PRINCIPAL PAYMENTS
================================================================================================================
Amount of Term Interest Amount of Principal Unpaid Principal
Loan Made Period Repaid Balance
-------------------- (If Ap- ------------------------------------------
Alternate LIBO plic- Alternate LIBO Alternate LIBO Notation
Date Base Rate Rate able) Base Rate Rate Base Rate Rate Total Made By
================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
================================================================================================================
</TABLE>
-3-
<PAGE> 134
EXHIBIT A-3
SWING LINE NOTE
$ , 1998
__________________ _______________
FOR VALUE RECEIVED, the undersigned, KEEBLER FOODS COMPANY, a Delaware
corporation (the "BORROWER"), promises to pay to the order of THE BANK OF NOVA
SCOTIA (the "LENDER") on the Stated Maturity Date for Swing Line Loans the
principal sum of ________ DOLLARS ($_____) or, if less, the aggregate unpaid
principal amount of all Swing Line Loans made by the Lender pursuant to the
Credit Agreement, dated as of September 28, 1998 (as so amended, supplemented,
amended and restated or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among the Borrower, The Bank of Nova Scotia, as Administrative
Agent, the various financial institutions as are, or may from time to time
become, parties thereto and The First National Bank of Chicago, as Syndication
Agent. Unless otherwise defined, terms used in this Note have the meanings
provided in the Credit Agreement.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds to
the account designated by the Lender pursuant to the Credit Agreement.
This Note is the Swing Line Note referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a description of the security for this Note and for a statement of the terms
and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
<PAGE> 135
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
KEEBLER FOODS COMPANY
By
_______________________
Title:
-2-
<PAGE> 136
SWING LINE LOANS AND PRINCIPAL PAYMENTS
<TABLE>
<CAPTION>
=============================================================================================================================
Amount of Swing Amount of Principal Outstanding Principal
Date Line Loan Payment Balance Notation Made By
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
=============================================================================================================================
</TABLE>
-3-
<PAGE> 137
EXHIBIT A-4
REGISTERED NOTE
THIS REGISTERED NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW.
TRANSFERS OF THIS REGISTERED NOTE MUST BE RECORDED IN THE REGISTER
MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH
CREDIT AGREEMENT.
$ , 1997
_______________ _______________
FOR VALUE RECEIVED, the undersigned, KEEBLER FOODS COMPANY, a Delaware
corporation (the "BORROWER"), promises to pay to the order of _________ (the
"LENDER") the principal sum of __________ DOLLARS ($____) or, if less, the
aggregate unpaid principal amount of all Term Loans made by the Lender pursuant
to the Credit Agreement, dated as of September 28, 1998 (as so amended,
supplemented, amended and restated, or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among the Borrower, The Bank of Nova Scotia, as
Administrative Agent, the various financial institutions as are, or may from
time to time become, parties thereto and The First National Bank of Chicago, as
Syndication Agent, payable in installments as set forth in the Credit Agreement,
with a final installment due and payable on the Stated Maturity Date. Unless
otherwise defined, terms used herein have the meanings provided in the Credit
Agreement.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds to
the account designated by the Administrative Agent pursuant to the Credit
Agreement.
This Registered Note is one of the Notes referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a description of the security for this Registered Note and for a statement
of the terms and conditions on which the Borrower is permitted and required to
make prepayments and repayments of principal of the Indebtedness evidenced by
this Registered Note and on which such Indebtedness may be declared to be
immediately due and payable.
<PAGE> 138
As provided in Section 10.11.1 of the Credit Agreement, this Registered
Note and the Obligation(s) evidenced hereby may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer of this Registered Note and the Obligation(s) evidenced hereby on the
Register described in clause (b) of Section 2.8 of the Credit Agreement. Any
assignment or transfer of all or part of such Obligations(s) and this Registered
Note evidencing the same shall be registered on the Register only upon surrender
for registration of assignment or transfer of this Registered Note evidencing
such Obligations(s), duly endorsed by (or accompanied by a written instrument of
assignment or transfer duly executed by) the Registered Noteholder hereof, and
thereupon one or more new Registered Note(s) in the same aggregate principal
amount shall be issued to the designated Assignee Lender, and this Registered
Note shall be returned by the Administrative Agent to the Borrower marked
"canceled". Prior to the due presentment for registration of assignment or
transfer of this Registered Note, the Borrower and the Administrative Agent
shall treat the Person in whose name such Obligation(s) and this Registered
Note(s) evidencing the same is registered as the owner thereof for the purpose
of receiving all payments thereon and for all other purposes, notwithstanding
any notice to the contrary. This Registered Note may not be exchanged for
promissory notes that are not Registered Notes.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
KEEBLER FOODS COMPANY
By: ______________________________
Title:
2
<PAGE> 139
TERM LOANS AND PRINCIPAL PAYMENTS
<TABLE>
<CAPTION>
===========================================================================================================================
Amount of Amount of Unpaid
Term Loan Principal Principal
Made Repaid Balance
----------------- -------------- ----------------
Base LIBO Interest Period Base LIBO Base LIBO Notation
Date Rate Rate (If Applicable) Rate Rate Rate Rate Total Made By
===========================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
===========================================================================================================================
</TABLE>
3
<PAGE> 140
EXHIBIT B-1
BORROWING REQUEST
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
Attention:
________________
KEEBLER FOODS COMPANY
_____________________
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to Section 2.3 of
the Credit Agreement, dated as of September 28, 1998 (as so amended, modified,
amended and restated or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among Keebler Foods Company, a Delaware corporation (the
"BORROWER"), the various financial institutions as are, or may from time to time
become, parties thereto (the "LENDERS"), The Bank of Nova Scotia, as
Administrative Agent and First Chicago NBD, as Syndication Agent. Unless
otherwise defined herein or the context otherwise requires, terms used herein
have the meanings provided in the Credit Agreement.
The Borrower hereby requests that a [Revolving Loan] [Term Loan] [Swing
Line Loan] be made in the aggregate principal amount of $_____ on ______ , ____
as a [LIBO Rate Loan having an Interest Period of _____ months] [Base Rate
Loan].
The Borrower hereby acknowledges that, pursuant to Section 5.2.2 of the
Credit Agreement, each of the delivery of this Borrowing Request and the
acceptance by the Borrower of the proceeds of the Loans requested hereby
constitute a representation and warranty by the Borrower that, on the date of
such Loans, and before and after giving effect thereto and to the application of
the proceeds therefrom, all statements set forth in Section 5.2.1 are true and
correct in all material respects.
The Borrower agrees that if prior to the time of the Borrowing
requested hereby, any matter certified to herein by it will not be true and
correct in all material respects at such time as if then made, it will
immediately so notify the Administrative Agent. Except to the extent, if any,
that prior to the time of the Borrowing requested hereby, the Administrative
<PAGE> 141
Agent shall receive written notice to the contrary from the Borrower, each
matter certified to herein shall be deemed once again to be certified as true
and correct in all material respects at the date of such Borrowing as if then
made.
Please wire transfer the proceeds of the Borrowing to the accounts of
the following persons at the financial institutions indicated respectively:
<TABLE>
<CAPTION>
Person to be Paid
Amount to be ------------------------- Name, Address, etc.
Transferred Name Account No. of Transferee Lender
- ----------- ---- ----------- --------------------
<S> <C> <C> <C>
$_________ ____________ ____________ __________________
__________________
Attention:________
$_________ ____________ ____________ __________________
__________________
Attention:________
Balance of The Borrower ____________ __________________
such proceeds __________________
Attention:________
</TABLE>
-2-
<PAGE> 142
IN WITNESS WHEREOF, the undersigned has caused this request to be
executed and delivered by its duly Authorized Officer this___ day of________,
_______.
KEEBLER FOODS COMPANY
By:____________________
Title:
-3-
<PAGE> 143
EXHIBIT B-2
ISSUANCE REQUEST
_____________ __, ____
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
Attention:
__________________
KEEBLER FOODS COMPANY
_____________________
Gentlemen and Ladies:
This Issuance Request is delivered to you, in your capacity as
Administrative Agent, in connection with Section 2.6 of the Credit Agreement,
dated as of September __, 1998 (as amended, supplemented, amended and restated
or otherwise modified from time to time, the "CREDIT AGREEMENT"), among Keebler
Foods Company, a Delaware corporation, the various financial institutions as are
or may from time to time become, parties thereto (the "LENDERS"), The Bank of
Nova Scotia, as Administrative Agent and The First National Bank of Chicago, as
Syndication Agent. Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the Credit Agreement.
*The undersigned hereby requests that [INSERT NAME OF ISSUER] [extend
the Stated Expiry Date of Letter of Credit No. ______, issued on ___________ to
- -------------
* To be delivered not less than three nor more than ten Business Days
prior to the date of issuance of the Letter of Credit; to be delivered
at least 3 Business Days but not more than 10 Business Days prior to
the Stated Expiry Date for extensions.
<PAGE> 144
_____________] [issue a [standby] [documentary] Letter of Credit on ____________
in the aggregate Stated Amount of $__________].
The beneficiary of [the requested] [such] Letter of Credit [will be]
[is] *______________________ , and such Letter of Credit [will have] [has] a
Stated Expiry Date (as defined therein) of the earlier of **___________ and the
Letter of Credit Commitment Termination Date.
The undersigned hereby acknowledges that, pursuant to Section 5.2.2 of
the Credit Agreement, each of the delivery of this Issuance Request and the
acceptance of any proceeds of or benefits by the undersigned of the Letter of
Credit issued in accordance herewith, constitute a representation and warranty
by the undersigned that, on the date of delivery of this Issuance Request, and
before and after giving effect to the application of any proceeds or benefits of
the Letter of Credit requested hereby, all statements set forth in Section 5.2.1
of the Credit Agreement are true and correct in all material respects.
The undersigned agrees that if, prior to the time of the issuance of
the Letter of Credit requested hereby, any matter certified to herein by it will
not be true and correct in all material respects at such time as if then made,
it will immediately so notify the Administrative Agent.
__________________________________
* Insert name and address of beneficiary.
** Insert a date not to exceed one year from the date of initial issuance
or of extension, as appropriate.
-2-
<PAGE> 145
IN WITNESS WHEREOF, the undersigned has caused this request to be
executed and delivered by its duly Authorized Officer this ____ day of ________.
KEEBLER FOODS COMPANY
By_______________________________
Title:
-3-
<PAGE> 146
EXHIBIT C
CONTINUATION/CONVERSION NOTICE
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
Attention:
________________
KEEBLER FOODS COMPANY
Gentlemen and Ladies:
This Continuation/Conversion Notice is delivered to you pursuant to
Section 2.4 of the Credit Agreement, dated as of September____, 1998 (as so
amended, modified, amended and restated or otherwise modified from time to time,
the "CREDIT AGREEMENT"), among Keebler Foods Company, a Delaware corporation
(the "BORROWER"), the various financial institutions as are, or may from time to
time become, parties thereto (the "LENDERS"), The Bank of Nova Scotia, as
Administrative Agent and The First National Bank of Chicago, as Syndication
Agent. Unless otherwise defined herein or the context otherwise requires, terms
used herein have the meanings provided in the Credit Agreement.
The Borrower hereby requests that on ____________,
(1) $__________ of the presently outstanding principal
amount of the [Term Loans] [Revolving Loans] originally made
on _________, [and $ _________ of the presently outstanding
principal amount of the [Term Loans] [Revolving Loans] originally
made on ___________],
(2) and all presently being maintained as 1/[Base Rate
Loans] [LIBO Rate Loans],
(3) be [converted into] [continued as],
___________________________
1/ Select appropriate interest rate option.
<PAGE> 147
(4) [LIBO Rate Loans having an Interest Period of _____
months] [Base Rate Loans].
The Borrower hereby:
(a) certifies and warrants that no Default has occurred
and is continuing; and
(b) agrees that if prior to the time of such
continuation or conversion any matter certified to herein by it will
not be true and correct at such time as if then made, it will
immediately so notify the Administrative Agent.
Except to the extent, if any, that prior to the time of the continuation or
conversion requested hereby the Administrative Agent shall receive written
notice to the contrary from the Borrower, each matter certified to herein shall
be deemed to be certified at the date of such continuation or conversion as if
then made.
The Borrower has caused this Continuation/Conversion Notice to be
executed and delivered, and the certification and warranties contained herein to
be made, by its Authorized Officer this ___day of _________.
KEEBLER FOODS COMPANY
By:________________________
Title:
-2-
<PAGE> 148
EXHIBIT D
LENDER ASSIGNMENT AGREEMENT
To: KEEBLER FOODS COMPANY
677 Larch Avenue
Elmhurst, Illinois 60126
Attention: E. Nichol McCully
To: THE BANK OF NOVA SCOTIA,
as the Administrative Agent
One Liberty Plaza
New York, New York 10006
Attention:
_______________
KEEBLER FOODS COMPANY
Gentlemen and Ladies:
We refer to clause (d) of Section 10.11.1 of the Credit Agreement,
dated as of September 28, 1998 (as amended, supplemented, amended and restated,
or otherwise modified from time to time, the "CREDIT AGREEMENT"), among Keebler
Foods Company, a Delaware corporation (the "BORROWER"), the various financial
institutions as are, or may from time to time become, parties thereto (the
"LENDERS"), The Bank of Nova Scotia, as Administrative Agent and The First
National Bank of Chicago, as Syndication Agent. Unless otherwise defined herein
or the context otherwise requires, terms used herein have the meanings provided
in the Credit Agreement.
As of ________ __, ____ (the "ASSIGNMENT DATE"), _____________ (the
"ASSIGNOR") irrevocably sells, transfers, conveys and assigns, without recourse,
representation or warranty (except as expressly set forth herein), to
_____________ (the "ASSIGNEE") and the Assignee irrevocably purchases from the
Assignor ___% (the "ASSIGNED PORTION") of the Loans and Commitments of the
Assignor such that after giving effect to the foregoing assignment and
delegation, the Assignor's and the Assignee's Percentages for the purposes of
the Credit Agreement will be as set forth on SCHEDULE I hereto.
<PAGE> 149
[Add paragraph dealing with accrued interest and fees with respect to
the Loans assigned.]
The Assignee hereby acknowledges and confirms that it has received a
copy of the Credit Agreement and the exhibits related thereto, together with
copies of the documents which were required to be delivered under the Credit
Agreement as a condition to the making of the Loans thereunder. The Assignee
further confirms and agrees that in becoming a Lender and in making its
Commitments and Loans under the Credit Agreement, the Assignee has performed its
own analysis of the creditworthiness and financial condition of the Borrower and
the other Obligors and such actions have and will be made without recourse to,
or representation or warranty by the Administrative Agent.
The Assignor represents and warrants that it is legally
authorized to enter into and deliver this agreement and represents that it is
the legal and beneficial owner of the Assigned Portion. Except as set forth in
the previous sentence, the Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made pursuant to or in connection with this agreement, or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this agreement, the Credit Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto, including the
financial condition of the Borrower or any of its Subsidiaries or the
performance or observance by any Lender of any of its obligations under the
Credit Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto or thereto. The Assignee represents and warrants that
it is legally authorized to enter into and deliver this agreement and confirms
that it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 7.1.1 of the
Credit Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
agreement. In addition, the Assignee independently and without reliance upon the
Assignor, the Administrative Agent or any other Agent or Lender, and based on
such documents and information as it shall deem appropriate at the time, shall
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement, the other Loan Documents and the other instruments and
documents delivered in connection therewith.
Except as otherwise provided in the Credit Agreement,
effective as of the date of acceptance hereof by the Administrative Agent
(a) the Assignee
(i) shall be deemed automatically to have become a
party to the Credit Agreement, have all the rights and
obligations of a "Lender" under the Credit Agreement and the
other Loan Documents as if it were an original signatory
thereto to the extent specified in the second paragraph
hereof;
-2-
<PAGE> 150
(ii) agrees to be bound by the terms and conditions
set forth in the Credit Agreement and the other Loan
Documents as if it were an original signatory thereto; and
(b) the Assignor shall be released from its obligations
under the Credit Agreement and the other Loan Documents to the extent
specified in the second paragraph hereof.
The Assignor and the Assignee hereby agree that the [Assignor]
[Assignee] will pay to the Administrative Agent the processing fee referred to
in Section 10.11.1 of the Credit Agreement upon the delivery hereof.
The Assignee hereby advises each of you that set forth in SCHEDULE I
hereto are its administrative details with respect to the assigned Loans and
Commitments and requests the Administrative Agent to acknowledge receipt of this
document.
The Assignee agrees to furnish the tax form required by the second to
last sentence of Section 4.6 (if so required) of the Credit Agreement no later
than the date of acceptance hereof by the Administrative Agent.
This Agreement may be executed by the Assignor and Assignee in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
-3-
<PAGE> 151
[THE ASSIGNOR],
as Assignor
By:________________________________________
Title:
[THE ASSIGNEE],
as Assignee
By:________________________________________
Title:
Accepted and Acknowledged
this __ day of _______, ____
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:______________________
Title:
KEEBLER FOODS CORPORATION
By:______________________
Title:
-4-
<PAGE> 152
SCHEDULE I
LENDER INFORMATION
<TABLE>
<CAPTION>
LENDER PERCENTAGE DOMESTIC OFFICE LIBOR OFFICE
______ __________ _______________ ____________
<S> <C> <C> <C>
_______________, Revolving Loans, participations ON FILE WITH ON FILE WITH
as Assignor in Letters of Credits Outstandings, ADMINISTRATIVE ADMINISTRATIVE
and Revolving Loan Commitment..... ______________% AGENT AGENT
Term Loans........................ ______________%
_______________, Revolving Loans, participations [ADDRESS] [ADDRESS]
as Assignee in Letters of Credits Outstandings, Fax:______________ Fax:______________
and Revolving Loan Commitment..... ______________% Attention:________ Attention:________
Term Loans........................ ______________%
</TABLE>
Wiring Instructions for the Assignee:
_______________
_______________
_______________
-5-
<PAGE> 153
EXHIBIT F
CLOSING DATE CERTIFICATE
KEEBLER FOODS COMPANY
This certificate is delivered pursuant to the Credit Agreement, dated
as of September 28, 1998 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among Keebler
Foods Company, a Delaware corporation (the "BORROWER"), the various financial
institutions as are or may become parties thereto (collectively, the "LENDERS"),
The Bank of Nova Scotia, as Administrative Agent and The First National Bank of
Chicago, as Syndication Agent. Unless otherwise defined herein or the context
otherwise requires, terms used herein or in any of the attachments hereto have
the meanings provided in the Credit Agreement.
The undersigned hereby certifies, represents and warrants that, as of
the Closing Date:
1. CONSUMMATION OF ACQUISITION. All actions necessary to consummate the
Acquisition have been taken in accordance with all applicable laws, and the
Acquisition has been consummated for an aggregate purchase price (excluding
related fees and expenses) not to exceed $450,000,000 (as such amount may be
adjusted pursuant to the terms of the Purchase Agreement), with the amount of
related fees and expenses not to exceed $10,000,000.
2. ACQUISITION DOCUMENTS. Attached hereto as ANNEX I is a fully
executed copy of the Purchase Agreement and, to the extent requested by the
Administrative Agent, all other documents and instruments delivered in
connection with the consummation of the Acquisition that are required to be
delivered pursuant to the terms of the Purchase Agreement. The Purchase
Agreement is in full force and effect and has not been modified or waived in any
material respect, nor has there been any forbearance to exercise any material
rights with respect to any of the terms or provisions relating to the conditions
to the consummation of the Acquisition in the Purchase Agreement.
3. FINANCIAL INFORMATION, ETC. Attached hereto as ANNEX II are:
(a) the (i) unqualified audited consolidated financial
statements of President and its Subsidiaries for the 1995, 1996, 1997
Fiscal Years, and (ii) the unaudited consolidated balance sheet and
income statements of President and its Subsidiaries for the period
ended June 30, 1998, prepared on a basis substantially comparable to
the basis used to prepare the audited financial statements of President
and its Subsidiaries referred to in CLAUSE (a)(i);
(b) a PRO FORMA consolidated balance sheet to the Borrower and
its Subsidiaries, as of the Closing Date (the "PRO FORMA BALANCE
SHEET"), certified by the chief financial or accounting Authorized
Officer of the Borrower, giving effect to the consummation of
<PAGE> 154
the Acquisition and all the transactions contemplated by this Agreement
and reflecting the proposed capital structure of the Borrower; and
(c) PRO FORMA consolidated projections of the Borrower and its
Subsidiaries (including President and its Subsidiaries).
4. PAYMENT OF OUTSTANDING INDEBTEDNESS, ETC. All Indebtedness
identified in Item 7.2.2 of the Disclosure Schedule to the Credit Agreement,
together with all interest, all prepayment premiums and other amounts due and
payable with respect thereto, have been paid in full (including, to the extent
necessary, from proceeds of the initial Credit Extensions) or to the extent not
pre-paid are permitted to remain outstanding under this Agreement, and all Liens
securing payment of any such Indebtedness have been released (or to the extent
not released are permitted to remain outstanding under this Agreement) and (if
applicable) attached hereto as ANNEX III are executed Uniform Commercial Code
Form UCC-3 termination statements or other instruments as may be suitable or
appropriate in connection therewith Attached hereto as ANNEX IV is each "Payout
Letter" executed in conjunction with the payment of such Indebtedness.
5. LITIGATION. There exists no pending or threatened material
litigation, proceedings or investigation contesting the Acquisition or the
Credit Agreement, or which could reasonably be expected to have a material
adverse effect on the financial condition, operations, assets, business,
properties or prospects of the Borrower and its Subsidiaries, taken as a whole
(which shall be deemed to include President and its Subsidiaries).
6. MATERIAL ADVERSE CHANGE. There has been no material adverse change
in the financial condition, operations, assets, business, properties, or
prospects of the Borrower and its Subsidiaries, taken as a whole (which shall be
deemed to include President and its Subsidiaries) since January 3, 1998.
7. GOVERNMENTAL APPROVAL, ETC. All material governmental and third
party approvals necessary or advisable in connection with the Acquisition, the
financing contemplated under the Credit Agreement and the continuing operations
of the Borrower, President and their respective Subsidiaries have been obtained
and are in full force and effect, and all applicable waiting periods have
expired without any action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose adverse conditions on the
Acquisition or the financing thereof.
8. TRUSTEE LETTER; CALCULATION OF CONSOLIDATED COVERAGE RATIO. The
Borrower has delivered to the trustee under the Indenture a notice, a copy of
which is attached hereto as ANNEX V, to the effect that this Agreement is the
"Credit Agreement" and that the Administrative Agent is the "Credit Agent" for
all purposes under (and as such terms are defined in) the Indenture. Attached
hereto as ANNEX VI is a certificate from an Authorized Officer of the Borrower
evidencing the calculation of the Consolidated Coverage Ratio (under and as
defined in the Indenture) after giving effect to the Credit Extensions made on
the Closing Date, together with a summary of how the Borrower is designating the
Credit Extensions under Section 3.8 of the
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Indenture, and demonstrating that all Credit Extensions made on the Closing Date
shall constitute "Senior Indebtedness" (as defined in the Indenture).
9. CLOSING FEES, EXPENSES, ETC. The Administrative Agent has received
for its own account, or for the account of each Lender, as the case may be, all
fees, costs and expenses due and payable pursuant to Sections 3.3 of the Credit
Agreement and 10.3 of the Credit Agreement, then invoiced.
10. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both before and after
giving effect to the Credit Extension to be made on the date hereof:
(a) the representations and warranties set forth in Article VI
of the Credit Agreement and in each other Loan Document shall, in each
case, be true and correct in all material respects with the same effect
as if then made (unless stated to relate solely to an earlier date, in
which case such representations and warranties shall be true and
correct in all material respects as of such earlier date);
(b) the sum of (x) the aggregate outstanding principal amount
of all Revolving Loans and Swing Line Loans and (y) all Letter of
Credit Outstandings does not exceed the Revolving Loan Commitment
Amount; and
(c) no Default has occurred and is continuing.
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<PAGE> 156
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
executed and delivered, and the certification, representations and warranties
contained herein to be made, by its duly Authorized Officer this 28th day of
September, 1998.
KEEBLER FOODS COMPANY
By: ______________________________________
Title:
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<PAGE> 157
EXHIBIT F
COMPLIANCE CERTIFICATE
KEEBLER FOODS COMPANY
This Compliance Certificate is delivered pursuant to clause (c) of Section
7.1.1 of the Credit Agreement, dated as of September 28, 1998 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among Keebler Foods Company, a Delaware corporation (the
"BORROWER"), the various financial institutions as are or may become parties
thereto (collectively, the "LENDERS"), The Bank of Nova Scotia, as
Administrative Agent, and The First National Bank of Chicago, as Syndication
Agent. Unless otherwise defined herein or the context otherwise requires, terms
used herein or in any of the attachments hereto have the meanings provided in
the Credit Agreement.
The Borrower hereby certifies, represents and warrants that for the period
(the "COMPUTATION PERIOD") commencing on ________ _____, and ending on
___________ (such latter date being the "COMPUTATION DATE") no Default had
occurred and was continuing. The Borrower hereby further certifies, represents
and warrants that as of the Computation Date:
(a) The Debt to EBITDA ratio was ________:1, as computed on ATTACHMENT
1 hereto. The maximum Debt to EBITDA ratio permitted pursuant to clause (a)
of Section 7.2.4 of the Credit Agreement on the Computation Date was
________:1.
(b) The Cash Flow Coverage Ratio was ________:1, as computed on
ATTACHMENT 2 hereto. The minimum Cash Flow Coverage Ratio permitted
pursuant to clause (b) of Section 7.2.4 of the Credit Agreement on the
Computation Date was ________:1.
IN WITNESS WHEREOF, the Borrower has caused this Compliance Certificate to
be executed and delivered, and the certification and warranties contained herein
to be made, by its chief financial Authorized Officer on _______________.
KEEBLER FOODS COMPANY
By________________________
Title:
<PAGE> 158
Attachment 1
(to __/__/__ Compliance
Certificate)
DEBT TO EBITDA RATIO
____________________
on the Computation Date
<TABLE>
<S> <C> <C>
1. Debt: as of the Computation Date, Indebtedness of the
Borrower and its Subsidiaries to the extent reflected on a
consolidated balance sheet of the Borrower determined in
accordance with GAAP (but net, for so long as no Revolving
Loans or Swing Line Loans are outstanding on the Computation
Date, of cash and Cash Equivalent Investments of the Borrower
and its Subsidiaries on the Computation Date) and which shall
also include Indebtedness of the Borrower and its Subsidiaries
of the type referred to in clauses (b) (without duplication of
letters of credit issued to support obligations under industrial
development revenue bonds to the extent the obligations arising
under such bonds are otherwise included in this definition), and
exlusive of documentary trade letters of credit) and (f) of the
definition of "Indebtedness" or any Contingent Liability in
respect thereof................................................. $___________
2. *EBITDA: the sum (without duplication) of:
(a) Net Income: the net income of the Borrower and its
Subsidiaries for such period on a consolidated basis,
excluding extraordinary gains............................. $___________
(b) the amount deducted, in determining Net Income,
representing amortization................................. $___________
(c) the amount deducted, in determining Net Income, of all
income taxes (whether paid or deferred) of the Borrower
and its Subsidiaries...................................... $___________
</TABLE>
_________________________
* Computed for the period consisting of such Fiscal Quarter and
each of the three immediately preceding Fiscal Quarters.
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<PAGE> 159
<TABLE>
<S> <C> <C>
(d) Interest Expense: the aggregate consolidated cash
interest expense (net of interest income) of the
Borrower and its Subsidiaries for such Fiscal Quarters,
as determined in accordance with GAAP, including (i)
the portion of any payments made in respect of
Capitalized Lease Liabilities allocable to interest
expense and (ii) interest (or other fees in the nature
of interest or discount accrued and paid or payable in
cash for such Fiscal Quarter) in respect of the
Permitted Receivables Transaction......................... $___________
(e) the amount deducted, in determining Net Income,
representing depreciation of assets....................... $___________
(f) an amount equal to the amount of all extraordinary, non-
recurring non-cash charges deducted in arriving at Net
Income.................................................... $___________
(g) an amount equal to the amount of all extraordinary, non-
recurring non-cash credits included in arriving at Net
Income.................................................... $___________
(h) EBITDA: the sum of ITEMS 2(a) through 2(f) minus
ITEM 2(g)................................................. $___________
3. DEBT TO EBITDA RATIO: ratio of ITEM 1 to ITEM 2(h)....... : 1.0
___________
</TABLE>
1-2
<PAGE> 160
Attachment 2
(to __/__/__ Compliance
Certificate)
*CASH FLOW COVERAGE RATIO
_________________________
on the Computation Date
<TABLE>
<S> <C> <C>
1. EBITDA (see ITEM 2(h) of ATTACHMENT 1)........................... $
___________
2. Capital Expenditures: the sum (without duplication) of:
(a) the aggregate amount of all expenditures of the Borrower
and its Subsidiaries for fixed or capital assets made during
such period which, in accordance with GAAP, would be
classified as capital expenditures........................ $
___________
(b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period............................... $
___________
(c) the sum of ITEMS 2(a) and 2(b)............................ $
___________
3. ITEM 1 minus ITEM 2(c)........................................... $
___________
4. Interest Expense (see ITEM 2(d) of ATTACHMENT 1)**............... $
___________
5. CASH FLOW COVERAGE RATIO: ratio of ITEM 3 to ITEM 4............. : 1.0
_____
</TABLE>
- --------------------------
* As of the close of any Fiscal Quarter, the ratio computed for the period
consisting of such Fiscal Quarter and each of the three immediately
prior Fiscal Quarters with respect to the Borrower and its Subsidiaries
on a consolidated basis.
** In computing the Cash Flow Coverage Ratio for:
(a) the fourth Fiscal Quarter of the 1998 Fiscal Year, the amount set
forth in ITEM 4 above shall equal the amount set forth in ITEM 4 for such
Fiscal Quarter multiplied by four;
(b) the first Fiscal Quarter of the 1999 Fiscal Year, the amount set
forth in ITEM 4 above shall equal the amount set forth in ITEM 4 for such
Fiscal Quarter and the immediately preceding Fiscal Quarter multiplied by
two; and
(c) the second Fiscal Quarter of the 1999 Fiscal Year, the amount set
forth in ITEM 4 above shall equal the amount set forth in ITEM 4 for such
Fiscal Quarter and the two immediately preceding Fiscal Quarters multiplied
by 1.333.
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EXHIBIT G
INTERCOMPANY SUBORDINATION AGREEMENT
THIS INTERCOMPANY SUBORDINATION AGREEMENT (this "SUBORDINATION
AGREEMENT"), dated as of _________ __, 1998, made by and among each of the
undersigned Persons (such capitalized term, and other terms used herein without
definition, to have the meanings ascribed thereto in SECTION 1 below) and such
other Persons that may from time to time become a party hereto pursuant to the
terms hereof or of the Credit Agreement referred to below (collectively, the
"SUBORDINATED CREDITORS"), and KEEBLER FOODS COMPANY, a Delaware corporation
(the "BORROWER"), in favor of the Administrative Agent and each of the Lenders,
W I T N E S S E T H:
WHEREAS, the Borrower has entered into a Credit Agreement, dated as of
September 28, 1998 (as amended, supplemented, amended and restated or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Borrower, the
various financial institutions as are, or may from time to time become, parties
thereto (the "LENDERS"), The Bank of Nova Scotia, as Administrative Agent and
The First National Bank of Chicago, as Syndication Agent, pursuant to which the
Lenders and the Issuer have agreed to make Credit Extensions on the terms and
subject to the conditions set forth therein;
WHEREAS, the Borrower is now or may hereafter from time to time become
indebted or otherwise obligated to the Subordinated Creditors in respect of
Indebtedness related to or resulting from intercompany loans, advances or other
indebtedness from a Subordinated Creditor (all such present and future
Indebtedness owing to the Subordinated Creditors (whether created directly or
acquired by assignment or otherwise), and interest, premiums and fees, if any,
thereon and other amounts payable in respect thereof and all rights and remedies
of the Subordinated Creditors with respect thereto, being referred to herein as
the "INTERCOMPANY SUBORDINATED DEBT");
WHEREAS, pursuant to clause (e) of Section 7.2.2 of the Credit
Agreement, Indebtedness of the Borrower to any of its Subsidiaries is permitted
only if such Subsidiary has executed and delivered to the Administrative Agent a
counterpart of this Agreement;
WHEREAS, each Subordinated Creditor has duly authorized the execution,
delivery and performance of this Subordination Agreement; and
<PAGE> 162
WHEREAS, it is the best interests of each Subordinated Creditor to
execute this Subordination Agreement inasmuch as each Subordinated Creditor will
derive substantial direct and indirect benefits from the Credit Extensions made
from time to time to the Borrower by the Lenders and the Issuer pursuant to the
Credit Agreement;
NOW, THEREFORE, in consideration of the above premises and in order to
induce the Lenders and the Issuer to make Credit Extensions (including the
initial Credit Extension) to the Borrower pursuant to the Credit Agreement, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as set forth above and
as follows:
AGREEMENT
SECTION 1. DEFINITIONS. Terms used but not defined herein have the
meanings given to them in the Credit Agreement. As used in this Subordination
Agreement, the following terms shall have the meanings specified below:
"BORROWER" is defined in the PREAMBLE.
"CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"INTERCOMPANY SUBORDINATED DEBT" is defined in the SECOND RECITAL.
"LENDERS" is defined in the FIRST RECITAL.
"SENIOR INDEBTEDNESS" is defined in CLAUSE (a) of SECTION 2.
"SUBORDINATED CREDITORS" is defined in the PREAMBLE.
"SUBORDINATION AGREEMENT" is defined in the PREAMBLE.
SECTION 2. AGREEMENT TO SUBORDINATE.
(a) The Borrower and each of the Subordinated Creditors agree
that the Intercompany Subordinated Debt is and shall be subject,
subordinate and rendered junior, to the extent and in the manner
hereinafter set forth, in right of payment, to the prior payment in
cash in full of all Obligations of the Borrower now existing or
hereafter arising, whether for (i) principal, (ii) interest (including,
without limitation, interest accruing after the filing of a petition
initiating any proceeding referred to in CLAUSE (a) of SECTION 3,
whether or not allowed as a claim in such proceeding), (iii) reasonable
costs, (iv) reasonable fees (including, without limitation, reasonable
attorneys' fees and
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<PAGE> 163
disbursements), (v) reasonable expenses, and (vi) otherwise (the
Obligations specified in CLAUSES(a)(i) through (a)(vi) above are
referred to collectively as the "SENIOR INDEBTEDNESS"). For purposes of
this Subordination Agreement, the Senior Indebtedness shall not be
deemed to have been paid in cash in full until the Lenders shall have
received full payment of the Senior Indebtedness in cash, which payment
shall have been retained by the Lenders for a period of time in excess
of all applicable preference or other similar periods under applicable
bankruptcy, insolvency or creditors' rights laws. Each of the Borrower
and the Subordinated Creditors waive notice of acceptance of this
Subordination Agreement by the Lenders, and the Subordinated Creditors
waive notice of and consent to the making, amount and terms of the
Senior Indebtedness which may exist or be created from time to time and
any renewal, extension, amendment or modification thereof, and any
other lawful action which any Lender or Lenders in its and their sole
and absolute discretion may take or omit to take with respect thereto.
The provisions of this Section shall constitute a continuing offer made
for the benefit of and to all Lenders and each Lender is hereby
irrevocably authorized to enforce such provisions.
(b) In the event that the Borrower shall make, and/or any
Subordinated Creditor shall receive, any payment on Intercompany
Subordinated Debt in contravention of this Subordination Agreement or
the terms of the Credit Agreement, then and in any such event such
payment shall be deemed to be the property of, segregated, received and
held in trust for the benefit of and shall be promptly paid over and
delivered to the Administrative Agent for the PRO RATA benefit of the
Lenders.
(c) The Borrower shall not make, and no Subordinated Creditor
shall receive or accept, any payment in respect of any Intercompany
Subordinated Debt if a Default of the nature set forth in Section 8.1.9
of the Credit Agreement or any Event of Default under Section 8.1.1 of
the Credit Agreement has occurred and is continuing or would result
therefrom, unless and until (i) the Senior Indebtedness has been paid
in cash in full, (ii) in the case of an Event of Default referred to
above other than a Default of the nature set forth in Section 8.1.9 of
the Credit Agreement, such Event of Default has been cured or waived or
(iii) the Administrative Agent has otherwise consented in writing.
SECTION 3. IN FURTHERANCE OF SUBORDINATION.
(a) Upon any distribution of all or any of the assets of the
Borrower or any Subordinated Creditor in the event of
(i) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relative
to the Borrower or such Subordinated Creditor, or to its
creditors, as such, or to its assets,
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<PAGE> 164
(ii) any liquidation, dissolution or other winding up
of the Borrower or any Subordinated Creditor, whether
voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or
(iii) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the
Borrower or any Subordinated Creditor,
then, and in any such event, unless the Administrative Agent shall
otherwise agree in writing, the Lenders shall receive payment in cash
in full of all amounts due or to become due (whether or not the Senior
Indebtedness has been declared due and payable prior to the date on
which the Senior Indebtedness would otherwise have become due and
payable) on or in respect of all Senior Indebtedness (including
post-petition interest) before the Subordinated Creditors or anyone
claiming through or on their behalf (including any receiver, trustee,
or otherwise) are entitled to receive any payment on account of
principal of (or premium, if any) or interest on or other amounts
payable in respect of the Intercompany Subordinated Debt, and to that
end, any payment or distribution of any kind or character, whether in
cash, property or securities, which may be payable or deliverable in
respect of the Intercompany Subordinated Debt in any such case,
proceeding, dissolution, liquidation or other winding up or event,
shall be paid or delivered directly to the Administrative Agent for the
application (in the case of cash) to, or as collateral (in the case of
non-cash property or securities) for, the payment or prepayment of the
Senior Indebtedness until the Senior Indebtedness shall have been paid
in cash in full.
(b) If any proceedings, liquidation, dissolution or winding up
referred to in CLAUSE (a) above is commenced by or against the Borrower
or any Subordinated Creditor,
(i) the Administrative Agent or the Lenders are hereby
irrevocably authorized and empowered (in their own names or in
the name of the Borrower, the Subordinated Creditors or
otherwise), but shall have no obligation, to demand, sue for,
collect and receive every payment or distribution in respect
of the Intercompany Subordinated Debt above and give
acquittance therefor and to file claims and proofs of claim
and take such other action (including, without limitation,
voting the Intercompany Subordinated Debt or enforcing any
security interest or other lien securing payment of the
Intercompany Subordinated Debt) as the Lenders or the
Administrative Agent may reasonably deem necessary or
advisable for the exercise or enforcement of any of the rights
or interests of the Lenders or the Administrative Agent
hereunder; PROVIDED that in the event the Administrative Agent
or the Lenders take such action, the Administrative Agent or
the Lenders shall apply all proceeds FIRST, to the payment of
the costs of enforcement of this Subordination Agreement, and
SECOND, to the PRO RATA payment of the Senior Indebtedness;
and
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<PAGE> 165
(ii) the Subordinated Creditors shall duly and promptly
take such action as the Lenders or the Administrative Agent
may request (A) to collect the Intercompany Subordinated Debt
for the account of the Lenders and the Administrative Agent
and to file appropriate claims or proofs of claim in respect
of the Intercompany Subordinated Debt, (B) to execute and
deliver to the Lenders or the Administrative Agent such powers
of attorney, assignments, or other instruments as the Lenders
or the Administrative Agent may reasonably request in order to
enable them to enforce any and all claims with respect to, and
any security interests and other liens securing payment of,
the Intercompany Subordinated Debt and (C) to collect and
receive any and all payments or distributions which may be
payable or deliverable upon or with respect to the
Intercompany Subordinated Debt.
(c) All payments or distributions of assets of the Borrower,
whether in cash, property or securities upon or with respect to the
Intercompany Subordinated Debt which are received by the Subordinated
Creditors contrary to the provisions of this Subordination Agreement
shall be received in trust for the PRO RATA benefit of the Lenders,
shall be segregated from other funds and property held by the
Subordinated Creditors and shall be forthwith paid over to the
Administrative Agent in the same form as so received (with any
necessary indorsement) to be applied, PRO RATA (in the case of cash)
to, or held as collateral (in the case of noncash property or
securities) for, the payment or prepayment of the Senior Indebtedness,
whether matured or unmatured, in accordance with the terms of this
Subordination Agreement.
(d) The Lenders and the Administrative Agent are hereby
authorized to demand specific performance of this Subordination
Agreement, whether or not the Borrower or any Subordinated Creditor
shall have complied with any of the provisions hereof applicable to it,
at any time when the Subordinated Creditors or any one of them shall
have failed to comply with any of the provisions of this Subordination
Agreement applicable to it. The Subordinated Creditors hereby
irrevocably waive any defense (other than the defense of payment in
full of the Senior Indebtedness) based on the adequacy of a remedy at
law which might be asserted as a bar to such remedy of specific
performance.
SECTION 4. NO ENFORCEMENT OR COMMENCEMENT OF ANY PROCEEDINGS. Each
Subordinated Creditor agrees that, so long as any Senior Indebtedness shall
remain unpaid, or any Commitment shall be in effect, it will not accelerate the
maturity of the Intercompany Subordinated Debt or commence, or join with any
creditor other than the Lenders in commencing any proceeding referred to in
CLAUSE (a) of SECTION 3.
SECTION 5. RIGHTS OF SUBORDINATION. The Subordinated Creditors agree
that no payment or distribution to the Lenders or the Administrative Agent
pursuant to the provisions of this Subordination Agreement shall entitle the
Subordinated Creditors to exercise any rights of subrogation in respect thereof
until all Senior Indebtedness has been paid in cash in full and the
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<PAGE> 166
Commitments have been terminated. The Subordinated Creditors agree that the
subordination provisions contained herein shall not be affected by any action,
or failure to act, by the Administrative Agent or the Lenders which results, or
may result, in affecting, impairing or extinguishing any right of reimbursement
or subrogation or other right or remedy of the Subordinated Creditors against
the Borrower.
SECTION 6. SUBORDINATION LEGEND; FURTHER ASSURANCES. The Subordinated
Creditors and the Borrower will cause each note and instrument (if any)
evidencing the Intercompany Subordinated Debt to be endorsed with the following
legend:
"The indebtedness evidenced by this instrument is subordinated
to the prior payment in cash in full of the Senior Indebtedness (as
defined in the Intercompany Subordination Agreement, dated as of
_________ __, 1998) pursuant to, and to the extent provided in, the
Intercompany Subordination Agreement by the maker hereof and payee
named herein in favor of the Lenders and any person now or hereafter
designated as their agent."
Each of the Subordinated Creditors and the Borrower hereby agrees to mark its
books of account in such a manner as shall be effective to give proper notice of
the effect of this Subordination Agreement and will, in the case of any
Intercompany Subordinated Debt which is not evidenced by any note or instrument,
following the occurrence and subject to the continuation of an Event of Default,
upon the Administrative Agent's request, cause such Intercompany Subordinated
Debt to be evidenced by an appropriate note or instrument or instruments
endorsed with the above legend. Each of the Subordinated Creditors and the
Borrower will at its expense and at any time and from time to time promptly
execute and deliver all further instruments and documents and take all further
action that may be necessary or that the Lenders or the Administrative Agent may
reasonably request in order to protect any right or interest granted or
purported to be granted hereunder or to enable the Lenders or the Administrative
Agent to exercise and enforce their rights and remedies hereunder.
SECTION 7. NO CHANGE IN OR DISPOSITION OF INTERCOMPANY SUBORDINATED
DEBT. The Subordinated Creditors will not, without the prior written consent of
the Administrative Agent:
(a) sell, assign, transfer, endorse, pledge, encumber or
otherwise dispose of any of the Intercompany Subordinated Debt except
as permitted under the Credit Agreement;
(b) permit the terms of any of the Intercompany Subordinated
Debt to be changed in such a manner as to have a material adverse
effect upon the rights or interests of the Lenders or the
Administrative Agent; or
(c) upon the occurrence and during the continuation of any
Default of the nature set forth in Section 8.1.9 of the Credit
Agreement or an Event of Default under Section
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<PAGE> 167
8.1.1 of the Credit Agreement, take, or permit to be taken, any action
to assert, collect or enforce the Intercompany Subordinated Debt or any
part thereof.
SECTION 8. AGREEMENT BY THE BORROWER. The Borrower agrees that it will
not make any payment on any of the Intercompany Subordinated Debt, or take any
other action, in contravention of the provisions of this Subordination
Agreement.
SECTION 9. OBLIGATIONS HEREUNDER NOT AFFECTED. All rights and interest
of the Lenders and the Administrative Agent hereunder, and all agreements and
obligations of the Subordinated Creditors and the Borrower hereunder, shall
remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any document
evidencing Senior Indebtedness;
(b) any change in the time, manner or place of payment of, or
any other term of, all or any of the Senior Indebtedness, or any other
amendment or waiver of or any consent to departure from any of the
documents evidencing or relating to the Senior Indebtedness;
(c) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from
any guaranty or Loan Document, for all or any of the Senior
Indebtedness;
(d) any failure of any Lender or the Administrative Agent to
assert any claim or to enforce any right or remedy against any other
party hereto under the provisions of this Subordination Agreement, the
Credit Agreement or any other Loan Document other than this
Subordination Agreement;
(e) any reduction, limitation, impairment or termination of
the Senior Indebtedness for any reason (other than the defense of
payment in full of the Senior Indebtedness), including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and the Borrower and each Subordinated Creditor hereby
waive any right to or claim of) any defense (other than the defense of
payment in full of the Senior Indebtedness) or setoff, counterclaim,
recoupment or termination whatsoever by reason of invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Senior
Indebtedness; and
(f) any other circumstance which might otherwise constitute a
defense (other than the defense of payment in full of the Senior
Indebtedness) available to, or a discharge of, the Borrower in respect
of the Senior Indebtedness or the Subordinated Creditors in respect of
this Subordination Agreement.
This Subordination Agreement shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the Senior Indebtedness is
rescinded or must otherwise be
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returned by any Lender or the Administrative Agent upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, all as though such
payment had not been made. The Subordinated Creditors acknowledge and agree that
the Lenders and the Administrative Agent may in accordance with the terms of the
Credit Agreement, without notice or demand and without affecting or impairing
the Subordinated Creditors' obligations hereunder, from time to time (i) renew,
compromise, extend, increase, accelerate or otherwise change the time for
payment of, or otherwise change the terms of the Senior Indebtedness or any part
thereof, including, without limitation, to increase or decrease the rate of
interest thereon or the principal amount thereof; (ii) take or hold security for
the payment of the Senior Indebtedness and exchange, enforce, foreclose upon,
waive and release any such security; (iii) apply such security and direct the
order or manner of sale thereof as the Administrative Agent and the Lenders, in
their sole discretion, may determine; (iv) release and substitute one or more
endorsers, warrantors, borrowers or other obligors; and (v) exercise or refrain
from exercising any rights against the Borrower or any other Person.
SECTION 10. REPRESENTATIONS AND WARRANTIES. Each of the Subordinated
Creditors, in respect of itself and the Intercompany Subordinated Debt owing to
it, and the Borrower, as the case may be, hereby represents and warrants as
follows:
(a) the Subordinated Creditors own the Intercompany
Subordinated Debt now outstanding free and clear of any Lien other than
pursuant to a Loan Document;
(b) this Subordination Agreement constitutes a legal, valid
and binding obligation of each Subordinated Creditor and the Borrower,
enforceable in accordance with its terms (subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing).
SECTION 11. AMENDMENTS, WAIVERS. No amendment or waiver of any
provision of this Subordination Agreement nor consent or any departure by the
Subordinated Creditors or the Borrower herefrom, shall in any event be effective
unless the same shall be in writing and signed by the Administrative Agent and
the other parties hereto, and then such waiver, amendment or consent shall be
effective only in the specific instance and for the specific purpose for which
given. Any waiver, forbearance, failure or delay by the Administrative Agent or
the Lenders in exercising, or the exercise or beginning of exercise by the
Administrative Agent or the Lenders of, any right, power or remedy, simultaneous
or later shall not preclude the further, simultaneous or later exercise thereof,
and every right, power or remedy of the Administrative Agent and the Lenders
shall continue in full force and effect until such right, power or remedy is
specifically waived in a writing executed or authorized by such Lenders.
SECTION 12. EXPENSES. The Subordinated Creditors and the Borrower
jointly and severally agree to pay, upon demand, to the Administrative Agent or
the Lenders, as applicable,
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any and all reasonable costs and expenses, including, without limitation,
reasonable attorneys' fees and disbursements which the Lenders or the
Administrative Agent may incur in connection with the exercise or enforcement of
any of the rights or interest of the Lenders or the Administrative Agent
hereunder.
SECTION 13. ADDRESS FOR NOTICES. All notices and other communications
provided for hereunder shall be in writing and, if to the Subordinated
Creditors, mailed (registered or certified, return receipt requested) or
telecopied or hand delivered to it at its address set forth below its name on
the signature pages hereto, if to the Borrower, the Administrative Agent or any
Lender, mailed (registered or certified, return receipt requested) or hand
delivered to it, addressed to it at the address of the Borrower or such Lender
or the Administrative Agent (as the case may be) listed in the Credit Agreement,
or as to each party or other Person at such other address as shall be designated
by such party or Person in a written notice to each other party complying as to
delivery with the terms of this Section. All such notices and communications
shall be effective when received, if sent by mail or delivery service or when
transmitted by telecopy, each in the manner provided above.
SECTION 14. ENTIRE AGREEMENT; SEVERABILITY. This Subordination
Agreement contains the entire subordination agreement among the parties hereto
with respect to the subject matter hereof. If any of the provisions of this
Subordination Agreement shall be held invalid or unenforceable, this
Subordination Agreement shall be construed as if not containing those
provisions, and the rights and obligations of the parties hereto shall be
construed and enforced accordingly.
SECTION 15. CUMULATIVE RIGHTS. The rights, powers and remedies of the
Lenders and the Administrative Agent under this Subordination Agreement shall be
in addition to all rights, powers and remedies given to the Lenders and the
Administrative Agent by virtue of any contract, statute or rule of law, all of
which rights, powers and remedies shall be cumulative and may be exercised
successively or concurrently. The parties hereto expressly acknowledge and agree
that the Lenders and the Administrative Agent are intended, and by this
reference expressly made, third party beneficiaries of the provisions of this
Subordination Agreement.
SECTION 16. CONTINUING AGREEMENT; ASSIGNMENTS. This Subordination
Agreement is a continuing agreement of subordination and the Lenders may, from
time to time and without notice to the Subordinated Creditors, extend credit to
or make other financial arrangements with the Borrower in reliance hereon. This
Subordination Agreement shall (a) remain in full force and effect until the
Senior Indebtedness shall have been paid in cash in full and all Commitments
terminated, (b) be binding upon the Subordinated Creditors, the Borrower and
their respective successors, transferees and assigns, and (c) inure to the
benefit of and be enforceable by the Administrative Agent and each Lender and
their respective successors, transferees and assigns. Without limiting the
generality of the foregoing, any Lender may, subject to the provisions of the
Credit Agreement, assign or otherwise transfer the Senior Indebtedness held by
it to any other
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Person, subject to Section 10.11.1 of the Credit Agreement and such other Person
shall thereupon become vested with all the rights in respect thereof granted to
such Lender herein or otherwise.
SECTION 17. GOVERNING LAW. THIS SUBORDINATION AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
SECTION 18. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
SUBORDINATION AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY OF THE
LENDERS OR ANY SUBORDINATED CREDITOR OR THE BORROWER SHALL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE BORROWER AND
EACH SUBORDINATED CREDITOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL,
NON-APPEALABLE JUDGEMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION OR
BY A FINAL, NON-APPEALABLE JUDGMENT OF ANY APPLICABLE APPELLATE COURT. THE
BORROWER AND EACH SUBORDINATED CREDITOR FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. THE BORROWER AND EACH SUBORDINATED
CREDITOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT THE BORROWER OR SUCH SUBORDINATED CREDITOR HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, EACH OF THE BORROWER AND EACH OF SUCH SUBORDINATED CREDITORS HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
SUBORDINATION AGREEMENT.
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SECTION 19. WAIVER OF JURY TRIAL. THE BORROWER AND EACH SUBORDINATED
CREDITOR AND, BY ACCEPTING THIS SUBORDINATION AGREEMENT AND THE BENEFITS
THEREOF, THE ADMINISTRATIVE AGENT, ANY ISSUER AND ANY LENDER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS SUBORDINATION AGREEMENT OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE BORROWER OR
SUCH SUBORDINATED CREDITOR AND EACH SUCH PERSON ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS CONTINUING TO MAKE CREDIT
EXTENSIONS UNDER THE CREDIT AGREEMENT AND FOR THE SUBORDINATED CREDITOR ENTERING
INTO THIS SUBORDINATION AGREEMENT.
SECTION 20. EXECUTION IN COUNTERPARTS. This Subordination 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 all of which when taken together shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, the parties have caused this Subordination
Agreement to be duly executed and delivered as of the date first above written.
KEEBLER FOODS COMPANY
By:________________________
Name:
Title:
[NAME OF SUBSIDIARY]
By:________________________
Name:
Title:
Address:_____________________
_____________________
Facsimile No.: (___) ___-____
Attention:___________________
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EXHIBIT H
SOLVENCY CERTIFICATE
KEEBLER FOODS COMPANY
This Certificate (this "CERTIFICATE") is delivered pursuant to Section
5.1.8 of the Credit Agreement, dated as of September 28, 1998 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among Keebler Foods Company, a Delaware corporation (the
"BORROWER"), the various financial institutions as are or may become parties
thereto (collectively, the "LENDERS"), The Bank of Nova Scotia, as
Administrative Agent and The First National Bank of Chicago, as Syndication
Agent. Unless otherwise defined herein, terms used herein have the meanings
provided in the Credit Agreement.
The undersigned hereby certifies that he is the chief financial
Authorized Officer (in such capacity, the "CFO") of the Borrower, and that, as
such, he is authorized to execute this Certificate on behalf of the Borrower.
Any term or provision hereof to the contrary notwithstanding, the CFO is
executing this Certificate in his capacity as an officer of, and solely on
behalf of, the Borrower and its Subsidiaries, and not in his individual
capacity. On behalf of the Borrower and its Subsidiaries, the CFO further
certifies that:
(a) The CFO has knowledge of, and has participated in, the
preparation and negotiation of the Credit Agreement, each other Loan
Document, and the Purchase Agreement and the agreements executed in
connection therewith and the transactions, including the Acquisition,
contemplated thereunder.
(b) The CFO is familiar with the finances of the Borrower and
its Subsidiaries and has participated in the preparation of all
financial statements of each of the Borrower and its Subsidiaries,
including the Pro Forma Balance Sheet and related statements of
earnings and cash flow. The CFO has also participated in the
development of financial projections for the Borrower and its
Subsidiaries giving effect to the Acquisition and the financing and
transactions contemplated pursuant to and in connection with the Credit
Agreement.
(d) Based upon the foregoing and on a PRO FORMA basis after
giving effect to the transactions, including the Acquisition,
contemplated under the Credit Agreement, as of the date of the initial
Credit Extension under the Credit Agreement:
(i) the fair value of the assets of the Borrower and
each of its Subsidiaries will exceed the total amount of
liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities) of the Borrower and each such
Subsidiary, on a going-concern basis;
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(ii) the present fair salable value of the assets of the
Borrower and each of its Subsidiaries will exceed the probable
total liabilities (including contingent, subordinated, unmatured
and unliquidated liabilities) of the Borrower and each such
Subsidiary as they become absolute and matured;
(iii) the Borrower and each of its Subsidiaries will be
able to pay its debts, including contingent liabilities, as they
mature and become due;
(iv) the Borrower and each of its Subsidiaries is not,
and will not be, engaged in a business for which its capital is,
or would be, unreasonably small; and
(v) the Borrower and each of its Subsidiaries has not
incurred (by way of assumption or otherwise) any obligation or
liability (contingent or otherwise) under the Credit Agreement or
any other Loan Documents to which it is a party, nor has it made
any conveyance pursuant to or in connection therewith, with actual
intent to hinder, delay or defraud either present or future
creditors of the Borrower or any of its Subsidiaries or
Affiliates, as the case may be.
(e) A copy of the Pro Forma Balance Sheet as of the date of the
initial Credit Extension under the Credit Agreement, after giving
effect to the consummation of the Sunshine Acquisition and all the
transactions contemplated by the Credit Agreement (including the
increased Commitment Amounts thereunder) is attached hereto as ANNEX I.
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IN WITNESS WHEREOF, the undersigned chief financial Authorized Officer
has caused the Certificate to be duly executed and delivered as of the date
first above written.
KEEBLER FOODS COMPANY
By:__________________________________
Title:
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